The Michael Morton Act five months in: Too much? Too little? Too soon to tell

The Texas Tribune's Terri Langford last week had a brief overview (May 29) discussing implementation of the so-called Michael Morton Act, which readers will recall was Texas' open-file discovery statute for prosecutors in criminal cases. The big complaint: "Prosecutors say the [law] ... is driving up evidence costs." The article closes with this summation of perceived flaws of the Michael Morton Act according to the sources in Langford's story:

There have been some kinks to work out, though. Besides the cost, there are questions about measures in the Morton law that prevent criminal defense attorneys from disclosing some information to their clients. The law prevents lawyers from disclosing certain information, primarily to protect victims. A motion has been filed in a Lubbock case that claims the Morton Act violates a defendant's Sixth Amendment right to effective assistance of counsel because preventing full disclosure impedes a thorough investigation.

And back in Dallas County, the law has raised questions about whether prosecutors should get more access to grand jury transcripts. 

Brad Lollar, a Dallas County public defender who is defending a client charged with capital murder, said the district attorney is fighting his request for a grand jury transcript.

Defense attorneys are not permitted in grand jury proceedings. But they can ask a judge for transcripts of the prosecution witnesses' testimony before the grand jury.

Defense attorneys must prove that they have a "particularized need" for the information. Lollar argues that because a transcript of any witness testifying before a grand jury could potentially help his client, the particularized need requirement has been expanded by the Morton law.

“We routinely request grand jury testimony in our pre-trial motions. That is routinely granted by the judges,” Lollar said. “I think they are concerned that the Michael Morton Act will require them to turn over grand jury transcripts across the board, if [transcripts] exist. We’re saying a reading of the Michael Morton Act will require that.” 

Kepple said his reading of the new Morton law says it does not “disturb” the protections of grand jury secrecy already in place.

“I would argue that grand jury testimony is still covered under the same rules beforehand,” he said. 

Grand jury testimony, though, is not specifically addressed in the Morton law, so lawmakers may re-examine questions about access to it during next legislative session.

Those aren't the only hiccups, though. For a few more examples, let's return to Grits' notes from the May 1 gathering of the Court of Criminal Appeals' Criminal Justice Integrity Unit (TCJIU), reviving a few aspects of the event that didn't make it into my earlier writeup from the meeting.

Judge Barbara Hervey and others expressed concern that, while prosecutors are responsible in the courtroom for revealing exculpatory information held by any arm of the state, folks like crime-lab employees or local police may not fully understand that the state is responsible for revealing every detail of their work. For example, said Hervey, some agencies have begun scanning officers' written field notes and attaching them to incident reports while others have been resistant, fearing the notes and the report may contradict. Calling these debates "fallout" from the Michael Morton Act, she suggested that the Texas Commission on Law Enforcement expand training for police officers on Brady/Michael Morton Act obligations as well as report writing. She also suggested that crime lab workers receive similar training, which in my experience is sorely needed.

Another Brady issue raised but left unresolved from the TCJIU meeting: Many if not most District Attorneys keep a list of police officers in their jurisdiction who have had disciplinary problems that might impeach them as witnesses on the stand. In Harris Tarrant County this has been dubbed "the pink list," while in other counties DAs call it a "do not sponsor" list. The problem: Police departments sometimes fail to notify DAs of significant disciplinary actions. Worst case outcome for the state: The information is discovered independently by defense counsel and sprung on prosecutors at some critical point in the process. El Paso DA Jaime Esparza told the integrity unit that information on his county's version of a do-not-sponsor list often comes from defense counsel.

In non-civil service cities (the biggest are Dallas and El Paso), incomplete reporting about police disciplinary histories would eventually backfire because the bulk of disciplinary files are open records under the Public Information Act. So often defense counsel can independently find them, if they try. But thanks to 1989 amendments to the statute, the +73 cities which have adopted the state civil service code now keep two personnel files: A public one where they keep commendations and brief summaries of disciplinary actions (defined as suspensions or demotions), and closed files that include most workaday disciplinary violations and potentially other information that arguably should be turned over to the defense under the new discovery law.

If those lesser violations include, for example, confirmed allegations of lying, does the Michael Morton Act trump the civil service code? How much of the second, secret personnel file must civil service departments reveal to prosecutors or for that matter defense counsel? At the moment, that's being interpreted differently by different departments. And that doesn't even take into account disciplinary actions against an officer by past law-enforcement employers: Even police human resource officers can't seem to crack that nut.

At the TCJIU, panelists mostly suggested more training as the remedy for most Michael-Morton-Act related complaints they discussed, and for now, I agree. It's too early yet to tell if the law needs to be "fixed." By 2017-19, it'll be clearer exactly what is and isn't working with the Michael Morton Act. These issues will have either worked themselves out or wound themselves into a knot; the same is true for prosecutors' concerns about the law raised in Langford's story.

Whether one considers the Michael Morton Act too onerous or incomplete, the statute only took effect five months ago and Grits would argue that it's too early yet to talk about significant changes in the coming 84th legislative session. The Lege should give the law a couple of years to get its legs under it, for prosecutors and cops to train on it, for judges to rule on it, for appellate courts to interpret it, for analysts to study more than anecdotes, before looking to alter a law that at most needs tweaking.

CORRECTION/Ed. note: An earlier version of this post erroneously stated that Harris County maintained a "pink list" of police officers with significant disciplinary problems. It was actually Tarrant County.  My apology for the error and thanks to the commenter who listened to the TCJIU audio to do the needed factchecking. My bad. Lo siento.

Y MAS: Paul Kennedy has little sympathy for complaints with the Michael Morton Act.