Wednesday, July 16, 2014

Paul Kennedy on Michael Morton Act waivers

Houston criminal defense lawyer Paul Kennedy provided ground-level perspective on the Michael Morton Act waivers defense counsel are being asked to sign as part of plea bargains:
The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.
Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.
I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.
Kennedy also makes a strong point about how those waivers might play out when future revelations call into question old convictions that could be challenged under post-conviction habeas corpus writs, concluding:
Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?
Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?
If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.
We've already heard claims from prosecutors that the Michael Morton Act's requirements are too onerous. When Lege committees begin to evaluate the new law in interim hearings, they should also hone in on the propriety and utility of these waivers, which is a developing issue for the criminal defense bar. But in both cases, as Grits argued when prosecutors' complaints surfaced last month, I still tend to think, "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." Big ships turn slowly and the Michael Morton Act was a major change in how Texas prosecutors do their business.

That's why, all told, my preference would still be for the Lege to leave the law alone in 2015. It's hard to tell right now which issues will ripen and develop and which ones may lose steam. Prosecutors' complaints of extra burden may dissipate once systems are in place. And waivers will inevitably be litigated up the judicial food chain, given time, and limits potentially placed on their broadness in that venue. Maybe we'll look up in a couple of years and it will all have worked itself out. Or, if not, the Lege can have more time and track record to judge when deciding how to tweak this groundbreaking law.


Anonymous said...

Though he certainly wishes these had been around 30-years ago, I'd like to take a moment and make perfectly clear to all of your readers that Ken Anderson did NOT come up with the idea for these waivers.

This idea arose after a roundtable discussion involving me and other members along with input from several past members who are continuing to serve us in their more powerful judicial capacity.

If any readers on the right side of the bar would like to learn more about how they can coerce defense attorneys to sign these waivers, or if you need more information regarding the sanitizing of files after waivers are signed, contact one of our members at

A reminder that our latest seminar "Cleaning Up After The Frame" featuring esteemed guest speaker Ken Anderson proved so popular that we are offering it once again.

Registration underway now:

Be there!

Anonymous said...

Would a Prosecutor sign a reciprocal document, declaring that all such favorable information has been turned over to the defense, and that any such information discovered in the future is punishable by the imprisonment of the prosecutor's children and/or loved-ones?

I thought not.

Any defense signing such documents should be immediately declared "ineffective".

Anonymous said...

@8:26 I agree. It is an adversarial system and we would expect such shenanigans from prosecutors. Defense counsel, paid or not, are mostly state puppets. However what kind of Judge would accept a plea based on these terms?

Anonymous said...

Ahhhh- Ken Anderson and unfortunately others that we do not get the good fortune to clearly see what they are about.

Anonymous said...

Coercion and cleaning up! Yes that is what Texas does best...guess that's why their exoneration rate is so high! Do your freaking job and quit playing games with people's lives....someday it may be your life or your loved one who is being screwed by political greed and manipulation!

The Homeless Cowboy said...

I would have to say any prosecutor who asks for this type wavier to be signed, any defense attorney who would even consider signing this type of wavier or any judge who would adjudicate any case where a wavier of this type was in place. Should be forever expelled from the jurisprudence community and forbidden from ever practicing law again. Unless the went somewhere where they have Sharia Law, and even then they probably wouldn't allow it. This is without a doubt the most asinine and ridiculous ploy I have heard yet from the prosecutors side of the room. It is I feel a direct violation of the defendants right to a fair trial. Grits, I'm no legal genius but my God folks what does it take? Is there no end to the hypocrisy? How could anyone with an ounce of human compassion for their fellow man allow something this horrible to happen? It is basically a statement saying you are being unfairly treated. I am completely dumbfounded to find out that people are actually doing this, they should be arrested themselves for unlawful imprisonment. Holy smoke boys and girls what has happened to our basic sense of right and wrong???