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.