Wednesday, December 24, 2014

Michael Morton Act costs, and the costs of failing to disclose exculpatory evidence

Travis County officials are grumbling at the costs of implementing the Michael Morton Act. Reported the Austin Statesman (Dec. 23):
The Michael Morton Act, named for a Williamson County man who spent 25 years behind bars for the murder of his wife before DNA evidence proved his innocence, requires prosecutors to produce all potentially exculpatory evidence before trial and to inventory and make copies of all evidence. It went into effect Jan. 1.

In June, Lehmberg and Escamilla requested 17 new staffers to deal with the act, and the commissioners approved eight. But the backlog of cases that hadn’t been approved for compliance with the act continued to grow — it was 5,172 in mid-December — and the prosecutors’ offices a week ago asked for 12 more employees.

Biscoe said Tuesday he was “not happy” that the Legislature indicated that the act would have a minimal impact on county budgets.

“That’s just not the case,” he said. “The fiscal note (for the law) was faulty.”

Five of the six largest counties have added staff because of the act. Travis County has added the most.
On the flip side, in Houston we find an example of the costs of prosecutors failing to turn over everything in their files to the defense. Former Harris County DA candidate and Cold Justice reality TV star Kelly Siegler found herself on the dock defending her decisions about what evidence to give to defendant David Temple's counsel in a high-profile murder case. Reported the Houston Chronicle (Dec. 22):
Attorneys for Temple, including his lawyer at trial Dick DeGuerin, have long said Belinda Temple was killed by teenage neighbors who were interrupted during an after-school burglary. In motions filed after the case was re-opened, Deguerin and other lawyers have accused Siegler of withholding information about the teenaged neighbors.

During contentious questioning by attorney Casie Gotro, Siegler said she turned over evidence about several shotguns recovered in 2009, the teenage neighbor and his friends along with other information she decided was relevant.

However, she said determining whether evidence was Brady information often fell into a "gray area." She said she did not turn over evidence of every "rabbit trail" and "kooky lead."

One of those "kooky leads" was a neighbor's wife who called police to tell them her husband had killed Belinda Temple. Siegler said detectives investigated the story and decided it was not true and that she did not turn it over to the defense.

"When the defense is to just throw mud at the wall and see what sticks," Siegler said. "Brady is an impossible burden."

The former prosecutor also found herself hamstrung by the lack of detailed notes in her files about when she turned over the evidence or told DeGuerin.

"I don't remember," was a constant refrain during more than five hours of questions, which are expected to continue Tuesday.

The legal issues in the case include the claim that Temple's due process rights were violated by prosecutors withholding Brady information, an ineffective assistance of counsel claim against DeGuerin and that Temple is "actually innocent."

After hearing from more than a dozen expected witnesses including Siegler about the investigation and the prosecution, Gist will issue findings of fact and conclusions of law to be reviewed by Texas' highest court. That court would decide if Temple gets a new trial.
Clearly, had the Michael Morton Act been in place at the time of Temple's trial, this situation could have been avoided. Even if Temple is guilty, the expense and difficulty of retrying him should not be underestimated. But what if Temple is innocent and the alternative suspects really did it? Then, the tangible and intangible costs grow much higher. Siegler was operating under different rules when she prosecuted Temple and Judge Gist will decide whether she followed them. But the whole situation exemplifies the sort of problems the Michael Morton Act was intended to solve. Counties understandably grumble about another unfunded mandate, but opening up prosecutor files also prevents future costs by reducing errors and appeals. And it makes the adversarial system more robust and less one-sided. That's worth something, too, even if it doesn't show up on the accounting ledger.

BTW,  does anyone else find it odd that these prosecutor offices, which for years insisted Texas didn't need an open-file law because they already all had open-file policies, all of a sudden need extra staff to comply with a law they said was redundant with what they were already doing? Perhaps some of those titular open-file policies we were told about prior to the act's passage weren't quite as open as was portrayed.


Anonymous said...

No, Grits, the reason prosecutors offices are adding staff is due to the "inventory" component of the Morton act which requires the prosecution to particularly identify each item which was produced. It used to be easy enough to just allow the defense attorney to sit down and review the prosecutor's file, although admittedly it was difficult to show after the fact whether some discovery item was or was not actually in the file. Now, because of Morton, prosecutors are having to be much more diligent in particularly inventorying and/or listing each item which was produced. Some offices are now scanning every piece of discovery in their file and filing a CD/DVD with the court. Others are paginating or Bates stamping each page of their file and preparing an index. At the conclusion of the case, Morton requires the prosecution and defense to sign off on a discovery certificate listing everything that was produced. In a capital case, you could literally be talking about thousands of pages of reports, witness statements, photos, criminal histories, etc.. The concept is fine. By requiring such an inventory, it reduces the potential for disputes after the case is over regarding whether something was or wasn't disclosed. But someone does have to manually do the job of documenting and listing everything in the prosecution's file. Hence the need for more manpower and additional staff. As I noted above, Morton's concept was just fine. But it absolutely created an unfunded mandate for the counties. That is indisputable.

Gritsforbreakfast said...

3:25, if Siegler had that inventory she probably wouldn't be on the dock answering Brady questions and a high-profile murder case wouldn't be at risk of being overturned, so there are costs to not doing it, too. They should have been documenting discovery before but instead the approach was to claim "Trust us, we turned everything over," when frequently enough to be a problem that wasn't the case. Prosecutors only have their colleagues who cut corners to blame for the Lege making them do what they should have been doing anyway.

I agree it's an unfunded mandate. It's also an unfunded mandate the other direction when, for example, Williamson County sent Michael Morton to TDCJ and state taxpayers footed his bills for a quarter century, then his innocence compensation. The state pays for county mistakes, all the time. So how bout this: The state covers these extra Brady costs and counties pay incarceration costs for offenders they send to TDCJ and any innocence compensation costs when they wrongly convict somebody? Because we wouldn't want anyone to suffer unfunded mandates, right?

Jefe said...

Kelly's frequent answer at the hearing: "I don't remember."

Anonymous said...

The existing "Open File Policy" was a damned lie, at least in Travis County.

The main reason it is an unfunded mandate is it allows the defense attorney to request evidence that is NOT in the prosecutor's file. Under Brady, the prosecutor only needed to worry about exculpatory evidence. Morton allows the defense access to material evidence. This is HUGE for defendants and absolutely overdue, but it is potentially expensive.

Perhaps the defendant, victim, or a witness has a prior charge from another jurisdiction inside Texas but it arguably material to the current case. The defense attorney could request copies of everything relating that old case. The prosecutor would be required to either (A) fetch evidence in the possession of the other jurisdiction (eg: prosecution, law enforcement, contents of clerk's file) or (B) argue to the judge that it can be withheld as either immaterial or privileged... except the prosecutor would need to actually fetch the stuff to really determine if it is immaterial.

Anyway, in Travis we are seeing HUGE delays in producing dash videos for non-DWI cases. APD was aware of Morton and they prepared in advance. They started saving the videos in most cases BEFORE the Morton rules took effect in Jan 2014. So the videos piled up in the prosecutors office for months because they wanted to make their own copy before turning it over to the defense... but they had insufficient staff to make their copies.

Cases that used to plea out in 3 months are now waiting on the pretrial conference docket for 6 months just waiting for the video. These videos often contain exculpatory statements recorded on the officer's wireless microphone during the investigation. Once you give the defendant exculpatory video evidence ... well all the sudden they act like you gave them reasonable doubt... So now the defendant won't take the plea deal and the case goes on the trial docket and cases and expenses stack up.

The justice system is a plea machine. It is not funded to handle very many trials. There are simply not enough prosecutors, judges, or courtrooms to handle this much reasonable doubt. This is the second unfunded mandate. Prosecutors are not trained to dismiss marginal cases. They have relied on huge sentencing ranges and a near monopoly on evidence to turn pleas. Giving defendants just a little bit more favorable evidence has upset the balance of the plea machine.

@3:25pm - The Act DOES NOT require anyone to sign off on a discovery certificate listing everything produced. Why haven't you actually read the plain text of 39.14? Don't rely on what you've been told. Read it yourself and you'll see that the Act's requirement to acknowledge everything produced can be satisfied by reading a list into the record and then have the defense attorney verbally agree on the record.

Also, when you read (h) replace the word "Notwithstanding" with the phrase "In spite of" and read it twice. You need to produce exculpatory evidence even if it is inadmissible or privileged.

The Homeless Cowboy said...

The "Open file policy" was a damn lie in Texas period. It has long been the position of District Attorneys offices not to bother with innocence or guilt but to secure convictions. They could not give a tinkers damn whether the person is guilty or not their only mandate is "can I get a conviction". I really like Grit's idea of letting the counties pay for the incarceration costs as well as the innocence compensation. I think it should come from the District Attorney's budget, maybe if they miss a few paychecks they will act as honest officers of the Court. In effect they have had license to break the law, in order to secure convictions on people who sometimes are accused of crimes more minor than the ones they commit to convict them. It would be my opinion that withholding evidence that results in a prison sentence of any type should earn that person Immediate disbarment and incarceration or punishment of 2 times the sentence the innocent person received. I am not dumb enough to think it will ever happen, but fair is fair. Let's review, a man kidnapped and held 3 women for 10 years, he would have gotten life if convicted, a couple kidnapped and held Ms. Duggar and they will assuredly get life. so you tell me the difference, except that it is even more heinous to know that you are putting someone in prison for even 1 day and they have a way of proving their innocence yet you hide it. I am sure if someone were to investigate the world famous Ms. Sieglers every case, there would surely be enough found to shame her, she ran for D.A. in Harris County, after amassing a very high conviction rate, and now has her own TV show. I am in no way saying every one of her convictions is bogus, but if you found even 1 that was, it casts a shadow on every one and they would all have to be re investigated, which would just about bankrupt the Harris County D.A.. The faulty notes are a tactic, "Deniability" "I don't remember" I call B.S. the esteemed Ms. Siegler has a mind like a steel trap , she lied then, she is lying now. She will not be caught, she will suffer no ill effects. She is by no means the only one. Such is our legal system, at least in this State.

Anonymous said...

There is a huge wink and nod disconnect between evidence held by LEOs and what is in the prosecutor's file. Prosecutors only want incuIpatory evidence and are always very selective in that regard in spite of their duty to seek justice over convictions. LEOs are not sending all of their evidence to the prosecutor of their own volition and prosecutors certainly don't want video of the initial contact or recordings that show evidence was obtained in violation of the law forcing exclusion of inculpatory evidence.

I have cases where after requesting evidence we know from the offense report exists we do not get it setting after setting. I have caught ADAs lying to me and the judge over whether they have requested the information when they had in fact not done so. I informed DA Anderson that these delays in requesting evidence were going to start resulting in motions for monetary sanctions for wasted settings and appearances to come directly out of the pockets of the offending ADAs who are failing to produce the evidence as soon as practicable. If they start getting hit personally with $500 a pop handed to defense attorneys and defendants whose time they are wasting by not requesting evidence required under 39.14 on a timely basis I bet somehow they will start getting the discovery done. This could easily be accomplished by sending memos to the LEOs regarding production of discovery requests within 30 days subject to dismissal of any victimless misdemeanor or felony. It is amazing that my clients on bond can be required to appear in court the week following their arrest, but the state is not required to produce an offense report or their video/audio recordings made during the stop, arrest and questioning of the defendant by that first setting. Many cases could be disposed first settings if that information was sent over timely.

This is not a money issue or a staffing issue. This is an issue of maintaining a lack of transparency regarding required discovery. This is about withholding evidence as long as possible in hopes the case will plead and defendant will waive discovery which may well have made a difference in the decision to plead. ADAs are blatantly disregarding discovery requests under MMA as an unethical tactic to prevent the defense from getting information which so often leads to exclusion of their evidence needed to convict.

Anonymous said...

11:35AM, right on target with one small correction to consider.

FWIW, the only potential problem with the comment would be the portion attributing the main reason(s) on unfunded mandate(s).

If you look at it from the other side of the Railroad tracks, you would realize that the taxpayers' adequately fund the state's 254 county coffers', while at the same exact time, they allow the funds to pay ridiculous salaries & perks for a few, in addition to covering law suites' aka: bribes (out of court undisclosed settlements') & insurance policies.

*The courts and the parrots are fooling the masses with smoke & mirrors in regards to making the audiences believe that they need more staff to perform additional burdens.

In reality, all they need to do is force the current staff to show how they spend their 8 hour work days'. Once you have audited, you will learn that they have plenty of staff with plenty of time to do what they were interviewed & hired to do.

Documenting, Recording & Inventorying 'EVIDENCE' relating to a police incident report & certified case files has always been part of the duty of the police, DA offices & those charged with defending the accused. Attempting to make the taxpayers think that it;s a burden or requires more staff is a - Did you hear about? 'joke', in itself.

Thomas R. Griffith said...

Who trained / mentored Siegler in the art of - withholding, fabricating & selective-fading memory recall?

None other than, my good buddy old pal, former career prosecutor out of Harris County, Texas...
*Mr. Casey J. O'Brien aka: jigmeister better known in these parts as - The King of Nolo Contendere. (I forgave him for his part in railroading me, despite him testifying that he failed to remember doing it.)

Clearly, had the Michael Morton Act been in place (or had following the BRADY ACT been mandatory) at the time of my FAKE trial, another situation could have been avoided also. AND, maybe, just maybe, the court wouldn't have been allowed to allow O'Brien to get away with actually documenting (certified case files) a one-of-a-kind yet, in-your-face style of Evidence fabrication & its disappearance in a case tied to no such evidence.
And, maybe he wouldn't have been her mentor and she'd gone on to do good things allowing the evidence to speak for itself every single time.

*Grits and the Chron both wrote about or touched on the 29 Cases of Missing Evidence with some being tied directly to O'Brien.


Anonymous said...

1:53PM, when time permits please consider answering or pointing me to where the answer is clearly understandable for regular ol joes in regards to pre-trial motions.

If you the CDL files 5 or 6 pre-trial motions, in addition to filing 5 or 6 Ready for Trial notices and go to trial and advise your client to stop the jury trial at lunch recess in order to plea bargain (Guilty or Not) due to learning that he / she was on probation at time of arrest on new unrelated charges -

Would you have noticed or cared if the motions 'Court Orders' form(s) were left blank by the court? None of them being DENIED or APPROVED prior to voir dire and / or court day.

Thank you.

tom ragland, waco said...

Brown v. Bd. of Education was also an unfunded mandate. Correcting a centuries old unconstitutional process is likely to be expensive.

Anonymous said...

"Brown v. Bd. of Education was also an unfunded mandate." -Tom Ragland