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.