Grits had earlier written up highlights from the report here. Find a transcript of our conversation below the jump.
Scott Henson: Hello, this is Scott Henson with a Grits
for Breakfast podcast [recorded] on July 23, 2015.
I am here today with Mandy Marzullo, who is the Policy Director for the
Texas Defender Service. Hi Mandy. How are you doing today?
Mandy Marzullo: I am
great Scott. Thanks for having me.
SH: Good, we are here to talk
about the Michael Morton Act and a policy report that came out this spring that
Mandy worked on describing issues that have come up as the Michael Morton Act
is implemented and basically how things are going now that prosecutors have to
open up their files to defense counsel in criminal cases. So, Mandy, start by telling us, what was the
Michael Morton Act? What has happened
here in the past year and a half that's been different from the past?
MM: Well thanks Scott. Your readers will probably remember that the
Michael Morton Act passed in 2013 and it was authored by Senator Ellis and
Representative Senfronia Thompson. The new law overhauled the state's discovery
statute and codified basically a huge framework for requiring when and how
information needs to be transferred from the prosecutor to the defense. And so, the two big provisions in the law
that are really important deal with a general requirement to disclose evidence,
or, I would probably more accurately just refer to it as materials, because it
encompasses a lot of different things.
It could be recordings, correspondence, defense reports, witness
statements. It could be almost anything
that's pertinent to the case and that needs to be released upon request. And then, there is an ongoing duty even after
a conviction is entered on the part of the prosecution to turn over favorable
evidence to the defense.
SH: All right. So, the Michael Morton Act set up these
timelines and requirements to give more evidence earlier in the process. Describe just a little bit the system that we
came from. What was going on before the
Michael Morton Act and sort of what that transition has been like?
MM: Well before the Michael
Morton Act, a defendant's right to discovery in a criminal proceeding was
really limited. It really just consisted
of an ability to apply for a Court order directing the prosecution to turn over
evidence, but in order to obtain that, you had to show just cause, which was,
you know, an ambiguous standard that Courts rarely exercised. So generally, you were left just with the
requirement to turn over exculpatory, mitigating or impeachment evidence under Brady v. Maryland or the state ethics
rules that require prosecutors to turn over exculpatory or mitigating evidence
to the defense.
SH: So if you are a criminal
defense lawyer on the receiving end of discovery before and after, what does it
look like?
MM: It's almost incomparable. Like, before you were dealing with like a
trickle of information at best, where often prosecutors were reluctant to turn
over evidence because even under Brady - which is the Supreme Court case that
requires turning over this exculpatory or mitigating or impeachment evidence -
there is this materiality requirement.
So, it's difficult to make assessments on the front end of proceedings
about whether or not it is favorable or needs to be turned over.
SH: Well, that's why Kelly
Siegler in the David Temple case would say that I didn't think [a certain
witness statement] was Brady material because I didn't believe it was true and
so I didn't think I had an obligation to turn over that evidence. She's essentially saying that she didn't think
it was material.
MM: Probably, yeah. That's probably what she was saying. And I guess a more articulate way of thinking
about it is that Brady v. Maryland
is a back end test about where a Court is able to assess with 20/20 hindsight
about what is favorable to a defendant and whether or not it had an effect on
the proceedings. But you can't make that
assessment before there is a trial, before the defense has been able to work
out its theory and before the prosecution has really thought about all of its
theories. So, what this enactment does
is just really open up and require transparency throughout the criminal justice
proceeding.
SH: All right. So, your report examined emerging issues with
the implementation of the Act. So let's
talk about a few of them. One section is
on law enforcement practices. Tell us
about your findings there.
MM: I guess, in a nutshell, the
big issue is that a lot of counties hadn't really worked out procedures for law
enforcement to coordinate with the prosecution.
Now, the Morton Act applies not only to information that the prosecutor
possesses, but also to information that's held by the state and that includes
law enforcement agencies. So, there
needs to be an emphasis on law enforcement to be recording and preserving
information as it's collected and insuring that they turn over a comprehensive
set of materials to the prosecutor and some counties actually did this quite
well. There are counties that had Power
Point presentations that they used for trainings with local police officers [which
say that] they would require at the time that cases are submitted for
prosecution that the law enforcement officer sign an affidavit or a form saying
that they understand their requirements and that their disclosure to the
prosecutor is complete. And then in
Travis County they had this itemized list that was actually quite impressive
that really identified all the different types of materials that could warrant
disclosure under the Morton Act and, you know, reminding law enforcement
officers that they need to be on the lookout for all of these materials and
gathering them.
SH: That would be an
interesting list to see.
MM: It's actually in
the back of our report.
SH: Ah ha.
MM: In an appendix if you are
interested in it.
SH: All right. Well that shows you I did not closely vet
your appendices. One thing you didn't
mention in your section on law enforcement practices, but that I think is an
emerging issue here [in Texas], is police disciplinary files, personnel files,
especially of civil service cities. Tell
me why is it an issue? Why would it be a
Brady issue or a Michael Morton Act issue for police departments to keep their
disciplinary files closed records? Why
might that be problematic?
MM: Or, not turning them over to
the prosecutor?
SH: That's right.
MM: Because they don't have to
make it public. They don't need to make
these files public in order to comply with the Morton Act. They just need to insure that they are
available to prosecutors if it's relevant, if there is a law enforcement
officer on their force that has you know some sort of record that could be
deemed impeachment. And the reason why
it's important, I mean it's probably impossible for me to anticipate all of the
things that could be in these files that would be relevant to a case, but at a
minimum, it could be impeachment material, which is one of the requirements of
the Brady and is one of the requirements under the Morton Act. And what's great again about the Morton Act
is that it's a requirement that this type of favorable evidence is turned over
to the defense without any assessment about its role in the case.
SH: You know, just as an
example, I remember back in the Tulia Cases, it turned out when they went and
found the personnel files at agencies where Tom Coleman had worked previously
before he had been on the Drug Task Force in Tulia, they found that he had been
in trouble for stealing from local vendors at one place. And there were all of these red flags that
you might have known [about] if you somehow had access to all that and in that
case it wasn't because they were closed records, it was just that no one had
looked. But in any event, so what are
other emerging issues? We are just
looking here through the report; timing of discovery was your next
section. Tell us about the issues
there. It's basically how early do you
get it. Do you get it before or after
indictment? Is that right?
MM: That's the big issue. I mean there are other delays that some
district attorney's offices write into their policies, but the big one or what
most jurisdictions would say is that it would be after an indictment or the
filing of a complaint if we are looking at misdemeanor charges. And that's just not consistent with the
statute. The statute says that it needs
to be turned over as soon as practicable after a request. And that's the only requirement, but in terms
of its effect on the defense, it could [create] a lot of prejudice that the
time period between arrest and indictment varies greatly between the type of
case and the jurisdiction, the resources available to the prosecutor. And during that time, let's say, you know, in
some cases it's several months, witnesses' memories fade and it does severely affect
the defense's ability to investigate and preserve evidence for trial or for use
at any point in the proceedings.
SH: So, I guess right now
when someone is arrested, and we sort of went through a little of this when we
were discussing the Grand Jury issues not long ago, you have a right, if they
do not take your case to the Grand Jury, you can ask for an examining trial now. And before the Michael Morton Act, that would
have been where you might first get access to the evidence. What you are saying is now even without that,
you can ask for it at any point in time and simply requesting it triggers all
these obligations, regardless of where you are in the pretrial process.
MM: Exactly.
SH: Except some prosecutors
aren't abiding by that?
MM: Yes, and I mean, there is a
divergence of practice. There are some jurisdictions;
I believe Tarrant County is one of them, that turn over information to the
defense almost as soon as they are able to obtain it, regardless of what
happens in the case. And then there are
other counties that really hold off on this.
SH: And in Tarrant County, they
are just keeping it all in an electronic file sort of in the cloud so that, as soon
as the prosecutor puts something in it in real time, it's accessible.
MM: Yeah.
SH: So, that's the kind of
system that I think is your blue ribbon standard where really you're disclosing
it as soon as you have it and not playing hide the ball at all.
MM: Yeah. And now, for example, when they have jail
roundup hearings, [Tarrant County] prosecutors will actually send out, or their system will send
out, an email to defense attorneys reminding them that there are materials that
are not available on the website that they need to look at before the
hearing. And that's wonderful because
you know it enables the defense attorney to meaningfully advise their client at
an early proceeding.
SH: So, moving on through
your report, this next section I think may be my favorite on discovery
conditions and waivers. So tell us about
these waivers that prosecutors have been requiring for their discovery.
MM: Well, there are front end
and back end waivers that we have been seeing.
The front end waivers are when, in some jurisdictions, prosecutors would
require that the defense attorney waive certain rights or enter some sort of
discovery agreement in order to just receive the discovery to begin with. So in some jurisdictions they would make the
materials available at an early point, but only if the defense attorney agreed
or said that they were going to plea the case.
Or, sometimes it would [restrict] the defense's ability to challenge
various different types of evidence at trial.
The State Bar actually issued an opinion last November that said that
these types of agreements are improper.
So I do think that to the extent that they are still in existence that
prosecutors are probably going to stop using them. But that's definitely the
type of condition that is not consistent with the Act.
The back end
waivers dealt with waiving your rights to discovery and your rights to the
disclosure of favorable evidence as a condition of the plea. And that's problematic for a lot of
reasons. One is that it's just not
consistent with the Act, which says that it's an ongoing obligation on the part
of the prosecution to turn over favorable evidence. Having a defendant waive that sort of removes
an important protection for innocent defendants.
The other issue is
that it's inconsistent with the ethical rules, which say that the prosecutor
shouldn't be asking defendants to waive this right to favorable obligation; that
it's an affirmative duty on the prosecutor's part that shouldn't be, you know,
sort of omitted from the proceedings. And this also goes to sort of a false
presumption that a lot of people have that an innocent person would never plead
guilty. Unfortunately, there are a lot
of reasons why, in some instances, people plead guilty due to all of the
pressures that are on them.
SH: Of course. I think my favorite example in here was from Nueces County
where the district attorney "produced a form that allows pro se
defendants, which means people representing themselves, to check a box by the
statement I am waiving my rights to discovery in this case." As though a pro se defendant would have any
sense at all of what they were waiving, or that would be any sort of meaningful
exercise of their right to waive that at all.
That's just crass and awful.
MM: Yes.
SH: You also mentioned, and
maybe you can just describe this briefly, that some DAs require broader waivers
for misdemeanor defendants than felony.
What's that about?
MM: You tell me. I think that it might be, I mean I don't know
exactly what was motivated behind it.
SH: Okay. So maybe they just thought they didn't want
to mess with misdemeanors and would like to have those waived as often as
possible?
MM: I think so, or that they
are more nervous about just the volume of cases that they would then have to
then litigate later on down the road, but I'm really pontificating here. I don't know.
SH: How does the Michael
Morton Act work with pro se cases because we have a lot more now then we used
to, especially at the misdemeanor level?
MM: So, the Act has a provision
that deals specifically with pro se defendants and it basically states that the
prosecution must give a defendant access if the Court orders it. So they are not given as much access as a
defendant who has counsel, in terms of the immediate rights.
SH: Okay.
MM: But it should be clear,
though, that that deals with the materials that are available under the first
sections, that's just access to the file.
A prosecutor would still be required to disclose favorable information
to a pro se defendant if they obtain it.
SH: All right, so finally just
as a general prognostication, we got through this legislative session,
thankfully, without them revisiting this topic.
I think it probably would have been premature to open the law back up
again when they really had just started complying with it January 1, 2014 and barely
had a year under their belt when the legislative session started. But you have identified some of the emerging
issues, the topics that are starting to come up in the field. What are some of the issues that the
legislature is going to need to tweak or that the Courts are going to be
confronting as all this implementation plays out?
MM: Well, in terms of the
Court, I think that some of the litigation under the Act, or that we see
happening is probably going to be dealing with the timing of the right to
discovery and what is as soon as practical.
And also some of the definitions on the statute. What is and is not a witness statement? I think that a lot of prosecutors are taking
a narrow view of what constitutes a witness statement. I think other jurisdictions are more liberal
about it.
And in terms of the
legislature, I think that the role of law enforcement in preserving evidence
and providing it to the prosecutor is going to be another area that the
legislature might need to open up because they do have this crucial role to
play in terms of you know preserving materials, but their responsibilities
remain undefined.
SH: All right. Well thanks for coming by and talking to me
about this.
MM: Thanks.
Transcribed by: http://idictate.com
Edited for grammar and clarity
by Scott Henson
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3 comments:
There need to be sanctions for prosecutors who cheat and some way to make cops turn over their complete files. The MMA was a good start but there are still a lot of ways to play hide-the-ball.
More info on the quaint "Marryin' Judge"! Or is that incident another normal day in Texas?
The fact that discovery was/is (depending on what is, is) so limited is a travesty of the "injustice system".
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