Emerging issues with the Michael Morton Act: A GFB podcast

Before leaving on vacation, your correspondent conducted an interview with Amanda Marzullo, Policy Director for the Texas Defender Service, about a report (pdf) that the group produced with Texas Appleseed (with support from attorneys at Locke Lord LLP) about implementation of the Michael Morton Act.  Give it a listen:

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