Fifth Circuit: Prosecutors needn't disclose evidence of innocence before plea deals

The Fifth Circuit ruled in a Texas case that the constitutional requirement that prosecutors disclose exculpatory evidence under Brady v. Maryland doesn't kick in until trial, so there is no obligation for the government to tell a defendant about exculpatory evidence when they enter a plea deal. USA Today reporter Brad Heath walked through the details on Twitter. From Judge Costa's dissent: "It is difficult to think of greater deprivations of that liberty than the government’s allowing someone to be held in prison without telling him that there is evidence that might exonerate him." Embarrassing.

This was an en banc decision by the whole court, upholding an earlier ruling by a three-judge panel. See prior Grits coverage here and here, and a discussion of the case on the July 2017 Reasonably Suspicious podcast.

This case stemmed from a 17-year old defendant who was beaten up and choked by a Brownsville jailer then charged with assaulting an officer. He pled guilty to avoid a lengthy prison sentence, but years later, video of the incident showed the jailer instigated the incident and the teen was a victim. A jury awarded the man $2.3 million, but the Fifth Circuit threw that out, insisting the state did no wrong because the prosecutor had no obligation to inform the defendant at the time he pled that the government was in possession of video showing he was innocent.

FWIW, in state-court cases in Texas, the Michael Morton Act now does require prosecutors to disclose exculpatory evidence if the defense requests it, even in the pretrial phase of the prosecution. But that's because Texas has bolstered defendants' position in statute in response to repeated false convictions. The Fifth Circuit has made it clear that, in their opinion, access to that information is not a constitutional right.

The circuits are split on this issue and Grits would love to see SCOTUS take it up, leaving aside who would be the 9th justice to hear it. These innocence issues cut across party lines, and would likely cut across factions on SCOTUS, as well.

Two Big-D capital-murder cases overturned for prosecutor misconduct

Stanley Mozee and Dennis Allen, two Dallas men convicted of capital murder and sentenced to life prison for a 1999 robbery, have finally been cleared of capital-murder charges after the Texas Court of Criminal Appeals approved habeas relief last week.  Their cases were championed by the national Innocence Project and my former employers at IPOT. The CCA set aside their convictions without confirming their innocence. (In cases lacking exonerating DNA or other forensic evidence, that's typically been the best the CCA has been willing to do.) There will be no new trial, however. The Dallas DA's office already agreed to their release in 2014 pending this decision, and has agreed the cases should be set aside.

Instead of straight-up innocence claims, the convictions were overturned based on withheld exculpatory evidence, the failure of prosecutors to disclose incentives for snitch testimony, and prosecutor Rick Jackson allegedly soliciting testimony he knew was false then failing to correct it. See good writeups from the national Innocence Project and from The Open File. Here's the order from the trial judge the CCA affirmed, and 2016 coverage of the case from the Dallas News.

RELATED: This seems like a good opportunity to link to attorney Jessica Brand's recent explainer article, "The Epidemic of Brady Violations Explained." The Michael Morton Act resolved some, but not all, of the discovery problems in Texas, it should be said. The disclosure requirements on Texas prosecutors today significantly exceed those under Brady, which exclusively governed criminal discovery at the time Mozee and Allen were tried.

CORRECTION: The date of the robbery and conviction were misstated in the original post and have been corrected.

MMA Growing Pains

Texas is closing in on the end of its second year of living with meaningful criminal discovery via the Michael Morton Act ("MMA").  At the close of year one, the Texas Defender Service and Texas Appleseed prepared a terrific report reviewing implementation challenges (and the absence thereof, in some quarters).   But in addition to the sorts of logistical and administrative issues that featured prominently in that report, questions about the substantive scope of revised Article 39.14 of the Texas Code of Criminal Procedure continue to percolate.  Two such issues recently caught my eye.

Over at the Texas District and County Attorney's Association user forum, prosecutors have been chewing on whether they have a duty under either Brady v. Maryland or the MMA to obtain, scour, and disclose a defendant's probation records - documents that, unlike law enforcement records, apparently are not routinely provided to prosecutors by probation agencies.  In a similar vein, the Attorney General recently issued an opinion responding to the Tarrant County DA's query as to whether Brady or the MMA requires prosecutors to review recordings of jail-inmate telephone calls that are created and stored on the servers of a private company under contract with the county. Texas Lawyer reported on the opinion request here and here.

I won't go on here about what the "right" answer is to these questions.  In brief, it seems right to me, as folks at the user forum concluded, that probation records probably need to be disclosed, at least in a proceeding to revoke or adjudicate after a deferred adjudication disposition.  As for jail calls, I find the AG's opinion fairly confusing, and confused, with respect to both the MMA and Brady doctrine. The bottom line seems to be, according to the opinion, that disclosure is required only if investigators or prosecutors actually listen to the calls, and that all calls might be deemed in the "control" of the prosecutor if their contract with the recording company gives them "unfettered" access.  Good luck to prosecutors making sense of that, and to defense attorneys who might be stuck with a lot of jail calls to review when cautious prosecutors just disclose the whole kit and kaboodle.  (My advice to DA's offices is to revisit your contracts to limit your access to the calls!)

The more interesting point for me is this.  The queries are a good reminder that even under a statutory scheme that specifies, in essence, full disclosure by the state of anything that is "material to any matter involved in the action" (39.14(a)), questions will arise about the substantive scope of the obligation.  Open file is not a "set it and forget it" regime.  (I've been learning about this in some detail as the Reporter to the ABA's task force on criminal discovery standards, where task force members from North Carolina have shared accounts of that state's continuing process of revisiting and respecifying its "open file" discovery law.)  In fact, the more sweeping the legal disclosure obligation, the more that questions arise about items on the margins.  That's because from the prosecutor's standpoint, the burden of sorting through masses of documentation for the "material" bits becomes laughably burdensome; and on the flip side, the burden to the defense of receiving huge quantities of documentation that might contain a scintilla of relevant information is equally if not more deleterious.

A corollary observation is that neither the MMA nor any other discovery regime can fully remove discretion - prosecutorial discretion in particular - from the equation.  Prosecutors are necessarily making judgment calls about where to draw the line.  That's probably inevitable: no statute can fully specify its parameters.  But one of the potential dangers of open file regimes is a kind of lulling of defense counsel into reliance on the discovery packet.  The probation and jail calls conversations are good reminders to defense counsel that affirmative queries will still be required both to acquire relevant and helpful information in the control of the state, and to tee up for judicial determination some of the judgment calls that prosecutors might be making.

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.

Report: Emerging issues with the Michael Morton Act

In mid-session, the Texas Defender Service and Texas Appleseed came out with a joint report titled, "Towards More Transparent Justice: The Michael Morton Act's First Year," evaluating Texas' new criminal discovery law that took effect January 2014. But Grits couldn't focus on a lengthy, law-review style analysis at that frenzied point, so only read the document yesterday. For anyone with a professional interest in the matter, the whole thing is worth reading. On the assumption that few lay readers will take the time to do so, however, let's offer up a brief, cherry-picked summary of the highlights:

John Wiley Price discovery measured in terabytes, and other stories

Here are a few items which failed to make it into independent posts over the holiday but deserve Grits readers' attention:

Violence, not jobs, driving current immigration trends
Traditionally undocumented immigrants entering Texas came because of jobs. Increasingly they're people fleeing violence, death and chaos. El Paso has witnessed an influx of refugees from the states of Michoacán and Guerrero because of extreme drug violence there, mirroring the causes of a mass influx of children from Central America earlier in the year. 

Abbott may back bills to help ex-felons get jobs
Apparently incoming Gov. Greg Abbott supports scaling back occupational licensing restrictions to help more ex-felons get jobs, a measure backed by the Texas Public Policy Foundation and championed in the linked story by state Sen. John Whitmire. Given that, expect some movement on this in the coming session, though to what extent remains to be seen. "In Texas, where about a third of the jobs are licensed, that means fewer opportunities for those with a criminal past. Advocates of modifying the current licensing laws say the change could get thousands more Texans working and paying taxes and get many off welfare-assistance programs."

When the prosecutors' open file has 150 million pages
Though the figure seems unbelievable, in the John Wiley Price federal corruption case, according to the Dallas News, “Prosecutors reportedly have about 6.5 terabytes of digital information to turn over to the defense. That does not include audios, videos, photographs, tax documents or 'materials too bulky to scan,' a defense motion has said. The government has estimated that 2.5 terabytes of data will remain after 'processing and culling.'” According to the News, "That is roughly the equivalent of 150 million pages of material."

Turn out the lights: SAPD chief to leave, work for electric utility
San Antonio police chief William McManus is leaving after nearly nine years on the job to head security at the city's electric utility, reported the SA Express-News in an outgoing profile.

Novelty act?
Is the new client choice model of selecting indigent counsel in Comal County a bold new strategy or a novelty that distracts from larger issues of insufficient resources?

How to judge homicide clearance rates?
With a 65 percent clearance rate at Houston PD, "A [Houston] Chronicle review of homicide cases in Houston from 2009 through the first half of 2014 found at least 353 investigations that remain open. Stepping back through the years, the number soon tops 1,000." Parents of victims in unsolved cases insist more should be done; detectives insist when they've exhausted all leads, that's what there is to do. Broken out by race, clearance rates are highest for whites, lowest for Hispanics. The department got into trouble this year when it was revealed a detective wasn't investigating some cases assigned to him at all, so it's understandable the homicide clearance rate is a sensitive subject. In a city the size of Houston, it's unrealistic to expect 100 percent of murders to be solved.  But lamentably, any outcome short of perfection will leave the department with some very emotional and unhappy detractors among families of victims in unsolved killings. Oddly, homicide rates have fallen nationally in recent years during a period in which murder rates have also radically declined. So, surprisingly, the data show little if any correlation between solving murders and reducing their number, to the extent that's any consolation.

Restorative justice in schools
School districts across the state, including several in Bexar County, are experimenting with restorative justice models for student discipline.

Perry pardon grinch at final Christmas as governor
Humbug! No Christmastime clemency from Rick Perry on his way out the door, so apparently these four piddling pardons from October will be his last as governor. Here's hoping Greg Abbott's team will make a New Year's resolution to embrace clemency with more vigor over the next four years rather than treating it as a symbolic Christmas ritual with little real practical effect.

Three stories from the darker side of Texas history
On my personal blog, recently I wrote about three murderous Texas land grabs - targeting Mexicans, Native Americans, and black folks - about which Grits was never taught in school. Were you? As fat as that 7th grade Texas history book was, you'd think they could have fit these stories in.

Prosecutor's jeremiad against open-file law met with uncomfortable silence

Several days ago on the Texas District and County Attorneys Association user forum, prosecutor Terry Breen from Goliad suggested that, although "The TDCAA has a long standing policy of being neutral on pending legislation. This needs to change."

Why? "During the last legislative session," Breen alleged, "the result of this passivity was the passage of the Michael Morton Act, which expanded the defendant's right to discovery from exculpatory and mitigating evidence--'Brady material'--to include effectively any relevant evidence, including incriminating evidence that the state might wish to not even use at trial." (This, btw, is revisionist history: TDCAA was intimately involved in negotiating the language of the Michael Morton Act; it was their decision to drop the demand for reciprocal discovery that got the deal done.)

Mr. Breen believes that, "The Association should come out publicly for repeal of this ghastly and costly mistake, and then campaign vigorously to that end. Since the act is a costly unfunded mandate on the counties, county judges should be recruited to press for its repeal as well."

His jeremiad, though, has thus far been met with an uncomfortable silence on the normally active user forum. If there's an uprising on the horizon, it's not showing up in that venue. Long-time readers may recall that Mr. Breen made similar complaints when the bill first passed and not all of his colleagues agreed with him. Grits admits the law may not be perfect but has argued that, since it only took effect in January with seemingly no major hitches - beyond a few DAs grumbling about unfunded mandates - the Legislature should leave it alone for a session to give counties around the state time to implement it, judges time to rule on it, appellate courts a chance to consider it, etc., and then evaluate how it has played out. They'll have a lot more information to work with if the Lege evaluates and possibly tweaks the Michael Morton Act in 2017, perhaps making it the focus of some committee's interim charge.

But Mr. Breen doesn't want to tweak the law, he wants to repeal it, going back to what I suppose in his mind's eye were the good old days when he got to decide what defense attorneys did and didn't see in his case file.

Whatever one's view of the Michael Morton Act, and Grits is a strong supporter, Breen is deeply misguided to encourage TDCAA to actively campaign for or against legislation. Too many prosecutors disagree on these and various other questions for the association to always speak with one voice. It would put their full-time staff in an impossible position.

Besides, it's not true TDCAA takes no positions on legislation. They register as officially neutral but routinely speak for or against bills all the time in such an obvious fashion that it's a bit of a running joke in the committees before which they routinely testify. They also facilitate elected DAs and their reps showing up at the capitol to testify and they definitely take positions. This feigned neutrality has been quite an effective tactic for TDCAA over the years and if they began taking pro/con positions bill-to-bill, as Breen asks, it would reduce their effectiveness at the capitol and needlessly create divisions among their base.

If I were their political consultant, I'd discourage TDCAA from taking Breen's advice. OTOH, there's a darker side of me that considers, as a supporter of reforms like the Michael Morton Act, that criminal-justice reformers can only benefit if the prosecutors association were to adopt less effective tactics or even implode through internal dissent. But it appears the group's leadership is probably smarter than that. Don't take the bait, Rob and Shannon. Y'all know better.

Prosecutors withheld evidence in shaky Dallas murder convictions

Two Dallas men convicted of the 1999 murder of a Dallas pastor are seeking to be declared innocent, or at least receive a new trial, "on the basis of new DNA evidence and a trial they say was tainted by false evidence knowingly presented by prosecutors." Reported the Dallas News (Sept. 11), "the two men were convicted on testimony from jailhouse informants and an unrecorded confession."

Whether or not the DNA proves them innocent, it's pretty clear prosecutors withheld exculpatory evidence. When the DA gave attorneys with the Innocence Project of Texas and the national Innocence Project their case file:

attorneys found letters from the inmates who had testified that they’d heard the two men admitting the murder.

During their court testimony, the informants said they had not been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the state in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while “insisting” to jurors “that no such discussions with these informants had ever occurred.”

The two jail informants have now told the defense attorneys their testimony was false, the filing says.

The Michael Morton Act passed in 2013 required prosecutors to make such evidence available to the defense before trial, but clearly to deal with older cases there should probably be some sort of post-conviction discovery available in habeas proceedings. If Dallas DA Craig Watkins' office hadn't voluntarily opened up its files in this case, the underlying prosecutorial misconduct would never have been discovered.

It's also worth mentioning that the original case relied heavily on jailhouse informants, but if the case were retried today that testimony would have to be corroborated. Texas law didn't include such a requirement until 2009 when state Sen. Juan "Chuy" Hinojosa passed a corroboration mandate for jailhouse snitch testimony.

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.

Some prosecutors demanding waivers from defense before handing over Michael Morton Act discovery

Since Court of Criminal Appeals Judge Barbara Hervey's Criminal Justice Integrity Unit announced it will address issues raised by stakeholders related to the Michael Morton Act at their next meeting in the fall, here's a topic for her list from the Texas District County Attorneys Association's discussion forum: Can/should prosecutors seek waivers from defense counsel for any further discovery of inculpatory evidence when they hand over the information required under the Michael Morton Act?

A prosecutor from Wharton County opened the discussion with this June 10 post:

Our defense bar is very unhappy we are using a 39.14 waiver (which only waives further discovery of inculpatory evidence AND NEVER exculpatory evidence). Anybody else dealing with this? [Ed. note: 39.14 is the Michael Morton Act]

Do we need a waiver?

Should it blow up a plea if counsel won't agree or acknowledge the waiver?

I've also heard some judges won't allow a waiver? Anybody run into this?

I was pretty sure I had thought this all through already, and a waiver was the way to go when we enter a plea. Things are getting messy, though. Anybody out there running into any new related 39.14 issues?

A prosecutor in Collin County said they required a similar waiver. In an additional post, the Wharton County prosecutor clarified, "All we are asking is the waiver of any further right to inspect or copy discoverable items other than Brady and/or subsection (k) items."

I'm not a lawyer so perhaps some defense attorney readers can explain to me: Why would anybody sign that? The prosecution is required to give the defense statutorily required discovery under the Michael Morton Act, whether counsel signs a waiver or not. I understand why the prosecutors might want a waiver, but what's in it for the defense side? Thoughts?

Also, have defense counsel in other jurisdictions encountered similar waivers? If so, please say where in the comments. (In fact, if you're willing, email me examples if you've got them at gritsforbreakfast@gmail.com.)

Anyway, the CCA's integrity unit can add this to the list of Michael Morton Act issues they should delve into this fall. To my knowledge, nobody's really examined closely how the new law is being implemented on the ground. Doing so in a public forum with all the stakeholders in the room will be a mitzvah.

Listen to CCA's latest integrity unit meeting, CLE for police

Here are a couple of notable resources from the website of the Court of Criminal Appeals' Texas Criminal Justice Integrity Unit:

• TCJIU Meeting-Notification in the Wake of an "Irregularity" in a Criminal Case [audio] 
• Brady: A Simple Approach [video]    

The former is an audio recording of the TCJIU's May 1 meeting (see related Grits posts here and here). The 'Brady' video is a CLE prepared to help law enforcement comply with the Michael Morton Act. See also this repository of older recordings from the TCJIU.

The Michael Morton Act five months in: Too much? Too little? Too soon to tell

The Texas Tribune's Terri Langford last week had a brief overview (May 29) discussing implementation of the so-called Michael Morton Act, which readers will recall was Texas' open-file discovery statute for prosecutors in criminal cases. The big complaint: "Prosecutors say the [law] ... is driving up evidence costs." The article closes with this summation of perceived flaws of the Michael Morton Act according to the sources in Langford's story:

There have been some kinks to work out, though. Besides the cost, there are questions about measures in the Morton law that prevent criminal defense attorneys from disclosing some information to their clients. The law prevents lawyers from disclosing certain information, primarily to protect victims. A motion has been filed in a Lubbock case that claims the Morton Act violates a defendant's Sixth Amendment right to effective assistance of counsel because preventing full disclosure impedes a thorough investigation.

And back in Dallas County, the law has raised questions about whether prosecutors should get more access to grand jury transcripts. 

Brad Lollar, a Dallas County public defender who is defending a client charged with capital murder, said the district attorney is fighting his request for a grand jury transcript.

Defense attorneys are not permitted in grand jury proceedings. But they can ask a judge for transcripts of the prosecution witnesses' testimony before the grand jury.

Defense attorneys must prove that they have a "particularized need" for the information. Lollar argues that because a transcript of any witness testifying before a grand jury could potentially help his client, the particularized need requirement has been expanded by the Morton law.

“We routinely request grand jury testimony in our pre-trial motions. That is routinely granted by the judges,” Lollar said. “I think they are concerned that the Michael Morton Act will require them to turn over grand jury transcripts across the board, if [transcripts] exist. We’re saying a reading of the Michael Morton Act will require that.” 

Kepple said his reading of the new Morton law says it does not “disturb” the protections of grand jury secrecy already in place.

“I would argue that grand jury testimony is still covered under the same rules beforehand,” he said. 

Grand jury testimony, though, is not specifically addressed in the Morton law, so lawmakers may re-examine questions about access to it during next legislative session.

Those aren't the only hiccups, though. For a few more examples, let's return to Grits' notes from the May 1 gathering of the Court of Criminal Appeals' Criminal Justice Integrity Unit (TCJIU), reviving a few aspects of the event that didn't make it into my earlier writeup from the meeting.

Judge Barbara Hervey and others expressed concern that, while prosecutors are responsible in the courtroom for revealing exculpatory information held by any arm of the state, folks like crime-lab employees or local police may not fully understand that the state is responsible for revealing every detail of their work. For example, said Hervey, some agencies have begun scanning officers' written field notes and attaching them to incident reports while others have been resistant, fearing the notes and the report may contradict. Calling these debates "fallout" from the Michael Morton Act, she suggested that the Texas Commission on Law Enforcement expand training for police officers on Brady/Michael Morton Act obligations as well as report writing. She also suggested that crime lab workers receive similar training, which in my experience is sorely needed.

Another Brady issue raised but left unresolved from the TCJIU meeting: Many if not most District Attorneys keep a list of police officers in their jurisdiction who have had disciplinary problems that might impeach them as witnesses on the stand. In Harris Tarrant County this has been dubbed "the pink list," while in other counties DAs call it a "do not sponsor" list. The problem: Police departments sometimes fail to notify DAs of significant disciplinary actions. Worst case outcome for the state: The information is discovered independently by defense counsel and sprung on prosecutors at some critical point in the process. El Paso DA Jaime Esparza told the integrity unit that information on his county's version of a do-not-sponsor list often comes from defense counsel.

In non-civil service cities (the biggest are Dallas and El Paso), incomplete reporting about police disciplinary histories would eventually backfire because the bulk of disciplinary files are open records under the Public Information Act. So often defense counsel can independently find them, if they try. But thanks to 1989 amendments to the statute, the +73 cities which have adopted the state civil service code now keep two personnel files: A public one where they keep commendations and brief summaries of disciplinary actions (defined as suspensions or demotions), and closed files that include most workaday disciplinary violations and potentially other information that arguably should be turned over to the defense under the new discovery law.

If those lesser violations include, for example, confirmed allegations of lying, does the Michael Morton Act trump the civil service code? How much of the second, secret personnel file must civil service departments reveal to prosecutors or for that matter defense counsel? At the moment, that's being interpreted differently by different departments. And that doesn't even take into account disciplinary actions against an officer by past law-enforcement employers: Even police human resource officers can't seem to crack that nut.

At the TCJIU, panelists mostly suggested more training as the remedy for most Michael-Morton-Act related complaints they discussed, and for now, I agree. It's too early yet to tell if the law needs to be "fixed." By 2017-19, it'll be clearer exactly what is and isn't working with the Michael Morton Act. These issues will have either worked themselves out or wound themselves into a knot; the same is true for prosecutors' concerns about the law raised in Langford's story.

Whether one considers the Michael Morton Act too onerous or incomplete, the statute only took effect five months ago and Grits would argue that it's too early yet to talk about significant changes in the coming 84th legislative session. 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.

CORRECTION/Ed. note: An earlier version of this post erroneously stated that Harris County maintained a "pink list" of police officers with significant disciplinary problems. It was actually Tarrant County.  My apology for the error and thanks to the commenter who listened to the TCJIU audio to do the needed factchecking. My bad. Lo siento.

Y MAS: Paul Kennedy has little sympathy for complaints with the Michael Morton Act. 

CCA: 'Reckless,' 'negligent' prosecutors don't merit sanction by courts

The prosecutors association's weekly case summary from last week includes this summary of a new case from the Texas Court of Criminal Appeals which affirmed a judge's decision not to exclude physical evidence withheld from the defense before trial:

Francis v. State

No. PD-0519-13                     4/30/14

Issue:
Did the prosecutor willfully violate a pre-trial discovery order requiring inspection of all physical evidence when, on the first day of trial, she revealed to defense counsel a machete to be entered into evidence when all the information previously available to the defense indicated only a small knife was alleged as a deadly weapon? 

Holding:
No, but only because the trial court didn’t see it that way, and the Court of Criminal Appeals concluded that under these facts, almost absolute deference was owed to the trial court’s implicit conclusion that the prosecutor’s conduct was less than willful. The opinion notes that under the same facts, the trial court could also have found the prosecutor’s actions to be willful and suppressed the evidence. Read the opinion. 

Notably, Judge Tom Price opined in the main ruling that, "Because exclusion of evidence in this context is in the nature of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should exclude evidence on this basis has been made to hinge on "whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.] Extreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding evidence." 

Indeed, according to the opinion, "the trial court could rationally have concluded that, despite her protestations to the contrary, the prosecutor's behavior constituted 'a calculated effort to frustrate the defense' ... But the trial court was not obliged to draw that conclusion" since her conduct "may have been only reckless, or merely negligent," and the CCA held that "we owe almost absolute deference to the trial court's implicit conclusion that the prosecutor's conduct was less than willful."

Nowhere in the appellate record are we told the name of the prosecutor in question who was either "negligent," "reckless," or in the opinion of Justice Evelyn Keyes from the First Court of Appeals, guilty of willful misconduct. In her dissenting opinion from the First Court, Keyes said she would have held the prosecutor's conduct to be "willful" and excluded the machete as evidence. Keyes noted that:

(1) the machete was not mentioned in any discovery, including the offense report, witness statements, or Thomas’s medical records related to the robbery; (2) the machete’s existence came to light only after defense counsel observed the machete among the State’s exhibits at trial, not as a result of any voluntary act by the prosecutor; (3) the State had possession of the machete for more than one month prior to trial; and (4) the State failed to disclose other evidence it introduced ― threatening telephone calls Francis made to Thomas while in custody―in violation of the discovery order.

Based on that, she concluded, "I would hold that in failing to disclose the existence of the machete in its possession and Thomas’s statement about its use in the course of Francis’s assault on her, the State acted voluntarily and with the specific intent to violate the trial court’s discovery order." The CCA, though, unanimously disagreed, saying that the judge's interpretation trumped the cited evidence.

I find myself wishing once again that appellate courts would name prosecutors when a judge issues an opinion that they willfully withheld evidence or even were "reckless" or "negligent," which seems to be the array of options presented in these two appellate reviews. Indeed, I can't even tell the prosecutor's name from the online information about the case at the trial court level. One reason prosecutors aren't more often held accountable - by the state bar or anybody else - is that nobody but insiders can tell when courts find they've been "reckless," "negligent," or engaged in misconduct. And I'm sure the Harris County DA won't discipline the prosecutor in this circumstance - they'll just call the case a "win" and move on.

UPDATE: In the comments, the defense attorney in the case confirmed that "The trial prosecutor was Gretchen Flader. The presiding judge was Mike Anderson (visiting judge for Marc Carter)."

Prosecutors dissing the Michael Morton Act, and defending it

At the Texas District and County Attorney Association's user forum, see 24th judicial district ADA Terry Breen's embittered critique ofTexas' new mandatory open file policy for prosecutors - he's mad that he may have to give up incriminating as well as exculpatory evidence - followed by a quite reasoned response from forum regular Greg Gilleland which explains in essence why TDCAA supported a "one-sided" open file bill. Steamed Breen, "This is the most anti-law enforcement bill to come out of the legis. in memory. The fact that it was pushed by the leadership of the TDCAA makes it especially galling, and the fact that it was sold as a bill that 'all the stakeholders,' (i.e. including you and me) is even more galling." Gilleland responded:

I've had an open file policy for my entire career. Folks like my old boss, John Healey and my current boss, Bryan Goertz, mandated it. I never had a problem with it. They felt it necessary for the accused to know all the evidence against him and I have always agreed.

If you search this forum you'll find some debates from years past between myself and former DA John Bradley. In those exchanges, I argued for an absolute open file policy like I practiced with. He disagreed.

Being the son of a former prosecutor and a long time defense attorney had convinced me that abuses in closed files could only be cured by having an open file. ...

My open file policy and my copied file policy have not prohibited me in the least from obtaining big sentences for bad violent criminals over the years. It has NEVER handicapped me even when it revealed facts adverse to my case. And of course, it eliminates a plethora of appellate issues.

I really recoiled in horror when former DA and now Judge Anderson testified to the effect that he wouldn't be much of a prosecutor these days if he had to give everything to the defense and that he would lose a lot.

When I've lost, it wasn't because of the open file policy but because of the facts and the truths they revealed.

And so on. The whole thing is worth a read.  The Governor has already signed the "Michael Morton Act" so Mr. Breen is crying over spilled milk. Come January 1, 2014 it will be the law of the land.

RELATED: From the SA Express-News, "Bill requires new ethics training for prosecutors."

Open-file discovery bill named after Michael Morton soon headed to Governor

Find below the jump a press release from state Sen. Rodney Ellis hailing the passage of the so-called Michael Morton act requiring Texas prosecutors to implement open-file policies.

Open-file bill named for Michael Morton scheduled for Monday floor vote in TX House

The one-sided criminal discovery bill requiring open files of prosecutors - SB 1611 by Duncan/Ellis, the so-called "Michael Morton Act," carried in the House by Rep. Senfronia Thompson - has been set for a vote on the floor of the Texas House of Representatives on Monday. A couple of prosecutors opposed the bill in committee and some of the same folks have been grousing about it online. But that didn't stop the House Judiciary and Civil Jurisprudence Committee from recommending it unanimously. For the most part, the DAs have reined in most of the usual critics and the Harris County DA's decision to support the bill went a long way toward dispelling allegations that it's soft on crime. Without question, this is the most significant criminal-justice legislation of the 83rd Texas Legislature.

Also up on Monday's House floor calendar: SB 825 by Whitmire eliminating secret "private" sanctions by the state bar for sustained grievances against prosecutors for Brady violations. This bill was also pitched as an homage to Michael Morton so one would expect the man of the season to be on hand for the festivities.

Grits had earlier recommended both these bills for speedy passage so I'm glad to see them prioritized.

MORE (May 12): See Brandi Grissom's preview of Monday's vote from the Texas Tribune, including a conversation with the attorney who argued Brady v. Maryland (he lost the case but SCOTUS created the rule) and Barry Scheck of the national Innocence Project.

Discovery reform, innocence commission bills chugging along

The House worked late and I didn't stay for the committee festivities, but it sounds like the hearing on the discovery bill in Judiciary and Civil Jurisprudence went well:

• Texas Tribune: House panel hears testimony on "Michael Morton Act
• Dallas Morning News: Michael Morton Act left pending, could go soon to House floor

See also coverage from the SA Express News on passage by the Texas House of the Timothy Cole Exoneration Commission. At the Fort Worth Star Telegram, Bob Ray Sanders has a column titled, "Texas Senate should approve exoneration commission."

Criminal discovery bill to be heard in Civil Jurisprudence Committee Monday

I find it interesting that Sen. Rodney Ellis' SB 1611 - now a one-sided open-file bill for Texas prosecutors instead of a reciprocal discovery bill as originally filed - has been referred to the House Judiciary and Civil Jurisprudence Committee and scheduled for a public hearing on Monday, April 29th. One might have expected the bill to be referred to the Criminal Jurisprudence Committee, since that's where criminal discovery bills filed in the House with identical captions were sent.

This is the second bill I've noticed where similar or identical legislation from the Senate was sent to another committee than House Criminal Jurisprudence which heard the issue the first time. (This is the other.) Speaker of the House Joe Straus makes those calls. It's curious that the committee hearing the discovery bill most likely to pass isn't the one that's been considering the issue for the last month. Hard to know whether to read anything into that or not.

ALSO: The Homeland Security and Public Safety Committee on May 1 will hold a public hearing on the fertilizer plant explosion in West, which I suppose makes some sense but is a change of pace from the topics they usually cover.

Discovery reform passes Senate with defense bar on the sidelines

The so-called "Michael Morton Act" (SB 1611) related to discovery in criminal cases passed the Texas Senate yesterday. See mostly laudatory coverage from the Austin Statesman, the Dallas News, and the Texas Tribune. Here's the text of the version that passed the Senate.

Last week Grits mentioned that a proposed gag order related to information released by state - the brain child of state Sen. Joan Huffman - was the last stumbling block in negotiations. That's now out of the bill and a much weaker prohibition on defense disclosure to third parties has taken its place. This portion of the statute promises to be a source of great confusion. Houston criminal defense attorney Paul Kennedy suggested on his blog the bill would "seem to bar defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense." I'm not a lawyer, but I don't think that's correct. (See subsections e, f, and g in the bill text for restrictions on what the defense can share.)

For starters, he should have added a caveat that the legislation allows defense counsel to report alleged official misconduct to an "administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint." Of course, complaints to the state bar are secret and, when filed against prosecutors, rarely upheld. So that's not a meaningful substitute for press scrutiny, which has done more to rein in prosecutor misconduct than any "administrative, law enforcement, regulatory, or licensing agency" you could possibly name.

But it further overstates matters to say that the bill would "prevent the defense from providing information to the press regarding any issues of misconduct ... if that information was obtained through the discovery process." As I read it, the bill would only prohibit releasing the name and identifying information of victims and witnesses disclosed by the state, and then only if that information had not already come out in public documents or discussions in open court. Beyond that, subsection g specifically declares that "Nothing in this section shall be interpreted to limit an attorney's ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct." (See Rule 3.07 for the parameters of allowed communication.)

For the most part, the name of the victim and key witnesses will already be in arrest or search warrant affidavits, be discussed in pretrial hearings, or otherwise become known in the course of court proceedings. There may be circumstances where the prohibition on revealing a hitherto un-released witness name could be problematic, but in routine matters it shouldn't come into play too often. Otherwise, the bill explicitly protects the ability of attorneys to speak publicly about their cases just as they've always done. Sen. Royce West confirmed that through questions to Sen. Huffman on the floor about her amendment nailing down her legislative intent. These modest limits are far from a blanket prohibition on sharing information with the press.

On the upside, Kennedy pointed out that the bill provides more disclosure than required by federal court precedents, exclaiming that "while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment." Still, he lamented, "we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement."

Notably, the Texas Criminal Defense Lawyers Association wasn't at the table when the final deal was struck. Said the Statesman, "Wednesday’s intense negotiations — including not-so-gentle prodding by [Lt. Governor David] Dewhurst, who gathered all the parties into a room in the afternoon and told them not to emerge without an agreement — produced a breakthrough on victim and witness information that saved the legislation." The Trib recorded that negotiations "included Morton, [his lobbyist Thomas] Ratliff, the state prosecutors association, Huffman, Duncan and Sens. John Whitmire and Royce West." It's telling that the prosecutors' association was in the room but TCDLA was not. Watching the defense bar engage on this issue has been like watching a checkers player take their first stab at chess in a competitive tournament.

This bill is now a lot better than prior versions, though Grits would like to see sanctions installed for prosecutors who fail to follow the new rule. Perhaps that's something that could get tacked on on the House side.

Gag order latest stumbling block on discovery reform

From Shannon Edmonds' weekly TDCAA legislative update,

Discovery reform is still reforming.  One thing that makes the Legislature entertaining is its unpredictability.  For instance, the latest version of SB 1611 by Ellis (D-Houston) and Duncan (R-Lubbock), now titled “The Michael Morton Act,” was passed out of committee and sent to the Senate floor with an understanding that language protecting victim/witness information still needed to be settled upon.  The problem is, that has not happened, but the bill is scheduled to be debated on the Senate floor on Monday anyway.  That could lead to some fireworks on the Senate floor between the bill’s authors and Senator Joan Huffman (R-Houston), a former prosecutor and judge who is seeking to add her own language protecting that information from distribution to third parties or the public.  We’d be lying if we told you we knew how it was all going to shake out, but if you need more information before you make a recommendation to your own senator(s), contact Rob Kepple for additional background.

So I looked and, sure enough, as it came out of committee SB 1611 by Ellis on the Senate side has been placed on the intent calendar and includes provisions for a gag order that wasn't in the bill as filed:

On a showing of good cause specific to the case, the court may enter an appropriate protective order that a specified disclosure be denied, restricted, or deferred or that the attorney representing the defendant is prohibited from distributing to a third party offense reports or witness statements received from the state. For purposes of this subsection, "good cause" includes the probable loss, destruction, or fabrication of evidence, the probable compromise of an investigation by law enforcement, or evidence of intimidation, a threat of harm, or danger to the safety of the victim or witness. In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of the document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but, notwithstanding Subsection (a), is not required to allow electronic duplication of the document, item, or information.

If Shannon's right, that language was a placeholder for language to be negotiated (that's how they roll in the Senate), but the parties never could come to an agreement.

The bill carries the name, the Michael Morton Act, but one wonders if Morton and other high-profile exonerees would ever have been cleared by the courts if, when exculpatory evidence was discovered, his attorneys and supporters had been required to stay publicly mum outside the confines of a Williamson County courtroom? How much sense does that make? The gag order provision seems a disservice to Morton and others sent to prison based on alleged prosecutorial misconduct. Why not just conduct criminal prosecutions in the open and let the chips fall where they may? Or, barring that, be sure to gag police and prosecutors from speaking publicly about evidence as well.

MORE: From the Texas Tribune (April 9), see "Fight over information security could jeopardize 'Michael Morton' Act."