Innocence work here, there and yon

Big day for my employers at the Innocence Project of Texas today:

Prosecutor faces interrogation over Brady
In Dallas, IPOT board chairman Gary Udashen questioned a former prosecutor accused of withholding Brady material in the 1999 murder convictions of Dennis Allen and Stanley Mozee (Mr. Allen is an IPOT client; Mr. Mozee is represented by the national Innocence Project). After prosecutors and the trial judge recommended relief, the Texas Court of Criminal Appeals ordered the trial court to put the prosecutor on the stand and ask him why he failed to turn over evidence of deals with jailhouse informants. That's what happened today.

DNA mixture notification snafu
This afternoon, IPOT's legal director Mike Ware attended a Forensic Science Commission work group discussing notification and indigent defense challenges related to defendants convicted based on erroneous DNA mixture protocols. (See prior Grits coverage.)

Exoneration Commission: What issues might it investigate?
See recommendations drafted by your correspondent on behalf of the IPOT for the Timothy Cole Exoneration Review Panel suggesting issue areas for possible study based on an examination of recent innocence cases. The commission's first meeting is Thursday afternoon in Austin.

Tack on the fact that we sent out a fundraising email this morning and it's been quite a busy day.

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.

Implementing the Michael Morton Act

For those interested, the Texas District and County Attorneys Association posted their Brady/Michael Morton Act training materials online, as well as a list of prosecutors in compliance with new legislative training requirements under the law.

See this earlier Grits discussion of emerging issues with the Michael Morton Act, including examples of noncompliance and odd legal interpretations by some prosecutors. That post adumbrates a report published this spring on the topic and your correspondent recently recorded an interview with one of the authors, which I'll wait to post while I'm on vacation next month.

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:

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.

'Brady's Blind Spot: Impeachment evidence in police personnel files'

Here's an academic article by Stanford law prof Jonathan Abel titled, "Brady's Blind Spot: Impeachment evidence in police personnel files and the battle splitting the prosecution team." It reminds me of debates surrounding the newly implemented Michael Morton Act in Texas, which bolstered defense counsel's access to prosecutors' files. Prosecutors have complained of extra expense and hassle involved in making their files available. But less attention has been paid to the fact that - particularly in the case of impeachment evidence  - that there's a gaping hole in the discovery process when it comes to police misconduct. Here's the abstract from the paper:

The Supreme Court’s pronouncements in Brady v. Maryland and its progeny place a constitutional obligation on prosecutors to disclose any evidence that would be favorable and material to the defense. But in some jurisdictions, even well-intentioned prosecutors cannot carry out this obligation with respect to one critical source of impeachment material: police personnel files. Such files contain invaluable material from internal affairs investigations and disciplinary reports — information that can destroy an officer’s credibility and make the difference between a defendant’s acquittal and conviction. But, while some jurisdictions make these files freely accessible, others employ a welter of statutes and local policies to keep these files so confidential that not even the prosecutor can look inside them. And, even where prosecutors can access the files, police officers and unions have used litigation, legislation, and informal political pressure to prevent prosecutors from disclosing Brady information in these files. While suppression can cost defendants their lives, disclosure of this information can cost officers their livelihoods, as "Brady cops" may find themselves out of work and unemployable.

Using original interviews with prosecutors, police, and defense attorneys, as well as unpublished and published sources, this Article provides the first account of the wide state-to-state disparities in Brady’s application to police personnel files. The Article argues that the widespread suppression of material in these files results not simply from prosecutorial cheating, but from the state statutory and local institutional constraints that give society’s imprimatur to the withholding of Brady material. It further challenges the doctrinal assumption that prosecutors and police officers form a cohesive "prosecution team," and that, in the words of the Supreme Court, "the prosecutor has the means to discharge the government’s Brady responsibility if he will" by putting in place "procedures and regulations" to bring forth any Brady material known to the police. Finally, the Article contends that the confidentiality these files currently receive is not only undeserved as a normative matter, but also incompatible with core tenets of the Brady doctrine.

The article provides a good discussion of the issues, but regrettably fails in its survey of states to comprehend the two-tier structure of police personnel files in Texas, mistakenly claiming they're always subject to state open records law, which is false. "That these records are public removes the obligation on the prosecutor to discover and disclose them under Brady," Prof. Abel opined

But in cities which have opted in to the state civil service code (Ch. 143 of the Local Government Code), most of the file is secret so that argument doesn't hold water.

It's true, for most of the state's 2,600+ law enforcement agencies, police personnel files are available through an open records request. But about 73 law enforcement agencies have adopted the state civil-service code (most of them many decades ago in the '40s and '50s before police unions won the closed records provision at the Lege in 1989), including three of the state's five largest cities and many of the larger, regional population centers.

In those cities, disciplinary records are governed by Ch. 143 of the Local Government Code instead of the open records act. That statute lets civil service cities keep two personnel files: A public one where they keep commendations and brief summaries of disciplinary actions (defined only as suspensions or demotions), and closed files that include most workaday disciplinary violations, reprimands, reassignments, and arguably other information that should be turned over to the defense under Brady v. Maryland and/or the Michael Morton Act.

Your correspondent has long held that if cities like Dallas and El Paso, which have not adopted Ch. 143, can operate with police personnel files as open records, that's a clear indication that secrecy is unnecessary and unwarranted in civil-service jurisdictions. This article provides additional ammunition to bolster that case from both normative and legal perspectives.

Similar concerns to those described in the article regarding impeachment material in police personnel files were raised in May at the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit in the context of implementation of the Michael Morton Act. Judge Barbara Hervey pledged to explore the issue further at a future meeting of the court's Integrity Unit.

Regular readers know I think it's too early for the Lege to revisit the Michael Morton Act in 2015. I've argued that, "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." But if the Legislature does decide to revisit the issue, bolstering defense access to impeachment material in Ch. 143 personnel files should be near the top of the list of issues to correct.

Indeed, the best solution wouldn't require messing with the Michael Morton Act at all: Just eliminate closed records provisions in the civil service code and have all police departments play by the same rules. That would improve accountability and relieve prosecutors of the burden of searching civil service files to which they don't have access. Bottom line: The state should never have closed those files in the first place.

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.

Checking in with Michael Morton

Michael Morton, perhaps Texas' most famous exoneree since the Tulia defendants, has a new website promoting his book, Getting Life (Texas Monthly published a pericope here), as well as a new Twitter feed. In addition, Morton published an op-ed last month in the Dallas Morning News titled, "Prosecutors are not above the law." Check out the site; read the book; follow the feed; peruse the column.

Finally, BBC radio recently ran a piece on his case and the documentary on Morton's false conviction and exoneration that first ran on CNN, An Unreal Dream, is now available online or on DVD.

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.

Summer reading: 'Getting Life,' 'The Wrong Carlos'

Two important books about Texas innocence cases were published this week.

Texas Monthly's Pam Colloff has published some excerpts from Michael Morton's new autobiography titled "Getting Life," which came out Tuesday. The passages Colloff shared seemed well-written, e.g.:

prison is, more than anything else, a bureaucracy—a state-run operation where everything takes longer than it should, requires several tries before getting it right, and keeps the people who rely on it frustrated and angry. Imagine living every day at a state driver’s license office, with long lines, misfiled forms, and—too often—in­competence. Now, imagine that same scene with all the state workers carrying cans of Mace, radios, handcuffs, and—for those employees ringing the perimeter—shotguns and rifles.

Also out this week: "The Wrong Carlos"; from the Amazon description: "In 1989, Texas executed Carlos DeLuna, a poor Hispanic man with childlike intelligence, for the murder of Wanda Lopez, a convenience store clerk. His execution passed unnoticed for years until a team of Columbia Law School faculty and students almost accidentally chose to investigate his case and found that DeLuna almost certainly was innocent. ... Everything that could go wrong in a criminal case did. This book documents DeLuna's conviction, which was based on a single, nighttime, cross-ethnic eyewitness identification with no corroborating forensic evidence. At his trial, DeLuna's defense, that another man named Carlos had committed the crime, was not taken seriously."

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.

Integrity unit plans for training, 'white paper', Michael Morton Act evaluation

The Texas Court of Criminal Appeals' Criminal Justice Integrity Unit yesterday issued a press release describing its recent activities and plans for the future. Four of the six items listed related to training.

Of particular note, "The TCJIU will hold a meeting this fall with all stakeholders regarding the Michael Morton Act. Stakeholders at the meeting will discuss the Act, its impact on the various stakeholders in the Texas criminal justice system, and how to assist participants in the criminal justice system to allocate the necessary resources to comply with the Act." I'm quite looking forward to that discussion.

In addition, “Following up on the successful May 1 meeting, stakeholders are providing 'best practices' for disclosure with respect to notifying interested parties when an irregularity has occurred in a criminal case or cases. Once the TCJIU has worked with stakeholders to identify 'best practices,' it will produce a white paper to provide a blueprint for statewide notification in an effort to prevent insufficient piecemeal solutions that could result in people 'falling through the cracks.'” (See Grits coverage of that meeting; you can listen to the whole thing here.) Grits wonders why the press release limited the white paper's focus to "notification"? At the May 1st meeting, there was a consensus that notification by itself would be ineffective without also creating a vehicle for indigent and/or incarcerated people to secure legal representation. Since the most important reform suggested for dealing with "irregularities" at that meeting (besides "training") was to create an appellate public defender for forensic writs, one hopes any "white paper" based on stakeholder suggestions would advocate and further that goal.

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. 

Judges must enforce Michael Morton Act, now in effect

Since the New York Times recently decried "rampant prosecutorial misconduct" related to concealment of exculpatory evidence, we should note that Texas just implemented the "open file" reform for which the Grey Lady's editorial board was advocating. The news hook for the Times story was a recent, much-discussed dissent by 9th Circuit Chief Justice Alex Kozinski (whom Grits had the good fortune to dine with last year at a conference at Yale).

The Dallas News editorial board over the weekend had a good piece noting that Texas' new law requiring prosecutors to open up their files took effect at the beginning of the new year.

Effective Jan. 1, there’s a new law in Texas bearing Morton’s name. Reflecting the state’s determination to purge the justice system of gamesmanship, the Michael Morton Act sets out clear requirements that prosecutors must share certain case material — such as police reports and witness statements — with the defense. Had Morton’s lawyers seen the entirety of the case file — had parts not been hidden from him — he would never have been robbed of freedom for a quarter-century.

The DMN cited a death penalty case first called into question by the Dallas DA's Conviction Integrity Unit that shows why such a statute was needed:

A 21-year-old death penalty case that’s still playing out in the courts shows how procedures have changed for the better. In November, the prosecuting and defense attorneys from the original trial of Joseph Roland Lave, sentenced to death in the grisly 1992 Herman Sporting Goods killings in Richardson, were called to testify in a challenge to his conviction.

One of Lave’s former attorneys testified that the defense never saw the 159-page police report on the slashing-bludgeoning deaths of 18-year-old night clerks Frederick Banzhaf and Justin Marquart. That’s almost unbelievable by today’s standards, with the open-file policy of Dallas County District Attorney Craig Watkins.

One side question probed by Lave’s current attorneys is whether authorities manipulated a surviving witness and, unbeknownst to the defense, helped reshape her evolving recollection of the attack before trial. Thus, disclosure of evidence remains an issue two decades later.

The Michael Morton Act is a clear determination from lawmakers that evidence must come completely out of the shadows for airing where it belongs — in front of a jury.

Notably, the Ellis County DA recently requested an additional staff member from the commissioners court to implement the new law, but most others seem to be doing it with existing resources. See additional, recent coverage of the new statute from the Longview News-Journal.

It remains to be seen whether Texas District Attorneys who are used to greater selectivity about what evidence they share with defendants - particularly outside the major urban areas - will fully comply with the statute. They've had time to do their training and set up internal systems. But as written, the new law includes no penalty for prosecutors who violate its tenets. So to the extent its true, as Judge Kozinski wrote, that “There is an epidemic of Brady violations abroad in the land,” his observation that “Only judges can put a stop to it” still holds in Texas, even in the wake of the Michael Morton Act.

Reactions to Ken Anderson contempt verdict

Over the weekend, Grits offered an assessment of the tepid justice evidenced in former prosecutor and District Judge Ken Anderson's guilty plea and 10-day contempt sentence for withholding evidence in the Michael Morton case. Now, numerous other commenters have weighed in. Some find the outcome historic, since supposedly no prosecutor has ever before gone to jail for withholding evidence. But more common was the suggestion that 10 days was a ridiculously light sentence compared to the quarter century Michael Morton spent in prison. Here's a sampling of various views:

• Defending People (guest post by Robb Fickman)
• Simple Justice
• Eye on Williamson County
• Wonkette
• Ethics Alarms
• Daily Kos
• Robert Cavnar (Huffington Post)
• Dallas Morning News
• Austin Statesman (editorial)
• Austin Statesman (roundup of Facebook comments)
• New York Times
• Kansas City Star
• Tikkun

Notably, this may not be the last of the fallout. The Los Angeles Times reported that:

Williamson County Dist. Atty. Jana Duty agreed to an independent audit of cases Anderson handled as district attorney, as well as some cases handled by his successor, John Bradley, in which Bradley refused requests for post-conviction DNA testing (as he did in the Morton case). The audit will be conducted by the Innocence Project, the Innocence Project of Texas and the Texas Criminal Defense Lawyers Assn.

Ken Anderson's punishment for Brady violations tepid justice

Former Williamson County DA and District Judge Ken Anderson has resigned and yesterday entered into a plea deal that requires him to give up his law license and spend ten days in jail (or nine, depending on which media outlet you believe) for withholding evidence in the Michael Morton case nearly three decades ago, a zillion news outlets have reported. Morton, by contrast, spent a quarter-century in jail because of Anderson's prosecutorial misconduct and his successor, John Bradley's decision to fight DNA testing in the case tooth and nail for years on end. Still, according to KVUE-TV in Austin:

"It's a good day," Morton, who was present in the courtroom, told media after the hearing. "When it began, when I was asked what I wanted, I said, 'The only thing that I want as a baseline is for Ken Anderson to be off the bench and for him to no longer practice law,' and both of those things have happened and more."

According to Innocent Project attorney Barry Scheck, the "more" will be an independent audit into every case prosecuted by Anderson as well as former Williamson County District Attorney John Bradley.

Scheck told media he hopes the entire process will send a message, while expressing continued frustration with Anderson.

"To this very day he still wants to somehow say, 'The system went wrong. I did nothing wrong,'" said Scheck. "That is not an example for anybody, and it is frankly disgraceful."

Mark Godsey at The Huffington Post says this is the first time ever a prosecutor has gone to jail for withholding evidence. Wrote Godsey, "What's newsworthy and novel about today's plea is that a prosecutor was for his transgressions."

A prosecutor going to jail for Brady violations may be a first, but compared to what Morton faced, it's hard to say with a straight face that Anderson was "actually punished in a meaningful way." Losing his bar license is surely a bigger deal than ten days in jail. And at his age, with his judicial pension intact, losing his license wasn't as harsh a punishment as the national media disapprobation he's endured. As justice goes, this outcome represents relatively weak tea compared to the monstrous injustice Michael Morton endured at Anderson's hands.

That said, legislation passed this year bearing Morton's name requires Texas prosecutors going forward to open up their files to defense counsel, a measure that probably would have prevented Morton from ever being convicted if it were in place back in 1986. That new law will produce greater justice than Ken Anderson will ever face. In essence, Michael Morton sacrificed most of his adult life to secure that pivotal reform. When he looks back on this misbegotten episode, that will be the most important part of his legacy, while Ken Anderson's tepid punishment will amount to a footnote.

SCOTX issues new rules on prosecutor misconduct

The Texas Supreme Court has upgraded its rules regarding prosecutorial misconduct in response to state Sen. John Whitmire's legislation this spring, clarifying that prosecutors may be punished in older cases (like Judge Ken Anderson in the Michael Morton case) where "fraudulent concealment" of probative evidence resulted in a wrongful conviction. See the new rules here.

MORE (Oct. 18): Rep. Ruth-Jones McLendon issued a press release about the new rules which I've appended in full below the jump.

From the 'Too Little, Too Late Department': Judge Ken Anderson resigns

District Judge Ken Anderson, who as Williamson County District Attorney prosecuted Michael Morton in the 1980s, allegedly withholding exculpatory evidence from the defense, has finally, formally resigned, Brandi Grissom reported at the Texas Tribune. Apparently the move was prompted by his looming trial date next week regarding a "complaint from the State Bar of Texas that could end with Anderson's license to practice law being revoked over the Morton matter. That hearing remains scheduled regardless of Anderson's resignation," reported KXAN-TV.

Grits must admit, I thought Judge Anderson would ride this out til the bitter end. He seemed to care little about the disgrace he brought to the office and has never admitted the least culpability in Michael Morton's false conviction. Perhaps his resignation tells us the man isn't completely shameless, or perhaps he was just backed into a corner.

MORE: See Texas Monthly's Pam Colloff's take, "Why Michael Morton's prosecutor finally resigned." Her piece concluded:

No one’s talking right now about what may, or may not, be going on behind the scenes. But on Wednesday, WilcoOnline.com posted a story—which has since disappeared—citing “unconfirmed sources” who said that Anderson has worked out a deal in which he would surrender his law license and spend ten days in jail in exchange for the dismissal of both the criminal and civil cases against him. No word on whether these “unconfirmed sources” are reliable or not.

Whatever happens, it’s an ignoble ending for the man who the Texas bar once named “Prosecutor of the Year.” Anderson, once a well-respected member of the community, had recently set his sights on obtaining an appointment to the Court of Criminal Appeals. Now, even if he somehow avoids standing trial, it may not be the end of his troubles. This week, state Senator Rodney Ellis  told Brandi Grissom at the  Texas Tribune  that he hoped local officials would review additional cases that Anderson had prosecuted in the past to see if there had been other “miscarriages of justice.”

Tuff-on-crime ideology should play no role in Williamson County forensic science

The Austin Statesman last week published an ill-considered op-ed by Williamson County Justice of the Peace Bill Gravell titled "Time to plan for medical examiner's office and crime lab" (Aug. 22) arguing that Williamson County should create its own medical examiner's office and crime lab instead of continuing to rely on larger Travis County. Here are the three reasons Gravell argues Williamson County should reject a proposal for joint expansion and chart its own path:

First, the Travis County project lacks clarity. The numbers were unclear and confusing. One supporter of the Travis County plan stated the project would cost between $400 and $600 dollars per square-foot simply for the bricks and mortar. Williamson County would be expected to contribute between $6- and $8 million, while continuing to pay the cost of each autopsy. The fine folks of Williamson County know the value of a dollar. We are fiscally very conservative. A project costing $600 per square-foot would put many of us in the morgue.

Second, we have different values than Travis County. People move to Williamson County because of our values. We like the tough on crime attitude and our small-town feel. Our elected officials have a strong track record of working together. Is it wise for us to collaborate on a multi-million dollar project when our political, financial and philosophical views are so divergent? I don’t think so.

Third, the plan lacks vision. We are a people from strong stock. It is time for us to be independent and be visionary leaders. Williamson County is one of the fastest-growing counties in America. Within the next 25 to 30 years, we will exceed Travis County in size.

Reasons one and three are essentially the same ("lacks clarity," "lacks vision") and the economics of the proposal are a judgment call, even if rhetoric like "put many of us in the morgue" sounds like silly hyperbole. On its face, one would think both counties would benefit from economies of scale and that it'd be cheaper in the long run to run just one shop, though the devil inevitably lies in the details. This is an area where skimping on costs up front can generate larger costs and delays on the back end. Running a crime lab involves ongoing investments in both lab tech and personnel. It's not something counties should try to do on the cheap.  The Houston Chronicle opined several years ago that, "In Houston, we're now paying a high cost for trying too hard to save money on forensics."

But it's reason number two that raises a big red flag. Whether Williamson County residents have a "tough on crime attitude" or a "small-town feel" should have zero implications for how a crime lab does its business. Crime labs operating essentially in the pocket of law enforcement have created big headaches for the agencies that run them - ask the City of Houston and most recently, the state of Massachusetts, where lab techs viewed themselves as part of the law enforcement team instead of acting as independent scientists rigorously evaluating evidence.

Notably, eliminating conflicts of interest and cognitive bias were big reasons the National Academy of Sciences in 2009 recommended making crime labs independent of law enforcement agencies. There's too much potential for cross-contamination when police and prosecutors are in a position to pressure scientists for the results they want.

The Michael Morton case out of Williamson County provides an excellent example of how biased science can lead to catastrophic results. Robert Bayardo, the Travis County medical examiner who testified in Morton's case, was exactly the sort of ME who viewed his role as an agent of the prosecution instead of an independent, objective scientist. (Bayardo notoriously never took notes during autopsies so that defense counsel couldn't later subpoena them.) Texas Montly's Pam Colloff described how Bayardo changed his testimony to implicate Morton after meeting with prosecutors:

Originally, based on his belief that she had eaten dinner as late as 11 p.m., Bayardo had found that Christine could have died as late as 6 a.m., a half hour after Michael left for work. But the medical examiner would later testify that he made that determination when “I didn’t know all the facts. I didn’t know when she had her last meal.” Bayardo changed his estimate shortly after [prosecutors] Boutwell and Anderson visited the City Grill and retrieved a credit card receipt showing that Michael had paid for their meal at 9:21 p.m. According to Bayardo’s revised time of death, Christine could not have died after 1:30 a.m.

This conclusion was based on an examination of her partially digested stomach contents, a notoriously imprecise method for determining the time of death that was not recognized, even 26 years ago, as sound science. Bayardo’s math also defied logic; although the time that the Mortons’ dinner ended had been revised by less than two hours, he had adjusted the estimated time of death more dramatically, by nearly five hours. Still, his conclusion was crucial to the state’s case: besides [Morton's son] Eric, the only person who had been with Christine between 9:30 p.m. and 1:30 a.m. was Michael.

Though Bayardo told Morton's attorneys he was "very much disturbed" that prosecutor (now judge) Ken Anderson misrepresented his forensic testimony to the jury, he never stepped forward to say so until DNA testing exonerated Morton a quarter-century later. Morton's exoneration was an internationally publicized disgrace for Williamson County, but it sounds like Judge Gravell is willing to risk replicating that approach.

From an economic perspective, one can debate whether Williamson County should own and operate its own crime lab. But to argue based on the county's "values" that it needs a pro-law enforcement crime lab and medical examiner's office defies basic ethics and common sense.  Science should stand on its own, independent of the values held by jurors who hear the evidence or the voters electing the judges and DA. It's fairly stunning to see that argument made in Williamson County so soon in the aftermath of the Michael Morton exoneration.

Williamson County getting off light financially for Michael Morton exoneration

The aftermath of the Michael Morton exoneration has cost Williamson County more than half a million dollars, reported the Austin Statesman (July 22), mostly in legal fees surrounding the court of inquiry but also for the prosecution of the real killer, Mark Norwood, whose DNA was found at the scene on a belatedly tested bloody handkerchief. Reported the paper:

[Rusty] Hardin submitted a bill of $365,045.13, which included $39,587.63 for expenses such as Fed Ex, copying, mileage and hotels, [assistant auditor Julie] Kiley said. The remainder of the bill was for 1553.50 hours of legal service, she said. Sturns only authorized that the county pay $339,492, she said.

Kiley said the judge didn’t explain why he adjusted the bill down, but such adjustments aren’t unusual in criminal cases. ...

The county’s previous legal costs of more than $158,000 include $145,879.84 for the Norwood trial and $12,780 for judge’s fees, transcripts and court reporting for the court of inquiry, Kiley said.

Considering the state paid nearly two million dollars to Morton in a lump sum and that Texas taxpayers created a lifetime annuity for Morton in a like amount, quite honestly, it seems to me the county is getting off light. One of Morton's unrequited reform suggestions was for counties to bear at least part of the burden for compensating exonerees since local officials were fundamentally responsible for most false convictions. That idea didn't move forward, but it would be folly to think the county would get off scot-free while Judge Ken Anderson, who prosecuted Morton and was arrested this spring for allegedly secreting exculpatory evidence in the case, remains on the bench. For that matter, "If a trial is held, the county will face more expenses."