Once upon a time in a not-so-distant past a prosecutor named Ken Anderson decided that he wanted to send a man named Michael Morton to prison for killing his (Mr. Morton’s) wife. The only problem was that Mr. Morton didn’t actually commit the murder.
But Mr. Anderson couldn’t be troubled with such stubborn facts, so he deliberately withheld exculpatory evidence during the trial. Mr. Morton was found guilty and served 25 years in prison. The withheld evidence included a blood-soaked bandana found at the crime scene that belonged to Mark Allan Norwood, the man ultimately convicted of the murder of Mr. Morton’s wife and another woman.
This awful series of events eventually led to the disbarment of Mr. Anderson (who had subsequently been elected to a district court bench), a finding of contempt (with a sentence of just ten days in jail, which seems a bit soft-handed in light of the 25 years served by Mr. Morton), and an agreed audit of every Williamson County case handled by Mr. Anderson (read about that little-know fact here).
The deliberate withholding of evidence also led to the Morton Act, which the Texas State Legislature passed in 2013 and which became law on January 1, 2014.
Everyone working in the Criminal Justice System has heard of the Morton Act, and so have a fair number of informed defendants. But surprisingly few people seem to have read it. Here’s a Morton Act primer:
1. The defense attorney gets automatic discovery when he asks for it.
Prior to the Morton Act (which you can find as an updated version of article 39.14 in the Texas Code of Criminal Procedure, or, if you want to see how the statute was changed, read the line-edited version here), a defense attorney needed to establish “good cause” to get a court to order the District Attorney’s Office to produce portions of its file for review and copying. Now attorneys need only make a request to the District Attorney’s Office.
Additionally, any exculpatory evidence must be disclosed.
This change is less profound than you might think — most DA offices already have an “open file” policy and the Brady decision already requires the disclosure of exculpatory evidence.
2. The defense attorney gets guaranteed copies of material evidence
Before, attorneys were only guaranteed the right to “inspect” an offense report. Under the Morton Act, they can now either receive or make copies of all material evidence, which includes offense reports, documents and reports, papers, written or recorded witness statements (including the statements of law enforcement officers), photos, books, accounts, ledgers, and other tangible things that are material and not otherwise privileged.
What does “otherwise privileged” mean? What the drafters have in mind is the normal privileges set forth in Texas Rules of Evidence. The statute directly references communications between the State and its agents and attorney work product as being outside the scope of the Morton Act discovery obligations. Also, the State gets to decide what is “material.” That adds a level of prosecutorial discretion that normally isn’t a problem but could lead to gamesmanship in the hands of a prosecutor acting in bad faith or who has a “win at all cost” mentality.
3. The defense attorney can’t share
No sharing! The Morton Act specifically precludes defense attorneys from making copies of discoverable material to provide to third parties . . . including their own experts! Many attorneys are unaware of this fact, so be careful. Under the new law, defense attorneys may allow an expert to review relevant portions of the file, but you can’t send them copies of the offense report. That would be a violation of the Morton Act. This provision can lead to logistical issues. Sometimes it’s hard to arrange for an expert to come to your office to view relevant documents.
A defense attorney can also allow his client and witness to view the discoverable material, but they can’t make any copies for themselves (except a copy of their own statement). And the attorney, prior to allowing experts, clients, and witnesses to view the material, must redact complaining witness info including addresses and phone numbers.
4. Records and Waivers.
The Morton Act requires the State to make a record of what evidence has been disclosed to the defense. Most DA offices now have a “disclosure checklist” that the defendant and her attorney have to sign. This is a mandated CYA for the prosecutor. Be careful of any waivers — there is chatter out there that some DA office checklists include a waiver of disclosure of any future evidence. DO NOT SIGN THIS WAIVER. It completely guts the State’s obligation of continued disclosure (see below) and might be used by the State to procedurally bar a future collateral attack on the conviction.
5. What happens after the case is over?
The Morton Act specifically states that the prosecutor still has an obligation to disclose exculpatory evidence even after the case is closed. That’s good news — if a complaining witness comes to the Victim’s Assistance office a year later and says she made everything up then the Morton Act would require the DA to contact counsel and disclose this fact (hopefully they’d do this anyway).
But the defense attorney’s obligations after a case is closed is less clear. The Morton Act specifically states that aside from victim information disclosures, nothing in article 39.14 reduces the defense attorney’s obligations to communicate with his client under the Texas Disciplinary Rules of Professional Conduct. The question that many defense attorneys will have going forward is what are his/her obligations to turn over the client’s file post conviction? If the client requests his file for purposes of filing a writ of habeas corpus, can the client at that point receive the full file, which contains the Morton Act discovery? The Morton Act itself does not directly address this issue. Neither do the Texas Disciplinary Rules of Professional Conduct. Most of the commentary in these rules regarding a former client’s right to a file concern civil cases.
I believe the Morton Act leaves defense attorneys in limbo as to how mange a former client’s file post conviction. Hopefully more guidance is forthcoming.