Michael Morton Act: Texas Discovery Law Raises Concerns

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In 2013, the Texas Legislature enacted the Michael Morton Act (Senate Bill 1611, effective January 1, 2014), which requires prosecutors to give defense attorneys any evidence that is relevant to the defendant’s guilt or punishment. Michael Morton was wrongfully imprisoned for 25 years for his wife Christine’s murder because prosecutors withheld exculpatory Brady[1] evidence—a bloody bandanna found at the crime scene. Later testing revealed the blood belonged to Mark Alan Norwood, who was convicted for the murder in 2013. Two years after killing Christine Morton, Norwood murdered Debra Baker, a mother of two. Morton’s tragic story has raised awareness of the importance of sharing exculpatory evidence, but some prosecutors are concerned about what the new law will cost the State.

Administrative Costs

Rob Kepple, executive director for the Texas District and County Attorneys Association, says prosecutor’s offices will have to hire additional staff and invest in newer technology to be able to comply with the increased discovery burden the law imposes. Dallas County Administrative Chief Andrea Moseley says that law-enforcement officials are trying to reduce the amount of paper documents they create to make it easier for prosecutors to supply defense attorneys with all the evidence the Morton Act requires. Moseley reports that the Dallas prosecutor’s office is working to find a way to securely release information through an online portal, but in the meantime, she is concerned that investigators might shortcut investigations to defray discovery costs.[2]

Others are more optimistic. Rusty Hardin, a Houston criminal defense attorney who prosecuted former Williamson County District Attorney Ken Anderson for withholding evidence in the Morton case, says that many prosecutor’s offices already had an “open-file” system for releasing information to the defense. It would seem that at least for those counties, the Morton Act’s requirements are unlikely to cause any administrative or fiscal headaches.[3]

Michael Morton Act Waivers & Plea Bargaining

Some Texas prosecutors are now asking defense attorneys to sign a waiver (1) acknowledging that the State has turned over all evidence mandated by the Morton Act before the defendant enters a guilty plea and (2) waiving the State’s obligation to hand over exculpatory evidence after the defendant has entered the plea.[4] The latter portion particularly troubles Houston defense attorney Paul Kennedy, who worries that many forms of exculpatory evidence—such as the later discrediting of a lab analyst, or another person confessing to the crime—are grounds for post-conviction writs that Morton Act waivers could sweep under the rug.[5]

Time will tell how costly the Morton Act is for the State and whether Morton Act waivers do in fact threaten defendants’ potential post-conviction relief. The Court of Criminal Appeals Criminal Justice Integrity Unit will address these competing concerns and other Morton Act issues at their next meeting this fall.

For the text of the Michael Morton Act and other code provisions crucial to your criminal-law practice, pick up a copy of O’Connor’s Texas Criminal Codes Plus. Look for the new edition soon!

[1] In Brady v. Maryland, 373 U.S. 83, 87 (1963), the U.S. Supreme Court held that withholding exculpatory evidence violates due process where the evidence is material to either guilt or punishment.

[2] Terri Langford, Costs and Questions as TX Implements New Discovery Law, Texas Tribune, May 29, 2014.

[3] Id.

[4] Grits for Breakfast, Some Prosecutors Demanding Waivers from Defense Before Handing over Michael Morton Act Discovery.

[5] Grits for Breakfast, Paul Kennedy on Michael Morton Act Waivers.