I used to live in Ellis County and I had a few criminal cases there. Not as many as I had in Kaufman and Dallas, but enough that I quickly learned the Ellis County District Attorney’s had little regard for justice or preventing wrongful convictions. Why? They had a closed file policy.
Here’s how it went. Client would hire me for a DWI or weed case. I’d go to court and ask for a copy of the police report. I’d be told that they could read it to me (no seriously, they would say this), or sometimes even let me read it. But if I wanted a copy then I would have to file a discovery motion and then they would withdraw all plea offers and force my client to trial. So basically they set up a closed file system to bully defendants into pleading guilty without looking at the evidence. It worked sometimes, clients may not want a jury trial and they may not even want a pre trial hearing, they may just want a plea bargain, but it’s hard to negotiate when you don’t know anything about the case. The ADA would usually say something like “well, you can ask your client what happened.” That’s cute, your officer has the ability to stop and take notes, review the video tape, speak to witnesses at the scene. My client is in handcuffs and can’t record anything, so yeah, thanks for the great advice.
I thought this closed file policy was ethically dubious. The prosecutor, by hiding all evidence, was asserting that nothing in their file was exculpatory (Brady material), which they had a duty to disclose. Of course, these ADA’s seemed to think nothing was exculpatory, in a Ken Anderson way. The closed file policy also showed a complete lack of confidence in local law enforcement’s ability to investigate and document suspected criminal activity.
I don’t currently take new criminal cases in Ellis County, and they may have changed the policy since I left, but if they haven’t it doesn’t matter. Governor Perry recently signed the Michael Morton act, which requires prosecutors to turn over evidence to the defendant. The hope is that we can maybe slow down the wrongful conviction machine we have set up with more disclosure. I’m hopeful.
What does the Michael act require? Basically, the State has to turn over what the evidence that is relevant to the case. I know, a pretty radical idea. The State can’t try a defendant with secret evidence anymore. People who don’t interact much with the criminal justice system probably thought that was already the law, but it’s not, at least not until January 1, 2014.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Michael Morton Act.
SECTION 2. Article 39.14, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsections (c) through (n) to read as follows:
(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall [Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to] produce and permit the inspection and the electronic duplication, copying, and [or] photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements [statement] of the defendant or a witness, including witness statements of law enforcement officers but not including[, (except written statements of witnesses and except] the work product of counsel for the state in the case and their investigators and their notes or report[)], or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that[, which] constitute or contain evidence material to any matter involved in the action and that [which] are in the possession, custody, or control of the state or any person under contract with the state [State or any of its agencies]. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The [order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the] rights granted to the defendant under this article do [herein granted shall] not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize [State or any of its agents or representatives or employees. Nothing in this Act shall authorize] the removal of the documents, items, or information [such evidence] from the possession of the state [State], and any inspection shall be in the presence of a representative of the state [State].
(c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.
(d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a 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 is not required to allow electronic duplication as described by Subsection (a).
(e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless:
(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or
(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.
(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.
(g) 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, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.
(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.
(i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.
(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.
(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.
(l) A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.
(m) To the extent of any conflict, this article prevails over Chapter 552, Government Code.
(n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.
SECTION 3. The change in law made by this Act applies to the prosecution of an offense committed on or after the effective date of this Act. The prosecution of an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
SECTION 4. This Act takes effect January 1, 2014.