State Senate passes Michael Morton Act (corrected version)

Yesterday the Texas Senate unanimously passed the Michael Morton Act which will expand the scope of discovery for defendants in criminal cases. In the face of staunch opposition from the defense bar, any provisions requiring the defense to hand over documents were removed from the bill.

Proponents even withstood a last minute attempt by Sen. Joan Huffman (R-Houston) to insert a provision in the bill that would, in effect, place a gag order on defense attorneys regarding the release of any information obtained via discovery. That last statement wasn't true - it was based on an article that ran in Wednesday's Texas Tribune (a story that is no longer on their website) that claimed a last minute compromise had been worked out that would remove the amendment from the bill. The article, however, was light on details. As Grits pointed out in his comment this morning, and as I noted a few paragraphs down, provisions (e) and (f) impose a gag order on defense counsel regarding the information obtained through discovery.

I apologize for the misinformation and confess that I should have known better given that the bill passed the Republican-controlled Senate without a single dissenting vote.

Grits also notes that the defense bar was absent when discussions over Sen. Huffman's amendment were held. That's a topic I will address in another post. My thanks to Scott for pointing out the errors in the original posting.

The bill even contains a statutory Brady requirement that is actually more defense-friendly than Brady itself.

According to the language of the new bill "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."

So, 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.

Of course 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.

While Sen. Huffman's proposed amendment was removed in order to ensure passage of the bill there is a provision which would seem to bars defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense. This would appear to prevent the defense from providing information to the press regarding any issues of misconduct - if that information was obtained through the discovery process.

One interesting provision would require a statement from both the state and the defendant listing the documents and other items turned over by the state prior to a defendant entering a guilty (or no contest) plea. That provision may actually reduce the practice of indigent defendants pleading out on their first settings because their attorneys would be opening themselves up to potential claims for ineffective assistance of counsel if nothing more than an offense report had been turned over. Then again, the courts may just put some boilerplate language in a plea form indicating that the defendant had reviewed the items required to be disclosed under the bill.

On the downside, there is no automatic trigger in the bill. None of the disclosure obligations of the state are triggered until the defense files a request asking for the evidence referred to in the bill.Presumably the request would only need to refer to the material described in Article 39.14(a) of the Texas Code of Criminal Procedure. If no request is filed, the state is not required to disclose the information until trial - by which time it is probably too late.

The bill would go into effect on January 1, 2014 and its provisions will only apply to cases filed on or after that date.