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The Michael Morton Act: What prosecutors and defense attorneys need to know
By:  Alex Bell

When Governor Perry recently signed SB 1611, also known as the Michael Morton Act, the landscape for Texas criminal discovery changed dramatically. Gone are the days of discretionary open file policies. New disclosure requirements are mandatory and extend to "all material evidence." The duty to turn over Brady materials now extends indefinitely—as in FOREVER. And, most importantly, the language of the new law suggests that none of its requirements are waivable.

Effective Date

First, the new law does not take effect until January 1st, 2014.  When it does take effect, the law only applies to crimes committed AFTER the effective date. It is not retroactive. Many district and county attorneys’ offices have already received discovery requests citing the new law. To repeat, the law ONLY applies to crimes committed on or after January 1st, 2014.

Discovery Procedure

To initiate the discovery process, a defense attorney must "timely" request discovery from the State. The law does not dictate what form the request must take, but some kind of written document or even an email should suffice. The statute is silent as to what constitutes a "timely" request. There is no need to involve the trial court in the process unless there is a dispute about the privileged nature of some piece of evidence or if a defense attorney violates their obligations under the new statute.

Evidence covered by the new statute

The statute mandates the disclosure of items in the possession, custody or control of the State or any person under contract with the State.  It includes the following information :
1) Offense reports
2) Witness Statements (including law enforcement officers)
3) Designated documents or papers
4) Recordings of the defendant or a witness
5) Designated books
6) Accounts
7) Letters
8) Photographs
9) Objects
10) Other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action (catch-all)

New Procedural Requirements

-Plea Agreements: Before any plea of guilty or nolo contendere, the State and defense must read into the record a list of all the evidence against the defendant. Reading the list into the record in misdemeanor cases might be feasible, but not in most felony cases. Also, if you ever need to access that list again, you’re going to need the court reporter’s record just to know what was on the list. The better practice will be for the State to produce a list of all the evidence in its possession and have both sides sign it as part of the plea paperwork.

-Forensic Testing: This area could be more troublesome. For example, your client wants to plead before the testing on the drug evidence comes back. There may be several ways to go about this. He agrees, in writing, to stipulate that the drugs are what the State claims them to be and to include the drugs on the evidence list. If the State follows through with testing and the results are exculpatory, the defendant might be entitled to habeas relief despite all of the above work. So, everyone may just have to wait for drug testing. The same applies to DNA testing.

-Confidential Informants: As some prosecutors and law enforcement officials have noted, the new discovery statute makes it nearly impossible to continue to use a confidential informant once a case has been filed against one of the individuals in the investigation. The State is now required to turn over all witness statements, recordings, etc., that contain “evidence material to any matter involved in the action…,” and the defense now has an absolute right to that evidence. However, Texas Rule of Evidence 508 may still provide some protection as to the identity of the confidential informant. The new discovery statute does not address the Rule at all and does not expressly overrule it. One solution for prosecutors would be to withhold the statement or recording, notify the defense that you have done so, and if necessary, let the trial court inspect the information in camera.

Additionally, the statute provides specific protections for certain information that has traditionally been protected: the work product of counsel for the State, the work product of the investigators, notes, and/or reports. So, essentially, the statute respects the traditional work product doctrine embodied in the Texas Rules of Evidence.

Obligations of Defense Attorneys

Defense attorneys do have several new responsibilities and limits on what they may do with the information provided under the statute. First, they must redact the address, phone numbers, etc., of every witness before showing a statement to a defendant. Second, defense attorneys are not allowed to make copies of discovery items for the defendant. Third, if a defendant represents himself, he must be allowed to see and hear all of the discovery materials, but the State is not obligated to allow him to copy the material. In all cases, the defendant gets to see and hear the witness statements.

New process cannot be waived

Finally, the statute suggests that its requirements are not waivable. The State and a defendant may enter into an agreement that provides protections "equal to or greater than" those provided by the statute. Therefore, by implication, the State and a defendant may not enter into an agreement that provides for more limited discovery, otherwise known as a waiver. If you want to plead a case and have the defendant waive the evidence-list requirement, the new law suggests that the agreement is not permissible.

In conclusion, the new law standardizes discovery across the State and removes the trial court from almost all of the discovery process. The disclosure of most routine evidence is mandatory. There will still be disputes about what items of evidence are privileged, but gone are the days when defense attorneys or judges are left to wonder what evidence exists. The State must declare everything it has and then explain why any items, documents, or things were withheld. This will bring greater transparency to the criminal-justice process at a time when most of the public is demanding it.

--ALEX BELL is the Chief of the Appellate Division in the McLennan County Criminal District Attorney’s office and an adjunct faculty member at Baylor Law School.