In Texas, a Bold Step Toward Justice

Texas, home of some of the worst criminal justice transgressions, passed a bill requiring prosecutors to share more information more quickly with defense attorneys. The vast majority of prosecutorial misconduct occurs in state courts. Hopefully other states see the light.

May 17, 2013

In Texas they are calling Senate Bill 1611 the Michael Morton Act but in truth it could be called the Anthony Graves Act or the Michael Toney Act. It could be named after any of the countless criminal defendants in Texas and elsewhere around the nation — often poor, often of color, often poorly represented by overworked public defendants — who have been cheated out of their fair trial rights by prosecutors who have unconstitutionally failed or refused to disclose exculpatory evidence to the defense, as required by the U.S. Supreme Court’s decision in Brady v. Maryland.

It is altogether fitting that Texas, a state where some of the worst of these transgressions have taken place, is confronting part of its unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature after passage in both houses of the Texas legislature, is a bold, progressive step that creates an “open-file” discovery rule requiring prosecutors to share more information more quickly with defense attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady by making sure defendants and their lawyers can see and copy all police reports and witness statements. Prosecutors will be able to protect the identity of witnesses — which always has been a sticking point in these measures — but will have to provide defense counsel with a list of the disclosed evidence. In other words, Texas now has taken a significant step toward giving its criminal defendants, whose life or liberty are on the line, many of the same discovery protections routinely afforded litigants in state court civil cases, where neither life nor liberty are at stake.

It’s about time. Morton spent 25 years in prison for the murder of his wife before a DNA test exonerated him just a few years ago. The behavior of his prosecutor, Ken Anderson, was so egregious that Anderson himself now faces criminal charges of tampering with evidence. Michael Toney also spent nearly 25 years in a Texas prison because his prosecutors suppressed evidence about the credibility of the only witnesses to testify directly against him. Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825, also passed by the Texas House this week, addresses what will happen when they don’t. This measure will give aggrieved criminal defendants more time to challenge prosecutorial errors once they are discovered. And, critically, it will publicly reprimand prosecutors who cheat. I’d like to see harsher sanctions in these cases — more teeth to the measure — but if the new law is faithfully observed by state court judges no longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Texas is not the first state to move in this direction in the wake of a relentless stream of wrongful convictions. Lawmakers in Colorado, New Jersey, Florida, North Carolina, and other venues have done so as well. The American Bar Association long ago recommended such “open file” discovery, in fact, but there is still a great deal of opposition to it in some quarters. My sense is these recalcitrant jurisdictions, when they see how much more efficient and just Texas’s system becomes as a result of these new laws, will eventually come around. What’s just happened in Austin, you could say, is the criminal justice equivalent of Nixon going to China.

In part the need for state action is dire because of the wishy-washy way the Supreme Court has applied Brady. The justices have sent mixed signals since 1963 about how serious they take even the most egregious examples of prosecutorial misconduct. They have endorsed a standard that makes it harder for defendants who are aggrieved by even blatant Brady violations to get any meaningful remedies. But the justices always have been clear about one thing — they’d prefer the states police themselves when it comes to prosecutorial misconduct. That was true when Brady was decided by the Warren Court and it is true today during the Roberts Court.

It’s about justice, surely, but as with most other things in politics it is about money, too. Texas spends a small fortune on these wrongful conviction cases, not just by having to defend them ceaselessly in court but by the payouts many of the exonerees receive ($61 million to 89 exonerees by this count) for the decades they spent in prison as a result of unfair trials. The Texas legislature, in other words, hasn’t suddenly become an arm of the American Civil Liberties Union. It never will. But at least it has clearly recognized the legal and moral and financial costs of prosecutorial misconduct is simply too much to bear.  

Hopefully Texas won’t be the last state to see the light and reform its disclosure rules in criminal cases. The vast majority of prosecutorial misconduct — the hidden evidence cases like the ones identified above — occurs in state courts around the nation, in cases guided by state law and then evaluated by state or local rules of professional responsibility. The less discretion prosecutors have to cheat, the more incentive they have to be fair, the less injustice we’ll see. No wonder Michael Morton was cheering from the gallery earlier this week when the bill that bears his name moved closer to becoming law.