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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.

Published: 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.