The Texas Prosecutor, May-June 2017, Volume 47, Number 3

The Michael Morton Act passes the tests

It has now been over three years since the Michael Morton Act (MMA) took effect on January 1, 2014. That law was perhaps the most significant change to Texas criminal jurisprudence since the new penal code was adopted in 1994. I am writing about the MMA now because the Court of Criminal Appeals recently handed down a significant opinion interpreting the Act, In re Powell v. Hocker, No. WR-85,177-01. This is one of a string of cases that has re-affirmed, in my mind, how the MMA was intended to function.
    Prior to my involvement in the passage of the MMA, my opinion was that the 1965 version of Code of Criminal Procedure Art. 39.14 had served our evolving jurisprudence well. To this day, I commend those prosecutors, many of whom are no longer with us, for the wonderful job they did in creating a statute that lasted for almost 50 years. When I began as a prosecutor, the offices in which I worked had already adopted open-file policies under that statute and worked diligently to provide the defense with exculpatory evidence
    My role in helping write what became the Michael Morton Act began when TDCAA Executive Director Rob Kepple texted me about a meeting between defense attorneys and prosecutors over then-SB 1611. “I need my closer at a meeting at 3 o’clock tomorrow afternoon,” Rob wrote, and from that day forward, I attended every meeting on that bill on behalf of prosecutors. Many of those meetings were long, and most were very difficult, as every issue having to do with discovery was thoroughly debated and hammered out. I know that there are provisions of this bill that have been challenging to implement, but as attorneys for the State, we don’t have a choice but to answer the call when our state leaders are going to open up our criminal statutes.   
    I believed that one of the strengths of the old system was that, although I turned everything over to the defense on a regular basis, I could hold back non-exculpatory evidence if I believed there was a risk to a victim or a witness. This discretion was critical in gang-related cases, for instance. In my view, this is why Texas, unlike many states, does not have a state-run witness protection program. As we went into the discussions about the new discovery system, of upmost importance to me and the other prosecutors was that our offense reports and witness statements did not get out onto the street and into the hands of those who would intimidate and harm victims and witnesses.
    While there were many heated moments while we drafted the MMA, I am absolutely convinced everyone involved believed we were trying to do what was best for the criminal justice system. In one of the final negotiation sessions with senators, representatives, and the lieutenant governor, the issue of victim safety and intimidation was discussed—and it was agreed that the MMA’s language would keep offense reports out of the hands of individual defendants. That was important to all:  a discovery statute that protects the interests of the accused, victims, and witnesses. I tried to remember that prosecutors are “to see that justice is done,” so it was very important for the law to stand up to judicial scrutiny.
    I watched with great interest when, in a Lubbock county court-at-law, a defendant challenged Art. 39.14(f), asking whether he had a right to personally keep a copy of any discovery material other than his own statement. The trial court ruled that yes, the defendant could retain copies. In response, Lubbock County Criminal District Attorney Matt Powell filed a writ of mandamus contesting that decision.
    In its unanimous opinion—yes, you read that correctly: unanimous—the Court of Criminal Appeals conditionally granted relief to the district attorney and ruled that the defendant had no right to have personal copies of discovery materials. The Court found that the trial court should rescind its discovery order, or it would issue the writ of mandamus compelling it to do so. “The Legislature has the authority to pass laws regulating the means, manner, and mode of asserting [a] defendant’s rights,” the decision reads. “And if a discovery statute is clear, unqualified, and obviously applicable, then a trial court has no discretion but to follow it, and it hardly constitutes a legislative invasion of the judicial function for a higher court to compel the trial court to do so.”
    As for the discovery issues, the pleadings required the Court to thoroughly review the statute, and after doing so, the Court decided that the law should be read as a whole document as written. The Court found that Art. 39.14 requires prosecutors to provide discovery to the defendant’s counsel, not the defendant himself. If the defendant is pro se, he is entitled to retain a copy only of his own statement; he is allowed only to “view” all other discovery. Neither defense counsel nor a trial court can provide the defendant with discovery. The Court concluded that this procedure does not violate due process or the right to effective assistance of counsel.
    I was gratified and relieved that the Court’s decision affirmed the discussions about protecting victims and witnesses that was so important to our state leaders. And I want to thank Matt Powell, the Lubbock County Criminal District Attorney, for filing his writ and acting to protect our victims and witnesses.