“The Michael Morton Act, Revisited,” was the featured article in the June issue of the Lubbock Law Notes, published by the Lubbock Area Bar Association.

By Chuck Lanehart and Charles Blevins

With considerable fanfare, the Michael Morton Act went into effect January 1, 2014, for offenses committed on or after that date. The Act, a revision of art. 39.14 of the Texas Code of Criminal Procedure, was designed to liberalize and standardize discovery rules statewide, and to encourage prompt disclosure of exculpatory, mitigating and impeachment evidence, known as Brady evidence.
Though the intent of the new law has been generally praised, criminal defense lawyers continue to struggle with the statute’s shortcomings and ambiguities. Meanwhile, prosecutors feel more vulnerable to ethical complaints which allege failure to disclose favorable evidence to the defense.

Lubbock County Practice and art. 39.14

The process of obtaining discovery in Lubbock County has not changed dramatically post-MMA. The Lubbock County Criminal District Attorney (CDA) provides the bulk of discovery electronically via the Lubbock County Electronic Access to Public Records system. What has changed is the MMA requirement of redaction and restrictions on sharing discovery. Prior to the M1VLA, Lubbock criminal defense lawyers did not have to worry about these requirements.

The Act prohibits disclosing to defendants any witness identifying information (address, telephone number, driver’s license number, social security number, date of
birth, and any bank account or other identifying numbers), ostensibly to protect complainants and witnesses from retaliation by citizens accused. However, the CDA does not normally remove identifying information from discovery. In order to disclose discovery to clients, defense lawyers are left to the tedious and costly process of redaction. Even in cases where the only witnesses listed in discovery are connected to law enforcement minor drug offenses, and weapons offenses), no identifying information may be shared with clients.

In a recent survey of Lubbock criminal defense lawyers, respondents complained of the new requirement that clients are not allowed to keep and study discovery under art. 39.14. “Generally, I did not have discovery issues before the Act,” said one respondent. “The Act prohibits me from sending discovery to my client without wasting valuable time on redaction. The Act has not been as effective as it could be because of the non-disclosure issues.” Another respondent answered, “I don’t know that MMA has affected me as an advocate, but it hurts relations with clients in not being able to provide them copies of the materials to keep.” A third respondent said, “I have to make more trips to jail to read and re read discovery to them. Or, I have to have more in-office consultations to read and reread discovery to them. This takes valuable time away from my practice—investigation, research, etc.”

In order to comply with art. 39.14 requirements not to disclose identifying information and not to provide discovery for clients to keep, survey results indicated many Lubbock criminal defense lawyers eschew the redaction process and simply read discovery to clients, omitting identifying information; others prepare written summaries of discovery which can be given to clients to keep and study on their own time. A few lawyers admitted ignoring the
non-disclosure and redaction rules.

Article 39.14(e) also prohibits disclosure of discovery obtained under the statute to third parties, such as a witness in the case or a client’s parent/spouse. About 57 per cent of survey respondents said the requirement made them less effective as advocates, 32 per cent said the requirement had no effect, and no respondent said the requirement improved attorney effectiveness. “This is a major hindrance to the attorney client relationship and my relationship with family members of the defendant,” wrote one respondent. “It is a constant, repetitive problem.” Another wrote, “Got a grievance filed against me because of this. Nothing came of it, but still, a grievance.” A curious anomaly in art. 39.14(e)(1) is that a court may allow discovery to be disclosed to or possessed by third parties upon a showing of good cause, notice and a hearing. However, there is no provision that a court may allow discovery to be disclosed to or possessed by a defendant, even upon a showing of good cause, notice and hearing.

The Act requires the parties to certify to the court what discovery has been disclosed and received. Thus, forms outlining discovery provided by the CDA are prepared and routinely confirmed by each side at the time of a plea of guilty or trial. Major litigation of discovery issues is rare, as was the case pre-MMA.

All survey respondents said they use provisions of the MMA in their law practices, but less than a third of the respondents said the MMA had increased their effectiveness as advocates. Further, 44 per cent said the MMA has not improved the CDA’s willingness to disclose Brady material. Notably, Judge Bradley Underwood recently ruled the CDA violated its
Brady obligation in a Lubbock County writ of habeas corpus opinion, writing, “I recommend that all members of the Criminal District Attorney’s Office re-read . . . `Mandatory Brady Training.” (See discussion of the Schultz case, infra.)

There seems to be no clear consensus among Lubbock criminal defense lawyers regarding preferences for art. 39.14’s discovery changes: about a third of those surveyed prefer the Lubbock County discovery policy Pre-MMA, a third prefer the new MMA discovery policy, and a third had no preference.

Though the Act requires discovery to be provided “as soon as practicable after a timely request,” only 28 per cent of survey respondents said the CDA provides discovery timely in most cases. And, 75 per cent of respondents said the CDA does not provide discovery prior to an indictment or information. To make matters worse, the Act provides no effective remedy or sanction when production of discovery is wrongfully delayed or withheld. A few appellate cases illustrate the roadblocks defense lawyers face when dealing with delayed discovery.

What Does “As Soon As Practicable” Mean?

Only a couple of cases involving the new art. 39.14 have reached the Texas Court of Criminal Appeals, and one arose from Lubbock County, In Re Carrillo.

Like Michael Morton, David Carrillo was charged with the murder of his wife (as well as her boyfriend). Unlike Morton, however, Carrillo’s lawyers had the benefit of the revised art. 39.14. So, when his lawyers complied with the new law by filing a “timely request” for discovery in the case, they expected the prosecution to comply “as soon as practicable,” as is required by the Act.

Nope. The CDA refused to comply, claiming the statute does not require discovery to be provided until an indictment is retumed by a grand jury. (Carrillo was charged by complaint in Justice Court when the controversy arose.) Carrillo’s lawyers filed a writ of mandamus seeking an order that the CDA provide discovery, but the Texas Court of Criminal Appeals denied relief. In fact, the Court rejected Carrillo’s appeal without a written opinion. However, CCA Judge Elsa Alcala wrote a concurrence, reasoning:

I, therefore, agree with relators assertion that, by delaying a defendant’s access to discovery until after grand jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the “as soon as practicable” language into “as soon as practicable after return of indictment by the grand jury.” The statute does not impose any such condition on the State’s discovery obligations.’

But Judge Alcala wrote the writ of mandamus was not Carrillo’s proper relief, and outlined two remedies for the State’s failure to abide by the Act:
Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.”

Contrary to Judge Alcala’s proposed remedies, most defense lawyers feel waiting until trial or post-conviction appeal to litigate the state’s MMA violations conflicts with the intent of the Act. In order to be effective, defense counsel must know the evidence well before trial and appeal, “as soon as practicable.” In Carrillo, the defendant bypassed trial court review of the art. 39.14 issue and proceeded directly to the Texas Court of Criminal Appeals via writ of mandamus, but was denied relief.’ The defendant in a Dawson County murder prosecution took a different course, but met the same fate.

Pre-Indictment Jurisdiction for Granting art. 39.14 Motion

In the Dawson County case, In re the State ofTexas ex rel. Michael Munk, the defense filed a pre-indictment motion seeking discovery under art. 39.14, which was granted by the District Court, and the State appealed.” The Eastland Court of Appeals ruled the District Court was without jurisdiction to grant an art. 39.14 motion until an indictment had been handed down.”

Thus, reading Carrillo and Munk together, defense lawyers find themselves in a sort of Catch-22. At least one judge of the Court of Criminal Appeals agrees with the defense that prosecutors are required to provide discovery at the earliest stages of prosecution even before indictment—yet the Eastland Court of Appeals has ruled the trial court has no jurisdiction to enforce the requirement until after indictment. There seems to be no effective legal mechanism for enforcing the “as soon as practicable” requirement until well after the case is underway, which seems counterproductive.

Prosecutorial Pushback

On the South Plains, one rural prosecutor has changed discovery policies to require defense lawyers to appear in the prosecutor’s office to obtain art. 39.14 discovery, even if it means the defense lawyer must travel across the state to pick up the discovery material.” Previously, the prosecutor had routinely mailed or emailed discovery to the defense. The change in policy appears to be in retaliation for defense lawyers zealously litigating art. 39.14 issues in that jurisdiction. Such practices seem to violate the Act by delaying discovery productions.

Confidentiality Agreements and Other Pre-Conditions

No legal challenges to such restrictive discovery policies have reached appellate courts, but a 2014 State Bar of Texas Ethics Opinion condemns a similar attempt by a prosecutor to water down art. 39.14s requirements. In Ethics Opinion 646, a district attorney required criminal defense lawyers to sign confidentiaEty agreements as a condition to granting lawyers access to the prosecutors files (a so-called “open file” arrangement). The agreements allowed lawyers to obtain discoverable information in the prosecutors files in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers clients, and their agreeing not to seek court-ordered discovery in any of their clients’ cases.

The Texas Disciplinary Rules of Professional Conduct require prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. Art. 39.14, including making disclosures required by the act. Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to disclose, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases.”

The opinion seems to indicate that any precondition to obtaining discovery not spelled out in art. 39.14 would be unethical, such as prosecutors requiring the defense to travel long distances to obtain discovery.

The Schulz Case

Though art. 39.14 requires disclosure pursuant to Brady, prosecutors are also ethically obligated under Texas Disciplinary Rules of Professional Conduct 3.04(a)21 and 3.09(d) to disclose favorable information and evidence to the defense.

In Schultz. Commission for Lawyer Discipline of the State Bar of Texas, the Board of Disciplinary Appeals held that a prosecutors duty under 3.09(d) and 3.04(a) is broader than the prosecutors legal, constitutional duty of disclosure imposed by Brady and its progeny.” Unlike the Brady rule, the ethical duty to disclose allows a prosecutor no discretion to withhold favorable information or evidence even when the prosecutor subjectively concludes the information is either immaterial or inadmissible.’ Texas prosecutors violate ethical rules and may be disciplined for failing to disclose favorable information required to be disclosed under 3.09(d) and 3.04(a).”

In a recent article published by the Texas District & County Attorneys Association, prosecutor Melissa Hervey advises “if there is any conceivable way in which information or evidence could be considered favorable to the defense for exculpation, impeachment, or mitigation purposes, don’t stop to wonder whether the information or evidence is material and admissible. Just disclose it.”

Thus, defense counsel may be wise to cite not only art. 39.14 but also TDRPC 3.09(d) and 3.04(a) when requesting favorable discovery material.

Discovery of Inmate Telephone Calls

Recorded inmate jail calls are routinely used in evidence against defenclants by prosecutors, but are the recordings discoverable under art. 39.14 or Brady? According to a 2015 Attorney General Opinion, “Brady vs. Maryland . .do(es) not impose a general duty upon a prosecutor to listen to all recordings of inmate telephone calls . . to search for exculpatory evidence for a defendant . . .”” However, the opinion goes on to interpret an art. 39.14 discovery request for such recordings:

Considering the Texas Supreme Court’s definition of “possession, custody and control in an analogous context, a court construing the phrase in article 39.14 of the Texas Code of Criminal Procedure would have a basis on which to determine that a contract providing a criminal district attorney’s office with unfettered access to recordings of inmate telephone calls gives the criminal district attorney’s office possession, custody and control of the recordings.”

So, when the DA has “unfettered access” to inmate jail recordings, the recordings are discoverable under art. 39.14.

Discovery of Recordings of Confidential Informant

In Liberty County, a district judge granted a defendant’s art. 39.14 request for discovery of recordings made by a confidential informant in a drug case. The prosecution appealed, and in In Re the State of Texas, the Beaumont Court of Appeals held the recordings were subject to a claim of privilege under Rule 508.’ Since the prosecution claimed privilege and the defense failed to show an exception to the privilege, the trial court should have examined the recordings in camera to determine whether the privilege applied, the appeals court ruled, and the trial courts decision was vacated.

Failure to Request a Continuance

In Cantu, Bailey and Murray, three unrelated appellate cases involving art. 39.14, defense counsel objected during trial to the introduction of evidence which was not provided pursuant to the Act. In each case, appeals courts ruled the defense should have moved for a continuance in order to preserve error for the State’s failure to comply with the Act. Failure to request a continuance resulted in each of the three convictions being upheld.

However, when the defense properly requested a continuance for violation of art. 39.14 and was denied a continuance (where the identity of a State’s expert witness and supporting material was disclosed to the defense before trial, but the expert unexpectedly testified at trial contrary to the discovery provided), the Texarkana Court of Appeals upheld the conviction in Davis v. State, ruling the defense failed to investigate all evidence the expert might produce at trial.

Evidence Not Within State’s Possession

In State v. Norwood, the trial court dismissed the indictment against the defendant when the prosecution was unable to produce background information of a confidential informant as ordered by the court pursuant to art. 39.14. On appeal, however, the Beaumont Court of Appeals reversed on other grounds, ruling the informant’s background information was in the exclusive possession of a federal agency, the Drug Enforcement Administration, and thus not in the State’s possession, custody or contro1.

Conclusion

Criminal defense lawyers were hopeful the Michael Morton Act would rectify longstanding abusive discovery policies and Brady violations, but anyone who carefully studied the new law should have been aware of its shortcomings. Of the few appellate decisions rendered since implementation of the MMA, none have favored the defense. Many prosecutors (and apparently all the appeals courts) continue to maintain an anal-retentive disdain for the liberal discovery requirements of the Act.

In the last legislature, lobbyists on both sides seemed to shy away from pushing for amendments to improve weak provisions of the Act. Criminal defense lawyers feared lawmakers might water down the MMA or even enact much- feared reciprocal discovery legislation. Prosecutors apparently felt, in light of the highly publicized and sympathetic story of Michael Morton, that the political climate was not ripe for gutting the Act.

It seems axiomatic that if we are to have a meaningful discovery law, the law should be enforceable. Trial courts should be empowered to require the “as soon as practicable” law be followed, and trial courts should be able to enforce consequences if the law is not followed.

Further, rules regarding disclosure of discovery should be re-written in common sense terms. There is no good reason discovery in most cases should be withheld from clients, witnesses or other third parties, with or without redaction of identifying information. The bulk of criminal cases—DWI’s, drugs and weapons cases—involve no “victims” who need protection by redaction of identifying information.

Allowing clients, witnesses and third parties to keep and srudy discovery—redacted by the prosecution rather than the defense, and only in appropriate victim-oriented cases—makes sense: why should only the prosecution be allowed to freely share discovery with complainants, witnesses and third parties, but not the defense? At the very least, there should be a provision allowing the court to grant a defendant possession of discovery, redacted or not, upon a showing of good cause, notice and a hearing. The Michael Morton Act was a grand idea, but true reform in the Texas criminal discovery arena has yet to be achieved. It seems the more things change; the more things stay the same.