Fight Over Information Security Could Jeopardize "Michael Morton Act"

_{*Correction appended.}

A fight over what defense lawyers can do with information about their clients in criminal cases after prosecutors turn it over to them is threatening to stymie the “Michael Morton Act.” 

The measure, Senate Bill 1611 by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, would require prosecutors to turn over evidence to defense lawyers in criminal cases. Currently, prosecutors aren't required to provide evidence to defense lawyers unless ordered to by the court, though many Texas prosecutors have some form of open file policy.

The bill is one of several filed in response to the 2011 exoneration of Michael Morton, who spent nearly 25 years in prison after he was wrongly convicted in 1987 of his wife’s murder. His lawyers allege that the prosecutor in the case, Ken Anderson, who is now a Williamson County state judge, withheld critical evidence from Morton’s lawyers. Anderson denies any wrongdoing in the case.

State Sen. Joan Huffman, R-Southside Place, and some prosecutors want a restriction in SB 1611 that would limit whom defense lawyers can share information with once they’ve received it from the state. They said the current bill could jeopardize the safety of victims by allowing public disclosure of private information. Ellis, defense lawyers and at least one victims organization, however, say the current bill would not present danger for crime victims or witnesses. Some worry that Huffman and the prosecutors are working to render the measure meaningless.

Huffman, a former Harris County prosecutor and criminal court judge, said that she supports SB 1611 and that it contains "very necessary reforms." She described the changes she is requesting as “tweaks.”  

She and some district attorneys want to include a requirement in the bill that would force defense attorneys to seek court approval before sharing information they obtain in the discovery process with third parties. Defense lawyers could share information with their staff, the defendant, co-counsel in the case as well as expert witnesses. But they would be prohibited from telling anyone outside that “entrusted circle” without permission of the court.

The current bill allows sharing outside that "entrusted circle" only for purposes of trial preparation.

Cliff Herberg, first assistant district attorney in Bexar County, said more court oversight is needed. He was concerned that a defense lawyer, under the guise of trial preparation, might give information such as addresses, medical and mental health history or sexual history about a victim or witness to someone who would then intimidate, hurt or even kill that person to prevent their testimony. 

But at least one victims rights group, the Texas Association Against Sexual Assault, has expressed its support of the current bill without the addition requested by Huffman. 

“TAASA is supportive of your efforts and, in particular, is comfortable with the current bill language regarding the disclosure and copying of information to 3^rd parties,” the association’s deputy director, Torie Camp, wrote in a letter to Ellis.

Bobby Mims, incoming president of the Texas Criminal Defense Lawyers Association, said Huffman’s request would essentially place a statutory gag order on defense lawyers. Under existing law, Mims said, lawyers who are involved in witness intimidation and obstructing justice are already subject to sanctions and potential indictment.

Adding the court approval to the legislation, Mims said, would make the measure “practically worthless.” It would prevent lawyers from sharing information with others about their cases to prepare for trial without approval of a judge.

“It would eviscerate, quite frankly, some of the things we’re looking for,” he said. “It’s too restrictive.”

Ellis said he would consider Huffman’s proposed change to his bill, but he worries that it would require defense lawyers to get court approval for basic transparency measures, and that it could make it more difficult for lawyers to defend their clients.

Huffman, Ellis recognized, has considerable sway in the Senate when it comes to criminal justice matters because of her party affiliation and her courtroom experience. 

SB 1611 is eligible for a vote by the full Senate; it passed through the Senate Criminal Justice Committee with a "no" vote from Huffman. If Huffman’s proposal is too onerous, Ellis said, he would rather see his bill fail than add it on to keep the measure alive. 

And Ellis said Morton and his lawyers echo his sentiments. Morton has expressed his support for the existing bill and has spent much of the legislative session lobbying for new laws that would increase transparency and hold prosecutors accountable for conduct that results in wrongful convictions like his.

“He’s not interested in passing a bill just for the sake of passing a bill if it is not meaningful, if it doesn’t help,” Ellis said.

*Editor's Note: This story has been corrected to state that Huffman was the lone no vote in committee; a previous version incorrectly stated that Sen. Dan Patrick, R-Houston, had voted against SB 1611.