Morton Act, Prosecutor Accountability Bill Head to Governor

Updated, May 14, 2013. 1:05 p.m.: 

After final approval in the House on Tuesday, the Michael Morton Act, which requires prosecutors to open their files to defense lawyers, and Senate Bill 825, which extends the statute of limitations for discipline against state lawyers who suppress evidence, are headed to Gov. Rick Perry for his signature.

"We aren’t going to let the prosecutor off the hook for mistakes and errors they could have prevented,” said state Rep. Senfronia Thompson, D-Houston, the House sponsor of both bills.

Original story, May 13, 2013: 

On the 50th anniversary of the landmark U.S. Supreme Court ruling in Brady v. Maryland, in which the justices ruled that prosecutors are obligated to provide defendants with exculpatory evidence “material either to guilt or to punishment,” the Texas House tentatively approved two bills meant to prevent wrongful convictions.

State Rep. Senfronia Thompson, D-Houston, said the measures, which she sponsored in the House, were designed "to improve the reliability of criminal convictions."

Both measures come in response to the high-profile exoneration of Michael Morton and the ongoing investigation and trials of the former prosecutor who oversaw his wrongful conviction, state District Judge Ken Anderson of Williamson County. Morton was convicted in 1987 of murdering his wife in Austin. He was exonerated and released from prison in 2011 after DNA testing linked another man to the crime. Morton's lawyers say that Anderson violated Brady rules by withholding crucial evidence that could have pointed to the real killer and prevented the innocent Morton from spending 25 years in prison. Anderson has denied wrongdoing.

"This is a huge first step," Morton said in an interview outside the House gallery. "It will prevent all sorts of abuse."

Morton and his wife, Cynthia, looked on as legislators unanimously approved the measures with little discussion. Lawmakers gave him a standing ovation when Thompson introduced him to the chamber. Since his release, Morton has lobbied lawmakers to enact reforms that would prevent his tragedy from befalling others.

In the five decades since the high court issued its Brady ruling, most states have approved laws that require both prosecutors and defense lawyers to exchange evidence. Texas state law, however, does not require prosecutors to provide evidence unless ordered by a court do so.

Under Senate Bill 1611, by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, prosecutors would be required to turn over evidence both before trial and after it begins. Senate Bill 825, by state Sen. John Whitmire, D-Houston, would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins when such offenses occur. Whitmire's bill would start the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. 

“This is an incredible day for justice in Texas," Ellis said in a press release. “We must weigh all relevant evidence and ensure we bring all the relevant facts to light to safeguard the innocent, convict only the guilty, and provide justice the people of Texas can have faith in.”

Legislators have proposed opening the discovery process in previous legislative sessions, but the Morton case and his efforts to promote reforms that would prevent wrongful convictions gave the effort momentum this year. SB 1611 aims to clear up legal gray areas that remain after the Brady ruling. Some prosecutors have interpreted the rule to require only the release of evidence that could change the outcome of a criminal trial. SB 1611 requires prosecutors to turn over all evidence, regardless of whether it could impact the outcome of the case.

Many Texas prosecutors currently have some form of open file policy, but the procedures vary by county and sometimes within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, two justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."

“I have long been an advocate for an efficient, effective and uniform court system across Texas. This legislation is a giant step forward in reaching that goal," Duncan said in a press release.

SB 1611 drew concerns from some prosecutors who worried it would endanger witnesses and victims by allowing the release of their information. Changes to the bill made in the Senate allow prosecutors to protect information about witnesses or victims.

After a rare court of inquiry hearing in February, a judge heard evidence about Anderson's role in Morton's wrongful conviction, and the former prosecutor now faces criminal charges. In emotional and indignant testimony during the court of inquiry, Anderson argued that he did nothing wrong and that he would have told Morton's lawyers about the evidence that pointed to a third-party as the killer. But he said he was not required under Brady to turn it over. 

The State Bar of Texas has also filed a disciplinary case against Anderson, alleging that he deliberately withheld evidence and made false statements to the court during the trial that led to Morton’s wrongful conviction.

In both the criminal case and the civil action by the State Bar, Anderson contends that the statute of limitations for any such offenses has long expired. 

Whitmire's bill would ensure that in cases where prosecutors intentionally withhold information, they could face State Bar action after a wrongly convicted individual is released from prison. His measure would also mandates public sanctions — instead of a private reprimand — for a prosecutor who is found to have willfully withheld exculpatory evidence.