Prosecutors Prepare to Open Their Files

As 2014 approaches, Texas district and county attorneys are preparing to implement a new law that aims to prevent wrongful convictions by requiring prosecutors to open their files to defense lawyers. 

Sounds simple: Prosecutors have boxes with files that have evidence, and they just have to lift the lids and extract the papers. The reality? Not so much.

The Michael Morton Act, which lawmakers approved this year in the wake of the namesake’s case, requires prosecutors to disclose evidence in their files to defense lawyers in criminal cases. Morton was sentenced to life in prison for his wife’s murder. After he spent nearly a quarter-century in prison, DNA evidence revealed that he was innocent, and an investigation of the case revealed that the prosecutor had not disclosed evidence that could have prevented Morton’s wrongful conviction. Morton, who was freed in 2011, was a fixture at the Capitol this year, lobbying for bills like the Morton Act that increase accountability for prosecutors. Under the act, prosecutors are required to give defense lawyers evidence in their files and to document the release of that information.

In many large counties across the state, prosecutors have long had open-file policies, so the transition to the new law is less challenging. But in smaller counties where sharing such large volumes of information is not routine, establishing the basic nuts and bolts of transferring reams of data while not exposing private information is a big task to tackle.

“Some of the big issues are just how you physically distribute it whether that be by web, paper, electronic or otherwise,” said Robert Kepple, executive director of the Texas District and County Attorneys Association.

As early as September, county attorneys in places like Hood County began posting questions on a discussion forum on the TDCAA website about what kinds of software and redacting tools could be used to share information required under the law while safeguarding items that could jeopardize the safety of witnesses and victims.

Kepple said an upcoming December meeting of TDCAA members would focus on implementation of the Morton Act.

Bobby Mims, a Tyler defense lawyer who is president of the Texas Criminal Defense Lawyers Association, said that after meeting with the prosecutors’ group he is confident they are working to comply with the new law. Some defense lawyers, though, are concerned about prosecutors’ use of redaction. They worry that too much information could be hidden.

“If you read [the law] closely, they’re supposed to turn over everything and shift the burden for redaction to the defense team,” Mims said.

Despite some concerns, Mims said he anticipates that implementation will occur with few glitches, especially after prosecutors this month watched former Williamson County District Attorney and state district Judge Ken Anderson go to jail and lose his law license because of his role in Morton's wrongful conviction.

“I expect there’s going to be a large good-faith effort to comply,” he said.