Texas Enacts Legislation to Reduce Wrongful Convictions

by Matt Clarke

Legal experts in Texas are trying to iron out a wrinkle they say is an unintended consequence arising from a new law governing discovery in criminal cases, but despite the glitch, the statute has been hailed as landmark legislation aimed at stemming a flood of wrongful convictions resulting from the state’s punitive criminal justice system.

Former Texas Governor Rick Perry signed the Michael Morton Act into law on May 16, 2013, which expanded discovery rules and prevented the suppression of evidence by prosecutors, essentially creating an “open file” policy requiring prosecutors to hand over virtually all files to defense attorneys. The law took effect on January 1, 2014.

“This is a major victory for integrity and fairness in our judicial system,” Perry said when signing the bill. “We are known as a law and order state, and as such we’ve never been easy on those convicted of a crime in our state. With that tradition, however comes a very powerful responsibility to make sure our judicial process is transparent and is as open as humanely possible.”

The bill, SB 1611, passed unanimously in both houses of the Texas legislature. It was sponsored by State Senators Rodney Ellis and Robert Duncan, who called its enactment “an important milestone in the journey toward justice in Texas.”

The act was named for Michael Morton, a Williamson County man who spent 25 years in prison after being wrongfully convicted of the 1986 murder of his wife, Christine. Morton was eventually exonerated by DNA evidence, but while seeking DNA tests his attorneys discovered other evidence of his innocence which had been hidden by prosecutor Ken Anderson, including an eyewitness statement by Morton’s 3-year-old son that his father was not home when his mother was murdered and a “monster” had committed the killing.

The suppressed evidence also included statements by multiple neighbors that a man in a green van had repeatedly parked and walked around the neighborhood and into the woods behind the Morton home just before the murder, a report of the fraudulent use of Christine Morton’s credit card at a San Antonio jewelry store and a San Antonio police officer’s statement that he could identify the woman who used the credit card.

A Texas Court of Inquiry found probable cause that Anderson, the prosecutor, who was later an elected state district judge, had violated two criminal laws and committed contempt of court in suppressing the evidence of Morton’s innocence. Anderson was disbarred and served five days in jail in November 2013 on the contempt charge; the statute of limitations blocked prosecuting him on the criminal charges. [See: PLN, Oct. 2015, p.40; Nov. 2014, p.1].

The Texas legislature also passed a related bill extending the statute of limitations for allegations that prosecutors withheld evidence until four years after a defendant is released from prison. The previous statute of limitations ran four years from the date the violation occurred, making it all but impossible for many wrongfully convicted prisoners to hold prosecutors accountable for their misconduct.

While Morton’s case may have generated the publicity that led to the enactment of the new law for handling evidence in criminal cases, his conviction was not unique in Texas, which has a longstanding reputation for being tough on defendants regardless of whether they actually committed the crimes for which they were accused. In 2014, for example, Texas led the nation with 42 exonerations, according to the National Registry of Exonerations maintained by the University of Michigan Law School. There have been 50 exonerations in Texas in 2015 as of mid-November.

An unintended consequence of the Michael Morton Act had to do with telephone calls made by prisoners. In May 2015, the Texas Attorney General was asked to consider a request by the Criminal District Attorney in Tarrant County (Fort Worth) to consider whether a precedent established more than 50 years ago will require prosecutors to review the recordings of phone calls made by prisoners while in jail awaiting trial, to determine whether they contain evidence that must be provided to defense counsel under the new law, even if the state is not aware of any exculpatory information.

In 1963, the U.S. Supreme Court held in Brady v. Maryland that prosecutors are required to disclose any evidence that could prove a defendant’s innocence or be used to reduce their punishment. Under the Michael Morton Act, such disclosures include an offender’s recorded statements in the “possession, custody or control” of the state or its contractors.

District Attorney Sharen Wilson said she thinks the law should not extend to remarks made by prisoners in jail phone calls, all of which are recorded, because authorities typically do not have access to the recordings.

“The state should not be required to access and review voluminous recordings of jailhouse telephone calls of a defendant or witness to determine if they contain information falling within Brady or the Michael Morton Act unless the criminal district attorney or other law enforcement agency ... has accessed the recordings,” Wilson wrote in her request.

“We’re trying to do what the law requires us to do, and that’s the simple purpose behind the request,” explained Larry Moore, chief of the criminal division of the Tarrant County District Attorney’s Office. “I can’t wade through a million phone calls. I don’t have enough hours in the day.”

Moore said if the Attorney General holds that the Michael Morton Act requires prosecutors to review defendants’ phone calls, then his office might seek to remove prosecutors’ access to the recordings by altering the county’s contract with the company that maintains them.

On October 19, 2015, in response to the request by the Tarrant County Criminal District Attorney’s Office, the Texas Attorney General issued an opinion which found that “Brady v. Maryland and its progeny do not impose a general duty upon a prosecutor to listen to all recordings of inmate telephone calls held by the county telecommunications provider to search for exculpatory evidence for a defendant if the prosecutor would not do so otherwise.” However, “To the extent the investigators and other employees of the prosecutor listen to any recorded inmate telephone call, Brady does impose upon the prosecutor a duty to discover whether the investigators and employees find evidence favorable to a defendant in the recordings and, if so, to disclose that evidence to the defendant.”

The Attorney General further wrote that with respect to whether DAs have “possession, custody or control” over prisoners’ phone conversations for the purpose of the Michael Morton Act based on provisions in local jail phone contracts, state courts “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, or control of the recordings.”

An unintended tragedy of Morton’s conviction was the 1988 murder of Debra Masters Baker by the same man who had killed Morton’s wife – the crime for which Morton was wrongfully convicted. The police were so intent on blaming – or framing – Morton that they ignored evidence which could have led them to the actual murderer and prevented Baker’s death. Mark Alan Norwood was convicted and sentenced to life in prison in 2013 for the murder of Christine Morton; his conviction was affirmed by the Texas Court of Criminal Appeals in January 2015.

Sources: Austin American-Statesman, Texas Tribune, www.law.umich.edu, www.texas­lawyer.com, http://mimesislaw.com, www.tdcaa.com, www.exonerationregistry.org

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