Mimesis Law
6 June 2020

The Problem With Texas’ Michael Morton Act

June 12, 2015 (Mimesis Law) — Unintended consequences. Every law has them, no matter what legislators try to do to prevent it. Last year a revised criminal discovery law went into effect in Texas, based in a large part on the erroneous conviction and imprisonment of Michael Morton for a murder that he did not commit. The law, in general, is great. But it also has unintended consequences.

The new law, Article 39.14 of the Texas Code of Criminal Procedure, basically requires the District Attorney to turn over to defense counsel any information favorable to his client. Some counties have been at the forefront of doing this. Tarrant County (Fort Worth) has long had an electronic open file policy. This helps, but the DA still has an affirmative duty to provide exculpatory and favorable information to the defense that may not be in the file.

And here is where the unintended consequences come into play.

Tarrant County, like most Texas counties, allows jail inmates and prisoners to make telephone calls (collect) to loved ones and friends. They also record those conversations, and when necessary, use those recordings as evidence in court. The problem arises with the new law and Brady v. Maryland, a 1963 decision of the United States Supreme Court. You see, the State has a duty to disclose, and the DA is responsible for disclosing, information held by police, sheriff, or other governmental agency, even if the DA’s office does not have a clue about the evidence held by the other agency.

So here, we have a dilemma. Currently the DA’s office in Tarrant County has access to all of the jail phone recordings. So there’s an argument to be made that the DA’s office is responsible for turning over any exculpable or favorable information, even if they are not necessarily aware that they (meaning the State) are in possession of the information.

Let’s take an example. The State has arrested, indicted, and plans on prosecuting Billy Lowlife for the murder of Joe Gangster. He’s good for the offense, since he really did kill Joe. But his buddy, Jimbo Minion, who is also in jail, makes a call to his girlfriend and tells her that Billy did not do the murder and that he, Jimbo, knows who really did it. As with all other jail phone calls, this one is recorded and is in the possession of the State.

But since there is no one monitoring all the calls, no one knows about it until the girlfriend comes forward after the trial. Now we have a problem. While you and I know that the information on the recording is bogus, there is an argument that the State withheld potentially exculpatory information that was in their possession and that it could have potentially affected the verdict. This means that Billy gets a new trial and another shot at acquittal.  And if a witness happens to die or disappear in the interim, then Billy may just walk.

So, in Tarrant County, the DA, Sharen Wilson, has requested an Attorney General’s opinion on the matter. She has indicated that if they are responsible for reviewing each and every tape, they would seek to remove their access to the tapes. She has a good point; the cost of reviewing every conversation would be prohibitive.

However, on the other side are the Michael Mortons. The ones who are imprisoned based on prosecutorial misconduct. The ones who caused Court of Inquiry Judge Louis Sturns to find the former prosecutor, Ken Anderson, in contempt of court and cause the surrender of Anderson’s law license, for having concealed Brady material. The same Brady that might free a guilty defendant, if concealed, could convict an innocent one.

The question is not if the DA should have their access removed, the tapes would still be in the State’s possession and stored by the State’s contractor, and the State would not be lawfully entitled to put its head in the sand about it. After all, they would still be able to go get the information that they want by subpoena, so that wouldn’t alter the responsibility to provide information to the defense, regardless of whether they actually know about it or not.

Maybe the answer is not to record the conversations at all, to allow the prisoners some amount of privacy. I guess that would fall under the realm of unintended consequences.

Main image via Flickr/Andrew Bardwell

5 Comments on this post.

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  • Motorcycle Enthusiast
    12 June 2015 at 1:05 pm - Reply

    Interesting article. And the pendulum of simple justice continues its perpetual sway in search of a more perfect solution. Unfortunately, the matter of achieving justice can be deceptively complex, as noted here, hence, not always as simple as we might prefer despite our best intentions otherwise.

  • Wrongway
    14 June 2015 at 6:54 am - Reply

    Great Article..

    Hmm.. so how to fix a fix.. anything requiring transparency is a good thing (my opinion), & it’s simply because of past misconduct.. so right now, I personally would say no changes..

    but I can see the problems created.. if they had to search for everything & anything that just might almost maybe would help their client.. hell, that could take years (because we all know how efficient the computer age has made our Govt. at quickly turning over any info that might make them look bad).. so now a guy is sitting in jail, convicted of nothing, for months, maybe years..

    Maybe a Brady equivalent to the NSA’s Motto for the defense .. ‘we want it all, & we’ll sort it out later’ kind of approach.. just a thought..
    but there are problems with that too…. …

    anyone else ??

  • Even Cops Deserve A Chance To Defend Themselves From Taint
    23 June 2015 at 9:42 am - Reply

    […] 23, 2015 (Mimesis Law) — A little while ago we talked about the responsibility of the State of Texas to provide the defense with exculpatory […]

  • Dallas ndc
    30 September 2015 at 6:44 pm - Reply

    Was there a ruling by the attorney General? I would be interested in knowing the outcome.

    • Greg Prickett
      30 September 2015 at 6:50 pm - Reply

      According to the AG’s website, it’s still pending.

      Ken may be a mite distracted by his felony indictment though, give him some time…