The proposed Michael Morton Act still has a long way to go before becoming law, but that the bill exists at all — and is awaiting a vote by the Texas Senate — is more than a little surprising.
Written off as a lost cause after opposition from defense lawyers and prosecutors, the bill designed to limit future wrongful convictions was rescued last week in a flurry of compromises after sometimes heated, and often tedious, negotiations that frequently involved Morton or his representatives.
“We thought this bill was dead,” said state Sen. Rodney Ellis, D-Houston. “Michael Morton kept pushing us not to give up.”
One potentially sticky issue — on protecting witnesses from harassment or intimidation — could still torpedo the bill, but Ellis and a second state senator at the center of the effort, Lubbock Republican Robert Duncan, said they were confident that a solution can be negotiated.
Morton, wrongly convicted of killing his wife and imprisoned for almost 25 years, emerged from prison in 2011 vowing to seek criminal justice reforms that would help others avoid his fate in the Williamson County case.
Working with Thomas Ratliff, an established lobbyist working for free, and guided by the lawyers who secured his freedom, Morton has adopted two — and only two — reform bills in the current legislative session. (Not wanting to dilute his impact, Morton has turned down frequent offers to support other legislation, Ratliff said.)
The first, Senate Bill 825, would give exonerated Texans more time to pursue allegations that a prosecutor improperly hid evidence favorable to the defense. The bill, awaiting House action after passing the Senate 31-0, also would require that prosecutors be publicly reprimanded if misconduct is found, removing the option of a private rebuke from the State Bar of Texas.
The legislation that bears Morton’s name, Senate Bill 1611, attempts to make criminal trials more fair by creating a uniform “open file” policy for prosecutors, ensuring that defendants have access to the evidence and information necessary to properly prepare a defense.
Texas’ criminal discovery laws haven’t been changed since their adoption in 1965, but not for lack of trying. Countless bills have been filed and forgotten — defeated by competing interests or, more often, by a lack of consensus that there was a problem in need of solving.
But Morton’s compelling story has revived reform efforts, Ellis and Duncan said, encouraging a host of interested parties to negotiate a compromise that was unveiled at a committee hearing last Tuesday.
Though less sweeping than the version filed 18 days earlier, the compromise bill contained enough positive changes to earn Morton’s support — and his name, Ratliff said.
“He felt strongly that he didn’t want his name on something that wasn’t meaningful,” Ratliff said.
Morton called the legislative process, and the hours of negotiations, “a real eye-opener,” adding that while he wasn’t happy with some of the compromises, “nobody got everything they wanted.”
“It’s a novel and bizarre situation, the fact that somebody like me, not a professional lawyer or lobbyist, could (have an impact). The only expertise I have is having been in prison,” Morton said. “It just amazes me. I know this will fade away. It’s just a matter of time. But for now, it’s just mind-boggling the number of people who give my name weight. It’s a very unusual sort of celebrity.”
Current law gives prosecutors latitude in how they approach pretrial discovery. Some employ a robust open-file policy while others restrict access to information, leading to disparate treatment for defendants and raising questions about unequal access to justice, according to a recent study by two legal advocacy groups, the Texas Defender Service and Texas Appleseed.
Many of the proposed reforms in the Michael Morton Act reflect Morton’s belief that his trial prosecutor withheld evidence that could have helped establish his innocence. The legislation explicitly states that every prosecutor has a duty to disclose documents or information that could raise questions about a defendant’s guilt or lead to a lighter sentence if there is a conviction.
It also would change pretrial discovery laws by:
• Ensuring defendants can view, and electronically copy, all police offense reports and witness statements in prosecution files.
• Allowing prosecutors to ask the trial judge for a protective order to withhold information if its release could compromise an investigation or lead to victim harassment or witness tampering or intimidation.
• Letting defendants ask the trial judge to review redacted information to ensure that it was properly withheld.
• Requiring prosecutors to list the evidence provided to defense lawyers, creating a record for potential appeals or future legal disputes.
• Requiring prosecutors to promptly disclose favorable evidence uncovered during and after trial.
The negotiated bill dropped a provision, vigorously opposed by many defense lawyers, that would have required them to open their files to prosecutors.
Prosecutors negotiated a shorter list of must-disclose items, dropping, for example, expert-witness reports and the criminal histories of potential prosecution witnesses.
Many of the changes were worked out while Morton was in San Angelo for the murder trial of Mark Alan Norwood, who on Wednesday was found guilty of killing Morton’s wife, Christine Morton, in 1986, and who received the same sentence Michael Morton was given in 1987: life in prison.
Ratliff and Patricia Cummings, one of Morton’s lawyers, said they kept him apprised of changes in the legislation and conveyed his wishes to negotiators, who included leaders of the prosecution and defense bars, Court of Criminal Appeals Judge Barbara Hervey and Senate staffers Brandon Dudley and Megan LaVoie. Ellis and Duncan also dove into negotiations, using their involvement in the nitty-gritty details to signal their interest in a compromise, participants said.
When the new bill was unveiled at Tuesday’s committee hearing, Morton believed he had a final product. Several prosecutors, however, voiced concerns that the legislation did not go far enough to protect witnesses from retaliation, producing a late round of negotiations that were unresolved as the week ended.
Morton said Friday that he was confident a deal could be reached on acceptable language but warned that he wasn’t prepared to back a substantially weakened bill.
“If it gets to that point, I will definitely do everything I can to get my name off it. Then I’ll name names” about who sank the deal, he said. “But I think we’re going to get through this.”