By Jordan Smith
“What Would Michael Do?”
It was a week of long-overdue achievements by the Texas Senate. On April 11, the chamber unanimously passed Senate Bill 1611, the “Michael Morton Act,” by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, which mandates broadened open-file discovery in criminal cases to ensure the defense has access to police reports and witness statements – which in some jurisdictions prosecutors have withheld from defendants prior to trial. In order to protect witnesses, the measure would require defense attorneys to redact personal information from documents before sharing it with experts, investigators, or a defendant. The measure also reaffirms the state’s duty to provide so-called Brady material (from the landmark 1963 Brady v. Maryland) – exculpatory, mitigating, or impeachment materials held by the state. Getting the bill together, through committee, and passed on the Senate floor was no small feat: It was nearly dead on arrival in its first form, which would have required reciprocal discovery, with defense lawyers mandated to open their files to the state. That has been a loser of a proposition for years; defense lawyers in part argue that because they have no burden of proof – that rests solely with the state – they have no duty to share anything with prosecutors. After weeks of at times tense negotiations among stakeholders – the Texas District and County Attorneys Association, Texas Criminal Defense Lawyers Association, and Senate staffers (including the indefatigable Brandon Dudley, Ellis’ chief of staff and legal counsel) – the bill finally made it before the Senate Criminal Justice Committee and on to the Senate floor, where Morton was present for the historic vote.
Morton spent nearly a quarter-century behind bars for the 1986 murder of his wife Christine, which DNA testing ultimately proved he did not commit. At his trial, prosecutors withheld from his defense crucial evidence – including key parts of the police investigation that could have demonstrated that someone other than Morton was skulking near the couple’s home prior to Christine’s murder. In March, that person, Mark Alan Norwood, was convicted and sentenced to life for Christine’s murder. “I want to thank Michael Morton for using his life’s tragedy to make a difference to protect others, to make sure they wouldn’t end up in a similar predicament,” Ellis said Thursday from the Senate floor. “There were times when this bill fell apart, when I, quite frankly, was ready to walk away and work on something else, but I thought about [Sen. John] Whitmire’s comments when he said, ‘What would Michael do?'”
On April 6, the Whitmire-led Senate Criminal Justice Committee passed another key reform measure: SB 1292, also by Ellis – with Attorney General Greg Abbott’s blessing – that would require pretrial DNA testing in death penalty cases. The measure would ensure on the front end that the state is prosecuting the right person – taking death off the table in cases where the evidence simply isn’t there – and decrease the amount of post-conviction DNA testing that can take years, and lots of money, to litigate. – Jordan Smith