A year and a half after he took off his prison whites for the last time, exoneree Michael Morton stood in the Senate beside his wife, Cynthia, on Thursday as lawmakers in that chamber unanimously approved a bill named in his honor that aims to prevent others from being wrongfully convicted.
"Had this been in place when I was arrested, I probably wouldn't have gone to prison," Morton said shortly before senators passed Senate Bill 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock. It would require prosecutors to turn over evidence to defense lawyers in criminal cases.
"Michael's tragic case brought to the forefront something we already knew in Texas," Ellis said. "Our criminal discovery process in Texas needs serious reform."
Morton was wrongfully convicted in 1987 of murdering his wife and sentenced to life in prison. He was exonerated and released from prison nearly 25 years later after DNA testing linked another man to the crime. Morton and his lawyers argue that his ordeal could have been prevented had the prosecutor in his case not withheld critical evidence that pointed to his innocence.
The chamber erupted in applause following the vote, and Lt. Gov. David Dewhurst handed Morton an inscribed gavel.
The prosecutor in Morton's case, Ken Anderson, is now a Williamson County state district judge. He faces both criminal and civil action for his role in the case. The judge maintains that he did nothing wrong during the Morton prosecution. In emotionally charged testimony during a February court of inquiry hearing to determine whether Anderson should face criminal charges for withholding evidence, Anderson said he didn't know of anything he could have done differently in the case. Tarrant County state district Judge Louis Sturns, who is overseeing the inquiry, is expected to make a decision about whether Anderson will face criminal action as soon as next week. Lawyers for Anderson and attorney pro tem Rusty Hardin, who is representing the state in the case, are due to present briefs to the court on Monday.
Today — as in 1987 when Morton was tried — prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Though many Texas prosecutors have some form of open file policy, those procedures vary from county to county and sometimes even within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, both justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."
Since his release from prison, Morton has been on a mission to see the implementation of laws that help prevent wrongful convictions like his and that hold prosecutors accountable when their decisions result in innocent people losing years of liberty. The Senate has already approved SB 825, by Sen. John Whitmire, D-Houston, which would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. That measure is awaiting a hearing Monday in the House Committee on Judiciary and Civil Jurisprudence.
The discovery bill, though, has seen more controversy in its path through the Capitol. For years, lawmakers have proposed measures that would require reciprocal discovery — both prosecutors and defense lawyers would share evidence with one another. But defense lawyers objected, arguing, among other things, that it is the state, not the defendant, that has the burden of proof and obligation to release evidence. This time around, prosecutors agreed to a bill that only required them to share evidence with the accused.
"They really felt like it was important that, as a profession, we move forward and show people that there needs to be consistency and the defense needs access to this information," Rob Kepple, executive director of the Texas District and County Attorneys Association, said of prosecutors' decision to compromise on the legislation.
In recent days, though, some prosecutors, along with state Sen. Joan Huffman, R-Houston, a former assistant district attorney and criminal court judge, expressed concern over potential risks to the security of victims and witnesses in criminal cases. They wanted defense lawyers to seek court approval before sharing information about their cases with those not directly involved. Disagreement over that measure nearly stymied the bill until a deal was reached Wednesday evening after Morton made rounds to talk with senators and participated in negotiations initiated by Dewhurst.
Morton said the bill "isn't exactly what I wanted," but that it was a good step that would standardize discovery procedures.
Under the bill approved Thursday, prosecutors would be required to turn over evidence both before trial and after it begins. A record would be kept of the exchange of evidence. And prosecutors could seek a protective order if they feel it is necessary to prevent the release of specific information to protect witnesses or victims.
Morton said seeing the bill passed in the Senate felt good but that he recognized there would be more work ahead to get it passed in the House.
Standing in a hallway outside the Senate, he read the inscription on his gavel, which, along with the Senate seal, bears the bill number, the date of its passage and the words “Michael Morton Act.” As he held it, Morton noted a point of irony: “I’m told these are made in the penitentiary.”
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