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Ellis, Duncan File Compromise Criminal Discovery Bill

Two state senators filed a measure on Friday that they hope will bring more transparency to criminal trials and prevent wrongful convictions by requiring prosecutors and defense lawyers to share information.

Michael Morton at the Williamson County Courthouse, Feb 6, 2013.

State Sens. Robert Duncan and Rodney Ellis filed legislation on Friday that they hope will provide a solution to a years-long debate over discovery laws in Texas and help prevent wrongful convictions.  

"In the name of fairness and justice this legislation is a step in the right direction," Duncan, R-Lubbock, said in a statement. "Reasonable discovery reform is necessary to keep our criminal justice system efficient and effective."

Senate Bill 1611 would enact uniform discovery requirements in criminal cases across Texas. It would require prosecutors to give defense lawyers evidence in their files and to include essentially everything except their own notes about strategy. It would require defense lawyers to share evidence as long as it doesn't include their strategy plans or violate the defendant's right against self-incrimination. The measure also spells out that lawyers on both sides would have an ongoing duty as the case continues to reveal information, and it would provide sanctions in cases where the discovery requirements are violated.

Ellis, D-Houston, said the bill would make the justice system fairer and save taxpayers money that is often spent in long, expensive court battles and on compensation to those who have been wrongfully convicted.

"Ensuring all evidence comes to light and that all the relevant facts are weighed will improve the reliability of the justice system," he said. "Texans deserve a system they know will protect the innocent, convict the guilty, and is instilled with the fairness and integrity justice demands." 

Nearly every other state has discovery requirements similar to those outlined in SB 1611, and requiring reciprocal open discovery was a recommendation in the August 2010 report from the Timothy Cole Advisory Panel on Wrongful Convictions. Then-state Rep. Pete Gallego, D-Alpine, filed a similar bill in 2011, which did not pass. Under current law, prosecutors are required only to divulge basic information about the crime to a defendant's lawyer, and they're only forced to do so if a judge orders it.

Efforts to reform discovery laws have gained traction in the wake of the 2011 exoneration of Michael Morton, who spent 25 years in prison after being convicted in 1987 for his wife's murder. DNA evidence revealed that he was innocent and led to the arrest of another man who is awaiting trial for the crime. 

Morton’s lawyers allege that the prosecutor who secured Morton’s wrongful conviction deliberately withheld key evidence that could have prevented the injustice and led to the real killer. A court of inquiry is currently considering whether former prosecutor and current Williamson County state District Judge Ken Anderson should face criminal charges for his role in Morton’s case. The State Bar of Texas has also filed a disciplinary case against Anderson, alleging that he deliberately withheld evidence and made false statements to the court during the trial that led to Morton’s wrongful conviction.

Since his exoneration, Morton has lobbied lawmakers to change laws that could help prevent wrongful convictions like his and hold prosecutors accountable when mistakes are made that lead to years of wrongful imprisonment for innocent Texans.

"For the past year, I have had one message for the Texas Legislature — transparency works," he said in a statement. "This bill is a major step forward in providing that transparency."

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