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Updated: Senate Committee Approves Michael Morton Act

A panel of Senate lawmakers on Tuesday approved a bill that aims to prevent wrongful convictions by requiring prosecutors to share evidence with defense attorneys in criminal trials.

By Maurice Chammah, The Marshall Project
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Editor's note: This story has been updated to reflect that the Criminal Justice Committee approved the legislation.

A panel of Senate lawmakers on Tuesday approved the "Michael Morton Act," a bill that aims to prevent wrongful convictions by codifying what information prosecutors must share with defense attorneys in criminal trials. 

"Discovery reform is simply vital to the reliability and quality of our justice system,” state Sen. Rodney Ellis, D-Houston, said in a press release. “We must weigh all relevant evidence and ensure we bring all the relevant facts to light to safeguard the innocent, convict only the guilty, and provide justice the people of Texas can have faith in."

Senate Bill 1611 by Ellis and state Sen. Robert Duncan, R-Lubbock, would enact uniform requirements for prosecutors to share information with defense attorneys ahead of a trial. They bill is named in honor of Michael Morton, who spent 25 years in prison for the murder of his wife before DNA led to his 2011 exoneration.

While the original version of the bill would have required prosecutors and defense lawyers to exchange information in their files, a substitute considered by the Senate Criminal Justice Committee on Tuesday narrowed those requirements to only require prosecutors to give to defense attorneys certain materials, including witness statements and offense reports. The new version came after lengthy negotiations between organizations representing prosecutors and defense attorneys and the lobbying team working with Morton.

The measure also clarifies that prosecutors would have an ongoing duty to reveal information, and it would provide sanctions in cases where the discovery requirements are violated.

Although numerous prosecutors from around the state offered their support of the bill, several took issue with one provision regarding the ability of defense attorneys to share the information they receive from prosecutors with third parties.

At the hearing, Ellis said that Morton was responsible for keeping negotiations over the bill afloat between defense attorneys and prosecutors. “We thought this bill was dead,” he said. “Morton kept pushing us not to give up.”

“This was an amazing coming together of prosecutors and defense attorneys to improve the criminal justice system,” Duncan added.

Morton himself did not attend Tuesday's hearing; he is at the San Angelo trial of Mark Norwood, who is accused in the murder of Morton's wife. But Morton's lobbyist Thomas Ratliff read a statement to the committee. “I have previously said I do not want a revolution and I am not out for revenge,” Morton said in the prepared text, referring to the prosecutor, Ken Anderson, who has been accused of withholding crucial information that would have helped his defense attorneys. “My goal has been and continues to be to effectuate changes that promote transparency and accountability."

Under the latest version of the bill, the prosecution would only be able to prevent the defense from sharing certain records, such as witness statements, with third parties if they file a protective order because a witness has been threatened. That was worrisome to some prosecutors and family members of defendants. 

“Nobody can make sure this won’t be released to the media,” said Sharon Couch, who said she is the mother of a criminal defendant. Cliff Herberg, an assistant district attorney from Bexar County, said he supported the bill but hoped lawmakers would change it to protect witnesses who give statements. He said he worried about “widespread dissemination” of what a witness has told law enforcement.

Kathryn Kase, the executive director of the Texas Defender Service, which represents defendants in death penalty cases, said those concerns are already addressed because prosecutors will be able to get a protective order of witness statements from a judge. If the requirement to keep information secret is expanded, she said, investigators for the defense will not be able to go to new witnesses and say, “Witness A says this, what do you say?”

“What has to be balanced here is certainly the concerns that prosecutors and victims have about their information being shared,” she said, “but also the defense duty to investigate the case.”

With the committee's approval, the legislation now heads to the full Senate for debate.

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Courts Criminal justice Michael Morton