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House Panel Hears Testimony on "Michael Morton Act"

Just more than a week after the arrest of former prosecutor Ken Anderson, a committee of House lawmakers took up the "Michael Morton Act," which would require prosecutors to turn over evidence to defense lawyers in criminal cases.

Judge Ken Anderson (l) and Michael Morton (r)

Just more than a week after the arrest of Ken Anderson, the former prosecutor who oversaw the wrongful conviction of Michael Morton in 1987, a House committee on Monday considered legislation that would require prosecutors to turn over evidence to defense lawyers in criminal cases.

Senate Bill 1611, dubbed the "Michael Morton Act" by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, was approved unanimously April 11 by the Senate. Currently, prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Among the charges Anderson faces is failing to comply with a judge's order regarding turning over evidence.

Morton told members of the House Judiciary and Civil Jurisprudence Committee on Monday that the bill would prevent wrongful convictions like the one he suffered.

"If it could happen to me, it could happen to you," said Morton, who spent nearly 25 years behind bars. The measure was left pending in the committee.

Morton, who was convicted of his wife’s 1986 murder, was exonerated in 2011 after DNA evidence linked another man to her death. Mark Alan Norwood was convicted last month of the murder and sentenced to life in prison. Morton's lawyers allege that Anderson withheld evidence that could have led to his acquittal and perhaps pointed police to the real killer two decades ago. Anderson, now a Williamson County state district judge, strenuously denies wrongdoing in the case. He was charged last week at the conclusion of a rare court of inquiry with tampering with government records (a misdemeanor), tampering with physical evidence (a felony) and failing to comply with a judge's order to turn over such evidence, for which he could be held in “contempt of court.” He was arrested and then released on bond.

"I'm not asking us to revolutionize the system, not at all, but to ensure Texans' right to discovery," Morton, 58, said on Monday.

"We want to improve fairness and consistency,” said state Rep. Senfronia Thompson, D-Houston, who is sponsoring the bill in the House. The measure, she said, is the first major reform to the Texas discovery system since 1965.

Many Texas prosecutors now have some form of open file policy, but the procedures vary by county and sometimes 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."

Under SB 1611, 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. 

Legislators have proposed opening the discovery process in previous legislative sessions, but the high-profile Morton case and his promotion of reform to prevent wrongful convictions gave the effort momentum this year.

Still, the bill drew concerns in the Senate, where Sen. Joan Huffman, R-Houston, a former criminal judge and Harris County prosecutor, worried the bill would endanger witnesses and victims by allowing the release of their information. Changes to the bill made in the Senate allow prosecutors to protect information about witnesses or victims.

Prosecutor Staley Heatly, district attorney in the 46th judicial district, told the House committee that he supported the measure with the changes made in the Senate to ensure victim and witness protection.

"It’s a strong bill, it’s a fair bill," Heatly said. "It can't right any wrongs that happened to Michael Morton, but it can make sure we have a fair criminal justice system going forward."

But not all district attorneys support the measure, and some prosecutors at the hearing said the bill would create unnecessary hurdles that would slow down the justice system.

Terry Breen, an assistant prosecutor in the 24th judicial district, said the measure was unneeded because withholding evidence like the information that was withheld in the Morton case is illegal under the so-called Brady ruling from the U.S. Supreme Court. That 1963 case requires prosecutors to give defendants evidence that supports their claims of innocence.

"It was against the law even then, and passing this bill won't make it any more against the law,” Breen said. "This is not a problem. This is something that was kind of manufactured. And we have a good system as it is.”

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