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Written statement of Cynthia Hujar Orr about the Michael Morton Act. The information was presented June 11, 2014, at the Public Defender Training Conference at the Henry B. Gonzales Convention Center in San Antonio.
Deputy Curtis sat across from you in your office, he swore he had been asked to conduct a sting operation to rope in drug distributors coming from Georgia to purchase marijuana. And yet the charges were still pending. Each time you tell the prosecutor something to substantiate your claim, he finds a way to work around or discredit it. Then your phone rings, “Counsel, this is Charlie and I have something that I hate to tell you.” Your heart sinks, expecting to hear more bad news. He continues, “I have the Sheriff sitting here in my office and he says that he asked your client to conduct a drug sting.” The Sheriff had been unwilling to speak to you, so you are surprised. Charlie invites you over to interview him with you and you reach a favorable resolution of the case.
This is not a fantasy. It has happened in real life. And it produced a simple test for prosecutors to employ when trying to determine if something is Brady,2 evidence.
Since this experience, I have told prosecutors that AUSA Charlie Strauss’s “gut check” test is the best way for them to tell when they have evidence that they must disclose. If they would hate to tell me about it, it is Brady evidence. 3
Prosecutors and defense lawyers alike often mistake this constitutional duty to disclose favorable evidence for the appellate standard, and imagine that what is required to be produced is exculpatory evidence that is material, in the sense that it is likely to cause a different result in a case. Some prosecutors go so far as to believe that Brady evidence must be exonerating. But all we have to do to remind them what Brady evidence actually is, is to simply harken back to the Brady case itself.
The evidence in Brady was merely evidence that, while Brady had participated in the murder, he was not the actual killer. This evidence is clearly only favorable evidence that mitigates sentencing. It certainly does not exonerate and it does not ensure a different result in the case, but only perhaps a lesser sentence. So, always include this reminder in Brady motions and discussions.
Also, file Brady motions in every case. Here again, we get off track because the defense need not file such motions, given the prosecutor’s duty to seek out and produce Brady evidence without request under Agurs 4and Bagley.5 But a written request will put the prosecutor on notice about what he or she must seek from the prosecution team and will also identify what other agencies and entities you believe are part of that team. Whether or not the prosecutor agrees with your assessment, he or she will be put on notice that you expect them to inquire of these other entities.
Prosecutors typically have never defended cases and view matters that you see as crucial to the defense of your case as matters that are not relevant but that merely have, what they call, jury appeal. This often means that when arguing the importance of the disclosure of favorable evidence, the defense may be asked to tip its hand regarding a defense strategy. Since we do not obtain much in discovery, compared to civil litigants, we may not be certain that we are going to employ that strategy until the case plays out at trial.
The prosecution burden of proof is a high one and it should not be eased by requiring a roadmap produced by the defense through the pretrial disclosure of defense strategy, nor by requiring the release of privileged information, just so the defense can obtain Brady evidence.6 Nor should the definition of Brady require prosecutors to exercise discretion regarding the merits or materiality of the evidence that they are being asked to disclose. If they would hate to tell us about it, it should be disclosed. Simply put, evidence favorable to the defendant should be produced. And it should be produced pretrial, when counsel can make meaningful use of it.
To accomplish this, you need only to refer back to the early Brady cases, including Brady v. Maryland, 373 U.S. 83 (1963)[evidence that Boblit, not Brady, strangled Brooks was withheld denying Brady of due process, sentence overturned regardless of good or bad faith of prosecutor].
Michael Morton was wrongfully imprisoned for 25 years for the murder of his wife, Christine. The prosecution withheld Brady evidence that could have exonerated him. Items such as: DNA on a bandana found at the scene, a three (3) year-old witness’ statement (that of his son), the fact that a credit card was used after her murder and a check cashed, as well, that a stolen gun was sold, after Michael was in prison, and that there was a man with a van and carrying a club had been casing the Morton’s home.
On January 1, 2014 Senate Bill 1611 (SB 1611) titled the “Michael Morton Act,” changed the way Texas lawyers may utilize discovery in criminal cases. In Texas, a person who is charged with a crime and desires discovery must ask for it. [Emphasis supplied.] The state must permit the defendant access to the discovery or produce the requested information “as soon as practicable after receiving a timely request7 from the defendant.” Tex. R. Crim. Proc. 39.14.
Article 39.14 contains rules for documenting and recording discovery. Article 39.14(a) requires that the state produce evidence "material to any matter involved in the action and that are in possession, custom, or control of the state or any per on under contract with the state." However, there is a continuity issue among counties regarding the procedure of providing documents to the defense. For example, in Harris County, Texas defense counsel may draft a document describing what they would like to receive from the state. The state can then provide copies of police reports, log entries from on the scene police reports, and witness statements. The last page of the state’s file offers a fill-in-the-blank form for defense counsel to request what they want and to note the date the state discloses that information to the defense. The defense also signs off on this document, initialing to affirm they have received the documents in their conference with the state. As a matter of strategy, however, there may be some things that exist that counsel may want to pursue on their own volition in order to maintain the confidentiality of their work product or theory for trial. Harris County also has a pre-printed waiver form for a defendant to waive discovery. However, such a waiver cannot be knowing or intelligent and in the vast majority of circumstances may very well be ineffective to recommend. See Appendix F.
The plain language of 39.14(a) imposes no requirements on the form of the discovery to be produced. Furthermore, the statute does not specify the meaning of “as soon as practicable” given the dynamic nature of discovery. This requirement is, however, designed to eliminate the game playing of withholding information, information that may prove to be imperative to a client’s rights to a fair trial and a lawyer’s obligation to provide adequate representation.
Specifically, 39.14 requires that the state document the discovery supplied to the defense, and continue to offer discovery “promptly” even after initial discovery. Sections 39.14(i), (j), and (k) provide:
(i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.
(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.
(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court. [Emphasis added.]
The prompt disclosure provision regards exculpatory, impeaching, or mitigating evidence. Article 39.14(e) states that a representative of the defendant cannot turnover information to third parties.8 This subsection presupposes that investigators, experts, consulting legal counsel or other agents of the attorney are not such third parties. Therefore, once we have established an agency relationship with experts hired on the behalf of the defense, they are no longer considered third parties under 39.14.
Additionally, 39.14 cites the Texas Rules of Disciplinary Conduct. The Disciplinary Rules expressly provide in Rule 1.03 that counsel must fully communicate with the client to allow him or her to make fully informed decisions. So subsection (g) prevents counsel from essentially “outing” a victim or witness, except when necessary to make a good faith complaint against the victim or witness.
Some have suggested that our mobility to produce clients’ copies of discovery under subsection (f), flies in the face of the McCann case.
Perhaps, In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) offers two available solutions. One, this case may establish good cause under (e)(1) to get a court order to disclose it to our clients. Or, two we can arrange an agreement with our clients so that subsequent counsel can obtain the information under McCann, consistent with what 39.14(f) seems to also require. At any rate, subsection (e) and (f) will often involve privileged information, which we are not obligated to disclose to the state.9 Under these circumstances, one should obtain the necessary order for disclosure in camera and ex parte. See Tex. Dept. of Corr. v. Dalehite, 623 S.W.2d 420 (1981).
Prior to Article 39.14, Texas recognized the duty to produce orders under Brady despite limited criminal discovery. Also, prior to Article 39.14’s relevance based discovery scheme10 which gave large discretion to prosecutors to determine what did, or did not, constitute Brady. Brady v. Maryland, 373 U.S. 83 (1963). The goal of the new specifications laid out in Article 39.14 is to eliminate hindsight arguments over what was, or should have been, produced by the opposing party in a proceeding. Article 39.14 is also designed to protect prosecutors from deficiencies, and to protect fading memories of essential reciprocal communications.
The Michael Morton Act does much to remedy the misunderstandings outlined above by codifying the requirement that the prosecution must provide favorable evidence wherever it resides. This is whether it is contained in the prior statement of a witness or even in work product. And the Act clears away the anachronistic provision, in Rule 613 of the Texas Rules of Evidence11, that such statements need only be disclosed if the witness testifies and only after their testimony. In Michael Morton’s case, one of the ways the prosecution was able to hide the favorable eyewitness account that someone else had killed Christine Morton, was its decision to not call its case agent to the stand, we believe,12 for the very purpose of avoiding its obligation to turn over Gaskin 13 material. It also failed to provide to the Court, Judge Lott, upon his direct questioning, this favorable evidence that someone who was not “Daddy” but was a monster with a big mustache had killed Christine.
In Brady, the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963)[emphasis added]. “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Agurs, 427 U. S., at 108 (‘[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure’). This is as it should be.” Kyles v. Whitley, 514 U.S. 419, 439 (1995).
In Agurs, the prosecutor failed to tender to defense the criminal record of the murder victim. “First, in advance of trial, and perhaps during the course of a trial as well, the prosecutor must decide what, if anything, he should voluntarily submit to defense counsel. …[T]here are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request.” Agurs, 427 U.S. at 107, 110-111. [Emphasis supplied]. Brady evidence must be disclosed in advance of trial where it must be in order to be useful to the defense. If, as in Agurs, it is a matter that requires additional investigation to be useful, disclosure must come pretrial. Such disclosure is also required without request:
As the District Court recognized in this case, there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request. For though the attorney for the sovereign must prosecute the accused with earnestness and vigor, he must always be faithful to his client's overriding interest that "justice shall be done.”
Agurs, 427 U.S. at 110–11 (quoting Berger v. United States, 395 U.S. 78, 88 (1935)).
Agurs highlights the requirement that the prosecutor produce favorable evidence without request, but it also highlights the reason that one should always file a Brady motion requesting such evidence. Many prosecutors read Agurs as requiring disclosure without a request only when the evidence, in their estimation, will impact the elementary fairness of the proceeding. Often, in their assessment, such evidence is only exonerating evidence. But in my request, I remind them about the fact that the evidence that the Supreme Court held met this test was the mere criminal record of the victim.
Bagley was indicted for narcotics and firearms offenses. Prior to trial, defense counsel filed a motion for discovery requesting whether any witnesses for the government had been compensated.14The Court stated that “the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” Bagley, 473 U.S. at 675. [Emphasis supplied]. Further, the Court held that materiality is an appellate standard. "A finding of materiality of the evidence is required under Brady. . . . A new trial is required if 'the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury…’” Bagley, 473 U.S. at 677 (internal citations omitted).
Therefore, the State must prove falsehood had no effect on outcome beyond a reasonable doubt “Although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to harmless error review, it may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.” Bagley at 679. A "reasonable probability" of a different result is accordingly shown when the Government's evidentiary suppression "undermines confidence in the outcome of the trial." Id. at 678.
It is important to note how the Court of Criminal Appeals has formulated the materiality test for Brady evidence. In Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011), the Court instructed,
Under Brady, nondisclosure of favorable evidence violates due process only if it is “material” to guilt or punishment. “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Agurs, 427 U.S. at 109–10, 96 S.Ct. 2392. Hence, the defendant must show that, “in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure.” Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002); see Bagley, 473 U.S. at 682, 105 S.Ct. 3375.
Pena, 353 S.W.3d at 812 [emphasis added].
So, materiality is shown when the undisclosed evidence shakes the confidence in the verdict. See Kyles, 514 U.S. at 434. In, Texas, although articulated differently, the test is the same. It is worded as a showing that there is a reasonable likelihood that the undisclosed evidence would have affected the verdict. See Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002)[citing Bagley] (defendant must show that “the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different”). Evidence that shakes one’s confidence in the verdict is the same as evidence that presents the prospect that it is reasonably likely that the evidence would have affected the verdict. This is not a sufficiency of the evidence test. The Brady evidence is viewed cumulatively and evaluated from the standpoint of a mere reasonable likelihood that it would have affected the verdict.
When dealing with discovery in a criminal case, it is always helpful to harken back to the cases leading to Brady and to employ Brady’s progeny to help describe what need be produced.
When we found ourselves in the odd role of assisting the prosecutor pro-tem in the Court of Inquiry regarding Judge Anderson, we make a Brady disclosure. In the Michael Morton case, the defense sent a letter to Judge Sid Harle, who heard the writ proceedings, and explained the following concerning a missing check:
“This letter is to update the Court on some information we just obtained regarding one factual matter raised in our Report to the Court dated December 19, 2012.
Last week, in the course of preparing for her presentation to the Norwood grand jury, Ms. Tanner reviewed this deposit slip with Mr. Morton. While the other checks deposited on that date are not available, Mr. Morton confirmed that the handwriting on the deposit slip was his own. Thus, the newly-produced bank records make more likely the first scenario hypothesized in our Report: that Mr. Morton deposited the check himself after Christine’s death, apparently along with other checks made out to him and/or his wife.
We submit that this new information in no way alters the conclusion, based on the overwhelming evidence in the entire record, that there is probable cause to believe that Judge Anderson violated Brady and Judge Lott’s orders by failing to disclose these and other documents prior to and after Mr. Morton’s trial. But for obvious reasons, we wanted to ensure that any new information that could in any way be deemed relevant to Mr. Anderson’s defense to these allegations was disclosed to his counsel (whom we are copying below) and to this Court in a timely fashion.” Letter to Judge Sid Harle dated February 7, 2012.
Kyles was indicted for murder. Prior to trial, in response to defense counsel motion, the State claimed that there was “no exculpatory evidence of any nature” despite being aware of multiple items. The Court held, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. The Court also “stressed” that “suppressed evidence [is to be] considered collectively, not item by item.” Id. at 436 [emphasis added].
Further, once materiality is established on appeal, there is no harm analysis. As the Court stated, “once there has been Bagley error as claimed in this case, it cannot subsequently be found harmless under Brecht.” Id.
Michael Morton was exonerated on October 4, 2011. Thereafter, a Court of Inquiry was held and it found that Judge Ken Anderson, the prosecutor in the Morton case, intentionally hid evidence to secure Morton’s 1987 conviction for murder.
The Court of Inquiry also found: “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious decision to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.”
Every time I raise a Brady claim, the prosecutor feigns great personal offense as if I had questioned their personal integrity. But personal integrity of the prosecutor, even his or her knowledge, does not come into play in this context. The principle of Mooney v. Holohan, 294 U.S. 103 (1935), is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair. So, regardless of what the prosecutor knew or did, the non-disclosure of favorable evidence is reversible error.
In a writ proceeding 15 a former District Attorney testified that she did not know that the Brady evidence had not been produced by the Assistant District Attorney trying the case. But, she testified, this still is a Brady violation. Further, even when an Assistant District Attorney testifies (72 times) that she “does not recall” whether she produced the evidence, it is still a Brady violation.
One need not plead or prove bad faith by the prosecution. Offense is taken by prosecutors because this sort of error is called “prosecutorial misconduct” and, thus, we must use this terminology to properly plead the error. So spell this reality out in your motions and as you argue a claim. I don’t need to nail anyone in particular with proof of ill will, I need only show that the prosecutor or a member of the prosecution team had the evidence and that they failed to disclose it to the defense.
Listen closely to the witnesses when they are testifying because they could be testilying and it could alert you that undisclosed Brady exists. If their expert is “100% certain” of his conclusion, there may be something more for you to discover. And, if the expert uses field jargon that is undefined, such as “line of sight” to describe the ability of a cell phone tower to contact another tower. Also, if the expert says, “it’s an industry term.” These examples are just a few of many prosecution witnesses testilying that could lead you to ask for Brady material.
I always add a rule of thumb. Be a discerning reader. It did not take rocket science or an advanced degree in genetics for me to determine in the capital murder case of Miguel Martinez, that the lab report was dated weeks before the lab received the evidence, or in the Hannah Overton case, that photographed samples had been switched or that one of these samples was the first unadulterating evidence from the deceased child, not useless medical waste from later in his treatment. I read every line of every boring report and often find solid gold.
The ABA CJS has formed a task force to reform federal criminal discovery in this and many other respects. Below you will see that the ABA and NACDL has already taken steps to reform Brady problems in all jurisdictions. 16
RESOLVED, That the American Bar Association urges federal, state, territorial and tribal governments to adopt disclosure rules requiring the prosecution to seek from its agents and to timely disclose to the defense before the commencement of trial all information known to the prosecution that tends to negate the guilt of the accuse, mitigate the offense charged or sentence, or impeach the prosecution’s witnesses or evidence,except when relieved of this responsibility by a protective order.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and tribal governments to adopt disclosure rules requiring the prosecution to make timely disclosure to the defense before a plea of guilty of all information, which may include impeachment evidence, known to the prosecution that tends to negate the guilt of the accused or mitigate the offense charged or sentence, except when relieved of this responsibility by a protective order.
Even with the Michael Morton Act in place, it is important to seek and make a record regarding the need for disclosure of Brady evidence without an order for disclosure and record made of what the state claimed it had or Michal Morton would not be free today. Always make a record of what you have requested, obtain an order reflecting what the court deems should be disclosed, and get the prosecution on record on what is has sought disclosed.
1. Presentation and paper posted on the website www.ggandh.com.Please visit our website for other papers and presentations on various topics.
3. In a discussion at dinner with colleagues who prosecute, I learned that the fact that a key witness is dead, is not considered Brady evidence to them. Unless I ask, they feel no obligation to tell me, even if my client is about to enter a guilty plea. In addition, I have learned that local prosecutors also believe that the fact that an indictment is untimely or that there is some other fatal flaw in the charging process is also not Brady evidence. As a consequence, I always ask.
8. If we were to read this the way that some have, it would lead to absurd results. For example, video recording of the SFSTs in a DWI stop and arrest, would require us to obscure the license plate of any vehicles on the scene before producing a copy of the video to our consulting expert.
10. See Bill Analysis at Appendix A, recognizing both the fact that the Morton Act establishes a relevance based discovery scheme and the defendant’s strong constitutional right to present a full defense. See also Chambers v. Mississippi, 410 U.S. 284 (1973) and Washington v. Texas, 388 U.S. 14 (1967)[right to a full representation/trial](fundamental right to ensure innocent persons are not convicted).
13. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1961)[State must provide prior statement of witness upon which their testimony is based after their testimony or provide it for the appellate record if it is not produced].
14. Also, impeachment evidence falls within the scope of Brady. “In the present case, the prosecutor failed to disclose evidence that the defense might have used to impeach the government’s witnesses by showing bias or interest. Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.” Bagley, at 675-676. [Emphasis supplied]. The evidence turned out to be that the government’s witnesses had been paid $300.
16. See below in Appendix A, the ABA Brady Checklist, request for codification of Brady, Appendix B,and requirement that Court enter Brady orders and conduct on record hearings to determine whether favorable evidence has been disclosed, Appendix C. The ABA has created checklists to guide judges and attorneys in order to ensure that full Brady disclosures have been made. See also the model NACDL legislation for discovery reform being proposed to Congress, citing the Michael Morton Act, Appendix D.
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