Discovery in Texas—83rd Texas Legislature Style

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Wednesday, November 20th, 2013
Discovery in Texas—83rd Texas Legislature Style

During the 83rd Texas legislative session, criminal justice issues were dominated by Michael Morton, a man who spent 25 years in a Texas prison for not killing his wife. Exoneration finally came to Mr. Morton, an extremely decent and forgiving man who became known to every legislative office as simply “Michael.” In his biennial address to the Legislature, Texas Supreme Court Justice Wallace B. Jefferson called on lawmakers to establish a special commission to investigate wrongful convictions, suggesting that public faith in the legal system is undermined when “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free.” While the bill to establish an innocence commission ultimately failed (although the bill passed the House), the Morton case generated momentum on all sides to legislatively address systemic issues that led to Morton’s wrongful conviction and incarceration. In response to his case, which resulted in part from the withholding of favorable evidence by the prosecution, the “Michael Morton Act” (Senate Bill 1611) was signed into law by Governor Perry. This new statute, which substantially reforms criminal discovery in Texas, becomes effective January 1, 2014.

Before beginning a discussion of the statute, several people need special thanks and a little bit of history needs to be shared. Senators Rodney Ellis of Houston and Robert Duncan of Lubbock were the Senate authors of SB 1611, and Representative Senfronia Thompson of Houston was the House sponsor of this measure. All three of these legislators spent endless hours working on this bill during the spring of 2013. Two Senate staffers, namely Brandon Dudley from Senator Ellis’ office and Megan LaVoie from Senator Duncan’s office, went beyond the call of duty in “managing” this bill from just an idea into a statute. Clearly, Michael Morton and his lawyer, Patricia Cummings, along with Thomas Ratliff, were regulars in the Capitol, and their efforts were immeasurable. David Gonzalez and Kristin Etter, of Austin’s Sumpter-Gonzalez, attended numerous discovery meetings on behalf of TCDLA. Finally, many TCDLA members volunteered their time on this issue, both in and out of the pink granite building in downtown Austin, but three of them need special recognition. Bobby Mims, now the President of TCDLA, became very involved in this bill, and his advice and counsel were “spot on.” Mark Daniel, former TCDLA president and now the TCDLA Legislative Chair, fielded numerous emails and phone calls about SB 1611 and also offered sage advice. Finally, a special thanks to TCDLA member Troy McKinney, who volunteered his time, experience, and expertise on the finer points of SB 1611.

Discovery bills have been filed every session of the legislature since the 1990s. As SB 1611 is the first legislative change of the discovery statute in 40 years, these bills were not enacted as law. Even so, these “unsuccessful” discovery bills did have the effect of getting most counties in Texas moving to some degree of open file discovery. Many of these prior bills were “reciprocal” discovery bills; in fact, the original version of SB 1611 was a reciprocal discovery bill. After considerable discussion, the “reciprocal” elements of SB 1611 were removed before the bill went to the Senate Criminal Justice committee for hearing.

SB 1611 is a relatively short bill that can be condensed to two basic parts. First, the statute addresses what information is obtainable and the manner in which it will be requested or obtained. Second, once defense counsel has the discovery, the remainder of the bill addresses certain privacy concerns regarding the disclosed information. More informally, part one says you get the discovery and part two relates some limitations of what you can do with the discovery documents. The first part of the bill will be addressed initially.

Section 1 of SB 1611 names the Act “The Michael Morton Act.”

Section 2 of the bill contains all of the substantive changes to Article 39.14 of the Code of Criminal Procedure. Subsection (a) of this section now reads as follows:

Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statement of the defendant or a witness, including witness statements of law enforcement officers but not including, the work product of counsel for the state in the case and their investigators and their notes or reports, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

The first comment regarding new section (a) is that the discovery practice is request driven—i.e., the defense is required to make a request for the information. “As soon as practicable,” the State shall produce and permit the inspection and electronic duplication, copying and photocopying of the following as such is automatically provided:

  1.   Any offense reports
  2.   Designated documents or papers
  3.   Written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers
  4.   Any designated books, accounts, letters, photographs, or ob­jects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action

For clarity, the State may provide electronic duplicates of any documents or information. Also, the statute exempts work product from the State or investigators from being discovered.

PRACTICE TIP: Since the “rights granted to the de­fen­dant under this article do not extend to written communications between the state and an agent, rep­re­sen­tative or employee of the state,” it is suggested the defense must still file a Brady/Giglio/Bagley motion in every case.

New Section (a) tracks current law in referencing Section 264.408 of the Texas Family Code and Article 39.15 of the Code of Criminal Procedure. The referenced family law section relates to child advocacy videos and the CCP section references child pornography. In summary, the allowable discovery in these instances would be making the Child advocacy video available to defense counsel or making the child pornography reasonably available to defense counsel.

Laboratories and contractors with the State are now covered under the discovery statute. The State can no longer claim private labs or agencies are not under “their care, custody or control.” The new discovery statute does not authorize the removal of documents, items, or information from the possession of the state and any inspection shall be in the presence of a representative of the state.

PRACTICE TIP: Because of the above limitation, the defense should still file a motion to view materials with the defense expert in private.

Section (c) reads as follows:

If only a portion of the applicable document, item or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.

This section addresses the situation where only a portion of some item of discovery falls under the automatically provided section in (a). If this situation occurs, the State is required to inform the defense that a portion of the item has been withheld. At that point, the Court shall have a hearing to determine whether or not the withholding or redaction is allowed under law.

PRACTICE TIP: In the event the defense is made aware of a redaction or a withholding of discoverable items, a hearing should be requested per Section (b) as this would appear to be the first step in preventing and/or proving a Brady v. Maryland violation.

In keeping with the first basic idea of SB 1611, namely what is to be provided to the defense, we need to skip over to Sections (h), (i), (j) and (k). Section (h) reads as follows:

Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment of the offense charged.

Most practitioners recognize this new section of statutory law as a restatement of the fundamental holding in Brady v. Maryland. There was considerable debate concerning the inclusion of this type of language in the Texas statutes, as such is one of the fundamental case-law decisions in American criminal jurisprudence. Without going into further detail, the consensus of opinion was to place into statute the best Brady v. Maryland definition available. While section (h) is familiar territory and simple, the following information shall automatically be disclosed:

Any exculpatory/impeachment/mitigating document, item or information that tends to negate guilt of the defendant or would tend to reduce the punishment for the offense charged. Because of the mandatory nature of section (h) regarding exculpatory or impeachment or miti­gat­ing information, it is suggested (h) controls over any exception to providing discovery listed in earlier sections (for example, work product and agent communications if such are exculpatory, impeaching or mitigating).

Section (i) reads as follows:

The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.

Section (i) is being referred to as the discovery log section. One of the problems cited by appellate lawyers and others was the inability to pinpoint the specific items of discovery that may or may not have been provided to the defense. This section addresses, with specificity, the discovery that was provided to the defense. The clear intention of the discovery log section is to require a clear listing, at the trial level, of the discovery provided in every case.

Section (j) reads as follows:

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.

While all sections of this bill will be discussed and debated for years to come, this particular section has already commanded a good amount of attention. It has been suggested this section will cause courts to either slow down or shut down due to the simple requirements intended to show compliance with the statute. It should be pointed out that the requirements of (j) can be met by a written document or by a statement on the record. It is believed most courts will simply add another document to their standard “plea package” for pleas and for contested cases. This requirement can easily be met by the Court having the matter recited on the record.

Section (k) reads as follows:

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.

This section is usually referred to as the “perpetual duty to disclose” provision. While this is common in civil discovery, this is a new concept to criminal law. It should be noted that Section (k) requires the duty to perpetually disclose before, during, or after trial any additional discovery “discovered” by the state. Finally, such must be disclosed to the defendant or the court.

Section (l) reads as follows:

A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.

There are two important aspects to this section, namely that the Court (not the State) may order costs to be paid, and if so ordered, the costs can’t exceed charges prescribed under the Open Records Act.

As noted above, the second half of SB 1611 details some privacy concerns of the statute, now that the discovery is in the defense attorneys’ possession. Section (e) and (f) read as follows:

Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials or witness statements received from the state unless the state under this article unless:

        (1) A court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interest of any victim or witness; or

        (2) The documents, evidence, materials, or witness statements have already been publicly disclosed.

This section begins with a reference to section (f), which will be the next section discussed. The idea in (e) is that the following people may be allowed to view and share discovery:

  1.   Attorney
  2.   Investigator
  3.   Expert
  4.   Consulting legal counsel
  5.   Agent for attorney

Legislative discussions centered on the above list as people in the “inner circle.” The general rule under (e) is the inner circle may view and share discovery but can’t disclose to a third party unless:

  1.   A court orders such disclosure following a good cause hearing or
  2.   The information has already been publicly disclosed.

The legislative intent behind the hearing described in (1) above is to give the defense the ability to have a hearing, following appropriate notice, in the event public disclosure and/or disclosure to a third party is needed in the representation of the defendant. Privacy and security interests of any victim or witness are factors in this “good cause” hearing.

It will be interesting to see the body of law develop concerning section 2 above. This rule is simple—i.e., if the discovery information has already been publicly disclosed, the dissemination limitation to third parties in (e) does not apply. It has been suggested that the following may or will be construed as being publicly disclosed: probable cause affidavits, indictments, news reports, court hearings, magistration, etc. We shall see. While privacy concerns are becoming more pronounced in various areas of the law, our culture becomes more obsessed daily with publicly sharing almost every aspect of our lives. The intent seems rather clear, but the application of this particular section will be interesting.

Section (f) reads as follows:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’ own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

Section (f) works with section (e) in that it clarifies that the following people are allowed to view discovery, namely the defendant, a witness, or a prospective witness. The highlighted individuals became known as the “outer circle.” The “inner circle” may allow the “outer circle” (a defendant, witness, or prospective witness) to view the information provided in this article but can’t give them a copy of the information, other than a copy of the witness’ own statement. However, before the “inner circle” can allow viewing under this section, certain privacy information must be redacted. The private information is described in detail: address, telephone number, driver’s license number, social security number, date of birth, or bank account or other identifying numbers.

The intent of (f) is simply to protect certain privacy information of people contained in witness statements and offense reports (in most instances). While it is true that any 14-year-old American child could locate anybody’s address or landline in two minutes or less on his smart phone, the remaining information is generally considered more private. Redaction is not a new concept, being already widely used, and it is believed this “best practice” will become routine. The last sentence of (f) clarifies that the defendant may not be the agent for the defense attorney under this section.

Section (g) reads as follows:

Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.

The beginning of this section is often referred to as the defense lawyers’ safety valve. In terms of intent, this provision was added to fully recognize that an attorney’s duty under the Professional Rules of Disciplinary conduct is to the client, and that the new discovery statute is not be interpreted as limiting the defense attorney’s ability to communicate regarding his or her case. While the safety valve sentence leads off Section (g), this section states that communication of identifying information of any victim or witness, including name (except as provided in (e) and (f)), address, telephone number, driver’s license number, social security number, date of birth, and bank account or other identifying information is not considered part of “communicating about his or her case.”

In construing section (g), the legislature is clearly trying to protect the same privacy information of victims and witnesses listed in sections (e) and (f). It does for the first time contain “name” of any victim or witness, although such is excepted per Sections (e) and (f). In other words, a name of a victim or witness can be communicated with the “inner circle” and the “outer circle” as previously discussed in (e) and (f). Many believe this section does two things. First, it provides a safety valve for the defense attorney who is zealously defending his or her client. Second, it restates in similar wording the general rule of (e) and (f) that the discovery provided is not to be disclosed to a third party (subject to the two exceptions in (e) and redaction in (f)).

PRACTICE TIP: Unless the information is already in the public realm, if you believe the information should be disclosed, request a hearing under (e).

The last sentence of (g) clarifies that nothing in this subsection prohibits the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purpose of making a good faith complaint. The obvious intent here was not to hinder in any manner a lawyer from pursuing a legitimate complaint to the appropriate forum.

To conclude Section 2 of SB 1611, three final sections should be discussed, namely (d), (m), and (n).

Section (d) reads as follows:

In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and re­view the document, item, or information but is not re­quired to allow electronic duplication as described by Sub­section (a).

Recalling the age-old adage that a man who represents himself has a fool for a client, the Legislature has now given a statutory “amen” to this saying. Basically, pro se defendants do not enjoy the same discovery rights under SB 1611 as defendants with counsel. The State does not have to allow electronic duplication for a pro se defendant.

Section (m) reads as follows:

To the extent of any conflict, this article prevails over Chapter 552, Government Code.

This section is self-explanatory.

Section (n) reads as follows:

This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

Section (n) sets the stage for local bar associations to recognize SB 1611 as a “new day” in Texas, whether or not the local jurisdiction previously had an open file policy or not. This section encourages the State, defense bar, and judiciary to find their best way to implement SB 1611, recognizing they can “go above” the requirements in SB 1611 but can’t go below the new statutory requirements.

Sections 3 and 4 of SB 1611 read as follows:

The change in law made by this Act applies to the prosecution of an offense committed on or after the effective date of this Act. The prosecution of an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

This Act takes effect January 1, 2014.

Section 3 is standard legislative language in new criminal statutes. While there is nothing keeping the State from complying with the new statute prior to January 1, 2014, the actual start date for SB is New Year’s Day 2014.

Rarely has there been a bill more discussed and debated than SB 1611. While other pieces of legislation may have received more floor debate than the new discovery bill, this bill had a wide cast of characters working on it night and day in various work groups. Although I have yet to meet any practicing lawyer who does not have a comment about SB 1611—or would not have added a tweak to the language—the fact remains Texas has a new discovery bill. Defense lawyers will now “get the information” and must comply with some “privacy concerns,” but while critiques, concerns, and questions may linger, the final draft of SB 1611 put a smile on Michael Morton’s face.

There were two other bills brought about by the Morton case that passed the legislature and were signed into law by the governor. The first of these bills was SB 825, filed by Senator John Whitmire, Chairman of the Senate Committee on Criminal Justice. Besides the obvious attention paid to the discovery process in the Morton case, there was considerable attention paid to possible criminal and civil sanctions against the prosecutor in that case. That prosecutor was elected to a District Court bench in Williamson County but recently resigned his bench in September 2013. Representative Senfronia Thompson was the House sponsor on SB 825, which became effective on September 1, 2013.

SB 825 amends Section 81.072, Government Code, which reads as follows:

        (b) The Supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system. The standards and procedures for processing grievances against attorneys must provide for:

        [Sections 1 through 10 remain unamended]

        (11) the commission adopting rules that govern the use of private reprimands by grievance committees and that prohibit a committee:

        (A) giving an attorney more than one private reprimand within a five-year period for a violation of the same disciplinary rule; or

        (B) giving a private reprimand for a violation:

        (i) that involves a failure to return an unearned fee, a theft, or a misapplication of fiduciary property; or

        (ii) of a disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09 (d), Texas Disciplinary Rules of Professional Conduct; and

        (12) distribution of a voluntary survey to all complainants urging views on grievance system experiences.

        (b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution.

        (b-2) For purposes of Subsection (b-1):

        (1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09 (d), Texas Disciplinary Rules of Professional Conduct.

        (2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.

        (3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.

        As soon as practicable after the effective date of this Act but not later than December 1, 2013, the Texas Supreme Court shall amend the Texas Rules of Disciplinary Procedure to conform with Section 81.072, Government Code, as amended by this Act. This Act takes effect September 1, 2013.

These amendments to Section 81 of the Government Code have the effect of once again placing language derived from Brady v. Maryland in the Texas statutes. The statute uses the term “disclosure rule,” which requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.

There are two other important aspects of this bill. First, the bill disallows the State Bar from issuing private sanctions when prosecutors are found to have committed Brady violations. Second, the bill changes the statute of limitations for state bar grievances for Brady violations to begin to run when an exoneree leaves prison.

Historically, the two main defenses to a Brady violation are “I didn’t know about it” and “I didn’t think it was material.” In that regard, consider the following suggestion.

PRACTICE TIP: Following receipt of the automatic discovery disclosures, it is strongly advised you send a written letter specifically requesting the prosecutor to affirmatively look for and uncover Brady and Giglio material.

The third bill signed into law related to the Morton case was HB 1847, authored by Representative Stefani Carter. The essence of this bill was to require specific training to prosecutors regarding their duty to disclose exculpatory and mitigating evidence. HB 1847 amends Chapter 41 Government Code and reads as follows:

Section 41.111. TRAINING RELATED TO PROSECUTING ATTORNEY’S DUTY TO DISCLOSE EXCULPATORY AND MITIGATING EVIDENCE. (a) Each attorney representing the state in the prosecution of felony and misdemeanor criminal offenses other than Class C misdemeanors shall complete a course of study relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case.

        (b) The court of criminal appeals shall adopt rules relating to the training required by Subsection (a). In adopting the rules, the court shall consult with a statewide association of prosecuting attorneys in the development, provision, and documentation of the required training.

        (c) The rules must:

        (1) require that each attorney, within 180 days of assuming duties as an attorney representing the state described in Subsection (a), shall receive one hour of instruction relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal matter;

        (2) require additional training on a schedule or at a time as determined by the court;

        (3) provide that the required training be specific with respect to a prosecuting attorney’s duties regarding the disclosure of exculpatory and mitigating evidence in a criminal case, and must be consistent with case law and the Texas Rules of Professional Conduct; and

        (4) provide for a method of certifying the completion of the training described in Subdivisions (1) and (2).”

This bill, which takes effect January 1st, is simple and straight­forward. It has been suggested by some that education and awareness are important aspects of the discovery process, and this bill is indicative of those suggestions.

While simple, it is specifically suggested that the intent of this training should lead to the basic conclusion that a prosecutor is NOT supposed to make a judgment about what he/she considers “material,” and that he/she should always err on the side of disclosure.

It is often said justice is blind, but there can be no justice if a defendant is “blinded” from the evidence to be used against him in court. Come New Year’s Day 2014 in Texas, criminal defendants will have the ability to see the evidence against them that is held by the State. These three bills are a step in the right direction towards justice for all of the citizens of Texas.