Interpreting and Arguing the Scope of the Michael Morton Act: Defense Counsel Perspective on Scope of the Act

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Thursday, December 14th, 2017
Interpreting and Arguing the Scope of the Michael Morton Act: Defense Counsel Perspective on Scope of the Act

The Michael Morton Act was passed after its namesake was released from jail after serving nearly 25 years for a crime he did not commit. “[T]he Legislature passed the Michael Morton Act to ensure that defendants would receive discovery of the evidence the State had in its possession so that they could prepare a defense against it.” Ex parte Pruett, 458 S.W.3d 537, 542 (Tex. Crim. App. 2015) (Alcala, J., dissenting from denial of writ of habeas corpus).

1)   Best Practices for Obtaining Michael Morton Act Compliance

The State’s disclosure requirements under the Michael Morton Act are triggered by a request for production by defense counsel. As an advocate and zealous defender of the citizen accused, you must make filing your production request a high-level priority in every case. This article details the scope of the Act and may assist with arguments in favor of disclosure of evidence under the Act.

Practice pointers:

a.   Draft a template request for each subcategory of evidence listed in the Michael Morton Act. If you file a single request that is too specific, you may accidentally limit the scope of your request. If you file a request specifically designating “39.14(a),” then the trial court, or court of appeals, may rule that your filing failed to trigger the State’s duty under any of the other subdivisions of the Act.

b.   The request should be specific to each subdivision of the Act, and should include a clear and definite statement of what you are requesting and from whom.

Example I: Defendant requests the State provide an itemized list of all evidence that the State has withheld from production, along with a justification for withholding the same. See Tex. CCP 39.14(c). Note: Upon request, the court should hold a hearing to determine whether any withheld evidence is subject to disclosure.

Example II: Defendant requests disclosure of the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. See Tex. CCP 39.14(b). Note: The from whom piece is of particular import when you are requesting evidence that may be in the care/custody/control of the State but not the prosecutor (e.g.. police department records).

c.   The request does not need to be in motion and order format. The Act is triggered by a request and not by court order. By phrasing the request in motion/order form, you may give the State leeway to argue they need not produce anything until the court orders them to do so. See Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993) (proper Rule 404(b) request for notice does not require court order).

d.   File the individual demands for Article 39.14 disclosure early in your case. The longer you have for investigating your defensive theories, the better your advocacy will be for the citizen you represent.

e.   File Michael Morton Act requests separate from your 37.07, 404(b), and 609(f) requests. If you treat them as separate, independent, unique obligations of the State, you are more likely to get the Court to treat them as separate, independent, unique obligations of the State.

2)   Forthcoming Issues with the Application of the Michael Morton Act

As enacted, the Michael Morton Act provides the following:

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 statements 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 report, 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.

Tex. Code Crim. Proc. Art. 39.14.

Many questions relating to the scope and interpretation of the Michael Morton Act remain unanswered. First, the savings clause in SB 1611 applied the Michael Morton Act without retroactivity. This means the Act only applied to criminal cases that occurred on or after January 1, 2014. Given the nature of the criminal justice system, the large number of cases reaching plea bargains, and the small percentage of cases going to trial, there have been few opportunities to raise questions relating to the Michael Morton Act. And to make the number of possible cases interpreting the Act even smaller, consider that the State must not only withhold the evidence, they must be caught withholding it during the course of the trial.

A) To What Evidence Does the Michael Morton Act Apply?

The items and information produceable under the Michael Morton Act are far more varied than the disclosure required under Brady v. Maryland. Article: “The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or Not,” 48 Tex. Tech L. Rev. 893, 903 (hereafter “Fundamentally Change”).

Subsection (a) of article 39.14, which creates the request and disclosure doctrine, extends to documents, papers, statements, and objects “that are in the possession, custody, or control of the state or any person under contract with the state.” Tex. Code Crim. Proc. Ann. art. 39.14(k). Given that “the state” is not defined within the Act, and that prior versions of article 39.14 did not overlap with Brady v. Maryland, the reach of the prosecutorial duty to find and disclose non-Brady material remains somewhat unclear, but the requirement of disclosure of Brady material in subsection (h) certainly suggests that adherence to the constitutional understanding of “possession” should control in some cases. Tex. Code Crim. Proc. Ann. art. 39.14(h); see e.g. Tex. R. Evid. 615.

“Fundamentally Change,” 48 Tex. Tech L. Rev. 893, 910.

Here, the Act outlines its applicability in the first sentence, providing “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 statements 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 report, 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.” Tex. Code Crim. Proc. Ann art. 39.14(a).

While the goal of the Michael Morton Act is admirable, the statutory language leaves much to be desired. For instance, in the first sentence—where the dispute over the scope of the Act arises—the language is particularly problematic. It contains 146 words, including the word “or” 10 times, the word “and” 7 times, and 18 commas. Further, the Act as a whole contains but 4 sentences containing 264 words, 23 commas, and 22 conjunctions. And lest we forget, when engaging in statutory construction, we generally presume that “the entire statute is intended to be effective.” Ex parte Forward, 258 S.W.3d 151, 154 (Tex. Crim. App. 2008); see also Tex. Gov’t Code § 311.021.

B)    What Does “as Soon as Practicable After Receiving a Timely Request” Mean?

Does the Michael Morton Act apply pre-indictment? The answer turns on the interpretation of the phrase “as soon as practicable after receiving a timely request.” Illustrative is Justice Alcala’s concurring opinion denying mandamus relief in In re Carrillo, No. WR-83,345-01 (Tex. Crim. App. Jun. 24, 2015) (not designated for publication). There, the trial court refused to order discovery be produced pre-indictment. Alcala’s concurring opinion stated: “I observe that, as an individual who has been charged by a formal criminal complaint by the district attorney’s office, relator plainly falls within the provisions of Article 39.14 that require that discovery be provided ‘as soon as practicable.’” Id. at 4. “[B]y delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the ‘as soon as practicable’ language into ‘as soon as practicable after return of indictment by the grand jury.’ The statute does not impose any such condition on the State’s discovery obligations.” Id. at 4–5. In re Carrillo was decided on the same date as In re Lewis, WR83,367-01, 2015 WL 4775939 (reaching the same conclusion without Alcala’s concurring opinion).

Ultimately, Justice Alcala denied mandamus relief. She reasoned that “language appears to afford the State some discretion in determining a practicable time frame for turning over discovery.” Id. at 5. She further noted that “Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Id. at 6. Ouch! Justice Alcala’s opinion, while unpublished, likely sounded the death knell for mandamus relief for violating the Act. She implied that compliance was not a ministerial duty and the Defendant would have an adequate appellate remedy. The good news, though, was Justice Alcala’s interpretation of the “as soon as practicable” language. By refusing to hold that a pre-indictment request for discovery was untimely, Justice Alcala left opened the door to pre-indictment discovery under the Act. Practitioners should take advantage of this opportunity, especially in cases where an immediate fact investigation is paramount.

Further complicating the analysis is the 11th Court of Appeals conclusion that the trial court lacks jurisdiction to consider a discovery challenge prior to indictment. See In re State ex rel. Munk, 494 S.W.3d 370, 376 (Tex. App.—Eastland 2015, no pet.).

C)    Does the Michael Morton Act Apply to Extraneous Offenses?

The Act probably applies to extraneous offenses, but we don’t know for sure. The key inquiry is whether the extraneous offense information sought via discovery “contain[s] 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.” See Tex. Code Crim. Proc. Ann. art. 39.14(a). Note this is not a Brady style “exculpatory evidence” requirement, but only a materiality requirement. Brady evidence is specifically covered in Tex. Code Crim. Proc. Ann. art. 39.14(h). Id. The legislature’s choice of the words “any matter involved” in the action probably meant that extraneous offense information was included since extraneous offenses are relevant to punishment proceedings in the event of a conviction. Further, if the State intends to use the evidence, it’s probably within the broad scope of “any matter involved in the action.” This is all the more true when one considers the requirement of Tex. Code Crim. Proc. Art. 37.07 that extraneous offense must be proven beyond a reasonable doubt.

However, one caveat regarding this argument is that subject to application of the last antecedent rule of construction with regard to categories of evidence to which the possession language in the Act applies, the extraneous offense evidence must be in the possession of the State. What constitutes in the “possession of the State” has been well litigated within the scope of Tex. R. Evid. 615 and will likely appear as a key piece of the appellate court analysis on this question. In Jenkins v. State, 912 S.W.2d 793, 819 (Tex. Crim. App. 1995) (op. on reh’g) the Court of Criminal Appeals held that Rule 615 only required a prosecutor to produce witness statements that were “in the prosecutor’s possession” or in the possession of the “prosecutorial arm of the government.”

When interpreting Rule 615 in the past, we have stated that a party possesses a statement “if it is within [the party’s] control or readily accessible” [Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. dism’d)] or in the party’s “actual or constructive possession.” Williams v. State, 940 S.W.2d 802, 805 (Tex. App.—Fort Worth 1997, pet. ref’d); Jordan v. State, 897 S.W.2d 909, 918 (Tex. App.—Fort Worth 1995, no pet.).

Exclusion of extraneous offense discovery may be possible to the extent it is not in the possession of the “State.” However, to exclude offense reports or witness statements of law enforcement officers—also expressly discoverable—would defeat much of the purpose of the Act and would violate the general principle of statutory construction regarding the primacy of the specific provision over the general. See “Fundamentally Change,” 48 Tex. Tech L. Rev. 893, 910, citing Tex. Gov’t Code Ann. § 311.026. It will be interesting to watch the development of this area as creative defense counsel will have an argument under 39.14(c) that the State has an obligation to disclose anything they are withholding.

D) Does the Michael Morton Act Apply to Punishment Evidence?

The legislature’s choice to use the word “any” as frequently as it did when enacting this statute would suggest this is a simple question. The answer should be simple, but the question is also one of first impression. Punishment for a crime is, without a doubt, a “matter involved in the action” as contemplated by the legislature’s choice of that phrase in Article 39.14(a). But again, the inquiry will become “is the evidence in the possession of the State?”

It is difficult to imagine a scenario in which the State is using punishment evidence that is not in their possession. The argument for including punishment evidence within the scope of the Michael Morton Act is similar to the argument that extraneous offense information is within its scope: (1) it’s relevant to the proceeding, and (2) it’s in the State’s possession. It stretches the bounds of credibility to believe a prosecutor would attempt to use punishment evidence that is not “in the prosecutor’s possession” or in the possession of the “prosecutorial arm of the government.” This is especially true where possession is understood to occur “if [the evidence] is within [the party’s] control or readily accessible.” Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. dism’d).

E) Is Tex. Code Crim. Proc., Art. 37.07 Disclosure Sufficient to Satisfy the State’s Burden Under the Michael Morton Act?

Disclosure pursuant to Article 37.07 would provide notice, but not inspection or the ability to duplicate the evidence. Article 37.07 sec. 3(g) provides:

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

Tex. Code Crim. Proc., Art. 37.07

Consequently, without the opportunity to duplicate, compliance with Article 37.07 is not compliance with Article 39.14.

F) Does the State Satisfy Its Production Obligation Under the Michael Morton Act by Providing Notice of Extraneous Offenses Pursuant to Tex. Code Crim. Proc. Art. 37.07?

To the extent these provisions are not in conflict with the spirit or the text of the Act, it’s unlikely that “notice” is the functional equivalent of “production” required under the Act. Simply providing a list of extraneous acts to defense counsel would not comply with the production mandate of the Michael Morton Act. Moreover, allowing notice to supplant disclosure would violate the fundamental cannon of statutory construction to not render any statutory language meaningless. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) (court must not interpret a statute in a manner that renders any part of the statute meaningless or superfluous). In other words, holding that the Michael Morton Act applied only to the State’s case-in-chief would render the legislature’s choice of the words “any offense report” entirely superfluous. This would “defeat[] the very purpose of the legislature’s carefully chosen words.” Ritchie v. Rupe, 443 S.W.3d 856, 898 (Tex. 2014).

If Article 37.07 notice were sufficient, its sufficiency would have been incorporated into the Michael Morton Act via a clause specifically stating the Michael Morton Act was supplemental to Article 37.07. In the absence of such a clause, a court should not assume Article 37.07 notice shields the State’s non-disclosure of evidence. Article 37.07 notice requires only the date on which, and county in which, the bad act occurred and the name of the victim. That would be a woefully incomplete offense report and should not satisfy the “inspection and duplication” provision of the Act.

G) Is Tex. R. Evid. 404(b) Notice Sufficient to Satisfy the State’s Burden of Production Under the Act?

For the same reasons that Article 37.07 notice is likely insufficient, compliance with Rule 404(b) is likely insufficient to satisfy the production mandate of the Michael Morton Act. Rule 404(b) provides:

[Crimes, wrongs, or other acts] evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.

Tex. R. Evid. 404(b)(2)

As with Article 37.07, Rule 404(b) creates a notice obligation triggered by the timely request of defense counsel. Importantly, notice is not production. And where there is no conflict between the Michael Morton Act and Rule 404(b), a court is mandated by canons of statutory construction to give full effect to both.

H) Does the Distinction Between Punishment Evidence and Extraneous Offense Evidence Matter?

The difference between punishment evidence and extraneous offense evidence should not matter. But it could be given significance depending upon whether the evidence is in the possession (whether actual or constructive) of the State. Ultimately, the distinction is one of form over substance. If the State intended to use extraneous offense evidence, it would likely be at the punishment stage of trial. The common-sense exceptions are offenses, like DWI 3rd or DWLI with priors, where the extraneous offense is a jurisdictional element. In that case, the argument that the Michael Morton Act applied becomes even stronger as that evidence related directly to a jurisdictional element of the offense.

I) If I Suspect a Michael Morton Act Violation, What Should I Do?

During trial, if you suspect the State may have violated the Michael Morton Act, the most important actions are: (1) object and delineate with specificity the evidence the State withheld, (2) move for a continuance to adequately investigate and prepare against the evidence, (3) articulate harm on the record, and (4) obtain adverse rulings. Because the Michael Morton Act’s purpose was to avoid trial by surprise, the court of appeals would likely interpret untimely disclosure in a way similar to a Rule 404(b) or an Article 37.07 violation. If the court admits the evidence and denies your motion for continuance, continue to object pursuant to the applicable rules and statutes. Consider requesting a running objection to the court’s denial of your continuance and to admission of the evidence. Lastly, work hard to develop the trial court record showing how the non-disclosure of evidence resulted in harm to your client.