Michael Morton Act Working After First Year of Implementation
Texas Appleseed, Texas Defender Service Report Examines Policies & Practices
Landmark legislation passed in the last Texas Legislature is working after its first year of implementation, despite some understandable initial shortcomings and confusion, according to two Texas nonprofit organizations involved in civil and criminal justice reform. The Michael Morton Act provides a statutory right for defendants in criminal prosecutions to have access to information in prosecutor files and law enforcement reports.
“Towards More Transparent Justice: The Michael Morton Act’s First Year,” was released today by Texas Appleseed and Texas Defender Service at a Capitol news conference. The law was passed in 2013 by the Texas Legislature and went into effect on January 1, 2014. It’s named for Michael Morton, who was exonerated and freed after serving 25 years in prison for a crime he did not commit. Throughout his case, prosecutors withheld information collected during the original investigation that pointed towards Morton’s innocence. Such prosecutorial misconduct has been a significant contributor to wrongful convictions, and an issue in several high-profile Texas exonerations.
The report says there is no need for new legislation to amend the current law. However, it identifies a number of pervasive issues with the enactment’s implementation including the wrongful redaction and withholding of information, and delays in the provision of discovery. The report notes, however, that prosecution offices were reworking their policies even during the process of collecting the policies.
“The passage of further amendments to Article 39.14 during the 84th legislative session, would likely cause more confusion and stymy existing efforts to appropriately implement and comply with the 2013 law,” the report states.
Appleseed & TDS filed requests with every county and district attorney’s office in Texas to obtain the written policies each office used for implementing the Morton Act’s requirements. The organizations evaluated those policies against the requirements stated in the law.
“A law that changes processes in every single criminal case in all 254 counties will have a steep learning curve,” said Mary Schmid Mergler, of Texas Appleseed. “It’s been very encouraging to see every segment of the criminal justice system appreciate the need for these changes and really strive to make it work quickly.”
“Some predicted that the Michael Morton Act would unduly burden prosecutors, but our findings suggest that most prosecution offices have made the transition to a more open and transparent discovery process,” Kase said. “Criminal discovery is an important key to ensuring that the constitutional rights of those charged with crimes are protected. As prosecutors and law enforcement become more comfortable with the Act’s requirements, we have hope that the risk of wrongful convictions will decrease.”
The report recognizes that a number of offices have made great strides towards increasing transparency in the criminal discovery process. El Paso, and Tarrant County District Attorney offices were recognized among larger, urban counties for their efforts to make discovery available to defense counsel via an online system and for Tarrant County’s practice of making this materials available at an early point in the proceedings against the accused. Many smaller jurisdictions have also integrated the discovery process into their case screening procedures, thereby minimizing the time invested in each case and making materials available to the defense in a timely manner.
The report calls for continued training and education for law enforcement agencies to see that they are fully complying with the Act’s requirements. The report recognized the Travis County District Attorney’s office for its work with the Austin Police Department.
A defendant’s right to the information in a prosecutor’s file was spelled out in a 1963 U.S. Supreme Court case, Brady v. Maryland, and subsequent rulings. The case law can be vague, however. Even without intentional misconduct found in some cases, different levels of discovery existed in Texas counties. Uniform open file discovery is recognized as helping the criminal justice system to operate in a fair and efficient manner.
“Towards Transparent Justice,” is the followup to a report the two organizations issued in 2013, “Improving Discovery in Criminal Cases in Texas: How Best Practices Contribute to Greater Justice.”
The Michael Morton Act was passed as Senate Bill 1611 by Sen. Rodney Ellis and Sen. Robert Duncan. Rep. Senfronia Thompson was the principal sponsor in the House. It was signed into law by then-Gov. Rick Perry.
Texas Appleseed’s mission is to promote social and economic justice for all Texans by leveraging the skills and resources of volunteer attorneys and other professionals to identify practical solutions to difficult systemic problems. Texas Defender Service is a nonprofit law firm that works for a better, more just criminal justice system, particularly in the state’s administration of capital punishment.
Locke Lord LLP, a Texas law firm, also worked on the report as a pro bono partner, as it did in the earlier report.
The report, “Towards More Transparent Justice,” is available in .pdf format
Leading Conservatives Urge Relief at Fifth Circuit for Scott Panetti
Today, leaders from the American conservative movement, including legal experts, former conservative policymakers, and thought leaders from across the United States, filed an amicus brief in support of Scott Panetti, a death row prisoner who has suffered from schizophrenia for three decades and whose case is pending before the Fifth Circuit Court of Appeals.
The amici, some who support the death penalty and others who do not, “are united […] in their belief that the execution of Scott Panetti would serve no penological purpose and would in no way promote public safety. Rather than serving as a proportionate response to murder, the execution of Panetti would only undermine the public’s faith in a fair and moral justice system. And it would be a glaring and unwelcome example of excessive governmental power” (Amicus brief, p. 2).
The amici national conservative movement leaders are: Mark L. Earley, Sr., Former Attorney General of Virginia and Former President and CEO of Prison Fellowship USA; David A. Keene, Opinion Editor, The Washington Times; James C. Miller III, Director of the Office of Management and Budget under President Ronald Reagan; C. Preston Noell III, President, Tradition, Family, Property, Inc.; Patrick J. Nolan, Director, Center for Criminal Justice Reform, American Conservative Union Foundation; Harold D. Stratton, Jr., Former Attorney General of New Mexico; Patrick A. Trueman, Attorney at Law; and Richard A. Viguerie, Chairman, ConservativeHQ.com.
On December 3, 2014, the Fifth Circuit Court of Appeals stayed the execution of Mr. Panetti for a careful review of the issues surrounding his competency. Mr. Panetti’s illness, schizophrenia, was present for years prior to the crime, profoundly affected his trial, and appears to have worsened in recent years. Mr. Panetti has not had a competency evaluation in seven years.
On January 28, 2015, Mr. Panetti’s attorneys, Greg Wiercioch of University of Wisconsin Law School and Kathryn Kase of Texas Defender Service, filed their Supplemental Brief with the Fifth Circuit. The brief addresses a number of questions that the Fifth Circuit posed to the parties after it granted the stay of execution, including whether the federal district court erred in refusing to appoint counsel and approve funding for a mental health expert and an investigator. Counsel for Mr. Panetti have argued in the Supplemental Brief that the Fifth Circuit should order the district court to appoint counsel and provide resources so that counsel can present new evidence that Mr. Panetti is currently incompetent to be executed.
The Amicus Brief from National Conservative Leaders, filed today, can be accessed here: http://bit.ly/1zBfmMO
Mr. Panetti’s Supplemental Brief at the Fifth Circuit, filed January 28, 2015, can be accessed here: http://bit.ly/1DgPXbM
Mr. Panetti’s Opening Brief at the Fifth Circuit, filed November 30, 2014, can be accessed here: http://bit.ly/1yLnj2S
Statement from Attorneys for Petitioners in Response to Today’s Ruling by Austin District Court that TDCJ Must Disclose to Attorneys the Source of Its Execution Drugs
(March 27, 2014) Today’s ruling ensures that the Texas Department of Criminal Justice will do what the Texas Attorney General has repeatedly made clear that they must do – disclose the source of execution drugs, specifically compounded pentobarbital, to be used in upcoming executions. The ruling signals – as other courts have done recently – that it is unacceptable to keep prisoners or the public in the dark regarding how executions are carried out – including the source of the drugs.
The information will be disclosed under protective order, so that those facing imminent execution can have the information necessary to evaluate whether Texas’ execution process will violate their right to be free of cruel and unusual punishment. While we believe TDCJ is ultimately accountable to the people of Texas, and that transparency in this process is essential, the assessment of the broader public’s right to know will be made at a later date.
Secrecy surrounding the lethal injection process is, as today’s ruling shows, unacceptable. The condemned must have clear information about the drugs to be used, so that the courts can make an accurate assessment of the viability and constitutionality of any impending execution. In particular, pentobarbital for lethal injections now comes from compounding pharmacies, which are coming under increased scrutiny precisely because they are not adequately regulated. Indeed, executions carried out with compounded drugs in other states have led in some instances to prolonged and seemingly torturous executions.”
Maurie Levin, attorney for Petitioners
Statement from Attorneys for Duane Buck in Response to Today’s Ruling by the Texas Court of Criminal Appeals
(November 20,2013) Today, the Texas Court of Criminal Appeals denied Duane Buck’s appeal for a new sentencing hearing free from racial bias. A statement from Mr. Buck’s attorneys is below, followed by background on the case. Please do not hesitate to let me know if you would like to speak with Mr. Buck’s attorneys or one of his many supporters calling for a new, fair sentencing hearing….READ MORE
More Than 100 Civil Rights Leaders, Elected Officials, Clergy, Former Prosecutors and Judges, Past ABA Presidents, and a Former TX Governor Call for New, Fair Sentencing for Duane Buck
NAACP Calls Mr. Buck’s Death Penalty Case a “Blatant Example of Racial Bias”
(Houston, Texas, March 20,2013) Today, 102 prominent individuals from Texas and throughout the country released a statement urging Texas officials to provide a new, fair sentencing hearing for Duane Buck. Mr. Buck is an African-American man who was condemned to death after his sentencing jury was told that he posed a future danger because of his race. The signatories write: “The State of Texas cannot condone any form of racial discrimination in the courtroom. The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary. No execution should be carried out until the courts have a meaningful opportunity to address the evidence of fundamental injustice in Mr. Buck’s case. A new, fair sentencing hearing for Mr. Buck is absolutely necessary to restore public confidence in the criminal justice system.”….READ MORE
New Research: Harris County District Attorney’s Office Was Three Times More Likely to Seek Death for African Americans Like Duane Buck
Mr. Buck, Called a Future Danger Because He is Black, Files Petition Seeking New, Fair Sentencing Hearing
(Houston, Texas, March 13,2013) A significant new study finding racial bias in Harris County’s death penalty system was released today in an appeal filed by condemned prisoner, Duane Buck, in Harris County’s 208th Criminal District Court. Mr. Buck challenges his death sentence as an unconstitutional product of racial discrimination and presents research showing that at the time of his 1997 capital trial, the Harris County District Attorney’s Office was over three times more likely to seek the death penalty against African American defendants like himself, than against similarly-situated white defendants. The research also shows that Harris County juries were more than twice as likely to impose death sentences on African American defendants in cases like Mr. Buck’s, than on similarly situated white defendants….READ MORE
Texas Defender Service, Texas Appleseed Release Criminal Discovery Report Growing Call to Prevent Wrongful Convictions by Improving Texas’ Discovery Laws
(Austin, Texas, February 27,2013) As state lawmakers move to improve Texas’ criminal discovery statute to reduce the risk of wrongful convictions, Texas Defender Service and Texas Appleseed today released a timely report with new findings on Texas’ discovery practices and recommendations for reform.
“Texas’ discovery statute falls short of the best practices in criminal discovery adopted by the American Bar Association (ABA) and implemented in a majority of states,” said Kathryn Kase, Executive Director, Texas Defender Service.
“While some district attorney’s offices already recognize the shortcomings in Texas’ criminal discovery statute and have moved towards open file discovery, others provide little pre-trial discovery and some even require defendants to waive important statutory rights in exchange for open file discovery,” Kase said. “This lack of uniformity impacts access to justice.” …READ MORE
Executions and New Death Sentences Continue to Decline in Texas
(Houston, Texas, December 15, 2011) Executions in Texas fell to their lowest level in 15 years in 2011, and new death sentences remained at the all-time low level established last year, according to Texas Defender Service (TDS), a non-profit law firm that represents death row prisoners.
This year, Texas executed 13 prisoners, down from 17 executions in 2010 and a reduction from the all-time high of 40 executions in 2000. Texas gained only 8 new death sentences in 2011, the same number as in 2010, and down from the all-time high of 48 new death sentences in 1999.
“These numbers show that Texans have a growing discomfort with the chronic problems that infect the death penalty system, including the risk of convicting an innocent person, the costs, and its disproportionate use against people of color,” said Kathryn Kase, interim executive director of TDS. “Texas is part of a nationwide trend away from the death penalty.”…READ MORE
More than 60 Civil Rights and Faith Leaders, Elected Officials, Former Prosecutors, and Past ABA Presidents Call On Harris County D.A. To Provide Remedy in Case of Duane Buck
(Harris County, Texas , November 7, 2011) Prominent individuals from Texas and across the country are calling on Harris County District Attorney Patricia Lykos to remedy the sentence in a death penalty case involving the government’s reliance on the defendant’s race at sentencing. Duane Buck was scheduled to be executed on September 15, 2011, when the U.S. Supreme Court intervened. Today, the Court denied Mr. Buck’s petition for writ of certiorari.
At Mr. Buck’s capital murder trial in 1997, the State relied upon evidence that African-Americans are more likely to be dangerous as a basis for asking his jury to sentence him to death. District Attorney Lykos now has the discretion to remedy this error…READ MORE
Prosecutor In Case Where Government Relied On Race Testimony At Trial Urges Texas Officials To Stop Duane Buck’s Execution
(September 6, 2011) Today, a former Harris County Assistant District Attorney who prosecuted Duane Buck is urging state officials to halt Mr. Buck’s execution next week because “[n]o individual should be executed without being afforded a fair trial, untainted by considerations of race.” Linda Geffin, who served as second-chair prosecutor in the State of Texas vs. Duane Buck in 1997, sent a letter this morning to Governor Rick Perry, the Texas Board of Pardons and Paroles, Attorney General Greg Abbott, and Harris County District Attorney Patricia Lykos, urging them to intervene and stop Mr. Buck’s September 15 execution…READ MORE
Forensic Psychologist Banned from Making Mental Retardation Evaluations in TX Death Penalty Cases
(Austin, Texas, April 15, 2011) George C. Denkowski, a psychologist who used his own criteria to find many men eligible for the death penalty, was banned today from practicing forensic psychology in Texas. Denkowski’s methodology, which often used unaccepted diagnostic techniques of inflating IQ and adaptive behavior scores for reasons of lifestyle and culture during the evaluations of death row prisoners, had come under scrutiny by his peers. The Texas State Board of Examiners of Psychologists began investigating Denkowski’s methods after a complaint was filed by at least one of his colleagues alleging he misused psychological testing and inflated IQ scores…READ MORE
Victims, Jurors Urge Clemency for Tim Adams
(Austin, Texas, February 7, 2011) Attorneys for Tim Adams filed a clemency petition today urging the Texas Board of Pardons and Paroles to vote to spare Mr. Adams’ life and to ask Governor Rick Perry to commute his death sentence to life in prison without parole. Mr. Adams is an army veteran with no criminal history, not even an arrest, until he snapped and killed his son while planning his suicide in 2002. His execution is scheduled for February 22….READ MORE