On May 16, 2013, former Texas Governor Rick Perry signed into law the Michael Morton Act (“Morton Act”). It is one of the most significant pieces of criminal justice legislation Gov. Perry turned into law with his signature.


In a comprehensive primer on Texas criminal discovery published in Texas Criminal Defense Lawyers Association’s Voice for the Defense, Troy McKinney summarized the sentiment of the new act by declaring “discovery in criminal cases in Texas will enter a new era—one in which almost anything the defense wants to prepare its case must be produced by the State.”


The Morton Act, which is codified in Article 39.14 of the Texas Code of Criminal Procedure, requires prosecutors to open their files and provide copies of requested discovery. The rule also requires prosecutors to keep records of the files they disclose.


The Morton Act was named after Michael Morton who was exonerated in 2011 after spending nearly 25 years in the Texas prison system for a crime he did not commit.


In an article presented to the State Bar’s 40th Annual Advanced Criminal Law Course in Houston on July 21-24, 2014, Texas Court of Criminal Appeals Judge Barbara P. Hervey, citing the Senate Bill Analysis, said legislators voted in favor of the Morton Act for two essential reasons:


“First, it recognizes Brady but also that, Brady is ‘vague and open to interpretation, resulting in different levels of discovery across different counties in Texas’ … Second, the Legislature intended for the Act to ‘save attorney resources as well as tax payer dollars by limiting discovery disputes and increasing efficient resolution of cases, all while reducing the likelihood of costly appeals and wrongful convictions.”


It is too early to tell exactly what impact the Morton Act will have on the state’s justice system, but two immediate nagging questions come to mind: 1) will the prosecutors be more open, and fair, in the discovery process; and 2) will the incidents of prosecutorial misconduct be significantly reduced?


Given the historical pattern of discovery abuse, many criminal defense attorneys find it hard to believe that the Morton Act, at least in the short term, will accomplish what Brady itself and ethical rules have failed to accomplish.


Special Responsibilities of a Prosecutor


Forty-nine states, the nation’s territories, and the District of Columbia have adopted a version of ABA Model Rules of Professional Conduct Rule 3.8(d), “Special responsibilities of a Prosecutor.”


As George W. West II pointed out in an article published in the Texas Bar Journal (July 2010), Rule 3.8(d) requires the prosecution to make “timely disclosure to the defense of all evidence or information known to the prosecution that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged, mitigating evidence known to the prosecution.”


Texas’s version of Rule 3.8(d) is found in Rule 3.09(d) of the Texas Disciplinary Rules of Professional Conduct which provides that, in criminal cases, a prosecutor must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.”


Mr. West informed us that in 2009, the American Bar Association’s Standing Committee on Legal Ethics and Professional Responsibility issued Formal Opinion 09-454. This Opinion makes clear that a prosecutor’s disclosure duty under Rule 3.8(d) is greater than the constitutional requirements spelled out in Brady. The Opinion said the key difference between the two is that Rule 3.8(d) “requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on the trial’s outcome.” In contrast, Brady requires only that the prosecutor disclose “material” evidence relating to trial and sentencing.


Mr. West noted that Opinion 09-454 is “important” to Texas Rule 3.09(d) because it “may serve as the basis for construing Texas Rule 3.09(d), which would expand, or at least clarify, the Texas prosecutor’s duty to disclose evidence or information favorable to the defense.” The Opinion failed to accomplish this objective.


Open File System was Rife with Abuse and Misconduct


Prior to the Morton Act, an arrangement known as the “open file discovery” system was in place, and while prosecutors under this system were obligated to, as Judge Hervey pointed out, “comply with Brady,” a defendant under the 2004 version of Article 39.14 of the Code of Criminal Procedure was required to show “good cause” before copying and inspection of “certain evidence” could be had—and even if the defendant could show good cause, the trial court retained the “statutory authority” to deny discovery.


This “open file” system was rife with abuse and misconduct. The system was modified by the Legislature in 2005 eliminating “the discretion of a trial court to allow a defendant to inspect and copy evidence if he could show good cause. Thus, a ‘may’ became a ‘shall.’”


Despite Ethical Rules, Misconduct Persisted


This positive statutory change and Rule 3.09(d) notwithstanding, too many Texas prosecutors continued to withhold or conceal evidence they knew was “material” under Brady and for which they otherwise had an ethical duty to disclose. Thus, the inherent suspicion and serious reservation from defense lawyers about whether the Morton Act, standing alone, will reduce, much less eliminate, prosecutorial misconduct from our justice system, at least in the short term.


Morton Motion


That’s why we support what Barry Scheck and Nancy Gertner have described as the “ethical rule” order—a defense motion and court order that relies on state law and ethical rules to “bind every state and federal prosecutor who wants to keep a license to practice law.” The two attorneys argue that this “Occam’s razor for the disclosure of exculpatory evidence” should be supported by “all [the] players in the criminal justice system …”


Criminal Contempt


How does this rule work? Scheck and Gertner explained:


“What the defense attorney should do to make the ‘ethical order’ motion is very straightforward: File a pretrial motion that tracks and cites the relevant ethical rule of the defense attorney’s jurisdiction or in the case of federal prosecutors, the rule that applies to the state where that prosecutor is based and/or governs the federal proceeding. Ask for an order that the prosecutor search her file and disclose all information that ‘tends to negate the guilt of the accused or mitigates the offense.’ Be specific. Lay out, within the bounds of what makes sense strategically, the defense theory of the case and the kind of information that would tend to negate guilt. Identify the files of the agencies and investigators who were involved in gathering evidence for the prosecution, and request that the prosecutor search those files and verify that disclosure has been made of all information that tends to negate guilt or mitigate punishment. Be sure to request that the prosecutor disclose on the record or reduce to writing all favorable oral statements she discovers when interviewing witnesses.”


The two attorneys added, most importantly, that “the motion should ask for an order that clearly states that ‘willful and deliberate failure to comply’ is punishable by contempt. This provision is very important and carefully worded. Yes, this means that negligent, inexperienced, stupid, even reckless prosecutors will not be held in contempt. But frankly, given the mens rea requirements in most jurisdictions and the realities of criminal practice, the only prosecutors who will be held in contempt for violating the ethical rule order are those who do so willfully and deliberately. Perhaps most important of all — based on discussions with leaders in the prosecutorial community and the judiciary — there is widespread agreement that the handful of prosecutors who deliberately and willfully suppress favorable evidence, even in ‘harmless error’ cases, should be sanctioned for purposes of deterrence alone. And it is the repeat offender — the prosecutor who routinely makes untimely disclosure of Brady material in the middle of trial or is caught more than once hiding evidence that is plainly exculpatory — who is most at risk of being sanctioned. After all, prior similar acts are a pretty good way to prove intent!


“Judges and prosecutors may be startled initially when they see the “ethical rule” motion as opposed to the usual request to turn over all Brady/Kyles material. But upon reflection, what can a prosecutor credibly say in opposition? That the state does not recognize the ethical rule, invariably a state statutory obligation, as binding? That the state does not believe it is right or fair to be ordered to obey an ethical rule that is clear and broad as opposed to the ‘constitutional’ obligation that is ambiguous and narrow? Or, that the state does not want to be ordered to follow the ethical rule because a violation later deemed to be knowing, deliberate, and malicious could result in a contempt proceeding, civil or criminal, and possibly bar discipline? Just stating these arguments reveals their bankruptcy and the value of the ‘ethical rule’ order.”


As Scheck and Gertner pointed out, the disclosure obligation under the Morton Act can “easily be converted into an ‘ethical rule order’ by state trial judges.” Doing so, we believe, would place more teeth into the Prosecutor Accountability Act, which became effective September 1, 2013.


Statute of Limitations for Disciplinary Actions


Codified in Section 81.072 of the Government Code, the Prosecutor Accountability Act not only extended the statute of limitations for disciplining prosecutors who suppress evidence but also provided that the Texas Supreme Court “establish minimum standards and procedures for the attorney disciplinary and disability system.”


On October 14, 2013, the Texas Supreme Court issued an order amending the “Texas Rules of Disciplinary Procedure (Rule 15.06) and Internal Operating Procedures of the Commission for Lawyer Discipline.” The order specifically provides that the statute of limitation for bringing disciplinary action against a prosecutor for suppression of evidence starts to run four years “after the date on which the Wrongfully Convicted Person was released from a Penal Institution.”


The Court’s order also adopted the provisions of Section 81.072(11) which limits the use of “private reprimands” by district grievance committees. Specifically, a private reprimand cannot be issued under the following circumstances:


  • The [Prosecutor’s] misconduct was an intentional violation of the Texas Disciplinary Rules of Professional Conduct or, if applicable, the Texas Code of Professional Conduct; or
  • A Disciplinary Action has been filed as a result of such misconduct; or
  • The misconduct involves the failure of a prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense.


Put simply, the day of a secret “slap on the wrist” for prosecutors who engage in Brady violations is over. With Section 81.072, a defense attorney now has ample statutory authority to seek an “ethical rule order” from the trial court prior to the commencement of the trial. Such an order is a warning over the bow of the boat of the prosecutor that he or she must fully comply with both the spirit and letter of the Morton Act.


This statutory authority was also enhanced by Opinion No. 646 of the Professional Ethics Committee for the State Bar of Texas (issued in November 2014) which strictly warns state prosecutors that they “may not, as a condition for providing information in their files they are obligated to disclose, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases.”


Clearly, the vehicle for an “ethical rule order” is in place. Each attorney must make his or her own tactical decision about how to approach discovery in each given case. But it is another arrow in the quiver to know that a potential “ethical rule’ motion and order is viable, especially when dealing with a prosecutor known to skate the line.