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Senator Joan Huffman (R-Houston) started her legal career as a prosecutor and morphed that prosecutorial background into a conservative, pro-prosecutor political career. At the Harris County District Attorney’s Office, she worked up to Chief Felony Prosecutor before advancing to a Special Crimes Gang Prosecutor and finishing as Legal Counsel to the Organized Crimes Narcotics Task Force. She accumulated the distinction of trying more than 100 jury trials as a prosecutor.

Huffman then served two terms as a judge in the 183rd Criminal District Court before being elected to the state senate in 2008 following a special election. By 2013, she had earned the distinction of being labeled by Texas Monthly Magazine as one of the “worst legislators” in the state, and again picked up the same distinction in 2015.

In 2013, the Texas Legislature enacted the Michael Morton Act, which reformed the state’s discovery process to promote fairness, prevent abusive discovery techniques, and reduce the prospect of wrongful convictions. The Act followed Michael Morton’s release from the Texas prison system in 2011 after 25 years for the 1986 murder of his wife, a crime he did not commit. He was later exonerated.

Michael Morton was framed by a rogue prosecutor who deliberately and methodically suppressed evidence of his innocence. That former prosecutor was subsequently removed from his office as a judge through forced resignation, disbarred by the Texas State Bar, and found guilty of criminal charges in connection with his prosecutorial misconduct in the Morton case—all of which happened just months after former Gov. Rick Perry signed the Morton Act into law in May 2013.

Discovery, as it relates to criminal cases in Texas, is the process of disclosure of evidence to the defense that is in the possession of the state. The process is vital to assure due process and a fair trial, prevent surprise, and curtail wrongful convictions due to trial by ambush.

The Morton Act reformed the state’s discovery process in five fundamental ways:

• It requires prosecutors to produce evidence to the defense that is material to any matter involved in the case that is in the possession of the state,
• Imposes a continuing obligation to disclose exculpatory evidence, provide mitigation to guilt or punishment, and is relevant to impeachment at any time throughout the case,
• Imposes a duty on prosecutors to document and record all evidence disclosed to the defense.
• Permits the defense to inspect, copy, and electronically duplicate evidence that is not privileged or deals with sensitive material.
• Reduces the kind of prosecutorial misconduct that sent Michael Morton to prison for 25 years for a crime he did not commit.

Although the Morton Act was ultimately passed unanimously in the Senate, Sen. Huffman and a number of prosecutors vested in maintaining the old order of discovery expressed concern about the Act, saying it could pose a risk to both victims and witnesses in a criminal case. She voted against the Act in committee but reluctantly joined all the other senators by voting for it once it reached a floor vote.

But that didn’t change the senator’s prosecutorial-oriented opposition to the Morton Act. She has repeatedly introduced legislation or supported bills by like-minded senators that would effectively gut the Act and allow prosecutors to return to the old order when “convict at any cost” misconduct reigned supreme in criminal cases in Texas—back to the Johnny Holmes and Chuck Rosenthal eras on which Sen. Huffman earned her prosecutorial bona fides.

Most recently (this year), Huffman authored yet another anti-Morton Act bill that would significantly reduce the Act’s impact and purpose. The latest Huffman bill (Senate Bill 1124) is in response to a Texas Court of Criminal Appeals decision (State v. Heath) handed down last year that clarified and expanded the scope of a prosecutor’s discovery obligations under Texas Code of Criminal Procedure Article 39.14. The Heath decision established several important discovery obligations:

• The term “state” as it is used in Art. 39.14 includes “law enforcement agencies” along with prosecutors.
• Enhances the duty to disclose from “as soon as practicable” to mean as soon as reasonably possible.
• Bestows on the trial courts the authority to exclude untimely disclosed evidence without the defense having to make a showing of either bad faith or prejudice.
• Effectively expands the discovery process from passive disclosure by the prosecutor to proactive disclosure.

Senate Bill 1124 is the same old “song and dance” Senator Huffman has been shoveling around the Senate arena since 2015 in a futile effort to eliminate the Michael Morton Act. She started her legal career as a secretary in Johnny Holmes’ district attorney office shortly after graduating from the Louisiana State University and was so inspired by Holmes’ cadre of “law-and-order,” death penalty seeking prosecutors that she got a law degree from the South Texas College of Law. She continues to view the prosecutorial duty to disclose under Art. 39.14 through the “convict at any cost” lens of the Holmes/Rosenthal eras. She now has the distinction of being the only repeat recipient of the Texas District and County Attorneys Association’s “Law and Order Award“—a fitting prize for someone who has continuously tried to eliminate the Michael Morton Act, key legislation that has become the underpinnings of honest law and order.

Here is what Sen. Huffman’s Senate Bill 1124 hopes to accomplish:

• Allow prosecutors to disclose only evidence they deem relevant; and
• Allow the trial courts to withhold a defense request for evidence if the court feels the request is burdensome or infringes on victims’ or witnesses’ real (or imagined) security and privacy concerns.

These are the cases that would be impacted by Senate Bill 1124 and which are a burr under Sen. Huffman’s prosecution saddle: 

• Watkins v. State of Texas: “Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.”; 
• In re City of Lubbock: facts that may be divulged by or exist independent of the attorney or his agents are not work product; 
• In re State ex Rel. Ogg v. 228th District Court of Texas: statements made by a witness to a prosecutor during a trial preparation session are not “the thoughts of the State’s attorney relating the significance of particular facts. Instead they appear to be uncovered facts that exist independent of the attorney or his agents”; 
• Pope v. State, 207 S.W.3d 352: “Descriptions of potential witnesses and statements that would reveal whether the party had spoken to potential witnesses are not work product and are discoverable.”; 
• Axelson, Inc. v. McIhany: “the attorney work product privilege ‘protects only the mental impressions, opinions, and conclusions of the lawyer and not the facts.’“; and 
• State of Texas v. Heath: Article 39.14 can be violated by a prosecutor’s non-disclosure of evidence due to law enforcement’s failure to turn evidence over to the prosecution, even if law enforcement’s possession of evidence is unknown to counsel for the State.

Sen. Huffman, and the league of prosecutors standing by her, can play the victim and security cards all they want, but defense attorneys know what they really want: a discovery process that conceals rather than discloses—a process that allows prosecutors to do what the Williamson County District Attorney did to Michael Morton; allows corrupt prosecutors like Chuck Rosenthal to completely ignore discovery safeguards; and permits prosecutors like Johnny Holmes to send as many people to the death house as they can with little or no regard for their probable innocence.

Hopefully, this latest attempt by Sen. Huffman to gut the Michael Morton Act will fail like all of her other attempts.