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Are you responsible for my file?

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January 04, 2017, 14:07
Michelle Putman
Are you responsible for my file?
I have a defendant charged with indecency with a child for touching his girlfriend's daughter. His own biological children are in a different county and have outcried that a guy there has sexually abused them. The other county has a case pending. The other county's defense attorney wants to use my case to try to say my defendant (the bio dad) did it, not his client. So apparently the judge in the other county has ordered that prosecutor to turn over all the contents of my file. Is the other county's prosecutor considered "the state" for purposes of my prosecution and vice versa? Seems like an awfully cumbersome burden to make every jurisdiction responsible for what another jurisdiction has in their possession.
January 04, 2017, 14:30
Jon English
The other County is not the "the state." The state is everyone involved in this prosecution, not other prosecutions.

Unless you have what's in their file. In which case it's in your possession and it doesn't matter.

At least, that's my theory. There isn't a CCA ruling that clarifies any of this yet.

I'll get you the cites I'm relying on and I'll give it a little more thought.
January 04, 2017, 16:35
rob kepple
My book "A Cowboy's Guide to Life" may say it best -- "If you get to thinkin' you're a person of some influence, try orderin' somebody else's dog around."

I suppose if a defense attorney has a theory he wants to run with he can subpoena witnesses from any county he wants, but I don't see a legal mechanism for a judge to order a prosecutor in his court to order you to give him your file....

What am I missing?
January 04, 2017, 16:39
Seems to me that this is yet another example of district judges attempting to expand the parameters of Art. 39.14 way beyond the Legislature's intent. I agree with Jon in that I believe the "State" is the prosecutor representing the state in that particular case and arguably those law enforcement agencies directly involved in the investigation of that case. But I do believe there's a huge jurisdictional issue when a district court begins ordering the production of records in the custody of governmental entities that are not directly before that court in that proceeding.
January 04, 2017, 18:27
Jon English
SCOTUS says "the State" is law enforcement working on that specific case. A Texas appellate court bought into this definition and said a DAs office wasn't responsible for turning over information the Attorney General's office had in another prosecution. State v. Moore, 240 S.W. 3d 324 (Tex. App – Austin, 2007).

That doesn't help you necessarily if this other judge thinks his authority is in the Morton Act. There's no definition of "state" there and no cases interpreting that question in the statute.

So I guess the questions in order of their importance are:
1) Can the judge make you turn it over to the local prosecutor? I don't think so. But my vote doesn't count.
2) Can the judge penalize the local prosecutor if you don't cooperate? Totally. They'd have to seek appellate remedies at that point, but someone may be held in contempt while all of that gets sorted out.
3) Is it worth it? You and the other prosecutor have to figure that out. Discretion is the better part of valor. Maybe this is a very good time to dig in and fight this and get everyone some much-needed answers to these interpretative questions. Or maybe you just give it over this time and fight it some other time.
February 12, 2017, 11:16
Michael Morton was convicted in Williamson County, but some of the evidence withheld by the state was information from Bexar County. If I remember the reporting from prosecutor's disciplinary hearing correctly, he did not disclose because he deemed the evidence irrelevant, immaterial, and/or inadmissible. He was convicted and lost his license.

So, it is probably fair to say that framer's intent regarding the Michael Morton Act was to create a regime under which Michael Morton's defense team would have received all the exculpatory, impeachment, and mitigation evidence in his case. Including that evidence for the other county.

Maybe if they want your file so bad they should serve you with a subpoena duces tecum and maybe put a limited protective order on the contents of the file. That would solve the jurisdictional problem and seems like it would give you sufficient cover for any disclosures on their end.

I'm not sure of post-Morton appellate authority for the question of "who is the state?" but there have been at least two AG opinions that nibble around the edges of the issue: KP-0041 and KP-0055.
June 30, 2017, 09:22
Martin Peterson
Who is "the state" may assume far greater importance in light of new subsection (h-1) to art. 39.14. This language could easily be interpreted to require any prosecutor to make affirmative efforts to discover more about the leniency or special treatment involved in the disposition of a witness' prior cases (whenever and wherever they occurred). Of course, one interesting issue will be: how are you supposed to learn whether your witness merely offered to testify in connection with the prosecution of another with whom he was confined?

Second big issue will be what should be considered "any information that is relevant to the credibility" of the witness? It appears the real intent is to strongly discourage any use of fellow inmate testimony.
July 03, 2017, 12:30
OK, I'm gonna throw a wrench into this and approach if from another angle.

Just off the top of my head....Is there any reason why we wouldn't want to give the State and the Defense that info? Is it an investigation in progress? We don't have to provide our notes or our written communications to our agents.

It will create a huge problem if this happens state wide (resources, costs, etc.). But, if we know something exists, why not give it to that prosecutor and that prosecutor gives it to Defense (or fights it as necessary.)

The bad part is it sounds like the Judge may have already made their mind up about what they are going to let in and the local prosecutor is working at a disadvantage.

In the end, they can probably get it by subpoena anyway and we would look bad trying to fight the subpoena unless we had a really good reason.

just some random thoughts