The TDCAA has a long standing policy of being neutral on pending legislation. This needs to change. During the last legislative session, the result of this passivity was the passage of the Michael Morton Act, which expanded the defendant's right to discovery from exculpatory and mitigating evidence--"Brady material"--to include effectively any relevant evidence, including incriminating evidence that the state might wish to not even use at trial.

The bill mandates a whole series of actions that must be taken by both prosecutors and defense attorneys, no matter what the situation, no matter how absurd they may be. The implementation of this bill has proven to be extremely costly to the counties.

Even more importantly, it affords very dicey protection for informants and witnesses. As the TDCAA's speaker on the subject said at last year's conference: there will be cases the state will have to forego prosecution, in order to protect the lives of informants. Admittedly this will not happen often, and will only be the case when the defendant is an exceptionally violent and dangerous criminal. Thank about that. That is an extraordinary cost to the people of Texas for this act.

Against this must be balanced the good that this act does. Which happens to be zero. Discovery in Texas prior to the Michael Morton Act worked very well, and at a fraction of the cost of this Act. It provided real protection for vulnerable informants, and it precluded technicality traps by the defense, and unnecessary delays. Had the Michael Morton Act been on the books when Michael Morton was tried for the murder of his wife, it would not have afforded him one whit more protection than he enjoyed under the law as it was at that time. Michael Morton was not wrongfully convicted because the D.A. withheld incriminating evidence. He was wrongfully convicted because the D.A. deliberately withheld from his counsel exculpatory evidence. As the Court of Enquiry made plain, this was contrary to the law at that time. In short, he was the victim of shoddy police work and a rogue prosecutor. He was not the victim of a gap in the discovery law. You can read the entire decision by the Court of Enquiry here: http://www.innocenceproject.or...andersonfindings.pdf

The Association should come out publically for repeal of this ghastly and costly mistake, and then campaign vigorously to that end. Since the act is a costly unfunded mandate on the counties, county judges should be recruited to press for its repeal as well.

Repeal is very doable, but it will take a real effort by the majority of elected prosecutors to contact their state reps and state senators and explain to them why the bill was a bad idea, and why it should be repealed.

Keep in mind these facts.

1) The chief architect of this bill's passage was Lt. Gov. Dewhurst, who pushed this bill through both houses in such short time there was no time for a response by prosecutors and law enforcement. Dewhurst will not be the Lt. Gov. when the next legislature convenes.

2) The bill was passed at a time when there was a journalistic frenzy in Austin and Georgetown about Michael Morton's wrongful conviction and his nearly 25 years of unjust incarceration in TDC. Outside of the Austin area, most Texans heard very little about Michael Morton. In effect, the bill was passed due to hysteria rather than due to the facts. That has died down, and legislators, while they are away from Austin, can gauge just how little this issue seems to their constituents.

3) The bill was passed under false pretenses. A reading of the "Sponsor's Intent," is shocking in the sheer number of misstatements of fact. For example it states, "Brady v. Maryland requires prosecutors to turn over to the defense any evidence that is relevant in the defendant's case. However, Brady is vague and open to interpretation, resulting in different levels of discovery across different counties in Texas. That is why a uniform discovery statute is needed." False. Brady v. Maryland only requires the state to turn over mitigating evidence. This was later expanded to include exculpatory evidence. There is no Constitutional requirement that the state turn over "any evidence that is relevant." Moreover, as every prosecutor soon learns, Brady is not vague. It has proven to be a very workable case for 50 years in all 50 states, including Texas.

Here's another whopper: "CSSB 1611 will save attorney resources as well as taxpayers dollars by limiting discovery disputes and increasing efficient resolutions of cases, all while reducing the likelihood of costly appeals and wrongful convictions." We all know that the act is a huge money and time waster, and that it actually increases disputes over discovery.

Yet another: "Open file discovery also ensures each defendant is guaranteed his constitutional right to a defense, regardless of where he is charged. A defendant's chances to a fair trail often vary according to jurisdiction because of the lack of a uniform discovery law. A statewide criminal discovery policy ensures that no matter where a defendant is on trial, he is guaranteed to all of the protections of the constitution."

Actually, the constitution guarantees all defendants their constitutional rights in every county in Texas and the U.S. The Constitution does not require a state statute to take effect.

The bill's authors several times point out how wonderful an "open file policy" is, apparently oblivious to the fact that a TDCAA survey of prosecutors offices found only two out of over 330 prosecutors' offices that still had a closed file policy. Moreover, a closed file office is under the same constitutional compunction to provide the defense with mitigating and exculpatory evidence as an open file office.

4) The bill was passed without being properly vetted because it was rushed thru the legislature.

5) The governor who signed the bill will not be in office when the legislature convenes.

The Michael Morton Act will not be repealed all by itself. It will take action to repeal it. But if such an expensive and justice-contrary bill can be pushed through the legislature based on falsehoods and emotion, surely it can be later repealed with facts and reason, properly marshaled. And who else is there to do this but our Association? A prosecutor's clients are the people of Texas. Our elected representatives are owed our advice and expertise on criminal justice matters. After all, marshaling facts and reason in the service of justice is what prosecutors do.

Considering the chirping of crickets that I hear in response to this post, this isn't going to happen. Regardless of the reasons, trying to repeal "The Michael Morton Act" would be political suicide and those guys in Austin know that. You think any lawmaker wants to take that position at a hearing with Morton sitting in audience with cameras rolling?

Why would it be political suicide to repeal a bad law? As I make clear, the Michael Morton Act was passed in a fit of hysteria that was only to be found around Austin at that time. In the rest of the state, if you ask people who Michael Morton is, they will finally ask, "Is he a member of the NBA?" He really is not that famous.

Moreover, he was wrongfully convicted not because a prosecutor exploited a loop hole in the law, or because of a gap in discovery law. He was wrongfully convicted because a rogue prosecutor deliberately hid exculpatory evidence from the defense, contrary to the law. If you don't believe me, read the Court of Enquiry's report on the Ken Anderson case. I put the link there so you can easily get to it. The Court never said that what Anderson did was legal or ok under the law. In fact, the court was scathing in denouncing Anderson's actions as contrary to the law.

There is also a myth out there that all states have Michael Morton like discovery. I asked the DA of Syracuse, N.Y. about that at the Conference last week and he said in NY the state must turn over witness statements only on the first day of trial.

As long as legislation can be considered and passed based on logic, reason and common sense, then Terry is correct. (Also correct about the impact of this law, at least where I work.) When laws are promoted and enacted based on emotionalism and public outcry, then Barry has a valid point.

The question is, does anyone want to tackle the irrational by using rationality?

The only way to attack the irrational is with rationality. The emotionalism at the last session has subsided. For one thing, members have left Austin, and learned that Michael Morton is not on everyone's lips. For another, the Michael Morton Act is no longer an abstract idea. It is in place, and it's costs to the counties is very real. One of it's selling points, recall, was that it would reduce costs.

The best time to reach legislators is before the session starts when you can actually talk to them (instead of their 21 y.o. intern)with enough time to make your case. The Michael Morton Act is a fraud and it should be exposed as such.

But if everyone takes the defeatist approach, and never bothers, I can guarantee it will never be repealed. Bad ideas, over time, become "just the way things are," and eventually everyone thinks the rule is necessary. Here is an example: in most Texas courts, the judge sets an outside time limit on final argument. What would happen if he didn't set a time limit? Why, attorney's would drone on for hours! Right? I mean the rule is absolutely necessary.

I then prosecuted in N. Mex. for awhile, and judges never set such a time limit. The sky did not fall, and attorney's did not drone on for hours. They had their say, and then sat down.

In N. Mex. they have a rule that the state has so many days after arraignment to start a defendant's trial, or he gets to go free. However, the state can ask for an extension if done before the time runs out. At a meeting of the N. Mex. prosecutors conference, I asked the Chief Justice of the N.Mex. Supreme Court why they had this rule, since it was a rule they had invented many years before.

Some in the audience were shocked by the question. "I never thought about that--why do we have that rule?" one of the prosecutors later told me. Obviously, if you do away with that rule, the sky would fall in. Except we don't have such a rule, and the sky has not fallen.

So the time to repeal this fraudulent bill is now. And the way to do it is to start talking about it with your legislators now.