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Discovery in Criminal Cases and Prosecutorial Misconduct
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 40thAnnual 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,Bradyis ‘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 whatBradyitself 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 inBrady. 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,Bradyrequires 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 withBrady,” 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 evidenceif 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” underBradyand 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 Brad y/ 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 runfour 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 inBradyviolations 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.
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Testimonials
John T. Floyd Law Firm
3730 Kirby Drive # 750, Houston
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What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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