Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

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Governor Perry signed the Michael Morton Act into law on May 16, 2013.  It’s intent is to broaden the amount and ease with which a criminal defendant is entitled to access information about a case.  The law goes into effect on January 1, 2014.

You can read the specific changes made to Texas Code of Criminal Procedure 39.14 here.

“Open-File Policies”

Though the effects of new legislation are never known until the law is put into practice and courts have had a chance to wrestle with the issues — this new law mandates a de facto “open-file policy” for all District and County Attorney Offices across the state only a bit broader.

D.A.’s offices in Texas typically have their own individualized policies about how they share information with the accused.  Many counties such as Dallas and Tarrant have had long-standing open-file policies meaning the Defendant had access to practically anything they requested from the prosecutors with certain exceptions.  Collin County began to have it’s open-file policy in 2011.

Previous Open-File Policies Offered No Guarantees or Real Protections

Even with open-file policies, the state was/is never truly bound to share certain information under the lame duck version of 39.14 unless formally ordered to produce information by a Judge.  Prosecutors frequently request Defendant waive certain rights in exchange for information about the case.  For example, in exchange for a police-report a Defendant would have to waive the ability to complain to the court about certain unrelated types of information not turned over or about when information would be due to be turned over.  Waiving rights is often a part of pleading guilty — but is difficult for those asserting their right to trial.

Open-file policies generally give Defendant’s no assurances as to when information would be disclosed.  Understanding police and prosecutors are human too — they often learn new information the Friday before a Monday trial or even after the trial has started.  The new information might not be given to the defense in time for meaningful use.

What the Michael Morton Act Changes

Easier Application Process:  Previously a Defendant would have to petition the Court and show “good cause” in order to get a limited amount of information — and a police report actually wouldn’t have been one of the things a court would order to be given over under 39.14.  Now a Defendant only needs to make a timely request directly to the prosecutor.  The Defense no longer needs to apply to the Court to order disclosure and attempt to prove “good cause” — a maneuver which would typically engender resistance from prosecutors.

More Information:  The Michael Morton Act requires production of offense reports, recorded statements, witness statements, and police statements.  The act even appears to allow discovery of work product of prosecutors and their investigators that are not “otherwise privileged.”

Ease in Production:  The bill allows for electronic discovery and duplication which typically eases the process for everyone.

Post Conviction Discovery:  The bill imposes production of exculpatory or mitigating evidence to the Defense which is not a new requirement.  What is new is required production of exculpatory or mitigating evidence even after a person is convicted.  This would almost certainly assist a person in clearing their name even after being convicted.

What the Bill Means for Those Charged with Crimes

It depends on where the charges are being brought.  As discussed above, many counties already had “open-file policies” which went a large way to alleviating many of the problems 39.14 previously presented.  For counties previously with a closed-file policy this act presents a tremendous change.

The act alleviates the Defense from some of the leverage prosecutors had in they will no longer have to waive unrelated rights in exchange for basic information.

While the act re-codifies the State’s obligation to produce exculpatory or mitigating evidence (called Brady material), this area remains a struggle because Defense lawyers and prosecutors frequently disagree about what constitutes Brady material due to it’s subjective nature.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.