All across the State of Texas, local district attorneys are teaming up with judges to find creative ways to get prosecutors out from under the Michael Morton Act. For those of y'all not keeping up, the Michael Morton Act mandates items that the state must hand over to the defense in a criminal prosecution. The law was named after Michael Morton, the Williamson County man who spent 25 years in prison after being wrongly convicted of killing his wife.
The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.
Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.
I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.
Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.
Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?
Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?
If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.