The Michael Morton Act continues to transform the landscape of criminal justice in Texas. Lawyers who graduated from law school since its inception will never experience the difficulties defense lawyers once faced in investigating and preparing their cases.1 Once, we had to cobble together investigations and guess at the State’s case, employ “examining trials”2 in hope of discovery, and invoke the Gaskin rule.3 Remember those relics of a cat-and-mouse system of revelation? Today’s young lawyers and prosecutors and future judges will never have known it.
Today, we can now build robust cases in defense of our clients, thanks to the Michael Morton Act. We can offer juries a more thorough telling of the other side of the story, ensuring reliability of their determinations. We can challenge junk science and bad investigations. Like never before, we can help to ensure justice.
Lawyers Can Read the Offense Report—Why Can’t Trial Courts?
The Act’s influence may ultimately impact law in new, unanticipated ways. This article explores how it may change the nature of three pretrial litigation practices: motions to quash, as-applied challenges, and sufficiency adjudications. First, let us look at motions to quash the indictment/information which are based on some defect in pleading.
It has long been the law in Texas that challenges to charging instruments are purely a matter of pleading—i.e., charging instruments could be challenged “based solely upon the language within its four corners, as a pleading.”4 No court could ever “quash” or dismiss or set aside any charging instrument based upon the production of evidence.5 Anything outside pleading defects has always been irrelevant.
This long-standing jurisprudence made sense in light of the fact that no one except the prosecution actually knew the details of the State’s case. No court would be in a position to make a decision regarding a charging instrument based on any evidence presented by the defense because it could not know the State’s best case for guilt. Maybe the judge suspected that the official charge really was bogus, but a court could hardly make that determination based upon a one-sided, self-interested version of the facts offered by the defense. Today, thanks to the Morton Act, courts can make those calls decisively and reliably.
Courts Can Terminate Bad Cases
The Michael Morton Act does not alter challenges to charging instruments per se. The defense attorney should continue the good practice of examining the indictment or information for pleading defects and moving courts to correct them. But the Morton Act offers more. It makes it possible for the first time in Texas legal history to make pretrial determinations beyond mere pleading defects. It offers the promise of trial judges ending baseless prosecutions by straightforwardly dismissing cases where no offense has been stated. Is this some new-found form of judicial power? Hardly.
Courts have long exercised the power to decide the validity of initial accusations—i.e., affidavits asserting criminality for warrants of arrest or search.6 The Fourth Amendment mandates that only a judge may issue warrants. The Fourth Amendment also “requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following [a warrantless] arrest.”7 Judges thus can and do routinely read documents generated by law enforcement officials and decide whether official action—arrest or search—is justified under law. If it is lacking, the judge terminates further proceedings by refusing the warrant or rejecting the affidavit.
It is true that this judicial determination can ordinarily be made only within the “four corners of the affidavit,” which is to say that the examination for sufficiency is confined to the information contained within the document itself.8 Yet even within this framework, a court can still make its determination based on matters outside the affidavit. Specifically, the court can suppress the government’s evidence if the defense attorney establishes by a preponderance of the evidence produced at a suppression hearing that the affidavit was based on material falsities.9 Thus, judicial authority has long extended beyond the rejection of an affidavit for lack of probable cause—they possess the power to suppress evidence obtained through a false affidavit through an examination of evidence outside the four corners of the police “pleading.”
There is no reason why this familiar framework of judicial review of an initial accusation cannot be applied to charging instruments after the Michael Morton Act. It is time for defense lawyers to move judges to act precisely as they would as if they were presented with a search warrant affidavit that fails to establish probable cause—or an accusation proven to be false, or an arrest warrant for described acts that do not constitute a crime. It is time for offense reports to be used offensively by the defense through pretrial litigation. It is time for courts to make these determinations from the offense reports both sides now possess. Texas law has run out of excuses.
Give them the offense report, as Tom Delay fervently hoped he could, and let a trial judge make the same determination appellate justices, justices of the peace, municipal judges, and magistrates of all stripes routinely make. Trial judges can read the Penal Code. Trial judges can also now read offense reports and surely determine whether a criminal offense is stated. If defense counsel finds herself searching an offense report for acts that might violate criminal law, perhaps she should file a motion, attach under seal the offense report, and ask the trial court to see if it can find a crime. If no crime can be found, then the court should dismiss the case and let that person go on with a personal life without further governmental interruptions.
A dismissal under these circumstances would save everyone time and energy best spent elsewhere on other cases where criminality is not so strained that it must be searched for. These cases involve people who should be spared any further experience with the criminal justice system. For those cases in search of a Penal Code offense to be violated, trial courts should dispatch them from the docket routinely and without hesitation.
You’ve Read the Report—No Crime
What if the offense report accurately references a penal statute, but the stated facts do not trigger it? What if a trial judge could read an offense report, assume all of it to be true, including hearsay, reasonable inferences, and everything in between, yet conclude the facts of the offense report do not violate law? The Michael Morton Act lets trial judges follow their constitutional role and do the right thing.
Before the Michael Morton Act, the Court of Criminal Appeals reaffirmed its preclusion of defendants challenging penal statutes in a pretrial setting on the grounds that the application of the statute would be unconstitutional. The rationale has been that only “during or after a trial on the merits” may a trial court “have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.”10
The Michael Morton Act removes this rationale. Courts can have all the “particular facts and circumstances of the case” necessary by reading the offense reports with the assumption that all assertions therein are true. Then it can consider the defendant’s argument that the statute under which he has been charged will be applied unconstitutionally against him. If it is unconstitutional to apply the statute, the court can dispose of the case without the necessity of trial, thereby conserving judicial resources and preventing an unconstitutional prosecution—precisely the purpose of pretrial determinations.11
Similarly, an accusation that does not constitute an offense could be dismissed pretrial. The long-standing objection—that the court cannot make that call because it cannot know the facts of the case—no longer exists since the Michael Morton Act. A judge can read, and there is now something for the judge to read which goes to the merits of the case itself. A judge can peer into the government documents and see if she can find a crime just as easily as she can re-read an affidavit in search of probable cause. Harassment prosecutions alone could be prevented merely by judges reading the offending email.
The co-defendants prosecuted for Election Code violations in the corrupt Tom Delay (former Texas congressman) scheme certainly would have benefited from the ability of the trial courts to reach the merits of their claim that they committed no crime. They certainly tried to get the matter settled pretrial, but the Court of Criminal Appeals precluded it.12 Ultimately, the Court would find that the alleged conduct failed to constitute a violation of the law.13 Had this procedure been available to the co-defendants to Delay’s scheme to circumvent Texas election laws, they would have escaped conviction, as he ultimately did.14
While Delay was denied this procedure, former Governor Rick Perry may yet win it. His pretrial writ appeal is pending at the Court of Criminal Appeals, and he is making this argument. Or I should say the Third Court of Appeals is begging the discretionary court to permit appellate courts to entertain “as applied” challenges to statutes. In a interminably long opinion, Ex parte Perry, No. 03-15-00063-CR (Tex. App.—Austin, July 24, 2015), the Third Court complains “its hands are tied” with such fervor and repetition that its opinion looks more like a brief to the CCA than an opinion. Keep your eye on Ex parte James Richard “Rick” Perry, PD-1067-15. On October 7, 2015, the Court of Criminal Appeals granted his petition for discretionary review, and the cause was argued on November 4, 2015. If Perry’s appeal maintains this speed, look for a decision by early Spring.
Ex parte Carrillo and the Vacuum of True Remedies for Discovery Abuse
In Ex parte Carrillo,15 the relator16 sought to compel the Lubbock County District Attorney to provide discovery “as soon as practicable,” and end its practice of denying discovery until after indictment. The Court of Criminal Appeals summarily denied motion for leave to file, but Judge Alcala issued a concurring opinion. She found that it was “unclear” whether the relator had a clear right to relief in light of the “leeway” that 39.14’s phrase “as soon as practicable” appears to provide. She did agree that the DA’s policy of withholding discovery until after indictment was wrong:
[T]he Legislature’s broad use of the phrase “any matter involved in the action” cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation. I, therefore, agree with relator’s assertion that, by delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the “as soon as practicable” language into “as soon as practicable after return of indictment by the grand jury.”
Judge Alcala also found that there exists two remedies for the State’s failure to abide by the Morton Act: “Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Really? Let’s see how that works out.
Discovery Abuse: Late Disclosures
Tardy Brady disclosures put the burden on the defense to demonstrate how it was prejudiced by the late revelation.17 That rule precludes a reversal if the defense attorney put the late disclosure to “effective use at trial.” This “effective use” rule puts the defense lawyer in a damned bind: Do nothing with the new exculpatory evidence and you have just increased the odds for conviction; be “effective” and waive goodbye to a new trial in which defense counsel would be far more effective. This state of affairs provides no remedy and no deterrence against late Brady disclosures. On the contrary, it effectively rewards gamesmanship whereby a prosecutor can avoid any consequence simply by disclosing Brady material just before or even during trial.
Tardy disclosures of prejudicial evidence, on the other hand, appear to put the burden on the State to justify why it withheld evidence of, say, its best prosecution witness or most prejudicial evidence until late in the process. Under current law, such evidence is excluded only if the violation of a discovery order is “willful.”18 Oprean v. State is the latest affirmation of the remedy of exclusion.19 What, then, is “willful” in the context of discovery abuse?
The Oprean prosecutor—previously ordered to give “[a]ll videos” to defense counsel—only did so after the jury found the defendant guilty. The video was the defendant’s unflattering previous DWI. The prosecutor knew about the videotape and had signed the original trial judge’s discovery order to disclose it before trial.
When the prosecutor sought to introduce the tape, defense counsel objected he had never seen it and moved to exclude it. At that point in the trial, a new judge had replaced the judge who had crafted the original discovery order. Facing the new judge, the Oprean prosecutor argued that the original order did not specify punishment evidence under Article 37.07—an apparent parsing of the discovery order. The prosecution also argued that defense counsel never asked for such 404(b) notice (if true, it is utterly inexcusable).20
“Because the prosecutor knew about the discovery order and chose to invoke Article 37.07,” a majority of the Court concluded, “she made a conscious decision to violate the plain directive of the discovery order.” It was, the Court found, a “calculated effort to frustrate the defense.”21 The Court implicitly recognized how the prosecution sought to manipulate the new judge by exploiting the original order.
If the prosecutor has deliberately delayed the disclosure of prejudicial evidence, do not move for exclusion until after jeopardy has attached.22 Otherwise, the State can appeal the exclusion of its evidence. This is precisely what happened in State v. LaRue,23 another case involving the late disclosure of prejudicial evidence.
Defense counsel in LaRue sought the results of DNA tests to defend his client accused of capital murder. The prosecutor got the lab report on April 17, 2002, and after repeated requests by defense counsel, finally disclosed it to the defense attorney—after the commencement of jury selection on February 13, 2003. The trial court excluded the evidence as the remedy for the prosecution’s discovery abuse, just as Judge Alcala contemplated in her Carrillo concurrence.
The Court of Appeals reversed, and the Court of Criminal Appeals affirmed. “The State should have produced the evidence in more timely fashion,” the LaRue Court frowned, “especially considering the repeated requests made by defense counsel.”24 But the Court found the prosecutor did not intend to violate the discovery order (which was vague as to time, place, and manner), nor did the prosecutor intend to harm the defense. The prosecutor may well have been grossly negligent, even reckless, but because he did not act in bad faith, he did not act “willfully,” the Court concluded, and hence the evidence should not have been excluded.
If the rest of the Court shares Judge Alcala’s confidence that the exclusion of evidence and appeal are adequate remedies, then the discovery process is likely to settle into something less than the promise of the Michael Morton Act’s “as soon as practicable” requirement. Unless bad faith can be proven, there will be nothing to discourage prosecutorial procrastination, and defense counsel should expect surprising prejudicial evidence to appear sometime around trial with the same leniency as last-minute Brady revelations—precisely the custom before the discovery statute was changed, as if the Morton Act was never enacted.
Enforcing the “As Soon As Practicable” Requirement
Competent defense counsel will seek discovery as soon as possible. Not only can defense counsel find witnesses and evidence while still relatively “fresh,” but a speedy investigation can inform the prosecutor that the case he was handed is actually half-baked, or that the police got the wrong person, or the case is tainted by corruption, or other insights. Grand juries can be better informed. In short, the system as a whole benefits greatly from the defense getting discovery quickly.
Earlier this year, the state defense bar discovered that in some jurisdictions peppered around the State, the prosecution had decided that it had no duty to disclose until after indictment. A district attorney’s policy of providing discovery based on some self-invented condition plainly violates Rule 8.04(a)(12) of the Texas Disciplinary Rules of Professional Conduct, as the Professional Ethics Committee of the State Bar of Texas has held. The Committee reasoned:
Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.
Tex. Comm. on Prof’l Ethics, Op. 646 (2014). See also Tex. Disciplinary R. Prof’l Conduct 8.04(a)(12), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (West 2014). These jurisdictions are a clear minority, one that continues to shrink.
Judge Alcala’s concurrence in Ex parte Carrillo affirmed that the setting of preconditions was a misguided reading of the plain language of the statute. But she also did not think the matter was remedied by way of an application for writ of mandamus. How, then, can the defense obtain timely discovery from DAs who have decided to comply with the statute only after indictment (or some other condition, like “upon signing this document”)?
The filing of a motion in the district court is useless because the court only obtains jurisdiction after indictment. Tex. Const. art. V, § 12(b). Instead, the defendant should file a writ application in the district court so that it has jurisdiction to enforce Article 39.14 of the Code of Criminal Procedure.25 The district court can then order the district attorney to comply with the statute by promptly and diligently providing discovery, as explicitly required by law.
As far as late disclosures, the current remedies are uncertain and inadequate. If the courts will do little else than give occasional stern lectures, the legislature may need to step in. I would suggest a statute that gives the defense an option: a mandatory continuance for a period of time that would ensure the full and fair presentation of the newly disclosed evidence or a mandatory mistrial in cases of late Brady disclosures. My bet would be that this form of prosecutorial misconduct would evaporate pretty quickly, and the “as soon as practicable” would be honored as if it were mandatory Texas law (it is).
As for late disclosure of prejudicial evidence, I would give the defense the option of a mandatory continuance to investigate and challenge the newly disclosed bad evidence or exclusion of the evidence. I would also tie the exclusion to its effect on the trial and not the good or bad faith of a particular prosecutor.
In the same way Brady violations are regarded,26 the trial judge should not care so much why the disclosure was so late, but should consider its degree of prejudice to the defendant’s legal defense. Put another way, I would have the unethical prosecutor have his bar card yanked for bad faith later, but I more immediately care about the fairness of the proceedings against my client. I want a remedy that speaks directly and effectively to this basic interest.
Trial judges can readily exclude such evidence via the notice provisions in the evidentiary rules and can also sanction the prosecution for deliberate sandbagging. Cases where the prosecutor acted in bad faith are easily remedied by a diligent court. Absent those scenarios, however, trial courts should fully exploit their authority to discourage prosecutorial gameplay.
I have not asked Michael Morton about his views on the procedural and ethical considerations of how to deal with this new frontier of prosecutorial misconduct. But I believe that if he had to choose between well-informed lawyers before trial and the disbarment of a prosecutor 25 years later, he would opt for the former. He, like anyone else accused of crime, should not have to choose, but be guaranteed both a fair trial and an honest prosecutor. We need truly adequate remedies against this form of misconduct—remedies we do not currently have, but the Michael Morton Act surely demands. Foremost, we must ensure fair trials so that the innocent may be acquitted. We can get to disbarments and 10-day sentences later.
1. For a taste, the reader is referred to “Texas Discovery: Where We Were, Where We Are Headed” (Voice for the Defense, November 20, 2013).
2. Tex. Code Crim. Pro. 16.01.
3. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1962).
4. State v. Seibert, 156 S.W.3d 32, 36 (Tex. App.—Dallas 2004, no pet.)(emphasis added).
5. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994)(Clinton J., dissenting).
6. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925).
7. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
8. See, e.g., Hegdal v. State, 488 S.W.2d 782 (Tex. Crim. App. 1973); McLennan v. State, 3 S.W.2d 447, 448 (Tex. Crim. App. 1928).
9. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
10. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).
11. Weise v. State, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)(pretrial as-applied challenges are appropriate “for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served”).
12. Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010).
13. Delay v. State, 465 S.W.3d 232 (Tex. Crim. App. 2014).
14. Full disclosure: I wrote the amicus brief on behalf of Texans for Public Justice and argued that Tom Delay was guilty and his conviction should be affirmed.
15. Ex parte Carillo, Nos. WR-83,345-01 & WR-83,345-02 (Tex. Crim. App., June 26, 2015).
16. Relator was represented by Chuck Lanehart, Allison Clayton, Laurie Key, Dick Baker, and Philip Wischkaemper.
17. Little v. State, 991 S.W.2d 864 (Tex. Crim. App. 1999).
18. Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). The majority opinion also left open the possibility of exclusion of evidence for negligent or reckless failure to comply with a discovery order “if the appellant suffers some disability by virtue of the lack of discovery and the trial court takes no timely corrective action.” Id. at 855 n.8.
19. Oprean v. State, 201 S.W.3d 724 (Tex. Crim. App. 2006).
20. If you hear the word “besides” in an answer for the quest for truth, keep asking.
21. Oprean at 728.
22. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996). In non-jury trials, jeopardy attaches under the federal constitution when the first witness is sworn or the judge begins to hear evidence. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Under the Texas Constitution, however, jeopardy attaches in a bench trial when both sides have announced ready and the defendant has pled to the charging instrument. State v. Torres, 805 S.W.2d 418 (Tex. Crim. App. 1991). For purposes of precluding a State appeal, you should follow the federal rule.
23. State v. LaRue, 152 S.W.3d 95 (Tex. Crim. App. 2004).
24. Id. at 97.
25. The application for writ of habeas corpus should cite the district court’s broad authority under Article 5, § 8, of the Texas Constitution to issue writs. It should also remind the court of its inherent authority to manage its own docket. State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002).
26. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct 1555, 131 L.Ed.2d 490 (1995)(“the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).