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 Open Government Aids Defendants Too

Criminal cases opened through Michael Morton
Act makes big difference for prosecutors as well

by Ken Martin
© The Austin Bulldog 2015
Part 3 in a Series
Posted Wednesday April 15, 2015 11:01pm

Gary Cobb, Betty Blackwell and Craig McDonaldGary Cobb, Betty Blackwell and Craig McDonald“Prosecutors could read to us what they wanted us to know,” said defense attorney Betty Blackwell in describing the old rules for discovery in criminal cases. “There were no depositions, no interrogatories, no witnesses. All we (defense attorneys) were entitled to ... was the indictment.

“It was a trial by ambush.”

Blackwell, of the Austin-based Law Office of Betty Blackwell, in 2001 served as the Texas Criminal Defense Lawyers Association’s first female president. Last week she participated in a panel discussion on Litigation Developments at the City of Austin’s Open Government Symposium held April 9, 2015.

The discussion was moderated by Gary Cobb, who for 25 years has been with the Travis County District Attorney’s office and currently directs its Grand Jury and Intake Division. The panel also included Craig McDonald, executive director of Texans for Public Justice, whose criminal complaints resulted in the indictments of Governor Rick Perry and then-U.S. Representative Tom DeLay.

Blackwell and Cobb talked about the impact the Michael Morton Act (SB 1611) has had on the discovery rules governing criminal cases since it was signed into law by Governor Perry in 2013. The legislation, authored by State Senators Robert Duncan (R-Lubbock) and Rodney Ellis (D-Houston), was enacted in the wake of Morton’s exoneration after serving 25 years in prison for murdering his wife. Morton was convicted because prosecutors withheld key evidence. He was freed only after DNA testing pointed to another suspect.

New discovery rules boost criminal defense

“Morton mandates offense reports, witness statements” be given to the defense, Blackwell said. “That’s huge! Before that, we got witness statements when they were on the stand testifying.”

As pointed out in an article about the new discovery rules published by the Texas District and County Attorneys Association, the Texas Code of Criminal Procedure requires prosecutors not to convict, but to see that justice is done. “They shall not suppress evidence or secrete witnesses capable of establishing the innocence of the accused.”

The Williamson County District Attorney who prosecuted Morton and did not share all the evidence that implicated another suspect and other exculpatory evidence was Ken Anderson. After Morton was freed, a court of inquiry was convened. Ultimately Anderson resigned his elected position of district judge and, through a plea bargain, served 10 days in jail, gave up his law license, and was required to serve 500 hours of community service.

“Given how many prosecutors have gotten away with things like using a known liar to prosecute blacks on drug charges,” Blackwell said, the fact that Anderson got jail time was “amazing.”

Travis County was more open

Blackwell credited the Travis County District Attorney’s office under Rosemary Lehmberg, who took office in January 2009, for sharing evidence with the defense even before the Michael Morton legislation.

She said there is a constitutional right for a defendant to have mitigating evidence. But before the Morton Act, prosecutors had discretion in what to turn over to turn over and could decide whether evidence was material.

“It was a constitutional right but now it’s Texas law. That was huge,” Blackwell said. “A defense lawyer cannot rely upon the prosecution and we cannot do that if we don’t have the evidence.”

Cobb said, “We (prosecutors) don’t make that judgment any more. We give copies of everything we have” to the defense.

David EscamillaDavid EscamillaTravis County Attorney David Escamilla, whose office prosecutes misdemeanors, was in the audience and was called on to participate in the discussion.

“Our concern is we’re responsible” for providing the defense with all the evidence “but we’re counting on law enforcement to turn it over to us. We have to impress on law enforcement that we need everything,” Escamilla said.

Blackwell said the Texas District and County Attorneys Association has gone around explaining that under the Morton Act prosecutors and law enforcement agencies are, in efect, one entity and they need to turn all evidence over to the defense—and years down the road be able to prove it was provided.

Cobb added, “Before we had a responsibility. Now we have a duty.” A record is made of evidence provided to the defense and defense attorneys have to sign for it.

“It’s wonderful to work in criminal law in Travis County because of their decision to open files and provide as much information as possible,” Blackwell said.

Texans for Public Justice

McDonald said Texans for Public Justice started analyzing campaign contributions for state representatives in 1997 and that “caused a huge stir.”

“That research led to a mandate for electronic filing of campaign contributions,” he said. “They (lawmakers) said if you don’t pass this bill the only people who will have this information is those crazy people at Texans for Public Justice.”

The complaint against Governor Perry resulted in two felony indictments that the aspiring presidential candidate now is fighting to have dismissed. McDonald noted that the criminal complaint against Perry was filed before the governor vetoed money for Travis County’s Public Integrity Unit.

“We challenged the governor’s right to abuse power and threaten another public official,” he said.

McDonald said filing criminal complaints is a way to bypass dealing with law enforcement officials. “We believe that complaints should come from citizens,” he said.

Texans for Public Justice often files complaints with the Texas Ethics Commission. Out of an estimated 40 or more such complaints, he said, only one has been returned. “We have the facts and the law on our side.”

The most recent high-profile case in which McDonald filed a criminal complaint involves Texas Attorney General Ken Paxton, which is pending before the Collin County district attorney.

McDonald said his organization also uses civil lawsuits to open up records. He sued the Texas Supreme Court to get information about court dockets that are not subject to release under the Texas Public Information Act. The case didn’t succeed but a database of dockets and phone records were obtained, records essential to analyzing how campaign contributions may affect case outcomes.

Another lawsuit seeks release of records in which lawmakers who are attorneys sign on as co-counsel in civil cases and are then entitled to delay the case. As it stands, he said, “Any attorney can join as co-counsel and stop a suit in its tracks during the legislative session.”

Link: Video: 2015 Open Government Symposium: Open Government - Litigation Developments (Please note that this video was mislabeled as one of two videos carrying the title of Legislative Developments, and ATXN has been notified of the error.)