Texas lawmakers are currently considering Senate Bill 1124, titled “an act relating to discovery in a criminal case.” Unfortunately, the Texas legislature is attempting to roll back the Michael Morton Act. For context, Morton was wrongfully convicted of murder and served 25 years in prison after government prosecutors withheld DNA evidence in his case. In response, a powerful discovery act was passed in 2013 that required Texas prosecutors to open their files. Now, statist lawmakers are attempting to roll back these protections.
It’s important to point out from the outset that this post is about a pending piece of legislation. Proposed laws can change, language can be adjusted, and thus this new law is still a work in progress.
Importance of Discovery in Criminal Case Proceedings
Discovery is an incredibly important part of any criminal case. One commendable goal of discovery is to allow a defendant knowledge of, and access to, the evidence against them. You generally have the right to face your accuser – to see what cards they can put on the table.
In practice, discovery in populated areas, such as Montgomery County, is sometimes a mess. Government lawyers routinely “discover” new evidence mere days before trial, and judges are in the position of having to exclude evidence or grant a continuance if the government did not disclose evidence to a citizen within a reasonable time frame. Discovery issues clog dockets, and lawmakers are trying to find ways to fix it.
The new law – as currently drafted – inserts language that a discovery request from the defense must be “specific.” In practice, accused citizens have used broad language from the old law in their written discovery requests as a way to say generally, “Give me everything. If it’s material, I want it.”
The new law would effectively place defendants in the uncomfortable position of having to guess what evidence the state has in order to write a “specific” request. The government is always powerful in comparison to a citizen. Police and state agencies can and should coordinate, gather material evidence, and disclose that evidence to a defendant.
The new law requires only “relevant” evidence to be disclosed whereas the old law requires any “material” evidence to be disclosed. Here’s the potential problem – who decides what is relevant? Under the new law, prosecutors get to decide what is relevant before they make disclosures. The law creates an outlet for nefarious government lawyers to withhold evidence that could be mitigating for an accused citizen. It’s certainly true that most prosecutors are ethical, but anyone practicing in the trenches knows there are a few bad apples that cannot be trusted.
Another potential pitfall – the new law allows judges to limit discovery requests if they rule that a particular request is “unduly broad or burdensome.” This language will open the floodgates for politically minded judges to deny discovery requests from a defendant.
Fair-minded judges who try to remedy many of these potential problems with their own discovery orders will be unable to do so – the new law forbids courts from requiring standards of discovery “greater than required” under the new law.
Risks of SB 1124 Outweigh Any Potential Benefits
Every piece of proposed legislation describes noble intentions, but the risks embedded in this proposed new law far outweigh the potential benefits. Every Texan, and every citizen of Montgomery County, deserves a fair and open discovery process. Texans should call upon lawmakers to preserve the Michael Morton Act.