No. ____________ In The RECEIVED COURT OF CRIMINAL APPEALS 5/27/2015 Court of Criminal Appeals ABEL ACOSTA, CLERK

Austin, Texas

In re David Carrillo Relator

On Appeal from Cause No. 2015-820,815 In the 1st Precinct of the Justice of the Peace Lubbock County, Texas

PETITION FOR WRIT OF MANDAMUS

Chuck Lanehart Allison Clayton State Bar No. 11891400 State Bar No. 24059587 Chappel, Lanehart, & Stangl, P.C. The Law Office of Allison Clayton Attorneys at Law P.O. Box 64752 1217 Avenue K Lubbock, Texas 79464 Lubbock, Texas 79401 (806) 773 – 6889 (806) 765-7370 Fax (888) 688 – 4515 Fax (806) 765-8150 [email protected] [email protected] Attorneys for Relator ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL Pursuant to TEX. R. APP. P. 52.3(a), the following is a complete list of the names of the parties and their counsel.

PARTIES COUNSEL Trial Counsel Chuck Lanehart Chappel, Lanehart, & Stangl, P.C.

1217 Avenue K David Carrillo Lubbock, Texas 79401 Defendant / Relator Appellate Counsel Chuck Lanehart Chappel, Lanehart, & Stangl, P.C.

1217 Avenue K Lubbock, Texas 79401 Allison Clayton The Law Office of B. Allison Clayton P.O. Box 64752 Lubbock, Texas 79464-4752 Trial Counsel Sushine Stanek Assistant District Attorneys P.O. Box 10536 Lubbock County Lubbock, Texas 79408-3536 Criminal District Attorney’s Office Respondent Appellate Counsel Jeffrey S. Ford Assistant District Attorney P.O. Box 10536 Lubbock, Texas 79408-3536

-i- TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL .............................................................. i TABLE OF CONTENTS .............................................................................................ii INDEX OF AUTHORITIES........................................................................................iii STATEMENT OF THE CASE ....................................................................................v STATEMENT OF JURISDICTION............................................................................vi ISSUE PRESENTED ...................................................................................................vii STATEMENT OF FACTS ..........................................................................................2 SUMMARY OF THE ARGUMENT .......................................................................... 3 ARGUMENT ...............................................................................................................4 MANDAMUS RELIEF IS NECESSARY TO PROTECT MR. CARRILLO’S RIGHTS AND TO COMPEL THE STATE TO COMPLY WITH ITS MINISTERIAL DUTIES A. The Writ of Mandamus ............................................................................. 4 B. Article 39.14(a) of the Texas Code of Criminal Procedure.................... 6 C. Mandamus Compelling the State to Comply With the Mandatory Provisions of Article 39.14 is Necessary to Protect Mr. Carrillo’s Right to Discovery .......................................................................... 10 PRAYER ......................................................................................................................13 CERTIFICATES ..........................................................................................................14 APPENDICES

- ii - INDEX OF AUTHORITIES Federal Cases Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803) ............................................................................4, 5 United States v. Denson, 603 F.2d 1143, (5th Cir. 1979) ...............................................................................6

State Cases Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) ..................................................................................6 In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) .................................................... 5, 6, 12 Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Crim. App. 2003) ...............................................................v Raesz v. Mitchell, 415 S.W.3d 352 (Tex. App.—Ft. Worth 2013, no pet.).........................................6 State ex rel. Rosenthal v. Poe, 98 S.W.3d 194 (Tex. Crim. App. 2003) .................................................................5

State Statutes TEX. CONST. art. V .....................................................................................................v TEX. CODE CRIM. PROC. ANN. art 4.04.......................................................................v TEX. CODE CRIM. PROC. ANN. art. 15.17 (Vernon 2015) ...........................................8 TEX. CODE CRIM. PROC. ANN. art. 39.14(a) ..................................................... passim TEX. GOV'T CODE ANN. § 22.21(a) ............................................................................v

- iii - INDEX OF AUTHORITIES (CONT'D) State Rules TEX. R. APP. P. 52 ......................................................................................................v TEX. R. APP. P. 52.3(a) ............................................................................................... i

Secondary Sources BLACK’S LAW DICTIONARY (2d pocket ed. 2001)................................................... 10 King v. Barker, 3 Burrow 1265 (1762) ..................................................................... 4 S.B. 1611, INTRODUCED VERSION, March 8, 2013 ................................................... 8 SENATE COMMITTEE ON CRIMINAL JUSTICE, BILL ANALYSIS, S.B. 1611, 83rd Leg., R.S. (2013) .................................................. 8 SEN. CRIM. JUSTICE COMM., SENATE SUBCOMMITTEE REPORT, 83rd Leg., R.S. (Mar. 28, 2013) ................................................................................ 8 TEXAS APPLESEED & TEXAS DEFENDER SERVICE, TOWARDS MORE TRANSPARENT JUSTICE: THE MICHAEL MORTON ACT’S FIRST YEAR 27 (2015) ............................................. 9 Tex. Comm. on Prof’l Ethics, Op. 646 (2014) ....................................................... 11 The Michael Morton Act, 83rd Leg., R.S., HEARINGS BEFORE THE CRIM. JUSTICE COMM. (Mar. 26, 2013) & THE JUDICIARY AND CIV. JURISP. COMM. (Apr. 29, 2013) ......................................... 8 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (3d ed. 1862) ................................... 4

- iv - STATEMENT OF THE CASE Nature of the Case This is a petition for a writ of mandamus. Relator has been arraigned for murder. He seeks discovery pursuant to Article 39.14 of the Texas Code of Criminal Procedure.

Respondent The Lubbock County Criminal District Attorney’s Office (DA) along with any person or entity under contract with the DA.

Trial Court Justice of the Peace, Precinct #1, of Lubbock County, Texas Course of the On April 18, 2015, Mr. Carrillo was charged by complaint Proceedings with two counts of murder. On April 22, 2105, Mr. Carrillo’s attorney requested the DA turn over its discoverable evidence pursuant to Article 39.14(a) of the Texas Code of Criminal Procedure. Defense counsel asked the DA to comply with the request within fourteen days. The DA failed to turn over any evidence. On May 17, 2015, the assistant district attorney assigned to the case told Mr. Carrillo’s attorney the DA would not turn over discoverable evidence until after grand jury proceedings. The instant petition for writ of mandamus follows.

-v- STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to Article V, § 5(c) of the Texas Constitution, Article 4.04 of the Texas Code of Criminal Procedure, and Rules 52 and 72.1 of the Texas Rules of Appellate Procedure.

The Court of Criminal Appeals traditionally has concurrent, original jurisdiction with the courts of appeals over mandamus proceedings. TEX. CONST. art. V, §§ 5, 6; Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003).

Despite this concurrent jurisdiction, traditional practice instructs the relator should first present a petition for a writ of mandamus to the appropriate court of appeals unless there is a compelling reason to not do so. Padilla, 122 S.W.3d at 803.

Relator in the instant case has not presented this petition for a writ of mandamus to the court of appeals because that court lacks jurisdiction to grant him relief. Relator requests the Court issue a mandamus against a county entity. The court of appeals only has jurisdiction to issue writs of mandamus against a “judge or a district or county court” or to otherwise enforce its jurisdiction. TEX. GOV’T CODE ANN. § 22.21(a), (b). The lack of jurisdiction by the court of appeals constitutes a compelling reason for bypassing the court of appeals. Consequently, this Court has, and should exercise, its jurisdiction over the case. See TEX. CONST. art. V, § 5(c); TEX. CODE CRIM. PROC. ANN. art 4.04; TEX. R. APP. P. 52.

- vi - ISSUE PRESENTED Do the discovery requirements of Article 39.14(a) of the Texas Code of Criminal Procedure begin only after the grand jury has indicted the accused, and is mandamus relief appropriate to compel a district attorney to comply with Article 39.14 before it has presented its case to the grand jury.

- vii - No. ____________ In The Court of Criminal Appeals Austin, Texas

In re David Carrillo Relator

On Appeal from Cause No. 2015-820,815 In the 1st Precinct of the Justice of the Peace

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF CRIMINAL APPEALS: DAVID CARRILLO, Appellant in docket number _______, submits this Petition for Writ of Mandamus in support of his request for the Court to enter an order directing the Lubbock County Criminal District Attorney’s Office (DA) along with any person or entity under contract with the DA to turn over discoverable evidence prior to initiation of grand jury proceedings.

-1- STATEMENT OF FACTS On April 18, 2015, the relator, Mr. Carrillo, was arrested on charges of murder. That same day, he was charged by compliant with two counts of murder in cause number 820,815, in the Justice Court, Precinct Number 1, of Lubbock County, Texas, and advised of the charges against him and of his rights. See TEX. CODE CRIM. PROC. ANN. art. 15.17 (Vernon 2015); State v. Carrillo, No. 2015- 820,815, Criminal Complaint (Apr. 18, 2015) (attached in Appendix A). Mr. Carrillo has remained incarcerated since the date of his arrest.

On April 22, 2015, Mr. Carrillo’s attorney filed a Notice of Appearance of Counsel and Formal Request for Compliance with Article 39.14 of the Texas Code of Criminal Procedure. (Appendix B). In it, Mr. Carrillo’s attorney requested the DA produce discoverable evidence within fourteen days. The DA failed to comply with the request. On May 17, 2015, the assistant district attorney appointed to the case emailed Mr. Carrillo’s attorney indicating the DA’s office would not produce any discoverable evidence until after the grand jury proceedings. (“Affidavit of Chuck Lanehart,” Appendix C). The instant petition for writ of mandamus follows.

-2- SUMMARY OF THE ARGUMENT The provision at issue, Article 39.14(a) of the Texas Code of Criminal Procedure, mandates “as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of [detailed items of evidence].” The only temporal limitation imposed by this statute is “as soon as practicable” after defendant’s request. This trigger was the result of intentional design by the Texas Legislature to ensure discovery in criminal cases was complete and prompt, thereby promoting a more transparent, fair, and efficient criminal justice system.

Despite this plain facial reading of the statute and the undeniable intent of the Legislature, the DA in Mr. Carrillo’s case has unilaterally interposed its own temporal limitations into the statute by taking the position its discovery obligation is triggered by indictment. Under this interpretation, no longer does the statute say the duty to disclose begins “as soon as practicable after receiving a timely request;” it now reads “as soon as practicable after receiving a timely request and after return of indictment by the grand jury.” This reading disregards the ministerial duties imposed by Article 39.14. Because there is no adequate remedy for Mr. Carrillo to redress the harm done to him by the State’s refusal to comply with statutory requirements, a writ of mandamus is necessary to protect his rights to discovery.

-3- ARGUMENT MANDAMUS RELIEF IS NECESSARY TO PROTECT MR. CARRILLO’S RIGHTS AND TO COMPEL THE STATE TO COMPLY WITH ITS MINISTERIAL DUTIES A. The Writ of Mandamus The writ of mandamus is, and has always been, a stopgap. Lord Mansfield offered this history of the writ: “It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” King v. Barker, 3 Burrow 1265, 1267 (1762) (Appendix D). Blackstone later explained the writ as a command from the court “directed to any person, corporation, or inferior court of judicature within the queen’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty . . .” WILLIAM BLACKSTONE, 3 COMMENTARIES ON THE LAWS OF ENGLAND 24-25 (3d ed. 1862) (Appendix E).

The writ of mandamus device was formally adopted into American law in Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803), which came to the Court as a petition for a writ of mandamus against then Secretary of State James Madison.

The Court explained Madison, in his role as Secretary of State, had certain duties as “a public ministerial officer of the United States . . . and if he neglects or refuses to perform them, he may be compelled by mandamus, in the same manner as other persons holding offices . . .” Id. at 141.

-4- The Court in Marbury spoke of the important role of the writ of mandamus: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Id. at 163.

The Court continued, “where a specific duty is assigned by law, and individual rights depend upon the performance of that duty . . . the individual who considers himself injured has a right to resort to the laws of his country for a remedy.” Id. at 166. The writ of mandamus is the device designed to protect the individual in these circumstances. See id. The Court then mandated, “to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy.” Id. at 169.

The writ of mandamus has passed through history relatively unscathed. In modern times it remains virtually the same as it was over 250 years ago—a stopgap to protect individuals’ rights when they otherwise have no protection.

And, as in Marbury, a party seeking a writ of mandamus must show that (i) he has no other adequate remedy at law and (ii) the act sought to be compelled is purely ministerial. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 215 (Tex. Crim. App. 2003).

-5- “No adequate remedy at law” means either the relator truly has no other recourse to seek vindication of his rights or, even if he technically does have a possible remedy it is “so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.” Weeks, 391 S.W.3d at 122. “The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought.” Id. It is available against any court or public official compelled by law to take certain actions. Raesz v. Mitchell, 415 S.W.3d 352, 353 (Tex. App.—Fort Worth 2013, no pet.) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (“A writ of mandamus will issue to compel a public official to perform a ministerial act”); United States v. Denson, 603 F.2d 1143, 1153 (5th Cir. 1979) (“The writ of mandamus is an order directing a public official or public body to perform a duty exacted by law. It may be issued to compel compliance with a variety of legal duties by a host of officials and bodies.”).

B. Article 39.14(a) of the Texas Code of Criminal Procedure Article 39.14 issues a clear directive to the State: Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any [of the enumerated items of evidence].

TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (emphasis added).

-6- There is no dispute this statute requires the DA to disclose its evidence to the defendant. The question presented in the instant case is when the DA’s duty to disclose begins. The answer is found on the face of the statute. The DA’s duty to disclose begins “as soon as practicable after receiving a timely request from the defendant.” Id. There is no reference to the procedural posture of the case. See id. There is no requirement the case be at a certain stage of development. See id. The statute does not give the DA any ability to deny the request; its commands are undeniably clear.

Pushback by district attorneys from these broad requirements is not surprising. The “as soon as practicable” requirement is a dramatic change from the previous law, which itself had been in effect since 1965. Under the old law, Article 39.14 merely required the court to order the State to disclose its evidence “before or during trial of a criminal action.” Id., amended by Act of May 16, 2013, 83rd Leg., R.S., ch. 49, § 2. Under this system, DA’s shared their files only if they decided, as a matter of their own, self-regulated internal policies, to do so. Even then, disclosure would oftentimes not occur until the case was far advanced in the criminal justice process. Unfortunately, this policy also resulted in instances where defendants did not ever receive full discovery in their cases, and innocent men and women were convicted despite exculpatory evidence held by the State.

-7- In reaction to these miscarriages of justice, in 2013 the Texas Legislature introduced Senate Bill 1611, known as the Michael Morton Act. Its author outlined the objectives of the Bill: (i) promoting efficiency of the criminal justice system; (ii) ensuring all defendants their “constitutional right to a defense”; and (iii) preventing wrongful convictions. SENATE COMMITTEE ON CRIMINAL JUSTICE, BILL ANALYSIS, S.B. 1611, 83rd Leg., R.S. (2013) (Appendix F). Testimony given at both the Senate and House hearings likewise reiterated many times over the objective of ensuring an open, transparent, efficient, and accurate criminal justice system. The Michael Morton Act, 83rd Leg., R.S., HEARINGS BEFORE THE CRIM.

JUSTICE COMM. (Mar. 26, 2013) & THE JUDICIARY AND CIV. JURISP. COMM. (Apr.

29, 2013).

The “as soon as practicable” language of Article 39.14(a) was actually not in the original bill. When the bill was originally introduced, it read “beginning no later than 30 days after the initial appearance of the defendant the attorney representing the state shall disclose . . .” S.B. 1611, INTRODUCED VERSION, March 8, 2013 (Appendix G). During Senate negotiations, however, the language was intentionally broadened from “30 days after initial appearance” to “as soon as practicable” after defendant’s request. See SEN. CRIM. JUSTICE COMM., SENATE SUBCOMMITTEE REPORT, 83rd Leg., R.S. (Mar. 28, 2013) (Appendix H).

-8- This change was made because those involved in amending the bill recognized “[c]ompetent representation requires analysis of the charges against the accused, as well as an independent investigation and evaluation of the evidence likely to be provided to the grand jury and/or admitted at trial.” TEXAS APPLESEED & TEXAS DEFENDER SERVICE, TOWARDS MORE TRANSPARENT JUSTICE: THE MICHAEL MORTON ACT’S FIRST YEAR 27 (2015) (Exhibit H) (emphasis added). In reviewing the State’s evidence, “defense counsel can . . . conserve precious criminal justice resources by seeking reduced charges or a no-bill at the grand jury stage of the case.” Id. (emphasis added).

Contrary to the office policies of many elected district and county attorneys, the Act contains only one condition for triggering the right to this production: the receipt of a “timely request from the defendant.” There is no reference to a case’s procedural posture or reservation of the State’s right to deny access to specified materials under certain circumstances. A request for discovery may be submitted at any point in the proceedings against the accused, and once it is received, the prosecution must respond “as soon as practicable.” The plain reading also is reflected in the Act’s legislative history. The original bill required discoverable information to be disclosed “no later than 30 days after the defendant’s initial appearance.” However, the clause was struck from the Senate Committee Report and replaced by the current statutory language, signifying that the Legislature considered and rejected the proposal to require discovery at a specific point in the case’s life cycle.

Id. This legislative history explains the clear mandates of the statute. The Legislature intentionally omitted trigger events for the statute apart from the defendant’s request.

-9- C. Mandamus Compelling the State to Comply With the Mandatory Provisions of Article 39.14 is Necessary to Protect Mr. Carrillo’s Right to Discovery In the case at bar, on April 22, 2015, Mr. Carrillo requested the State share its discoverable evidence under 39.14 requirements. (Appendix B). Mr. Carrillo allowed the State fourteen days to comply with his request. (See id.). Fourteen days have come and gone, and the State has failed to provide any discovery. It has indicated it will not comply with the statute until after indictment. (Appendix C).

The State’s refusal to comply with Article 39.14 is (i) an arbitrary (ii) disregard of clear statutory mandate done (iii) in defiance of Legislative intent.

The State’s policy is arbitrary because neither the words “indictment” nor “grand jury” appear anywhere in the text of Article 39.14. There is absolutely no language in the statute indicating the case must be past the grand jury, or any other specified stage, of the criminal proceedings. There is thus no basis for the State’s conclusion that it does not have to recognize a defendant’s rights to discovery until after it has made its case to the grand jury.

The State’s reasoning disregards clear statutory mandate because the statute offers no room for maneuvering around its requirements: “as soon as practicable” does not mean “after the grand jury indictment.” To the contrary, Black’s Law Dictionary defines “practicable” as “reasonably capable of being accomplished; feasible.” BLACK’S LAW DICTIONARY 543 (2d pocket ed. 2001).

- 10 - Simply put, the statute plainly mandates after a defendant has made his 39.14 request the DA must comply with the request as soon as it can. The DA in Mr. Carrillo’s case interprets Article 39.14 to allow it to wait until after the grand jury has indicted Mr. Carrillo before it chooses to come into compliance with Article 39.14. This interpretation is wholly unfounded. Neither practicing attorneys nor the courts entrusted with enforcement of the Legislature’s wishes can tolerate such a reading of the law. See Tex. Comm. on Prof’l Ethics, Op. 646 (2014) (Appendix I) (“Under Rule 8.04(a)(12) [of the Texas Disciplinary Rules of Professional Conduct] 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”).

Finally, the State’s position defies legislative intent. As discussed earlier, the Legislature originally did draft Article 39.14 so it would not be triggered until a certain point in the proceedings, i.e. thirty days after the initial appearance. The drafters intentionally removed that language, however, so defense attorneys could have the ability to evaluate the evidence against their clients before the grand jury proceedings, just in case such evidence could result in a no bill. The State’s current stance advances a policy specifically considered and rejected by the Legislature.

- 11 - Mr. Carrillo has a right to discovery. His right to discovery began after he requested discoverable evidence from the State. The State is denying him his right based on a position that contradicts the actual language and the statutory intent of Article 39.14. Mr. Carrillo has no means of enforcing his discovery rights—there is no procedure that will give him the immediate relief he is due other than a writ of mandamus. See Weeks, 391 S.W.3d at 122.

Moreover, Article 39.14 commands “the state shall” produce discoverable evidence as soon as practicable following the accused’s request. TEX. CODE CRIM.

PROC. ANN. art. 39.14(a) (emphasis added). Because the DA has no option to ignore the statute’s requirements, Mr. Carrillo has a right to the relief he now seeks. See id.; Weeks, 391 S.W.3d at 122. Accordingly, a writ of mandamus directing the State to comply with the requirements of Article 39.14 is necessary to the rights given to Mr. Carrillo by the Texas Legislature.

Mr. Carrillo has a pre-indictment right to discovery. See TEX. CODE CRIM.

PROC. ANN. art. 39.14(a). The DA has a specific duty assigned by law to turn over its discovery as soon as practicable after the defendant requests it. Mr. Carrillo has requested discoverable evidence, yet the DA has refused to honor that request. The Court ought to issue a writ of mandamus compelling the DA to comply with Article 39.14(a) of the Code of Criminal Procedure.

- 12 - APPENDIX C Affidavit of Chuck Lanehart with “Exhibit ‘A’” attached Dated May 19, 2015 APPENDIX G S.B. 1611, INTRODUCED VERSION, March 8, 2013.

By:AAEllis, Duncan S.B.ANo.A1611

A BILL TO BE ENTITLED 1 AN ACT relating to discovery in a criminal case.

3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 4 SECTIONA1.AAArticle 39.14, Code of Criminal Procedure, is amended to read as follows: 6 Art.A39.14.AADISCOVERY 7 Sec.A1.AADISCLOSURE BY STATE.AA(a) Subject to the restrictions provided by Article 39.15, beginning no later than 30 days after the initial appearance of the defendant the attorney representing the state shall disclose to the defendant ’s counsel and permit inspection, photocopying, and photographing of the following materials and information in the possession, custody, or control of all law enforcement agencies, investigatory agencies, and prosecutors ’ offices, any other governmental entity, or any non-governmental entity contracting for work with any government entity involved in the investigation of the crimes alleged or in the prosecution of the defendant, 18 (1)AAany evidence relevant to the defendant ’s guilt or punishment; 20 (2)AAany written or recorded statement made by the defendant, any witness, any law enforcement officer, or any other person that is related to the case charged, including offense reports by law enforcement or other government personnel and electronically recorded statements, if any;

S.B.ANo.A1611 1 (3)AAany written record containing the substance of any oral statement that is made by the defendant and that is related to the case charged; 4 (4)AAthe defendant ’s prior criminal record. If disclosure of a specific document reflecting the defendant ’s criminal history is not permitted by state or federal law, then the content of the defendant ’s criminal history shall be disclosed in writing. A judge shall on request issue an order requiring disclosure of the records if a court order is required for disclosure by state or federal law; 11 (5)AAany record of a criminal conviction or other criminal history admissible for impeachment under the Texas Rules of Evidence, of a witness the attorney representing the state intends to call at the trial, or has reason to believe may be called as a witness at trial by the State; 16 (6)AAany affidavit, warrant, or return pertaining to a search or seizure in connection with the case; 18 (7)AAany physical or documentary evidence related to the case charged that was obtained from or that belongs to the defendant or that the attorney representing the state intends to use against the defendant in the case charged and, on a showing of materiality by the defendant, the opportunity to test that evidence; 24 (8)AAthe names and addresses of the witnesses called to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence; 27 (9)AAany document or recording produced by or for an

S.B.ANo.A1611 expert witness related to the case charged; and 2 (10)AAany plea agreement, grant of immunity, benefit promised or conferred, or other agreement for testimony or assistance issued by the attorney representing the state or any law enforcement officer or agency in connection with the case. [Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees.

24 Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.]

27 (b)AAThe state shall give to the defendant, at the beginning

S.B.ANo.A1611 of jury selection, a written list of the names of all witnesses who the State reasonably expects to call during trial, as well as the criminal histories of those witnesses, in a manner consistent with state and federal law. Following the disclosure of a witnesses name, any party may request the court to order, on a showing of good cause, the disclosure of the last known address for the witness. A court, on request, may, and on a showing of good cause shall, order earlier disclosure of the names and addresses of all witnesses who the State reasonably expects to call during trial. [On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins].

20 (c)AAIf the defendant gives notice of an alibi under Section 2(c)(2), the attorney representing the state shall disclose to the defendant ’s counsel as soon as practicable the names of the witnesses of whom the state has knowledge and whom the state intends to use to rebut the alibi or the testimony of any of the defendant ’s witnesses called to establish the alibi.

26 (d)AAOn a timely basis, law enforcement and investigatory agencies shall make available to the attorney representing the

S.B.ANo.A1611 state and the attorney representing the state shall request a complete copy of the complete files related to the investigation of the crimes committed or the prosecution of the defendant for compliance with this article. Investigatory agencies that obtain information and materials listed in subsection (a) of this section shall ensure that such information and materials are fully disclosed to the prosecutor ’s office on a timely basis for disclosure to the defendant.

9 (e)AAExcept as otherwise permitted by this article, this article does not authorize the removal of physical evidence from the possession of the state, and any inspection of physical evidence shall be conducted in the presence of a representative of the state. A court shall, when requested and as necessary under the circumstances, order specific inspection procedures necessary to protect the integrity of the evidence and the ability to inspect it in a manner that does not compromise a defendant ’s ability to maintain confidentiality of work product and the attorney client privilege.

19 Sec.A2.AADISCLOSURE BY DEFENDANT. (a) After receiving the initial disclosure under Section 1 from the attorney representing the state, the defendant shall disclose to the attorney representing the state and permit inspection, photocopying, and photographing of the following materials and information: 24 (1)AAany written or recorded statement by a witness, other than the defendant, that is related to the offense charged, if the defendant intends to call the witness at trial; 27 (2)AAany physical or documentary evidence that the

S.B.ANo.A1611 defendant intends to use in its case in chief and, on a showing of materiality by the attorney representing the state, the opportunity to test that evidence; 4 (3)AAthe names and addresses of the witnesses called to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence; and 7 (4)AAany report produced by or for an expert witness the defendant intends to call at the trial.

9 (b)AAThe defense shall give the state, at the beginning of jury selection, a written list of the names of all lay witnesses who the defense reasonably expect to call during trial. Following the disclosure of a witnesses name, any party may request the court to order, on a showing of good cause, the disclosure of the last known address for the witness.

15 (c)AA(1) If requested in writing by the attorney representing the state, a defendant who may assert one or more defenses or affirmative defenses listed in Chapter 8 or 9, Penal Code, shall provide the state with written notice that the defendant may assert the statutory defense or affirmative defense. Notice shall be provided by the defendant not later than the 30th day before the date that jury selection begins or as soon as practicable after the date the defendant receives a disclosure under Section 1 to which the defense is responsive, whichever is later. If the State amends the information or indictment or files a new information or obtains a new indictment within 30 days of the beginning of jury selection, the defendant shall be allowed not less than 10 days after being served with an amended or new information or indictment, or having

S.B.ANo.A1611 received actual notice of the amendment in open court, to amend or supplement an existing notice or provide an initial notice. Any notice provided under this subsection is for purposes of discovery only and is not admissible at trial.

5 (2)AAIf requested in writing by the attorney representing the state, and if the attorney representing the state provides the defendant in such written request with the specific date, time, and place of the alleged offense, a defendant who will assert an alibi shall provide the state, not later than 20 days before the beginning of jury selection, a written response including the location at which the defendant claims to have been at the time of the alleged offense and the names of the witnesses the defendant intends to use to establish the alibi.

14 Sec.A3.AAEXCEPTIONS TO DISCLOSURE.AA(a) Neither the attorney representing the state nor the defendant is required to disclose materials or information that is: 17 (1)AArecorded proceedings of a grand jury, except as required by the Texas Rules of Evidence, other law, or court order; 19 (2)AAa work product, meaning written materials drafted by an attorney or the attorney ’s legal staff for their own use, including witness examinations, voir dire questions, opening statements,Aclosing arguments,Alegal research, or of records, correspondence, reports, memoranda, orAnotes prepared by theAattorney or by members of theAattorney ’s legal staffAto the extent they containAthe opinions, theories, strategies, or conclusions of theAattorney or theAattorney ’s legal staff.

27 Records, correspondence, reports, memoranda, or notes prepared by

S.B.ANo.A1611 the prosecuting attorney, its agents,Aor by members of the prosecuting attorney ’s legal staff are not work product as to any portion that contains potentially favorable or exculpatory or impeaching information as to guilt or punishmentAor information that may mitigate punishment. Disclosure is also not requiredAof any document of the attorney representing the defendant, or an investigator or other agent of the attorney representing the defendant that is made in connection with the investigation, prosecution, or defense of the case; or 10 (3)AAprivileged under a rule of evidence, an express statutory provision, the Texas Constitution, or the United States Constitution.

13 (b)AAThis article does not authorize disclosure of the name, address, or telephone number of a victim in violation of Chapter 57.

15 (c)AAA victim impact statement shall be provided to the defendant at the beginning of jury selection if the person completing the victim impact statement is disclosed by the State as a potential witness on its witness list or there is reason to believe that the person may otherwise testify at the trial. A victim impact statement is subject to disclosure as any other evidence or information if it contains exculpatory material.

22 Sec.A4.AACONTINUING DUTY TO DISCLOSE. If, subsequent to compliance with this article or a relevant court order, a party discovers additional material or information subject to disclosure, the party shall immediately notify the other party ’s counsel of the existence of the additional material or information.

27 Sec.A5AACERTIFICATE OF COMPLIANCE. Each time a party

S.B.ANo.A1611 provides discovery, disclosure, or notice required or permitted by this article or pursuant to court order, it shall file with the court a Certificate of Compliance listing the items provided or disclosed or the notice given. Any party may request any other party to acknowledge receipt of any discovery, disclosure or notice provided for by this article or required by court order and the party receiving such discovery, disclosure, or notice shall, when requested, acknowledge in writing, or on the record in open court, the receipt of any discovery, disclosure, or notice. On request of any party, the other party shall certify either in writing or on the record in open court that, to the best of its knowledge and after reasonable inquiry, the party has disclosed and made available all items subject to discovery and disclosure and has provided all required notices, and if not previously identified in a Certificate of Compliance shall identify each item of provided discovery, disclosure and notice. If further discovery is provided after the filing of a Certificate of Compliance, an additional or supplemental Certificate of Compliance shall be filed with the court, or announced on the record in open court, identifying the additional items of discovery, matters or information disclosed, or notice given.

22 Sec.A6.AAEXCISION. (a)AAExcept as provided by Subsection (b), if a portion of material or information is subject to discovery under this article and a portion is not subject to discovery, only the portion that is subject to discovery must be disclosed. The disclosing party shall inform the other party ’s counsel that the portion of material or information that is not subject to discovery

S.B.ANo.A1611 has been excised and withheld. On request, the court shall conduct a hearing to determine whether the reasons for excision are justifiable. Material or information excised pursuant to judicial order shall be sealed and preserved in the records of the court and shall be made available to an appellate court in the event of an appeal.

7 (b)AAExcision of a witness statement produced in accordance with the Texas Rules of Evidence is governed by that rule.

9 Sec.A7.AAPROTECTIVE ORDERS. On a showing of good cause by either party the court may at any time enter an appropriate protective order that a specified disclosure be denied, restricted, or deferred. "Good cause," for purposes of this section, includes threats, harm, intimidation, or possible danger to the safety of a victim or witness, possible loss, destruction, or fabrication of evidence, or possible compromise of other investigations by law enforcement or a defense offered by a defendant.

17 Sec.A8.AAIN CAMERA PROCEEDINGS. On request, the court may permit to be made in camera an excision hearing under Section 5(a), a showing of good cause for denial or regulation of a disclosure under Section 6, or any portion of a proceeding. A verbatim record shall be made of a proceeding in camera. If the court excises a portion of the material or information or enters an order granting relief following a showing of good cause, the entire record shall be sealed and preserved in the records of the court and shall be made available to an appellate court in the event of an appeal.

26 A court shall permit counsel for both parties to beApresent at the in-camera excision hearing, or,Afor portions of the

S.B.ANo.A1611 in-camera excision hearing as the circumstances require, unless doing so would result in a violation of a privilege under the Rules of Evidence or if the court cannot, through a protective or confidentiality order,Aachieve the purposes of the in-camera hearing. The court may issue such protective and confidentiality orders as areAnecessary to prevent dissemination of proceedings held in-camera and as to any material excised. A court order under this section must only be as narrow as necessary to achieve the purposes of the excision.

10 Sec.A9.AACONFERENCE. On request or motion of any party or on its own motion, the court shall hold a discovery conference to resolve any discovery, disclosure, or notice issue, to ensure that the parties are aware of their respective discovery, disclosure, and notice obligations under this article, or toAverify compliance by each party with this article. Any party who has not received required or requested discovery, disclosure, or notice, shall request a discovery conference to be held not later than 20 days before the beginning of jury selection to resolve any issue with respect to the discovery, disclosure, or notice.

20 Sec.A10.AACOMPLIANCE; SANCTIONS. (a)AAThe disclosures required under this article may be performed in any manner that is mutually agreeable to the attorney representing the state and the attorney representing the defendant or that is ordered by the court in accordance with this article. The order issued by the court may specify the time, place, and manner of making the required disclosures.

27 (b)AAIf the court finds that a party has failed to comply with

S.B.ANo.A1611 any of the provisions of this article, the court may order and compel such party to provide the required discovery or disclosure, grant a continuance, issue a protective order, take other appropriate action as necessary under the circumstances to accomplish the purposes of the required discovery or disclosure, or, and only if other remedial alternatives have been exhausted, prohibit the introduction of certain evidence, the calling of certain witnesses, or other relief necessary to assure justice. The court may not dismiss a charge under this subsection unless authorized or required to do so by other law.

11 Sec.A11.AACOSTS. (a) All reasonable and necessary costs related to a disclosure required under this article, including the photocopying of materials, shall be paid by the requesting party, except that an indigent defendant shall not be required to pay costs provided for by this article. Costs under this article may not exceed those provided for by the Texas Public Information Act.

17 (b)AAThe commissioners court of the county in which the indictment, information, or complaint is pending may not, as a result of any payment by the defendant of the costs required by this article, reduce the amount of money provided by the county to the office of the attorney representing the state, nor may it reduce the amount of money provided to a public defender ’s office as a result of costs paid to it under this article.

24 Sec.A12.AADISCLOSURE TO THIRD PARTIES. Before the date on which the trial begins, the attorney representing the state, the attorney representing the defendant, or an investigator, expert, or other agent for the attorney representing the state or the attorney

S.B.ANo.A1611 representing the defendant may not disclose, without obtaining approval of the trial court, information or witness statements received from the opposing party to any third party, other than to an investigator, expert, consulting counsel, or other agent for the attorney representing the state or the attorney representing the defendant, as applicable. Information or witness statements received under this article, and not otherwise made a part of a public record as part of judicial proceedings, may not be made available to the public without a court order permitting such disclosure.

11 Sec.A13.AADISCLOSURE OF CERTAIN CONTACT INFORMATION. (a) The attorney representing the state, without a protective court order or a hearing before the court, may excise from an offense report or other report any contact information of the alleged victim of an offense that is listed under: 16 (1)AASection 3g, Article 42.12; or 17 (2)AAArticle 62.001(5).

18 (b)AAOn request of the defendant, and on a showing of good cause, the court shall order disclosure to the defense of the alleged victim ’s contact information subject to reasonable limitations on further disclosure, which may include, as the circumstances require, an orderAprohibiting the attorney representing the defendant from disclosing the information to the defendant or others.

25 Sec.A14.AAPRO SE DEFENDANTS. This article, including the provisions regarding the nondisclosure of a witness statement or an offense report by law enforcement personnel, applies to a defendant

S.B.ANo.A1611 who has elected to proceed pro se only to the extent approved by the court.

3 Sec.A15.AATHIRD PARTY DISCOVERY. A party may obtain, other than from the office of the attorney representing the State, and other than documents or items provided by the attorney representing the state, documents from other persons, entities or third parties by serving such person or entity with a subpoena for such documents that provides a reasonable time and place for production of the documents. A person or entity served with such a subpoena may itself or through its counsel, before the time for compliance, object to or seek protection from the request. The court may enter any order appropriate under the circumstances to assure a reasonable time, place, manner, or scope of production. Unless the court orders otherwise, costs for production shall be paid by the party requesting the production, provided that such costs shall not exceed those allowed under the Texas Public Information Act.

17 Sec.A16.AACONFLICT OF LAW. To the extent of any conflict, this article prevails over Chapter 552, Government Code. 19 SECTIONA2.AAThe change in law made by this Act applies to the prosecution of an offense committed on or after the effective date of this Act and to any prosecution initiated after the effective date of this Act. The prosecution of an offense committed before the effective date of this Act and the prosecution of an action initiated before the effective date of this Act is covered by the law in effect when the offense was committed or the prosecution commenced, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed

S.B.ANo.A1611 before the effective date of this Act if any element of the offense occurs before the effective date and a prosecution is commenced before the effective date of this Act if a complaint, information or indictment has been filed or obtained by the attorney representing the state and the defendant has been arrested for such offense before the effective date of this Act.

7 SECTIONA3.AAThis Act takes effect January 1, 2014.

APPENDIX H TEXAS APPLESEED & TEXAS DEFENDER SERVICE, TOWARDS MORE TRANSPARENT JUSTICE: THE MICHAEL MORTON ACT’S FIRST YEAR 27 (2015).

Towards More Transparent Justice The Michael Morton Act’s First Year The cover image depicts a blue bandanna that was re- covered from the vicinity of Michael Morton’s home the morning after his wife, Christine Morton, was murdered.

Although no physical evidence connected Michael to the crime, Michael was charged with and eventually convicted of this offense. Throughout his case, prosecutors withheld other evidence collected during the original investigation that pointed towards Michael’s innocence. Michael served twenty-five years in prison before DNA testing obtained by the Innocence Project in 2011 of this bandanna cleared his name and implicated the true perpetrator: Mark Alan Norwood, who was subsequently convicted of this crime.

In 2013, the 83rd Texas legislature passed the Michael Mor- r ton Act to prevent future wrongful convictions and reinforce public trust in the criminal justice system.

The authors would like to extend our deep thanks to the Innocence Project for the use of this image.

First Edition © 2015, Texas Appleseed and Texas Defender Service. All rights reserved, except as follows: Free copies of this report may be made for personal use. Reproduction of more than five (5) copes for personal use and reproduction for commercial use are prohibited without the written permission of the copyright owners. The work may be accessed for reproduction pursuant to these restrictions.

Timing of Discovery

T HE PROVISION OF DISCOVERY AT AN EARLY POINT IN CRIMINAL PROCEEDINGS IS ESSENTIAL to the operation of a fair, efficient, and accurate justice system. Too often, defense attor- neys are unable to provide meaningful legal advice due to a lack of knowledge about the prosecution’s case. Competent representation requires analysis of the charges against the accused,129 as well as an independent investigation130 and evaluation of the evidence likely to be provided to the grand jury and/or admitted at trial.131 Access to key information— e.g., offense reports, witness names and witness statements—allows defense lawyers to evaluate the strength of the prosecution’s case, locate and preserve evidence that is help- ful to their clients’ defense,132 and assist an accused in making an informed decision about how to proceed.

For example, in an assault case, it is impossible for defense counsel to assess the degree of a defendant’s criminal liability without studying eyewitness accounts and the complainant’s medical records. There may be

evidence that the accused acted in self-defense or conducive to a streamlined criminal justice system. the complainant may have made exculpatory state- Yet, when coupled with unequal access to informa- ments to medical professionals—none of which can tion, such promises of favorable treatment substan- be uncovered unless the offense report, and the tially increase the risk that an innocent defendant names of bystanders and the complainant are pro- will admit guilt for a crime he did not commit.133 duced by prosecutors to defense counsel. In review- Prompt access to the state’s evidence allows the de- ing these materials, defense counsel can evaluate the fense to enter informed decisions regarding how to charges filed against the defendant, enter meaning- proceed and minimizes this “innocence problem.”134 ful plea negotiations and conserve precious criminal Wrongful pleas are a particular concern in Texas,135 justice resources by seeking reduced charges or a where the overwhelming majority of criminal cases no-bill at the grand jury stage of the case. 129130131132 are brought to a swift resolution. During the 2013 fis- An even playing field during the initial phases of a cal year, 96 percent of all district court (felony) con- case also increases the accuracy of plea dispositions. victions were obtained via a plea of guilty or nolo con- Prosecutors frequently incentivize guilty pleas dur- ing the initial phases of a criminal proceeding by of- 133. Although no study has been able to fully evaluate the frequency of “wrongful pleas” in the U.S. criminal justice system, it is well-documented that individuals frequently plead guilty to offenses that fering some concessions—typically a reduction in they did not commit. E.g., John H. Blume and Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty, (2014) Cornell Law Faculty Working Papers, Paper 113 at 22 [hereinafter the charges in exchange for bringing the case to a Blume & Helm] (detailing that indigent defendants accused of misdemeanor crimes frequently plead guilty to crimes they did not perpetrate in order to cut their losses); Lucian E. Dervan and Vanessa A. swift resolution. In theory, this bargaining process is Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s In- nocence Problem, 103 J. CRIM. L. & CRIMINOLOGY 1, 34 (2013) (finding in a clinical study that 56.4% of “innocent” participants accepted a plea offer).

134. See Eric Dexheimer, Delays create Texas’ unknown exonerees, AUSTIN-AM. STATESMAN, Apr. 19, 2014 (identifying twenty instances where defendants pled guilty to drug-related offenses and were 129. State Bar of Texas, Performance Guidelines for Non-Capital Criminal Defense Representation subsequently exonerated by DPS lab results).

Guideline 2.2(B)(1) (2011), reprinted in 74 TEX. BAR J. 616, 621 (July 2011) (stating counsel must 135. Texas has had several high-profile cases involving wrongful guilty pleas. Christopher Ochoa falsely “[b]e familiar with the elements of the offense and the potential punishment range”). pleaded guilty to raping and murdering Nancy DePriest in order to avoid a death sentence, and later 130. Id. at 4.1-3. testified against Richard Danziger. Both men were exonerated 12 years later after DNA testing confirmed 131. Id. at 6.1(a) (“Under no circumstances should counsel recommend to the client acceptance of a that another man committed the crime. See State v. Oakley, 227 S.W.3d 58, 59 (Tex. 2007); see also Ex plea agreement unless appropriate investigation and study of the case has been completed, including parte Ochoa, No. AP-74,246 (Tex. Crim. App. Dec. 19, 2001) (unpublished per curiam opinion); Ex parte an analysis of controlling law and the evidence likely to be introduced at trial.”). Danziger, No. AP-74,244 (Tex. Crim. App. Dec. 19, 2001) (unpublished per curiam opinion). In Dallas, 132. JUSTICE PROJECT, EXPANDED DISCOVERY IN CRIMINAL CASES 5-6 (2007), available at http://www. innocent defendants pleaded guilty and were deported or sent to prison for possessing a controlled sub- prearesourcecenter.org/sites/default/files/library/expandeddiscoveryincriminalcasesapolicyreview.pdf stance that, when finally analyzed, turned out to be powdered gypsum. Samuel Gross, et al., Exonerations [hereinafter JUST. PROJ. REPORT]. in the United States, 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY. 523, 535 (2005).

TOWA RD S M OR E TRANSPAR E NT J U STI CE : THE MI CHAE L MORTON ACT’S FI R S T YE A R 27 tendere (no contest),136 and nearly half of all disposed Statutory Requirements cases—45 percent—were left pending for 90 days or less.137 Misdemeanor cases are handled with similar Subject to the restrictions provided by Section alacrity. 138 Realization of the Morton Act’s mandate 264.408, Family Code, and Article 39.15 of this requires the prompt disclosure of discovery so that Code, as soon as practicable after receiving a timely relevant discoverable information can be put to use request from the defendant the state shall produce in all cases, not merely the ones that are brought and permit the inspection and electronic duplica- to trial. This intent is reflected in the bill language, tion, copying, and photographing, by or on behalf of which makes clear that the Act applies to cases re- the defendant[.]142 solved through plea bargaining and suggests that the discovery requirements are not waiveable.139 Yet, our On its face, this text requires that prosecutors research reveals that delays in the provision of discov- produce information to the defense at an early point ery remain a pervasive issue in Texas and that a num- in the criminal proceedings against an accused. ber of prosecutor offices ask defendants to waive their Contrary to the office policies of many elected dis- rights to discovery as a condition of a plea bargain. trict and county attorneys, the Act contains only In response to our Public Information Act re- one condition for triggering the right to this pro- quests, the vast majority of prosecutor offices re- duction: the receipt of “a timely request from the ported no written policy regarding when they will defendant.” There is no reference to a case’s proce- accept and/or respond to a defendant’s request for dural posture or reservation of the State’s right to discovery. Among those that sent written statements deny access to specified materials under certain of their policies only 20140 set out standards that circumstances. A request for discovery may be sub- comported with the statutory directive to furnish mitted at any point in the proceedings against the discovery “as soon as practicable” after a request is accused, and once it is received, the prosecution received.141 The remainder provide discovery only must respond “as soon as practicable.” This plain at a specific point in the proceedings—e.g., upon the reading also is reflected in the Act’s legislative his- filing of a formal charging instrument—or place con- tory. The original bill required discoverable infor- tingencies on the production of discovery that are mation to be disclosed “no later than 30 days after without any legal basis. As a result, many defendants the defendant’s initial appearance.”143 However, are not receiving the discovery to which they are en- this clause was struck from the Senate Commit- titled under the Morton Act. tee Report and replaced by the current statutory language,144 signifying that the Legislature consid- ered and rejected the proposal to require discovery 136. OFFICE OF COURT ADMINISTRATION, ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY: FISCAL YEAR 2013 40 (2014), available at http://www.txcourts.gov/media/467863/2013-Annual-Report9_26_14.pdf at a specific point in a case’s life cycle. [hereinafter OCA FY 2013].

137. Disposition data regarding criminal cases in Texas is published on the Office of Court Administra- The term “as soon as practicable” requires that tion’s website at http://card.txcourts.gov/ReportSelection.aspx (select “District Court Data Reports” and “Age of Cases Disposed” from the drop down menus and click “Continue,” on the following screen prosecutors provide discoverable information to the select the time period for September 2012 through August 2013) (last visited Dec. 15, 2014). The Texas government’s fiscal year runs from September 1 of the previous year through August 31. defense as soon as reasonably possible in light of the 138. OCA FY 2013, supra note 135 at 53, 66 (stating that 97.3 percent of all cases disposed in statu- tory county courts were resolved with a plea of guilty/nolo contendere, and 95.9 percent of all cases circumstances at hand—e.g., the amount of informa- disposed in constitutional county courts were resolved with a guilty/nolo plea).

139. See TEX. CODE CRIM. PROC. art. 39.14 (parties cannot agree to lesser discovery requirements than tion, its format, and resources available for process- the law mandates).

140. District attorney offices in Calhoun, Harris, Eastland, Kleberg, Leon, Lubbock, Midland, Milam, ing. Although no appellate court has interpreted the Moore, Newton, Tarrant, and Taylor counties and the 69th (Dallam, Hartley, Moore & Sherman counties) Judicial District had written policies that were consistent with their obligations under the Morton Act. phrase in the context of Article 39.14, civil courts County attorney offices in Blanco, Cooke, Franklin, Hartley, Kennedy, Montgomery and Williamson counties also had policies that conformed to the statute’s requirements. Dallas County defense lawyers have read “as soon as practicable” as requiring that reported that discovery materials are made available upon request, regardless of when the request is entered. Travis and Navarro counties do not accept discovery requests until specified periods of time a party undertake a particular course of action with- have elapsed (5 or 10 days, depending on the underlying charge), which is an improper restriction on the defense’s ability to request and access discoverable information.

141. In addition to these 20 jurisdictions, the Wood County District Attorney’s Office provides discovery at or before the defendant’s arraignment. Depending on how this policy is implemented—i.e., if discov- 142. TEX. CODE CRIM. PROC. art. 39.14(a) (emphasis added). ery is provided in an expeditious manner in all cases without regard to when the arraignment occurs it 143. S.B. 1611, 83rd Leg., R. Sess. (Tex. 2013) (originally filed version). may be consistent with the statute. 144. Id. (Senate Committee Report).

28 W W W.T E X AS AP P LES EED. NET . W W W.TE X A S D E F E N D E R . O R G APPENDIX I Tex. Comm. on Prof’l Ethics, Op. 646 (2014).

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 646 November 2014

QUESTION PRESENTED As a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, may a prosecutor require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyers’ cases?

STATEMENT OF FACTS A district attorney requires criminal defense lawyers to sign a confidentiality agreement as a condition to granting lawyers access to the prosecutor’s file (a so-called “open file” arrangement). The agreement allows lawyers to obtain discoverable information in the prosecutor’s file in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers’ clients, and their agreeing not to seek court-ordered discovery in any of their clients’ cases.

DISCUSSION Professional Ethics Committee Opinion 619 (June 2012) addressed the question of whether a prosecutor may require and defense counsel may agree “that documents the prosecutor produces to defense counsel may be shown to the defendant but that copies of the documents may not be given to the defendant[.]” The opinion observed: “Although the prosecutor has an obligation under Rule 3.09(d) [of the Texas Disciplinary Rules of Professional Conduct] to disclose to the defense all exculpatory or mitigating evidence, the Rule is silent as to the disclosure of other evidence and as to restrictions that may be placed on evidence and information disclosed.” This committee concluded in Opinion 619 that the Texas Disciplinary Rules of Professional Conduct permit such agreements, provided that, before signing such an agreement, defense lawyers must comply with their duties under Rule 1.03(b) to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Since this committee issued Opinion 619, the legislature passed and the governor signed the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14. Effective January 1, 2014, the Act amended article 39.14 of the Texas Code of Criminal Procedure to require that prosecutors disclose all information in a prosecutor’s file except the prosecutor’s work product and other information (such as information about victims and children) that is made confidential by law. Among other things, article 39.14 permits discovery and copying of all witness statements, not just the defendant’s statement. Cf. Tex. R. Evid. 615(a) (requiring production of a statement of a witness other than the defendant only after the witness has been passed for cross-examination during trial). Furthermore, article 39.14 does not require (or permit a prosecutor to require) any concession by criminal defense lawyers or their clients in order to receive such discovery nor must defendants seek a court order to secure the discovery mandated by that article. Article 39.14(a) requires the disclosure of the prosecutor’s file “as soon as practicable after receiving a timely request from the defendant . . . .”

Comment 1 to Rule 3.09 states that “a prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor.” Furthermore, Rule 8.04(a)(12) provides that a lawyer shall not “violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

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.

The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.

CONCLUSION The Texas Disciplinary Rules of Professional Conduct require prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures required by the act. Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to disclose, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases.