It’s not just typical Texan braggadocio to say Texas leads the way in fair and transparent criminal discovery. And as New York debates discovery reform, the Lone Star State could serve as a model of a modern, progressive approach to the issue.
Due to a groundbreaking 2014 piece of legislation entitled the Michael Morton Act, Texas prosecutors are now required to maintain an “open file.” This means we are required to disclose as soon as practicable the entire contents of our file—including items like police reports, witness names, DNA evidence, and surveillance footage. Every criminal defendant in Texas is provided this information in every case, enabling defendants and their attorneys to make an informed decision whether to plead guilty or go to trial.
This type of significant discovery reform was brought about by numerous widely-publicized Texas exonerations, including the remarkable case of Morton himself. Having been wrongfully convicted of the murder of his wife, he was finally freed after a 25-year fight to prove his innocence.
Remarkably gracious even after his long ordeal, Morton went on to champion the significant discovery reform legislation that bears his name.
Prior to the Michael Morton Act, Texas prosecutors largely operated under a criminal discovery system governed by a 1963 Supreme Court case under which prosecutors have a constitutional duty to turn over anything that may exonerate a defendant. This framework left it to a prosecutor to decide what to turn over to an accused.
Numerous wrongful convictions like Morton’s taught Texas that it was time for a significant change to the old “business as usual” approach to criminal discovery.
Of course, this sweeping reform was not enacted without some objections. Notably, some in Texas law enforcement predicted that this transparent approach to discovery might jeopardize the safety of victims and witnesses if their names and addresses were revealed. This was a valid concern. However, several sensible witness safety provisions were included in the Act, and after five years there hasn’t been any increased security concern for witnesses and victims.
Texas police and prosecutors are doing the necessary work to provide copies of reports and burning computer disks to provide to the defense, especially with the rise of police body cameras. However, there is hope in sight on this front as we are now actively leveraging technological solutions to efficiently move large amounts of information and digital media evidence to defense lawyers.
The Michael Morton Act has restored many Texans’ faith in their criminal justice system. I’m proud to report that the overwhelming majority of Texas prosecutors (a large and diverse group) have embraced these discovery reforms, regardless of political affiliation.
Occasionally a young colleague will ask, “Why would a prosecutor ever withhold any discovery from the defense?” I don’t really have a good answer to their question. I just tell them that cases like Michael Morton—and people like him—showed us there was a better way. I hope New York can learn something from our experience in Texas.
Bill Wirskye is the First Assistant DA for the Collin County District Attorney’s Office, part of the Dallas-Fort Worth area.