Sources: Williamson County Attorney’s and District Attorney’s offices, National Registry of Exonerations, Texas Criminal Defense Lawyers Association/Community Impact Newspaper[/caption]

After a jury sent Michael Morton to prison for nearly 25 years for a crime he did not commit, legislators were flooded with calls for legal change.

In 2013 the Texas Legislature passed the Michael Morton Act, named for Morton, whose 1987 murder conviction was cleared in 2011 because of DNA evidence. During his exoneration process, it was discovered the prosecution had not turned over all its evidence to Morton’s defense team.

The Morton Act amended a portion of the Texas Code of Criminal Procedure and requires prosecutors to provide all information relevant to a case to the defense attorneys upon request.

In May, Williamson County, where Morton was originally convicted, was recognized for its actions taken to implement legal changes to prevent wrongful convictions.

Texas has the most exonerations in the U.S. with 206 since 1989, according to the National Registry of Exonerations. Of those, 46 cases involved official misconduct, or wrongful actions by government officials that contributed to a conviction.

The Morton Act was largely meant to curb misconduct by creating a better flow of information to both sides in Texas courtrooms, said Tiffany Dowling, director of the Texas Center for Actual Innocence at The University of Texas School of Law.

“The hope is that we get more information on the front end, cases are better litigated at the trial stage and we’re not having to undo them in  post-conviction,” she said.

WilCo recognized

A study by the Texas Criminal Defense Lawyers Association released in March found the changes resulting from the Morton Act had a financial impact on many jurisdictions, though it was smaller in counties that had already moved toward electronically documenting evidence.

Both prosecutors and defense attorneys surveyed in the study praised the Williamson County Attorney’s Office for its steps taken to comply with the act. The county created a computerized log to show when evidence was available and if defense attorneys received it, and the office also chose to include all the evidence in cases, not just evidence deemed favorable, County Attorney Dee Hobbs said.

The office began moving toward the open file system years before the act went into effect, which reduced the burden of complying all at once, Hobbs said. In 2011 the office went paperless, and leaders met with law enforcement offices to discuss the new system for evidence.
According to Williamson County data, the county attorney’s office has spent about $150,000 to date on new equipment such as computers, software and DVD burners as well as hiring additional staff.

“There are a lot of expenses, but they’re all expenses moving the ball forward,” Hobbs said.

The amount of evidence logged by the county has already grown since the act went into effect in 2014—the County Attorney’s Office Evidence Division logged 35,048 pieces of media in 2014 compared with 8,955 in 2013. As of mid-June the division has logged 14,910 pieces in 2015.

Hobbs said the biggest change has been the time required to document evidence. The office must now log all media evidence received from police agencies, copy the media onto discs for defense attorneys, and convert and redact audio and video evidence for trials.

Law enforcement officers in Georgetown and the Williamson County Sheriff’s Office said the move to digital has increased the collection of evidence, though both said the offices have been providing all relevant evidence prior to the Morton Act.

“Before [the act], after so many days, we were getting rid of stuff; if it wasn’t evidence it would just go away,” Georgetown Police Chief Wayne Nero said. “But with Morton, if it has any evidentiary value, you have to keep it. And the more evidence we collect, the more the county and defense attorneys have to look at.”

Per the act, the prosecution must electronically document all relevant evidence, and both the prosecution and defense must acknowledge receiving the information before the trial or plea bargain phase. So if a defense attorney with an upcoming trial date requests evidence, Hobbs said other cases could be pushed back, which could come at a cost. Housing an inmate in the Williamson County Jail is about $160 a day, he said.

“We’re 100 percent on board with the ideology of the act—that’s why we had an open file policy before anybody told us that we needed to,” Hobbs said. “But logistically speaking, how do you keep from bogging down the system?”

The Williamson County District Attorney’s Office, which handles the majority of felony cases in the county, is also affected. The office handles about 2,400 felony cases per year, but the amount of evidence included is typically more than the County Attorney’s Office, evidence clerk Paul Davis said. The volume means turnaround time takes about three weeks, whereas the county attorney’s office typically takes less than three days.

Davis’ office now has two full-time employees and one part-time employee. He said he hopes the county will approve two more positions for the division, which could lower the turnaround time for evidence to two weeks.

“When we’re talking about prosecuting violent crime and making sure that the wrong person isn’t convicted ever again, I just don’t think you can put too high of a price on that,” Davis said. “I think that it’s worth the money.”

Reeling from old policies

Although the TCDLA study said more evidence is being provided to prosecutors and defense attorneys than before, Davis said he believes defense attorneys in Williamson County are just now realizing they can request information.

Prior to the act, Texas prosecutors were not legally required to open their evidence files to the defense in a criminal prosecution with a few exceptions, Davis said. Williamson County District Attorney Jana Duty implemented an open file policy when she was county attorney in 2005 and moved the policy to the district attorney’s office in 2013.

“I think a number of defense attorneys didn’t realize we had an open file policy from the beginning of 2013 to 2014, just based on the number of people that were asking for discovery,” Davis said. “I think they had all been conditioned by the past to not even ask, to not bother.”

Although many jurisdictions have had open file policies for years, some defense attorneys may not see a difference in the amount of evidence they receive as a result of the Morton Act, said Rob Kepple, executive director of the Texas District and County Attorneys Association. However, one change may impact the prosecution.

“The benefit from [the prosecution’s] side is no longer will the defense claim that they hid something,” he said. “So that may pay off greatly for prosecutors.”

Kepple said complying with the Michael Morton Act has been the most difficult for larger jurisdictions with a high volume of cases. The TCDLA study found counties still operating under a largely paper-based system were hit the hardest.
Davis said although the act has presented Williamson County with challenges, it encourages prosecutors to not just seek convictions, but to ensure justice is served.

“The Morton Act is very expensive, but I think it’s worth the cost,” he said.