New Texas Laws Targeting Prosecutorial Misconduct: The Michael Morton Act and new Tex Gov’t Code 81.072(b) Limitations – Do They Really Help Texas Citizens?

Yesterday, the Texas Legislature sent two bills over to Governor Rick Perry’s desk for his signature:  the new Michael Morton Act (SB 1611) and an amendment to the Texas Government Code Section 81.072 (SB 825).  It’s expected that Governor Perry will sign this bills into law, and soon we’ll all be under their sway.

Here’s the big question:  what exactly do these new laws do – and how do they impact Texans who are investigated, arrested, charged, tried, or convicted in a Texas courtroom through the efforts of a Texas prosecutor?  Are Texas citizens helped here?

1.  The Amendment to Texas Gov’t Code 81.072

This section of the codified Texas statutes deals with time periods within which cases can be filed — “limitations” are placed into law here as time deadlines and they are commonly known as “statutes of limitations.”  The new law amends an existing statute of limitations to provide for prosecutorial misconduct (something that Texas has in arguably epidemic proportions).

Now, assuming that Governor Perry okays SB 825, the time deadline clock starts to run when the wrongfully convicted person is released from incarceration and there is a four (4) year time deadline within which to file a lawsuit based upon a district attorney withholding or suppressing evidence in that wronged person’s case.

From the language of SB825 itself:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 81.072, Government Code, is amended by amending Subsection (b) and adding Subsections (b-1) and (b-2) to read as follows:

(b) The supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system. …

(b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution.
(b-2) For purposes of Subsection (b-1):
(1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09(d), Texas Disciplinary Rules of Professional Conduct.
(2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.
(3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.

This new bill when it becomes law essentially changes the law’s starting point:  before, the limitation’s clock began at the time that the evildoing happened (when the prosecutor did his or her bad acts).  For those who have been victims of prosecutorial misconduct, this gives them a clear and open field to investigate and pursue complaints to the folks that police law licenses in the State of Texas about bad prosecutors who have done bad things with evidence in criminal trials.  (Unlike now, where Ken Anderson is arguing a limitations defense in the Michael Morton prosecutorial misconduct case.)

This helps Texas citizens who have been wrongfully convicted to seek justice against district attorneys who, for whatever misguided reason, held back or suppressed or failed to share evidence at the criminal trial which would have helped the defense.  It does so by giving them four years to take action after they’ve been released from jail and that is a good thing.

2.  Michael Morton Act

It’s not clear how much the new Michael Morton Act, passed as SB 1611, will help Texans in the future when they have fallen victim to a bad prosecutor.  Of course, many are thrilled to see this law come into being and it’s being touted as an excellent action for the Texas Legislature to have taken. Others aren’t so sure what we’ll be dealing with once all that confetti gets swept off the streets.

The Michael Morton Act is designed to deal with prosecutorial misconduct and it is named after wrongfully convicted Texan Michael Morton (read more about his story here).  It does so, explains State Senator Rodney Ellis, by “… ensuring that all relevant evidence that speaks to a defendant’s innocence or guilt is revealed.  It creates a uniform, statutory “open file” criminal discovery policy for the State of Texas.”

You can read the Michael Morton Act in its entirety online here.

Here’s the thing:  read the language of this new law closely and you will not find any tools to deal with evildoing district attorneys, or “rogue prosecutors” as they are often called.

It is the intentional decision to hold back evidence that is at the heart of the Michael Morton case, and in this law named after that victim of prosecutorial misconduct there is no firm hand taken in how exactly to stop and to deal with district attorneys who decide for themselves that certain pieces of evidences should never make it into the discovery process and thereby into the hands of competent criminal defense counsel.

Would Ken Anderson, now found in contempt of court and appealing that ruling on limitations grounds, have been stopped by this new law?  That’s a good question.