In Texas, We Need Laws That Force Police and Prosecutors to Do the Right Thing: the Criminal Defense Reality
Posted on by Michael Lowe.
BuzzFeed, working with Injustice Watch, recently published an article entitled “Good Day for a Choke Hold.” Written by Emily Hoerner and Rick Tulsky, the piece invites readers with the caption, “[a] review of the Facebook accounts of thousands of officers around the US — the largest database of its kind — found officers endorsing violence against Muslims, women, and criminal defendants.”
Of particular importance to those of us living in Texas is a site discussed by BuzzFeed called The Plain View Project, which is a web site created by a Pennsylvania lawyer named Emily Baker-White. It is this site that is the focus of the BuzzFeed expose.
Seems Ms. Baker-White has gathered social media posts (along with comments and other public activities) by various law enforcement officers into a single database for all of us to peruse. You will want to know about those posts included in her database that are attributed to police officers from Dallas and Denison (including those on active duty).
Why? Ms. Baker-White’s work has collected lots of online commentary that might just – as described by BuzzFeed, “…undermine public trust in the police and reinforce the views of critics, especially in minority communities, that the police are not there to protect them.”
- Check out the database collection for active duty police officers in the Dallas Police Department.
- Check out the database collection for active duty police officers in the Denison Police Department.
If you scroll through some of these entries, you will see that the items are not new: some of the posts made by police officers are several years old. That should not matter much, given the shocking content found there.
Distrust of Texas Police Officers
Sadly, the database is not that surprising. Distrust of police officers is pretty commonplace among the Texas criminal defense bar.
Distrust of many police officers here in Texas isn’t limited to just the defense bar, either. Prosecutors have their own opinions about local law enforcement.
As an example, consider our discussion in “Police That Lie: More On The Secret Texas District Attorney Lists Of Police Officers Not Trustworthy To Take The Witness Stand.” This article delves into prosecutors’ secret “Brady Lists,” where police officers and deputy sheriffs who aren’t trusted to take the witness stand and testify are identified.
How bad are things with law enforcement today? Well, the Plain View Project and the Brady Lists give us all a big hint.
Down in Austin, there’s something else pointing to the lack of integrity and trustworthiness of Texas’ law enforcement today. It’s proposed legislation introduced in the 2019-2020 Texas Legislative Session by Dallas’ State Senator Royce West.
You may be surprised to learn that there’s actually a need for a law here, to make it illegal for the police departments and law enforcement agencies to not do their job.
Pending Legislation Commands Police to Stop Holding Back Evidence
Back in March 2019, Senate Bill 2114 was filed by Senator West. The bill moved out of Committee on May 14, 2019. Go here to track the bill online with the Texas Legislature.
Background for Senate Bill 2114
First of all, in any criminal proceeding, the prosecutor must rely on law enforcement not only to investigate crimes, but to collect the evidence needed in the prosecution of the criminal charges. It’s what makes the legendary TV show “Law and Order” work: there’s assistant district attorney Jack McCoy, episode after episode, waiting for police lieutenant Anita Van Buren’s team of detectives to do their job.
If the investigating officer (police officer, deputy sheriff, state trooper, etc.) does not turn over evidence to the prosecutor or reveal something a witness said to the ADA, what happens?
Right now, under Texas law there is nothing to compel law enforcement agencies to disclose anything they turn up in their investigations. There is no legal tool to force them to do so.
Furthermore, there’s no law that offers any kind of sanction or punishment for their decision to keep something back. Even if they intentionally decide not to release something (“willful failure” in the legislative vernacular), there is no worry about even a hand slap, much less anything more severe.
Proposed New Law: SB 2114
The proposed law will change this. Senate Bill 2114 works to legally mandate that the state law enforcement agency responsible for filing the criminal matter actually submit a written sworn statement signed by the investigating officer, where he (or she) swears that everything, specifically “all exculpatory, impeaching, or mitigating evidence” has been turned over to the prosecutor.
It also mandates that after the case has been handed over to the prosecutor, anything collected afterwards must also be turned over to the state’s attorney (and this must be done promptly, no foot dragging).
In other words, this new law makes it illegal for Texas law enforcement to keep things back from the prosecutor, specifically anything that may help the defense.
The punishment? The investigating officer can be disciplined under the authority of the Texas Commission on Law Enforcement.
There’s a new list, too. Senate Bill 2114 will force state law enforcement agencies to reveal to prosecutors the name of any employee who has been found guilty of misconduct related to state criminal discovery law requirements (Article 39.14, Code of Criminal Procedure). Which means, over time, the new law will create another “untrustworthy police officer” list independent from the current Brady lists.
Full Text of Proposed New Law
Here is the full text of this proposed legislation, which would go into effect on September 1, 2019. It amends Chapter 2 of the Texas Code of Criminal Procedure by adding Article 2.1397:
Art. 2.1397. DUTIES OF LAW ENFORCEMENT AGENCY FILING CASE.
(a) In this article:
(1) “Attorney representing the state” means an attorney authorized by law to represent the state in a criminal case, including a district attorney, criminal district attorney, county attorney with criminal jurisdiction, or city or municipal attorney.
(2) “Law enforcement agency” means an agency of the state or an agency of a political subdivision of the state authorized by law to employ peace officers.
(b) A law enforcement agency filing a case with the attorney representing the state shall submit to the attorney representing the state a written statement by an agency employee with knowledge of the case acknowledging that all documents, items, and information in the possession of the agency that are required to be disclosed to the defendant in the case under Article 39.14 have been transmitted to the attorney representing the state.
(c) If at any time after the case is filed with the attorney representing the state the law enforcement agency discovers or acquires any additional document, item, or information required to be disclosed to the defendant under Article 39.14, an agency employee shall promptly transmit the document, item, or information to the attorney representing the state.
Turning Over Evidence to the Defense: Remember The Michael Morton Act?
It’s not as if integrity was sufficient to keep things fair before now. It wasn’t that long ago that the Texas Legislature had the need to file the Michael Morton Act, found in Article 39.14 of the Texas Code of Criminal Procedure.
The Michael Morton Act is referenced in the proposed SB 2114. It is the law which defines what must be disclosed to the defense by the prosecutors in any criminal proceeding.
Under Article 39.14, Texas prosecutors are legally mandated to turn over to the defense attorney and his client all material evidence in the state’s file except for things that are specifically exempted by this statute.
Background for the Michael Morton Act
Michael Morton was arrested, charged, convicted, and sent to a Texas prison where he served 25 years for the murder of his wife, Christine. He was innocent.
The prosecutor had evidence in the file which would have exonerated Michael Morton. He did not turn it over to Mr. Morton and his defense attorneys. This evidence including not only: (1) the statement of Mr. Morton’s young son (three years old at the time), but (2) a bandana with DNA on it that was collected at the crime scene (not Morton’s DNA), and (3) evidence that a man in a van had been watching the home.
The prosecutor also kept back some really strong evidence that someone else killed Christine Morton other than her husband. This included the sale of a gun stolen from the home as well as Christine’s credit card being used after Michael was behind bars.
Michael Morton was eventually freed. We have discussed his case and exoneration before. See:
- “Prosecutorial Misconduct Spotlighted In Michael Morton Case as Texas High Court Releases Innocent Man” and
- “Innocence Project Finds Another Innocent Man Convicted of Murder in Texas but Loses Fight to Boot Prosecutor for Bias.”
The Michael Morton Act: Distrust of Prosecutors
From a legislative perspective, Mr. Morton lent his name to a 2014 law that requires prosecutors to allow the defense access to their file (with certain exceptions) once the defense asks to see it. Again, some may be shocked to learn of the need for the Texas Legislature to pass a law making this a legal requirement for the county and district attorney in a criminal case.
The Michael Morton Act (Article 39.14(a)) legally requires the prosecutor produce evidence “… material to any matter involved in the action and that are in possession, custom, or control of the state or any per on under contract with the state.”
It goes on to mandate that this is a continuing requirement, not just something applying to the initial discovery in the case file. Article 39.14(k):
If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.
Prosecutorial Misconduct in Texas
For criminal defense lawyers, it is not just the police officer or law enforcement agency that may have bias against the defendant or a desire to go after him or her regardless of justice or the facts. Prosecutors in the State of Texas have a long history of bad acts. Consider the following examples from our earlier discussions:
- Prosecutorial Misconduct: How Bad Is It? Dallas Chief Investigator Pleads Guilty To Taking Bribe
- Prosecutorial Misconduct in Texas Murder Trials: Prosecutors Fighting Against Misconduct Allegations
- Prosecutorial Misconduct Still a Big, Big Problem: District Attorneys Do Bad Things
- Prosecutorial Misconduct Allegations Against Four Top Texas District Attorneys: Update
- Prosecutorial Misconduct In Texas Murder Trials: Prosecutors Fighting Against Misconduct Allegations
- Prosecutorial Misconduct in Texas: Right Now, It’s An Appellate Fight.
Criminal Defense Perspective of Evidence Withheld by Police, Prosecutors
Anyone with any amount of time defending individuals accused of crimes here in the State of Texas is well aware that there are the good and the bad among both the state attorney’s offices (County Attorney, District Attorney) as well as the various law enforcement agencies.
Part of the job of any criminal defense is to aggressively pursue and review all evidence held by the state, particularly those things that the prosecutor may find troublesome to his or her victory. This must be a continuing concern for the defense lawyer throughout the case. It’s not just one look at the prosecutor’s file and you’re done.
Investigations into felonies may involve a significant amount of time, and a number of agencies in a joint task force scenario. Law enforcement collects the things that may become evidence at trial. They do not decide what is going to be admitted at trial; that’s up to the state’s attorney. They are responsible for gathering everything they can that deals with the possible criminal act (or acts).
Obviously, the prosecutor is dependent upon law enforcement to bring all potential evidence to him or her. It’s equally obvious that once the Michael Morton Act curtailed the ability of a bad prosecutor to hold back anything that might defeat his case, the temptation rose for law enforcement to fail in giving the state’s attorney everything they have. Even a cursory review of the posts collected in the Plain View Project (as discussed above) suggests that this temptation is very real and very threatening to us all.
This reality forces defense lawyers to deal in investigative arenas as well as fighting the courtroom fights like moving to suppress evidence that cannot pass legal muster. Having this new law in place goes a long way to helping return integrity to the system, and it is not only needed but long overdue.
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