Blackstone’s Formulation: Texas SB 1611 and SB 825

One of the areas of law which I practice is criminal defense, and invariably, someone will ask something to the effect of, “How can you defend guilty people,” or something along those lines.

In response, I tell people that, many years ago, I met one of the attorneys who represented Michael Irvin during his circus trial for possession, and he was asked by one of the people close by how he could “defend that criminal.” His response was polite, and made a great impression on me. He told the man that his job wasn’t to “spring” criminals, but that his “job was to make sure that the State does its job.”

While not essentially profound, it is very necessary, and I am a believer in William Blackstone’s Formulation. And parts of the Book of Genesis, for those looking for something more authoritative. Without defense lawyers to protect individuals’ rights and make the State jump through all the hoops, you end up with a government that can throw anyone in jail, anytime, for anything, or nothing. I strongly believe that each accused is entitled to a strong defense and that defense attorneys are some of the strongest and most vital defenders of the U.S. Constitution and the Bill of Rights.

Without tireless defense attorneys and effective legislation, tragedies like the Michael Morton story quickly become the rule instead of the exception. For those who have never heard of Michael Morton, he was a man wrongly convicted (through gross prosecutor and police misconduct and indifference) of the murder of his wife, and spent nearly 25 years in prison for a crime he did not commit. He was exonerated in 2011. His life was literally destroyed by the unconscionable actions of a district attorney (who since became a judge, and has now been disbarred and found guilty of contempt of court) and the prosecutors in his office: his son was taken from him and told his father was a monster, and he spent nearly half his life up to the time of his release in prison.

I urge everyone to read Morton’s story, especially the Texas Monthly award-winning two-part article which will give a good idea of why most criminal attorneys work in defense of the accused. Morton has worked since his release to have laws changed in Texas to require a more open system of information sharing (known as “discovery”) in Texas criminal cases between prosecutors and defense counsel. He has been incredibly forgiving, much more so than I think I would have been in his situation.

Now, since we have passed the first day of 2014, Texas Senate Bill 1611, known as “The Michael Morton Act,” is officially the law. This legislation, which became law on January 1, 2014, requires that prosecutors turn over, after request, all information in their file on a defendant (not just the things that are exculpatory – tend to show innocence) without a court order. Previously, a district attorney or prosecutor was not required to turn over anything without an order from the court.

In addition, Texas previously passed Texas Senate Bill 825, which was signed into law and has now gone into effect. This law expands the grievance process for prosecutors who violate state law and harm defendants. SB 825 extends the statute of limitations for offenses involving evidence suppression by district attorneys. Under the old law, the four-year statute of limitations began when such offenses occurred (and often passed by while the defendant was in prison). SB 825 starts the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. So, in Michael Morton’s case, he had a chance to file a grievance with the State Bar of Texas against Ken Anderson. Though, in Morton’s case, the actions were so egregious that the State Bar itself moved against Anderson.

There is some question (especially on the prosecutor side) whether SB 1611 will really make much difference, since prosecutors were already supposed to turn over any information that tended to show innocence of the accused. In addition, SB 825 only gives more power to the State Bar of Texas to handle grievances against prosecutors that violate the rules and send innocent people to prison. It lacks, in my opinion, an expanded ability to bring criminal charges against dishonest prosecutors, who are, I truly believe, a very tiny minority of prosecutors. That being said, I truly feel that SB 825 is a big step forward for protecting individual rights and freedoms. Previously, a prosecutor who lied, cheated, and/or abused his or her office to convict someone wrongfully had an easy job of avoiding retribution. Now, if a person is released from prison on a wrongful conviction and can show prosecutor misconduct, that person has a chance to bring the prosecutor to some form of justice. It will hopefully discourage any prosecutor or DA who has previously skirted or ignored state law and endangered the rights of the accused.

It’s a step in the right direction.