How The Reciprocal Discovery Bill Betrays Mr. Morton and Mr. Graves

My Fellow Texans,

The Legislature is considering a  a Bill  that needs  every Texan’s  attention.  It is called the Reciprocal Discovery Bill.  I  have blogged on it already.  Tonight I want to explain how this bill amounts to the further abuse of a man this state has already abused.  The man I am talking about is   Mr. Michael Morton.

Mr. Morton was convicted in Williamson County of murdering his wife.  His conviction was overturned, only  after his lawyer, John Raley,  fought and proved his innocence.  Raley fought for 7 years to get  Morton out of prison, and he did it  pro bono. Mr. John Raley, represents the very best in our legal community.  Those who schemed to put Mr. Morton behind  bars for 25 long years, represent the very worst in our legal community.

Mr. Morton spent 25 years in prison  for a crime he did not commit. DNA evidence cleared him and identified the actual perpetrator.  Morton’s prosecutor withheld critical evidence from the Defense. The Defense was never told that Morton’s child said, Morton was away when a “monster” committed  the murder. Nor was the defense told that neighbors saw a stranger casing the house or that his wife’s credit card was used in San Antonio days after her  death. Nor was the defense told about a  blue bandana  found near the scene that would ultimately lead to the arrest of the real murderer of Mr.  Morton’s wife.

Mr. Morton has been proven to be an innocent man.  Yet he spent 25 years in prison for a crime he did not commit. As Texans we must be outraged.  Our family members and our fellow Texans have paid in blood so that we may all be free. My own great uncle, Sgt Alan Schein, gave his life at the Battle of the Bulge,  so that we might all be free.  As Texans , we have fought too hard to now silently let anyone rob us or our neighbor of our God-given liberty.

It’s past time for us to draw another  line in the sand.  Prosecutors in Texas have enormous power.  For the criminal justice system to work,  we need honorable prosecutors who follow the law.  The horror that befell Mr. Morton, did not come as the result of the action’s of an honorable  prosecutor. The horror that befell Mr. Morton, came at the hands of a rogue prosecutor who hid critical exculpatory evidence.

This is not the only time in recent years Texas has seen an innocent man released from  prison, after being convicted  at the hands of a  rogue prosecutor.  In Burleson County, Anthony Graves capital murder conviction was thrown out after he spent 18 years in prison. The 5th Circuit Court of Appeals found that Graves’ prosecutor obtained  the conviction in part by eliciting false stateements from two witnesses and by withholding statements that might have helped Graves.  The current Burleson County District Attorney investigated and concluded Graves was an “innocent man”. A special prosecutor concluded that there was no evidence linking Graves to the crime. Graves, spent 18 years in prison for a crime he did not commit.

As a society, we are aware that sometimes police officers go bad. We have all seen news reports about police officers who have broken the law.  They are human and like the rest of humanity, some police  officers will break the law. This is no indictment of police officers in general. It is simply a fact that there are those in uniform   who will violate the law.

As a society we often look upon prosecutors as heros, standing up for victims. That is  the typical depiction of prosecutors on television and in the mass media. As  a society, we generally look upon prosecutors in a favorable light. Given our societal predisposition toward prosecutors, it is hard  for us to “accept”  that some prosecutors engage in criminal conduct.  But, if we are to be honest with ourselves, we must admit that, like police officers, there are some prosecutors who violate the law to obtain convictions.  This is not an indictment of prosecutors in general. It is a fact that there are prosecutors who violate the very laws they are sworn to uphold to obtain a  conviction. Sometimes rogue prosecutors willfully violate the law,  hid evidence, and manufacture evidence, to obtain a conviction. Sometimes these prosecutors act more like criminals than prosecutors.  They bring disgrace on those honorable men and women who serve as  prosecutors across our state.

What has  become of the men who prosecuted  Morton and Graves?  What is their punishment for fabricating and hiding evidence?   Have they been sent to jail ,  disbarred or  even hounded from our midst.  No.  Their lives go on unfettered.

The Morton case  has  demonstrated that  Texas law provides  no real  protection against rogue prosecutors. A rare Court of Inquiry was held  regarding Morton’s prosecutor. While it was informative,  the Court of Inquiry can do nothing to really punish Morton’s prosecutor or protect us from another Morton Travesty.   Mr. Robert Kepple, the Executive Director of  The Texas County and District Attorney’s Association referred to the Morton Court of Inquiry  as a ” Court of Injury”. Presumably, he was  referring to Mr.  Morton’s prosecutor and the fact it might hurt his reputation.  But beyond that, the Court of Inquiry cannot prosecute that rogue prosecutor who  sent Morton to prison for 25 years for a crime he did not commit.

The Court of Inquiry drew a lot of attention about the Morton Tragedy.  And it gave rise to a lot  of ” high talk” about how we needed to “do something” to prevent another such horror from befalling one of our fellow Texans.  It is my observation that people who talk about ” doing something”, more often do nothing.

I believe we owe it to Mr Morton and Mr Graves to do our best to prevent any other rogue prosecutor from robbing one of our fellow Texans of decades of Liberty. A failure to directly address the root problem of the Morton Tragedy, would  be a  failure on the part of every Texan. But we Texans elect politicians to go  to Austin to pass our laws. We Texans are not stupid. We know to keep our eye on Austin. We know our  lawmakers are human, like the rest of us, and very capable of making  giant mistakes.

Such is the case with the  Legislature’s  current proposed remedy to the Morton Travesty.  The Legislature with its current proposed  reciprocal  discovery bill, is  failing to directly address the root problem of the Morton Travesty.

The legislature’s proposed solution is: A reciprocal discovery bill.  Among other things the bill would require  Accused Citizens in Texas to tell   prosecutors before trial their defense!  The bill  would also require every Accused Citizen in Texas to tell the prosecutor the names and addresses of all defense witnesses.  This is the legislature’s  proposed solution,  to protect us from  any more Morton  Travesties of Justice.

You don’t have to be a Rocket Scientist or a Brain surgeon  to see that something is very, very wrong here.  I am guesssing  I dont need to spell it out. Most of my fellow Texans have a pretty good nose for BS.  And that is  what we have here, BS.

Mr. Morton was  robbed of  his liberty by a rogue prosecutor.  Unless the Legislature directly addresses the  issue of rogue prosecutors,  Morton will not be the last of us to fall  victim to a rogue prosecutor. The Culprit in the travesty  that befell  Morton (and  Graves) was a  rogue  prosecutor. No one else. That it is an undisputed fact.

My fellow Texans, we  deserve to have our Legislature protect us from the rare, but extremely dangerous rogue prosecutor.  As such,  I ask: Why in God’s name, should the extreme misconduct of rogue  prosecutors ever lead  to any legislation requiring the Defense to do anything?  That makes no sense, none whatsoever.

The truth is quite simple. The reciprocal discovery bill has been on the shelves for a number of years. The proponents of the reciprocal  discovery bill have dusted it off and they are trying to use the Morton travesty to pass a bill that has nothing to do with the Morton tragedy. They are  cynically using Mr.  Morton’s victimization by a rogue prosecutor, to pass  a bill that has nothing to do with stopping rogue prosecutors. That, My fellow Texans is  precisely what  is happening here. It is disgraceful.  To use Morton’s  extraordinary sacrifice, as a basis  to pass a law that diminishes the  Accused Citizens’  ability to defend themselves, is a betrayal of Mr. Morton and all that Texas stands for.

The recipricol discovery bill needs to die. It’s very utterance in connection with the travesty that befell  Mr. Morton, is wrong.  It’s…. Untexan.

Senator Ellis has sponsored the reciprocal  discovery bill in the Senate. To be clear, Senator Ellis and his staff are most honorable and have repeatedly shown their concern for protection of our liberty. But even a smart Senator, such as Senator Ellis, with full good intention  can be mislead by others, who have  their own agendas.

We are told that we had better be quiet and  accept this bill or it  will be worse. We are threatened and menaced with the names of other Senators who will use this opportunity to make things worse. We are told if we do not accept this reciprocal discovery bill,  Senator Huffman will ride in on a broomstick and burn the Constitution. While Senator Huffman and I dont see eye to eye on much, I suspect as a lawyer sworn to Support the Constitution,  she would not take kindly to being  used as the Scarecrow in the Morton Tragedy.  I trust she will not use the Morton case to burn the Constitution.  Any State Senator who tries to use the Morton travesty to further their own interests or to promote some law and order agenda, will be quickly drawn and  quartered by the media.

HERE THE FAULT LIES SQUARELY ON ROGUE PROSECUTORS.

If the Evil that befell Mr. Morton (and Mr. Graves),  is to give rise to any legislation, that legislation must be directed squarely at the perpetrators of the evil. To protect our fellow Texans from the evil  that befell Morton , the legislation should be directed squarely at rogue prosecutors. Like  it or not, to fix  this problem we must deal with it head on. That is the Texas way. We dont need anyone from  up north to tell  us how to fix what’s wrong in Texas.  Texans are fair by nature. We see the problem and we will fix it.

Senator John Whitmire has  already  gotten us started in the right direction. He  is wise and recognizes  that to fix the problem we must go right at it.  He recognizes that  we Texans need protection from the rare, but very real rogue prosecutor.   That is why Senator  Whitmire  is on the right track, in proposing a bill that would allow for the filing of ethical grievances against rogue prosecutors.  Let’s hope the law is never needed. But as Woodrow F. Call said, ” Better to have it and not need it, then to need it and not have it”

We  must  not trivialize this Horror  that was inflicted by rogue prosecutors on Morton and Graves.  We owe it to these men to do everything we can to take prudent legal measures to stop future rogue prosecutors before they hurt anyone else.

Unless we want another innocent man or woman  to be robbed of his life, by a rogue  prosecutor,  we need to pass two simple laws.

First, we need a simple law,  that requires Prosecutors to furnish the Defense with police reports & witness statements. Period.

In most counties, prosecutors already furnish  the Defense with copies of the police reports and witness statements.  From the prosecutor’s point of view it makes sense and it helps resolve cases without trial.  When Defense counsel sees the Prosecutions reports and witness statements, he is  informed of the strength of the Prosecution’s case. Where the evidence indicates the accused citizen will  likely be convicted at trial, Defense counsel will  typically advise the accused citizen to enter into a plea bargain.  This is standard operating procedure  throughout most of  Texas.

Additionally, when provided with offense reports and  witness statements, competent counsel can effectively investigate the allegations.  When  Defense Counsel finds evidence that proves the allegation is false,  Defense Counsel often voluntarily shows the evidence he has developed to the DA.  Fair prosecutors dismiss  cases every single day.

Finally, there is the Constitution. Certainly an accused Citizen is entitled to know the  accusations against him. But the indictment or information which contains the allegation,  is  typically only a single  paragraph stating the accused citizen’s name and the crime accused.  The indictment or criminal information gives no real detail about the allegation.  The citizen accused faces the full power of the State and the Da’s Office. The prosecutors have an almost endless arsenal of weapons to use to prosecute citizens.  As  Earl Musick notes,   The  Citizen Accused is David to the State’s Goliath.  Basic fairness dictates that the citizen accused ought to know who his accusers are and what they are saying. Only by having the Offense Reports and witness statements does  the accused get to know this basic information.

Providing offense reports and witness statements to the Defense helps to resolve cases by plea bargain or dismissal.  Resolving cases  that dont need to go to trial, saves Texas Taxpayers  MONEY.

Offense Reports and witness statements should be provided to every accused citizen.

In most jurisdictions in Texas,  prosecutors are already doing this. But this matter is far too important to leave to the   discretion of  any single prosecutor. If Morton and  Graves taught us nothing else, they taught us that prosecutors must be legally Required to provide the Defense with offense reports and witness statements. Passing a simple law that requires prosecutors to turn  over offense reports and witness statements to the Defense will  help protect  us from  rogue prosecutors who send innocent men to prison while keeping their lawyers in the dark.  We are talking about liberty. Not a game. The fair administration of justice supports the passage of this simple bill.

We need a second simple law to protect us from rogue prosecutors.  We  need a  law that states ” that it is illegal for any prosecutor to willfully hid or manufacture evidence that leads to the conviction of an INNOCENT man.”

In making these recommendations it is my intention to directly address the cause of the Morton and Graves’ Travesties of Justice.  It is not my intention, in any way, to interfere with the lawful administration of  justice.

If we cannot Make things right, by directly confronting the cause of  such  inhumanity in Texas, than I say we do not deserve  to  call  ourselves Texans for  one  more day. We are Texans. I am confident, that if we behave as  We Are Texans, We will Do the Right Thing.

My Blog is entitled ” The Meaning Of  America”.  How Texas responds to the Morton tragedy will  most certainly define the meaning of Texas.

Robert  Fickman, Houston Texas

About Robert Fickman

Robert Fickman is a criminal defense attorney with 33 years experience in defending the citizen accused in both state and federal court. He is a past president of HCCLA and remains active in its mission.

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