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Michael Morton Act boosts transparency — and workload, attorneys say

By Esther Robards-Forbes - American-Statesman Staff

The CDs and DVDs are stacked on every spare surface in the Williamson County Attorney’s Office, which is handling four times the amount of digital evidence it saw a year ago. The DVD burners are running constantly, making copies of each image, video and document for every defense attorney preparing for their day in court.

It’s been like that for the past seven months, as the county attorney’s office, like other prosecutors’ offices around the state, has tried to comply with the Michael Morton Act, a law designed to prevent wrongful prosecution and imprisonment. The law was named after Michael Morton, who spent 25 years in prison after he was convicted in Williamson County of the murder of his wife. DNA evidence that was withheld from defense attorneys for years finally exonerated him in 2011.

The Michael Morton Act ensures that every piece of evidence collected by law enforcement ends up in the hands of both prosecutors and defense attorneys. Everyone applauds that transparency. But prosecutors note that gathering, cataloging and copying all of that evidence has vastly increased the workload in every case, from traffic violations to murder cases. Many offices have asked for additional staff to collect and copy all those files.

“I haven’t heard a single prosecutor say that we need to do away with the act,” said Rob Kepple, executive director of the Texas District and County Attorney’s Association. “It’s a matter of how to do it efficiently. And it’s going to cost some money.”

The Michael Morton Act has standardized practices around the state, Kepple said. Previously, prosecutors’ offices had the discretion to open their entire evidence file to the defense, or just hand over the pieces they believed were relevant.

“We really needed that legislation to dictate discovery,” said Williamson County Attorney Dee Hobbs. “We’ve had an open file policy in our office for a long time, but other counties didn’t. I’m all for it, but it is creating some financial strain to comply.”

Take a case of drug possession discovered during a traffic stop, for example.

In the past, police would send prosecutors the officer’s report of the stop and search, the dashboard video and statement from the suspect, if one was given. Now, police have to send the dashboard video of any other officers who stopped at the scene, even if it was for only a few minutes. Prosecutors have to collect the computer-aided dispatch report and any 911 audio. Witness statements, even if they might not be relevant, may be included, just in case.

And a copy of everything is made for the defense.

Prosecutors have to stay on top of every piece of evidence coming in from law enforcement, said Travis County District Attorney Rosemary Lehmberg.

“We started working with law enforcement to make sure someone didn’t leave a file in a desk drawer somewhere,” Lehmberg said. “We’ve got to have every scrap of evidence. It’s the way things should be, but we have been surprised at how dramatic the increase in the workload has been.”

A couple of months ago, Travis County agreed to add four paralegals for the district attorney’s office and four for the county attorney’s office, at a cost of more than $150,000 for the rest of this fiscal year. It would cost $503,000 to keep the additional staff on for next year.

Williamson County’s budget office recently recommended four additional workers in its fiscal 2015 budget at a cost of $190,000 to help with the additional workload.

Bastrop County has asked for two additional employees and equipment to comply with the law, at a cost of $100,000 in next year’s budget.

Hays County paid $18,000 this year for two temporary part-time assistants to help with the workload in the district attorney’s office. County officials said they are still figuring out their staffing plan for next budget year.

Defense attorneys agree that the law has been a game changer in some areas, but it means an increased workload for them too.

“It has leveled the playing field, and practically speaking there is more time involved in cases,” said Shawn Dick, a former Williamson County prosecutor now working as a defense attorney. “Before, I might have to watch two hours of video on a case. Now, I might have to watch eight. But I’m never going to complain about that.”

Dick said he’s heard about some pressure to change the act in the next legislative session, and he’s against that.

“It might cost more now, but how much did it cost to keep Michael Morton in prison for 25 years and all of the inquiries and hearings that followed?” Dick said. “The little bit that we spend now is nothing compared to the human suffering and tragedy if we put the wrong person in prison.”

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