Finally, “Open File” is the Law

More than 25 years ago, as a young law student working for a small criminal defense firm in Austin, I sat in a Williamson County courtroom and watched then-District Attorney Ken Anderson convict an innocent man of heinously murdering his wife.

Michael Morton spent 25 years in prison before he was released last year after it became clear to everyone, finally, that he was completely innocent. He lost his wife. He lost his freedom. He lost his relationship with his son.

How Open File Policy Would Help

Our system is not perfect. It is populated with human beings who are susceptible to error, pride, ambition, and a host of other human failings. I’m sure that Ken Anderson convinced himself that Michael Morton was guilty of the brutal murder of his wife. But, he had to overlook a lot of evidence and information that Michael Morton was not guilty of the murder. It appears, in fact, that he was in possession of evidence that would have aided the defense, but failed to turn it over to Michael Morton’s very able attorneys, Bill Allison and Bill White. Armed with the information that someone other than Michael Morton used his murdered wife’s credit card after she was killed while Michael sat in jail, or that Michael’s young son told investigators that it was not his father in the house when his mother was killed, but a “monster,” Michael Morton may have stood a chance at being exonerated and the real killer might have been caught before he murdered again (which he did). Recently, more than two and a half decades after Michael Morton went to prison for a crime he did not commit, now-District Judge Ken Anderson sat in a Williamson County courthouse as a defendant in a Court of Inquiry. The judge in that Court of Inquiry, after hearing days of evidence and the testimony of Michael Morton and Ken Anderson, ruled that Ken Anderson committed crimes in his prosecution of Michael Morton by, among other things, failing to turn over evidence that could have helped Michael Morton in his defense. Former District Attorney Ken Anderson was arrested and is facing those charges now.

Prosecutors have a special duty to see that justice is done. It is, or should be, more important to protect the innocent like Michael Morton, than to convict. I served almost 18 years as a prosecutor in Harris County, Austin (with the Attorney General’s Office), and as first assistant district attorney in Brazos County. Perhaps because of my experience working with Bill White and Bill Allison during the Morton trial, I was always pretty paranoid about making sure I did the right thing as a prosecutor. I always kept an open mind to the possibility that innocent people can be caught up in our justice system. I saw it happen more than once as a prosecutor and I deal with that reality every day in my practice as a criminal defense attorney. I wasn’t perfect as a prosecutor and I made mistakes, but I can honestly say that I never convicted an innocent person.

Unfortunately, to some prosecutors, it’s just a job. To others, it is about the war stories they get to tell about putting someone on death row or getting a quick verdict. And still, to others, it is a black-and-white world with no middle ground. The prosecutors association, TDCAA, trains quite a bit about the ethics of prosecution, but as I recently told the executive director of TDCAA, my good friend Rob Kepple, it’s not enough.

Open File Passed Into Law

Now, the Texas Legislature has taken a very positive step forward. They passed, and Governor Perry has signed, the Michael Morton Act, which will require prosecutors to maintain an “open file” policy, turning offense reports and witness statements over to the defense prior to trial.

It’s about damn time.

In defense of prosecutors, most prosecution offices around the state already have an open file policy. However, the policy varies from office to office and means one thing in one jurisdiction and something completely different in another. Now, it is the law of the State of Texas.

It’s a good start. But to avoid, or at least minimize, the chances that the life and reputation of another innocent person like Michael Morton will be destroyed, prosecutors have to do more than just give lip service to their duty to “seek justice, not convictions.” To truly do justice, prosecutors must put a great deal of personal thought into the idea that they are dealing with human beings, and not just files on their desks. They must assume, as I believe the law and their oath require, that every person they deal with is potentially another Michael Morton.

It’s called the presumption of innocence. I read that somewhere.