AUSTIN (KXAN) – A recently-enacted state law aimed at broadening the disclosure of evidence in criminal cases is causing concern among police leaders and prosecutors alike, who fear the impacts of what they say is increased workload.
“It’s a good law,” said Austin Police Chief of Staff, Raul Munguia. “(But) it may need some tweaking.”
The Michael Morton Act, Texas Senate Bill 1611 (pdf), went into effect in January after being signed into law by Gov. Rick Perry in May 2013.
Morton was convicted of murdering his wife and spent nearly 25 years in prison before it was revealed a prosecutor withheld evidence that could have exonerated him. DNA evidence showed another man committed the murder and was convicted in another killing after Morton’s conviction.
Lawmakers unanimously passed the bill to avoid a repeat of such a travesty of justice. Governor Perry called it “a major victory for integrity of the judicial system.”
Scramble for Evidence
Since the start of 2014 though, police agencies and court administrators have been scrambling to abide by the intent of the law which mandates all possible evidence be sought out by district or county prosecutors. That evidence must then be inventoried and shared with defense attorneys, even if more expert reports, video or audio files come in after a case has closed.
Travis County’s justice system has long had an open file policy where prosecutors voluntarily share evidence with defense attorneys. Now, under the Morton Act tracking and filing a deeper pool of evidence in the 12,500 felony cases tried in District Court can take up to 40 hours per case for an attorney, staff said.
County attorneys who handle less serious misdemeanor cases say they are not used to the new evidence reporting standards which also now apply to simple crimes like jaywalking and traffic offenses to burglary to drunk driving. Before the new law, a single police Offense Report might be enough for prosecutor and defense to agree on a penalty. Now, they say they fear missing checking off an item in the high volume of misdemeanor cases that flow through Travis County courts.
Consider the average 34,000 cases that move through Travis County’s misdemeanor court in a
year. If each evidence retrieval can take 45 minutes (or 8 each work day, 160 a month). That’s 1,920 a year for each attorney. It would take 19 staff working full time to do the work set out by the current law.
Accidentally omitting or not checking off an evidence item could come back to haunt an attorney if a case is re-opened or audited and could cost their Texas Bar card, court trial managers said.
“My fear is (of an inadvertent mistake), somebody being so busy and so overwhelmed with the current caseload that they forget to document something they gave (the defense),” said Corby Holcomb who oversees a team of lawyers working out of the County Attorney’s Office.
“I would hate to see a good attorney get in trouble just because of an increased workload,” Holcomb added. To that end, attorneys now check boxes on a specially-created sheet dubbed a “Morton form.” It lists specific types of evidence like Offense Reports to less common such as videos and lab results. (insert pdf of Morton form)
In June, County Attorney David Escamilla teamed up with his colleagues to ask for more help from County Commissioners. This summer, the two divisions are hiring eight support staff to make sure those evidence lists are accurate and to take the pressure off trial attorneys.
Up to six Travis County court attorneys are now out of the loop and tasked with retrieving and filing evidence instead negotiating plea deals with defense attorneys. Anecdotally, court staff say the process is slowing down and defendants who just want to make a simple plea may be waiting longer for their case to resolve.
Added Cost of Justice
Weeks before Gov. Perry signed the bill into law the state’s Legislative Budget Board indicated there would be no financial impact on local governments.
The $150,000-plus cost of the paralegals and an evidence technician to co-ordinate with local police agencies is coming from existing court budget savings. This fall, county budget makers will need to decide to hire as many as 11 for the fiscal year ahead, District Attorney Rosemary Lehmberg suggested in a June appearance before Commissioners.
At that same meeting, Travis County Commissioners’ Court Judge Sam Biscoe asked county staff to see if the law allows for reimbursement for costs incurred in upholding the Morton Law mandates.
A check of Williamson County court budget requests found the District Attorney has asked for a discovery clerk, and the County Attorney has asked for 3 positions: civil attorney, civil legal assistant and a digital evidence technician for next year’s budget. In addition, the Sheriff’s Office has requested a media/evidence technician.
Longer police call times possible
For Austin Police, Asst. Chief Raul Munguia admits Morton Act mandates may add to the time an officer needs to thoroughly handle a call.
“Calls are prioritized and depending on how many come in, the ones of a lower priority, those take a little bit longer to get to and potentially those calls could hold a little bit longer,” he told KXAN Investigator Robert Maxwell. “However the priority calls, the calls where you need a police officer here and now, you’re going to get one there.”
The reality is Austin Police response times have slipped this year over last. The 2013 goal was to arrive at an emergency call in seven minutes. This year, records show it is 30 seconds longer. Call volumes are up more than five percent from a year ago.
Front line officers have always collected basic evidence like fingerprints for a something like a simple burglary case.
What’s being added to their workload: patrol officers will be transcribing field notes into digital offense reports as well as marking points on in-car dash cam videos of crime scenes where they might be the second or third arriving officer. All related videos must now be submitted as evidence where there is an allegation of a crime.
Those smaller tasks are part of a Morton Act list of possible evidence Travis County District Attorney Rosemary Lehmberg compiled in an April memo (pdf) to local law enforcement agencies.
One internal suggestion is to have patrol supervisors review officers’ Offense Reports for possible evidence needs even though that could take them off the streets. Another involves adding a check box of possible evidence needs on every offense report.
Impact on shrinking uncommitted time
Munguia says The Morton Act mandates also have the potential to take away from an officer’s already limited uncommitted, or down, time. During any given 12-hour patrol shift, recent figures show it is down to 13% of a shift, or about 93 minutes. Not including meal breaks, uncommitted time works out to about eight and a half minutes (of downtime) for every on-duty hour.
Several national policing studies indicate a healthy uncommitted time level be about a 33% of a officers’ shift.
Growing 911 evidence backlog
Apart from front line impacts, Chief Munguia also told KXAN more requests for digital evidence such as 9-1-1 calls has resulted in a back log in its understaffed Communications Division.
Police records show in the three months prior to when the Morton Act was enacted in January, requests for copies of 9-1-1 audio numbered 766.
In the first three months of 2014, that number was 1,995 and continues to rise.
|911 Call Requests by Month|
|Oct 13||Nov 13||Dec 13||Jan 14||Feb 14||Mar 14||Apr 14||May 14|
A report showed, to handle the growing volume of Morton Act-based requests, a dispatcher has been taken out of the call center.
County court staff tell KXAN the law allows for 911 audio and other such evidence to be submitted after the close of a trial with the provision it can be re-opened should the evidence change the facts in a case.
Unlike the county court divisions which have made their funding pitch publicly, Austin’s Police Department is still working through how many new full time staff positions may be needed for all divisions from the call center support to records management.
Holding up any quick decisions for this budget year, APD bosses are waiting on the promise of a new Travis County Court computer system that will allow local police agencies to electronically file evidence in the form of email, audio and video files.
Munguia also said there will be a dollar cost associated if it’s decided to expand the capacity of APD’s digital video storage system.
Morton speaks to the law named after him
In a recent interview with KXAN’s Shannon Wolfson, Michael Morton said, “One of the arguments was this (law)
wasn’t even needed. I mean, most counties — the vast majority of counties in fact — they already have an open file system, this is going to be redundant. It’s going to be a waste of legislative effort and … we’re already doing this.”
“Then it got passed and they’re trying to implement it and now suddenly this thing that was going to be redundant is now extra lawyers, extra copies, extra money. I don’t think anybody is necessarily being disingenuous but, it’s well within our ability, it’s well within what should be our goals,” Morton said from his home in East Texas.
A political fix?
As Sen. John Whitmire (D-Houston) said during the May 2013 bill signing, “The road to justice is not something you can do in a millisecond , it’s generally not a jet plane ride, it’s a journey.”
One of the Morton Act’s other backers, Sen. Rodney Ellis (D-Houston) recently told KXAN, “I think what you have is some people who are overreacting. The statute has only been in place six months. Some of the issues I have heard that have percolated up to me are things that can be worked out in the administrative process.
KXAN also reached out to the Texas District & County Attorneys Association to learn its strategy. Intergovernmental Affairs Director Shannon Edmonds said, “(The Association) has been seeking input from our members around the state to see what needs to be done to make the Michael Morton Act more efficient and effective.”
“To date, there has not been a consensus on that answer, but we are continuing to work on it. The law appears to have caused more changes in some jurisdictions than others, which makes finding a statewide proposal for improvement difficult,” Edmonds wrote in an email.