A number of prosecutors oppose a bill that would make it a third-degree felony, with no statute of limitations, for a prosecutor intentionally to withhold exculpatory evidence from a criminal defendant or his lawyer.
But House Bill 328 author Rep. Harold Dutton Jr., D-Houston, defended his bill on April 16 before the House Criminal Jurisprudence Committee. He referenced the case of Michael Morton, who spent nearly 25 years in prison after he was wrongfully convicted on charges he murdered his wife.
Dutton told committee members he thinks Morton’s case was "egregious."
Judge Ken Anderson, who prosecuted Morton, was arrested after a court of inquiry issued two arrest warrants in connection with an allegation that he withheld exculpatory evidence. Anderson denies wrongdoing and has filed a writ of habeas corpus alleging the statute of limitations bars his prosecution.
Anderson didn’t return a telephone call seeking comment. But his lawyer, Beck Redden partner Eric Nichols of Austin, says, "There was never any withholding of evidence material to the defense of the Michael Morton case, intentional or not."
"I was astounded when I realized the punishment, the absolute punishment, was a Class A misdemeanor, which means you can be sentenced up to a year in jail for doing that," said Dutton. "What House Bill 328 does is simply raise the stakes a little bit in an attempt to prohibit this type of conduct."
The bill would amend Penal Code §39.03 governing official oppression, a Class A misdemeanor. Under the bill, the offense would become a third-degree felony if the conduct "consists of the intentional or knowing suppression of evidence favorable to a defendant and material to the defendant’s guilt or punishment in a criminal trial."
A third-degree felony carries a punishment of two to 10 years in state jail and an optional fine up to $10,000, according to the Criminal Justice Impact Statement for HB 328.
Seven people from various DA’s offices registered their opposition to the bill, but just one testified.
"The system has really done a pretty good job of correcting itself already," said 47th Judicial District DA Randall Sims of Potter County. He said as a 28-year prosecutor, he’s always worked in DA offices where prosecutors share information with criminal-defense lawyers, and most other DA offices also have open-file policies.
Whether the offense is a Class A misdemeanor or a felony, Sims said, the result would be the same: An assistant DA who committed the offense would lose his or her job, and an elected DA would lose re-election.
Sims noted that in a 2012 study on prosecutorial misconduct, the Texas District & County Attorneys Association found just six cases of deliberate, dishonest misconduct by prosecutors.
In his closing statement, Dutton responded directly to Sims’ testimony. He asked committee members not to be "misled" by talk of open-file policies, which suggested that everything would be OK if a prosecutor’s file were open.
"If they want to hide things, they don’t put it in the file," said Dutton.
Among other things, Dutton also said it "doesn’t make sense" to discuss the consequence of an offending prosecutor losing his job.
"I don’t think that’s enough punishment if someone chooses to engage in misconduct," he said. Dutton added, "I think we ought to have this at the front end, where we try to prohibit the conduct."