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Judge enforces broader discovery rules from Morton Act in Texas

The judge in a recent Texas murder case took a step so unusual that he noted that it was the first time he'd done it in 27 years on the bench: He instructed the jury that any evidence not saved or properly produced by the prosecution could be considered unfavorable to the state.

That ruling probably destroyed the prosecution's case, since at least 22 pieces of evidence were mishandled in the prosecutor's care. The defendant ended up being acquitted of all charges related to the shooting of three police officers.

This may be one of the fist cases to actively enforce rules on spoliation of evidence since the 2013 Michael Morton Act was put into place under Texas law.

Prosecutors have long been required to turn over potentially exculpatory evidence to the defense. Exculpatory evidence is anything that has the potential to support the defense's case. The problem with the laws that have traditionally been in place regarding the process, however, is that the prosecutor—not the defense attorney—gets to decide what might be exculpatory. That left the system ripe abuses of prosecutorial discretion.

The Michael Morton act essentially created an "open box" policy throughout the state. In some counties, prosecutors already had what amounted to that kind of policy anyhow, willing in the interest of justice to share whatever they had with the defense. Other counties were far more restrictive.

In this particular trial, the judge found that evidence that was lost or only handed over on the eve of trial (when there wasn't enough time to evaluate it), included blood swabs, descriptions of the defendant's face and information about a flash-bang device that exploded in the defendant's bedroom which could have obscured his sight and made it impossible for him to realize he was firing at police officers.

Declaring spoliation of evidence was arguably the most severe step the judge could take against the prosecution, short of dismissing the case. It allows the jury not only to presume that the lost or mishandled evidence was favorable to the defense but to assume that the state lost or delayed its movement into the defense's hands on purpose.

Criminal defense attorneys say that this isn't the only time they've encountered problems like this, but the judge's willingness to enforce the Morton Act is a sign that courts may be unwilling to allow such acts to continue—which should benefit defendants everywhere.

Source:, "Judge says prosecution mishandled evidence in Ray Rosas trial," Jane Caffrey, Dec. 14, 2016

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