The Meaning of America

My Fellow Texans,

The Legislature is considering a a Bill that needs every Texan’s attention. It is called the Reciprocal Discovery Bill. I have blogged on it already. Tonight I want to explain how this bill amounts to the further abuseof a man this state has already abused. The man I am talking about isMr. Michael Morton.

Mr. Morton was convicted in Williamson County of murdering his wife. His conviction was overturned, only after his lawyer,John Raley, foughtand proved his innocence.Raley fought for 7 years to get Morton out of prison, and he did it pro bono.Mr. John Raley, represents the very bestin our legal community. Those whoschemed to putMr. Morton behind bars for 25 long years, represent the very worst in our legal community.

Mr. Morton spent 25 years in prison fora crime he did not commit. DNA evidence cleared him and identified the actual perpetrator. Morton’s prosecutor withheld critical evidence from the Defense. The Defense was never told that Morton’s child said, Morton was away when a “monster” committed the murder. Nor was the defense told that neighbors saw a stranger casing the house or that his wife’s credit card was used in San Antonio days after her death. Nor was the defense told about a blue bandana found near the scene that would ultimately lead to the arrest of the real murderer of Mr. Morton’s wife.

Mr. Morton has been proven to be an innocent man. Yet he spent 25 years in prison for a crime he did not commit. As Texans we must be outraged. Our family members and our fellow Texans have paid in blood so that we may all be free. Myowngreat uncle, Sgt Alan Schein,gave his life at the Battle of the Bulge, so that wemight allbe free. As Texans , we have fought too hard to now silently let anyone rob us or our neighbor of our God-given liberty.

It’s past time for us to draw another line in the sand. Prosecutors in Texas have enormous power. For the criminal justice system to work, we need honorable prosecutors whofollow the law. The horror that befell Mr. Morton, did not come as the result of the action’s of an honorableprosecutor. The horror that befell Mr. Morton, came at the hands of a rogue prosecutor who hid critical exculpatory evidence.

This is not the only time in recent years Texas has seen an innocent man released from prison, after being convictedat the hands of a rogue prosecutor. In Burleson County, Anthony Graves capital murder conviction was thrown out after he spent 18 years in prison. The 5th Circuit Court of Appeals found that Graves’ prosecutor obtained the conviction in part by eliciting false stateements from two witnessesand by withholding statements that might have helped Graves. The current Burleson County District Attorney investigated and concluded Graves was an “innocent man”. A special prosecutor concluded that there was no evidence linking Graves to the crime.Graves, spent 18 years in prison for a crime he did not commit.

As a society, we are aware that sometimes police officers go bad. We have all seen news reportsabout police officers who have broken the law. They are human and like the rest of humanity, some police officers will break the law. This is no indictment of policeofficers in general. It issimply afact that there are those in uniform who willviolate the law.

As a society we often lookupon prosecutors as heros, standing up for victims. That is the typical depiction of prosecutors on television and in the mass media. As a society, we generally look upon prosecutorsin a favorable light.Given our societal predisposition toward prosecutors, it is hard for us to “accept” that some prosecutors engage in criminal conduct.But, if we are to be honest with ourselves, we must admit that, like police officers, there are some prosecutors who violate the law to obtain convictions. This is not an indictment of prosecutors in general. It is afact that there are prosecutors who violate the very laws they aresworn to uphold to obtain a conviction. Sometimes rogue prosecutors willfully violate the law, hid evidence, and manufacture evidence, to obtain a conviction. Sometimes these prosecutors act more like criminals than prosecutors. They bring disgrace on those honorable men and women who serve as prosecutors across our state.

What has become of the men who prosecuted Morton and Graves? What is their punishment for fabricating and hiding evidence? Have they been sent to jail , disbarred or even hounded from our midst. No. Their lives go on unfettered.

The Morton case has demonstrated that Texas law provides no real protection against rogue prosecutors.A rare Court of Inquiry was held regarding Morton’s prosecutor.While it wasinformative, theCourt of Inquiry cando nothing to really punish Morton’s prosecutor or protect us from another MortonTravesty. Mr. Robert Kepple, the Executive Director of The Texas County and District Attorney’s Association referred to theMorton Court of Inquiry as a ” Court of Injury”. Presumably, he was referring to Mr. Morton’s prosecutor and the fact it might hurt his reputation. But beyond that, the Court of Inquiry cannot prosecute that rogue prosecutor who sent Morton to prison for 25 years for a crime he did not commit.

The Court of Inquiry drew a lot of attention about the Morton Tragedy. And it gave rise to a lot of ” high talk” about how we needed to “do something” to prevent another such horror from befalling one of our fellow Texans. It is my observation that people who talk about ” doing something”,more often do nothing.

I believe we owe it to Mr Morton and MrGravesto do our best to prevent any other rogue prosecutor from robbing one of our fellow Texans of decades of Liberty. A failure to directly address the root problem of the Morton Tragedy, would be a failure on the part of every Texan. But we Texans elect politicians to go to Austin to pass our laws. We Texans are not stupid. We know to keep our eye on Austin. We know our lawmakers are human, like the rest of us, andvery capable of making giant mistakes.

Such is the case with the Legislature’s current proposed remedy to the Morton Travesty. The Legislature with its current proposed reciprocal discovery bill, is failing to directly address the root problem of the Morton Travesty.

The legislature’s proposed solution is: A reciprocal discovery bill. Among other things the bill would require Accused Citizens in Texas to tell prosecutors before trial their defense! The bill would also requireeveryAccused Citizen in Texasto tell the prosecutor the names and addresses of all defense witnesses. This is the legislature’s proposed solution, to protect us from any more Morton Travesties of Justice.

You don’t have to be a Rocket Scientist or a Brain surgeon tosee that something isvery, very wrong here. I am guesssing I dont need to spell it out. Mostofmy fellow Texans have a pretty good nose for BS. And that is whatwe have here, BS.

Mr. Mortonwas robbed of his liberty by a rogue prosecutor. Unless the Legislature directly addresses the issue of rogue prosecutors, Morton will not be the last of us to fall victim to a rogue prosecutor. The Culprit in the travesty that befell Morton (and Graves) wasa rogue prosecutor. No one else. That it is an undisputed fact.

My fellow Texans, we deserve to have our Legislature protect us from the rare, but extremely dangerous rogue prosecutor. As such, I ask: Why in God’s name, should the extreme misconduct of rogue prosecutors ever lead to any legislation requiring the Defense to do anything? That makes no sense, none whatsoever.

The truth is quite simple. The reciprocal discovery bill has been on the shelves for a number of years. The proponents of the reciprocal discovery bill have dusted it off and they are trying to use the Morton travesty to pass a bill that has nothing to do with the Morton tragedy. They are cynically using Mr. Morton’s victimization by a rogue prosecutor, to pass a bill that has nothing to do with stopping rogue prosecutors. That, My fellow Texans is precisely what is happening here. It is disgraceful. To use Morton’s extraordinary sacrifice, as a basis to pass a law that diminishesthe Accused Citizens’ ability to defend themselves, is a betrayal of Mr. Morton and all that Texas stands for.

The recipricol discovery bill needs to die. It’s very utterance in connection with the travesty that befell Mr. Morton, is wrong. It’s…. Untexan.

Senator Ellis has sponsored the reciprocal discovery bill in the Senate. To be clear, Senator Ellis and his staff are most honorable and have repeatedly shown their concern for protection of our liberty. But even a smart Senator, such as Senator Ellis, with full good intention can be mislead by others, who have their own agendas.

We are told that we had better be quiet and accept this bill or it will be worse. We are threatened and menaced with the names of other Senators who will use this opportunity to make things worse. We are told if we do not accept this reciprocal discovery bill, Senator Huffman will ride in on a broomstick and burn the Constitution.While Senator Huffman and I dont see eye to eye on much, I suspect as a lawyer sworn to Support the Constitution, she would not take kindly to being used as the Scarecrow in the Morton Tragedy. I trust she will not use the Morton case to burn the Constitution. Any State Senator who tries to use the Morton travesty to further their own interests or to promote some law and order agenda, will be quickly drawn and quartered by the media.

HERE THE FAULT LIES SQUARELY ON ROGUEPROSECUTORS.

If the Evil that befell Mr. Morton (and Mr. Graves), is to give rise to any legislation, that legislation mustbe directed squarely at the perpetrators of the evil.To protect our fellow Texans from the evil that befell Morton, the legislation should be directed squarely atrogue prosecutors. Like it or not, to fix this problem we must deal with it head on. That is the Texas way. We dont need anyone from up north to tell us how to fix what’s wrong in Texas. Texans are fair by nature. We see the problem and we will fix it.

Senator John Whitmire has already gotten us started in the right direction.He is wise and recognizes that to fix the problem we must go right at it. He recognizesthat we Texans need protection from the rare, butvery realrogue prosecutor. That is why Senator Whitmire is on the right track, in proposing a bill that would allow for thefiling of ethical grievances against rogue prosecutors. Let’s hope the law is never needed. But as Woodrow F. Call said, ” Better to have it and not need it, then to need it and not have it”

We mustnot trivialize this Horror that was inflicted by rogue prosecutors on Morton and Graves. We oweit to these men to do everything we can totake prudent legal measures to stop futurerogue prosecutors before they hurt anyone else.

Unless we want another innocent man or woman to be robbed of his life, by a rogue prosecutor,we need to pass two simple laws.

First, we needa simple law, that requires Prosecutors to furnish the Defense with police reports & witness statements. Period.

In most counties, prosecutors already furnish the Defense with copies of the police reports and witness statements. From the prosecutor’s point of view it makes sense and it helps resolve cases without trial. When Defense counsel sees the Prosecutions reports and witness statements, he isinformed of the strength of the Prosecution’s case. Where the evidenceindicates the accused citizen will likely be convicted at trial, Defense counsel will typically advise the accused citizen to enter into a plea bargain. This is standard operating procedure throughoutmostof Texas.

Additionally,when provided with offense reports and witness statements, competent counsel caneffectively investigate the allegations.When Defense Counsel finds evidence thatproves the allegation is false,Defense Counsel oftenvoluntarily showsthe evidence he has developedto theDA.Fair prosecutors dismiss cases every single day.

Finally, there istheConstitution. Certainly an accused Citizen is entitled to know the accusations against him. But theindictment or information which contains the allegation, is typically only a single paragraphstating theaccused citizen’s name and the crime accused.The indictment or criminalinformation gives no real detail aboutthe allegation. Thecitizen accused faces thefull power of theState and the Da’sOffice. The prosecutors have analmost endless arsenal of weapons to use to prosecute citizens.AsEarl Musick notes, The Citizen Accused is David to the State’s Goliath. Basic fairness dictates that the citizen accused ought to know who his accusers are and what they are saying. Only by having the Offense Reports and witness statements does the accused get to know this basic information.

Providing offense reports and witness statements to the Defense helps to resolve casesby plea bargain ordismissal. Resolving cases that dont need to go to trial, saves Texas Taxpayers MONEY.

Offense Reports and witness statements should be provided to every accused citizen.

In most jurisdictions in Texas, prosecutors are already doing this. But this matter is far too important to leave to the discretion of any single prosecutor. If Morton and Graves taught us nothing else, they taught us that prosecutors must be legally Required to provide the Defense with offense reports and witness statements. Passing a simple law that requires prosecutors to turn over offense reports and witness statementsto theDefense will help protect us from rogue prosecutors who send innocent men to prison while keeping their lawyers in the dark. We are talking about liberty. Not a game. The fair administration of justice supports the passage of this simple bill.

We need a second simple law to protect us from rogue prosecutors. We need alaw that states” that it is illegal for any prosecutor to willfully hid or manufacture evidence that leads to the conviction of an INNOCENT man.”

In making these recommendations it is my intention to directly address the cause of the Morton and Graves’ Travesties of Justice. It is not my intention, in any way, to interfere with the lawful administration of justice.

If we cannot Make things right, by directly confronting the cause of such inhumanity in Texas, than I say we do not deserve to call ourselves Texans forone more day. We are Texans. I am confident, that if we behave as We Are Texans, We will Do the Right Thing.

My Blog is entitled ” The Meaning Of America”. How Texas responds to the Morton tragedy will most certainly define the meaning of Texas.

Robert Fickman, Houston Texas