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Recently, in Texas, a man was freed after serving 25 years in prison for a crime he didn’t commit. The Innocence Project was successful in overturning the conviction of Michael Morton when a piece of evidence in his case was re-tested and found not to contain the DNA of Morton but of another man. One of the most interesting aspects of this case isn’t that DNA exonerated Morton, but that other evidence that was in the DA’s possession at the time of the trial was withheld from the defense. This evidence was exculpatory, or in other words, tended to help prove Morton’s innocence.

It was only after trial when one of the prosecutors was overheard telling a juror that Morton’s file was several inches thick , that the defense had any inkling of the existence of other evidence. In fact, the victim’s credit card was used by a suspect days after the murder during a time period that Morton could not have been involved in any use of the victim’s credit card. Furthermore, a witness told the prosecution that a suspicious man had been seen near the victim’s home seemingly casing the residence days before the break in and murder in the home. None of this was disclosed to the defense prior to trial.

The importance of the evidence is clear to anyone with an ounce of common sense. If the thief/murderer took the victim’s property and used the stolen credit card and it wasn’t Morton, then maybe Morton wasn’t the killer. If a man, not Morton, was seen acting suspiciously in the area of the murder than perhaps he was the killer and not Morton.

The law in this area is clear. The United States Supreme Court in Brady v. Maryland established in 1963 that the prosecution had to voluntarily turn over all evidence to the defendant which could, not would, but could, seemingly tend to exonerate the defendant. The problem comes when the prosecutor doesn’t fulfill his obligation to turn the required evidence over to the defense. When this violation occurs the defense usually doesn’t even know it happened. The suppression of exonerating evidence violates the public trust in the fundamental fairness of the criminal justice system. If there isn’t trust, there isn’t confidence that justice will be done. At that point, the people will not submit to the judiciary. Vigilante justice and chaos can become the norm and not the exception.

Every defense attorney must be aware of the possible misuse of the public trust by the prosecution and take steps to make sure their client doesn’t become the next Michael Morton. A formal discovery motion compelling disclosure of all possible evidence will force the prosecutor to tell the judge in open court that he has given all possible evidence to the defense. If the prosecutor is prepared to boldly lie to the judge then, truly, the system is forever tarnished. Few prosecutors have the meanness of spirit and willingness to state openly a falsehood which could be discovered at a later time. Even so, the defense must make sure the system is working and prevent the wrongful conviction of their clients.

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