I think most Oklahomans would be shocked to know that prosecutors can legally withhold evidence from a criminal defendant here. A defendant in Oklahoma is not “entitled” to certain evidence until various points in time–typically ten days before trial. In Texas, on the other hand, defendants are entitled to almost every piece of evidence immediately upon requesting it from the state. Additionally, state agencies have a continuing duty to turn over new evidence to a defendant as they come across it.
In an era with so much focus on “criminal justice reform,” there is no reason a version of Texas’s discovery law (aka the Michael Morton Act) can’t be passed in Oklahoma. I have practiced law under both systems; the criminal discovery process in Texas is far easier to navigate and immensely more fair to a defendant.
Who is Michael Morton, and why is there an Act named after him?
Michael Morton was a man in Texas who was wrongly convicted of killing his wife in 1986. DNA evidence exonerated him in 2011. Ken Anderson, the prosecutor in that case, committed misconduct by concealing evidence. Due to this example of a prosecutor withholding evidence and a discovery law in Texas that allowed prosecutors to get away with similar actions, Texas overhauled its law that covered the state’s responsibility to turn evidence over to a defendant. This rewrite of Texas’s discovery law was named the Michael Morton Act.
The Michael Morton Act went into effect in Texas on January 1, 2014. In a nutshell, it mandates that any state agency (including prosecutors and law enforcement) must turn over all evidence in their possession to the defendant upon request. Period. There are a few minor exceptions for evidence such as child pornography. Oklahoma’s current discovery laws are much like Texas’s old discovery law.
Oklahoma’s Discovery Laws
In Oklahoma, prosecutors can withhold evidence with reckless abandon. While Brady v. Maryland requires prosecutors to hand over evidence to defendants that is “material to either guilt or to punishment,” prosecutors can simply claim that Brady doesn’t apply–without even seeing the evidence themselves!
The two primary statutes that cover criminal discovery in Oklahoma are 22 O.S. § 258 and 22 O.S. § 2002. 22 O.S. § 2002 starts off well. It states that, “Upon request of the defense, the state shall be required to disclose the following . . . .” And then it lists a bunch of stuff the state must turn over. BUT . . . it goes on to state that, “Motions for discovery may be made at the time of the district court arraignment or thereafter; provided that requests for police reports may be made subject to the provisions of Section 258 of this title. However, a request pursuant to Section 258 of this title shall be subject to the discretion of the district attorney. All issues relating to discovery, except as otherwise provided, will be completed at least ten (10) days prior to trial.” Concisely, prosecutors don’t have to turn over anything until ten days before trial!
Section 258 covers preliminary hearings. This section further emphasizes the prosecutor’s ability to withhold evidence: “A preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of: (1) whether the crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime. Once a showing of probable cause is made the magistrate shall terminate the preliminary hearing and enter a bindover order; provided, however, that the preliminary hearing shall be terminated only if the state made available for inspection law enforcement reports within the prosecuting attorney’s knowledge or possession at the time to the defendant five (5) working days prior to the date of the preliminary hearing. The district attorney shall determine whether or not to make law enforcement reports available prior to the preliminary hearing. If reports are made available, the district attorney shall be required to provide those law enforcement reports that the district attorney knows to exist at the time of providing the reports, but this does not include any physical evidence which may exist in the case. This provision does not require the district attorney to provide copies for the defendant, but only to make them available for inspection by defense counsel. In the alternative, upon agreement of the state and the defendant, the court may terminate the preliminary hearing once a showing of probable cause is made.” Succinctly, a prosecutor doesn’t even have to turn over police reports prior to a preliminary hearing!
Now, in practice, prosecutors do turn over police reports immediately upon request. I have never had a problem getting those. But the point is that they have the power to withhold even the most basic discovery from defense attorneys. Prosecutors, along with law enforcement, very frequently withhold other much-needed evidence such as videos, audio, and pictures. This is the real problem.
The Way Forward
The authority given to prosecutors to withhold evidence by these statutes is outrageous and has no place in current American law. I have been told by prosecutors on multiple occasions that I am not “entitled” to certain pieces of evidence yet. I’m talking mainly about pictures and video. That type of evidence would be turned over ASAP in Texas without a second thought today. But, prosecutors in Oklahoma today are free to withhold plenty of relevant and important evidence.
The first time I was told by a prosecutor in Oklahoma that I wasn’t “entitled” to evidence (pictures of a complaining witness), I couldn’t believe what I was hearing. Surely that was a joke, I thought. But no, the prosecutor was dead serious. I had come from practicing in Texas, where I had requested and received that sort of evidence with zero problem every time. And now, in Oklahoma, I have even had a prosecutor berate me for asking for a video of a DUI stop “so early,” according to him. Well, excuse me for trying to defend my clients!
This system must change, and now is the time. I am urging Oklahoma legislators to enact a version of Texas’s Michael Morton Act. The language is already there. Prosecutors and defense attorneys had input in crafting the language in Texas, so it is not one-sided. It’s been in effect since 2014 with little modification, so it’s been tested. Sections 258 and 2002 of Title 21 must also be repealed or modified to be in line with Oklahoma’s Michael Morton Act.
With such a focus on criminal justice reform today, there’s no reason this legislation can’t get passed. Imagine the judicial economy if defendants can know how good or bad their case is much earlier. The defense attorney could point out the flaws in a case to a prosecutor early on, and the defendant could have a better outcome than they might have otherwise. Or, the defendant could find out what a bad case he or she has early on, thus eliminating needless preliminary hearings. In the end, the Oklahoma criminal justice system will be more efficient and fair.
Are we willing to risk the next Michael Morton happening in Oklahoma? Are our prosecutors willing to risk becoming the next Ken Anderson? Keeping the current law is not worth risking those things. And it’s not worth putting justice at risk. Enact the Michael Morton Act in Oklahoma.
Sources: 22 O.S. § 258, 22 O.S. 2002, Texas Code of Criminal Procedure § 39.14 (The Michael Morton Act), Texas Innocence Project – Michael Morton, and Towards More Transparent Justice – The Michael Morton Act’s First Year