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1 THE COST OF COMPLIANCE: A Look at the Fiscal Impact and Process Changes of the Michael Morton Act March 2015 Prepared for TCDLA by Managing to Excellence Corporation

2 Acknowledgments The Texas Criminal Defense Lawyers Association would like to first thank the State Bar of Texas Criminal Justice Section for the funding that made this research possible. Special thanks is extended to Judge Doug Skemp, Chair of the Criminal Justice Section and presiding judge of Dallas County Criminal Court #3. We would also like to offer our appreciation to all of the prosecutors, defense attorneys, judges, and law enforcement officers who completed the surveys and participated in the focus groups for their valuable, frank, and honest insights into the impacts of the Michael Morton Act. Additional thanks go to our contacts who made the focus groups possible, including: The office of the Honorable J. M. Lozano, Texas House District 43 The Honorable Jose Aliseda, 156 th District Attorney The Honorable Richard S. Anchondo, El Paso County Criminal Court at Law 2 The Honorable Francisco X. Dominguez, 205 th District Judge The Honorable Alma Trejo, El Paso County Criminal Court at Law 1 The Honorable Michael Welborn, 36 th District Attorney The Honorable Jana Whatley, 343 rd District Court Mr. William R. Cox, Deputy Public Defender, El Paso County Public Defender s Office Mr. Brandon Dakroub, First Assistant, Williamson County Attorney s Office Mr. John Neal, First Assistant, Travis County District Attorney s Office Finally, we would like to acknowledge the following people for their invaluable assistance in the completion of this study and report: Mr. Jim Bethke, Executive Director, Texas Indigent Defense Commission Ms. Danielle Broussard, Legislative Intern, Texas Criminal Defense Lawyers Association Mr. Tony Fabelo, Director of Research, CSG Justice Center Ms. Tracy Nuckols, State Bar of Texas Mr. Luke Steidl, State Bar of Texas Page i

3 Table of Contents Acknowledgments... i Table of Contents... ii Executive Summary... iv Introduction... 1 Pre-Existing Discovery Laws... 1 Michael Morton Act... 1 Implementation Concerns Reported in the Media... 2 Research Questions... 3 Methodology... 4 Survey Methodology... 4 Focus Group Methodology... 4 Results... 4 Respondents... 4 Survey Respondents... 4 Focus Group Participants... 7 Prosecutors Staffing Changes and Purchasing... 7 Reallocated/Reclassified Staff... 8 Added New Personnel... 9 New Hardware and Software Other Fiscal Impact Contextual Information Previous Open File Policies Direct Filing Pro Se Defendants Discovery Request Forms Planning for Implementation Planning Was Conducted No Planning Was Conducted Before and After the Act Comparisons Access to Evidence Page ii

4 Variance in discovery Post-implementation access issues Additional responses Payment for Discovery Production Variance in payment Online discovery Adoption of flat fees for discovery Defense and defense bar provisions Other responses When Discovery is Produced Delays in Discovery Production Prosecutors perceived causes for discovery delay Defense attorneys perceived causes for discovery delay Changes in Workload More Work/Time Impact from discovery itself Impact from documentation requirements Impact from delivery processes Impact from requirements on client interaction Less Work/Time Other Comments about Workload Discussion Lesson One Lesson Two Lesson Three Lesson Four Lesson Five Conclusion Appendix A: Discovery Access by Evidence Type Appendix B: Differences in Discovery Policy Reported by Defense Attorneys Page iii

5 The : A Look at the Fiscal Impact and Process Changes of the Michael Morton Act Executive Summary Research Questions, Methodology, and Respondents This study used survey and focus group methodologies to examine the fiscal impacts associated with implementation of the Michael Morton Act, as well as the policy changes that contributed to those costs from both the prosecution and the defense point of view. Surveys were received from forty-six prosecutors in thirty-six unique offices located across the state, and defense surveys were received from 254 defense attorneys who practice in 219 Texas counties. Finally, the five focus group sites involved fifty-one participants from the prosecution, defense, law enforcement, and judicial communities. Results and Lessons Learned All the data received from the survey and focus group participants led to the development of five overarching lessons learned that are briefly summarized below. The data behind the lessons is more fully explored in the full text of the report. Lesson 1: There have been discovery process changes that have had fiscal impact either through direct monetary costs or through the time required to implement the Act and/or process cases. Survey and focus group respondents did indicate that they spent either time or funds to prepare for and implement the Act. Those fiscal impacts, however, appeared to vary across the jurisdictions, and less than fifty percent of prosecutor respondents indicated a fiscal impact due to reallocation or reclassification of existing staff, hiring new staff, and/or purchasing hardware or software. In counties or offices where the move was already being made toward electronic discovery well before the Act, the fiscal impact appeared to be less than in counties and offices that attempted to move from wholly paper processes to wholly electronic processes within the time between passage and enactment of the Act. Lesson 2: The specific implementation decisions made by a jurisdiction can impact both the cost of compliance and the time required to produce discovery. The survey and focus group participants discussed how the ways in which the Act was implemented in their jurisdictions impacted the cost and time required to provide discovery to the defense. The specific factors raised by the participants included: 1) Pre-indictment or information discovery versus postindictment or information discovery. In counties where discovery is only provided after the charging instrument is filed (and a case is only filed once discovery is complete from law enforcement) the participants noted increased time from request to discovery production and case disposition. 2) Adoption of formal processes to request and deliver discovery. Additional time and/or staff are needed in counties where the defense attorney is required to appear in person to complete a discovery request form and pick up discovery when produced. 3) Redaction conducted by the prosecutor rather than by the defense. Jurisdictions that redact all evidence prior to delivery to the defense require more time, staff, hardware, and software to process and produce discovery to the defense. Page iv

6 Lesson 3: There is more evidence provided to prosecutors and defense after the Act than there was before the Act. Survey and focus group participants from the prosecution, defense, and law enforcement all reported that the amount of evidence processed for discovery has increased since the Act. Most of this evidence existed prior to the Act, it just was not routinely requested for less serious offenses. For example, prior to the Act, prosecutors may request from law enforcement and provide to the defense dash and body cam videos from the first officers on the scene of a DWI arrest. After the Act, the prosecution requests and provides to the defense all dash cams and all body cams from all law enforcement officers who were on the scene. This may be six or more videos. While both prosecutors and defense attorneys stated that their workload had increased in part due to the quantity of evidence after the Act, some defense attorneys stated that they welcomed the increased information they were provided in their cases. Lesson 4: Discovery policies continue to vary across and within jurisdictions. One finding of the study is that after the Act, there continues to be variation in the type of access to evidence that is provided, the timing of discovery, the ways in which discovery is delivered to the defense, and payment for discovery. This is partially by design: The general guidance provided by the Act provides for flexibility in implementation to meet the needs of local jurisdictions. Variance within an individual prosecutor s office, however, may indicate that the stated discovery policies of the office are still in the early phases of development and adoption. The variance in procedures also makes the appropriate discovery request and receipt processes across jurisdictions less predictable for defense attorneys. Lesson 5: Additional training is needed. Survey and focus group participants stated that additional training on the Act would be valuable for themselves, their colleagues, and the other parties impacted by the Act. Ideally, this training would address the requirements of the Act, the intersection of the Act and evidence retention policies, how the discovery request functions compared to a discovery motion, and a variety of other topics. The participants also believed that cross training would be beneficial so each party could fully understand how the requirements for one group may impact another group s ability to fully comply. A good example of this is that evidence retention policies for videos in law enforcement agencies are often for ninety days, after which time the video may be destroyed. For a felony case in a jurisdiction that only provides post-indictment discovery, a video may be destroyed before it can be requested from the agency. Cross training could help all parties find resolutions to these types of challenges. Conclusion This study provided a foundational look at the fiscal impacts that have arisen from the policy changes implemented in jurisdictions to meet the requirements of the Michael Morton Act. The participants in both the surveys and the focus groups were able to provide valuable insights on how discovery policies have changes and the kinds and sources of costs that have been incurred. There are, however, many more opportunities for additional research in this area that will help to grow our knowledge base about the fiscal and policy impacts of the Act. Page v

7 The : A Look at the Fiscal Impact and Process Changes of the Michael Morton Act Introduction On December 19, 2011, Michael Morton was officially exonerated for the 1986 murder of his wife, Christine, after spending nearly twenty-five years in prison. DNA evidence from the Williamson County, Texas, case was used to not only prove that Michael Morton did not commit the murder, but it also identified the true perpetrator, Mark Norwood, and tied him to a second murder that occurred while Morton was wrongfully imprisoned. 1 Over the course of the investigation that led to Morton s exoneration, it was revealed that the prosecution had evidence in its file that had not been turned over to the defense. First, Morton's threeyear-old son had witnessed a monster with a big mustache murder Christine when Morton was not home. Second, a neighbor had witnessed a green van casing the Morton home around the time of the murder. 2 Although the failure to disclose the aforementioned evidence was clearly a Brady violation 3, the Williamson County District Attorney had no independent statutory obligation to provide the information to the defense prior to trial. This changed when the 83 rd Texas Legislature passed Senate Bill 1611, known as the Michael Morton Act, to guide discovery in Texas courtrooms. In the following sections we review the discovery laws prior to the Act, the requirements of the Act, and news reports of implementation concerns in jurisdictions since the Act went into effect. Pre-Existing Discovery Laws Prior to the passage of the Act, Texas prosecutors had no legal obligation to open their file to the defense in a criminal prosecution. In order to gain access to almost anything in the State's file, the defense was required to establish good cause before the trial court could order the State to provide the discovery. Fortunately, many counties and jurisdictions throughout the state voluntarily implemented open file discovery policies instead of requiring the defense to litigate all discovery requests. These policies sometimes took the form of standing agreed-upon orders for discovery that were filed with the courts. In other jurisdictions the open file policy was an informal one that was adopted by the District or County Attorney. There was, however, virtually no statutory or case law remedy beyond Brady if evidence was not provided to the defense. Michael Morton Act Senate Bill 1611, more commonly referred to as the Michael Morton Act, amended Article of the Texas Code of Criminal Procedure in four respects. First and foremost, the Act requires open file discovery if timely requested by the defense. Second, as part of that open file policy, prosecutors have a 1 Michael Morton. Texas Monthly. Last accessed March 5, 2015, at: michael-morton. 2 Goodwyn, Wade. (2012, April 28). Free After 25 Years: A Tale of Murder and Injustice. National Public Radio: Weekend Edition. Last accessed March 5, 2015, at years-a-tale-of-murder-and-injustice. 3 Brady v. Maryland, 373 U.S. 83 (1963). Page 1

8 continuing statutory duty to provide favorable evidence to the defense. Third, the State is required to electronically record or otherwise document all information provided to the defense, and finally both sides must acknowledge in writing or on the record in open court the disclosure and receipt of all information provided during the discovery process before trial or before the trial court accepts a plea. Article as amended specifically addresses how and under what circumstances open file discovery occurs. In particular, the statute requires: "The state, as soon as practicable after receiving a timely request from the defendant to produce and permit the inspection, electronic duplication, copying and photographing of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law-enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state." The Act also creates a process for withholding information specifically exempted from discovery under the statute, including criminal histories. When the defense receives discovery under the Act, certain limitations are imposed on the defense regarding dissemination of the information. The defense is allowed to share the information received in discovery with certain people only under certain circumstances and, depending on the circumstances, certain identifying information must be redacted before showing the information. Article specifically creates categories of individuals discovery can be shared with and it defines how the discovery can be shared. For example, a defense attorney can provide the defendant or a witness a copy of that person s own statement. If the defense attorney wants to share additional discovery with the defendant or witness he may do so but he is prohibited from both providing a copy of the discovery and divulging certain identifier information regarding the victim and/or witness. In the case of a pro se defendant, as long as the court orders the State to produce and permit the inspection of information, the State is not required to allow electronic duplication of the discovery. Finally, to help facilitate the discovery process, the Act allows the court to order the defendant to pay costs related to discovery, provided that the costs may not exceed the charges prescribed by Subchapter F, Chapter 552, of the Texas Government Code. The Michael Morton Act passed unanimously in both the House and Senate and it was the first bill signed into law by Governor Rick Perry. In recognition of the sweeping changes and implementation issues inherent in Senate Bill 1611, the bill provided prosecutors with time to prepare for the new law by postponing the effective date of the Act until January 1, Implementation Concerns Reported in the Media The Act has been in effect just over a year, as the requirements began to apply to offenses that occurred on or after January 1, Less than six months after the effective date of the Act, prosecutors began to raise questions regarding the cost of implementation and the potential that counties would have to Page 2

9 significantly invest in new technology and staff to meet the requirements of the Act. 4 Other articles and opinion pieces followed that documented the increased staffing requests made by Travis County (seventeen paralegals were approved in a mix of full- and part-time positions across the District and County Attorney Offices) 5, the concern that increased evidence requirements could slow police response times 6, and an informal cost-benefit analysis of the Act. 7 These media reports led the researchers to wonder whether the cost increases were felt across jurisdictions, if they were uniform in their impact, and how the discovery policy changes contributed to those costs. These issues guided the formation of the research questions presented below. Research Questions The goal of this project was to learn more about the fiscal impacts that may have arisen from the Michael Morton Act, and how the Act changed discovery practices from both prosecutors and defense attorneys points of view. Thus, we developed the following research questions: 1. What costs, if any, have been incurred through implementation of the Michael Morton Act? To help understand the context for these increased costs, we also asked two additional questions: 2. How do prosecutors and defense attorneys describe the discovery policies that were in place prior to implementation of the Michael Morton Act? 3. How do prosecutors and defense attorneys describe the discovery policies that have been put in place since implementation of the Michael Morton Act? Almost all significant policy changes will incur costs, especially when the policy change is first implemented, so the primary goal of the study was to identify the policy cost drivers that have accompanied planning for and implementation of the Act. We also tried to share policies and practices that were praised by focus group and survey participants, as well as identify those policies and practices that appeared to have a greater fiscal impact through either direct costs, the time required to comply with the policies and practices, or parties perceived satisfaction with the policies and procedures. The overall intent of this study was to gather baseline information about implementation of the Michael Morton Act, to collect data on the fiscal impacts, and to document process changes implemented to comply with the Act. 4 Langford, Terri. (2014, May 29). Costs and Questions as TX Implements New Discovery Law. The Texas Tribune. Last accessed March 4, 2015, at: 5 Walsh, Sean Collins. (2014, December 23). Travis County approves more staff to comply with Michael Morton Act. Austin-American Statesman. Last accessed March 4, 2015, at: 6 Maxwell, Robert. (2014, July 3). APD: Morton Law Could Slow Some Police Call Times. KXAN. Last accessed March 4, 2015, at 7 Henson, Scott. (2014, December 24). Michael Morton Act Costs, and the Costs of Failing to Disclose Exculpatory Evidence. Grits for Breakfast. Last accessed March 4, 2015, at Page 3

10 Methodology Survey Methodology In order to answer the research questions above, this research project employed a two-pronged approach. First, surveys were developed and distributed to defense attorneys and prosecutors across the state. A link to the online defense survey was sent out through the Texas Criminal Defense Lawyers Association listserv/directory, which reaches approximately 2900 members. A link to the online prosecutor survey was sent to about 260 District and County Attorney s that were compiled by the research team. In addition, links to both surveys were sent out to the membership of the State Bar of Texas Criminal Justice Section, which reaches approximately 3100 members. Finally, the link to the prosecutor survey was sent to contacts known by the research team in order to achieve distribution beyond the elected prosecutors. Qualitative analysis and descriptive statistics are provided for survey responses in order to allow any similarities or differences to be seen among prosecutors and defense attorneys responses before and after the Act. In order to allow for equal comparisons between unequal groups, all numbers of respondents who answered a question were converted to percentages of respondents. Focus Group Methodology The second phase of the study was a series of focus groups in a small sample of rural, suburban, and urban counties in Texas. These counties were reached through contacts made by the research team and by outreach to the research team made by members of the Texas Legislature. One contact person was identified in each jurisdiction who either organized potential participants, or who provided the research team with a list of names for the research team to contact and confirm participation. Two focus groups were conducted in each jurisdiction: one for defense attorneys and one for prosecutors. Law enforcement were invited to attend the prosecutors session in several jurisdictions, and judges were welcome to attend either session. Each session lasted around an hour and used a semi-structured approach to address the topics of discovery policies prior to and after the Act, process impacts of the Act, fiscal impacts of the Act, as well as the greatest implementation challenges and successes. The focus group sessions were recorded and transcribed for analysis, and the responses were coded for themes using a content analysis methodology. The findings from the focus groups are woven into the primary analysis of the survey results below. Survey Respondents Results Respondents Survey responses were received from forty-six prosecutors in thirty-six unique offices at both the District and County Attorney levels. This represents about nine percent of the District and County Attorney offices in Texas ( s were sent to all identified County Attorney addresses regardless of whether they prosecute cases). Responses were also received from 254 defense attorneys across the state. While we do not know the exact number of defense attorneys who were sent the links to the surveys because we were unable to compare the TCDLA and SBOT Criminal Justice Section lists, we estimate that this represents about an eight percent response rate from defense attorneys. Page 4

11 While the prosecutor and defense attorney response rate is on the low side for electronic surveys, the maps below show the wide distribution of counties where these attorneys practice. Because prosecutors conceivably work under the policies set by their office, our emphasis was less on multiple responses from prosecutors within the same office, but rather to get responses from a variety of prosecutors offices across the state. We received responses from thirty-six offices that represent fortyone counties 8 in Texas that include urban, suburban, and rural parts of Texas. The map below shows the counties that are served by the prosecutor survey respondents. Figure 1: Prosecutor Survey Respondents The prosecutor respondents indicated that either they or their offices handle the following types of cases: 8 One prosecutor responded to the question, In what county do you prosecute cases? with the response, Several, and another responded, All over the state. The counties represented by these prosecutors could not be included in the map, but at minimum they represent four counties that may or may not be otherwise accounted for. Page 5

12 Table 1: Prosecutor Respondent Case Types Case Type # Respondents Felony 10 Misdemeanor 4 Juvenile 2 Felony and Misdemeanor 3 Felony and Juvenile 2 Misdemeanor and Juvenile 11 Felony, Misdemeanor, and 14 Juvenile The map below shows the counties where the defense survey respondents primarily practice (shaded in dark orange) and the counties where those same attorneys additionally practice (shaded in light orange). The counties represented by the defense attorney participants include major metropolitan areas and suburban and rural counties scattered across the state. Including the counties of additional practice, the defense survey respondents work or have worked in 219 of Texas 254 counties. Figure 2: Defense Survey Respondents Page 6

13 We believe that this distribution of participants provided the research team with a good representation of how prosecutors and defense attorneys implemented, experienced and perceived discovery policies across the state and served as a solid foundation of information for this baseline data collection. Focus Group Participants Focus groups were conducted in five jurisdictions: the 36 th Judicial District (Aransas and San Patricio Counties), the 156 th Judicial District (Bee, Live Oak, and McMullen Counties), El Paso County, Travis County (including prosecutors from the District Attorney s office), and Williamson County (including prosecutors from the County Attorney s office). In total, the focus groups reached fifty-one participants and consisted of twenty-three defense attorneys, twenty prosecutors, five judges and three law enforcement officers. The transcripts of the focus groups yielded 284 pages of text for analysis, the results of which are used to support, or act as a counterpoint to, the survey findings. Prosecutors Staffing Changes and Purchasing To help understand the fiscal impact of the Act on jurisdictions, respondents to the prosecutors survey were asked questions about three cost drivers that have been attributed to the Act in media and anecdotal reports. Because policy changes often require internal changes to staffing and equipment required to carry out the new processes, prosecutors were asked if their offices had reallocated or reclassified any personnel, added any new personnel, and/or purchased any hardware or software to meet the needs of the Act. They were finally asked if the Act had any other fiscal impact not captured by the three identified cost drivers. Their responses are summarized in the chart below, along with additional in-depth analysis of the responses. As can be seen from the chart, less than fifty percent of respondents indicated that they had reallocated or reclassified existing staff, added new staff, purchased hardware or software, and/or reported other fiscal impacts from the Act. The largest group of respondents (forty-six percent) reported that they had purchased hardware or software, most of which appeared to be for scanners used to convert paper documents to electronic discovery. Chart 1: Staffing and Equipment Changes in Prosecutors Offices 80% 70% 60% 60% 72% 54% 61% 50% 40% 40% 46% 39% 30% 28% 20% 10% 0% Reallocated/Reclassified Staff Added New Staff Purchased Hardware/Software Other Fiscal Impact Yes No Page 7

14 Reallocated or Reclassified Staff Prosecutors in seventeen of forty-two survey responses reported that they had reallocated or reclassified existing staff. Two additional prosecutors responded to this question that they had added new employee(s) to the staff, so those responses were moved to the next category. Finally, one prosecutor stated that they had not reallocated staff, but then described the new job responsibilities that have arisen since the Act. That response was included in this category. Below are the descriptions of the new job duties as described by the prosecutor respondents (not all prosecutors provided the new duties and responsibilities in the survey; some just indicated that they had reclassified or reallocated staff). Counties Austin Blanco Brazos Chambers Dimmit, Maverick, Zavala Edwards, Kimble, Mason, Menard and Kimble Fannin Nolan Nolan, Mitchell, and Fisher Orange Tarrant Walker Wheeler Table 2: Description of Reclassified or Reallocated Staff Duties Description of reclassified/reallocated staff duties and responsibilities We have an assistant D.A. primarily responsible for misdemeanor prosecution. We're now transitioning him into filling out Michael Morton Act compliance statements for every single misdemeanor case at intake. Our misdemeanor secretary has to print compliance statements and attach them by hand to every file. She also has to print forms for represented and pro se waivers and bring those to court. Our District Attorney, who handles grand jury, now has to fill out the compliance statement for every felony case at intake pre-indictment. Our felony secretary now prints those forms and attaches them to the files prior to Grand Jury. On court days, I used to be able to focus solely on pleas and negotiations. Now, a large part of my attention has been diverted to trying to make sure every plea gets the correct form, and making sure that the defense attorneys have completed the form correctly instead of just rubber-stamping it. Additional time required for getting receipts at "walk in" and additional time for duplicate trial discovery notebooks. Placed additional duties on secretaries to assist with dissemination and documenting of discovery provided to defense. Additional secretarial and clerical time devoted to providing and documenting discovery provided to pro se defendants. Tremendous amount of additional time burden placed on prosecutors to document all discovery. Virtually every person in our office has been tasked with additional duties to comply with this act. The courts have even added pre-arraignment settings and discovery settings to our busy caseload. Existing support personnel assure the compliance forms are submitted with plea papers. Clerical staff and investigators now tasked with scanning files, documenting contents of files, and delivering scanned material. Staff must spend additional time reviewing and implementing discovery checklists and we purchased software which is expensive and requires staff time away from doing other work. We eliminated our discovery clerk, and now require the prosecutors to provide discovery. The discovery clerk's responsibilities were shifted to another area of need. I had one secretary; I still have one secretary. Secretaries spend significantly more time scanning and photocopying. More people have to work on discovery every day. Now have a few more positions dedicated to copying discs for defense attorneys. (1) Discovery/Production DA investigator; (2) Misdemeanor case intake/screening. I have made a part-time employee full time to help with compliance. Page 8

15 As is evident from the above responses, several offices reported that they shifted job responsibilities among existing staff as part of implementation to focus on discovery production and documentation. Added New Personnel Apart from reallocating or reclassifying existing personnel, twelve of forty-three prosecutor respondents indicated that they had added new personnel to meet their offices implementation needs. Below are the responses about the duties of the new personnel where that information was provided, as well as the estimated annual cost of the new personnel when provided. Finally, the table includes comments from those who expressed a need for personnel but lacked funding for any new hires. Table 3: Description of New Staff Duties Counties Description of new staff duties and responsibilities Annual Cost Austin We didn't have to add personnel solely because of the Michael Morton Act because our office was already overburdened, but it certainly played a part. We recently hired a new attorney to handle many of the civil responsibilities that previously fell to our misdemeanor prosecutor. Now our misdemeanor $61,000 prosecutor will be prepping the Michael Morton Act compliance forms. We're presently still in transition on that. Bell A new person to only process discovery. Brazos We have added one full time position to deal strictly with obtaining and disseminating evidence at a cost of approximately $45,000 to the county. We are looking at adding additional prosecutors, also, to deal with the $45,000 volume of work. Chambers Scanning all case files, numbering with a Bates Stamp large files and creating an index. We added an additional prosecutor because it now takes more prosecutors to handle the same amount of case and verify that the Michael $110,593 Morton Act has been complied with. Dallas Hired people to scan the materials digitally. Have people on-site to handle our new digital file system. Dallas We have 2 assistants that scan and redact our discovery. Polk We began scanning and uploading all of our discovery materials to an internet based discovery program. We had to add an additional intake $40, secretary to keep up with the additional workload. Travis (focus group) 10 paralegals for discovery management. $700,000 Walker (1) Felony case intake/screening. Williamson We added an additional evidence tech to our Evidence Division, increasing full-time personnel in that division from three to four. We also added a parttime position to assist as well. Our evidence techs are responsible for logging all media evidence received from police agencies, copying all media $72,500 onto disks for defense attorneys, ing all case documents and reports to defense attorneys, and converting and redacting audio and video evidence for use in trials. Staff Needed but Not Hired Fannin Additional personnel were requested from the County Commissioners due to the increased workload, but the request was disapproved. Nolan, Mitchell, and Fisher We cannot afford to. Orange We need more people but don't have funding. Page 9

16 New Hardware and Software Prosecutor respondents were asked if they had purchased any hardware or software in addition to any staffing changes. Nineteen of forty-six indicated they had, and the descriptions of estimated costs of the hardware and software where offered by respondents are provided below. Table 4: Hardware and Software Purchased Prosecuting Estimated Description of Hardware and Software Purchased Counties Cost Archer Scanner. $1,000 Bell Web portal. Burnet The county is in the process of upgrading its hardware and software to allow paperless flow of work product that will also provide access to the defense. This effort is not a direct result of the Morton Act but it is related. Chambers We added the feature in NetData which enables us to make our files available on-line to attorneys-of-record. We also purchased the scanners $5, needed to input the data. Dallas Digital file system and scanners. Dallas Scanner with redaction capabilities. Dallas Scanners for the courts. Dimmit, Maverick, Zavala Scanners. $2,000 Edwards, Kimble, $1,000 + We purchased LGS Prosecutor to try and do discovery through the software Mason, Menard monthly portal. Additional copies of Adobe Acrobat had to be purchased. and Kimble costs El Paso DA portal. Allows access to the entire case file at any time and is real time as any new discovery is added. Fannin 7 scanners. $6,300 Fannin Additional scanners were purchased for each attorney. Other requests from the County Commissioners for funding to supply other hardware/software $5,000 needs were disapproved. Midland 2 scanners and Extract Software. $55,000 Nolan In order to facilitate the electronic portion of the discovery, we have had to $20,000 + purchase new case management software. $1,000/mo Orange New computers and high speed scanners. Developed software in-house. $15,000- $20,000 Polk Additional computer, scanning equipment and file inventory program. $8,372 Sutton Scanning software. Tarrant More computers and disc duplicators. Travis (focus group) Printers. Williamson 10 DVD burners, 2 computers, 10 Adobe Pro Licenses, video processing software, document scanners, additional DVD disks, off-site training for one $29,000 evidence tech on digital evidence processing. Comments from those with no hardware/software purchases Brazos We have not purchased any through our department, but the Information Technology department has spent a huge amount for additional computer storage space and a new Laserfiche program, which has not been delivered >$50,000 yet, to help deal with the problem. Eastland In 2011, we purchased software for online implementation of discovery and one additional scanning device. $9,000 Page 10

17 Prosecuting Counties Kendall Nolan, Mitchell, and Fisher Description of Hardware and Software Purchased We will likely need to in the future. We cannot afford to. Estimated Cost Other Fiscal Impact Finally, prosecutor survey respondents were asked whether there were additional areas of fiscal impact related to the Act s implementation. Fifteen of thirty-eight respondents indicated that there were additional fiscal impacts, the descriptions of which are presented below. Several of the responses focused on the changes in how time is spent by prosecutors and staff and the increased use of office supplies to provide discovery. Counties Austin Bell Brazos Edwards, Kimble, Mason, Menard and Kimble Fannin Kleberg and Kenedy Orange Polk Sutton Table 5: Other Fiscal Impacts Other Fiscal Impacts Increased paper costs for all the forms we now have to print and file. I am sure there is increased cost, but I believe the cost is worth it. Can't tell you exactly, but the impact has been tremendous. A big part of the increase is that now the defense feels like they need to request everything in every case to cover themselves, even though they may only look at a small fraction of it - or none at all. We are finding cases where the defense is requesting discovery after pleading guilty and being sentenced, just so they can show that they did. And some of the defense are asking for things they never use or intend to use just to make us jump through the hoops. These effects are being seen all the way down to our Class C cases in JP Court. We want to provide everything, but the waste and abuse is horrific. The staff time that is redirected to dealing with documentation is hard for our small office. Office supplies are being expended at a much faster rate due to the need to reproduce all documents received from law enforcement with Bates numbers applied to them. Requests for an increased office supplies line item in the budget were disapproved by the County Commissioners. This has slowed the process down for Defendants, keeping them in jail longer and almost eliminated pleas by information. We don't have the budget to add people or equipment, so it just adds to the workload of the existing people. We would love to have another person, equipment and programs to handle the implementation, but we just don't have the money. More tasks on existing staff = slower process. We anticipate spending a lot more as we develop our process and fix problems. Subjective value of man hours spent complying with the inventory provisions of the act are impossible to quantify. But there has been a noticeable impact on the time it takes to move cases (especially felony cases) through from the grand jury phase to disposition. This results in increased incarceration costs for offenders who cannot make bond and docket congestion in the courts. Time to train personnel and cost to scan or copy in every case when requested. Estimated Cost $200,000 in time, programs, and equipment Paperwork increased by 1/3, increase in jail/attorney time Page 11

18 Counties Tarrant Walker Williamson County Other Fiscal Impacts Sometimes, there have been longer times in custody waiting on evidence. Increase costs in DVDs, paper/ink. The amount of video footage associated with criminal cases has increased significantly over the past five years and virtually all of it is recorded on digital cameras and stored electronically. We are currently working on methods to both receive and transfer digital video evidence electronically without the need for disks. We expect to expend approximately $15,000 toward this effort in the near future with much more capital investment in these technologies over the next three years. Estimated Cost $15,000 (2015 est.) These responses indicated that the fiscal impact of the Act to counties, like most all impacts of the Act, appeared to vary by jurisdiction, with over half of jurisdictions reporting no increased costs due to staffing or purchasing. What this study did not address was the portion of the annual prosecutor s budget that is represented by the reported fiscal impacts. For example, a $1,000 scanner may only represent a fraction of a percentage of a budget in a large county like Dallas or Harris, but it may pose a significant cost for a one-prosecutor office that serves multiple counties. Further research could examine purchasing and staffing records to more accurately describe the fiscal impacts of the Act, compare those costs to the overall prosecutor budget, and measure any offsets gained by the discovery fees imposed by many counties (discussed later in this report). The focus group respondents in several jurisdictions stated that they were able to win grants that allowed them to purchase the equipment needed to comply with the Act. For example, one jurisdiction received a grant to purchase cameras that could be used to record interviews with domestic violence victims and servers to store those videos. Another jurisdiction was able to purchase high-capacity scanners through a document preservation grant. Although neither of these grants was labeled as a Michael Morton Act Grant, the jurisdictions were able to be creative in their searches for grants, in their applications, and in their utilization of the equipment to meet multiple needs of their departments. To help gain a better understanding of the process changes that led to the Act s fiscal impact in some jurisdictions, both prosecutor and defense attorney survey respondents were asked to describe their discovery policies pre- and post-act, to provide details of the Act s implementation in their jurisdictions, and to discuss workload changes since the Act. Previous Open File Policies Contextual Information To help understand the discovery policies already in place, prosecutors were asked if their office had an open file discovery policy prior to implementation of the Michael Morton Act. Of the forty-five respondents, forty-four (or ninety-eight percent) indicated that they did have an open file policy in place. They stated that this policy was instituted anywhere from the 1970s to as recently as When asked whether there was a written policy that guided the definition of open file discovery for the office, just thirteen of forty-one respondents (or thirty-two percent) indicated that there was a formal written policy. Page 12

19 We similarly asked the defense attorneys if the county where they primarily practiced had an open file policy in place prior to implementation of the Act. Of the 231 respondents who answered the question, 198 (or eighty-six percent) indicated that the county did, while thirty-three respondents (or fourteen percent) indicated that the county did not. Interestingly, some attorneys who primarily practiced in the same counties answered that particular question differently. Counties that received both yes and no responses to the question of open file prior to the Act included Bell, Bexar, Brazoria, Cameron, Collin, Dallas, Harris, McLennan, Rockwall, Taylor, Travis, Victoria, and Williamson Counties. This may be a reflection of a theme that was found throughout the defense surveys and will be discussed throughout this report: many defense attorneys felt, and continue to feel, that discovery policy varied based on the individual prosecutor, the type of offense, the type of evidence, and/or between County and District Attorney. Direct Filing Prosecutors were also asked whether their office did direct filing, which was defined as the policy to set a court date prior to indictment or information. Eight out of forty-four prosecutor survey respondents (or eighteen percent) indicated that their office did direct filing. Those counties included: Austin, Blanco, Eastland, El Paso, Polk, Tarrant, and Williamson Counties. In addition, one prosecutor who stated that she or he prosecuted cases in several counties also responded that the jurisdiction did direct filing, but those counties were not named by the prosecutor. Pro Se Defendants Next, prosecutor survey respondents were also asked if there was a different discovery policy in place for pro se defendants before implementation of the Act. Thirty-four of the forty-six respondents answered the question, and of those, twenty-seven (or seventy-nine percent) indicated that either there was not a different policy or that there were no pro se defendants. In many juvenile and felony courts, pro se representation rarely, if ever, occurs. The remaining respondents (seven, or twenty-one percent) indicated that they did have a different policy for pro se defendants prior to the Act. Those policies allowed for view-only discovery rather than copies (two responses), view-only unless discovery ordered by the court (one response), statutory discovery only (one response), open file excluding documents that were sensitive (one response), discovery by court order only (one response), or no discovery at all (one response). Discovery Request Forms Finally, both prosecutors and defense attorneys were asked if they, or the prosecutors where they primarily practice, promulgated a discovery request form as part of the implementation of the Act. Eight of the prosecutor survey s forty-six respondents (or seventeen percent) indicated that they had implemented a request form. The remaining thirty-eight respondents stated that they had not promulgated a form. By contrast, 105 of 245 defense attorney respondents (or forty-three percent) indicated that a discovery request form had been promulgated in their county of primary practice. The differences in responses to this question could be attributed to the fact that the defense attorney respondents came from many more counties that the prosecutor respondents. Page 13

20 Planning for Implementation One question that was asked of prosecutors was whether any planning had been conducted to prepare for implementation of the Act. Because the Act provides general guidelines rather than specific instructions on how the Act should be implemented, this planning could be an important factor in how the Act s implementation proceeded in each jurisdiction. Of the forty-six prosecutor survey respondents, thirty-seven (about eighty percent) indicated that planning had been conducted by their office. Just nine (twenty percent) indicated that no planning was conducted prior to the Act s implementation. In addition, thirty-three prosecutor respondents provided greater detail on why the planning was or was not conducted. Those responses are analyzed below. Planning Was Conducted Thirty prosecutor respondents who indicated that planning had been conducted in advance of implementation provided a variety of descriptions of that planning. Six (or twenty percent) of those responses provided simplistic descriptions of the planning, such as many meetings 9 or meetings with prosecutors and investigators in effort to determine workable ways to comply with Act, but did not provide additional descriptions of those meetings. Eight others (or twenty-seven percent) solely discussed the transition to an electronic discovery system or electronic copies of discovery with comments such as, Our office set up an electronic portal to more easily distribute discovery. Another prosecutor stated, The office determined that it would be best to provide all information electronically via . This would ensure a record of exactly what material was forwarded to the defense, and a third who serves several counties stated that the office [w]ent electronic in most counties. Smaller counties planned for immediate photocopying or copying of material. Two prosecutors (seven percent) described changes to their internal policies and procedures in preparation for the Act. One prosecutor noted that the office [d]rafted new policies and procedures. Implemented the new policies and procedures before necessary to test the efficacy. The second prosecutor stated that he or she provided instruction to secretary re: collection of defense receipts and compilation of duplicate trial notebooks with receipts, discovery items, and comprehensive list. Two other prosecutors (seven percent) specifically mentioned forms in their responses with comments like, Prepared forms to fill out to display all evidence in the pertinent case, and, Drafted letter to counsel and prepared form for delivery of materials. A final prosecutor (three percent of respondents) indicated that the planning consisted of the following: Had to figure out the best way to get the Law Enforcement Agencies to get the information to us as quickly as possible. The largest portion of prosecutor survey respondents (eleven of thirty, or thirty-seven percent), however, described a multi-pronged approach to planning for the Act. Some of these responses described small-scale changes like, We edited the discovery receipt letter to include a compliance statement, and we added a Brady Tab to Odyssey, and, Employees were educated on how to reduce to writing the policy that was already in place. Also, forms were drafted for the court file for proof of compliance with the Act. 9 In this and all subsequent quotes from survey respondents, grammatical errors and misspellings have been corrected to provide ease of reading. Ellipses and brackets are used to indicate partial quotes. Page 14

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