The Prosecutor Work Product Exceptions to the Michael Morton Act
Exempted from discovery under the Michael Morton Act is “work product of counsel for the state in the case and their investigators and their notes…” Attorney notes of this type of information has always been considered work product and not discoverable. The exemption also covers “written communications between the state and an agent, representative, or employee of the state.”
Despite this work product exception 39.14(h) provides “the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document or item, or information in the possession, custody , or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.” That is a pretty big exception. A defense attorney could argue just about anything can be used to mitigate punishment.
What prosecutors must now realize is that all their notes should be preserved and that if there is anything in their file, notes, or emails that could impeach a witness or be viewed in any way as mitigating evidence they must turn that over to defense counsel upon request. How effectively this will be done remains to be seen. The act places a high burden on the prosecutors to turn over this information and prosecutors offices all across Texas are now busy planning the most efficient ways to comply with the act.
What about cases in which the District Attorney’s Office conducts their own investigation? The Dallas County District Attorney’s Office has sections such as Specialized Crime and Public Integrity which frequently intake their own cases and conduct extensive investigations with their own investigators. It would seem the Michael Morton Act would directly apply to these investigations and the work product exemptions would not apply.