Case No K26 Writ No. AP-76,663 IN THE 26" JUDICIAL

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1 Case No K26 Writ No. AP-76,663 THE STATE OF TEXAS V. MICHAEL W. MORTON IN THE 26" JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS APPLICANT'S RESPONSE TO KEN ANDERSON'S MOTION TO QUASH DEPOSITION AND MOTION FOR PROTECTIVE ORDER, AND TO MIKE DAVIS'S PLEA FOR JURISDICTION, MOTION TO QUASH AND FOR PROTECTIVE ORDER Applicant Michael Morton hereby submits this Response to Ken Anderson's Motion to Quash Deposition and Motion for Protective Order and to Mike Davis's Plea to Jurisdiction, Motion to Quash, and for Protective Order (collectively, "the Movants" or "the Motions to Quash"). Because the two motions raise essentially the same legal challenges to the depositions and subpoenas issued in this case, albeit in somewhat different form, this response to both motions is being filed as one pleading for the sake of efficiency. The Motions should be denied, for several reasons. First, the Motions do not satisfy the substantive provisions of Tex. R. Civ. P , which appears to provide the ppy vehicle through which these non-party witnesses have standing to challenge the Notices of Deposition and Subpoenas ("the Notices") at issue. Second, and relatedly, the Movants lack standing to challenge this Court's authority to issue the earlier order under which the Notices were issued. Third, even if they did have such standing, the Movants' challenge to this Court's jurisdiction and authority is without merit, as the Notices were issued pursuant to a lawfully entered order of 1

2 this Court dated October 3, 2011, at a time when even these Movants concede that the Court had full jurisdiction over the art writ. This Court retains settled authority to enforce its prior orders and agreements entered into by the parties in a criminal case which (as here) is still pending. Finally, Mr. Davis's request for sanctions against counsel is wholly without merit. I. BACKGROUND AND PROCEDURAL HISTORY On October 17, 2011, Applicant served a Notice of Deposition of Ken Anderson and issued a Subpoena in connection with the Notice. On October 19, 2011, Movant filed a Special Appearance and Motion to Quash Deposition and Motion for Protective Order. These depositions were noticed pursuant to a private, non-public order of this Court, to which the Movants may not have had access to review directly (as it was agreed to be kept sealed by the parties and this Court), but the substance of which they presumably are now aware. Specifically, the deposition notices and subpoenas (collectively, "the Notices") arose from an October 3, 2011 proceeding in this Court and orders of the Court entered at that time. On that date, at a chambers conference and again on the record in open court, the parties informed the Court that Mr. Morton had filed his application for a writ of habeas corpus asserting both claims of actual innocence as well as Due Process claims, the latter of which arose out of serious prima facie evidence that material, exculpatory evidence had been withheld by the State (specifically, the two Movants) at Mr. Morton's 1987 trial, and in direct violation of a Court order. The writ included a detailed memorandum of law setting forth specific factual allegations regarding each of these claims, and attaching original documentation only recently obtained by Mr. Morton's counsel supporting these claims. The memorandum of law and accompanying writ specifically described numerous allegations that these Movants (who had prosecuted Mr. Morton) knowingly violated Mr. Morton's due process rights at trial by (1) 2

3 deliberately withholding exculpatory evidence from him, and (2) failing to comply with court orders to produce certain investigative materials for in camera review pretrial. At the time Mr. Morton filed his writ application, the State did not file a written response, but reviewed an advance copy of the writ provided by the undersigned prior to its filing. The State then represented to undersigned counsel and the Court that based upon the information then available, the State at that time disputed Mr. Morton's entitlement to relief on the Due Process claims, and would, based on the information then available, deny the factual allegations then asserted (Claims Two through Seven of the Writ). Pursuant to the express terms of art (3)(d), Mr. Morton thus had the right to seek an order of this Court directing a full, public inquiry as to the factual issues in dispute regarding those claims, specifically including (but not limited to) depositions of all material witnesses.' The parties agreed that Mr. Morton had the right to avail himself of that procedure, and thereafter entered into a proposed agreement, which they sought to have approved and entered by this Court, to conduct more limited discovery under art in exchange for certain other agreed findings and Mr. Morton's immediate release from custody on a signature bond. Specifically, the parties agreed and proposed to this Court that in conjunction with the entry of an order adopting the parties' Findings of Fact and Conclusions of Law as to Claim One (actual innocence), the Court would also order the parties to conduct certain discovery. This discovery includes, but is not limited to, the sworn, videotaped depositions of the two Movants herein within 60 days of the entry of the Order, or within thirty days of the issuance of a ruling granting 1 Art sec. 3(d) provides that "If the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant's confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating the issues of fact to be resolved. To resolve those issues the court may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection." 3

4 relief on Claim One by the Court of Criminal Appeals. The parties recognized that the common intent and purpose of their agreement should not be thwarted on technical grounds. If the Court of Criminal Appeals issued a ruling before the depositions could be completed, the mandate of the Court of Criminal Appeals would not issue, even in an uncontested case, for at least thirty days following any opinion of that Court. This agreement was made in express consideration for Mr. Morton's waiver of his statutory right to conduct far more extensive discovery on the issues pending in his application for a writ of habeas corpus, as was noted both in chambers and in open court. Indeed, in the hearing in chambers (a sealed proceeding that we recognize that Movants, as nonparty witnesses, did not attend, and the transcript of which was unavailable to them at the time they filed their Motions to Quash, but which is available to this Court), the parties recounted the history of these negotiations. Specifically, the parties described Mr. Morton's agreement to waive his more extensive art discovery in exchange for the more limited art depositions/other discovery agreed upon by the parties, so that the Court could give the parties' intent and the applicable law due consideration in determining whether to grant the agreed order. In open court, this Court then entered the Proposed Findings of Fact and Conclusions of Law that had been drafted and agreed to by the parties. The Findings contained a sealed addendum, Exhibit A ("the Discovery Agreement"), reflecting the parties' specific agreement to conduct the agreed-upon continued discovery during the pendency of the writ. Without disclosing the other terms of that Agreement (as it remains under seal), but in light of the fact that the Movants have themselves filed public documents revealing the Notices of these depositions, the undersigned can confirm that the Agreement attached to this Court's order did include a provision directing non-public, videotaped depositions of these two Movants, which, El

5 on the State's suggestion, would occur in the Williamson County Grand Jury room. Additionally, the Discovery Agreement further provided that this Court would be the designated arbiter of any disputes related to the Agreement and would have the authority to preside over any motions or requests for judicial intervention as may be necessary to enforce its terms. Notably, the Discovery Agreement was not executed as a separate private contract of the parties, but was made a sealed exhibit to the court-ordered Findings themselves. As such, it was expressly made part and parcel of the Findings signed and entered by this Court, under its authority to preside over the entirety of the factual allegations presented in the writ. On October 12, 2011, the Court of Criminal Appeals issued an opinion granting Applicant Michael W. Morton ("Applicant" or "Mr. Morton") habeas corpus relief based on new evidence of his actual innocence. Ex Parte Morton, No. AP-76,663 (Tex. Crim. App. delivered Oct. 12, 2011). Within hours of that ruling, the Williamson County District Attorney's Office filed in this Court a Motion to Dismiss the Indictment on grounds of actual innocence. (At the request of the parties, a ruling on that Motion is being held in abeyance, as this Court does not have the authority to dismiss the indictment until the CCA's mandate issues and the vacatur of applicant's conviction is final.) On October 17, 2011, the Williamson County District Attorney issued a public statement announcing that the Office of the Texas Attorney General would be serving as special prosecutor into the State's renewed investigation into the death of Christine Morton, and that all further inquiries regarding the potential prosecution of the suspect(s) under investigation should be directed to the AG's Office. However, Mr. Bradley reaffirmed his obligation to ensure compliance with the court-ordered Oct. 3, 2011, Discovery Agreement, stating publicly in the announcement that "Bradley intends to cooperate fully with Morton's lawyers and complete that

6 agreement as promised." The statement further noted that he specifically "encourage[d]" the trial prosecutors "to provide Mr. Morton with an explanation of what happened 25 years ago during the discovery process for his trial." Thus, neither party to this action disputes that these two depositions were noticed in accordance with a lawful order of the Court, and, moreover, are consistent with the interests of justice in this still-pending and highly serious criminal case. The only persons seeking to quash the Notices issued pursuant to this Court's October 3, 2011 order are the two Movants. Moreover, while both Movants have stated in their Motions that they now personally regret Mr. Morton's wrongful conviction and quarter-century of incarceration in the face of what they now agree is Mr. Morton's proven factual innocence of his wife's murder, they have nonetheless elected not to voluntarily comply with the Notices and truthfully answer his counsel's questions under oath, to the best of their recollections, about the circumstances that led to his wrongful conviction. Instead, they have asserted a host of technical challenges to the Notices and this Court's authority to supervise or conduct any discovery whatsoever as to the serious allegations in the writ. II. ARGUMENT AND AUTHORITIES The fact that the Movants are not parties to this litigation and last entered personal appearances in the case more than twenty years ago (in Mr. Anderson's case, during the appeal from the conviction, and in Mr. Davis's case, at trial), may account for their misunderstanding as to the circumstances under which the Notices were properly issued and this Court's jurisdiction to order them. As set forth infra, the Notices were issued pursuant to a lawful order of this Court in the course of presiding over the art writ, and was entered at a time when the Court - by Movants' own admission - unquestionably had jurisdiction over the case. Moreover, because

7 the indictment against Mr. Morton has not been dismissed, and because the October 3rd order was a valid one, this Court retains the authority to deny the Motions to Quash and enforce the Notices accordingly. More fundamentally, the Movants' technical challenges to the Notices are themselves deficient and invalid, and they are without standing to challenge this Court's underlying jurisdiction to enter the order that authorized these depositions. Lastly, Mr. Davis's request for sanctions against Mr. Morton's Innocence Project counsel is completely without merit. A. Movants' Motions to Quash Are Deficient Under Texas Rule of Civil Procedure The Movants' pleadings are wholly deficient as vehicles to challenge the Notices because they do not satisfy the terms of the applicable Rule. The Texas Rules of Civil Procedure govern depositions taken in criminal cases, when such rules are not in conflict with the Code of Criminal Procedure. See Tex. Code Crim. Proc. art ; Vanwinkle v. State, 2010 WL at *6 (Tex. App.-Fort Worth Oct. 28, 2010) (mem.). Under the civil rules, non-parties such as Movants have the ability to seek protection from discovery pursuant to Tex. R. Civ. Proc (a) and (b). Rule 192.6(a) specifically requires that, "If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply." (emphasis supplied). A Court may only issue a protective order to a non-party witness under Rule 192.6(b) where such an order is needed to "protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights," and where such an order is "in the interests of justice." Neither Movant has met either requirement. 7

8 With respect to Rule 192.6(a), Mr. Anderson has asserted that he has a full docket of criminal matters to preside over on the date noticed, and that his counsel has a medical procedure schedule for that date. However, he has not stated why those matters cannot or should not be rescheduled in light of the gravity (and expedited timetable) of the circumstances of the instant case - involving, as Movant acknowledges, a court-ordered inquiry into the conviction and quarter-century-incarceration of a factually innocent man whom Mr. Anderson personally prosecuted. Nor did Mr. Anderson provide an alternative "reasonable time and place" for his deposition with which he will comply. Thus, should this Court otherwise determine that the Notices were lawfully issued, which they were (see infra), Rule requires that Mr. Anderson's deposition proceed on October 26 at the courthouse as scheduled. Nor has Mr. Davis, in the course of objecting to the time and place of the deposition (J1 8), proposed an alternative reasonable time and place. He states that he is "concerned that the deposition in the Williamson County Grand Jury room will create a hostile environment and a media frenzy" (Id.) - a curious assertion to make given that the time, place, and very existence of the deposition had been deliberately and carefully kept private by all parties to this litigation since the October 3rd order, until Mr. Davis himself made it a matter of public record/notice in his publicly-filed Motion to Quash. The undersigned has no objection to conducting Mr. Davis's deposition at an alternate, non-public location. However, Mr. Davis proposes that he not be deposed (nor be required to produce any materials in connection with this case he may still possess) at all, but instead proposes that he be permitted to "sit down with Mr. Morton and his counsel on an informal basis and tell him everything he remembers about the case." Id. at 8. This "simple apology," he asserts, is "all that he has to offer at this late date." Id..

9 Mr. Morton and his counsel respectfully disagree. We recognize that Mr. Davis may not at this time fully recall the events of twenty-five years ago. But rather than a "simple apology" and an informal discussion, Mr. Morton would instead request that Mr. Davis (1) make a goodfaith effort to refresh his recollection as to the trial and pretrial proceedings at issue, including whether he recalls anything about the specific Brady materials at issue, and (2) answer some basic questions under oath, and to the best of his recollection, as to why these materials were not made part of the record at trial. If Mr. Davis does not agree to do so voluntarily, however, he may be compelled to do so under the authority of this Court. Further, neither Movant has demonstrated that the taking of these depositions would constitute an "undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights" as is required to secure a protective order under Tex. R. Civ. Proc (b), much less that entry of the requested protective order would be "in the interests of justice." Mr. Anderson made no such claims at all. Indeed, his Motion acknowledges the powerful countervailing interests present - stating that he does not wish "to trivialize the experiences endured by Mr. Morton nor the importance of Mr. Morton's right of redress." (p.1). For his part, Mr. Davis contends that conducting these depositions "will be an enormous waste of time and effort" (1J16). He does not state whose time and efforts will be "waste[d]" in this process (certainly not Mr. Morton's or his counsel's, nor the State's, since all of these parties have agreed that the depositions are both appropriate and lawful). Nor does he explain why any inconvenience to him is not readily offset by the substantial countervailing rights and interests possessed by Mr. Morton that led the State to agree to, and this Court to authorize, these depositions earlier this month.

10 Accordingly, the Motions should be denied for both Movants' failure to satisfy the express requirements of Rule B. Movants Lack Standing to Challenge This Court's Jurisdiction to Authorize, Order, or Enforce the Deposition Notices Although Movants have standing to raise limited challenges to the Notices under Tex. R. Civ. P based on the purported burdens of compliance the discovery may cause, those challenges are without merit here. Movants offer no authority in their Motions, and the undersigned knows of none, that give them the standing to challenge the jurisdiction of the parties to this action to issue the Notices, or to challenge this Court's authority to authorize or enforce the Notices through its prior (or future) orders. Indeed, the fact that Tex. R. Civ. P (a) and (b) lay out certain limited, enumerated grounds under which non-party witnesses may seek protective orders makes it reasonable to conclude that there are no additional, broader grounds outside the Rule for nonparties to challenge the underlying authority for said Notices to issue. See also Kessell v. Bridewell, 872 S.W.2d 837, 842 (Tex.App. - Waco, 1994) (declining to recognize standing by a non-party to a civil case to raise the issue of whether discovery sought from them is relevant to the underlying case). Non-parties do not have standing to raise challenges to depositions in a criminal case at trial. The only arguably analogous provision of the Texas Criminal Code, Tex. R. Crim. Proc. art ("witness depositions") merely provides that notice to the State must be given where, as here, a criminal defendant seeks to depose a third-party witness in a pending matter. 2 2 The art notice requirements were satisfied (and are of course, not challenged by the State, the only party with standing to raise such a challenge) when the parties reached an agreement as to the terms and conditions under which these depositions would proceed, and this Court ratified that agreement as part of its October 3, 2011 hearing and order. In addition, 10

11 C. Movants' Depositions Were Lawfully Ordered by this Court on October 3, 2011 Even if Movants had standing to challenge the lawfulness of the Notices, which they do not, any such challenges are without merit in this matter. Both Movants contend that the Notices were issued without prior authorization from any court. This is incorrect. As set forth supra, the Notices were issued in accordance and compliance with Exhibit A to the Findings of Fact and Conclusions of Law, signed and entered by this Court on October 3, Although that Exhibit was filed under seal, it was specifically incorporated by reference into the Findings themselves. Moreover, as put on the record at the hearing in chambers with the Court when the Order was proposed, this Agreement was entered into in consideration for Mr. Morton's partial waiver of the full breadth of statutorily-mandated discovery regarding the Brady allegations that was triggered by the filing of his writ. Movants argue that jurisdiction over the writ was transferred to the Court of Criminal Appeals under Article 5, Section V of the Texas Constitution, when the proposed findings were fully submitted to the CCA (which, according to the CCA's docket, occurred on October 12, 2011). But that fact is irrelevant to the validity of these Notices. More fundamentally, Movants do not dispute that this Court possessed full jurisdiction over the writ on October 3, 2011, the date the order at issue was entered. Nor do they dispute that on that date, after the filing of the writ, this Court possessed the authority to order the full panoply of discovery necessarily to resolve issues of material fact in dispute under art (d). Moreover, while Movants argue that the entire case is now "moot" in light of the fact that the Court of Criminal Appeals has issued an opinion finding Mr. Morton entitled to relief, they although art traditionally is utilized in the pretrial context, Mr. Morton remains under indictment for the murder in the current posture between the issuance of the CCA's opinion and the issuance of the mandate. 11

12 concede that the mandate has not yet issued, and will not have issued, at the time of the Noticed depositions. Thus, Mr. Morton currently remains (and will remain) under indictment, with his underlying criminal case still pending on this Court's docket. Movants offer a factually and legally incorrect interpretation of the terms of the public portion of this Court's October 3, 2011 order. They make much of the fact that the Findings of Fact and Conclusions of Law (at 27) provide that, under the terms of this Order and the parties' Discovery Agreement, the issues in dispute in Claims Two through Seven (the due process claims) "shall remain unresolved." This, in their view, deprives this Court of any jurisdiction to conduct or supervise discovery on those claims. This argument fails to read this provision in tandem with its intended counterpart in the Discovery Agreement (entered as part of and referenced in the Findings), which specifically provides that the agreed-upon depositions and discovery on these claims will continue during the thirty-day period that follows any ruling by the Court of Criminal Appeal as to Claim One. Thus, on October 3, 2011, the parties specifically contemplated - and this Court expressly ordered - a discovery procedure that would take place under the precise procedural posture in which the writ, and the case as a whole, now stands. While we recognize that the Movants may not have been privy to the terms of the Discovery Agreement that were entered as a sealed portion of this order (and thus, did not understand the full extent of the Court's order), their interpretation is simply incorrect. D. This Court Has Authority to Enforce the Terms of the October 3, 2011 Order The current procedural posture of the case (which, as set forth above, was anticipated and expressly contemplated by all parties, and this Court, on October 3, 2011 when the original order was entered) in no way negates this Court's authority to order these depositions and enforce the 12

13 Agreement's terms. 3 The Deposition Agreement is part of a prior order of this Court, and the court of course has jurisdiction to issue further orders to enforce its earlier ones if necessary. Moreover, judicial enforcement of the Notices merely constitutes fulfillment of the parties' court-supervised contract, which itself is a lawful agreement entered into by the State and a criminal defendant that this court has the well-settled power to enforce. See, e.g., Wright v. State, 158 S.W.3d 590, 595 (Tex.-App. San Antonio, 2005) (citing Santobello v. New York, 404 U.S. 257 (1971)) (district court may enter an order mandating specific performance of earlier plea bargain agreement). Even if the current procedural posture of the case somehow rendered invalid a deposition notice issued under the Court's prior art (3)(d) jurisdiction (which the undersigned strongly disputes), jurisdiction to order these depositions may alternatively be found under Tex. Code Crim. Proc. art and Until such time as the mandate issues from the Court of Criminal Appeals and this Court elects to grant the State's Motion to Dismiss, Mr. Morton remains under indictment for murder. As such, this Court has broad authority to argue depositions of witnesses at any time under art and Under those provisions, any trial court may "permit a defendant to take oral depositions upon a showing of good reason therefor," see Yaw v. State, 632 S.W.2d 768 (Tex. App.-Fort Worth 1982) (citing art ). This Court has previously found (and the undersigned submits, would again have cause to find) that good reason exists to permit the limited but critical inquiries provided for in the parties' Agreement here. Indeed, the State agreed that good cause existed on October 3, 2011, and did so It appears no further order of this Court is in fact needed (as the Notices were authorized by prior order), save an order denying the Movant's Motions to Quash. To the extent there are additional technical matters regarding the manner of discovery to be resolved or clarified, or to the extent the Movants defy the Notices by failing to appear for their depositions, further orders of this Court to enforce the Discovery Agreement would be lawful and appropriate. 13

14 again on October 17, 2011, in the District Attorney's public statements affirming his own intent to cooperate and urging Movants to do the same. Moreover, because discovery in a criminal case concerns the due process rights of the accused, no provision of art.39 permits a nonparty witness to even challenge the depositions ordered, especially where - as here - the State and the defendant agree that good cause to conduct the depositions exists. E. Both Movants Were Provided With Adequate Time to Comply with the Subpoenas Mr. Davis asserts he has not been given a sufficient amount of time to comply with the request for production of documents because -- as a non-party to the litigation -- "under Rule [he] is entitled to 30 days notice prior to production of documents." (See Mr. Davis's Plea to the Jurisdiction, Motion to Quash and for Protective Order, p. 9). Mr. Davis's reliance on Rule is misplaced, because the rule only applies to parties to the litigation. Tex. R. Civ. P ("the responding party must serve a written response on the requesting party within 30 days after service of the request") (emphasis added). Mr. Anderson asserts (at p.3) that pursuant to Rule 205.2, he is entitled as a non-party to 10 days' notice for his response to the subpoena duces tecum. Mr. Anderson cites the correct rule of civil procedure, assuming civil rules apply to non-party witness subpoenas duces tecum in a criminal case. (Indeed, both the Movants' presume that the Civil Rules apply to this particular aspect of the discovery to be conducted, but they have not provided any authority to support that assertion.) However, Mr. Anderson's Rule argument is without merit because he was served with the subpoena and notice of oral deposition and subpoena duces tecurn on October 15, 2011, 11 days prior to the day of his commanded appearance on October 26, (Id.). Tex. R. Civ. P Thus, Mr. Anderson was given more than the 10 days' notice required by Rule 205.2, and his motion for protection should, therefore, be denied. 14

15 F. Mr. Davis's Request for Sanctions Against the Innocence Project Mr. Davis (but not Mr. Anderson) has additionally requested that monetary sanctions be issued against Mr. Morton's counsel from the New York-based Innocence Project, Inc. It is not entirely clear from Mr. Davis's motion on what basis he seeks to have the sanctions entered, other than that, in his words, his noticed deposition will be "a waste of time" and is being sought by counsel despite what he claims (incorrectly) to be this Court's lack of jurisdiction to order such discovery. These are legal and procedural defenses that might (if true) justify issuance of a protective order barring the deposition, but surely do not rise to the level of sanctionable conduct - particularly when Mr. Davis himself, elsewhere in this same motion, says that these attorneys "have done a wonderful and great job in freeing Mr. Morton" (J3). Nor does Mr. Davis explain why he is only seeking to sanction the attorneys from the Innocence Project and not their private pro bono co-counsel from the Houston law firm of Raley & Bowick LLP, who has jointly represented Mr. Morton and made numerous court appearances on his behalf from the outset of this litigation, and whose office actually issued the Notices in question. We trust that the remainder of Mr. Davis's allegations as to what he contends are meritless legal arguments and actions taken by counsel for Mr. Morton in this case are fully answered by the record of the case itself, and need no point-by-point response here. 4 To the To take just one example, Mr. Davis argues that "Mr. Morton and his lawyers were well aware of the story his son may have told his grandmother about seeing the killer" (J4), and asserts that this negates the Brady allegation regarding the state's non-disclosure of the highly detailed Kirkpatrick Transcript. Mr. Davis apparently is unaware that the undersigned responded to this exact same allegation at the hearing on Sept. 26, 2011, acknowledging that Mr. Morton and his trial lawyer were aware that his son may have seen a strange man in the home on the day of the murder, but disputing that they ever knew about or were provided with the corroborated, detailed eyewitness account of the murder in progress that his maternal grandmother gave to Sgt. Wood, who then (we now know) promptly provided it to the District Attorney's Office pretrial. 15

16 extent the Court wishes us to respond more fully to those claims, however, we reserve and request the opportunity to do so at a later date and hearing. III. REQUEST TO WITHDRAW MOTIONS TO QUASH We recognize that upon service of the Notices, both Movants had only three days in which to file their Motions to Quash or risk waiving the right to challenge them. That window of time may not have provided them sufficient opportunity to review the entire record or consider the arguments and authorities set forth here, particularly since they were not parties to the sealed Agreement entered by this Court on October 3, Now that they have had the opportunity to do so, however, Mr. Morton respectfully requests that both Movants withdraw their Motions and participate in the agreed-upon discovery process in order to make a truthful and complete record of the circumstances that led to Mr. Morton's conviction. As officers of the Court and as current and former public servants, such cooperation is the least both men can offer to Mr. Morton and to the citizens of this State, in whose name this innocent man was convicted and imprisoned. IV. CONCLUSION For the foregoing reasons, Applicant respectfully requests that the Court DENY Movant Ken Anderson's Motion to Quash Deposition and Motion for Protective Order and DENY Movant Mike Davis's Plea to Jurisdiction, Motion to Quash, and for Protective Order, and The non-cumulative nature of the suppressed Brady materials on this issue, and the legal significance of the State's nondisclosure of these documents, were also set forth at length in the Memorandum of Law accompanying the writ in Claims Two through Four. It appears that Mr. Davis had not reviewed these portions of the record before making his request for sanctions. Indeed, he may not even have fully reviewed those portions of the record he himself cites. For example, he incorporates by reference and attaches the entirety of the State's Motion to Designate Issues filed Sept. 26, 2011, even though in that document, the State alleged that there was no evidence that the bloodstained bandana in this case was deposited by Christine Morton's murderer and may have been contaminated at the scene - a claim that the State has long since abandoned, and which presumably Mr. Davis himself (who elsewhere in his Motion acknowledged Mr. Morton's factual innocence based on the DNA evidence) has as well. 16

17 VACATE the automatic stay that attaches when, as here, nonparty witnesses have filed such motions to quash within the required three-day time frame. The undersigned further request that this Court enter any additional orders that may be necessary to enforce the terms of the Notices and otherwise complete the exercise of its jurisdiction. Respectfully submitted, '4.). John Wesley Raley Raley & Bowick LLP 1800 Augusta Drive, Suite 300 Houston, Texas (713) (713) (fax) Nina Morrison Barry Scheck Innocence Project, Inc. 40 Worth St., Suite 701 New York, NY (212) (212) (fax) Gerald Goldstein Cynthia Hujar Orr Goldstein, Goldstein & Hilley 310 S. St. Mary's St., 29th Floor San Antonio, Texas (fax) ATTORNEYS FOR MICHAEL MORTON 17

18 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Response has been transmitted by fax and/or to R. Mark Dietz, counsel for Movant Anderson; Shawn W. Dick, counsel for Movant Davis; and Kristen Jernigan, Assistant District Attorney, counsel for the State, on this date, October 21, John W. Raley oil IN

19 Case No K26 Writ No. AP-76,663 THE STATE OF TEXAS kv MICHAEL W. MORTON IN THE 26" JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS ORDER On this the day of October, 2011, came to be considered Movant Ken Anderson's Motion to Quash Deposition and Motion for Protective Order and Movant Mike Davis's Plea to Jurisdiction, Motion to Quash, and for Protective Order. The Court, after considering both motions and the Applicant's Response, has determined that the Motions should be DENIED and any stays of the Notices of Deposition and Subpoenas for October 25 and 26, 2011, that may previously have attached by reason of the filing of the Motions are now VACATED. IT IS SO ORDERED. SIGNED this day of,2011. HONORABLE SID HARLE, JUDGE PRESIDING 19