V Brady and Exculpat ory Evidence Stacey M . Soule John R. Messinger State Prosecuting Attorney Assistant State Prosecuting Attorney @ OS P ATX www.spa.t exas.gov
Morton Brady Act Rules of Professional Conduct
1. Enforcement 2. Why 3. Who 4. When 5. How: Invoked & S atisfied 6. What
When can these rules be enforced? Motion for Trial Appeal Habeas New Trial Brady Brady Brady Mort on Mort on Mort on Brady Disciplinary Rule Disciplinary Rule Disciplinary Rule if act ual if act ual if act ual prej udice prej udice prej udice
Why
Why: Under Brady “ Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of j ustice suffers when any accused is treated unfairly.” Brady v. M.D. , 373 U.S. 83 (1963)
Why: Under Morton Act “ t he exchange of relevant informat ion bet ween prosecut ors and t he defense prior t o t rial— is bot h necessary for a fair and j ust criminal j ust ice syst em, and also required as part of a defendant 's const it ut ional right t o a full defense.” Bill Analysis, S .B. 1161, Criminal Just ice Commit t ee, July 26, 2013
Why: Rule of Professional Conduct Rule 3.09: “ A prosecutor has the responsibility to see that j ustice is done, and not simply be an advocate.”
Who
Who: Under Brady Prosecutor • Other Lawyers • Other Employees • Law Enforcement • CPS • CAC • S ee Ex part e Miles , 359 S .W.3d 647 (Tex. Crim. App. 2012)
Who: Under Morton Act • Article 39.14(a): “ that are in the possession, custody, or control of the State or any person under contract with the State.” • Article 39.14(b): state shall disclose expert witnesses. • Article 39.14(h): “ Notwithstanding any other provision of this article, the state shall disclose to the defendant . . . ” • Article 39.14(j ): “ If at any time before, during, or after trial the state discovers any additional . . . the state shall promptly disclose”
Who: Under Morton Act T EX . C ODE C RIM . P ROC . art. 39.14(b): the defense, upon a timely request (30 days), shall disclose to the State expert witnesses within 20 days.
Who: Under the Rules of Professional Conduct • Preamble: “ A Lawyer’s Responsibilities” • Rule 3.09: “ Special Responsibilities of a Prosecutor” • Rule 5.01: Responsibilities of Supervisory Lawyer • Rule 5.02: Responsibilities of Supervised Lawyer • Rule 5.03: Responsibilities Regarding Nonlawyer Assistants • Rule 8.03: “ Reporting Professional Misconduct”
Hillman v. Nueces Count y & DA, 17-0588 (granted June 1, 2018)) Does sovereign immunity bar a former assistant DA from suing a county and DA for wrongful termination based on the assistant’s refusal to violate the Morton Act?
Jail Calls
1. Does Brady impose a dut y on a DA t o review inmat e j ail calls t o det ermine whet her t hey cont ain exculpat ory or impeachment evidence when t he DA has not ot herwise exercised it s abilit y t o access wit hout a warrant ? 2. Under Mort on, are j ail-inmat e call recordings in t he “ possession, cust ody, or cont rol of t he St at e or a person under cont ract ” if t he DA does not access t hem? 3. Under Mort on, does t he abilit y of t he DA t o access t he j ail calls wit hout a warrant equat e t o “ possession, cust ody, or cont rol” by t he St at e or “ a person under cont ract wit h t he St at e?”
• State has no duty to listen to the recordings to determine if there is Brady material. Prosecutor is obligated to At t orney General Opinion determine if others have discovered any. No. KP-0041 (Oct . 2015) • Civil: “ possession, custody or control” means “ physical access” or “ right to possession that is equal or greater” than the party in actual possession. • Will depend on the contract; but unfettered access would equate to “ possession, custody, or control.”
When
When: Under Brady • Perpetual: affirmative duty to disclose. U.S. v. Bagley , 473 U.S. 667 (1985). • Non-specific in Texas; likely timeliness requires that it not prej udice the defendant’s rights.
St andard of Review for Tardy Disclosure Under Brady Valdez v. S t at e , AP-77,042 (Tex. Crim. App. 2018) (unpublished) When evidence is disclosed during t rial, court s ask whet her • t he defendant was prej udiced by t he t ardy disclosure. To prove prej udice, a defendant must show a reasonable • probabilit y t hat , if t he evidence had been disclosed t o t he defense earlier, t he result of t he proceeding would have been different . Failure t o obj ect and request a cont inuance waives a • complaint t hat t he St at e has violat ed Brady and suggest s t hat t he t ardy disclosure was not prej udicial.
When: Under Morton Act • Art icle 39.14(a): “ as soon as pract icable aft er receiving a t imely request ” • Art icle 39.14(b): on request wit hin 30 days, 20 days t o disclose expert wit ness. • Art icle 39.14(k): “ if at any t ime before, during, or aft er t rial t he st at e discovers any addit ional document , it em, or informat ion required under Subsect ion (h), t he st at e shall prompt ly disclose” • Not before t he filing of charging inst rument . In re Lewis , Nos. WR- 83,367 (Tex. Crim. App. 2015) (Alcala, J., concurring). But see In re Carrillo, WR-83,345 (Tex. Crim. App. 2015) (Alcala, J., concurring) (complaint enough t o invoke 39.14).
When: Under the Rules of Professional Conduct • Rule 3.02: no unreasonable costs or delays. • Rule 3.03(b): when false material evidence is discovered, duty to correct or withdraw the evidence or take other remedial measures. • Rule 3.04(a): no unlawful obstruction of evidence access; no destruction or concealment. • Rule 3.04(b): not falsifying or counseling or assisting others to do so.
When: Under the Rules of Professional Conduct • Rule 3.09(d): prosecutor must “ make timely disclosure.” • Does not apply post-conviction. Comm’ n Lawyer Discipline v. Hanna , 513 S.W.3d 175 (Tex. App.―Houston [14th] 2016). • Rule 4.01(a): no false statements of material fact or law to third party. • Rule 4.01(b): disclose a material fact to a third party when needed to avoid participation in fraudulent act.
How Invoked & S atisfied
Invocation
How Invoked: Under Brady • No request is needed. U.S. v. Bagley , 473 U.S . 667 (1985). • But that continuing duty does not extend to post-conviction scientific testing of evidence in the State’s possession. Dist . At t y’s Off ice for t he Third Judicial Dist . v. Osborne , 129 S . Ct. 2308 (2009).
How Invoked: Under Morton Act • Art icle 39.14(a): “ aft er receiving a t imely request ” • Art icle 39.14(h): affirmat ive dut y; no need t o invoke. • Art icle 39.14(h-1): affirmat ive dut y for j ail-house wit nesses. • Art icle 39.14(k): “ If at any t ime before, during, or aft er t rial t he st at e discovers any addit ional . . . t he st at e shall prompt ly disclose . . . .”
How Invoked: Under Morton Act A motion for discovery directed to the trial court that has never been ruled upon does not invoke 39.14(a). Maj ors v. S t at e , No. 10-17-00041-CR (Tex. App.―Waco July 25, 2018)
How Invoked: Under the Rules of Professional Conduct • Rule 3.02: no unreasonable costs or delays. • Rule 3.04(a): no unlawful obstruction of evidence access; no destruction or concealment. • Rule 3.09: a prosecutor shall “ make t imely disclosure.”
Satisfaction
How S atisfied: Under Brady • Does not include t he unsupervised right t o search t hrough t he S t at e’s file. P A v. Rit chie, 480 U.S . 39 (1987). • Not required t o deliver it s ent ire file t o t he defense. U.S . Agurs, 427 U.S . 97 (1976). • Does not have t o make a complet e and det ailed account ing t o t he defense of all police invest igat ory work on a case. Moore v. Illinois , 408 U.S . 786 (1972).
How S atisfied: Under Morton Act • Art icle 39.14(a): “ st at e shall produce and permit t he inspect ion and t he elect ronic duplicat ion, copying, and phot ographing, by or on behalf of t he defendant ” • Art icle 39.14(b): disclose in hard copy or elect ronic form t he name and address of t he expert wit ness. • Art icle 39.14(c): disclose port ion wit hheld or redact ed. • Art icle 39.14(h-1): disclose j ail-house wit ness criminal hist ory, reduced charge, deal wit h prosecut ion, ot her criminal cases person act ed as a j ail-house wit ness.
How S atisfied: Under Morton Act • In re Dist rict At t orney’s Office of t he 25t h Judicial Dist rict , 358 S .W.3d 244 (Tex. Crim. App. 2011): upheld order of t rial court requiring t he S t at e t o copy a DVD for t he defendant . • Ehrke v. S t at e , 459 S .W.3d 606 (Tex. Crim. App. 2015): “ inspect ion” includes t he right t o have drugs t est ed by defense chemist . • In re S t at e of Texas ex. rel. S kurka , 512 S .W.3d 444 (Tex. App.―Corpus Christi -Edinburg 2016): t rial court can require t he S t at e t o designat e which j ail calls it int ends t o use at t rial.
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