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Michael Morton, Art. 39.14, and Brady v. Maryland: An Affirmative Duty To Disclose As Soon As Practicable

Dec 07 2024
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Last month, we posted a piece about a landmark decision, Heath v. State, in which the Texas Court of Criminal Appeals held that a prosecutor has an affirmative duty to determine if law enforcement has evidence in its possession and if it does, secure that evidence over to the defense “as soon as practicable” within the meaning of Article 39.14(a) of the Texas Code of Criminal Procedure.

Not only is the State required to produce evidence under Article 39.14, but it remains compelled to produce Brady material under a long line of precedent from the United States Supreme Court and federal and state appeals courts interpreting Brady. There are also special rules under the State Bar’s Rules of Professional Conduct that govern prosecutors performing their duties.

WHAT IS BRADY MATERIAL?

The U.S. Supreme Court in 1963 handed down the landmark ruling in Brady v. Maryland which held, in a nutshell, that the prosecution must disclose “evidence favorable to an accused” that is “material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

In 1985, the Supreme Court in Bagley v. United States held that the prosecution is under a continuing duty to disclose “material” evidence—defining material evidence as evidence so important that had it been disclosed to the defense, there is a “reasonable probability” that the outcome of the trial would have been different. The Bagley court adopted the reasonable probability standard it had established the year before in Washington v. Strickland: “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

In 1995, the Supreme Court handed down Kyles v. Whitley which held, among other things, that the prosecution cannot plead ignorance for not disclosing exculpatory evidence, that the prosecution must determine what evidence its experts and law enforcement relied upon and disclose what’s exculpatory of the defense. Kyles was a precursor to Heath.

THE IMPORTANCE OF DISCLOSURE OF BRADY MATERIAL

The Brady Court answered this question with this observation: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”

The prosecution’s job is to seek justice, not produce guilty verdicts through the deliberate concealment or the knowing withholding of evidence either exculpatory to guilt or material to punishment following a finding of guilt. Inherent in the Sixth and Fourteenth Amendments is the right of any individual charged with a crime to a fair trial and the benefits of due process of law. To fulfill these rights, a criminal defendant must have access to all the favorable evidence in the possession of the prosecution.

THE REQUIREMENTS OF ARTICLE 39.14

Article 39.14 of the Texas Code of Criminal Procedure is the Texas “discovery statute.” This article was drastically overhauled with the Michael Morton Act in 2013. The article now requires:

  • (a) Upon timely request by the defense, the prosecution shall, as soon as practicable, “produce and permit inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, 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 … 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.”
  • (b) The prosecution shall disclose expert witnesses.
  • (h) The prosecution shall disclose to the defendant “any exculpatory, impeachment, or mitigating document, 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.”
  • (h)(1) The prosecution has an affirmative duty to disclose all jailhouse witnesses, their criminal histories, or any reduced charges and/or deals given them by the prosecution.
  • (j) “If at any time before, during, or after trial the prosecution discovers [any additional material evidence], the state shall promptly disclose [that evidence.”

DUTIES OF PROSECUTOR UNDER RULES OF PROFESSIONAL CONDUCT

The Texas Disciplinary Rules of Professional Conduct not only encourage but also demand that prosecutors conduct themselves honestly and openly before any Texas tribunal. Those rules require compliance with the State’s discovery statute and case law jurisprudence dealing with discovery rights.

Rule 3.09, Special Responsibilities of a Prosecutor, demand:

“The prosecutor in a criminal case shall:

“(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;

“(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

“(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights;

“(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

“(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

“(f) When a prosecutor knows of new and credible information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, the prosecutor shall, unless a court authorizes delay,

(1) if the conviction was obtained in the prosecutor’s jurisdiction:

(i) promptly disclose that information to:

(A) the defendant;

(B) the defendant’s counsel, or if there is none, the indigent defense appointing authority in the jurisdiction, if one exists;

(C) the tribunal in which the defendant’s conviction was obtained; and

(D) a statewide entity that examines and litigates claims of actual innocence.

(ii) if the defendant is not represented by counsel, or if unable to determine whether the defendant is represented by counsel, move the court in which the defendant was convicted to determine whether the defendant is indigent and thus entitled to the appointment of counsel.

(iii) cooperate with the defendant’s counsel by providing all new information known to the prosecutor as required by the relevant law governing criminal discovery.

(2) if the conviction was obtained in another jurisdiction, promptly disclose that information to the appropriate prosecutor in the jurisdiction where the conviction was obtained.

“(g) A prosecutor who concludes in good faith that information is not subject to disclosure under paragraph

“(f) does not violate this rule even if the prosecutor’s conclusion is subsequently determined to be erroneous.

“(h) In paragraph (f), unless the context indicates otherwise, “jurisdiction” means the legal authority to represent the government in criminal matters before the tribunal in which the defendant was convicted.”

TEXAS LAW GOVERNING PROSECUTOR’S DUTIES TO DISCLOSE

Article 2.01 of the Texas Code of Criminal Procedure mandates that a prosecutor’s duty is “not to convict, but to see that justice is done.”

This means prosecuting a criminal defendant on behalf of the State within the framework of due process of law. This duty begins with fully disclosing evidence as required under 39.14 and Brady and its progeny—evidence that is, or could be, exculpatory, mitigating, and impeaching.

Exculpatory evidence tends to establish a defendant’s innocence of the offense charged or to justify or possibly excuse the defendant’s fault in that offense.

Mitigating evidence is information about the offense or circumstances of the defendant that tends toward leniency in sentencing.

Impeachment evidence tends to refute, disparage, contradict, or deny the State’s evidence or tends to establish a motive or bias of the State’s witness to present either false or inaccurate testimony.

CONCLUSION

Full and complete discovery not only ensures that the criminal trial will be fair but will maintain public confidence in the entire criminal justice process.   While the Michael Morton Act has expanded discovery obligations above and beyond Brady, it is vital that defense attorneys understand the interplay of these important tools along with the special duty of prosecutors under the Rules of Professional Responsiblity to educate prosecutors about their obligations and the threat to their livelihood if they fail to seek justice rather that simply convict.

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