BRADY: PRACTICAL CONSIDERATIONS
Presented by:
HON. BARBARA P. HERVEY
Judge, Texas Court of Criminal Appeals
Written by:
HON. BARBARA P. HERVEY
and
CARSON R. GUY
Research Attorney
201 West 14th Street, Room 106
Austin, Texas 78701
State Bar of Texas
40TH ANNUAL
ADVANCED CRIMINAL LAW COURSE
July 21-24, 2014
Houston
CHAPTER 20
CURRICULUM VITAE OF JUDGE BARBARA P. HERVEY
Experience
COURT OF CRIMINAL APPEALS, Austin, Texas, Nov. 2000 – Present
Judge
Chair of the Grants Committee; Chair of the Texas Criminal Justice Integrity Unit; member of the Rules Committee
NAT’L FORENSIC SCIENCE COMM’N, Washington, D.C., Jan. 2014 – Present
Appointed by the United States Attorney General to assess the present and future resource needs of the forensic
science community, make recommendations for maximizing forensic technologies and techniques to solve crimes
and protect the public, and others. See 42 U.S.C. § 14136c(b)(1)–(9). Also serves as co-chair of the Subcommittee
Training on Science and Law.
ST. MARY’S UNIVERSITY SCHOOL OF LAW, SAN ANTONIO, TEXAS 2004 – 2013
Professor of Texas Criminal Procedure
Bexar County District Attorney’s Office, San Antonio, Texas 1984 – Nov. 2000
Appellate Section
Publications, speeches, seminars, and lectures
Over 250 speeches, seminars, and lectures • speaker at National Academy of Sciences Committee on Eyewitness
Identification, White House Subcommittee on Forensic Science, American Bar Association, Texas Association of
Crime Lab Directors • creator/producer Brady: A Simple Approach (for Police Officers)
Organizations, memberships, and awards
State Bar of Texas • American Legal Institute, Advisor on panel to rewrite the Model Penal Code: Sexual Assault and
Related Offenses • National Forensic Science Commission • American Bar Association • Timothy Cole Advisory
Panel • Ad Hoc Committee to Rewrite the Texas Code of Criminal Procedure • Distinguished Alumna, St. Mary’s
University School of Law • Rosewood Gavel Award for Outstanding Judicial Service • Life Fellow at the Texas Bar
Foundation
Education
St. Mary’s University School of Law, J.D., 1979
University of North Carolina Greensboro, Greensboro, South Carolina, B.A., 1975
Brady: Practical Considerations
Chapter 20
TABLE OF CONTENTS
INTRODUCTION ............................................................................................................................................. 1 II. THE MICHAEL MORTON ACT ..................................................................................................................... 1 A. Why the Legislature Passed the Morton Act .............................................................................................. 1 B. Open file discovery .................................................................................................................................... 1 C. Criminal discovery before the Morton Act ................................................................................................ 1 D. Aftermath of the Morton Act’s implementation......................................................................................... 2 E. Further debate............................................................................................................................................. 2 III. BRADY TRAINING FOR PROSECUTORS ..................................................................................................... 2 A. Applicability of the statute ......................................................................................................................... 2 B. Rule 12 of the Rules of Judicial Education ................................................................................................ 3 IV. BRADY TRAINING FOR OTHER STAKEHOLDERS.................................................................................... 3 A. Brady and law enforcement........................................................................................................................ 3 B. Brady and forensic science ......................................................................................................................... 3 V. CAN BRADY RISE TO INNOCENCE? ............................................................................................................ 4 A. Two different actual-innocence claims ...................................................................................................... 4 B. The difference between the two innocence claims applied ........................................................................ 5 VI. INEFFECTIVE ASSISTANCE OF COUNSEL ................................................................................................ 5 VII. THE IMPORTANCE OF NOTIFICATION ...................................................................................................... 5 A. Persons wrongfully imprisoned .................................................................................................................. 6 B. Compromising obligations and loss of faith in “the System”; ethical obligations of attorneys and judges6 1. Upholding Article 2.01 of the Texas Code of Criminal Procedure—a failed example ...................... 6 C. Costs to the State ........................................................................................................................................ 7 1. Nationwide ......................................................................................................................................... 7 2. In Texas .............................................................................................................................................. 7 D. Burden on judicial economy ...................................................................................................................... 8 VIII. NOTIFYING PARTIES AFTER AN IRREGULARITY HAS BEEN DISCOVERED: A WORK IN
PROGRESS ....................................................................................................................................................... 8 A. Types of notification .................................................................................................................................. 9 1. Actual notice....................................................................................................................................... 9 2. Constructive notice and redundancy .................................................................................................. 9 B. Suggestions for constructive notification ................................................................................................. 10 C. Other notification projects ........................................................................................................................ 10 1. Virginia’s DNA notification project ................................................................................................. 10 2. Hair analysis project in North Carolina ............................................................................................ 10 D. Notification pretrial, during trial, and post-trial ....................................................................................... 11 1. Pretrial ethical considerations .......................................................................................................... 11 2. Further ethical (and legal) considerations for prosecutors ............................................................... 11 3. Other considerations ......................................................................................................................... 11 E. Post-representation notification................................................................................................................ 12 1. People currently incarcerated ........................................................................................................... 12 2. People released on supervision......................................................................................................... 12 3. People that have discharged their sentence(s) .................................................................................. 12 IX. CONCLUSION ................................................................................................................................................ 12
I. APPENDICES .............................................................................................................................................................. 15
i
Brady: Practical Considerations
BRADY:
Chapter 20
the extent of the evidence against him can make an
informed decision to plead. It also allows for a full
defense, lessening the likelihood of an overturned
verdict on appeal. The state saves thousands of dollars
in appeals, incarceration, and potential compensation
for wrongful convictions.” Id.
As to a defendant’s constitutional right to present
a complete defense, the Legislature intended the
Morton Act to implement a uniform statewide
criminal-discovery policy to achieve this purpose.
This uniformity ensures that no matter where a
defendant is charged with a crime in this State, he is
guaranteed the protections afforded to him by the
Constitution, including a fair trial and an opportunity to
meaningfully prepare a defense.
The Legislature also expressed its concerns with
“[r]ecent high profile cases” in which it believed that
“the likelihood that evidence relevant to the
defendant’s innocence would have been revealed is
increased” under the new Act. Connected to this
concern is the Legislature’s fear of wrongful
convictions. Although wrongful convictions are costly
to everyone for many reasons, the Legislature noted
that
PRACTICAL
CONSIDERATIONS
I.
INTRODUCTION
This paper will cover four specific topics related
to practical considerations and consequences that can
result from Brady: (1) the Michael Morton Act; (2)
required Brady training for prosecutors; (3) the
relationship between actual innocence, Brady, and
ineffective assistance of counsel, and (4) notification
after discovery of an irregularity in a criminal
defendant’s case. This, however, is not an exhaustive
list.
II. THE MICHAEL MORTON ACT
An important issue regarding the practical
implications and consequences of Brady is the new
Michael Morton Act (“the Morton Act” or “the Act”).
The Act was passed by both houses of the Legislature
and signed by the Governor on May 16, 2013. See Act
of May 16, 2013, 83d Leg., R.S., ch. 49, §§ 1–2, art.
39.14, 2013 Tex. Gen. Laws 106–08 (codified at TEX.
CODE CRIM. PROC. art. 39.14). The Morton Act
“applies to the prosecution of an offense committed on
or after the effective date of [the] Act,” which is
January 1, 2014. Thus, the Morton Act is applicable to
any crimes alleged to have been committed on or after
January 1, 2014.
Every defendant should have access to all the
evidence relevant to his guilt or innocence,
with adequate time to examine it. The [S]tate
also saves billions of dollars in ensuring that
the defendants sent to prison are actually
guilty. Finally, public safety is threatened if
an innocent person is in prison while the
guilty party goes free.
A. Why the Legislature Passed the Morton Act
The enrolled Bill Analysis for the Morton Act
reveals at least two of the concerns of the legislators
that voted in favor of the Act. First, it recognizes
Brady but also that, Brady is “vague and open to
interpretation, resulting in different levels of discovery
across different counties in Texas.” Senate Comm. on
Crim. Just., Bill Analysis, Tex. S.B. 1611, 83rd Leg.,
R.S. (2013). Second, the Legislature intended for the
Act to “save attorney resources as well as tax payer
dollars by limiting discovery disputes and increasing
efficient resolution of cases, all while reducing the
likelihood of costly appeals and wrongful convictions.”
Id. The Senate Research Center Bill Analysis also
defends the “open file” discovery mandated by the Act.
Id.
C. Criminal discovery before the Morton Act
Before the Morton Act implemented an “open file
discovery” system, discovery in criminal cases was
handled quite differently under the letter of the law,
although many prosecutors’ offices already had “open
file” policies.
Although prosecutors (still) were
required to comply with Brady, The pre-2005 Texas
statute on discovery required a defendant to show
“good cause” before inspection and copying of certain
evidence was allowed, and even then, the trial court
had the statutory authority to deny the motion
notwithstanding that good cause had been shown. See
TEX. CODE CRIM. PROC. art. 39.14 (2004). In 2005, the
Legislature amended the Texas criminal discovery
statute again, this time to eliminate the discretion of a
trial court to allow a defendant to inspect and copy
evidence if he could show good cause. Thus, a “may”
became a “shall.” See TEX. CODE CRIM. PROC. art.
39.14 (2005). Under the Morton Act, the requirement
for good cause was eliminated inspection and copying
B.
Open file discovery
The Bill Analysis provided three reasons in
support of the Morton Act system as a method to
resolve the described concerns: (1) it increases
“efficiency in the criminal justice system”; (2) it will
“ensure[] that each defendant is guaranteed his
constitutional right to a defense, regardless of where he
is charged”; and, most importantly, (3) it helps prevent
wrongful convictions. Id.
With respect to efficiency of the system, the
Analysis claims that “[a] defendant who understands
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Brady: Practical Considerations
Chapter 20
counties have indicating that the Morton Act has
created a “documentation strain.” The article also
quoted Administrative Chief Andrea Moseley of the
Dallas County District Attorney’s Office: “I think [the
Morton Act] could become financially burdensome on
smaller agencies.” “I would hate to see anybody
shortcut investigations to defray costs.” Id.
In addition, the Austin American Statesman
published an article on June 3, 2014 discussing how
implementation of the Morton Act will affect Travis
County prosecutors. See Andra Lim, Michael Morton
Act workload surprises Travis County prosecutors,
Austin American-Statesman (June 3, 2014).
Specifically, the article notes that Travis County
prosecutors believe that the Morton Act has “created
an ‘onerous’ workload” despite the fact that Travis
County had an “open file” policy before the Morton
Act was signed into law. Id.
was permitted “as soon as practicable after receiving a
timely request from the defendant.” See TEX. CODE
CRIM. PROC. art. 39.14 (2013).
D. Aftermath
of
the
Morton
Act’s
implementation
The enactment of the Morton Act may cause little
change in jurisdictions that were already following
standards for discovery defined by the Act, but many
jurisdictions will have to implement a variety of
changes to accommodate the new law. Furthermore,
the group of stakeholders that will be impacted by this
legislation is not limited to just prosecutors and
defense attorneys. This legislation also potentially
impacts any participant in the criminal process from
investigation to conviction and beyond, including
crime laboratories, medical examiners and coroners,
fire departments, police departments, and others in
terms of evidence that must be produced by them.
Although the Bill Analysis is framed in terms of
defendants and prosecutors, it would be mistake to
infer that those are the only parties that could be
dramatically affected by the Act. In fact, prosecutors
have “a duty to learn of any favorable evidence know
to the others acting on the government’s behalf in the
case . . . .” See Kyles v. Whitley, 514 U.S. 419, 437
(1995).
In that vein, many actors in the criminal justice
system have been giving feedback about the
implementation of the Morton Act on issues ranging
from disagreements on issues of legal interpretation
and the costs to implement the law to current and
future expenditures related to the law. This is to be
expected and is a reflection of the sweeping change in
the law of criminal discovery in Texas. Examples of
some groups that have been included in the discussion
regarding the effects of the Morton Act include police
departments, prosecutors, defense attorneys, crime
laboratories, fire departments, medical examiners and
coroner offices. However, the number of organizations
affected directly or indirectly will surely be much
larger than just those stakeholders.
III. BRADY TRAINING FOR PROSECUTORS
The Michael Morton Act was not the only way
the Legislature has responded to Brady in a practical
way. The Legislature passed, and the Governor
signed into law—in the same legislative session—
Section 41.111 of the Texas Government Code.
This new statutory provision places a mandate on
prosecuting attorneys to attend training regarding
the duty to disclose exculpatory and mitigating
evidence. See Act of May 27, 2013, 83d Leg., R.S.,
ch. 1280, § 1, sec. 41.111, 2013 Tex. Gen. Laws 3238–
39 (codified at TEX. GOV’T CODE § 41.111).
A. Applicability of the statute
The statute tasks the Court of Criminal Appeals
with the responsibility to promulgate a rule or rules
that follow guidelines laid out in the statute in
consultation with a statewide association of
prosecutors. See TEX. GOV’T CODE § 41.111(b); see
also Court of Criminal Appeals, Rules of Judicial
Education,
at
8–9,
available
at
http://www.cca.courts.state.tx.us/jcptfund/pdf/RulesOf
JudEdu112513.pdf.
The statute applies to every prosecutor
representing the State in felony or misdemeanor cases
other than Class C misdemeanors. See id. § 41.111(a).
In addition, each covered attorney must receive the
specified training within 180 days of assuming duties
as a prosecuting attorney. See id. § 41.111(c)(1). The
training shall consist of at least one hour of instruction
on the issues and additional training as determined by
the Court of Criminal Appeals. See id. § 41.111(c)(1)–
(2). Finally, the statute explains that the Brady training
must be “specific with respect to a prosecuting
attorney’s duties . . . in a criminal case, and must be
consistent with case law and the Texas Disciplinary
E.
Further debate
The Texas Tribune published an article discussing
the Morton Act and stated, “Prosecutors say the state’s
new Michael Morton Act, a measure designed to
prevent wrongful convictions by forcing district
attorneys to be more transparent in criminal cases, is
driving up evidence costs.” Terri Langford, Costs and
Questions as TX Implements New Discovery Law,
Texas Tribune (May 29, 2014), available at
https://www.texastribune.org/2014/05/29/michaelmorton-act-driving-evidence-costs-das/. In addition,
the Texas Tribune quoted Rob Kepple, Executive
Director of TDCAA, as commenting that several
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Brady: Practical Considerations
Chapter 20
chief of police in Addison, Texas and current
Executive Director of the Texas Police Chiefs
Association, reviews a number of hypothetical
scenarios, taken from real cases, followed by a
discussion of how a police officer should handle the
described scenarios in light of Brady, its progeny, and
Texas caselaw.
One scenario discussed in the video was given as
follows:
Rules of Professional Conduct.” See id. § 41.111(a);
see also TEX. DISCIPLINARY R. PROF’L CONDUCT 3.09.
B.
Rule 12 of the Rules of Judicial Education
The Court of Criminal Appeals amended Rule 12
of the Rules of Judicial Education, which further
“fleshed out” the Government Code provision. For
example, the rule defines prosecuting attorney, sets a
timeframe by which “prosecuting attorneys” must
complete the initial required training, and how often a
prosecutor must receive Brady training. See Court of
Criminal Appeals, Rules of Judicial Education, at 9,
available
at
http://www.cca.courts.state.tx.us/jcptfund/pdf/RulesOf
JudEdu112513.pdf. But, perhaps most importantly, the
Court of Criminal Appeals monitors the training and
materials provided by trainers to ensure the quality of
the Brady training remains high. Id.
The sole surviving witness to a gang shootout claims at the scene, where there still may
be gang members present, that he did not
recognize the shooters. Later, alone with law
enforcement agents, he quickly provides
descriptions and street-names of the gunman.
The defendant is arrested and charged with
murder. There is no physical evidence
linking him to the scene. Is the witness’s
crime-scene statement Brady evidence?
IV. BRADY
TRAINING
FOR
OTHER
STAKEHOLDERS
In June 2008, the Court of Criminal Appeals
established the Texas Criminal Justice Integrity Unit
(“the Unit”) due to concerns over the growing number
of wrongful convictions throughout Texas. The goal in
creating the Unit was to review the strengths and
weaknesses in the criminal justice system in the hope
that meaningful reform through education, training,
and legislative proposals would increase the fairness
and accuracy of our system.
Since its establishment, the Unit has contributed
much toward eliminating the causes of wrongful
convictions. Two initiatives include a video focusing
on Brady issues for police officers and a forthcoming
video focusing on Brady issues for laboratory
technicians.
See TCJIU, BRADY: A SIMPLE
APPROACH,
available
at
http://www.cca.courts.state.tx.us/tcjiu/video/Brady.wm
v.
Yes, this is Brady evidence. This is the situation that
the Supreme Court was presented with in 2012 in
Smith v. Cain, 132 S. Ct. 627 (2012). In that case, the
defendant was convicted of killing five people during
an armed robbery. At trial, the single witness
identified the defendant as the first gunman to come
through the door. No other witnesses and no physical
evidence implicated the defendant in the crime. Postconviction, the defendant obtained a detective’s notes,
which contained statements by the sole witness that
conflicted with his testimony identifying the defendant
as the perpetrator. The notes stated that the witness
could not supply a description of the perpetrators or
identify anyone because he could not see the faces.
The Supreme Court determined that the witness’s
undisclosed statements alone sufficed to undermine the
confidence in the conviction because the witness’s
testimony was the only evidence linking the inmate to
the crime and the witness’s undisclosed statements
directly contradicted the witness’s testimony.
Please note that, because this video predates the
passage of the Morton Act, the Court of Criminal
Appeals, in conjunction with the State Bar of Texas,
will amend the video to conform with the new
discovery requirements.
A. Brady and law enforcement
The Brady video for police officers was filmed in
collaboration with the State Bar of Texas and was
distributed to police departments throughout the State.
It is also posted on the Court and State Bar of Texas
websites (the latter site requires a registration of a free
account). See Texas Criminal Justice Integrity Unit,
Brady: A Simple Approach, available at
http://www.cca.courts.state.tx.us/tcjiu/video/Brady.wm
v. The video features 3 Texas police chiefs. In the first
segment, Chief Corley of the Brownwood Police
Department describes one of his cases that resulted in a
wrongful conviction. In the second segment, Chief Art
Acevedo of the City of Austin Police Department
discusses the law of Brady and how it can apply to
police officers. Finally, Chief McLaughlin, former
B.
Brady and forensic science
Recently, much more attention has been given to
issues involving forensic science and its application in
our courtrooms.
In May 2005, the Legislature created the Texas
Forensic Science Commission (“TFSC”). The TFSC
investigates allegations of negligence or misconduct
that would substantially affect the integrity of the
results of a forensic analysis conducted by an
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Brady: Practical Considerations
Chapter 20
the Unit’s Brady video for police officers and will also
address the Morton Act. Thus, this video will, through
other forensic scientists, educate forensic scientists
about Brady issues, including how to identify Brady
material and how Brady is applicable to their field. In
addition, there will be the same practical component of
scenarios at the end of the video for laboratory
technicians to help apply the principles of Brady and
its progeny to their field.
accredited laboratory, facility or entity. The Legislature
also required TFSC to develop and implement a
reporting
system
through
which
accredited
laboratories, facilities, or entities may report
professional negligence or misconduct.
Over the past two years, the TFSC and TCJIU
have worked together to develop training and
educational programs for attorneys, judges, scientists,
and law-enforcement entities in Texas. Both
organizations are committed to working collaboratively
to encourage stakeholder participation and provide
cost-efficient training and educational programs.
An effort is being made to ensure effective
statewide notification is given after a major forensic
issue is discovered with the potential to impact
thousands of cases. The goal is to ensure parties
receive effective notice regardless of whether they live
in a large urban county or a smaller rural county with
less financial and human resources available.
One example of how a laboratory irregularity was
handled by the system is evidenced by the recent cases
titled Ex parte Coty. 418 S.W.3d 597 (Tex. Crim. App.
2014). In this case, Coty was charged, and convicted
of, possession of a controlled substance. After his
conviction, it was discovered that a DPS laboratory
technician that had worked on his case had mishandled
evidence and falsified laboratory testing results in other
cases. Based on this new evidence and the Court’s
original opinion dealing with this issue—Ex parte
Hobbs, Coty claimed that he deserved a new trial
because his due-process rights were violated. See Ex
parte Hobbs, 383 S.W.3d 780 (Tex. Crim. App. 2013).
The Court of Criminal Appeals initially granted
Coty relief under its opinion in Hobbs but later granted
rehearing on its own motion to reconsider the matter.
On rehearing, the Court set forth a new test for
determining whether a person is entitled to relief
because of a laboratory technician’s misconduct in
another case or cases. After explaining the new test, the
Court remanded the case back to the habeas court to
apply the new law.
After remand, the State and Coty agreed that the
evidence handled by the laboratory technician should
be presumed false because of its inherent unreliability
in light of the technician’s misconduct. However, the
habeas court also found that the State rebutted that
presumption by showing that there was no evidence of
misconduct in Coty’s case. In addition, the habeas
court concluded that Coty failed to prove that the
testing performed by the technician and the results of
that testing, were material to his conviction because of
other overwhelming evidence of Coty’s guilt. See Ex
parte Coty, No. WR-79,318-02, 2014 WL 2478389
(Tex. Crim. App. June 4, 2014).
A Brady video for laboratory technicians is
forthcoming, but it will follow the pattern pioneered in
V. CAN BRADY RISE TO INNOCENCE?
One important consideration is the interplay
between Brady, allegations of ineffective assistance of
counsel, and actual innocence. Brady and actual
innocence are based in the Due Process Clause of the
Fourteenth Amendment. See U.S. CONST. amend. XIV.
Ineffective Assistance of Counsel finds its roots in the
Sixth Amendment. U.S. CONST. amend. VI.
A. Two different actual-innocence claims
There are two types of actual innocence claims:
(1) Schlup claims and (2) Herrera claims. See Schlup
v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506
U.S. 390 (1993). A Schlup claim is a procedural,
actual-innocence claim in which the applicant’s claim
“‘does not by itself provide a basis for relief,’ but is
intertwined with constitutional error that renders a
person’s conviction constitutionally invalid.” Ex parte
Brown, 205 S.W.3d 538, 544–45 (Tex. Crim. App.
2006); see Schlup, 513 U.S. at 314. The burden of
proof on an applicant in a Schlup claim is to prove that
“by a preponderance of the evidence, but for a
violation of the United States Constitution no rational
juror could have found the applicant guilty beyond a
reasonable doubt.” See, e.g., TEX. CODE CRIM. PROC.
art. 11.07, § 4(a)(2) (this statutory standard codified the
burden of proof on an applicant raising a Schlup
claim). An applicant who prevails under Schlup may
be entitled to a new trial, at least, but not usually a
vacation of his conviction as a Herrera actualinnocence claim. Two examples of allegations that can
accompany a Schlup claim are a Brady violation and an
ineffective-assistance-of-counsel allegation. See U.S.
CONST. amends. VI, XIV.
In contrast, a Herrera claim is a substantive claim
in which the applicant asserts a “bare claim of
innocence based solely on newly discovered evidence.”
Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim.
App. 2002). A Herrera-claim requires an applicant to
show by clear and convincing evidence that no
reasonable juror would have convicted him in light of
the newly discovered evidence. Ex parte Elizondo,
947 S.W.2d 202, 210 (Tex. Crim. App. 1996).
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Brady: Practical Considerations
Chapter 20
statement, the prosecutor’s office noted that it had
already turned over the video to the defense, but the
defense disputed that claim. Id. The State asserted
that it had not watched that video in question because
the timestamp led prosecutors and police to believe
that the video was taken at a different time than the
incident in question and, as a result, was not relevant.
Setting aside the dispute over whether the video
was actually turned over, assume for a moment that the
video was turned over. A potential Brady hiccup or
violation was avoided when the prosecution turned
over the evidence supporting the self-defense theory,
although the State may not have been aware that it did.
But if the evidence had been turned over and would
have amounted to Brady evidence, then it seems that a
defense attorney risks being found ineffective, if the
attorney failed to sufficiently investigate the case to
discover the exculpatory evidence. See Wiggins v.
Smith, 539 U.S. 510, 523 (2003); Ex parte LaHood,
401 S.W.3d 45, 50–51 (Tex. Crim. App. 2013) (citing
ABA
STANDARD
FOR
CRIMINAL
JUSTICE:
PROSECUTION AND DEFENSE FUNCTION 4–4.1 (3d
ed.1993)).
B.
The difference between the two innocence
claims applied
In Ex parte Miles, 359 S.W.3d 647 (Tex. Crim.
App. 2012), Richard Ray Miles was convicted of
murder and attempted murder. His convictions were
affirmed on appeal by the Dallas Court of Appeals.
After his convictions were affirmed, he filed an
application for a writ of habeas corpus alleging Brady
violations that entitled him to a new trial. The Court of
Criminal Appeals denied relief. However, Miles filed a
subsequent application for relief in which he raised
Brady claims in addition to a new claim of actual
innocence. By this time, Miles had spent 15 years in
confinement.
Based on Miles’ subsequent writ application, the
Court of Criminal Appeals determined that Miles’
Brady claims were meritorious and that “[a]t a
minimum, [Miles] [was] entitled to a new trial. See id.
at 670; see Schlup, 513 U.S. at 314. This is Schlup in
action because the Court held that Miles was able to
prove that a constitutional violation rendered his
conviction constitutionally invalid. See Schlup, 513
U.S. at 314. However, the Court continued its analysis.
Miles, 359 S.W.3d at 670 (“But the evidence in this
case requires us to take a step further . . . .”). The Court
then reviewed Miles’ actual-innocence claim and held
that the withheld Brady evidence combined with a
change in testimony regarding gun-shot residue and
that of an eyewitness proved by clear and convincing
evidence that Miles was actually innocent of the crime.
This case illustrates the difference between Schlup
relief and Herrera relief well. Unlike relief under
Schlup (e.g., the Brady violation that entitled Miles to a
new trial), when the Court held that Miles had proven
his Herrera claim, he was entitled to relief from his
conviction, not just a new trial.
VII. THE IMPORTANCE OF NOTIFICATION
What is notification? “The act of giving official
notice
or
information.”
WEBSTER’S
NEW
INTERNATIONAL DICTIONARY 1544 (3d ed. 2002).
When should notice be given? To whom shall it be
given and in what manner should it be delivered? Do
all of the stakeholders understand their obligation to
provide notice? All of the answers to these questions
are practical considerations within the criminal-justice
system in light of Brady.
Since Brady v. Maryland was handed down by
the United States Supreme Court, prosecutors, defense
attorneys, and courts have worked diligently to define
the framework laid out by the United States Supreme
Court and its progeny. And over the years, “Brady
law” has been developed further since the Court’s
original opinion was handed down. See, e.g., Smith v.
Cain, 132 S. Ct. 627 (2012) (holding that a witnesses’
statements that were not turned over to the defense—
the only evidence linking the defendant to the
commission of the crime—constituted Brady violations
because the statements were material); Connick v.
Thompson, 131 S. Ct. 1350 (2011) (holding that
prior Brady violations by attorneys in the Orleans
Parish District Attorney’s Office were insufficient to
put district attorney on notice of need for Brady
training and the district attorney's office was not liable
on failure-to-train theory) Ex parte Miles, 359 S.W.3d
at 647 (Brady violation led to actual innocence relief);
Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011)
(holding that Brady applies when the State failed to
disclose the audio portion of a videotape containing
VI. INEFFECTIVE
ASSISTANCE
OF
COUNSEL
Although not a Brady issue itself, defense
attorneys should be aware that ineffective-assistanceof-counsel claims are somewhat comparable to Brady
claims for prosecutors. Take the following example.
In a recent murder case in Hays County, Texas,
prosecutors notified the defense that they had
discovered Brady evidence. The evidence was a video
of the altercation that led to the death of the victim, but
it supported the defendant’s self-defense theory. See
Esther Robards-Forbes, Exonerating Video Surfaces
Midway Through Hays County Murder Trial, Austin
American Statesman (May 23, 2014), available at
http://www.mystatesman.com/news/news/local/exoner
ating-video-surfaces-midway-through-hayscou/nf6gN/. The jury returned a not guilty verdict, and
some jurors noted that the Brady video contributed to
their votes during deliberations. Id. However, in a
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Brady: Practical Considerations
Chapter 20
appeals, postconviction proceedings, compensation to
exonerees, etc.); and (5) the burden on judicial
economy to hear these appeals and postconviction
motions.
exculpatory statements that the appellant made to
police and supported his defense); Ex parte
Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002)
(holding that Brady was violated when the prosecution
failed to turn over to the defense a diary kept by a
police officer while protecting the prosecution’s only
eyewitness).
In addition, the same parties—courts, prosecutors,
and defense attorneys—have worked together to ensure
that the spirit of the Court’s holding in Brady has been,
and continues to be, honored. Although not every
person agrees on every issue, working together, people
have been able to come together and reach a consensus
on many important Brady-related issues. Further, the
Texas Legislature has entered the debate by imposing
Brady training on prosecutors and passing the Michael
Morton Act to implement an “open file discovery”
system. See IV(1)–(2) (Why the Legislature passed the
Michael Morton Act and implemented an “open file
discovery” system).
Although the importance of cases like Brady are
almost universally recognized in American law, the
holdings of the United States Supreme Court in Brady
and subsequent cases, as well as holdings of the Court
of Criminal Appeals, have raised issues that are still
being resolved daily. See, e.g., McGraw v. Roden, 743
F.3d 1 (1st Cir. 2014); United States v. Walker, No. 132145, 2014 WL 1193373 (7th Cir. Mar. 25, 2014);
United States v. Horton, Nos. 12-3627, 12-3628, 2014
WL 1140196 (8th Cir. Mar. 24, 2014); United States v.
Reese, No. 13-2037, 2014 WL 1042781 (10th Cir. Mar.
19, 2014); Michigan v. Chenault, Nos. 146523,
146524, 2014 WL 1356798 (Mich. Apr. 4, 2014);
Massachusetts v. Scott, 5 N.E.3d 530 (Mass. 2014);
West Virginia, 755 S.E.2d 1 (W. Va. 2014);
Pennsylvania v. Williams, No. 627 CAP, 2014 WL
627133 (Pa. Feb. 19, 2014).
Two of these important issues are (1) attempting
to prevent the untimely discovery of Brady evidence
(i.e., all evidence is turned over when it is supposed to
be) and (2) notifying necessary people when an
irregularity such as Brady material comes to light,
regardless of how the material is discovered.
The first goal is aspirational. The criminal justice
system was conceived of, and is operated by, humans
and, thus, cannot be perfect. However, the discovery
of Brady evidence, especially untimely discovery, has
many profound and negative implications: (1) persons
being
wrongfully
imprisoned;
(2)
possible
compromising of ethical and legal obligations by
attorneys, judges, and other stakeholders; (3) belief by
the public that the criminal justice system lacks
integrity due to dishonesty on the part of stakeholders
and lack of accountability of people that engage in
malfeasance; (4) the State being forced to retry a
criminal defendant and incur associated costs (e.g.,
A. Persons wrongfully imprisoned
Preventing wrongful imprisonment should be a
top priority because innocent people should not be in
prison and, if they are, then guilty people are left to
walk the streets and possibly commit other crimes. One
example for illustrative purposes is the National
Registry of Exonerations (“the Registry”), which is a
joint project operated by the University of Michigan
School of Law and the Northwestern School of Law’s
Center on Wrongful Convictions. The Registry claims
to have verified 1,351 exonerations. See The National
Registry
of
Exonerations,
available
at
http://www.law.umich.edu/special/exoneration/Pages/g
lossary.aspx. While the accuracy of this number may
be disputed by other sources, there is no doubt that the
actual number is disturbing. The Registry defines
exonerees as, “A person who was convicted of a crime
and later officially declared innocent of that crime, or
relieved of all legal consequences of the conviction
because evidence of innocence that was not presented
at trial required reconsideration of the case.” Id.
B.
Compromising obligations and loss of faith
in “the System”; ethical obligations of
attorneys and judges
Another important consideration is the ethical
obligations of attorneys and judges. Article 2.01 of the
Texas Code of Criminal Procedure states in part,
It shall be the primary duty of all prosecuting
attorneys . . . not to convict, but to see that
justice is done. They shall not suppress facts
or secrete witnesses capable of establishing
the innocence of the accused.
1.
Upholding Article 2.01 of the Texas Code of
Criminal Procedure—a failed example
A former Judge, and former Williamson County
District Attorney, Ken Anderson was found in
contempt of court for violating a court order to turn
over exculpatory evidence in the earlier murder case
that he prosecuted. As a result of the case against him,
Anderson agreed to serve 10 days in the county jail and
relinquish his law license. Anderson’s failure to turn
over the evidence in question resulted in an innocent
man—Michael
Morton—being
wrongfully
incarcerated for 25 years.
Chuck Lindell, Ken
Anderson to Serve 10 Days in Jail, AUSTIN AMERICAN
STATESMAN,
available
at
http://www.statesman.com/news/news/ken-andersonto-serve-10-days-in-jail/nbmsH/.
6
Brady: Practical Considerations
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released on parole or required to register as a sex
offender, $25,000 for each year spent on parole or as a
registered sex offender; annuity payments; and tuition
for up to 120 credit hours. See TEX. CIV. PRAC. &
REM. CODE Chp. 103 (Compensation to Persons
Wrongfully Imprisoned).
A person is entitled to compensation under the
statute if,
Although this is a high-profile example of the
failure of one stakeholder to uphold his duty to seek
justice, it must be noted that the vast majority of
stakeholders in the criminal justice system work
diligently to comply with the law and to achieve
justice. However, even the most well-intentioned
person or organization can make a mistake if that
person does not familiarize themselves with the
requirements of Brady, ineffective-assistance-ofcounsel issues, actual-innocence issues, and the
interplay between these issues.
Additionally, the Texas Code of Judicial Conduct
governs the judicial and personal conduct of those
holding office to ensure that these principles of fair and
impartial justice are carried out. See generally TEX.
CODE JUD. CONDUCT, reprinted in Tex. Gov’t Code
Ann., tit. 2, subtit. G, app. B.
(1) the person has served in whole or in part a
sentence in prison under the laws of this state; and
(2) the person:
(A) has received a full pardon on the basis of
innocence for the crime for which the person
was sentenced;
(B) has been granted relief in accordance with a
writ of habeas corpus that is based on a court
finding or determination that the person is
actually innocent of the crime for which the
person was sentenced; or
(C) has been granted relief in accordance with a
writ of habeas corpus and:
C. Costs to the State
1. Nationwide
According to the Innocence Project, the District of
Columbia and 29 states have statutes for compensating
wrongfully-imprisoned people: Alabama, Alaska,
Arizona, Arkansas, California, Colorado, Connecticut,
Delaware, District of Columbia, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky,
Louisiana,
Maine,
Maryland,
Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York,
North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, Wisconsin,
Wyoming. See State Compensation Laws, Innocence
Project,
available
at
http://www.innocenceproject.org/news/LawView1.php
(website includes the statutes for each state and the
District of Columbia).
The statutes define
compensation in a variety of ways (e.g., money for
each day of wrongful imprisonment, tuition for
education, lost wages, and attorney’s fees, among
others). However, some of the laws include statutes of
limitations and other procedural barriers. See, e.g.,
OHIO REV. CODE ANN. §§ 2305.02, 2743.48 (barring
compensation if a defendant pled guilty or files for
compensation under the statute within two years of
exoneration).
(i)
the state district court in which the
charge against the person was pending
has entered an order dismissing the
charge; and
(ii) the district court’s dismissal order is
based on a motion to dismiss in which
the state’s attorney states that no
credible evidence exists that inculpates
the defendant and, either in the motion
or in an affidavit, the state’s attorney
states that the state’s attorney believes
that the defendant is actually innocent of
the crime for which the person was
sentenced.
Id. § 103.001.
Although the chief concerns are, of course, that
innocent people are not convicted of crimes they have
not committed, and that people that are wrongfully
convicted are compensated, the practical costs to the
State, and the taxpayers, cannot be ignored either. For
example, one apparently unintended consequence is the
broadness of the statutory provision defining who is
entitled to compensation. Because of the broadness of
the provision, people that pled guilty to the crime for
which they were charged but were later found not to be
guilty of the charged offense may feel entitled to apply
for compensation even though they may actually be
guilty of an attempted crime or lesser-included offense.
Id. This may seem like it does not come up often, but
imagine this scenario:
2.
In Texas
In Texas, a person is entitled to compensation of
$80,000 for each year wrongfully imprisoned;
compensation for child support payments owed by the
person wrongfully imprisoned, including interest
accrued on that amount during the term of
imprisonment but were not paid; if the person was
7
Brady: Practical Considerations
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Thompson’s execution date was set after his
state, postconviction application was denied, but the
Eastern District Court of Louisiana stayed that
execution date to review Thompson’s federal,
postconviction application. On February 24, 1997, the
federal district court also denied Thompson’s
application for postconviction relief, which was also
subsequently affirmed by the Fifth Circuit. See
Thompson, 1197 U.S. Dist. LEXIS 2219, aff’d, 161
F.3d 802 (5th Cir. 1998).
On June 29, 1999, the convicting court granted
Thompson a new trial on the attempted-armed-robbery
case in light of numerous Brady violations and other
due process violations that “conclusively proved that
[Thompson] was not the perpetrator of that offense.”
Louisiana v. Thompson, 825 So.2d 552, 552 (La. App.
4 Cir. 2002). The State of Louisiana did not retry
Thompson on the attempted-armed-robbery charge.
Thompson then filed a new application for
postconviction relief with respect to his conviction for
murder in the trial court. On May 26, 2001, the
convicting court vacated Thompson’s death sentence
and imposed a sentence of life imprisonment, but
otherwise denied relief. Thompson sought review of
the trial court’s denial of his postconviction
application, and the Fourth Circuit Louisiana Court of
Appeals reversed the trial court and granted Thompson
a new trial. Id. at 557–58. After Thompson’s new
trial, he was found not guilty on May 8, 2003.
In addition to the criminal litigation, in 2008,
Thompson won a $14 million civil-suit judgment
against the Orleans Parish District Attorney’s Office.
That litigation was also appealed culminating in almost
10 different opinions, including one opinion by the
United States Supreme Court reversing the $14 million
civil-suit judgment. See, e.g., Thompson v. Connick,
2005 WL 3541035 (E.D. La. 2005); Thompson v.
Connick, 2006 WL 2913346 (E.D. La. Oct. 10, 2006);
Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009),
remanded by, 131 S. Ct. 1350 (2011).
But what is the cost of justice? For the
wrongfully accused none of us can possibly measure
that cost; to the victims what emotional costs must they
re-endure; and to the system in general, the costs can
be astronomical. All we can hope for is continual
improvement of the process.
A cocaine user goes to his drug dealer to buy
cocaine, which he has successfully done many times
before. This time seems no different to the user than
any other. But what the user does not know is that his
drug dealer is experiencing rough times and is now
selling his clients baking soda, although he holds it out
as cocaine. The user also does not know that this time,
his drug dealer’s house is under surveillance by police
as a known cocaine dealer (now baking soda dealer).
The drug user gets arrested by the police for
possession of a controlled substance. He knows that he
meant to buy cocaine and had no reason to think that
what he bought did not contain cocaine, but the
laboratory results have not been returned because of a
backlog. So the user (now defendant) pleads guilty
pursuant to a plea-bargain agreement after spending 3
months in jail. But when the laboratory results come
back, they reveal he actually purchased baking soda.
Does the compensation statute apply in such a
scenario? Should the compensation statute apply in
such a scenario?
D. Burden on judicial economy
The John Thompson litigation from Louisiana
serves as an example of burdensome costs to the
system resulting from wrongful convictions. And
please note that the court cases cited do not represent
all of the litigation associated with this case.
Thompson was found guilty of attempted armed
robbery and, subsequently, murder. See Louisiana v.
Thompson, 495 So.2d 328 (La. App. 4 Cir. 1986)
(affirming Thompson’s conviction for attempted armed
robbery). For the murder, and in light of the attempted
armed robbery conviction, Thompson was sentenced to
death. See Louisiana v. Thompson, 516 So.2d 349 (La.
1987) (affirming Thompson’s conviction of firstdegree murder and sentence of death). He petitioned
for a writ of certiorari to the United States Supreme
Court to review his death sentence, which the Court
denied. Thompson v. Louisiana, 488 U.S. 871 (1988).
Thompson then filed a petition for a stay of
execution in early 1989, which the convicting court
denied in November of 1992. See Thompson v. Cane,
1997 U.S. Dist. LEXIS 2219. Thompson sought
review of the trial court’s denial of his application for
postconviction relief. In a plurality opinion, the
Louisiana Supreme Court remand Thompson’s capital
case to determine whether a witness was induced to
testify in violation of Thompson’s right to due process.
See id.; State ex rel. Thompson v. Whitley, 642 So.2d
1303 (La. 1994) (plurality op.) (per curiam). On
remand, the trial court denied Thompson’s
postconviction application for relief on September 19,
1995, and the Louisiana Supreme Court affirmed the
trial court’s denial on April 25, 1996.
VIII. NOTIFYING PARTIES AFTER AN
IRREGULARITY
HAS
BEEN
DISCOVERED: A WORK IN PROGRESS
Once again, we stress the importance of
telegraphing information regarding problems in the
criminal justice system to achieve maximum
awareness. The Court of Criminal Appeals, the
Unit, the TFSC, and other interested stakeholders
are in the process of developing a streamlined and
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Brady: Practical Considerations
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To whom the notice is directed will largely
control the content of the notice because different
entities and people will require different types of
information. For example, a prosecutor’s office will
want to be notified when a conviction stemming from a
prosecution from their office is under review. This
would allow them to examine the case and reach their
own decision on how to move forward with the
information because records may need to be retrieved
and additional research about the irregularity may be
necessary.
A notice to a defense attorney should contain
identifying case data so the attorney can find any
information or records they still have regarding the
case or cases. Further, defendants do not necessarily
have a sufficient grasp of legal concepts. Thus,
notification to them must be a simple and
straightforward, and should not only inform them of a
possible irregularity, but give them contact information
regarding persons who can help them.
consistent system of notification. Possible
participants also include: TDCAA, TCDLA, The
Texas Center for the Judiciary, law enforcement, the
Texas Crime Laboratory Directors Association, and
parole and probation officers, among others.
A. Types of notification
Notification to a defendant and other interested
parties can be separated in to two categories: (1) actual
notification (“actual notice”) and (2) notification
reasonably calculated to reach the party under all
circumstances (“constructive notice”).
1.
Actual notice
Personal delivery of written notice to every
defendant by someone who can answer questions
concerning an irregularity would be ideal, but nigh to
impossible. Actual notice can also be achieved by
persons who may merely “hand off” a simple, direct
letter explaining the irregularity. The latter method,
while not as useful as the former, is still effective
because it can make a defendant aware of an
irregularity and give contact information for the
defendant to obtain assistance in his case. See Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950) (“Personal service of written notice within
the jurisdiction is the classic form of notice always
adequate . . . .”); BLACK’S LAW DICTIONARY 1227
(10th ed. 2014) (defining actual notice as “[n]otice
given directly to, or received personally by, a [person
or entity]”).
2.
Constructive notice and redundancy
However, when it is not possible to notify a
defendant through personal service, alternative means
must be used to attempt to reach the defendant. This
constructive notice standard should be reasonably
calculated to reach the defendant. Implementing the
standard, however, understates the enormity of the
task. See Mullane, 339 U.S. at 314–15. In Mullane,
the United States Supreme Court stated that “[a]n
elementary and fundamental requirement of due
process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity
to present their objections.” Id. (emphasis added).
Obstacles to notification include death, discharge of
their sentence, or an inability to locate them for a
variety of reasons. In other words, this class of persons
(i.e., that require constructive notice) create unique
problems with respect to notification.
The primary problem with constructive notice is
that it assumes that the defendant cannot be personally
notified. This assumption may be warranted, but once
delivery of actual notice has been abandoned in favor
of constructive notice, the “notifier” must rely on
redundancy to ensure the proper defendant receives the
required written notice. The “redundancy” approach
must be reasonable in its scope, while increasing the
chances that the defendant will receive the notice.
This point is reinforced by the joint white paper
on defendant notification that was published by the
Texas Forensic Science Commission (“TFSC”) and the
Texas Criminal Justice Integrity Unit (TCJIU”) on
November 27, 2013.
See TFSC AND TCJIU,
DEFENDANT NOTIFICATION AFTER MAJOR FORENSIC
a.
Other considerations
The two most obvious additional considerations to
be taken into account include (1) who delivers the
notice and (2) the content of the notice. Those
delivering the notification to a defendant about an
irregularity will impact how the defendant perceives
the irregularity (i.e., whether the irregularity is worth
investigating). For example, a prosecutor may not be
the ideal person to deliver a notification directly to a
defendant because a defendant may not choose to
associate with the prosecutor’s office for a variety of
reasons, including fear, the passage of time since
conviction, and others. An example of a different
approach is the DNA project in Virginia. In the case of
Virginia’s DNA testing and notification project, pro
bono attorneys are charged with delivering actual
notice to affected defendants.
Another major question that remains to be solved
is how to fashion notifications, including (1)
notifications from agencies or organizations to the
“prosecution team” and (2) notifications from the
“prosecution team” or another agency or organization
to a defendant and/or his counsel.
9
Brady: Practical Considerations
Chapter 20
could be notifying the Associated Press, Reuters, or
other major media outlets with the hope other news
agencies would carry the information and that various
Internet services would follow suit. Much like vehicle
recalls, these various news mediums can help to
effectively get essential notices out to people that are
unable to be otherwise located for a variety of reasons.
Regardless of the obstacles, federal and state
criminal justice systems must rise to the occasion
because a defendant’s “need to know” is essential to
due process.
NONCONFORMANCE, at 3–5, 7 (Nov. 27, 2013)
[hereinafter called DEFENDANT NOTIFICATION AFTER
FORENSIC NONCONFORMANCE].
Redundancy is sometimes provided for by statute.
See, e.g., Mennonite Bd. of Mo. v. Adams, 462 U.S.
791 (1983). In this case, the United States Supreme
Court explained the notice requirements under Indiana
state law for the sale of real property when property
taxes had been delinquent at least 15 months. Id. at
792–93. “Prior to the sale, the county auditor must post
notice in the county courthouse and publish notice
once each week for three consecutive weeks. The
owner of the property is entitled to notice by certified
mail to his last known address.” Id. at 793 (footnote
omitted) (internal citations omitted) (citing IND.
CODE §§ 6-1.1-24-3 (1985)); see TEX. TAX.
CODE § 34.01(c), (e)–(f) (requiring that notice for the
sale of real property with delinquent property taxes be
in accordance with Rule 21a of the Texas Rules of
Civil Procedure); TEX. R. CIV. P. 21a. In brief, Rule
21a requires that delivery of service be “by delivering a
copy to the party to be served, or the party’s duly
authorized agent or attorney of record” electronically
or “in person, mail, by commercial delivery service, by
fax, by email, or by such other manner as the court in
its discretion may direct.” TEX. R. CIV. P. 21a.
However, these examples are dated and fail to
recognize modern methods of communication.
C. Other notification projects
1. Virginia’s DNA notification project
One example of a notification project that has
already begun with the aspirational goal of delivering
actual notice to defendants when sufficient DNA
evidence remains from an old case and that evidence is
capable of being tested is Virginia. That project began
in December 2005, when former Governor Mark
Werner “ordered a full review and DNA testing of any
biological evidence remaining in [the Virginia
Department of Forensic Science’s] archived files from
1973-1988 . . . .”
VIRGINIA
STATE
CRIME
COMMISSION, 2010 ANNUAL REPORT, at 3, available
at
http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD13
72011/$file/RD137.pdf.
Once Virginia officials
identified case files with biological evidence still
suitable for DNA testing, “the relevant parties are
informed that such evidence exists and is available for
retesting.” Id. And one component of Virginia’s
notification project is the delivery of face-to-face
notifications to defendants in applicable cases.
The Virginia Crime Commission (“the
Commission”) began its project in December 2005 and
the project is still underway. However, in the
Commission’s 2010 Annual Report, it “anticipated that
[the] project [would] continue, at a minimum, through
June of 2012.” Id. As of the writing of this paper,
April 22, 2014, the project continues.
B.
Suggestions for constructive notification
The need for notification could include contacting
a single defendant, or a class of defendants, or other
parties such as prosecutors, courts, clerks, current or
last known defense attorneys, etc. Also, in the case of
a larger class of defendants, massive communication
may be necessary.
The focus of constructive
notification is to reach the correct parties so that they
can decide if they wish to pursue possible avenues for
relief in the face of an irregularity. A cautionary note,
however, would be to avoid mass confusion or a flood
of filings by people seeking habeas relief when the
questioned issues are not relevant to their case or cases
(e.g., posting on prison walls).
Opponents have argued that mass notices will
open the “flood gates” of litigation, encouraging every
inmate and convicted person to file an application for a
writ of habeas corpus to seek relief.
First, many
inmates and convicted persons cannot afford to hire a
postconviction attorney to file an application, if that
person is entitled to relief at all. Second, this assumes
that all inmates will be affected or be notified in the
first place. Third, a person’s right to due process of
law should trump judicial economy.
One suggested way to notify a class of defendants
regarding a problem affecting more than one case (e.g.,
major forensic nonconformance discovered years later)
2.
Hair analysis project in North Carolina
In 2013, the FBI announced that it would be
reviewing cases in which microscopic-hair-comparison
evidence was relied on at a defendant’s federal trial.
The FBI, in agreement with the DOJ, NACDL, and
Innocence Project Network initially reviewed
thousands of criminal cases. See Norman L. Reimer,
The Hair Microscopy Review Project: An Historic
Breakthrough For Law Enforcement and A Daunting
Challenge For the Defense Bar, THE CHAMPION, July
2013,
available
at
https://www.nacdl.org/champion.aspx?id=29488; see
also Press Release, Innocence Project, Innocence
Project and NACDL Announce Historic Partnership
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Brady: Practical Considerations
Chapter 20
TEX. DISCIPLINARY R. PROF’L CONDUCT 4.03(a). This
no-contact rule remains true until counsel no longer
represents the defendant. In re News Am. Publ’g, Inc.,
974 S.W.2d at 103.
with the FBI and Department of Justice on
Microscopic Hair Analysis Cases (July 18, 2013),
available
at
http://www.innocenceproject.org/Content/Innocence_P
roject_and_NACDL_Announce_Historic_Partnership_
with_the_FBI_and_Department_of_Justice_on_Micros
copic_Hair_Analysis_Cases.php. The review will
examine types of error, review processes and protocols,
and solutions to flawed examinations.
Based on this announcement, the North Carolina
Center on Actual Innocence (“the Center”) undertook
took a statewide project to review state trials to
determine if faulty hair-comparison science was used
to convict defendants in the North Carolina criminaljustice system. Crime laboratories in North Carolina
turned over records for every case in which that
microscopic-hair analysis was performed, which was
approximately 3,000 cases. Once the Center identified
affected cases, it began its notification process by
sending questionnaires to the affected people to
determine if those people would like to pursue possible
avenues of relief based on the irregularity in their case.
This project is also still in progress.
2.
Further ethical (and legal) considerations for
prosecutors
The comment to Rule 4.03 of the Texas
Disciplinary Rules of Professional Conduct (“the
Disciplinary Rules”) refers readers to Rule 3.09
governing prosecutors in criminal cases in Texas. See
TEX. DISCIPLINARY R. PROF’L CONDUCT 3.09. This
rule charges prosecutors in criminal cases with special
duties and, in particular to:
(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
D. Notification pretrial, during trial, and posttrial
A Brady notification can be required: (1) pretrial,
(2) during trial, or (3) post-trial. See TEX. CODE CRIM.
PROC. art. 39.14(h).
Id.
3.
Other considerations
What of other stakeholders and their respective
responsibilities? Scientists, police, and other
participants in the criminal justice system have a need
to receive and disseminate notice.
The Court of
Criminal Appeals and the Unit, as previously stated,
have recorded a video focused on Brady v. Maryland
specifically for law enforcement and is producing
another video for laboratory employees. The video is
posted online for free viewing at the Texas Criminal
Justice Integrity Unit website and on the TexasBarCLE
website. In light of the passage of the Morton Act, the
video will be updated to include training on the change
in law.
Many organizations have disclosure policies and
most consist of notifying the “prosecution team” in
some form or fashion. For example, the Texas
Department of Public Safety (“DPS”) has had a written
disclosure policy since early 2013 for when there is a
scientific irregularity in a case and notification
becomes necessary.
See DPS, LABORATORY
OPERATIONS GUIDE, QUALITY ACTION PLAN (Mar. 11,
2013), at 1–3. In addition, the suggested protocol of
the Texas Forensic Science Commission (“TFSC”) and
the TCJIU with respect to forensic nonconformances
calls for disclosure the issue to the “TFSC, DPS, and
the national accrediting body responsible for the
laboratories accreditation,” as well as the relevant law
1.
Pretrial ethical considerations
First, assuming evidence arises pretrial, does an
attorney represent the defendant? Probably so, and if
so, the defendant’s attorney should be notified about
the Brady issue, unless the prosecutor has the consent
of the defendant’s counsel to speak with the defendant.
If, on the other hand, a defendant has no
representation, then Rule 4.03 of the Texas
Disciplinary of Professional Conduct would control.
TEX. DISCIPLINARY R. PROF’L CONDUCT 4.03,
reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G
app. A (West 2005) (Tex. State Bar R. art. X, § 9)
(“Dealing with Unrepresented Person”); see In re News
Am. Publ’g, Inc., 974 S.W.2d 97, 103 (Tex. App.—San
Antonio 1998, no pet.). Rule 4.03 provides in relevant
part that
a lawyer shall not state or imply that the
lawyer is disinterested. When the lawyer
knows or reasonably should know that the
unrepresented person misunderstands the
lawyer’s role in the matter, the lawyer shall
make reasonable efforts to correct the
misunderstanding.
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Statement,
available
http://www.tdcj.state.tx.us/divisions/scfo/.
enforcement agency and prosecutors. See DEFENDANT
NOTIFICATION AFTER FORENSIC NONCONFORMANCE,
at 7.
Although these types of policies can, and have,
helped achieve compliance with the spirit of Brady,
there remains a need to address defendant notification
of an irregularity in a comprehensive, statewide
manner. See TFSC, REPORT OF THE TFSC: TEX. DPS
HOUSTON REGIONAL CRIME LABORATORY SELFDISCLOSURE, at 6–9 (April 5, 2013). In the TFSC’s
report on the crime laboratory issue involving Jonathan
Salvador, the Houston regional crime laboratory selfdisclosed to DPS that Salvador, a chemist at the
laboratory, had engaged in malfeasance by “dry
labbing.” DPS subsequently notified the Texas Rangers
and the DPS Office of the Inspector General. DPS
management later notified the TFSC, ACLD-LAB,
prosecutors with affected cases, and submitting lawenforcement agencies. Id. at 9. Defendant notification
has been on-going and writs of habeas corpus continue
to be filed and addressed by the Court of Criminal
Appeals. See, e.g., Coty, 418 S.W.3d at 597.
at
2.
People released on supervision
Similar to people that are currently incarcerated,
existing infrastructure can be used to facilitate
notification to defendants released into society under a
form of supervision, including parole or community
supervision.
Parole officers, like employees of SFCO, are
employees of TDCJ. As employees of TDCJ and
having the assigned task of supervising the defendant
in question, parole officers are well situated to contact
defendants under their supervision. Parole officers
should have regular contact with their clients and know
pertinent information such as home addresses and
phone numbers. Information held by the court and its
clerks can also be of assistance.
Probation officers, like parole officers, can use
many of the same resources to reach people that should
be notified of an irregularity.
3.
People that have discharged their sentence(s)
The most difficult class of defendants to contact
may be persons who have discharged their sentences.
Notice to this class of people will be more difficult
with the passage of time. Former defendants may have
moved to unknown parts, lost contact with family or
other people familiar with their contact information,
and their former attorneys may have lost or destroyed
any files or valid contact information, depending on the
age of the case.
In such cases, a “wider net” must be cast to reach
this segment of affected individuals. And here
redundancy is important. Court records, driver’s
license information, and media assistance may become
necessary. And in the event that an interested
defendant inquires about a “broadcasted” problem in
the system, and the possibility of it having some
impact on his case, other measures have already begun
to direct them to attorneys or private organizations,
such as innocence projects, throughout Texas that may
be able to help them. Newspaper announcements,
court house postings, current defense attorneys
involved in the case, national news media outlets
(when the irregularity affects a large number of cases),
electronic news media outlets, government agency
press postings, and the use of government resources to
identify relevant defendants can all help to locate a
defendant and ultimately achieve notification.
E.
Post-representation notification
After a defendant’s trial is over, and his appeals
and postconviction applications for relief are
exhausted, many defendants no longer have
representation because most are indigent and have no
means of hiring an attorney. Fundamental questions
are raised, however, by the need to provide notification
about an irregularity to defendants, the availability of
lawyers to assist them, and the need to direct them to
those who can help (e.g, public defenders, innocence
projects, and other organizations. The primary classes
of convicted people include: (1) people sentenced to
death, (2) people currently incarcerated; (3) people
released on supervision; and (4) people that have
discharged their sentence(s). In fact, the Court of
Criminal Appeals handles notification to defendants
regarding attorneys available to assist when claims of
innocence are received at the Court through inmate
mail by sending a letter giving inmates the attorneys
contact information.
1.
People currently incarcerated
People that are incarcerated are those with the
most immediate need for notification. Based on the
cooperative Texas spirit, the State Counsel for
Offenders (“SCFO”), which is part of the Texas
Department of Criminal Justice (“TDCJ”), has offered
to provide constructive notice, if not actual notice, to
indigent inmate defendants. The goal of SCFO is “to
help indigent offenders with legal problems by
providing assistance and attorneys who are
independent of the confinement divisions of the
TDCJ.” State Counsel for Offenders, Mission
IX. CONCLUSION
Although much work has been done since the
United States Supreme Court handed down Brady
fifty-one years ago, we continue to move forward.
Ideally, all stakeholders will always strive for the
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timely delivery of Brady evidence and perfect
notification. But we must also recognize that, while
cases like Brady and its progeny present issues of their
own, it is paramount to know the relative
responsibilities of all the “players” in the criminal
justice system. Forensic science will continue to be an
increasingly important part of criminal cases, which
will in turn increase the burden to “get it right.”
“Attributing fault to any one particular group or faction
will not accomplish the ultimate goals—increased
research and development, better reporting, and better
understanding of each player’s role in the system,
science, and the rules of evidence. These are some of
the practical considerations beyond “Brady.”
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APPENDIX A
Civil Practice and Remedies Code
Title 5. Governmental Liability
Chapter 103. Compensation to Persons Wrongfully Imprisoned
Subchapter A. Eligibility; Notice of Eligibility
§ 103.001. Claimants Entitled to Compensation and Health Benefits Coverage
(a) A person is entitled to compensation if:
(1) the person has served in whole or in part a sentence in prison under the laws of this state; and
(2) the person:
(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced;
(B) has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or
determination that the person is actually innocent of the crime for which the person was sentenced; or
(C) has been granted relief in accordance with a writ of habeas corpus and:
(i) the state district court in which the charge against the person was pending has entered an order
dismissing the charge; and
(ii) the district court's dismissal order is based on a motion to dismiss in which the state's attorney
states that no credible evidence exists that inculpates the defendant and, either in the motion or in an
affidavit, the state's attorney states that the state's attorney believes that the defendant is actually
innocent of the crime for which the person was sentenced.
(b) A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which
the person was also serving a concurrent sentence for another crime to which Subsection (a) does not apply.
(c) If a deceased person would be entitled to compensation under Subsection (a)(2) if living, including a person who
received a posthumous pardon, the person's heirs, legal representatives, and estate are entitled to lump-sum
compensation under Section 103.052.
(d) Subject to this section, a person entitled to compensation under Subsection (a) is also eligible to obtain group
health benefit plan coverage through the Texas Department of Criminal Justice as if the person were an employee of
the department. This subsection does not entitle the person's spouse or other dependent or family member to group
health benefit plan coverage. Coverage may be obtained under this subsection for a period of time equal to the total
period the claimant served for the crime for which the claimant was wrongfully imprisoned, including any period
during which the claimant was released on parole or to mandatory supervision or required to register under Chapter
62, Code of Criminal Procedure. A person who elects to obtain coverage under this subsection shall pay a monthly
contribution equal to the total amount of the monthly contributions for that coverage for an employee of the
department.
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(e) Notwithstanding Section 103.053(c), annuity payments may be reduced by an amount necessary to make the
payments required by Subsection (d), and that amount shall be transferred to an appropriate account as provided by
the comptroller by rule to fund that coverage.
§ 103.002. Notice to Wrongfully Imprisoned Person
(a) In this section:
(1) “Department” means the Texas Department of Criminal Justice.
(2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.
(3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.091, Government Code, as added
by Chapter 1389 (S.B. 1847), Acts of the 81st Legislature, Regular Session, 2009.
(b) The department shall provide to each wrongfully imprisoned person information, both orally and in writing, that
includes:
(1) guidance on how to obtain compensation under this chapter; and
(2) a list of and contact information for nonprofit advocacy groups, identified by the department, that assist
wrongfully imprisoned persons in filing claims for compensation under this chapter.
(c) The department must provide the information required under Subsection (b):
(1) at the time of the release of the wrongfully imprisoned person from a penal institution; or
(2) as soon as practicable after the department has reason to believe that the person is entitled to compensation
under Section 103.001(a).
§ 103.003. Limitation on Time to File
A person seeking compensation under this chapter must file an application with the comptroller for compensation
under Subchapter B not later than the third anniversary of the date:
(1) the person on whose imprisonment the claim is based received a pardon as provided by Section
103.001(a)(2)(A);
(2) the person's application for a writ of habeas corpus was granted as provided by Section 103.001(a)(2)(B); or
(3) an order of dismissal described by Section 103.001(a)(2)(C) was signed.
§ 103.051. Application Procedure
(a) To apply for compensation under this subchapter, the claimant must file with the comptroller's judiciary section:
(1) an application for compensation provided for that purpose by the comptroller;
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(2) a verified copy of the pardon, court order, motion to dismiss, and affidavit, as applicable, justifying the
application for compensation;
(3) a statement provided by the Texas Department of Criminal Justice and any county or municipality that
incarcerated the person on whose imprisonment the claim is based in connection with the relevant sentence
verifying the length of incarceration;
(4) if applicable, a statement from the Department of Public Safety verifying registration as a sex offender and
length of registration;
(5) if applicable, a statement from the Texas Department of Criminal Justice verifying the length of time spent
on parole; and
(6) if the claimant is applying for compensation under Section 103.052(a)(2), a certified copy of each child
support order under which child support payments became due during the time the claimant served in prison and
copies of the official child support payment records described by Section 234.009, Family Code, for that period.
(b) The comptroller shall determine:
(1) the eligibility of the claimant; and
(2) the amount of compensation owed to an eligible claimant.
(b-1) In determining the eligibility of a claimant, the comptroller shall consider only the verified copies of documents
filed under Subsection (a)(2). If the filed documents do not clearly indicate on their face that the person is entitled to
compensation under Section 103.001(a)(2), the comptroller shall deny the claim. The comptroller's duty to determine
the eligibility of a claimant under this section is purely ministerial.
(c) The comptroller must make a determination of eligibility and the amount owed as required by Subsection (b) not
later than the 45th day after the date the application is received.
(d) If the comptroller denies the claim, the comptroller must state the reason for the denial. Not later than the 30th
day after the date the denial is received, the claimant must submit an application to cure any problem identified. Not
later than the 45th day after the date an application is received under this subsection, the comptroller shall determine
the claimant's eligibility and the amount owed.
(e) If the comptroller denies a claim after the claimant submits an application under Subsection (d), the claimant may
bring an action for mandamus relief.
(f) To apply for coverage through the Texas Department of Criminal Justice under Section 103.001(d), the claimant
must file with the department:
(1) an application for coverage provided for that purpose by the department; and
(2) a statement by the comptroller that the comptroller has determined the claimant to be eligible for
compensation under this subchapter.
§ 103.052. Lump-Sum Compensation
(a) A person who meets the requirements of Section 103.001 is entitled to compensation in an amount equal to:
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(1) $80,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years;
and
(2) compensation for child support payments owed by the person on whose imprisonment the claim is based that
became due and interest on child support arrearages that accrued during the time served in prison but were not
paid.
(b) A person who, after serving a sentence in a Texas prison for which the person is entitled to compensation under
Subsection (a)(1), was released on parole or required to register as a sex offender under Chapter 62, Code of Criminal
Procedure, is entitled to compensation in an amount equal to $25,000 multiplied by the number of years served either
on parole or as a registered sex offender, expressed as a fraction to reflect partial years.
(c) The amount of compensation under Subsection (a)(2) to which a person is entitled shall be paid on the person's
behalf in a lump-sum payment to the state disbursement unit, as defined by Section 101.0302, Family Code, for
distribution to the obligee under the child support order.
§ 103.053. Annuity Compensation
(a) A person entitled to compensation under Section 103.001(a) is entitled to annuity payments, based on a present
value sum equal to the amount to which the person is entitled under Sections 103.052(a)(1) and (b).
(b) The annuity payments under this section are payable in equal monthly installments for the life of the claimant and
must be based on a five percent per annum interest rate and other actuarial factors within the discretion of the
comptroller.
(c) The annuity payments may not be accelerated, deferred, increased, or decreased. The applicant may not sell,
mortgage or otherwise encumber, or anticipate the payments, wholly or partly, by assignment or otherwise.
§ 103.054. Payment of Certain Tuition and Fees
If requested by the claimant before the seventh anniversary of the relevant date described by Section 103.003, tuition
for up to 120 credit hours, including tuition charged under Section 54.0513, Education Code, or any other law
granting an educational institution discretion to set the tuition rate, and any mandatory fees associated with
attendance at the institution, charged by a career center or public institution of higher education shall be paid on
behalf of the claimant.
§ 103.101. Fees Limited; Prerequisites to Fee Agreement
(a) A person, including an attorney, may not charge or collect a fee for preparing, filing, or curing a claimant's
application under Section 103.051 unless the fee is based on a reasonable hourly rate.
(b) An attorney may enter into a fee agreement with a claimant for services related to an application under Section
103.051 only after the attorney has disclosed in writing to the claimant the hourly rate that will be charged for the
services.
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(c) An attorney may not collect a fee for preparing, filing, or curing a claimant's application under Section 103.051
before a final determination is made by the comptroller that the claimant is eligible or ineligible for compensation
under this chapter.
§ 103.102. Submission of Fee Report
(a) Together with an application for compensation under this chapter or not later than the 14th day after the date the
application or cured application is filed, a person seeking payment for preparing, filing, or curing the application
must file a fee report with the comptroller's judiciary section.
(b) A fee report under this section must include:
(1) the total dollar amount sought for fees;
(2) the number of hours the person worked preparing, filing, or curing the application; and
(3) the name of the applicant.
(c) A fee report under this section is public information subject to Chapter 552, Government Code.
§ 103.151. Administrative Payment of Compensation
(a) The comptroller shall make the compensation due a claimant under Section 103.052 and the lump-sum payment,
if any, to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, under Subchapter
B, to the extent that funds are available and appropriated for that purpose, not later than the 30th day after the date
the comptroller grants the application. A claim for lump-sum compensation payable under Section 103.052(a) or (b)
shall survive the death of the claimant in favor of the heirs, legal representatives, and estate of the claimant.
(b) The comptroller shall begin making annuity payments to a claimant under Section 103.053(a) on the first
anniversary of the date of payment of the compensation due under Section 103.052.
(c) If appropriated funds are insufficient to pay the amount due a claimant and the amount to be paid to the state
disbursement unit, as defined by Section 101.0302, Family Code, money shall be paid under the procedure described
by Section 103.152.
§ 103.152. Payment of Compensation
(a) Not later than November 1 of each even-numbered year, the comptroller shall provide a list of claimants entitled
to payment under Subchapter B [FN1] and the amounts due for each claimant to the governor, the lieutenant
governor, and the chair of the appropriate committee in each house of the legislature so that the legislature may
appropriate the amount needed to pay the amount owed to each claimant and the amount to be paid to the state
disbursement unit, as defined by Section 101.0302, Family Code, on the claimant's behalf.
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(b) Not later than September 1 of the year in which an appropriation under this chapter has been made by the
legislature, the comptroller shall pay the required amount to each claimant and the state disbursement unit, as defined
by Section 101.0302, Family Code.
(c) Repealed by Acts 2009, 81st Leg., ch. 180, § 12(3).
§ 103.153. Employees Not Liable After Payment of Compensation
(a) In this section, “employee” and “governmental unit” have the meanings assigned by Section 101.001.
(b) A person who receives compensation under this chapter may not bring any action involving the same subject
matter, including an action involving the person's arrest, conviction, or length of confinement, against any
governmental unit or an employee of any governmental unit.
§ 103.154. Termination of Payments
(a) Except as provided by Subsection (c), compensation payments to a person under this chapter terminate if, after
the date the person becomes eligible for compensation under Section 103.001, the person is convicted of a crime
punishable as a felony. Compensation payments terminate under this subsection on the date of the subsequent
conviction.
(b) Annuity payments to a person under Section 103.151(b) terminate on the date of the person's death. Any
payments scheduled to be paid after that date are credited to the state and may not be paid to any other person,
including the person's surviving spouse, heirs, devisees, or beneficiaries under the person's will, or to the person's
estate.
(c) This section does not apply to compensation for child support payments and interest on child support arrearages
to be paid on a person's behalf under this chapter to the state disbursement unit, as defined by Section 101.0302,
Family Code.
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APPENDIX B
RULE 12. STATUTORILY MANDATED TRAINING.
a. Judicial-education entities shall provide training as required by the following statutes:
Tx. Gov’t Code
Title
Sec. 22.111, Gov’t. Code
Training for Prosecuting Attorneys
Related to Punishment Enhancement
Because of Bias or Prejudice
Sec. 22.1105, Gov’t. Code
Judicial Instruction Related to Certain
Alleged Child Offenders
Sec. 22.012, Gov’t. Code
Training Related to Diversions
Sec. 22.013, Gov’t. Code
Judicial Instruction Related to
Guardianship Issues
Sec. 22.110, Gov’t. Code
Judicial Instruction Related to
Family Violence, Sexual Assault
& Child Abuse
Sec. 41.110, Gov’t. Code
Training Related to Family Violence
Sec. 41.111, Gov’t. Code
Training Related to Prosecuting
Attorney’s Duty to Disclose Exculpatory
and Mitigating Evidence
b. Judicial Education entities shall provide training in ethics, which must include information about issues
related to race, fairness, ethnic sensitivity and cultural awareness.
c. Definitions, as related to Sec. 22.110, Govt. Code, are as follows:
(1) The term “judicial officer” in this rule refers to a district judge or a judge of a statutory county court;
(2) The term “judicial officer” in this rule refers to an associate judge appointed under Chapter 54 of this code,
or Chapter 201 of the Family Code, or to a master, referee or magistrate.
d. As related to training required by Sec. 41.111, Gov’t. Code:
(1) The term “prosecuting attorney” in this subsection means any county attorney, district attorney, criminal
district attorney, assistant county attorney, assistant district attorney, or assistant criminal district attorney who
represents the state in the prosecution of felony or misdemeanor criminal offenses other than Class C misdemeanors.
The term includes any attorney acting as a county attorney, district attorney, criminal district attorney pro tem, or any
attorney otherwise acting as a special prosecutor. The term does not include an attorney holding one of those
positions who exclusively practices civil law.
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(2) Within 180 days of assuming duties as a prosecuting attorney, a person shall complete a one-hour course of
study relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case.
(3) A person who on January 1, 2014, is serving as a prosecuting attorney must comply with the training
requirements of this section not later than January 1, 2015.
(4) Each prosecuting attorney who completes the training described in subsection d(2) or d(3) shall complete
additional training within four calendar years from the year of their initial training, and every four years thereafter.
(5) The training described in Sec. 41.111, Gov’t. Code, may be delivered in multiple formats, including live,
web-based, and audio- and/or visually-recorded.
(6) Pursuant to Ch. 56.006, Gov’t Code, the Court shall monitor the program performance of entities receiving
grant funds. Further, pursuant to Sec. 41.111, Gov’t Code, the Court is required to adopt rules to ensure the training
of prosecutors is specific with respect to a prosecuting attorney’s duties regarding the disclosure of exculpatory and
mitigating evidence in a criminal case, and must be consistent with case law and the Texas Disciplinary Rules of
Professional Conduct. A provider of training required by Sec. 41.111, Gov’t. Code:
(a)shall provide to the Court, prior to the training, course materials so the Court may approve the content of
the training;
(b) shall develop a method of certifying completion of the training required; and
(c) shall provide to the Court an annual report of all prosecuting attorneys completing the required training
by January 31st of the following year.
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APPENDIX C
Effective: January 1, 2014
Government Code (Refs & Annos)
Title 2. Judicial Branch (Refs & Annos)
Subtitle C. Prosecuting Attorneys
Chapter 41. General Provisions
Subchapter B. Staff of Prosecuting Attorney
§ 41.111. Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and
Mitigating Evidence
(a) Each attorney representing the state in the prosecution of felony and misdemeanor criminal offenses other than
Class C misdemeanors shall complete a course of study relating to the duty of a prosecuting attorney to disclose
exculpatory and mitigating evidence in a criminal case.
(b) The court of criminal appeals shall adopt rules relating to the training required by Subsection (a). In adopting the
rules, the court shall consult with a statewide association of prosecuting attorneys in the development, provision, and
documentation of the required training.
(c) The rules must:
(1) require that each attorney, within 180 days of assuming duties as an attorney representing the state described in
Subsection (a), shall receive one hour of instruction relating to the duty of a prosecuting attorney to disclose
exculpatory and mitigating evidence in a criminal matter;
(2) require additional training on a schedule or at a time as determined by the court;
(3) provide that the required training be specific with respect to a prosecuting attorney’s duties regarding the
disclosure of exculpatory and mitigating evidence in a criminal case, and must be consistent with case law and the
Texas Disciplinary Rules of Professional Conduct; and
(4) provide for a method of certifying the completion of the training described in Subdivisions (1) and (2).
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APPENDIX D
Effective: January 1, 2014
Code of Criminal Procedure (Refs & Annos)
Title 1. Code of Criminal Procedure of 1965
Trial and Its Incidents
Chapter Thirty-Nine. Depositions and Discovery (Refs & Annos)
Art. 39.14. Discovery
(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as
practicable after receiving a timely request from the defendant the state shall produce and permit the 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 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 state may provide to the defendant electronic duplicates of any documents or other information described by this
article. The rights granted to the defendant under this article do not extend to written communications between the
state and an agent, representative, or employee of the state. This article does not authorize the removal of the
documents, items, or information from the possession of the state , and any inspection shall be in the presence of a
representative of the state .
(b) On motion of a party and on notice to the other parties, the court in which an action is pending may order one or
more of the other parties to disclose to the party making the motion the name and address of each person the other
party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall
specify in the order the time and manner in which the other party must make the disclosure to the moving party, but
in specifying the time in which the other party shall make disclosure the court shall require the other party to make
the disclosure not later than the 20th day before the date the trial begins.
(c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the
state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and
may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or
information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to
determine whether withholding or redaction is justified under this article or other law.
(d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document,
item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the
document, item, or information but is not required to allow electronic duplication as described by Subsection (a).
(e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator,
expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third
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party any documents, evidence, materials, or witness statements received from the state under this article unless:
(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the
security and privacy interests of any victim or witness; or
(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.
(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the
attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information
provided under this article, but may not allow that person to have copies of the information provided, other than a
copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of
another under this subsection, the person possessing the information shall redact the address, telephone number,
driver’s license number, social security number, date of birth, and any bank account or other identifying numbers
contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for
the attorney representing the defendant.
(g) Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case
within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information
identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone
number, driver’s license number, social security number, date of birth, and bank account information or any
information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection
shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing
agency for the purposes of making a good faith complaint.
(h) Notwithstanding any other provision of this article, the state 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.
(i) The state shall electronically record or otherwise document any document, item, or other information provided to
the defendant under this article.
(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on
the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the
defendant under this article.
(k) If at any time before, during, or after trial the state discovers any additional document, item, or information
required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item,
or information to the defendant or the court.
(l) A court may order the defendant to pay costs related to discovery under this article, provided that costs may not
exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.
(m) To the extent of any conflict, this article prevails over Chapter 552, Government Code.
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(n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or
greater than those required under this article.
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
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APPENDIX E
Dear Valued Prosecutor,
The Court of Criminal Appeals takes seriously its roles as the supreme court for criminal matters and the statutorily
designated organization that oversees the continuing legal education for prosecutors in this state. TEX. GOV’T CODE §
56.001 et. seq.
We respectfully request that you complete the attached survey. In two recent cases, the United States Supreme
Court emphasized the critical importance of the disclosure by the State of favorable evidence material to the accused.
Smith v. Cain, 132 S. Ct. 627 (2012); Connick v. Thompson, 131 S. Ct. 1350 (2011). This issue of concern dates back to 1963
when the Supreme Court originally held that “the suppression by the prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
The concerns related to Brady issues and the wrongful convictions of individuals across the country have
attracted the attention of both federal and state legislative bodies. The courts are fully aware of the consequences of
Brady violations that defeat the goal of justice in our criminal justice system.
Due to this widespread concern and recent successful Brady claims in our Court,1 we are gathering information
related to Brady policies and to what Brady training is offered. This survey is completely anonymous, and your answers
will be used only for educational purposes. We realize that your time is valuable, so we have made the survey as short as
possible. It contains fewer than twenty questions and will take only a few minutes to complete. Thank you for assisting
us in our effort to ensure the continuing education of the criminal justice system.
Sincerely,
TEXAS COURT OF CRIMINAL APPEALS
Presiding Judge Sharon Keller
Judge Lawrence E. Meyers
Judge Tom Price
Judge Paul Womack
Judge Cheryl Johnson
Judge Michael Keasler
Judge Barbara P. Hervey
Judge Cathy Cochran
Judge Elsa Alcala
Survey
1. How many years have you been a prosecutor? _________________
1
See, e.g., Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012); Pena v. State, 353 S.W.3d 797 (Tex. Crim. App.
2011).
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2. What type of cases are you currently assigned to handle?
a. Appellate
b. District
c. County.
d. Other:_________________
3. On average, how frequently do you deal with cases involving Brady issues?
a. Once a day
b. Once a week
c. Once a month
d. Once a year
e. I don’t know
f. Never
g. Other:___________________
4. How much, and what kind, of in-house training does your office provide? __________________
_______________________________________________________________________________________
_____________________________________________________________________
5. How many hours of educational training related to Brady evidence did you receive last year?
_______________
6. How many hours of ethics education did you receive last year? _______________
7. Who in your office is responsible for addressing your Brady questions, and does this position rotate?
_____________________________
8. Does your office assist local law enforcement in their training efforts? Are you willing to do so?
_____________________________
9. Are you aware of any training regarding Brady with/for law enforcement in your jurisdiction? If so, please
describe it. ____________________________________________________________
______________________________________________________________________________
10. What is the policy regarding discovery in your office? (e.g., open, full electronic, reciprocal, limited with
restrictions, other) _____________________________________________________
______________________________________________________________________________
11. How often is your discovery policy reassessed? ___________________________
12. What suggestions can you offer for better education on the topics of (1) discovery policies and (2) Brady
issues? __________________________________________________________________
______________________________________________________________________________
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13. How many TDCAA seminars do you attend annually? What percentage of this training is dedicated to
discovery/Brady? ____________________________________________________
______________________________________________________________________________
14. Please include any general comments or concerns you have.
_______________________________________________________________________________________
_____________________________________________________________________
15. Have you read these cases, and are you familiar with their holdings and analysis?
e. Kyles v. Whitley, 514 U.S. 419 (1995).
a. Brady v. Maryland, 373 U.S. 83
(1963).
f. Connick v. Thompson, 131 S. Ct. 1350
(2011).
b. United States v. Agurs, 427 U.S.
97 (1976).
g. Smith v. Cain, 132 S. Ct. 627 (2012).
c. United States v. Bagley, 473 U.S.
667 (1985).
h. Ex parte Miles, 359 S.W.3d 647 (Tex.
Crim. App. 2012).
d. Arizona v. Youngblood, 488 U.S.
51 (1988).
i. Pena v. State, 353 S.W.3d 797 (Tex. Crim.
App. 2011).
Hypotheticals
Scenario 1: Police converse with murder suspect 30 times, recording each conversation. The defendant confesses to
the crime, and the entire case is built around that confession. Police do not reveal tapes despite the defense that the
suspect was coerced. A few days after conviction, in a casual meeting with the arresting police agency, you are
asked if your office “needs” the tapes. What do you do?
Scenario 2: In a capital-murder case, you discover that the slain officer was under the influence of drugs at the time
of the offense. Part of the defense involves the relationship, through drug connections, between the officer and the
defendant. The State has corroborating evidence to support this alleged relationship. Do you inform the defense?
Scenario 3: A complainant dies before trial. The State’s case would heavily rely on the complainant’s testimony.
Do you inform the defense? Discuss.
Scenario 4: Local crime lab establishes new protocols. Do you share this information with the defense?
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Scenario 5: Lab technician fails to test five rape kits, but his reports indicate that the kits were examined and
implicate five defendants. Ultimately the fact of this lab malfeasance is disclosed to the defense. That same
technician conducted tests on 500 other rape kits. Do you give notice to defendants in those cases? Retest? Discuss.
Scenario 2: In a capital-murder case, you discover that the slain officer was under the influence of drugs at the time
of the offense. Part of the defense involves the relationship, through drug connections, between the officer and the
defendant. The State has corroborating evidence to support this alleged relationship. Do you inform the defense?
Scenario 3: A complainant dies before trial. The State’s case would heavily rely on the complainant’s testimony.
Do you inform the defense? Discuss.
Scenario 4: Local crime lab establishes new protocols. Do you share this information with the defense?
Scenario 5: Lab technician fails to test five rape kits, but his reports indicate that the kits were examined and
implicate five defendants. Ultimately the fact of this lab malfeasance is disclosed to the defense. That same
technician conducted tests on 500 other rape kits. Do you give notice to defendants in those cases? Retest? Discuss
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Brady: Practical Considerations
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APPENDIX F
Sample letter sent by public defender’s office following d.a.
letter regarding Salvador problem at dps crime lab
Harris County Public Defender’s Office
1201 Franklin, 13th floor
Houston, Texas 77002
Office No.: 713-368-0016
Fax No.: 713-368-9278
August 15, 2012
John Defendant
123 Main Street
Houston, Texas 77002
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
NO. P000000888777
Re: The State of Texas vs. John Defendant; Cause number 1231234
Dear Mr. Defendant:
You were prosecuted in the above-styled case for an offense related to the possession or delivery of
controlled substances. The controlled substance made the basis of the case against you was
analyzed by the Department of Public Safety Crime Lab in Houston.
It has come to our attention that the analyst who performed the testing of the controlled substances
in your case is under investigation for falsifying the results in other cases.
The DPS Crime Lab will be retesting the controlled substances in many (but not all) of the cases
that were affected by this analyst’s work. The Harris County District Attorney’s Office will send us
the results of retesting in each case when it is completed.
A copy of this letter is being sent to your last attorney of record, either the attorney who
represented you in the trial court or the one who represented you in the appeal of your conviction.
We are happy to assist you in determining whether the results of the retesting, if such retesting is
performed in your case, considered in the context of the case, suggest that you seek further testing
by an independent crime lab or pursue other options. In the alternative, you may of course retain
private counsel to review these results. We are willing to undertake to review your case without
cost, but also stand ready to assist your retained attorney in discussing your options, if your choice
is to use private counsel.
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John Defendant
August 15, 2012
Page Two
It is unclear when the restesting will be completed or other review of your case will be finished.
In the meantime, I have enclosed a document that I would appreciate your returning to me in the
envelope that I have provided. This document indicates whether you would like our office to assist
you in this matter, or whether you would instead prefer to use private counsel. The document also
allows you to request that no investigation be undertaken in your case if that is your choice.
Please understand that at this time, our office does not have any retest results, nor are we privy to
any information as to whether or how the analysis in your case was improperly done. We simply
need to determine who wants their case investigated further and whether they want our office to
help them in doing so.
Please be so kind as to sign and date the form I have enclosed and return it to me at your earliest
convenience.
Very truly yours,
Bob Wicoff
Chief, Appellate Division
Harris County Public Defender’s Office
cc: John Lawyer
234 River Drive
Houston, Texas 77001
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I, John Defendant, understand from the letter sent to me from the Harris County Public Defender’s
Office, that the analyst who performed the testing of the controlled substances that formed the
basis of the prosecution against me in case number ___________ is under investigation for
falsifying results in other cases.
I further understand that as a result, retesting of the controlled substance that formed the basis of
the prosecution against me may be undertaken by the DPS Crime Lab, and that a review of my case
may be warranted.
By my initials below, I am expressing my desire that:
_______ No review of my case be undertaken at all;
OR
_______ That the Harris County Public Defender’s Office review my case for me;
OR
_______ That all documents related to my case be provided to my retained counsel,
whose name and phone number are as follows:
ATTORNEY NAME: ______________________________
ATTORNEY PHONE:______________________________
Signed the ___ day of _________________, 2012.
_____________________________________________
PRINTED NAME and SIGNATURE
_____________________________________________
MAILING ADDRESS
_____________________________________________
CURRENT
PHONE
33
NUMBER
Brady: Practical Considerations
Chapter 20
APPENDIX G
Sample letter sent by public defender’s office following d.a.
letter regarding statute being held unconstitutional
Harris County Public Defender’s Office
1201 Franklin, 13th floor
Houston, Texas 77002
Office No.: 713-368-0016
Fax No.: 713-368-9278
April 7, 2014
Jane Defendant
1000 Main Street
Houston, Texas 77002
Re: The State of Texas vs. Jane Defendant; Cause number 1000000
Dear Ms. Defendant:
You were charged at some point in the above-styled case with the felony offense of online solicitation
of a minor.
You should have received a letter recently from the Harris County District Attorney’s Office, notifying
you that the law that you were convicted of violating has now been held unconstitutional by the Texas
Court of Criminal Appeals.
Our office is in the process of determining what options people like you may have in light of this
development. Some people might be eligible to have their convictions vacated. Those whose cases
were dismissed might be eligible for an expunction, which means that their arrest record might be
erased. Some persons would need to file what is called a post-conviction writ of habeas corpus. Others
might need to take other legal action to obtain their remedy in light of what’s happened.
Each case is different and needs to be analyzed according to its own circumstances. Unfortunately,
there is no blanket answer I can give everyone as to what might happen in their particular case without
investigating it.
The same letter you received from the district attorney’s office should have been sent to the last
attorney of record listed in your case. Obviously, you may wish to use that lawyer to represent you in
this matter, as he or she may already be familiar with your particular case. Alternatively, of course, you
may choose to retain some other private counsel to review your case. If that is your decision, then our
office is happy to assist your retained attorney in discussing your options.
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If you do not have adequate funds to hire an attorney, then our office is willing to investigate this
matter for you. If our investigation then suggests that your case is one where we may be able to get
your conviction overturned, we would be willing to represent you in filing a post-conviction writ on
your behalf and taking whatever legal action may be called for. We are a county agency. Therefore, all
of the above is without cost, provided you are without funds to hire an attorney.
Unfortunately, we are not able to file expunctions for persons whose criminal cases were dismissed.
For those cases, persons affected would need to hire a lawyer to obtain an expunction. We will only be
able to represent indigent persons who were convicted or received some form of probation.
I have enclosed a document that I would appreciate your returning to me by mail or to the email
address listed above. This document indicates whether you would like our office to assist you in this
matter, or whether you would instead prefer to use private counsel. The document also allows you to
request that no investigation be undertaken in your case if that is your choice. That said, there is no
charge to you if you want us to investigate this for you and I encourage you to let us or a private
attorney look into this for you.
Please be so kind as to sign and date the form I have enclosed and return it to me at your earliest
convenience.
Of course, if you have any questions, please do not hesitate to call me at the above number.
Very truly yours,
Bob Wicoff
Chief, Appellate Division
Harris County Public Defender’s Office
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Brady: Practical Considerations
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I, Jane Defendant, understand from the letter sent to me from the Harris County Public Defender’s
Office, that the law that I was charged with or convicted of violating has now been held
unconstitutional by the Texas Court of Criminal Appeals.
I further understand that as a result of such ruling, it is possible the conviction in my case could be
overturned.
By my initials below, and by my signature, I am expressing my desire that:
_______ No review of my case be undertaken by the Harris County Public
Defender’s Office;
OR
_______ The Harris County Public Defender’s Office review my case for me;
Signed the ___ day of _________________, 2014.
_____________________________________________
Printed name
Signature
_____________________________________________
Address
_____________________________________________
Phone number
36