FUNDED BY A GRANT FROM THE TEXAS COURT OF CRIMINAL APPEALS TEXAS MUNICIPAL COURTS EDUCATION CENTER 2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756 TELEPHONE 512.320.8274 1.800.252.3718 FAX 512.435.6118 Brady to Morton: Rediscovering Discovery Presented by David Newell, Judge, Texas Court of Criminal Appeals It is essential that criminal law practitioners know the elements of Brady v. Maryland and the duties it imposes on prosecutors and judges, as well as the remedies for violations. In Texas, it is also essential to know the elements of Article 39.14 of the Code of Criminal Procedure and the duties it imposes on prosecutors, judges, and criminal defense lawyers. Recent changes to Article 39.14, made by the Michael Morton Act, further add to what practitioners must know. Questions remain. What are the requirements for requesting disclosure of materials in possession of the prosecution? What kinds of evidence are subject to Article 39.14? What requirements does the Michael Morton Act impose on prosecutors who receive Article 39.14 disclosure requests and on trial judges to supervise discovery? What limits, if any, are there to a prosecutor’s obligation to disclose once a request has been made? By the end of the session, participants will be able to: 1. Describe the procedures for requests made by pro se defendants, the role of the trial judge in handling these requests, and the ways in which such requests differ from those made by defendants represented by counsel. 2. Explain how the requirements of Brady v. Maryland and due process compare with those of Article 39.14; and 3. Identify ways in which discovery requirements and processes involve professional responsibility. TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION IN THE WAKE OF MICHAEL MORTON Civil vs. Criminal Discovery vs. Civil vs. Criminal Discovery Civil discovery “wide open” Parties in possession of “complete” information more likely to settle Criminal discovery Until recently – no general right to discovery Facilitate evidence manipulation? Give a defendant unfair advantage? 1 Criminal Discovery Procedures and tools not designed for discovery Open Records requests Bail reduction and habeas corpus hearings Examining trials Motions to suppress Limit was “due process” Nevertheless – “open file policy” Brady – Due Process Limits In 1963 the United States Supreme Court decided the case of Brady v. Maryland, holding that: “the suppression by the prosecution of evidence favorable to the 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 US 83, 87 (1963) Brady – What was that case about? Brady and Boblit were tried and convicted of capital murder Brady claimed Boblit did the actual killing Prosecution did not disclose a statement by Boblit Found out after conviction Society wins not only when guilty are convicted but also when criminal trials are fair 2 What does “Brady” mean? 1. Brady applies to “exculpatory,” “material” information in possession of the government 2. The prosecution has a duty to find this information 3. The prosecution has a duty to disclose this information to the accused, whether requested or not OK, but what does “exculpatory” mean? Brady material includes more than just information that would prove the defendant not guilty It includes favorable information Talking about impeachment? Giglio convicted of passing forged money orders Co-Conspirator testified against Giglio During appeal – discovered deal between prosecutors and co-conspirator co-conspirator never indicted Brady includes impeachment evidence – Giglio v. U.S., 405 U.S. 150 (1972) 3 OK, but what does “exculpatory” mean? Brady material includes more than just information that would prove the defendant not guilty It includes favorable information “Favorable” information includes impeachment evidence that tends to bring into question the credibility or reliability of a witness for the state How is “exculpatory” different than “favorable?” Exculpatory information is information of any type that tends to reduce the likelihood of guilt or bears favorably on culpability or some other component of punishment; in other words – information that tends to show the defendant didn’t do it or that punishment should be mitigated Is “favorable” limited to what’s favorable at trial? Favorable information may relate to both pretrial matters and trial matters For example, information related to the circumstances surrounding an out-of- court identification process would be relevant to determining the admissibility of the identification testimony for trial purposes – so the information would need to be disclosed prior to the suppression hearing. 4 Ex parte Palmberg, 491 S.W.3d 804 Fact that presumptive test used all the drugs isn’t a crucial fact Defendant who takes a plea, does so with a roll of the dice Must be affirmative evidence that defendant didn’t commit the crime What does “Brady” mean? 1. Brady applies to “exculpatory,” “material” information in possession of the government 2. The prosecution has a duty to find this information 3. The prosecution has a duty to disclose this information to the accused, whether requested or not Only “material” information is covered by Brady “Evidence is ‘material’ … only where there exists a ‘reasonable probability’ that had the evidence been disclosed the result at trial would have been different.” 5 How did we get “material”? Feds prosecute Bagley for drugs and guns Bagley asks about deals between the Govt. and the witnesses Borrowed the prejudice standard from ineffective assistance - U.S. v. Bagley, 473 U.S. 667 (1985) See Ex parte Pena, 2017 WL 8639778 … and it must be admissible Not only must the evidence be favorable to the accused and material to the case, the undisclosed evidence must also be of the type that would have been admissible at trial. Make the argument after the fact What does “Brady” mean? 1. Brady applies to “exculpatory,” “material” information in possession of the government 2. The prosecution has a duty to find this information 3. The prosecution has a duty to disclose this information to the accused, whether requested or not 6 Government possession? State gives copy of videotape of traffic stop to defendant Original has audio of defendant’s conversation in back of patrol car Pena v. State, 353 S.W.3d 787 (Tex. Crim. App. 2011) What does “Brady” mean? 1. Brady applies to “exculpatory,” “material” information in possession of the government 2. The prosecution has a duty to find this information 3. The prosecution has a duty to disclose this information to the accused, whether requested or not OK, I see what Brady material is, but what’s this “duty to find?” Brady is not limited to favorable, material evidence in the physical possession of the prosecutor Possession of this evidence by the police counts as possession for purposes of Brady, even if the police do not disclose the Brady material to the prosecutor. 7 Um . What? Kyles was convicted of first-degree murder and sentence to death Prosecution claimed no exculpatory evidence Police didn’t tell the prosecutors about exculpatory statements Imputing knowledge forces disclosure – Kyles v. Whitley, 514 U.S. 419 (1995) It’s not just what’s in the files! Brady information is still Brady information even though the police don’t write it down For example, a witness tells the investigating officer she can’t identify the suspect So what’s the worst that can happen if Brady is violated? A conviction can be set aside on due process grounds Disciplinary action by the Bar State officials can be held liable for money damages ○ An individual state actor could be sued under 42 U.S.C. 1983 for depriving a person of a right, privilege, or immunity guaranteed by the Constitution ○ A government entity (e.g., the city) could be held liable, too, if it directs the misconduct or has a policy or custom that allowed the violation ○ But see Hillman v. Nueces Co., 2019 WL 1231341 8 Risk management [i.e., how to make sure you’re following the law if you’re “the State”] Train all prosecutors and law enforcement officers to recognize and disclose Brady material Develop and review policies that ensure this material is known and disclosed, then enforce them Supervise, check, double-check at all levels Take it seriously because it’s serious So how do I know it’s Brady? When it doubt, turn it over test Spit-take test Brady paradox test Do you understand how many cases we handle? Not really But many of your cases escape review Def. can waive duty to disclose impeachment evidence as part of a plea bargain – U.S. v. Ruiz, 536 U.S. 622 (2002) 9 Article 39.14 of the Texas Code of Criminal Procedure Article 39.14 – A disclaimer Primarily a run through the statute with you Not really any more than one case from CCA interpreting this new version of the statute A lot of the lower court cases interpreting it are not binding because they are unpublished Article 39.14 Art. 39.14 is the general discovery statute in Texas criminal procedure It applies to all courts and state agencies, including fine-only courts The discretionary “good-cause” standard has been replaced to require disclosure by the State of covered material and information Does this mean there is now a mandatory “open-file” policy for prosecutors? Watkins v. State - pending 10 Article 39.14 Broad strokes No longer court centric Sets up two “tracks” – one for represented defendants and one for pro se defendants State must turn over “inculpatory” evidence on a request State has continuing duty to turn over “exculpatory, impeachment, or mitigating” evidence without a request What does 39.14 cover? Any of the following that are under the control of the State or any person under contract with the State MUST be produced upon request: Offense reports Any designated documents, papers, written or recorded statements of the defendant Any written or recorded statements from witnesses Any witness statements of law enforcement officers, excluding the work product of prosecutors and their investigators But wait! There’s more .