Prosecutors in Texas have a long history of suppressing what is known as “Brady material” to secure criminal convictions. This kind of prosecutorial misconduct is deliberate and calculated to either shore up or reinforce the prosecutorial narrative in a particular case.
That is precisely what prosecutors did in the highly publicized and controversial Rodney Reed capital murder case. Reed was convicted for the April 1996 rape/strangulation death of Stacey Stites in Bastrop, Texas.
Reed was arrested in 1997 for the Stites murder after it was discovered through DNA testing that his semen matched sperm found on the victim’s body. Law enforcement had obtained Reed’s sperm sample in connection with another sexual assault investigation in which he was a suspect. After initially saying he did not know Stites, Reed admitted that he and the victim were involved in a secret consensual sexual relationship, and the couple had sex the day before her murder.
Prosecutors Fail to Disclose Favorable Witnesses, Evidence
Prosecutors and police had corroborating information from witnesses that Reed and Stites were involved in a romantic relationship but did not disclose the favorable information to Reed’s defense.
Reed was indicted and convicted of capital murder in the Stites case and was sentenced to death in May 1998.
Between 1998 and 2008, Reed’s case worked its way through the state’s mandatory appeal process in capital cases, resulting in his conviction and death sentence being upheld.
In November 2014, an execution date was set for Reed. The Texas Court of Criminal Appeals stayed his execution in February 2015.
Over the next four years, attorneys for Reed, and a groundswell of public support, tried to convince the Texas courts and U.S. Supreme Court that prosecutors presented scientifically flawed evidence to convict him and suppressed Brady material that would have corroborated his defense. These pleas fell on judicial deaf ears.
In July 2019, a second execution date was set for Reed.
Evidence of Evidence and Prosecutorial Misconduct
Over the next several months, international celebrities and even a bipartisan group of Texas lawmakers, including Republican members of the House Criminal Justice Reform Caucus, sent a letter urging Gov. Greg Abbott to halt Reed’s execution until “compelling evidence” of his innocence could be investigated.
In November 2019, the Texas Court of Criminal Appeals stayed Reed’s execution to allow an evidentiary hearing to explore his claims of innocence. The Court’s stay came hours after the Texas Pardon and Parole Board had voted unanimously to ask Gov. Abbott to issue a 120-day reprieve to allow the innocence issue to be investigated.
That evidentiary hearing was conducted over a two-week period in July 2021.
Prosecutors failed to Disclose, Lied
The month before the hearing, the prosecution disclosed exculpatory Brady material to Austin attorney Andrew MacRae. The disclosure confirmed that before Reed’s 1998 trial, the prosecution had statements from three witnesses who confirmed the Reed/Stites romantic relationship. Not only did the prosecution not disclose this valuable Brady material, it lied to Reed’s defense team that it had spoken to all the witnesses, and none had confirmed that Reed and Stites were in a romantic relationship.
In November 2021, state District Judge J.D. Langley issued a 50-page ruling rejecting Reed’s bid for a new trial. Langley held that Reed had failed to show by clear and convincing evidence that the suppressed Brady material would have changed the original jury outcome.
In December 2021, attorney MacRae responded to Langley’s ruling by filing a 58-page Request for Grant of Application for Writ of Habeas Corpus in the Texas Court of Criminal Appeal.
The issue now before the Court of Criminal Appeals is straightforward: was the favorable evidnece suppressed for more than two decades by prosecutors sufficient to have changed the outcome of the jury’s guilty as charged verdict?
The law would seem to answer that question in the affirmative.
Discovery in Texas
Pre-trial discovery in criminal cases in Texas is governed by Article 39.14 of the Texas Code of Criminal Procedure. This discovery statute was enacted by the Texas Legislature in 1965. The essential purpose of the statute was to enforce the strict duty Texas prosecutors have under Article 2.01 of the Code of Criminal Procedure “not to convict, but to see that justice is done.”
Article 39.14 was enacted in response to the 1963 U.S. Supreme Court decision Brady v. Maryland that required prosecutors to disclose to a criminal defendant, upon request by the defendant, any exculpatory evidence “material” to the issue of guilt or punishment.
To say that Texas prosecutors never took their Article 2.01 duty seriously would be more than a classic understatement. Lacking any ethical or constitutional restraints before Brady, Texas prosecutors tried criminal cases pretty much as they pleased. Issues of guilt beyond a reasonable doubt or the appropriate punishment to be imposed rested solely at the discretion of given prosecutors in each of Texas’s 254 counties.
It was “law-and order,” “convict at any cost,” and “hang ’em from the highest oak tree” kind of prosecutorial justice handed-down from the murderous Old West. Thousands of innocent people were wrongfully convicted, and hundreds (if not more) were executed in the Huntsville prison death chamber, and there was no meaningful recourse to correct either tragedy.
Brady Rule Intended to Prevent Prosecutorial Misconduct
It was the Brady Rule that was designed to stop this historical prosecutorial misconduct that was inextricably woven into the nation’s criminal justice system, especially in the Old South states like Texas. The immediate problem with Brady, however, was the fact that the Supreme Court offered no definition of what constituted “material” evidence.
Over the next five decades, the Supreme Court, the federal courts of appeals, U.S. District Court judges, state supreme courts, and intermediate courts of appeals grappled with the recurring “materiality” issue.
Lacking any clear definition of materiality, Texas prosecutors continued to convict wrongfully and execute innocent people by either withholding or manufacturing false evidence.
While these post-Brady injustices were taking place, the Texas Court of Criminal Appeals tried to shape and mint a precise definition of materiality through a litany of decisions. Finally, in 2002 in Hampton v. State, the Court of Criminal Appeals decided to firmly follow the lead of the U.S. Supreme Court’s 1976 decision in United States v. Agurs, which held that non-disclosure of favorable evidence is not a per se due process violation if evidence was not “material” to guilt or punishment.
Courts Protect Wrongful Convictions with Legal Procedure
The Hampton court specifically held that a criminal defendant must show that, “in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure.”
In other words, it was judicially acceptable to withhold favorable evidence, particularly relating to issues of punishment, against guilty defendants whose pre-trial guilt was assessed and determined by none other than the prosecutor.
Michael Morton Act
Then came the Michael Morton Act of 2013.
In February 1987, Michael Morton was convicted for the 1986 murder of his wife, Christine, in Williamson County, Texas. Prosecutors in the case knowingly withheld documentary and physical evidence that showed Morton was innocent of the crime.
On October 12, 2011, the Texas Court of Criminal Appeals officially declared Morton factually innocent of the murder of his wife.
With literally dozens of highly-publicized Michael Morton-like cases making prosecutorial misconduct a blight on the State’s criminal justice system, the Texas Legislature gave birth to the Michael Morton Act. The Act amended Article 39.14 with every intention of resolving the materiality issue by inserting the following language in the statute: requiring state prosecutors to produce evidence that is “material to any matter involved in the action.”
That has been the discovery rule in the State of Texas for the past seven years. Unfortunately, the term was broad enough to allow individual prosecutors to play loose with discovery evidence.
Materiality Before Court Again in Watkins
On March 21, 2021, in Watkins v. State, the Texas Court of Criminal Appeals said, “the current version of Article 39.14 removes procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and expands the State’s obligation to disclose. Further, the State’s new, broader obligations apply prior to trial, continue after conviction, and must be complied with quickly.”
The Watkins court dealt with a situation in which counsel for the defense made a pre-trial request under the Michael Morton version of Article 39.14 for the disclosure of “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.”
The prosecution gave defense counsel pre-trial notice that it planned to introduce 33 exhibits concerning the defendant’s criminal history during the punishment phase of the trial. However, the trial prosecutor did not disclose the actual exhibits until just before he introduced them into evidence during the punishment phase. Over a defense objection that the documents had not been timely disclosed, the trial court allowed the admission of the criminal history information. A court of appeals upheld the trial court’s ruling.
At the outset of its analysis in Watkins, the Court of Criminal opened with this question:
“So did the trial court err to admit these exhibits over [defendant’s] objection?”
The court added: “The answer to that question turns upon whether these exhibits’ constitute or contain evidence material to any matter involved in the action.’ That requires this Court to construe the phrase ‘material to any matter involved in the action’ as it appears in Article 39.14 of the Code of Criminal Procedure.”
The Court of Criminal Appeals then decided that:
“Under these circumstances, we construe the amended statute as adopting the ordinary definition of ‘material.’ evidence is ‘material’ if it has ‘some logical connection to a consequential fact.’ Whether evidence is ‘material’ is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial. In this case, the exhibits at issue were ‘material’ because they had a logical connection to subsidiary punishment facts. We reverse the court of appeals and remand the case so that the court of appeals may analyze whether Appellant was harmed by the lack of disclosure.”
With that general conclusion said and done, the Court addressed the difference between a “material” evidence disclosure pre-Michael Morton Act and a post-Michael Morton Act disclosure:
“On the whole, the statutory changes {Michael Morton Act} broaden criminal discovery for defendants, making disclosure the rule and non-disclosure the exception. Significantly, Article 39.14(h) places upon the State a free-standing duty to disclose all ‘exculpatory, impeaching, and mitigating’ evidence to the defense that tends to negate guilt or reduce punishment. Our Legislature did not limit the applicability of Article 39.14(h) to ‘material’ evidence, so this duty to disclose is much broader than the prosecutor’s duty to disclose as a matter of due process under Brady vs. Maryland. This subsection blankets the exact type of exculpatory evidence at issue in the Michael Morton case while creating an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not ‘material.’
“Also, the statute requires disclosure of evidence that merely ‘tends’ to negate guilt or mitigate punishment. This echoes the definition of evidentiary relevancy. Relevant evidence is any evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.41 Under Article 39.14(h), the State has an affirmative duty to disclose any relevant evidence that tends to negate guilt or mitigate punishment regardless of whether the evidence is ‘material’ under Brady v. Maryland.”
As a result of Watkins decision, a defense attorney’s pre-trial request for Article 39.14 disclosure imposes an affirmative duty on the prosecutor to disclose all evidence, regardless of prosecutorial notions about materiality.
Still, it should be noted that Watkins places issues before the courts of appeal regarding disclosure versus non-disclosure on a case-by-case basis. This means decisions regarding violations of Michael Morton disclosure rules will be fact-specific.
The question now is whether the Rodney Reed case will survive an individual case analysis by the Court of Criminal Appeals as to whether the prosecution had an affirmative duty to disclose the Brady material to Reed’s defense before trial.
And still standing alone in the proverbial justice desert is the Texas’ prosecutor’s duty “not to convict, but to see that justice is done.” When will Texas prosecutors take this duty to heart and protect the integrity of their convictions cases by playing fair?