On October 12, 2015, Denton County District Judge Jonathan Bailey issued a controversial ruling that effectively cleared Fort Bend County District Attorney John Healey of “professional misconduct” for failing to disclose evidence that called into question the validity of the drug conviction of Jacob Estrada.


The 2006 Estrada case was one of thousands in which former Department of Public Safety crime lab technician Jonathan Salvador fabricated evidence so prosecutors (mostly in the Harris County area) could secure convictions.


Faulty Forensics of Jonathan Salvador


When the Department of Public Safety informed prosecutors that Salvador’s evidence was severely flawed, Jacob Estrada was already in prison pursuant to a guilty plea induced by Salvador’s evidence in his case.


District Attorney Healy and his chief narcotics prosecutor Mark Hanna were both informed about the Salvador fiasco.


Estrada immediately requested release because Salvador’s false evidence had induced his guilty plea.


DA’s Office Stalls Release of Estrada


Healy’s office stalled Estrada’s requests, apparently  because there was no evidence remaining to re-test. Therefore, there was no credible evidence remaining upon which a new conviction could be based.  Leaving the flawed conviction intact and letting the appellate system sort it out would effectively keep Estrada incarcerated as long as possible.


Estrada’s conviction was reversed by the Texas Court of Criminal Appeals in June 2014.


Estrada’s attorneys promptly filed several grievances with the State Bar asking that Healy and Hanna be reprimanded, suspended or disbarred for their conduct in the case. This past July, the Texas Commission for Lawyer Discipline, acting upon those grievances, filed a disciplinary petition against the two prosecutors. The Texas Supreme Court appointed Judge Bailey to hear the matter.


No Ethical Duty to Correct Wrongful Conviction


“[The] Texas Disciplinary Rule of Professional 3.09(d) does not impose any post-conviction duty on the prosecutor in a criminal case,” Judge Bailey wrote in his October 9 order.


Rule 3.09(d) sets forth the “special responsibilities of a prosecutor.” Subsection d of the rule provides that prosecutors shall “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 …”


The Loophole


Lawyers for the prosecutors argued that the problem inherent in Rule 3.09(d) is that it applies only to pre-trial disclosure obligations. The rule carries no weight in the post-conviction setting in cases like Jacob Estrada.


This ethical dilemma has been stewing in the legal community for the past decade. Exactly what ethical responsibilities, if any, do prosecutors have in the post-conviction setting when credible evidence of actual innocence or wrongful conviction emerges that calls into question the very integrity of a criminal conviction?


The Good, The Bad and…


Some prosecutors, like former Dallas County District Attorney Craig Watkins, work actively to correct errors that lead to conviction of the innocent while prosecutors like John Healy stall and attempt to undermine the credibility of newly discovered exculpatory evidence.


Because the process in which district attorneys evaluate new evidence, or what rationale they use to deal with new evidence, is privileged and cloaked in secrecy, there is no way to know why Healy and Hanna acted as they did in the Estrada case.  And, unfortunately, there is no controlling authority that attached any mandated ethical or constitutional responsibility to them to act when the exculpatory evidence emerged in the post-conviction setting of the Estrada case.


Obligation to Address Wrongful Convictions Post Trial


Citing the ABA’s Model Rules of Professional Conduct, in 1976, the U.S. Supreme Court in Imbler v. Pachtman noted in a footnote that prosecutors are “bound by the ethics of [their] office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.”


Recognizing the growing need for guidance in dealing with exculpatory evidence in the post-conviction arena, the American Bar Association added two subsections to Rule 3.8 of its Model Rules of Professional Conduct.


Texas’s Rule 3.09(d) is modeled after the ABA’s Rule 3.8(d), but, unfortunately, does not contain the two subsections that address conduct post conviction.


American Bar Association Rule Includes Duty to Disclose, Investigate and Remedy


Subsection (g) of the ABA’s Rule 3.8 requires that prosecutors disclose any “new, credible and material” evidence that creates a “reasonable likelihood” of innocence to an “appropriate court or authority” when the conviction is “obtained in the prosecutor’s jurisdiction;” and to “undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.”


Subsection (h) of ABA Rule 3.8 requires that when a prosecutor “knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.” In other words, the prosecutor must seek to overturn or otherwise create a condition to rectify the unlawful conviction.


Texas has Not Adopted Post Conviction Rules


While the State of Texas has adopted part of ABA Rule 3.8, it has not incorporated Rule 3.8’s subsection (g) and (h) into its own Rule 3.09. Thus, Judge Bailey’s ruling was sadly correct.


District Attorney Enters Spin Zone


“I said from the beginning of these baseless attacks against my office that we would be vindicated, and we have,” Healy said in a statement following Judge Bailey’s ruling.


But that assertion is nothing more than hot air on a cold day.


Healy’s office violated the spirit of a prosecutor’s duty to do justice and the ethical commands of the American Bar Association’s Rule 3(g) & (h). His deliberate decision to stall in the Estrada case was certainly founded upon the win at all cost mentality that has contributed to wide spread prosecutorial misconduct in prosecutor’s offices across the Country and the continual stream of exonerations which involve prosecutorial misconduct.


To be clear, the ethical complaints against Healey’s office were not “baseless” but Healey’s concept of vindication most certainly is.


Complaint Not Baseless in Fact


The court may have dismissed the claim because the “Texas Disciplinary Rule of Professional Conduct 3.09(d) does not impose a post-conviction duty on the prosecutor in a criminal case,” but did not go as far as finding that the case had no factual basis.  It certainly did not find that Healey’s office worked at the highest level of ethics and professionalism.


Specifically, the court DENIED the prosecutor’s motion to dismiss “as to the cause of action having no basis in fact,” but only granted it as to the “cause of action having no basis in law.” The court’s decision is a legal victory for the Ft Bend District Attorney’s Office indeed, but not a vindication against a baseless claim, unless morality and ethics no longer have a base.


Defense Lawyers Say Court’s Finding Disturbing


Kristen Jernigan, one of Estrada’s attorneys, said this after Judge Bailey’s ruling: “We are very disappointed with the trial court’s ruling. The court’s declaration that a prosecutor has no duty to inform an imprisoned person of evidence that could exonerate them is truly disturbing.”


We agree.


As criminal defense attorneys who see prosecutors step up ethical line regularly, we have long argued that the more expansive rules, requiring prosecutors to adhere to the highest ethical obligations as set out in ABA Model Rules, should be adopted by Texas.


It is now high time that the Texas Disciplinary Rules of Professional Conduct adopt ABA Model Rule 3.01 (g) and (h) and amend subsection (d) so that it requires the disclosure of mitigating evidence “regardless of Materiality.”