William Allen Schultz, a Denton County prosecutor, has been banned from appearing in a state district court after the court found he purposefully withheld favorable evidence from a defendant regarding a questionable identification. The grievance that followed has forced the Commission for Lawyer Discipline of the State Bar of Texas to settle a conflict between the disclosures required under Brady v. Maryland and the special responsibilities of prosecutors found in Texas Disciplinary Rule 3.09.
“The ABA Model Rules of Professional Conduct was adopted by the ABA House of Delegates in 1983. They serve as a model for ethics rules for most states.” The ABA Rules format, with varying degrees of changes, has been adopted by every State in the Union, except California.
Special Responsibilities of a Prosecutor
Subsection (d) of this Rule provides that a prosecutor 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 sentence, disclose to the defense and to the tribunal all unprivileged information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”
Brady v. Maryland
In 1965, the U.S. Supreme Court adopted what is now known as the “Brady Rule.” This rule established the constitutional principle that “suppression by the prosecution favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecutor.”
ABA’s Rule More Demanding Than Brady
Rule 3.8(d) was established as a direct response to the Brady Rule, although the ABA Model Rules do not codify Brady. The reason being, according to ABA Formal Opinion 09-454, is that Rule 3.8(d) is “more demanding than the constitutional case law, in that it requires the disclosure of evidence … without regard to the anticipated impact of the evidence or information on a trial’s outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.”
Constitutional Violation vs. Ethical Violation
The “constitutional case law” referred to by Opinion 09-454 is the “materiality” doctrine spawned by Brady and its progeny. This doctrine says there is a due process violation only if the nondisclosure of evidence by the prosecution is “material” to either guilt or punishment. The Supreme Court has ruled that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”
Due Process Violation Requires Materiality
The Supreme Court has defined a “reasonable probability “as a probability sufficient to undermine the confidence of the outcome of the trial. The question then is not whether the defendant would have been found not guilty or received a lesser verdict, but whether in the absence of the non-disclosed evidence, “he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
Brady is to Protect Integrity of Trial, Special Duty is to Protect Public From Rogue Prosecutors
Thus, the very purpose of the Brady Rule is to protect what has been called “the integrity of the outcome of a trial” while Rule 3.8(d) exists to protect the public from unethical prosecutorial misconduct because, otherwise, prosecutors enjoy absolute immunity from lawsuit regardless of how wanton or egregious their misconduct.
Smith v. Cain Debate Continued
Between 2011 and 2013, we posted three pieces dealing with the ABA’s unsuccessful efforts to get the Supreme Court to adopt the broader duty of Rule 3.8(d) to disclose than the court’s materiality doctrine (here, here, here). The ABA, and most legal scholars, realizes there is serious tension between the constitutional duty and ethical responsibility to disclose.
This tension surfaced recently in a Texas case.
Unethical Prosecutors Continued in Texas
The Texas State Bar’s version of ABA Model Rule 3.8(d) is found in Rule 3.09(d) of the Disciplinary Rules of Professional Conduct. This past Fall we posted two pieces dealing with a state district court judge’s decision to find that Rule 3.09(d) does not impose an ethical responsibility on a prosecutor to disclose material favorable evidence to a defendant in a post-conviction setting (here, here).
Prosecutor William Allen Schultz vs. Commission for Lawyer Discipline
But this decision was recently undermined by a December 17, 2015, by an “opinion and judgment” from the Texas Board of Disciplinary Appeals (BODA) that upheld a decision by the Commission for Lawyer Discipline of the State Bar of Texas (Commission) which found that Denton County prosecutor William Allen Schultz had violated Rules 3.09(d) and 3.04(a) in a criminal case.
3.04 Fairness in Adjudicatory Proceedings
Rule 3.04(a), which precedes and bolsters Rule 3.09(d), provides that “a lawyer shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.”
The facts of the Schultz case, as set forth by the BODA, are these:
Schultz was the lead prosecutor in the State’s indictment of Silvano Uriostegui for the aggravated assault of his estranged wife with a deadly weapon. Maria Uriostegui was attacked and stabbed in her apartment bedroom. The only light in the bedroom came from a TV light in another room.
Identity of Attacker Questionable
When initially interviewed by the police, Maria identified her husband as the man who attacked her. Later, during an interview with Schultz, Maria disclosed she had made her identification based on the smell, odor, boot, and stature of her attacker. She also admitted she did not see her attacker’s face.
Prosecutor Failed to Disclose Favorable Evidence
Schultz did not disclose to the defense the limited ability of the witness to identify her attacker. Instead, he made the determination himself that these identification factors were not “exculpatory” or material.
The Commission rejected Schultz’ assertion because it determined that Schultz showed demonstrable signs of concern that the identification was inconsistent when he actually investigated another possible suspect. Schultz “had enough concern that Maria’s attacker might be Alvero Malagon, a man who had previously assaulted her that he investigated and confirmed that Malagon was incarcerated on the date of the attack.” Therefore, there was some doubt about the identity of the attacker, at least enough to check out another possible suspect.
Defense Had Requested Discovery and Brady, There was No Disclosure
Silvano’s defense attorney, Victor Amador (who was the defendant’s third attorney), knew nothing about these identification facts. He had requested and received discovery information, and even met with Schultz several times to discuss the discovery requests. But nothing was disclosed to him about Maria’s inability to identify her attacker.
One month before Silvano’s scheduled trial in February 2012, Schultz and several other people in his office met with Maria to discuss her impending testimony. She reiterated why she identified Silvano as her attacker, and again told the group that she did not see her attacker’s face. Once again Schultz said he did not think this information was exculpatory and, therefore, did not disclose it to either to Amador or the court.
On February 13, 2012, Silvano entered a guilty plea to the indictment. Amador requested that a jury decide his punishment.
Two days later, after the jury was empaneled, Schultz called Maria as a witness. She testified that she did not see her attacker’s face and did not know if Silvano was her attacker. She added that she made her previous identification based on the attacker’s smell and odor.
Mistrial for Undisclosed Brady Material
Amador moved for a mistrial. The trial court granted the motion, finding that the non-disclosed identification factors were exculpatory under Brady.
District Attorney Stipulates that Information was Exculpatory at Habeas Hearing
Amador then filed a petition for writ of habeas corpus, seeking to have double jeopardy attached to Silvano’s mistrial because of the non-disclosed exculpatory information. The two ADAs representing the state at the habeas hearing stipulated the non-disclosed identification factors were exculpatory and “should have been disclosed” under Brady.
Schultz testified at the habeas hearing, saying it had not occurred to him that the identification factors were Brady material, but conceded that “in hindsight” he should have disclosed the factors to defense counsel.
Another Prosecutor Believed Favorable But Did Nothing
Another prosecutor, Forest Beadle, who had assisted Schultz on the case, testified at the habeas hearing that he had always believed the sentencing factors were favorable to the defense, but told no one about them. He also agreed the information should have been disclosed under Brady.
Guilty Plea Withdrawn, Retrial Barred
The trial court granted the habeas petition, allowed Silvano to withdraw his guilty plea, and then barred the state from retrying him because Schultz had not only withheld the favorable information but “goaded” defense counsel into pleading out his client.
Two Prosecutors Barred from Court
The trial judge, in fact, was so incensed at the end of the habeas hearing that he found Schultz and Beadle had been so “disingenuous” about the withheld evidence that he barred them from appearing in his court.
The Denton County District Attorney’s Office reported Schultz’s conduct to the State Bar but excused it as “unintentional.”
After receiving a copy of the District Attorney’s letter to the State Bar, Amador filed a grievance with the Bar against Schultz.
Prosecutor Attempts to Limit Scope of Ethical Duty to Disclose, Cries Unworkable Burden
In response to the grievance, Schultz tried to convince BODA to “limit the scope of the ethical duty to disclose information under Rule 3.09(d) to the due process requirement to disclose evidence under Brady.” He based this argument on the premise that by expanding a prosecutor’s duty to disclose under Rule 3.09(d) beyond Brady’s limited due process requirement “could result in an unfair sanction when no constitutional violation of the right to a fair trial has occurred.”
BODA found this argument “unpersuasive.”
State Shall Disclose Information that Tends to be Favorable
BODA pointed to the 2014 amendment to Article 39.14 of the Texas Code of Criminal Procedure that now “mandates the same standard for disclosure as Rule 3.09(d). BODA cited with approval from Article 39.14(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.”
While it found Article 39.14 was not dispositive in Schultz’s conduct which occurred in 2011-12, BODA said the promulgation of the amendment “refutes Schultz’s position that by imposing a broader duty on prosecutors to disclose information to the defense than Brady creates an unworkable burden. That ‘unworkable burden,’ if there is one, already exists.”
BODA also pointed to a 2012 decision by the North Dakota Supreme Court which held that the state’s Rule 3.8(d) did not create an “unworkable system” by interpreting the ethical rule in a “wholly separate way from the well-established discovery doctrine” of Brady.
Like the North Dakota Supreme Court, BODA has now resolved that unholy tension between the ethical responsibility and the constitutional duty to disclose favorable information—something the U.S. Supreme Court has failed to do, notwithstanding ABA requests to do so.
Prosecutors Must Disclose Favorable Evidence Regardless of Materiality
In the wake of the Schultz disciplinary action, Texas prosecutors can no longer justify their decisions not to disclose based on Brady’s “materiality” shield. With the following conclusion, BODA has made it abundantly clear that the duty to disclose is unequivocal:
“Tex. Disciplinary Rules Prof’l Conduct R. 3.09(d) imposes a duty to disclose any information that tends to negate the guilt of the accused without regard to whether the information is material under the standard imposed by Brady v. Maryland and subsequent cases. This result is consistent with the language and purpose of the disciplinary rule to protect the public and is now codified by Texas Code Crim. Proc. Ann. Art. 39.14.”
In recent years, the State of Texas has seen some of the worst examples of prosecutorial misconduct. so much so that the State was held out as a national embarrassment. In recent years, however, both the State Bar and the Texas Legislature have taken significant steps to end prosecutorial misconduct in the state. The Schultz case exemplifies these efforts.
We applaud the integrity of BODA to underscore these efforts. It has been a long time coming…