Discovery, Brady Rules in Need of Reformation to Prevent Wrongful Convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last month the Timothy Cole Advisory Panel (“Panel”), which was created by the Texas Legislature in its 2009 session to develop recommendations for the Texas Task Force on Indigent Defense to help prevent wrongful convictions, issued its “report” calling for changes in the state’s eyewitness identification procedures, custodial interrogations, discovery procedures, post-conviction proceedings, and various innocence projects that receive state funding.

In two previous posts, we have warmly embraced the Panel’s recommendations concerning eyewitness identifications and custodial interrogations. With this post we also embrace the Panel’s recommendation that “the State of Texas should adopt a statewide discovery policy that is mandatory, automatic, and reciprocal, and requires either electronic access to or photocopies of materials subject to discovery” but there are aspects of the Panel’s report concerning “discovery procedures” that need to be clarified.

On page 24 the Panel states that Brady v. Maryland, a 1963 U.S. Supreme Court decision which held that federal due process requires the prosecution to disclose favorable evidence upon request by a criminal defendant that is material to either guilt or punishment, “is an inefficient tool to prevent wrongful conviction because Brady motions are not raised until after a defendant has been convicted of a crime and new evidence that was in the possession of the prosecution comes to light.”

That statement, as written, is neither factually nor legally correct.

Brady requests must be made pre-trial in the State of Texas through a proper motion requesting exculpatory material both in general form and with as much specificity as possible.  Brady material and other discovery can be requested the following motions: 1) boilerplate motion for discovery; 2) motion for discovery and preservation of specific evidence; 3) motion requesting prosecution to file a list of physical evidence; 4) motion for duplicate photographs; 5) motion for discovery and preservation of specific canine evidence relating to canine drug search; 6) specific motion for exculpatory and mitigating evidence (Brady material); 7) motion for discovery of crime stoppers information; 8) motion for discovery of victim impact evidence; 9) request for notice of state’s intention to introduce punishment evidence pursuant to Art. 37.07 (Code of Criminal Procedure); 10) motion in limine (extraneous offenses); 11) request for notice of state’s intention to offer extraneous offenses pursuant to Rule 404(b)[Rule of Evidence]; 12) motion for pretrial hearing on admissibility of extraneous offenses; 13) written objections to admissibility of extraneous offenses and requesting for findings of fact and conclusions of law; 14) request for notice of extraneous offenses in child abuse case; 15) request for notice of state’s intention to use evidence of extraneous offenses or acts pursuant to Art. 38.37 C.C.P.; 16) request for notice of state’s intention to use evidence of impeachment pursuant to Texas Rules of Evidence 609; 17) request for notice of state’s intention to use certified copies of official documents or business records; 18) comprehensive request for notice of state’s intention to introduce evidence under rules of evidence and code of criminal procedure; 19) notice of intent to introduce evidence of extraneous offense; 20) punishment evidence or prior conviction information, motion for discovery of punishment evidence; 21) motion to list state’s witnesses [all persons contacted]; 22) motion for discovery of criminal records of all state’s witnesses; 23) motion to produce witness statements; 24) motion to require police to maintain personal notes; 25) motion to require police to maintain and produce recorded communications; 26) application to take deposition of witness and notice thereof; 27) application to take deposition of witness by written interrogatories and notice thereof; 28) motion for discovery of grand jury testimony; 29) motion for discovery of defendant’s previous trial; 30) motion for transcript of co-defendant’s trial, motion to reveal agreements entered into between the state and witnesses; 31) motion requesting disclosure of expert witnesses; 32) designation of expert witness; 33) motion for voir dire of expert witness and for pretrial ruling on admissibility of expert testimony; 34) motion for approval of expert witness funds, motion for independent forensic testing; 35) motion for defendant’s access to physical evidence; 36) motion for forensic identity testing; 37) motion for approval of funds for court-appointed investigator; 38) motion for approval of mitigation specialist funds; 39) motion for approval of forensic psychologist funds; and 40) motion for additional investigative funds.

These are all recognized pre-trial discovery motions found in Texas Criminal Forms, Vol. l, Robert Gill & Mark G. Daniel (James Publishing). Motion Practice in Criminal Cases in Texas is another excellent pre-trial guide for help in formulating discovery requests. The Federal Public Defender’s Office in Washington, D.C. also offers an excellent “motions brief-bank” for federal practice.

The Panel does not clearly distinguish the difference between requests for discovery of evidence and the prosecutorial failure to disclose exculpatory evidence. The U.S. Supreme Court has held that a criminal defendant does not enjoy a “constitutional right to discovery in a criminal case.” Texas appellate courts subscribe to the same constitutional principle. However, in the wake of Brady and its extended progeny, the Texas Legislature enacted Article 39.14 of the Texas Code of Criminal Procedure which permits a criminal defendant to file pre-trial motions for discovery while vesting the trial court with the discretion to decide what evidence in the possession of the prosecution is discoverable. For example, Art. 39.14 does not impose on the prosecution the burden to develop evidence that might be exculpatory to a criminal defendant; nor does it give a criminal defendant the right to search for potential DNA exculpatory evidence in the police property room following conviction; nor to secure forensic DNA testing of evidence collected by the State prior to conviction.

These restrictions notwithstanding, an aggressive pre-trial discovery motion practice can lead to Brady violations which are then decided in the post-conviction process, either on direct appeal or in habeas corpus proceedings following direct appeal.

Newly discovered evidence claims must be presented in a motion for new trial pursuant to Art. 40.001 of the Texas Rules of Criminal Procedure. A motion for new trial may be filed before but no later than 30 days after imposition of sentence pursuant to Rule 21 of the Texas Rules of Appellate Procedure.  Newly discovered evidence claims discovered after the 30-day new trial limitation period must be filed in a writ of habeas corpus pursuant to Art. 11.07 of the Texas Code of Criminal Procedure.

The prosecutorial failure to disclose evidence material to either guilt or punishment is a different beast from discovery requests presented to the trial court. These “Brady violations” are generally decided at the appellate level under clearly established case law jurisprudence. For example, the U.S. Supreme Court said in 1985 that evidence is material if there is a “reasonable probability” that disclosure of the evidence would have produced a different verdict.  Just last year the Court reinforced its rule that a “reasonable probability” means the withheld evidence could have altered at least one juror’s assessment of the evidence. This assessment process requires courts to take into account not only the probative value of the suppressed evidence but the cumulative effect it had in light of all the other evidence.  Against this legal backdrop, the Fifth Circuit Court of Appeals held that a witness changing testimony about details of struggle was material because it could have been used to impeach key eyewitness and the outcome could have been different.

The key to understanding Brady is to recognize its limitations.  Brady does not require the prosecution to disclose or make available to the defense all the evidence in its file. The Georgetown Law Journal, Annual Review of Criminal Procedure (2010, 39th Ed.), offers an excellent guide as to what the prosecution does not have to disclose [note 1111, p. 360-61]:

  • No Brady violation for failure to disclose semen analysis showing defendant could not have been rapist because prosecutor gave defendant lab reports containing raw data;
  • No Brady violation for failure to reveal witness’s cooperation with FBI because defendant knew witness met with FBI for 45 minutes, could have cross-examined witness, and could have called other witnesses to obtain information;
  • No Brady violation because government provided defendant with all information on defendant’s payment to co-conspirator despite government’s failure to disclose co-conspirator’s theory that payments were not as large as defendant previously thought; and
  • No Brady violation because government disclosed lab reports that did not show semen despite failure to provide underlying lab test documents which ultimately led to DNA profile of attacker inconsistent with defendant.

These cases reflect that Brady, as a discovery device, does not relieve a criminal defense attorney of his/her responsibility to develop evidence favorable to his/her client from available sources other than the prosecution’s files. The Sixth Amendment right to counsel entails effective representation by counsel who conducts a diligent investigation to discover exculpatory or mitigating evidence.

That said, we must point out that Texas prosecutors have a long, and sordid, history of suppressing mitigating evidence, utilizing perjured testimony, and erecting procedural roadblocks to prevent criminal defense attorneys from developing legitimate and meaningful defense strategies.  That’s why we wholeheartedly embrace the findings of 2009 The Justice Project report, “Convicting the Innocent: Texas Justice Derailed,” which concluded that Texas’ discovery statutes are “so minimal that they fail to guarantee the opportunity for evidence to be fully investigated and meaningfully challenged.” In support of this conclusion, the Justice Project pointed out that seven of Texas’ first 39 DNA exonerations involved suppressed evidence and the defendants’ inability to prepare for trial.

The American Bar Association’s Standards for Criminal Justice: Discovery and Trial by Jury (3ed., 1995) have been fully adopted by only five states, according to the Panel. “The majority of the remaining states have standards more in line with either Federal Rule 16 (providing the most limited discovery) or some area between the two standards,” according to the Panel. “Current Texas law, however, is considerably more restrictive than Federal Rule 16.”

In reaching that conclusion, the Panel pointed to a 2004 report, Treatment of Brady v. Maryland in United States District and State Courts’ Rules, Orders, and Policies, to the Federal Judicial Center which found that “Texas consistently falls into the narrowest category of discovery policies. Texas requires a written motion, and is also one of only ten states that places additional conditions on discovery and requires the defendant to demonstrate that the materials are necessary to the preparation of the defense or “show ‘good cause.’”

While the Panel did not specifically recommend that the ABA’s discovery standards be uniformly adopted in the State of Texas, it did refer to them with approval. In fact, the Panel went a step beyond the ABA standards to cite with approval a proposal by The Justice Project that a “’discovery certificate should be filed by the District Attorney’s office with the court during pretrial procedures and should specify when evidence was exchanged and by what method of delivery.’ This type of certification creates a court record stating that both defense and prosecution have fulfilled their discovery responsibilities, provides documentation of information received from third parties, and makes it more difficult for evidence to be willfully suppressed.”

The responsibility for complete and comprehensive discovery in the State of Texas rests with the legislature. According to the Panel, some counties, like Tarrant County, have “open file” discovery policy that “utilizes electronic case filing system to manage the discovery process,” while other counties, such as Williamson County, fight any efforts to modernize the discovery process that would provide defense attorneys with greater access to evidence. It’s time for the Legislature to “modernize” Art. 39.14, and while we doubt such a modernization would include adopting all of the ABA discovery standards, it should at least bring Texas into the mainstream with something similar to Federal Rule 16.

But regardless of what the Legislature may or may not do, defense attorneys still have a professional obligation to pursue an aggressive discovery strategy tailored to the specific defense they are pursuing. While this strategy may not produce all the evidence they request through specific motions, it at least provides a gateway into the appellate process should their client be convicted and may provide a reasonable basis for a new trial if the suppressed evidence would have altered at least one juror’s vote.

In addition, law enforcement, including prosecutors, should be penalized, personally, when they fail to disclose known evidence which tends to weaken any aspect of the government’s case.  Individuals should be held responsible for intentional obstruction/access to exculpatory and mitigating evidence that causes an innocent person to be wrongly convicted.  Civil statutes for personal injuries and economic losses, disciplinary rules effecting licenses to work in the legal system and criminal statutes criminalizing such conduct should be adopted that punish individuals who intentionally stack the cards in the criminal justice system by hiding or failing to disclose evidence.  A prosecutor has the responsibility to see that justice is done, and not simply be an advocate (Comment 1, Rule 3.09, Texas Disciplinary Rules of Professional Conduct). It is reprehensible that criminal trials have become games in which some prosecutors feel it is OK to lie, cheat and steal to win.