Fairness in Disclosure of Evidence Act Seeks to Address Growing Concern over Prosecutorial Misconduct and Wrongful Convictions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Brandi Grissom, writing in the July 5, 2012 edition of the Texas Tribune, reported that 25 percent of the 86 criminal convictions overturned in the State of Texas between 1989 and 2011 involved some form of prosecutorial mistake or misconduct. The subject of prosecutorial misconduct, and the concurrent lack of accountability for those prosecutors who engage in such conduct, is an issue we have dealt with in two recent posts.


Jennifer Acevedo is the chief disciplinary counsel with the Texas State Bar—an agency she has been with since 1985. She told the Tribune that she could recall only three instances where prosecutors were publicly reprimanded. None of these three reprimands involved the cases of prosecutorial misconduct uncovered by the Tribune in its exhaustive study of the 86 cases reversed between 1989 and 2011.  This information almost assuredly prompted University of Texas law professor Jennifer Laurin to tell the Tribune: “Right now, there is next to no oversight of what prosecutors do.”


Unfortunately, that is the state of affairs in virtually all cases of prosecutorial misconduct at either the state or Federal level. Misconduct has become a prominent, and an almost legitimate, method for securing criminal convictions. The “convict at any costs” mindset among some prosecutors is undeniably a byproduct of the “get tough on crime”—a feel good issue that has become a fixture in most state and national political campaigns since Reagan years. The “get tough on crime” issue has gained such unprecedented legitimacy since George W. Bush declared the so-called “war on terror” that some criminal conduct, like narcotics and human trafficking, has assumed the label “terrorism” by many law enforcement officials and political leaders.


This is especially true in Texas. Prosecutorial misconduct has been endemic in the state’s criminal justice system over the past five decades. But things may be changing because of the Michael Morton case. The prosecutorial misconduct in the Morton case, and the tragedy it produced, has not only drawn the attention of the State Bar but has triggered considerable debate among criminal defense attorneys, prosecutors and lawmakers about the most effective ways to not only prevent such conduct but punish those prosecutors who engage in it. The Tribune discussed this issue:


“Defense lawyers and reform advocates argue that attorneys for the state wield an immense amount of power that goes largely unchecked even in cases of egregious misconduct. The public, they say, is becoming increasingly leery of a justice system that safeguards the death penalty, yet doesn’t hold accountable the prosecutors who argue for it. They say it just as disconcerting for people to see a system that allows killers to go free while innocent Texans languish behind bars.

“’It does shake the public’s belief and confidence in their system,’ said Bexar County Judge Sid Herle, who ordered the inquiry into allegations of misconduct in the Morton case. ‘Without jurors coming in and believing in the system, we don’t function.’


“But many prosecutors say that serious, intentional mistakes are rare. Most of the court rulings have found only errors that are not tantamount to misconduct. And many prosecutors argue that internal mechanisms in the legal and judicial system already adequately punish bad actors in rare instances of misconduct,” says Grissom.


“’There’s a lot of folks out there straining too hard to overstate the extent of the problem,’ said Rob Kepple, executive director of the Texas District and County Attorneys Association.’”  This is the same old, tired refrain heard from prosecutors over and over again each time another exoneration hits the press.


We don’t know what world Mr. Kepple is living in, but it certainly not the real one. The Tribune’s report that 25 percent of the 86 reversals involved some form of prosecutorial misconduct represents a systemic problem, not some rare inconsequential occurrence.


Let us introduce Mr. Kepple and his supporters to the real world. In 2010 the Veritas Initiative issued a report about the study of 4000 California and Federal cases in which prosecutorial misconduct was alleged. The study covered the period between 1997 and 2009. Although the appellate courts found 707 cases of “actual misconduct,” only 159 of those cases resulted in some form of relief. Not surprisingly, none of those cases were referred to the State Bar by the judges who determined the misconduct. And just this past April the Austin Chronicle carried a report about a study conducted by Dr. Emily D. West, Director of Research with the New York-based Innocence Project, which examined 91 Texas cases in which prosecutorial misconduct was confirmed during the period between 2004 and 2008. Only one of these rogue prosecutors faced disciplinary action (his license suspended for two years).


We would suggest to Mr. Kepple that this is the real world. We would also ask Mr. Kepple where were the “internal mechanisms,” within the DA’s offices, needed to punish these rogue prosecutors in the above studies.  It is absurd to accept that of the cases of prosecutorial misconduct examined in these three studies, there was just a single case that warranted disciplinary action by a State Bar. We would suggest that Mr. Kepple watch the PBS interview or read the transcript of that July 13, 2012 interview, between correspondent Tim O’Brien and former District of Columbia Assistant U.S. Attorney Joseph DiGenova who said Federal prosecutors routinely withhold evidence favorable to the defense and rarely is anything done about it.


“I’m a former United States Attorney,” DiGenova said. “I locked up a lot of people. I believe in the [U.S. Justice] Department. I believe in its mission. But the Department is in real trouble. This is serious business. These career prosecutors believe that nobody can touch them. Nobody! That’s a very dangerous thing in a free society and the [Sen. Ted]Stevens case proves it in spades.”


DiGenova was referring to the case of former U.S. Senator Ted Stevens who was convicted for receiving home improvements from an oil company and misleading Congress about it. In the wake of Stevens’ conviction and his narrow reelection defeat in 2008, sitting U.S. District Court Judge Emmit Sullivan said that during his 25 years on the bench he had never seen prosecutorial misconduct as egregious as that in the Stevens case. The infuriated judge ordered a thorough review and investigation of the Government’s handling of the case.


Brendan Sullivan, one of Stevens’ defense attorneys, told O’Brien: “When prosecutors get into the heat of battle, something takes over the competitive spirit—and they want to win at all costs. They then begin to think if this case will be very bad for me professionally because I’ll be known as the lawyer, the prosecutor, who lost a case that may be very visible.”

In 1963 the U.S. Supreme Court handed down Brady v. Maryland which announced the rule that a prosecutor under the Fifth and Fourteenth Amendments has a duty to disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment. Two decades later in United States v. Bagley decided Supreme Court elected to define the term “material.” The court narrowed the common definition to say that “material favorable evidence” is evidence that would have probably changed the outcome of the trial


The Brady/Bagley subjective “materiality” standard gave rogue prosecutors a license to lie, steal and cheat. Armed with a bent-on-conviction perspective, they believe that all they have to do is make a pre-trial determination that either a requested or unrequested piece of evidence is not “material” to the likelihood of a defendant’s innocence. Put simply, rogue prosecutors do not feel they have an ethical responsibility to disclose favorable evidence. Their only concern is whether the withheld evidence will survive a post-conviction challenge under Brady/Bagley. The ABA has harshly criticized this prosecutorial mindset and has urged the Supreme Court, to no avail, to abandon the Brady/Bagley subjective materiality standard and replace it with a pre-trial ethical duty to disclose.


Sen. Lisa Murkowski (R-AK) was also interviewed by Tim O’Brien for his Religion & Ethics program. She told O’Brien that she has introduced Senate Bill 2197,the  Fairness in Disclosure Act of 2012,  which would effectively eliminate the Brady/Bagley subjective “materiality” standard and replace it with the straightforward duty to disclose “covered information”—information, data, documents, objects, or evidence which “reasonably” appears to be favorable to the defendant. Put simply, Senate Bill 2197 would apply to all “covered information,” regardless of its admissibility in court. More significantly, the Bill would eliminate the practice permissible under Brady/Bagley, of allowing prosecutors to stall disclosure of exculpatory evidence and of delaying disclosure of witness statements until after the witness has testified on direct for the Government, via Jencks. These practices severely restrict a defense attorney’s time to examine the statements/evidence and incorporate it into an effective defense. The Bill replaces this practice with a duty to disclose immediately after arraignment and/or before a guilty plea—this duty would require the Government to disclose as soon as the favorable evidence became known to the Government regardless of whether the defendant had entered or agreed to enter a guilty plea.


While we applaud the Bill’s wide array of remedies when the Government is not forthcoming with its disclosure duties—postponement or adjournment of the proceedings, either the exclusion or limitation on testimony/material evidence, a new trial order, dismissal of indictment with or without prejudice, or any other remedy the court deems appropriate—we would have preferred a specific requirement that the identified misconduct be forwarded to the appropriate State Bar for investigation and possible sanction. Granted, the judge has the discretion under Senate Bill 2197, and even under Brady, to forward such misconduct to the State Bar, but it should be required by statute.


Why should there be a mandatory reporting of misconduct to the State Bar?


Because prosecutors who engage in misconduct know they are immune from civil lawsuit, have historically been immune from discipline within their respective agency, such as the Justice Department or local DA’s office, and have no real fear of disciplinary action by their local State Bar. A statutorily required on-the-record notice by the trial court that prosecutorial misconduct will be reported to the State Bar notices all prosecutors that their unethical conduct is being monitored. It would also pressure State Bars to become more aggressive, more transparent in their handling of prosecutorial misconduct complaints.


Unquestionably, Senate Bill 2197 is a significant first step in trying to curb the pervasive prosecutorial misconduct at both the Federal and State level. The very introduction of the Bill should inform rogue prosecutors that their misconduct has become so prevalent that it has drawn the attention of Congress. We would urge all lawmakers to endorse the Bill because the very integrity of our criminal justice system is at stake.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization