brady practical considerations - … practical considerations chapter 20 i table of contents i....

BRADY: PRACTICAL CONSIDERATIONS

Presented by: HON. BARBARA P. HERVEY

Judge, Texas Court of Criminal Appeals

Written by: HON. BARBARA P. HERVEY

and

CARSON R. GUY Research Attorney

201 West 14th Street, Room 106 Austin, Texas 78701

State Bar of Texas 40TH ANNUAL

ADVANCED CRIMINAL LAW COURSE July 21-24, 2014

Houston

CHAPTER 20

CURRICULUM VITAE OF JUDGE BARBARA P. HERVEY

Experience COURT OF CRIMINAL APPEALS, Austin, Texas, Nov. 2000 – Present Judge Chair of the Grants Committee; Chair of the Texas Criminal Justice Integrity Unit; member of the Rules Committee NAT’L FORENSIC SCIENCE COMM’N, Washington, D.C., Jan. 2014 – Present Appointed by the United States Attorney General to assess the present and future resource needs of the forensic science community, make recommendations for maximizing forensic technologies and techniques to solve crimes and protect the public, and others. See 42 U.S.C. § 14136c(b)(1)–(9). Also serves as co-chair of the Subcommittee Training on Science and Law. ST. MARY’S UNIVERSITY SCHOOL OF LAW, SAN ANTONIO, TEXAS 2004 – 2013 Professor of Texas Criminal Procedure Bexar County District Attorney’s Office, San Antonio, Texas 1984 – Nov. 2000 Appellate Section Publications, speeches, seminars, and lectures Over 250 speeches, seminars, and lectures • speaker at National Academy of Sciences Committee on Eyewitness Identification, White House Subcommittee on Forensic Science, American Bar Association, Texas Association of Crime Lab Directors • creator/producer Brady: A Simple Approach (for Police Officers) Organizations, memberships, and awards State Bar of Texas • American Legal Institute, Advisor on panel to rewrite the Model Penal Code: Sexual Assault and Related Offenses • National Forensic Science Commission • American Bar Association • Timothy Cole Advisory Panel • Ad Hoc Committee to Rewrite the Texas Code of Criminal Procedure • Distinguished Alumna, St. Mary’s University School of Law • Rosewood Gavel Award for Outstanding Judicial Service • Life Fellow at the Texas Bar Foundation Education St. Mary’s University School of Law, J.D., 1979 University of North Carolina Greensboro, Greensboro, South Carolina, B.A., 1975

Brady: Practical Considerations Chapter 20

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................................................. 1

II. THE MICHAEL MORTON ACT ..................................................................................................................... 1 A. Why the Legislature Passed the Morton Act .............................................................................................. 1 B. Open file discovery .................................................................................................................................... 1 C. Criminal discovery before the Morton Act ................................................................................................ 1 D. Aftermath of the Morton Act’s implementation ......................................................................................... 2 E. Further debate ............................................................................................................................................. 2

III. BRADY TRAINING FOR PROSECUTORS ..................................................................................................... 2 A. Applicability of the statute ......................................................................................................................... 2 B. Rule 12 of the Rules of Judicial Education ................................................................................................ 3

IV. BRADY TRAINING FOR OTHER STAKEHOLDERS .................................................................................... 3 A. Brady and law enforcement........................................................................................................................ 3 B. Brady and forensic science ......................................................................................................................... 3

V. CAN BRADY RISE TO INNOCENCE? ............................................................................................................ 4 A. Two different actual-innocence claims ...................................................................................................... 4 B. The difference between the two innocence claims applied ........................................................................ 5

VI. INEFFECTIVE ASSISTANCE OF COUNSEL ................................................................................................ 5

VII. THE IMPORTANCE OF NOTIFICATION ...................................................................................................... 5 A. Persons wrongfully imprisoned .................................................................................................................. 6 B. Compromising obligations and loss of faith in “the System”; ethical obligations of attorneys and judges6

1. Upholding Article 2.01 of the Texas Code of Criminal Procedure—a failed example ...................... 6 C. Costs to the State ........................................................................................................................................ 7

1. Nationwide ......................................................................................................................................... 7 2. In Texas .............................................................................................................................................. 7

D. Burden on judicial economy ...................................................................................................................... 8

VIII. NOTIFYING PARTIES AFTER AN IRREGULARITY HAS BEEN DISCOVERED: A WORK IN PROGRESS ....................................................................................................................................................... 8 A. Types of notification .................................................................................................................................. 9

1. Actual notice....................................................................................................................................... 9 2. Constructive notice and redundancy .................................................................................................. 9

B. Suggestions for constructive notification ................................................................................................. 10 C. Other notification projects ........................................................................................................................ 10

1. Virginia’s DNA notification project ................................................................................................. 10 2. Hair analysis project in North Carolina ............................................................................................ 10

D. Notification pretrial, during trial, and post-trial ....................................................................................... 11 1. Pretrial ethical considerations .......................................................................................................... 11 2. Further ethical (and legal) considerations for prosecutors ............................................................... 11 3. Other considerations ......................................................................................................................... 11

E. Post-representation notification ................................................................................................................ 12 1. People currently incarcerated ........................................................................................................... 12 2. People released on supervision ......................................................................................................... 12 3. People that have discharged their sentence(s) .................................................................................. 12

IX. CONCLUSION ................................................................................................................................................ 12

APPENDICES .............................................................................................................................................................. 15


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BRADY: PRACTICAL CONSIDERATIONS I. INTRODUCTION

This paper will cover four specific topics related to practical considerations and consequences that can result from Brady: (1) the Michael Morton Act; (2) required Brady training for prosecutors; (3) the relationship between actual innocence, Brady, and ineffective assistance of counsel, and (4) notification after discovery of an irregularity in a criminal defendant’s case. This, however, is not an exhaustive list.

II. THE MICHAEL MORTON ACT

An important issue regarding the practical implications and consequences of Brady is the new Michael Morton Act (“the Morton Act” or “the Act”). The Act was passed by both houses of the Legislature and signed by the Governor on May 16, 2013. See Act of May 16, 2013, 83d Leg., R.S., ch. 49, §§ 1–2, art. 39.14, 2013 Tex. Gen. Laws 106–08 (codified at TEX. CODE CRIM. PROC. art. 39.14). The Morton Act “applies to the prosecution of an offense committed on or after the effective date of [the] Act,” which is January 1, 2014. Thus, the Morton Act is applicable to any crimes alleged to have been committed on or after January 1, 2014.

A. Why the Legislature Passed the Morton Act

The enrolled Bill Analysis for the Morton Act reveals at least two of the concerns of the legislators that voted in favor of the Act. First, it recognizes Brady but also that, Brady is “vague and open to interpretation, resulting in different levels of discovery across different counties in Texas.” Senate Comm. on Crim. Just., Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (2013). Second, the Legislature intended for the Act to “save attorney resources as well as tax payer dollars by limiting discovery disputes and increasing efficient resolution of cases, all while reducing the likelihood of costly appeals and wrongful convictions.” Id. The Senate Research Center Bill Analysis also defends the “open file” discovery mandated by the Act.

B. Open file discovery

The Bill Analysis provided three reasons in support of the Morton Act system as a method to resolve the described concerns: (1) it increases “efficiency in the criminal justice system”; (2) it will “ensure[] that each defendant is guaranteed his constitutional right to a defense, regardless of where he is charged”; and, most importantly, (3) it helps prevent wrongful convictions. Id.

With respect to efficiency of the system, the Analysis claims that “[a] defendant who understands

the extent of the evidence against him can make an informed decision to plead. It also allows for a full defense, lessening the likelihood of an overturned verdict on appeal. The state saves thousands of dollars in appeals, incarceration, and potential compensation for wrongful convictions.” Id.

As to a defendant’s constitutional right to present a complete defense, the Legislature intended the Morton Act to implement a uniform statewide criminal-discovery policy to achieve this purpose. This uniformity ensures that no matter where a defendant is charged with a crime in this State, he is guaranteed the protections afforded to him by the Constitution, including a fair trial and an opportunity to meaningfully prepare a defense.

The Legislature also expressed its concerns with “[r]ecent high profile cases” in which it believed that “the likelihood that evidence relevant to the defendant’s innocence would have been revealed is increased” under the new Act. Connected to this concern is the Legislature’s fear of wrongful convictions. Although wrongful convictions are costly to everyone for many reasons, the Legislature noted that

Every defendant should have access to all the evidence relevant to his guilt or innocence, with adequate time to examine it. The [S]tate also saves billions of dollars in ensuring that the defendants sent to prison are actually guilty. Finally, public safety is threatened if an innocent person is in prison while the guilty party goes free.

Id. C. Criminal discovery before the Morton Act

Before the Morton Act implemented an “open file discovery” system, discovery in criminal cases was handled quite differently under the letter of the law, although many prosecutors’ offices already had “open file” policies. Although prosecutors (still) were required to comply with Brady, The pre-2005 Texas statute on discovery required a defendant to show “good cause” before inspection and copying of certain evidence was allowed, and even then, the trial court had the statutory authority to deny the motion notwithstanding that good cause had been shown. See TEX. CODE CRIM. PROC. art. 39.14 (2004). In 2005, the Legislature amended the Texas criminal discovery statute again, this time to eliminate the discretion of a trial court to allow a defendant to inspect and copy evidence if he could show good cause. Thus, a “may” became a “shall.” See TEX. CODE CRIM. PROC. art. 39.14 (2005). Under the Morton Act, the requirement for good cause was eliminated inspection and copying


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was permitted “as soon as practicable after receiving a timely request from the defendant.” See TEX. CODE

CRIM. PROC. art. 39.14 (2013).

D. Aftermath of the Morton Act’s implementation The enactment of the Morton Act may cause little

change in jurisdictions that were already following standards for discovery defined by the Act, but many jurisdictions will have to implement a variety of changes to accommodate the new law. Furthermore, the group of stakeholders that will be impacted by this legislation is not limited to just prosecutors and defense attorneys. This legislation also potentially impacts any participant in the criminal process from investigation to conviction and beyond, including crime laboratories, medical examiners and coroners, fire departments, police departments, and others in terms of evidence that must be produced by them. Although the Bill Analysis is framed in terms of defendants and prosecutors, it would be mistake to infer that those are the only parties that could be dramatically affected by the Act. In fact, prosecutors have “a duty to learn of any favorable evidence know to the others acting on the government’s behalf in the case . . . .” See Kyles v. Whitley, 514 U.S. 419, 437 (1995).

In that vein, many actors in the criminal justice system have been giving feedback about the implementation of the Morton Act on issues ranging from disagreements on issues of legal interpretation and the costs to implement the law to current and future expenditures related to the law. This is to be expected and is a reflection of the sweeping change in the law of criminal discovery in Texas. Examples of some groups that have been included in the discussion regarding the effects of the Morton Act include police departments, prosecutors, defense attorneys, crime laboratories, fire departments, medical examiners and coroner offices. However, the number of organizations affected directly or indirectly will surely be much larger than just those stakeholders.

E. Further debate

The Texas Tribune published an article discussing the Morton Act and stated, “Prosecutors say the state’s new Michael Morton Act, a measure designed to prevent wrongful convictions by forcing district attorneys to be more transparent in criminal cases, is driving up evidence costs.” Terri Langford, Costs and Questions as TX Implements New Discovery Law, Texas Tribune (May 29, 2014), available at https://www.texastribune.org/2014/05/29/michael-morton-act-driving-evidence-costs-das/. In addition, the Texas Tribune quoted Rob Kepple, Executive Director of TDCAA, as commenting that several

counties have indicating that the Morton Act has created a “documentation strain.” The article also quoted Administrative Chief Andrea Moseley of the Dallas County District Attorney’s Office: “I think [the Morton Act] could become financially burdensome on smaller agencies.” “I would hate to see anybody shortcut investigations to defray costs.” Id.

In addition, the Austin American Statesman published an article on June 3, 2014 discussing how implementation of the Morton Act will affect Travis County prosecutors. See Andra Lim, Michael Morton Act workload surprises Travis County prosecutors, Austin American-Statesman (June 3, 2014). Specifically, the article notes that Travis County prosecutors believe that the Morton Act has “created an ‘onerous’ workload” despite the fact that Travis County had an “open file” policy before the Morton Act was signed into law. Id.

III. BRADY TRAINING FOR PROSECUTORS

The Michael Morton Act was not the only way the Legislature has responded to Brady in a practical way. The Legislature passed, and the Governor signed into law—in the same legislative session—Section 41.111 of the Texas Government Code. This new statutory provision places a mandate on prosecuting attorneys to attend training regarding the duty to disclose exculpatory and mitigating evidence. See Act of May 27, 2013, 83d Leg., R.S., ch. 1280, § 1, sec. 41.111, 2013 Tex. Gen. Laws 3238–39 (codified at TEX. GOV’T CODE § 41.111).

A. Applicability of the statute

The statute tasks the Court of Criminal Appeals with the responsibility to promulgate a rule or rules that follow guidelines laid out in the statute in consultation with a statewide association of prosecutors. See TEX. GOV’T CODE § 41.111(b); see also Court of Criminal Appeals, Rules of Judicial Education, at 8–9, available at http://www.cca.courts.state.tx.us/jcptfund/pdf/RulesOfJudEdu112513.pdf.

The statute applies to every prosecutor representing the State in felony or misdemeanor cases other than Class C misdemeanors. See id. § 41.111(a). In addition, each covered attorney must receive the specified training within 180 days of assuming duties as a prosecuting attorney. See id. § 41.111(c)(1). The training shall consist of at least one hour of instruction on the issues and additional training as determined by the Court of Criminal Appeals. See id. § 41.111(c)(1)–(2). Finally, the statute explains that the Brady training must be “specific with respect to a prosecuting attorney’s duties . . . in a criminal case, and must be consistent with case law and the Texas Disciplinary


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Rules of Professional Conduct.” See id. § 41.111(a); see also TEX. DISCIPLINARY R. PROF’L CONDUCT 3.09.

B. Rule 12 of the Rules of Judicial Education

The Court of Criminal Appeals amended Rule 12 of the Rules of Judicial Education, which further “fleshed out” the Government Code provision. For example, the rule defines prosecuting attorney, sets a timeframe by which “prosecuting attorneys” must complete the initial required training, and how often a prosecutor must receive Brady training. See Court of Criminal Appeals, Rules of Judicial Education, at 9, available at http://www.cca.courts.state.tx.us/jcptfund/pdf/RulesOfJudEdu112513.pdf. But, perhaps most importantly, the Court of Criminal Appeals monitors the training and materials provided by trainers to ensure the quality of the Brady training remains high. Id.

IV. BRADY TRAINING FOR OTHER

STAKEHOLDERS In June 2008, the Court of Criminal Appeals

established the Texas Criminal Justice Integrity Unit (“the Unit”) due to concerns over the growing number of wrongful convictions throughout Texas. The goal in creating the Unit was to review the strengths and weaknesses in the criminal justice system in the hope that meaningful reform through education, training, and legislative proposals would increase the fairness and accuracy of our system.

Since its establishment, the Unit has contributed much toward eliminating the causes of wrongful convictions. Two initiatives include a video focusing on Brady issues for police officers and a forthcoming video focusing on Brady issues for laboratory technicians. See TCJIU, BRADY: A SIMPLE

APPROACH, available at http://www.cca.courts.state.tx.us/tcjiu/video/Brady.wmv. A. Brady and law enforcement

The Brady video for police officers was filmed in collaboration with the State Bar of Texas and was distributed to police departments throughout the State. It is also posted on the Court and State Bar of Texas websites (the latter site requires a registration of a free account). See Texas Criminal Justice Integrity Unit, Brady: A Simple Approach, available at http://www.cca.courts.state.tx.us/tcjiu/video/Brady.wmv. The video features 3 Texas police chiefs. In the first segment, Chief Corley of the Brownwood Police Department describes one of his cases that resulted in a wrongful conviction. In the second segment, Chief Art Acevedo of the City of Austin Police Department discusses the law of Brady and how it can apply to police officers. Finally, Chief McLaughlin, former

chief of police in Addison, Texas and current Executive Director of the Texas Police Chiefs Association, reviews a number of hypothetical scenarios, taken from real cases, followed by a discussion of how a police officer should handle the described scenarios in light of Brady, its progeny, and Texas caselaw.

One scenario discussed in the video was given as follows:

The sole surviving witness to a gang shoot-out claims at the scene, where there still may be gang members present, that he did not recognize the shooters. Later, alone with law enforcement agents, he quickly provides descriptions and street-names of the gunman. The defendant is arrested and charged with murder. There is no physical evidence linking him to the scene. Is the witness’s crime-scene statement Brady evidence?

Yes, this is Brady evidence. This is the situation that the Supreme Court was presented with in 2012 in Smith v. Cain, 132 S. Ct. 627 (2012). In that case, the defendant was convicted of killing five people during an armed robbery. At trial, the single witness identified the defendant as the first gunman to come through the door. No other witnesses and no physical evidence implicated the defendant in the crime. Post-conviction, the defendant obtained a detective’s notes, which contained statements by the sole witness that conflicted with his testimony identifying the defendant as the perpetrator. The notes stated that the witness could not supply a description of the perpetrators or identify anyone because he could not see the faces. The Supreme Court determined that the witness’s undisclosed statements alone sufficed to undermine the confidence in the conviction because the witness’s testimony was the only evidence linking the inmate to the crime and the witness’s undisclosed statements directly contradicted the witness’s testimony.

Please note that, because this video predates the passage of the Morton Act, the Court of Criminal Appeals, in conjunction with the State Bar of Texas, will amend the video to conform with the new discovery requirements.

B. Brady and forensic science

Recently, much more attention has been given to issues involving forensic science and its application in our courtrooms.

In May 2005, the Legislature created the Texas Forensic Science Commission (“TFSC”). The TFSC investigates allegations of negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an


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accredited laboratory, facility or entity. The Legislature also required TFSC to develop and implement a reporting system through which accredited laboratories, facilities, or entities may report professional negligence or misconduct.

Over the past two years, the TFSC and TCJIU have worked together to develop training and educational programs for attorneys, judges, scientists, and law-enforcement entities in Texas. Both organizations are committed to working collaboratively to encourage stakeholder participation and provide cost-efficient training and educational programs.

An effort is being made to ensure effective statewide notification is given after a major forensic issue is discovered with the potential to impact thousands of cases. The goal is to ensure parties receive effective notice regardless of whether they live in a large urban county or a smaller rural county with less financial and human resources available.

One example of how a laboratory irregularity was handled by the system is evidenced by the recent cases titled Ex parte Coty. 418 S.W.3d 597 (Tex. Crim. App. 2014). In this case, Coty was charged, and convicted of, possession of a controlled substance. After his conviction, it was discovered that a DPS laboratory technician that had worked on his case had mishandled evidence and falsified laboratory testing results in other cases. Based on this new evidence and the Court’s original opinion dealing with this issue—Ex parte Hobbs, Coty claimed that he deserved a new trial because his due-process rights were violated. See Ex parte Hobbs, 383 S.W.3d 780 (Tex. Crim. App. 2013).

The Court of Criminal Appeals initially granted Coty relief under its opinion in Hobbs but later granted rehearing on its own motion to reconsider the matter. On rehearing, the Court set forth a new test for determining whether a person is entitled to relief because of a laboratory technician’s misconduct in another case or cases. After explaining the new test, the Court remanded the case back to the habeas court to apply the new law.

After remand, the State and Coty agreed that the evidence handled by the laboratory technician should be presumed false because of its inherent unreliability in light of the technician’s misconduct. However, the habeas court also found that the State rebutted that presumption by showing that there was no evidence of misconduct in Coty’s case. In addition, the habeas court concluded that Coty failed to prove that the testing performed by the technician and the results of that testing, were material to his conviction because of other overwhelming evidence of Coty’s guilt. See Ex parte Coty, No. WR-79,318-02, 2014 WL 2478389 (Tex. Crim. App. June 4, 2014).

A Brady video for laboratory technicians is forthcoming, but it will follow the pattern pioneered in

the Unit’s Brady video for police officers and will also address the Morton Act. Thus, this video will, through other forensic scientists, educate forensic scientists about Brady issues, including how to identify Brady material and how Brady is applicable to their field. In addition, there will be the same practical component of scenarios at the end of the video for laboratory technicians to help apply the principles of Brady and its progeny to their field.

V. CAN BRADY RISE TO INNOCENCE?

One important consideration is the interplay between Brady, allegations of ineffective assistance of counsel, and actual innocence. Brady and actual innocence are based in the Due Process Clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV. Ineffective Assistance of Counsel finds its roots in the Sixth Amendment. U.S. CONST. amend. VI.

A. Two different actual-innocence claims

There are two types of actual innocence claims: (1) Schlup claims and (2) Herrera claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A Schlup claim is a procedural, actual-innocence claim in which the applicant’s claim “‘does not by itself provide a basis for relief,’ but is intertwined with constitutional error that renders a person’s conviction constitutionally invalid.” Ex parte Brown, 205 S.W.3d 538, 544–45 (Tex. Crim. App. 2006); see Schlup, 513 U.S. at 314. The burden of proof on an applicant in a Schlup claim is to prove that “by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.” See, e.g., TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(2) (this statutory standard codified the burden of proof on an applicant raising a Schlup claim). An applicant who prevails under Schlup may be entitled to a new trial, at least, but not usually a vacation of his conviction as a Herrera actual-innocence claim. Two examples of allegations that can accompany a Schlup claim are a Brady violation and an ineffective-assistance-of-counsel allegation. See U.S. CONST. amends. VI, XIV.

In contrast, a Herrera claim is a substantive claim in which the applicant asserts a “bare claim of innocence based solely on newly discovered evidence.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002). A Herrera-claim requires an applicant to show by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence. Ex parte Elizondo, 947 S.W.2d 202, 210 (Tex. Crim. App. 1996).


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B. The difference between the two innocence claims applied In Ex parte Miles, 359 S.W.3d 647 (Tex. Crim.

App. 2012), Richard Ray Miles was convicted of murder and attempted murder. His convictions were affirmed on appeal by the Dallas Court of Appeals. After his convictions were affirmed, he filed an application for a writ of habeas corpus alleging Brady violations that entitled him to a new trial. The Court of Criminal Appeals denied relief. However, Miles filed a subsequent application for relief in which he raised Brady claims in addition to a new claim of actual innocence. By this time, Miles had spent 15 years in confinement.

Based on Miles’ subsequent writ application, the Court of Criminal Appeals determined that Miles’ Brady claims were meritorious and that “[a]t a minimum, [Miles] [was] entitled to a new trial. See id. at 670; see Schlup, 513 U.S. at 314. This is Schlup in action because the Court held that Miles was able to prove that a constitutional violation rendered his conviction constitutionally invalid. See Schlup, 513 U.S. at 314. However, the Court continued its analysis. Miles, 359 S.W.3d at 670 (“But the evidence in this case requires us to take a step further . . . .”). The Court then reviewed Miles’ actual-innocence claim and held that the withheld Brady evidence combined with a change in testimony regarding gun-shot residue and that of an eyewitness proved by clear and convincing evidence that Miles was actually innocent of the crime.

This case illustrates the difference between Schlup relief and Herrera relief well. Unlike relief under Schlup (e.g., the Brady violation that entitled Miles to a new trial), when the Court held that Miles had proven his Herrera claim, he was entitled to relief from his conviction, not just a new trial.

VI. INEFFECTIVE ASSISTANCE OF

COUNSEL Although not a Brady issue itself, defense

attorneys should be aware that ineffective-assistance-of-counsel claims are somewhat comparable to Brady claims for prosecutors. Take the following example.

In a recent murder case in Hays County, Texas, prosecutors notified the defense that they had discovered Brady evidence. The evidence was a video of the altercation that led to the death of the victim, but it supported the defendant’s self-defense theory. See Esther Robards-Forbes, Exonerating Video Surfaces Midway Through Hays County Murder Trial, Austin American Statesman (May 23, 2014), available at http://www.mystatesman.com/news/news/local/exonerating-video-surfaces-midway-through-hays-cou/nf6gN/. The jury returned a not guilty verdict, and some jurors noted that the Brady video contributed to their votes during deliberations. Id. However, in a

statement, the prosecutor’s office noted that it had already turned over the video to the defense, but the defense disputed that claim. Id. The State asserted that it had not watched that video in question because the timestamp led prosecutors and police to believe that the video was taken at a different time than the incident in question and, as a result, was not relevant.

Setting aside the dispute over whether the video was actually turned over, assume for a moment that the video was turned over. A potential Brady hiccup or violation was avoided when the prosecution turned over the evidence supporting the self-defense theory, although the State may not have been aware that it did. But if the evidence had been turned over and would have amounted to Brady evidence, then it seems that a defense attorney risks being found ineffective, if the attorney failed to sufficiently investigate the case to discover the exculpatory evidence. See Wiggins v. Smith, 539 U.S. 510, 523 (2003); Ex parte LaHood, 401 S.W.3d 45, 50–51 (Tex. Crim. App. 2013) (citing ABA STANDARD FOR CRIMINAL JUSTICE: PROSECUTION AND DEFENSE FUNCTION 4–4.1 (3d ed.1993)).

VII. THE IMPORTANCE OF NOTIFICATION

What is notification? “The act of giving official notice or information.” WEBSTER’S NEW

INTERNATIONAL DICTIONARY 1544 (3d ed. 2002). When should notice be given? To whom shall it be given and in what manner should it be delivered? Do all of the stakeholders understand their obligation to provide notice? All of the answers to these questions are practical considerations within the criminal-justice system in light of Brady.

Since Brady v. Maryland was handed down by the United States Supreme Court, prosecutors, defense attorneys, and courts have worked diligently to define the framework laid out by the United States Supreme Court and its progeny. And over the years, “Brady law” has been developed further since the Court’s original opinion was handed down. See, e.g., Smith v. Cain, 132 S. Ct. 627 (2012) (holding that a witnesses’ statements that were not turned over to the defense—the only evidence linking the defendant to the commission of the crime—constituted Brady violations because the statements were material); Connick v. Thompson, 131 S. Ct. 1350 (2011) (holding that prior Brady violations by attorneys in the Orleans Parish District Attorney’s Office were insufficient to put district attorney on notice of need for Brady training and the district attorney's office was not liable on failure-to-train theory) Ex parte Miles, 359 S.W.3d at 647 (Brady violation led to actual innocence relief); Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011) (holding that Brady applies when the State failed to disclose the audio portion of a videotape containing


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exculpatory statements that the appellant made to police and supported his defense); Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002) (holding that Brady was violated when the prosecution failed to turn over to the defense a diary kept by a police officer while protecting the prosecution’s only eyewitness).

In addition, the same parties—courts, prosecutors, and defense attorneys—have worked together to ensure that the spirit of the Court’s holding in Brady has been, and continues to be, honored. Although not every person agrees on every issue, working together, people have been able to come together and reach a consensus on many important Brady-related issues. Further, the Texas Legislature has entered the debate by imposing Brady training on prosecutors and passing the Michael Morton Act to implement an “open file discovery” system. See IV(1)–(2) (Why the Legislature passed the Michael Morton Act and implemented an “open file discovery” system).

Although the importance of cases like Brady are almost universally recognized in American law, the holdings of the United States Supreme Court in Brady and subsequent cases, as well as holdings of the Court of Criminal Appeals, have raised issues that are still being resolved daily. See, e.g., McGraw v. Roden, 743 F.3d 1 (1st Cir. 2014); United States v. Walker, No. 13-2145, 2014 WL 1193373 (7th Cir. Mar. 25, 2014); United States v. Horton, Nos. 12-3627, 12-3628, 2014 WL 1140196 (8th Cir. Mar. 24, 2014); United States v. Reese, No. 13-2037, 2014 WL 1042781 (10th Cir. Mar. 19, 2014); Michigan v. Chenault, Nos. 146523, 146524, 2014 WL 1356798 (Mich. Apr. 4, 2014); Massachusetts v. Scott, 5 N.E.3d 530 (Mass. 2014); West Virginia, 755 S.E.2d 1 (W. Va. 2014); Pennsylvania v. Williams, No. 627 CAP, 2014 WL 627133 (Pa. Feb. 19, 2014).

Two of these important issues are (1) attempting to prevent the untimely discovery of Brady evidence (i.e., all evidence is turned over when it is supposed to be) and (2) notifying necessary people when an irregularity such as Brady material comes to light, regardless of how the material is discovered.

The first goal is aspirational. The criminal justice system was conceived of, and is operated by, humans and, thus, cannot be perfect. However, the discovery of Brady evidence, especially untimely discovery, has many profound and negative implications: (1) persons being wrongfully imprisoned; (2) possible compromising of ethical and legal obligations by attorneys, judges, and other stakeholders; (3) belief by the public that the criminal justice system lacks integrity due to dishonesty on the part of stakeholders and lack of accountability of people that engage in malfeasance; (4) the State being forced to retry a criminal defendant and incur associated costs (e.g.,

appeals, postconviction proceedings, compensation to exonerees, etc.); and (5) the burden on judicial economy to hear these appeals and postconviction motions.

A. Persons wrongfully imprisoned

Preventing wrongful imprisonment should be a top priority because innocent people should not be in prison and, if they are, then guilty people are left to walk the streets and possibly commit other crimes. One example for illustrative purposes is the National Registry of Exonerations (“the Registry”), which is a joint project operated by the University of Michigan School of Law and the Northwestern School of Law’s Center on Wrongful Convictions. The Registry claims to have verified 1,351 exonerations. See The National Registry of Exonerations, available at http://www.law.umich.edu/special/exoneration/Pages/glossary.aspx. While the accuracy of this number may be disputed by other sources, there is no doubt that the actual number is disturbing. The Registry defines exonerees as, “A person who was convicted of a crime and later officially declared innocent of that crime, or relieved of all legal consequences of the conviction because evidence of innocence that was not presented at trial required reconsideration of the case.” Id.

B. Compromising obligations and loss of faith

in “the System”; ethical obligations of attorneys and judges Another important consideration is the ethical

obligations of attorneys and judges. Article 2.01 of the Texas Code of Criminal Procedure states in part,

It shall be the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.

1. Upholding Article 2.01 of the Texas Code of

Criminal Procedure—a failed example A former Judge, and former Williamson County

District Attorney, Ken Anderson was found in contempt of court for violating a court order to turn over exculpatory evidence in the earlier murder case that he prosecuted. As a result of the case against him, Anderson agreed to serve 10 days in the county jail and relinquish his law license. Anderson’s failure to turn over the evidence in question resulted in an innocent man—Michael Morton—being wrongfully incarcerated for 25 years. Chuck Lindell, Ken Anderson to Serve 10 Days in Jail, AUSTIN AMERICAN

STATESMAN, available at http://www.statesman.com/news/news/ken-anderson-to-serve-10-days-in-jail/nbmsH/.


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Although this is a high-profile example of the failure of one stakeholder to uphold his duty to seek justice, it must be noted that the vast majority of stakeholders in the criminal justice system work diligently to comply with the law and to achieve justice. However, even the most well-intentioned person or organization can make a mistake if that person does not familiarize themselves with the requirements of Brady, ineffective-assistance-of-counsel issues, actual-innocence issues, and the interplay between these issues.

Additionally, the Texas Code of Judicial Conduct governs the judicial and personal conduct of those holding office to ensure that these principles of fair and impartial justice are carried out. See generally TEX. CODE JUD. CONDUCT, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. B.

C. Costs to the State 1. Nationwide

According to the Innocence Project, the District of Columbia and 29 states have statutes for compensating wrongfully-imprisoned people: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. See State Compensation Laws, Innocence Project, available at http://www.innocenceproject.org/news/LawView1.php (website includes the statutes for each state and the District of Columbia). The statutes define compensation in a variety of ways (e.g., money for each day of wrongful imprisonment, tuition for education, lost wages, and attorney’s fees, among others). However, some of the laws include statutes of limitations and other procedural barriers. See, e.g., OHIO REV. CODE ANN. §§ 2305.02, 2743.48 (barring compensation if a defendant pled guilty or files for compensation under the statute within two years of exoneration).

2. In Texas

In Texas, a person is entitled to compensation of $80,000 for each year wrongfully imprisoned; compensation for child support payments owed by the person wrongfully imprisoned, including interest accrued on that amount during the term of imprisonment but were not paid; if the person was

released on parole or required to register as a sex offender, $25,000 for each year spent on parole or as a registered sex offender; annuity payments; and tuition for up to 120 credit hours. See TEX. CIV. PRAC. &

REM. CODE Chp. 103 (Compensation to Persons Wrongfully Imprisoned).

A person is entitled to compensation under the statute if,

(1) the person has served in whole or in part a

sentence in prison under the laws of this state; and (2) the person:

(A) has received a full pardon on the basis of

innocence for the crime for which the person was sentenced;

(B) has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced; or

(C) has been granted relief in accordance with a writ of habeas corpus and:

(i) the state district court in which the

charge against the person was pending has entered an order dismissing the charge; and

(ii) the district court’s dismissal order is based on a motion to dismiss in which the state’s attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state’s attorney states that the state’s attorney believes that the defendant is actually innocent of the crime for which the person was sentenced.

Id. § 103.001.

Although the chief concerns are, of course, that

innocent people are not convicted of crimes they have not committed, and that people that are wrongfully convicted are compensated, the practical costs to the State, and the taxpayers, cannot be ignored either. For example, one apparently unintended consequence is the broadness of the statutory provision defining who is entitled to compensation. Because of the broadness of the provision, people that pled guilty to the crime for which they were charged but were later found not to be guilty of the charged offense may feel entitled to apply for compensation even though they may actually be guilty of an attempted crime or lesser-included offense. Id. This may seem like it does not come up often, but imagine this scenario:


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A cocaine user goes to his drug dealer to buy cocaine, which he has successfully done many times before. This time seems no different to the user than any other. But what the user does not know is that his drug dealer is experiencing rough times and is now selling his clients baking soda, although he holds it out as cocaine. The user also does not know that this time, his drug dealer’s house is under surveillance by police as a known cocaine dealer (now baking soda dealer).

The drug user gets arrested by the police for possession of a controlled substance. He knows that he meant to buy cocaine and had no reason to think that what he bought did not contain cocaine, but the laboratory results have not been returned because of a backlog. So the user (now defendant) pleads guilty pursuant to a plea-bargain agreement after spending 3 months in jail. But when the laboratory results come back, they reveal he actually purchased baking soda.

Does the compensation statute apply in such a scenario? Should the compensation statute apply in such a scenario?

D. Burden on judicial economy

The John Thompson litigation from Louisiana serves as an example of burdensome costs to the system resulting from wrongful convictions. And please note that the court cases cited do not represent all of the litigation associated with this case.

Thompson was found guilty of attempted armed robbery and, subsequently, murder. See Louisiana v. Thompson, 495 So.2d 328 (La. App. 4 Cir. 1986) (affirming Thompson’s conviction for attempted armed robbery). For the murder, and in light of the attempted armed robbery conviction, Thompson was sentenced to death. See Louisiana v. Thompson, 516 So.2d 349 (La. 1987) (affirming Thompson’s conviction of first-degree murder and sentence of death). He petitioned for a writ of certiorari to the United States Supreme Court to review his death sentence, which the Court denied. Thompson v. Louisiana, 488 U.S. 871 (1988).

Thompson then filed a petition for a stay of execution in early 1989, which the convicting court denied in November of 1992. See Thompson v. Cane, 1997 U.S. Dist. LEXIS 2219. Thompson sought review of the trial court’s denial of his application for postconviction relief. In a plurality opinion, the Louisiana Supreme Court remand Thompson’s capital case to determine whether a witness was induced to testify in violation of Thompson’s right to due process. See id.; State ex rel. Thompson v. Whitley, 642 So.2d 1303 (La. 1994) (plurality op.) (per curiam). On remand, the trial court denied Thompson’s postconviction application for relief on September 19, 1995, and the Louisiana Supreme Court affirmed the trial court’s denial on April 25, 1996.

Thompson’s execution date was set after his state, postconviction application was denied, but the Eastern District Court of Louisiana stayed that execution date to review Thompson’s federal, postconviction application. On February 24, 1997, the federal district court also denied Thompson’s application for postconviction relief, which was also subsequently affirmed by the Fifth Circuit. See Thompson, 1197 U.S. Dist. LEXIS 2219, aff’d, 161 F.3d 802 (5th Cir. 1998).

On June 29, 1999, the convicting court granted Thompson a new trial on the attempted-armed-robbery case in light of numerous Brady violations and other due process violations that “conclusively proved that [Thompson] was not the perpetrator of that offense.” Louisiana v. Thompson, 825 So.2d 552, 552 (La. App. 4 Cir. 2002). The State of Louisiana did not retry Thompson on the attempted-armed-robbery charge. Thompson then filed a new application for postconviction relief with respect to his conviction for murder in the trial court. On May 26, 2001, the convicting court vacated Thompson’s death sentence and imposed a sentence of life imprisonment, but otherwise denied relief. Thompson sought review of the trial court’s denial of his postconviction application, and the Fourth Circuit Louisiana Court of Appeals reversed the trial court and granted Thompson a new trial. Id. at 557–58. After Thompson’s new trial, he was found not guilty on May 8, 2003.

In addition to the criminal litigation, in 2008, Thompson won a $14 million civil-suit judgment against the Orleans Parish District Attorney’s Office. That litigation was also appealed culminating in almost 10 different opinions, including one opinion by the United States Supreme Court reversing the $14 million civil-suit judgment. See, e.g., Thompson v. Connick, 2005 WL 3541035 (E.D. La. 2005); Thompson v. Connick, 2006 WL 2913346 (E.D. La. Oct. 10, 2006); Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009), remanded by, 131 S. Ct. 1350 (2011).

But what is the cost of justice? For the wrongfully accused none of us can possibly measure that cost; to the victims what emotional costs must they re-endure; and to the system in general, the costs can be astronomical. All we can hope for is continual improvement of the process.

VIII. NOTIFYING PARTIES AFTER AN

IRREGULARITY HAS BEEN DISCOVERED: A WORK IN PROGRESS Once again, we stress the importance of

telegraphing information regarding problems in the criminal justice system to achieve maximum awareness. The Court of Criminal Appeals, the Unit, the TFSC, and other interested stakeholders are in the process of developing a streamlined and


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consistent system of notification. Possible participants also include: TDCAA, TCDLA, The Texas Center for the Judiciary, law enforcement, the Texas Crime Laboratory Directors Association, and parole and probation officers, among others.

A. Types of notification

Notification to a defendant and other interested parties can be separated in to two categories: (1) actual notification (“actual notice”) and (2) notification reasonably calculated to reach the party under all circumstances (“constructive notice”).

1. Actual notice

Personal delivery of written notice to every defendant by someone who can answer questions concerning an irregularity would be ideal, but nigh to impossible. Actual notice can also be achieved by persons who may merely “hand off” a simple, direct letter explaining the irregularity. The latter method, while not as useful as the former, is still effective because it can make a defendant aware of an irregularity and give contact information for the defendant to obtain assistance in his case. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“Personal service of written notice within the jurisdiction is the classic form of notice always adequate . . . .”); BLACK’S LAW DICTIONARY 1227 (10th ed. 2014) (defining actual notice as “[n]otice given directly to, or received personally by, a [person or entity]”).

a. Other considerations

The two most obvious additional considerations to be taken into account include (1) who delivers the notice and (2) the content of the notice. Those delivering the notification to a defendant about an irregularity will impact how the defendant perceives the irregularity (i.e., whether the irregularity is worth investigating). For example, a prosecutor may not be the ideal person to deliver a notification directly to a defendant because a defendant may not choose to associate with the prosecutor’s office for a variety of reasons, including fear, the passage of time since conviction, and others. An example of a different approach is the DNA project in Virginia. In the case of Virginia’s DNA testing and notification project, pro bono attorneys are charged with delivering actual notice to affected defendants.

Another major question that remains to be solved is how to fashion notifications, including (1) notifications from agencies or organizations to the “prosecution team” and (2) notifications from the “prosecution team” or another agency or organization to a defendant and/or his counsel.

To whom the notice is directed will largely control the content of the notice because different entities and people will require different types of information. For example, a prosecutor’s office will want to be notified when a conviction stemming from a prosecution from their office is under review. This would allow them to examine the case and reach their own decision on how to move forward with the information because records may need to be retrieved and additional research about the irregularity may be necessary.

A notice to a defense attorney should contain identifying case data so the attorney can find any information or records they still have regarding the case or cases. Further, defendants do not necessarily have a sufficient grasp of legal concepts. Thus, notification to them must be a simple and straightforward, and should not only inform them of a possible irregularity, but give them contact information regarding persons who can help them.

2. Constructive notice and redundancy

However, when it is not possible to notify a defendant through personal service, alternative means must be used to attempt to reach the defendant. This constructive notice standard should be reasonably calculated to reach the defendant. Implementing the standard, however, understates the enormity of the task. See Mullane, 339 U.S. at 314–15. In Mullane, the United States Supreme Court stated that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. (emphasis added). Obstacles to notification include death, discharge of their sentence, or an inability to locate them for a variety of reasons. In other words, this class of persons (i.e., that require constructive notice) create unique problems with respect to notification.

The primary problem with constructive notice is that it assumes that the defendant cannot be personally notified. This assumption may be warranted, but once delivery of actual notice has been abandoned in favor of constructive notice, the “notifier” must rely on redundancy to ensure the proper defendant receives the required written notice. The “redundancy” approach must be reasonable in its scope, while increasing the chances that the defendant will receive the notice.

This point is reinforced by the joint white paper on defendant notification that was published by the Texas Forensic Science Commission (“TFSC”) and the Texas Criminal Justice Integrity Unit (TCJIU”) on November 27, 2013. See TFSC AND TCJIU, DEFENDANT NOTIFICATION AFTER MAJOR FORENSIC


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NONCONFORMANCE, at 3–5, 7 (Nov. 27, 2013) [hereinafter called DEFENDANT NOTIFICATION AFTER

FORENSIC NONCONFORMANCE]. Redundancy is sometimes provided for by statute.

See, e.g., Mennonite Bd. of Mo. v. Adams, 462 U.S. 791 (1983). In this case, the United States Supreme Court explained the notice requirements under Indiana state law for the sale of real property when property taxes had been delinquent at least 15 months. Id. at 792–93. “Prior to the sale, the county auditor must post notice in the county courthouse and publish notice once each week for three consecutive weeks. The owner of the property is entitled to notice by certified mail to his last known address.” Id. at 793 (footnote omitted) (internal citations omitted) (citing IND. CODE §§ 6-1.1-24-3 (1985)); see TEX. TAX. CODE § 34.01(c), (e)–(f) (requiring that notice for the sale of real property with delinquent property taxes be in accordance with Rule 21a of the Texas Rules of Civil Procedure); TEX. R. CIV. P. 21a. In brief, Rule 21a requires that delivery of service be “by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record” electronically or “in person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” TEX. R. CIV. P. 21a.

However, these examples are dated and fail to recognize modern methods of communication.

B. Suggestions for constructive notification

The need for notification could include contacting a single defendant, or a class of defendants, or other parties such as prosecutors, courts, clerks, current or last known defense attorneys, etc. Also, in the case of a larger class of defendants, massive communication may be necessary. The focus of constructive notification is to reach the correct parties so that they can decide if they wish to pursue possible avenues for relief in the face of an irregularity. A cautionary note, however, would be to avoid mass confusion or a flood of filings by people seeking habeas relief when the questioned issues are not relevant to their case or cases (e.g., posting on prison walls).

Opponents have argued that mass notices will open the “flood gates” of litigation, encouraging every inmate and convicted person to file an application for a writ of habeas corpus to seek relief. First, many inmates and convicted persons cannot afford to hire a postconviction attorney to file an application, if that person is entitled to relief at all. Second, this assumes that all inmates will be affected or be notified in the first place. Third, a person’s right to due process of law should trump judicial economy.

One suggested way to notify a class of defendants regarding a problem affecting more than one case (e.g., major forensic nonconformance discovered years later)

could be notifying the Associated Press, Reuters, or other major media outlets with the hope other news agencies would carry the information and that various Internet services would follow suit. Much like vehicle recalls, these various news mediums can help to effectively get essential notices out to people that are unable to be otherwise located for a variety of reasons.

Regardless of the obstacles, federal and state criminal justice systems must rise to the occasion because a defendant’s “need to know” is essential to due process.

C. Other notification projects 1. Virginia’s DNA notification project

One example of a notification project that has already begun with the aspirational goal of delivering actual notice to defendants when sufficient DNA evidence remains from an old case and that evidence is capable of being tested is Virginia. That project began in December 2005, when former Governor Mark Werner “ordered a full review and DNA testing of any biological evidence remaining in [the Virginia Department of Forensic Science’s] archived files from 1973-1988 . . . .” VIRGINIA STATE CRIME

COMMISSION, 2010 ANNUAL REPORT, at 3, available at http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD1372011/$file/RD137.pdf. Once Virginia officials identified case files with biological evidence still suitable for DNA testing, “the relevant parties are informed that such evidence exists and is available for retesting.” Id. And one component of Virginia’s notification project is the delivery of face-to-face notifications to defendants in applicable cases.

The Virginia Crime Commission (“the Commission”) began its project in December 2005 and the project is still underway. However, in the Commission’s 2010 Annual Report, it “anticipated that [the] project [would] continue, at a minimum, through June of 2012.” Id. As of the writing of this paper, April 22, 2014, the project continues.

2. Hair analysis project in North Carolina

In 2013, the FBI announced that it would be reviewing cases in which microscopic-hair-comparison evidence was relied on at a defendant’s federal trial. The FBI, in agreement with the DOJ, NACDL, and Innocence Project Network initially reviewed thousands of criminal cases. See Norman L. Reimer, The Hair Microscopy Review Project: An Historic Breakthrough For Law Enforcement and A Daunting Challenge For the Defense Bar, THE CHAMPION, July 2013, available at https://www.nacdl.org/champion.aspx?id=29488; see also Press Release, Innocence Project, Innocence Project and NACDL Announce Historic Partnership


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with the FBI and Department of Justice on Microscopic Hair Analysis Cases (July 18, 2013), available at http://www.innocenceproject.org/Content/Innocence_Project_and_NACDL_Announce_Historic_Partnership_with_the_FBI_and_Department_of_Justice_on_Microscopic_Hair_Analysis_Cases.php. The review will examine types of error, review processes and protocols, and solutions to flawed examinations.

Based on this announcement, the North Carolina Center on Actual Innocence (“the Center”) undertook took a statewide project to review state trials to determine if faulty hair-comparison science was used to convict defendants in the North Carolina criminal-justice system. Crime laboratories in North Carolina turned over records for every case in which that microscopic-hair analysis was performed, which was approximately 3,000 cases. Once the Center identified affected cases, it began its notification process by sending questionnaires to the affected people to determine if those people would like to pursue possible avenues of relief based on the irregularity in their case. This project is also still in progress.

D. Notification pretrial, during trial, and post-

trial A Brady notification can be required: (1) pretrial,

(2) during trial, or (3) post-trial. See TEX. CODE CRIM. PROC. art. 39.14(h).

1. Pretrial ethical considerations

First, assuming evidence arises pretrial, does an attorney represent the defendant? Probably so, and if so, the defendant’s attorney should be notified about the Brady issue, unless the prosecutor has the consent of the defendant’s counsel to speak with the defendant. If, on the other hand, a defendant has no representation, then Rule 4.03 of the Texas Disciplinary of Professional Conduct would control. TEX. DISCIPLINARY R. PROF’L CONDUCT 4.03, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A (West 2005) (Tex. State Bar R. art. X, § 9) (“Dealing with Unrepresented Person”); see In re News Am. Publ’g, Inc., 974 S.W.2d 97, 103 (Tex. App.—San Antonio 1998, no pet.). Rule 4.03 provides in relevant part that

a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

TEX. DISCIPLINARY R. PROF’L CONDUCT 4.03(a). This no-contact rule remains true until counsel no longer represents the defendant. In re News Am. Publ’g, Inc., 974 S.W.2d at 103. 2. Further ethical (and legal) considerations for

prosecutors The comment to Rule 4.03 of the Texas

Disciplinary Rules of Professional Conduct (“the Disciplinary Rules”) refers readers to Rule 3.09 governing prosecutors in criminal cases in Texas. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.09. This rule charges prosecutors in criminal cases with special duties and, in particular to:

(d) 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; and

Id. 3. Other considerations

What of other stakeholders and their respective responsibilities? Scientists, police, and other participants in the criminal justice system have a need to receive and disseminate notice. The Court of Criminal Appeals and the Unit, as previously stated, have recorded a video focused on Brady v. Maryland specifically for law enforcement and is producing another video for laboratory employees. The video is posted online for free viewing at the Texas Criminal Justice Integrity Unit website and on the TexasBarCLE website. In light of the passage of the Morton Act, the video will be updated to include training on the change in law.

Many organizations have disclosure policies and most consist of notifying the “prosecution team” in some form or fashion. For example, the Texas Department of Public Safety (“DPS”) has had a written disclosure policy since early 2013 for when there is a scientific irregularity in a case and notification becomes necessary. See DPS, LABORATORY

OPERATIONS GUIDE, QUALITY ACTION PLAN (Mar. 11, 2013), at 1–3. In addition, the suggested protocol of the Texas Forensic Science Commission (“TFSC”) and the TCJIU with respect to forensic nonconformances calls for disclosure the issue to the “TFSC, DPS, and the national accrediting body responsible for the laboratories accreditation,” as well as the relevant law


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enforcement agency and prosecutors. See DEFENDANT

NOTIFICATION AFTER FORENSIC NONCONFORMANCE, at 7.

Although these types of policies can, and have, helped achieve compliance with the spirit of Brady, there remains a need to address defendant notification of an irregularity in a comprehensive, statewide manner. See TFSC, REPORT OF THE TFSC: TEX. DPS

HOUSTON REGIONAL CRIME LABORATORY SELF-DISCLOSURE, at 6–9 (April 5, 2013). In the TFSC’s report on the crime laboratory issue involving Jonathan Salvador, the Houston regional crime laboratory self-disclosed to DPS that Salvador, a chemist at the laboratory, had engaged in malfeasance by “dry labbing.” DPS subsequently notified the Texas Rangers and the DPS Office of the Inspector General. DPS management later notified the TFSC, ACLD-LAB, prosecutors with affected cases, and submitting law-enforcement agencies. Id. at 9. Defendant notification has been on-going and writs of habeas corpus continue to be filed and addressed by the Court of Criminal Appeals. See, e.g., Coty, 418 S.W.3d at 597.

E. Post-representation notification

After a defendant’s trial is over, and his appeals and postconviction applications for relief are exhausted, many defendants no longer have representation because most are indigent and have no means of hiring an attorney. Fundamental questions are raised, however, by the need to provide notification about an irregularity to defendants, the availability of lawyers to assist them, and the need to direct them to those who can help (e.g, public defenders, innocence projects, and other organizations. The primary classes of convicted people include: (1) people sentenced to death, (2) people currently incarcerated; (3) people released on supervision; and (4) people that have discharged their sentence(s). In fact, the Court of Criminal Appeals handles notification to defendants regarding attorneys available to assist when claims of innocence are received at the Court through inmate mail by sending a letter giving inmates the attorneys contact information.

1. People currently incarcerated

People that are incarcerated are those with the most immediate need for notification. Based on the cooperative Texas spirit, the State Counsel for Offenders (“SCFO”), which is part of the Texas Department of Criminal Justice (“TDCJ”), has offered to provide constructive notice, if not actual notice, to indigent inmate defendants. The goal of SCFO is “to help indigent offenders with legal problems by providing assistance and attorneys who are independent of the confinement divisions of the TDCJ.” State Counsel for Offenders, Mission

Statement, available at http://www.tdcj.state.tx.us/divisions/scfo/.

2. People released on supervision

Similar to people that are currently incarcerated, existing infrastructure can be used to facilitate notification to defendants released into society under a form of supervision, including parole or community supervision.

Parole officers, like employees of SFCO, are employees of TDCJ. As employees of TDCJ and having the assigned task of supervising the defendant in question, parole officers are well situated to contact defendants under their supervision. Parole officers should have regular contact with their clients and know pertinent information such as home addresses and phone numbers. Information held by the court and its clerks can also be of assistance.

Probation officers, like parole officers, can use many of the same resources to reach people that should be notified of an irregularity.

3. People that have discharged their sentence(s)

The most difficult class of defendants to contact may be persons who have discharged their sentences. Notice to this class of people will be more difficult with the passage of time. Former defendants may have moved to unknown parts, lost contact with family or other people familiar with their contact information, and their former attorneys may have lost or destroyed any files or valid contact information, depending on the age of the case.

In such cases, a “wider net” must be cast to reach this segment of affected individuals. And here redundancy is important. Court records, driver’s license information, and media assistance may become necessary. And in the event that an interested defendant inquires about a “broadcasted” problem in the system, and the possibility of it having some impact on his case, other measures have already begun to direct them to attorneys or private organizations, such as innocence projects, throughout Texas that may be able to help them. Newspaper announcements, court house postings, current defense attorneys involved in the case, national news media outlets (when the irregularity affects a large number of cases), electronic news media outlets, government agency press postings, and the use of government resources to identify relevant defendants can all help to locate a defendant and ultimately achieve notification.

IX. CONCLUSION

Although much work has been done since the United States Supreme Court handed down Brady fifty-one years ago, we continue to move forward. Ideally, all stakeholders will always strive for the


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timely delivery of Brady evidence and perfect notification. But we must also recognize that, while cases like Brady and its progeny present issues of their own, it is paramount to know the relative responsibilities of all the “players” in the criminal justice system. Forensic science will continue to be an increasingly important part of criminal cases, which will in turn increase the burden to “get it right.” “Attributing fault to any one particular group or faction will not accomplish the ultimate goals—increased research and development, better reporting, and better understanding of each player’s role in the system, science, and the rules of evidence. These are some of the practical considerations beyond “Brady.”


© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

APPENDIX A

Civil Practice and Remedies Code Title 5. Governmental Liability

Chapter 103. Compensation to Persons Wrongfully Imprisoned Subchapter A. Eligibility; Notice of Eligibility

§ 103.001. Claimants Entitled to Compensation and Health Benefits Coverage

(a) A person is entitled to compensation if:

(1) the person has served in whole or in part a sentence in prison under the laws of this state; and

(2) the person:

(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced;

(B) has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced; or

(C) has been granted relief in accordance with a writ of habeas corpus and:

(i) the state district court in which the charge against the person was pending has entered an order dismissing the charge; and

(ii) the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that the state's attorney believes that the defendant is actually innocent of the crime for which the person was sentenced.

(b) A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which the person was also serving a concurrent sentence for another crime to which Subsection (a) does not apply.

(c) If a deceased person would be entitled to compensation under Subsection (a)(2) if living, including a person who received a posthumous pardon, the person's heirs, legal representatives, and estate are entitled to lump-sum compensation under Section 103.052.

(d) Subject to this section, a person entitled to compensation under Subsection (a) is also eligible to obtain group health benefit plan coverage through the Texas Department of Criminal Justice as if the person were an employee of the department. This subsection does not entitle the person's spouse or other dependent or family member to group health benefit plan coverage. Coverage may be obtained under this subsection for a period of time equal to the total period the claimant served for the crime for which the claimant was wrongfully imprisoned, including any period during which the claimant was released on parole or to mandatory supervision or required to register under Chapter 62, Code of Criminal Procedure. A person who elects to obtain coverage under this subsection shall pay a monthly contribution equal to the total amount of the monthly contributions for that coverage for an employee of the department.

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(e) Notwithstanding Section 103.053(c), annuity payments may be reduced by an amount necessary to make the payments required by Subsection (d), and that amount shall be transferred to an appropriate account as provided by the comptroller by rule to fund that coverage.

§ 103.002. Notice to Wrongfully Imprisoned Person

(a) In this section:

(1) “Department” means the Texas Department of Criminal Justice.

(2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.

(3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.091, Government Code, as added by Chapter 1389 (S.B. 1847), Acts of the 81st Legislature, Regular Session, 2009.

(b) The department shall provide to each wrongfully imprisoned person information, both orally and in writing, that includes:

(1) guidance on how to obtain compensation under this chapter; and

(2) a list of and contact information for nonprofit advocacy groups, identified by the department, that assist wrongfully imprisoned persons in filing claims for compensation under this chapter.

(c) The department must provide the information required under Subsection (b):

(1) at the time of the release of the wrongfully imprisoned person from a penal institution; or

(2) as soon as practicable after the department has reason to believe that the person is entitled to compensation under Section 103.001(a).

§ 103.003. Limitation on Time to File

A person seeking compensation under this chapter must file an application with the comptroller for compensation under Subchapter B not later than the third anniversary of the date:

(1) the person on whose imprisonment the claim is based received a pardon as provided by Section 103.001(a)(2)(A);

(2) the person's application for a writ of habeas corpus was granted as provided by Section 103.001(a)(2)(B); or

(3) an order of dismissal described by Section 103.001(a)(2)(C) was signed.

§ 103.051. Application Procedure

(a) To apply for compensation under this subchapter, the claimant must file with the comptroller's judiciary section:

(1) an application for compensation provided for that purpose by the comptroller;

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(2) a verified copy of the pardon, court order, motion to dismiss, and affidavit, as applicable, justifying the application for compensation;

(3) a statement provided by the Texas Department of Criminal Justice and any county or municipality that incarcerated the person on whose imprisonment the claim is based in connection with the relevant sentence verifying the length of incarceration;

(4) if applicable, a statement from the Department of Public Safety verifying registration as a sex offender and length of registration;

(5) if applicable, a statement from the Texas Department of Criminal Justice verifying the length of time spent on parole; and

(6) if the claimant is applying for compensation under Section 103.052(a)(2), a certified copy of each child support order under which child support payments became due during the time the claimant served in prison and copies of the official child support payment records described by Section 234.009, Family Code, for that period.

(b) The comptroller shall determine:

(1) the eligibility of the claimant; and

(2) the amount of compensation owed to an eligible claimant.

(b-1) In determining the eligibility of a claimant, the comptroller shall consider only the verified copies of documents filed under Subsection (a)(2). If the filed documents do not clearly indicate on their face that the person is entitled to compensation under Section 103.001(a)(2), the comptroller shall deny the claim. The comptroller's duty to determine the eligibility of a claimant under this section is purely ministerial.

(c) The comptroller must make a determination of eligibility and the amount owed as required by Subsection (b) not later than the 45th day after the date the application is received.

(d) If the comptroller denies the claim, the comptroller must state the reason for the denial. Not later than the 30th day after the date the denial is received, the claimant must submit an application to cure any problem identified. Not later than the 45th day after the date an application is received under this subsection, the comptroller shall determine the claimant's eligibility and the amount owed.

(e) If the comptroller denies a claim after the claimant submits an application under Subsection (d), the claimant may bring an action for mandamus relief.

(f) To apply for coverage through the Texas Department of Criminal Justice under Section 103.001(d), the claimant must file with the department:

(1) an application for coverage provided for that purpose by the department; and

(2) a statement by the comptroller that the comptroller has determined the claimant to be eligible for compensation under this subchapter.

§ 103.052. Lump-Sum Compensation

(a) A person who meets the requirements of Section 103.001 is entitled to compensation in an amount equal to:

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(1) $80,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years; and

(2) compensation for child support payments owed by the person on whose imprisonment the claim is based that became due and interest on child support arrearages that accrued during the time served in prison but were not paid.

(b) A person who, after serving a sentence in a Texas prison for which the person is entitled to compensation under Subsection (a)(1), was released on parole or required to register as a sex offender under Chapter 62, Code of Criminal Procedure, is entitled to compensation in an amount equal to $25,000 multiplied by the number of years served either on parole or as a registered sex offender, expressed as a fraction to reflect partial years.

(c) The amount of compensation under Subsection (a)(2) to which a person is entitled shall be paid on the person's behalf in a lump-sum payment to the state disbursement unit, as defined by Section 101.0302, Family Code, for distribution to the obligee under the child support order.

§ 103.053. Annuity Compensation

(a) A person entitled to compensation under Section 103.001(a) is entitled to annuity payments, based on a present value sum equal to the amount to which the person is entitled under Sections 103.052(a)(1) and (b).

(b) The annuity payments under this section are payable in equal monthly installments for the life of the claimant and must be based on a five percent per annum interest rate and other actuarial factors within the discretion of the comptroller.

(c) The annuity payments may not be accelerated, deferred, increased, or decreased. The applicant may not sell, mortgage or otherwise encumber, or anticipate the payments, wholly or partly, by assignment or otherwise.

§ 103.054. Payment of Certain Tuition and Fees

If requested by the claimant before the seventh anniversary of the relevant date described by Section 103.003, tuition for up to 120 credit hours, including tuition charged under Section 54.0513, Education Code, or any other law granting an educational institution discretion to set the tuition rate, and any mandatory fees associated with attendance at the institution, charged by a career center or public institution of higher education shall be paid on behalf of the claimant.

§ 103.101. Fees Limited; Prerequisites to Fee Agreement

(a) A person, including an attorney, may not charge or collect a fee for preparing, filing, or curing a claimant's application under Section 103.051 unless the fee is based on a reasonable hourly rate.

(b) An attorney may enter into a fee agreement with a claimant for services related to an application under Section 103.051 only after the attorney has disclosed in writing to the claimant the hourly rate that will be charged for the services.

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(c) An attorney may not collect a fee for preparing, filing, or curing a claimant's application under Section 103.051 before a final determination is made by the comptroller that the claimant is eligible or ineligible for compensation under this chapter.

§ 103.102. Submission of Fee Report

(a) Together with an application for compensation under this chapter or not later than the 14th day after the date the application or cured application is filed, a person seeking payment for preparing, filing, or curing the application must file a fee report with the comptroller's judiciary section.

(b) A fee report under this section must include:

(1) the total dollar amount sought for fees;

(2) the number of hours the person worked preparing, filing, or curing the application; and

(3) the name of the applicant.

(c) A fee report under this section is public information subject to Chapter 552, Government Code.

§ 103.151. Administrative Payment of Compensation

(a) The comptroller shall make the compensation due a claimant under Section 103.052 and the lump-sum payment, if any, to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, under Subchapter B, to the extent that funds are available and appropriated for that purpose, not later than the 30th day after the date the comptroller grants the application. A claim for lump-sum compensation payable under Section 103.052(a) or (b) shall survive the death of the claimant in favor of the heirs, legal representatives, and estate of the claimant.

(b) The comptroller shall begin making annuity payments to a claimant under Section 103.053(a) on the first anniversary of the date of payment of the compensation due under Section 103.052.

(c) If appropriated funds are insufficient to pay the amount due a claimant and the amount to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, money shall be paid under the procedure described by Section 103.152.

§ 103.152. Payment of Compensation

(a) Not later than November 1 of each even-numbered year, the comptroller shall provide a list of claimants entitled to payment under Subchapter B [FN1] and the amounts due for each claimant to the governor, the lieutenant governor, and the chair of the appropriate committee in each house of the legislature so that the legislature may appropriate the amount needed to pay the amount owed to each claimant and the amount to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, on the claimant's behalf.

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(b) Not later than September 1 of the year in which an appropriation under this chapter has been made by the legislature, the comptroller shall pay the required amount to each claimant and the state disbursement unit, as defined by Section 101.0302, Family Code.

(c) Repealed by Acts 2009, 81st Leg., ch. 180, § 12(3).

§ 103.153. Employees Not Liable After Payment of Compensation (a) In this section, “employee” and “governmental unit” have the meanings assigned by Section 101.001.

(b) A person who receives compensation under this chapter may not bring any action involving the same subject matter, including an action involving the person's arrest, conviction, or length of confinement, against any governmental unit or an employee of any governmental unit.

§ 103.154. Termination of Payments

(a) Except as provided by Subsection (c), compensation payments to a person under this chapter terminate if, after the date the person becomes eligible for compensation under Section 103.001, the person is convicted of a crime punishable as a felony. Compensation payments terminate under this subsection on the date of the subsequent conviction.

(b) Annuity payments to a person under Section 103.151(b) terminate on the date of the person's death. Any payments scheduled to be paid after that date are credited to the state and may not be paid to any other person, including the person's surviving spouse, heirs, devisees, or beneficiaries under the person's will, or to the person's estate.

(c) This section does not apply to compensation for child support payments and interest on child support arrearages to be paid on a person's behalf under this chapter to the state disbursement unit, as defined by Section 101.0302, Family Code.

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APPENDIX B RULE 12. STATUTORILY MANDATED TRAINING.

a. Judicial-education entities shall provide training as required by the following statutes: Tx. Gov’t Code Title Sec. 22.111, Gov’t. Code Training for Prosecuting Attorneys

Related to Punishment Enhancement Because of Bias or Prejudice

Sec. 22.1105, Gov’t. Code Judicial Instruction Related to Certain Alleged Child Offenders Sec. 22.012, Gov’t. Code Training Related to Diversions

Sec. 22.013, Gov’t. Code Judicial Instruction Related to Guardianship Issues

Sec. 22.110, Gov’t. Code Judicial Instruction Related to Family Violence, Sexual Assault & Child Abuse

Sec. 41.110, Gov’t. Code Training Related to Family Violence

Sec. 41.111, Gov’t. Code Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and Mitigating Evidence

b. Judicial Education entities shall provide training in ethics, which must include information about issues related to race, fairness, ethnic sensitivity and cultural awareness. c. Definitions, as related to Sec. 22.110, Govt. Code, are as follows: (1) The term “judicial officer” in this rule refers to a district judge or a judge of a statutory county court; (2) The term “judicial officer” in this rule refers to an associate judge appointed under Chapter 54 of this code, or Chapter 201 of the Family Code, or to a master, referee or magistrate. d. As related to training required by Sec. 41.111, Gov’t. Code: (1) The term “prosecuting attorney” in this subsection means any county attorney, district attorney, criminal district attorney, assistant county attorney, assistant district attorney, or assistant criminal district attorney who represents the state in the prosecution of felony or misdemeanor criminal offenses other than Class C misdemeanors. The term includes any attorney acting as a county attorney, district attorney, criminal district attorney pro tem, or any attorney otherwise acting as a special prosecutor. The term does not include an attorney holding one of those positions who exclusively practices civil law.

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(2) Within 180 days of assuming duties as a prosecuting attorney, a person shall complete a one-hour course of study relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case. (3) A person who on January 1, 2014, is serving as a prosecuting attorney must comply with the training requirements of this section not later than January 1, 2015. (4) Each prosecuting attorney who completes the training described in subsection d(2) or d(3) shall complete additional training within four calendar years from the year of their initial training, and every four years thereafter.

(5) The training described in Sec. 41.111, Gov’t. Code, may be delivered in multiple formats, including live, web-based, and audio- and/or visually-recorded. (6) Pursuant to Ch. 56.006, Gov’t Code, the Court shall monitor the program performance of entities receiving grant funds. Further, pursuant to Sec. 41.111, Gov’t Code, the Court is required to adopt rules to ensure the training of prosecutors is specific with respect to a prosecuting attorney’s duties regarding the disclosure of exculpatory and mitigating evidence in a criminal case, and must be consistent with case law and the Texas Disciplinary Rules of Professional Conduct. A provider of training required by Sec. 41.111, Gov’t. Code:

(a)shall provide to the Court, prior to the training, course materials so the Court may approve the content of the training; (b) shall develop a method of certifying completion of the training required; and (c) shall provide to the Court an annual report of all prosecuting attorneys completing the required training by January 31st of the following year.

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APPENDIX C

Effective: January 1, 2014 Government Code (Refs & Annos)

Title 2. Judicial Branch (Refs & Annos) Subtitle C. Prosecuting Attorneys

Chapter 41. General Provisions Subchapter B. Staff of Prosecuting Attorney

§ 41.111. Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and

Mitigating Evidence (a) Each attorney representing the state in the prosecution of felony and misdemeanor criminal offenses other than Class C misdemeanors shall complete a course of study relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case. (b) The court of criminal appeals shall adopt rules relating to the training required by Subsection (a). In adopting the rules, the court shall consult with a statewide association of prosecuting attorneys in the development, provision, and documentation of the required training. (c) The rules must:

(1) require that each attorney, within 180 days of assuming duties as an attorney representing the state described in Subsection (a), shall receive one hour of instruction relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal matter;

(2) require additional training on a schedule or at a time as determined by the court;

(3) provide that the required training be specific with respect to a prosecuting attorney’s duties regarding the disclosure of exculpatory and mitigating evidence in a criminal case, and must be consistent with case law and the Texas Disciplinary Rules of Professional Conduct; and

(4) provide for a method of certifying the completion of the training described in Subdivisions (1) and (2).

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APPENDIX D

Effective: January 1, 2014 Code of Criminal Procedure (Refs & Annos)

Title 1. Code of Criminal Procedure of 1965 Trial and Its Incidents

Chapter Thirty-Nine. Depositions and Discovery (Refs & Annos)

Art. 39.14. Discovery (a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state . The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state , and any inspection shall be in the presence of a representative of the state . (b) On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins. (c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law. (d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a). (e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third

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party any documents, evidence, materials, or witness statements received from the state under this article unless:

(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or

(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.

(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant. (g) Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint. (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. (i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article. (j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article. (k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court. (l) A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code. (m) To the extent of any conflict, this article prevails over Chapter 552, Government Code.

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(n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

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APPENDIX E Dear Valued Prosecutor,

The Court of Criminal Appeals takes seriously its roles as the supreme court for criminal matters and the statutorily designated organization that oversees the continuing legal education for prosecutors in this state. TEX. GOV’T CODE § 56.001 et. seq.

We respectfully request that you complete the attached survey. In two recent cases, the United States Supreme Court emphasized the critical importance of the disclosure by the State of favorable evidence material to the accused. Smith v. Cain, 132 S. Ct. 627 (2012); Connick v. Thompson, 131 S. Ct. 1350 (2011). This issue of concern dates back to 1963 when the Supreme Court originally held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).

The concerns related to Brady issues and the wrongful convictions of individuals across the country have attracted the attention of both federal and state legislative bodies. The courts are fully aware of the consequences of Brady violations that defeat the goal of justice in our criminal justice system.

Due to this widespread concern and recent successful Brady claims in our Court,1 we are gathering information related to Brady policies and to what Brady training is offered. This survey is completely anonymous, and your answers will be used only for educational purposes. We realize that your time is valuable, so we have made the survey as short as possible. It contains fewer than twenty questions and will take only a few minutes to complete. Thank you for assisting us in our effort to ensure the continuing education of the criminal justice system.

Sincerely,

TEXAS COURT OF CRIMINAL APPEALS

Presiding Judge Sharon Keller Judge Lawrence E. Meyers

Judge Tom Price Judge Paul Womack

Judge Cheryl Johnson Judge Michael Keasler

Judge Barbara P. Hervey Judge Cathy Cochran

Judge Elsa Alcala Survey

1. How many years have you been a prosecutor? _________________

1 See, e.g., Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012); Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011).

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2. What type of cases are you currently assigned to handle? a. Appellate b. District c. County. d. Other:_________________

3. On average, how frequently do you deal with cases involving Brady issues? a. Once a day b. Once a week c. Once a month d. Once a year e. I don’t know f. Never g. Other:___________________

4. How much, and what kind, of in-house training does your office provide? __________________

____________________________________________________________________________________________________________________________________________________________

5. How many hours of educational training related to Brady evidence did you receive last year? _______________

6. How many hours of ethics education did you receive last year? _______________

7. Who in your office is responsible for addressing your Brady questions, and does this position rotate? _____________________________

8. Does your office assist local law enforcement in their training efforts? Are you willing to do so? _____________________________

9. Are you aware of any training regarding Brady with/for law enforcement in your jurisdiction? If so, please describe it. ____________________________________________________________ ______________________________________________________________________________

10. What is the policy regarding discovery in your office? (e.g., open, full electronic, reciprocal, limited with restrictions, other) _____________________________________________________ ______________________________________________________________________________

11. How often is your discovery policy reassessed? ___________________________

12. What suggestions can you offer for better education on the topics of (1) discovery policies and (2) Brady issues? __________________________________________________________________ ______________________________________________________________________________

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13. How many TDCAA seminars do you attend annually? What percentage of this training is dedicated to discovery/Brady? ____________________________________________________ ______________________________________________________________________________

14. Please include any general comments or concerns you have. ____________________________________________________________________________________________________________________________________________________________

15. Have you read these cases, and are you familiar with their holdings and analysis?

a. Brady v. Maryland, 373 U.S. 83 (1963).

b. United States v. Agurs, 427 U.S. 97 (1976).

c. United States v. Bagley, 473 U.S. 667 (1985).

d. Arizona v. Youngblood, 488 U.S. 51 (1988).

e. Kyles v. Whitley, 514 U.S. 419 (1995).

f. Connick v. Thompson, 131 S. Ct. 1350 (2011).

g. Smith v. Cain, 132 S. Ct. 627 (2012).

h. Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012).

i. Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011).

Hypotheticals

Scenario 1: Police converse with murder suspect 30 times, recording each conversation. The defendant confesses to the crime, and the entire case is built around that confession. Police do not reveal tapes despite the defense that the suspect was coerced. A few days after conviction, in a casual meeting with the arresting police agency, you are asked if your office “needs” the tapes. What do you do?

Scenario 2: In a capital-murder case, you discover that the slain officer was under the influence of drugs at the time of the offense. Part of the defense involves the relationship, through drug connections, between the officer and the defendant. The State has corroborating evidence to support this alleged relationship. Do you inform the defense?

Scenario 3: A complainant dies before trial. The State’s case would heavily rely on the complainant’s testimony. Do you inform the defense? Discuss.

Scenario 4: Local crime lab establishes new protocols. Do you share this information with the defense?

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Scenario 5: Lab technician fails to test five rape kits, but his reports indicate that the kits were examined and implicate five defendants. Ultimately the fact of this lab malfeasance is disclosed to the defense. That same technician conducted tests on 500 other rape kits. Do you give notice to defendants in those cases? Retest? Discuss.

Scenario 2: In a capital-murder case, you discover that the slain officer was under the influence of drugs at the time of the offense. Part of the defense involves the relationship, through drug connections, between the officer and the defendant. The State has corroborating evidence to support this alleged relationship. Do you inform the defense?

Scenario 3: A complainant dies before trial. The State’s case would heavily rely on the complainant’s testimony. Do you inform the defense? Discuss.

Scenario 4: Local crime lab establishes new protocols. Do you share this information with the defense?

Scenario 5: Lab technician fails to test five rape kits, but his reports indicate that the kits were examined and implicate five defendants. Ultimately the fact of this lab malfeasance is disclosed to the defense. That same technician conducted tests on 500 other rape kits. Do you give notice to defendants in those cases? Retest? Discuss

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APPENDIX F

Sample letter sent by public defender’s office following d.a. letter regarding Salvador problem at dps crime lab

Harris County Public Defender’s Office

1201 Franklin, 13th floor Office No.: 713-368-0016 Houston, Texas 77002 Fax No.: 713-368-9278 August 15, 2012 John Defendant CERTIFIED MAIL 123 Main Street RETURN RECEIPT REQUESTED Houston, Texas 77002 NO. P000000888777 Re: The State of Texas vs. John Defendant; Cause number 1231234 Dear Mr. Defendant: You were prosecuted in the above-styled case for an offense related to the possession or delivery of controlled substances. The controlled substance made the basis of the case against you was analyzed by the Department of Public Safety Crime Lab in Houston. It has come to our attention that the analyst who performed the testing of the controlled substances in your case is under investigation for falsifying the results in other cases. The DPS Crime Lab will be retesting the controlled substances in many (but not all) of the cases that were affected by this analyst’s work. The Harris County District Attorney’s Office will send us the results of retesting in each case when it is completed. A copy of this letter is being sent to your last attorney of record, either the attorney who represented you in the trial court or the one who represented you in the appeal of your conviction. We are happy to assist you in determining whether the results of the retesting, if such retesting is performed in your case, considered in the context of the case, suggest that you seek further testing by an independent crime lab or pursue other options. In the alternative, you may of course retain private counsel to review these results. We are willing to undertake to review your case without cost, but also stand ready to assist your retained attorney in discussing your options, if your choice is to use private counsel.

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John Defendant August 15, 2012 Page Two It is unclear when the restesting will be completed or other review of your case will be finished. In the meantime, I have enclosed a document that I would appreciate your returning to me in the envelope that I have provided. This document indicates whether you would like our office to assist you in this matter, or whether you would instead prefer to use private counsel. The document also allows you to request that no investigation be undertaken in your case if that is your choice. Please understand that at this time, our office does not have any retest results, nor are we privy to any information as to whether or how the analysis in your case was improperly done. We simply need to determine who wants their case investigated further and whether they want our office to help them in doing so. Please be so kind as to sign and date the form I have enclosed and return it to me at your earliest convenience. Very truly yours, Bob Wicoff Chief, Appellate Division Harris County Public Defender’s Office cc: John Lawyer 234 River Drive Houston, Texas 77001

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I, John Defendant, understand from the letter sent to me from the Harris County Public Defender’s Office, that the analyst who performed the testing of the controlled substances that formed the basis of the prosecution against me in case number ___________ is under investigation for falsifying results in other cases. I further understand that as a result, retesting of the controlled substance that formed the basis of the prosecution against me may be undertaken by the DPS Crime Lab, and that a review of my case may be warranted. By my initials below, I am expressing my desire that:

_______ No review of my case be undertaken at all; OR _______ That the Harris County Public Defender’s Office review my case for me;

OR

_______ That all documents related to my case be provided to my retained counsel, whose name and phone number are as follows:

ATTORNEY NAME: ______________________________ ATTORNEY PHONE:______________________________ Signed the ___ day of _________________, 2012. _____________________________________________ PRINTED NAME and SIGNATURE _____________________________________________ MAILING ADDRESS _____________________________________________ CURRENT PHONE NUMBER

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APPENDIX G

Sample letter sent by public defender’s office following d.a. letter regarding statute being held unconstitutional

Harris County Public Defender’s Office

1201 Franklin, 13th floor Office No.: 713-368-0016 Houston, Texas 77002 Fax No.: 713-368-9278 April 7, 2014 Jane Defendant 1000 Main Street Houston, Texas 77002

Re: The State of Texas vs. Jane Defendant; Cause number 1000000 Dear Ms. Defendant: You were charged at some point in the above-styled case with the felony offense of online solicitation of a minor. You should have received a letter recently from the Harris County District Attorney’s Office, notifying you that the law that you were convicted of violating has now been held unconstitutional by the Texas Court of Criminal Appeals. Our office is in the process of determining what options people like you may have in light of this development. Some people might be eligible to have their convictions vacated. Those whose cases were dismissed might be eligible for an expunction, which means that their arrest record might be erased. Some persons would need to file what is called a post-conviction writ of habeas corpus. Others might need to take other legal action to obtain their remedy in light of what’s happened. Each case is different and needs to be analyzed according to its own circumstances. Unfortunately, there is no blanket answer I can give everyone as to what might happen in their particular case without investigating it. The same letter you received from the district attorney’s office should have been sent to the last attorney of record listed in your case. Obviously, you may wish to use that lawyer to represent you in this matter, as he or she may already be familiar with your particular case. Alternatively, of course, you may choose to retain some other private counsel to review your case. If that is your decision, then our office is happy to assist your retained attorney in discussing your options.

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If you do not have adequate funds to hire an attorney, then our office is willing to investigate this matter for you. If our investigation then suggests that your case is one where we may be able to get your conviction overturned, we would be willing to represent you in filing a post-conviction writ on your behalf and taking whatever legal action may be called for. We are a county agency. Therefore, all of the above is without cost, provided you are without funds to hire an attorney. Unfortunately, we are not able to file expunctions for persons whose criminal cases were dismissed. For those cases, persons affected would need to hire a lawyer to obtain an expunction. We will only be able to represent indigent persons who were convicted or received some form of probation. I have enclosed a document that I would appreciate your returning to me by mail or to the email address listed above. This document indicates whether you would like our office to assist you in this matter, or whether you would instead prefer to use private counsel. The document also allows you to request that no investigation be undertaken in your case if that is your choice. That said, there is no charge to you if you want us to investigate this for you and I encourage you to let us or a private attorney look into this for you. Please be so kind as to sign and date the form I have enclosed and return it to me at your earliest convenience. Of course, if you have any questions, please do not hesitate to call me at the above number. Very truly yours, Bob Wicoff Chief, Appellate Division Harris County Public Defender’s Office

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I, Jane Defendant, understand from the letter sent to me from the Harris County Public Defender’s Office, that the law that I was charged with or convicted of violating has now been held unconstitutional by the Texas Court of Criminal Appeals. I further understand that as a result of such ruling, it is possible the conviction in my case could be overturned. By my initials below, and by my signature, I am expressing my desire that:

_______ No review of my case be undertaken by the Harris County Public Defender’s Office;

OR _______ The Harris County Public Defender’s Office review my case for me;

Signed the ___ day of _________________, 2014. _____________________________________________ Printed name Signature _____________________________________________ Address _____________________________________________ Phone number

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