May-June 2016

A deeper discussion of BODA’s Schultz decision

Three experienced prosecutors weigh in on Schultz v. Commission for Lawyer Discipline of the State Bar of Texas, its reach, and what it means for Texas prosecutors.

Editor’s note: For more information on the Schultz decision, see the cover story of the March–April 2016 issue of this journal, accessible HERE.

What is the most ­significant take-away from this decision for prosecutors?

C. Scott Brumley
County Attorney in Potter County
When the blast wave passed after the Michael Morton Act became law, we tended to nod and accept that the gist was “disclose it all.” The Schultz decision is a granite monolith signifying the reality and gravity of that conclusion. The clear implication of BODA’s opinion (which, unlike most of its other opinions, is not a cut-and-paste recitation of rote reasoning and consequences) is to put prosecutors on notice that disclosure is a matter of such significance that even relatively minor mistakes can leave one’s law license in the balance. And, to me, it is a clear indication that until the prevailing winds change, the weight of correcting discrepancies in the criminal justice system (real or otherwise) will continue to be borne by prosecutors. The white hat is heavy, and it’s not a helmet.

Scott Durfee
Assistant District Attorney in Harris County
In my opinion, there are two take-aways from Schultz, and we won’t know for a while which is going to be more significant to prosecutors in the long run. The immediate impact is that it drew an equivalency between Rule 3.09(d) and Article 39.14(h). As BODA observed, “Although Art. 39.14 is not dispositive in this case, its promulgation refutes Schultz’s position that imposing a broader duty on prosecutors to disclose information to the defense than Brady creates an unworkable burden. That ‘unworkable burden,’ if there is one, already exists.”
    This is significant because Schultz affirmed an ethical sanction for misconduct that, by legislative design, would not have been sanctionable under the Michael Morton Act. The decision to leave sanctions against prosecutors and defense attorneys out of the Morton Act was a compromise forged after much debate and discussion, intended to give both sides some time to get up to speed with the new responsibilities and to show their ability to comply without threat of punish-ment. BODA has now upset that careful balance, giving a defendant leverage to threaten a prosecutor’s license under a strict liability standard without a reciprocal right to sanction defense attorneys for violating their duties under the Morton Act. This is not to say that Rule 3.09(d) was not intended to be enforced—ask Terry McEachern1 about that—but this decision creates a back-door sanction that the Legislature specifically chose to avoid.
    The long-term impact of Schultz is more subtle. BODA basically concluded that, because Rule 3.09(d) was identical to the ABA’s Model Rule of Professional Conduct 3.8(d), it was going to give great weight to the ABA’s interpretation of the rule, and it relied heavily on ABA formal opinions in clarifying the scope and application of the Texas disciplinary rule. I understand why BODA would do this—if the scholarship has been done, why reinvent the wheel?—but deferring to the ABA’s interpretations is problematic for many reasons. The ABA has traditionally not been a prosecutor-friendly association, and its opinions may not necessarily reflect the beliefs of the current Texas bar membership, much less the beliefs of those Texas lawyers who voted on the Disciplinary Rules when they were passed by referendum in 1989. If BODA is going to look to the ABA, instead of to Texas lawyers, to define prosecutorial ethics standards for Texas, that does not bode well for us.

Rob Kepple
TDCAA Executive Director in Austin
The Schultz decision is a reminder that compliance with the Michael Morton Act doesn’t end with the production of offense reports, exhibits, photographs, and videotapes. Prosecutors must remain alert to potential impeachment evidence that may not have made it into an offense report. It is also a demonstration of how quickly something that would probably have been inconsequential had it been disclosed before trial (I will suggest that no one in that courtroom really thought the State was prosecuting the wrong guy) can derail a case and lead to a Bar sanction.
    The case also reinforces the principle that if evidence can be viewed as favorable, materiality should not part of the prosecutor’s disclosure analysis. That has been the way TDCAA has been teaching Brady and the duty to disclose exculpatory and mitigating evidence, but BODA attached a significant penalty to falling short here.    
Of what precedential ­value is this BODA ­decision, both within the grievance process and in our district courts?

Durfee: Schultz is the law until it’s not the law. Rule 7.11 of the Texas Rules of Disciplinary Procedure allowed Schultz to appeal BODA’s determination to the Texas Supreme Court, but he chose not to pursue that remedy. Another prosecutor could challenge Schultz in the Supreme Court after exhausting his or her remedies in the disciplinary system, but as a practical matter, the longer Schultz goes unchallenged, the harder it will be to dislodge without a change to Rule 3.09(d). Juris-prudential inertia is a real thing.
Brumley: Its precedential value will depend, at least in part, on the procedural avenue a responding prosecutor chooses. Scott Durfee has eloquently explained the procedural and practical considerations attendant with either option (above), so I won’t recount them here. Ultimately, I would agree with Scott: It is the law until it’s not the law. It may be that a prosecutor could choose to proceed in district court, and an appellate court might decide the matter differently than BODA did. In the current social and political environment, I don’t know that I would risk my law license on that prospect.

Procedurally, if a prosecutor is faced with a Brady-related complaint in the future, should that prosecutor consider alternatives to the bar evidentiary panel/BODA route?

Brumley: To me, it loops back to what I see as the intended upshot of the Schultz opinion: The most viable defensive strategy will be prevention. By the time the matter gets to a grievance, the die may already be cast. If a prosecutor opts to proceed before an evidentiary panel, it would be advisable to be prepared to show that a premium was placed on full disclosure and that any nondisclosure was purely accidental. While the Schultz opinion indicates that lack of intent will not be a legal defense under Rule 3.09, under the right facts the stark nature of Schultz might wind up being tempered a bit by the mitigating factor of inadvertence despite best efforts being applied. Of course, the efficacy of that approach will largely be a product of making full disclosure a culturally habitual practice within the office.

Durfee: After a determination of “just cause” to proceed with an ethics complaint has been made, a lawyer has 20 days to elect whether to have to complaint heard in a district court or before an evidentiary panel of the State Bar’s Grievance Committee.2 The incentive to proceed with an evidentiary panel is that the panel can issue a private reprimand, which does not identify the lawyer by name, which a district court cannot do. That sanction is not available, however, to prosecutors found to have violated Rule 3.09(d).3
    Whether to proceed with an evidentiary panel or district court is a case-specific decision based on the nature of the case, the makeup of the local evidentiary panel, and the resources available to the accused lawyer. I really cannot express a hard-and-fast preference.

To what extent do you believe legal and ethical standards involving exculpatory and mitigating evidence have evolved in the last 25 years?

Brumley: I think that the move toward open-file policies and a very liberal approach to exculpatory evidence disclosure was at a full head of steam when the Michael Morton case rose to statewide consciousness. In other words, I think prosecutors generally were already well on their way in the right direc-tion. Unfortunately, the Morton case—retrospective as it was—has been leveraged to serve the narrative that prosecutors still predominantly do business the way it was done in that case (and, perhaps, in the early 1990s as a generalization). The case itself and the eponymous statute are now serving the agenda to erode any protections enjoyed by prosecutors against disgruntled defendants and defense lawyers by imposing a mildly kinder and gentler form of strict liability. In short, prosecutors have made progress. Some who are not prosecutors see it as too little, too late, and those advocates seem to have the ear of the ABA and now, perhaps, the disciplinary apparatus.

Kepple:  There is no doubt that both the legal and ethical standards have evolved. Example: There is caselaw to support the legal position that potential impeachment evidence concerning the strength of an identification is not evidence that need be disclosed pre-trial, as it is something that would be fleshed out in an identification hearing or at trial.4 I wouldn’t rely on that case today. And although one of our ethics gurus, author and Tarrant County prosecutor Chip Wilkinson often noted that Texas Disciplinary Rule of Professional Conduct 3.09 does not have a materiality requirement, the Schultz opinion today brings that home.
    Although “when in doubt, disclose” was the constant refrain at prosecutor trainings, Brady took center stage after the Court of Criminal Appeals released Ex Parte Masonheimer.5 That case focused our profession on our obligations and led to a stream of Brady training at TDCAA events. I am impressed that Texas prosecutors are uniformly aware of their obligations and are dutifully trying to live up to the expectations. And things will continue to evolve. Just look at how prosecutor offices are working to develop polices relating to the disclosure of disciplinary records of police officers.  No one was even talking about that five years ago.      
Is this a motivator for reciprocal discovery?

Brumley: Yes. How are prosecutors to know what might be potentially useful within the universe of exculpatory or mitigating evidence if we have no idea what the defensive approach to the case might be? The tenor of the opinion—and the advocacy that spawned it—seems to envision a responsibility upon the prosecutor to know all and see all; to not only anticipate but also effectively construct potential defenses. That duty is nowhere to be found in the explicit terms of the Disciplinary Rules of Professional Conduct or Code of Criminal Procedure, and it is antithetical to the very idea of an adversarial system of justice. But it is the reality dawning upon us.

Durfee: Yes. Despite BODA’s implication that Schultz’s bright-line rule is easy to follow, compliance with this rule is not easy. In theory, it could require the production of nonexistent evidence that a prosecutor could fairly have never realized could aid in a defense (e.g., the absence of the defendant’s fingerprints or DNA at the scene of an assault captured on video or the neighbors who did not hear the family dog bark in a home invasion case in which the defendant was arrested in the house).
    If a prosecutor is going to be held responsible for failing to produce evidence tending to support a defendant’s defense, it is only fair that the prosecutor know what the defendant intends to argue. Obviously, the defense should first have the opportunity to review the available evidence to identify potential defenses, but at some point, there should be a defense disclosure with enough detail to allow the State to seek and disclose information responsive to the State’s discovery responsibilities. The difficulties speculating on possible ways that a “piece of information could be viewed as exculpatory, impeaching, or mitigating,” as Schultz requires, justifies this kind of notice to the State.
Kepple: Yes. Many of you have heard W. Clay Abbott, TDCAA’s DWI Resource Prosecutor and frequent ethics speaker, talk about the “Oh s&%#!” moment when you see or hear something that may not be so swell about your case and our need to recognize that as “a Brady moment.” That is good advice. But it is quite a challenge for a prosecutor to recognize everything that may help a defense when the prosecutor doesn’t know what the defense will be. Virtually every state and the federal rules require the defense to provide the prosecutor with notice of various defenses, such as alibi, and a witness list. It only makes sense that if the defense is going to try to punch your ticket for failing to provide exculpatory or impeaching evidence that the defense should be required to provide basic notice about the nature of the defense. No more trial by ambush.

What guidance and insight can we offer our members going forward?

Brumley: The apparent takeaway is that prudence would counsel changing the Brady paradigm. Historically, we have looked for potentially exculpatory (and material) evidence, then whittled it down by an instinctive standard of “general rule: don’t disclose. Is there any reason to refute that general rule?” Now, it seems, it should be something more like “general rule: make sure you have everything from every agency, and then disclose everything. Is there any compelling reason to refute that general rule as to any particular item of evidence?”

Durfee: As sympathetic as I am to Mr. Schultz for becoming the object lesson on the scope and applicability of Rule 3.09(d) on a set of facts that may not have been fully and fairly developed by BODA, the opinion was intended to leave little wiggle room for a prosecutor to hold back in discovery exculpatory, impeaching, or mitigating evidence of any kind. BODA makes it clear: “The clarity of Rule 3.09(d) is a safeguard for prosecutors and citizens alike: If there is any way a piece of information could be viewed as exculpatory, impeaching, or mitigating—err on the side of disclosure.” Once BODA and the ABA took the position that materiality is not an element to establishing a Rule 3.09(d) violation, they could not have written the opinion any other way (which is not to say that the opinion is right, just that it was inevitable).
    So Schultz is the law and disclosure is the rule. The only saving grace is that in observing that the “unworkable burden” of Rule 3.09(d) already exists in Article 39.14(h), BODA implicitly acknowledged that compliance with Article 39.14(h) is compliance with Rule 3.09(d). In my opinion, our status quo really should not change—we are already making these disclosures. The only difference post-Schultz is that the price of noncompliance has gone way, way up.

Kepple:  I continue to be impressed with how seriously Texas prosecutors are taking their ethical duty to disclose evidence. As a profession we may feel under the gun at the moment, but I believe that the public you serve continues to have confidence in you. Keep up the good work.


1 Terry McEachern is a former district attorney in Swisher Counter who was found to have engaged in misconduct during his prosecution of the Tulia drug cases back in 2004. His law license was suspended for two years, but the suspension was probated.
2 See Texas Rule of Disciplinary Procedure 2.15.
3 See Internal Operation Procedure 13, Commission for Lawyer Discipline (“Private reprimands shall not be utilized if: … (H) The misconduct involves the failure of a prosecutor to 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 mitigate the offense”)
4 Amos v. State, 819 S.W.2d 156 (Tex. Crim. App. 1991).
5 220 S.W.3rd 494 (Tex. Crim. App. 2007).