July-August 2012

Brady and beyond

Called to try a contempt case in a neighboring county, one prosecutor takes a crash course in contempt and shares his newfound knowledge with his peers.

Erik A. Nielsen

TDCAA Training Director in Austin

May you be blessed to live in interesting times. (Or is it cursed?) Whichever way the old proverb cuts, we are living in a very interesting time for prosecutors. Whether it’s due to the prevalence of the 24-hour news cycle which requires any “new” news as fast as possible, or the immediate dissemination of information (and misinformation) through the Internet, blogs, and other social media, or other factors, one thing is certain: Any bad acts (whether intentional or not) taken by a prosecutor are increasingly ascribed instantly to all of his brethren. In short, when one of us fails to act ethically, legally, or morally, it casts a shadow on us all. So what can we do?

    Although the entire answer is wide-reaching and complex—and rest assured, TDCAA has been and is currently working with our members on this complicated issue—one facet of the answer is quite simple: Every prosecutor must understand and uphold her legal, statutory, and ethical duties to ensure a just result. With every defendant, witness, and victim. In every case.

    But where can prosecutors look for guidance? Virtually every Texas prosecutor knows one sentence from the Texas Code of Criminal Procedure art. 2.01 by heart: “It shall be the primary duty of all prosecuting attorneys … not to convict, but to see that justice is done.” In fact, it’s been quoted on the masthead of the publication you’re holding for decades. But that is only the starting point for a Texas prosecutor’s ethical and legal duties. Perhaps less well-known is the final line of art. 2.01 that directly follows the aforementioned quote: “They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” This duty directly echoes the other major guide that prosecutors should use to set their ethical compass, the seminal case of Brady v. Maryland.1 Using these guidelines as a foundation for their conduct, Texas prosecutors can ensure justice in each and every case.

    To help achieve that goal, TDCAA created a one-hour ethics presentation that can be accessed by any prosecutor at any time by visiting our website at www.tdcaa .com/node/10250. And even better, it’s a free hour of ethics credit with the Texas State Bar; simply input the MCLE number, which is shown in the opening minutes of the video, on the State Bar’s website (www.texasbar.com) upon completing the entire lesson to earn credit.

    The presentation begins with an overview of “zealous representation” and why that standard doesn’t translate well for prosecutors. We lay out the basic statutes and caselaw that serve as the foundation for an ethical prosecution, including the aforementioned CCP art. 2.01, Texas Disciplinary Rule of Professional Conduct 3.09,2 and American Bar Association Model Rule 3.8(g) and (h).3 Finally, the introductory segment ends with a recap of why prosecutors have a responsibility to and luxury of the truth, quoting Berger v. United States.4

    Remember that to the justice system and to the public, nothing is a “fouler blow” than concealing facts, evidence, or witnesses that exculpate a defendant. That’s why we’re doing this entire exercise, and at this point, we delve into Brady and the following seven scenarios, which were taken from real cases ( listed in this article after the scenarios). So get yourself a cup of coffee or a Coke, sit down at your computer, and get ready for an interactive and informative hour of Brady … and beyond!

Background on Brady

After the introduction, there is an expansive explanation of Brady v. Maryland, which involved separate trials in a Maryland court where both defendants in a first-degree murder case were sentenced to death. In his trial, Brady admitted participating in the crime but claimed that his co-defendant did the actual killing. Prior to trial, defense counsel requested the prosecution allow him to examine the companion’s extrajudicial statements, and the prosecutor complied—to a point. Several of the statements were shown to the defense, but one in which the co-defendant admitted to doing the actual killing was withheld by the prosecution and did not come to counsel’s notice until after the defendant had been tried, convicted, and sentenced and after his conviction had been affirmed by the Maryland Court of Appeals. The Supreme Court of the United States held that “suppression by the prosecution of evidence favorable to an accused upon request violated due process where the evidence is material to either guilt or punishment” and that a new trial is required whether or not the prosecution acted with malicious intent in failing to disclose the exculpatory or mitigating evidence.5

    So what basic principles can be taken from this watershed case? Well, it established that Due Process is violated when:

    1) the prosecutor fails to disclose
    2) which is favorable to the accused and
    3) which is material.

    But what is favorable evidence? The court told us it is any evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal, including exculpatory and impeachment evidence (emphasis added).

    That word “may” certainly adds a huge level of subjectivity and “gray area”—especially in Texas where there is no reciprocal discovery, which puts the prosecutor in the unenviable position of trying to read the defense attorney’s mind as to what defenses he will use and what information may be important to that defense. Add this to the materiality standard (it’s held to be material if the failure to disclose it creates a probability sufficient to undermine the confidence in the outcome of the proceeding), and there is a large potential for unintentional error. A prosecutor may determine initially that evidence is either not favorable or not material, but after the trial, such evidence will be viewed in a much different light, and any defense attorney worth his salt can make an argument that will overcome the materiality and favorability standards.

    That’s why we suggest that you ignore the materiality test. If the evidence causes you to pause and exclaim, “Oh no” in regards to your case, then turn it over! Think of it this way: Would you rather contest this evidence at trial where you can call witnesses and both sides have input into the information presented, or on a writ, years later when witnesses have died, memories are fuzzy, and the main area of battle is not always the courtroom but also the media? Plus, we are supposed to be wearing the white hats—we don’t play “gotcha” in the courtroom; we are purveyors of justice.

    The widespread acceptance of “open-file” policies by the vast majority of Texas prosecutors’ offices has certainly aided this effort, but such policies are not enough. We must keep meticulous records including who was shown what, when, and where, and detail every single piece of paper and evidence that was seen. The time spent keeping such records today is worth it compared to potential headaches down the road.

    With this basis, we’re onto the case scenarios:


You are handling a murder case. Dad shot his daughter’s boyfriend in the driveway of his daughter’s house. In a pretrial hearing, the defense laid out its theory of the case: that the boyfriend had become increasingly violent because of his use of anabolic steroids, and Daddy shot him in self-defense and defense of his daughter. A little lame, given that Daddy shot the boyfriend five times with a .38 revolver. In the back.

    You review a number of statements. One is from a person who cleaned out the victim’s house after his death. He reported opening up an old Coke machine to find a bunch of syringes with orange caps and some little bottles. The witness threw the stuff away because he didn’t want the victim’s ex-wife to know about it, but a friend who is a nurse told him that it must have been steroids.

    Are you required by law to give this information to the defense?
    a.  Yes.
    b.  No.
    c.  Yes, but you will be throwing in a motion in limine to keep it company.


You are handling a nasty murder case. A family is murdered and burned in a house, and the no-good husband/father and a co-defendant are charged in the case. The co-defendant decides to testify for the State with no deals and meets with you, your investigator, and his attorney.
    First thing out of his mouth: “I did this all by myself!” You respond that that is unlikely because the murders were committed with a knife, gun, and baseball bat. The co-defendant quickly retreats from his statement and implicates his no-good husband/father friend and one additional suspect you hadn’t figured was part of the mix. You feel pretty good about his testimony, even with no deal in place.
    Is there anything about this discussion that requires disclosure to the defense?
    a. Yes.
    b. Yes, and you cover it on direct.
    c. Yes, and you tell the defense and cover it on direct.
    d. No.


You are trying a dope delivery case. You have a guy from the neighborhood lined up to testify about the drug-dealing activity in the area and what he has seen the defendant do. Your investigator gets the witness to the hallway and during a break lets you know the witness is there. She also tells you that she’s not sure, but she heard that the witness just might have an outstanding warrant or two. So now what?
    a.  Who the heck knows—and what difference would it make?
    b.  You ask your investigator to run a criminal history check to verify the rumor.


You get a conviction in a murder trial where only one of six eyewitnesses identifies the defendant, who was found 15 minutes after the crime not far from the scene with some gun residue and a weak alibi. There is no evidence of motive. The victim’s friends say there are no other suspects. You provide your whole file to the defense pre-trial. Nice and neat, the defendant goes to prison.
    A couple years later the writ comes in to your office. There are two undisclosed police reports. One is an anonymous phone tip identifying another suspect who confesses to the crime and gives little-known details and a motive. The second is an earlier report involving your victim threatening an unrelated party at gunpoint about a week before his death. Neither was in your file, but both were created before trial. Should the judge grant the writ?
    a. Yes; you violated Brady.
    b. No, neither police report is admissible and not Brady.
    c. Nope. There was a Brady violation, but not enough to undermine the verdict.


At a break on the third day of a murder trial you are digging through your cardboard box of evidence and paperwork when you come across an envelope. You open it, and out pop two witness statements. They are earlier statements of some of your witnesses, and they conflict with their other statements and testimony. These new statements even allude to other possible suspects in the killing. You know you should have turned the statements over long ago, but you must have just missed them when the detectives dumped that box of stuff on your desk. You turn the statements over to the defense right away. You offer an investigator to the defense so that they can find anyone they want, and you don’t oppose a continuance. Does the defense get a mistrial?
    a. No.
    b. Yes.
    c. Not right away, but it’s not looking good for your case or your bar card.


You are out with your investigator on a murder case. You are talking to a whole bunch of folks in the neighborhood, and you are hearing all kinds of wild stories.  One person tells you that a few weeks after the killing, he heard a guy whom he doesn’t know say that another guy whom he also doesn’t know was the shooter, not your defendant. Must you tell the defense attorney?
    a.  Yes; this is classic exculpatory evidence.
    b.  No way; it is the usual hearsay noise on the streets, so it’s not gonna play a part in this trial.


Well, you haven’t thought of that old murder case for three years. Time to think again, though, because here comes some new information. Seems that another guy in the pen for life has now confessed to the murder and is claiming to be a serial killer. Sounds like a play for media attention to you. So what do you do? Call someone?
    1. Yes.
    2. No.

The courts’ answers to all these questions is laid out in the web video, and you can read the decisions (listed below) for more details.
    Let’s work together for prosecutors to become the leaders of “actual innocence” and ease the expediency of exonerations where the facts call for it. Remember, as President Teddy Roosevelt said over a century ago, “Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against wrong.” Make sure that wherever and whenever you find exculpatory or mitigating information—whether pre-trial, post-trial, or even years later on a writ—that you have the courage to uphold not just the conviction, but the right and just result. i

Editor’s note: TDCAA would like to gratefully acknowledge the State Bar of Texas for all of its generosity in producing this webinar. Thank you so much!

Caselaw resources for scenarios

After listening to the explanations given in the presentation regarding the cases, please read and underscore the principles enunciated, which are found in the following cases:
Question 1: Ex Parte James S. Masonheimer, 220 S.W.3rd 494 (Tex. Crim. App. 2007).
Question 2: Graves v. Dretke, 442 F.2nd 334 (5th Cir. 2006) and U.S. v. Sipe, 338 F.3d 471 (5th Cir. 2004).
Question 3: Johnson v. State, 917 S.W.2d 135 (Tex. App.—Fort Worth 1996).
Question 4: Ex Parte Richard Ray Miles, Jr., ___ S.W.3d___ (Tex. Crim. App. 2012).
Question 5: Etheridge v. State, 903 S.W.2d 1 (Tex. Crim. App. 1994) and Castaneda v. State, 28 S.W.3d 216 (Tex. App.—El Paso 2000).
Question 6: Ex Parte Mares, 201 Tex. Crim. App. Lexis 309  (unpublished) (No. AP-76,219, May 19, 2010) and O’Rarden v. State, 777 S.W.2d 455 (Tex. App.—Dallas 1989).
Question 7: Imbler v. Pachtman, 424 U.S. 409 (1976) and Banks v. Dretke, 540 U.S. 668 (2004).


1 Brady v. Maryland, 373 U.S. 83 (1963).
2 Texas Disciplinary Rules of Professional Conduct, Rule 3.09 (“A prosecutor must disclose all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentence, disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor …”).
3 American Bar Association Model Rule 3.8(g) (“When a prosecutor knows of new and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, the prosecutor shall: [1] promptly disclose that evidence to an appropriate court or authority and to the defendant, and [2] undertake such further inquiry or investigation as may be necessary to determine whether the defendant was convicted of an offense that the defendant did not commit.”); and Rule 3.8(h) (“When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”).
4 295 U.S. 78 (1935).
5 See Brady, id.