September-October 2014

Brady training update

Rob Kepple

TDCAA Executive Director in Austin

We have completed our first round of free, three-hour ethics seminars that include the mandatory hour of Brady training. I say first round because they have been so popular and crowded that we will be offering some additional seminars this fall, so stay tuned to the TDCAA website for announcements.
    In addition, you might notice some recent changes to the TDCAA website to help you quickly access Brady-related information and materials. We have inserted a Brady Resources tab on the homepage for quick access to a number of resources (find it on the orange bar at the top of the homepage). First, you can check the list of people who have completed the training mandated by Government Code §41.111. In addition, you can access a copy of Chip Wilkinson’s book on Brady, as well as a subsequent caselaw update. (Chip is our ethics guru and an assistant CDA in Tarrant County.)  Finally, this spot on our site will be a repository for Brady and discovery-related re-sources, such as sample Brady policies and discovery forms. Have something you would like to share? Send it to me at Robert.Kepple@

DPS discovery policy
Speaking of discovery policies, the Department of Public Safety recently adopted a discovery policy to address its responsibilities under the Michael Morton Act. You can access the policy at brady-resources/2014-brady-materials. The policy is a succinct and straightforward document that requires DPS troopers and officers to get the prosecutor all relevant documents and evidence. It may serve as a good model for other police agencies sorting through various policies.

Discovery issues
By now most jurisdictions have begun to adjust to the discovery changes enacted by SB 1611, the Michael Morton Act, which went into effect in January. There have been resource issues and a little chafing between prosecution and criminal defense in some jurisdictions, but it sounds like people are figuring it out. Over the summer a panel of criminal justice practitioners talked about the new discovery statute at the State Bar Advanced Criminal Law Course. The panel was moderated by Kenda Culpepper (CDA in Rockwall County), and panelists included David Escamilla (CA in Travis County), Bobby Mims (defense attorney in Tyler), Jarvis Parsons (DA in Brazos County), and Lynn Richardson (public defender in Dallas). The panelists raised some issues, including the timing of discovery, pro se defendants, who does redaction, how the continuing duty to disclose information will be handled, and in what format discovery must be delivered. Most agreed that the language of the statute was “clunky” and could use some clean-up, but it didn’t sound like the wheels had come off.
    Discovery will be a topic of discussion this fall for prosecutors, and let’s hope discussions will continue with the defense bar on how to make sure discovery is accomplished in the most effective and efficient way. Stay tuned.

Getting Life,
by Michael Morton
By this time we all know that the story of Michael Morton and his wrongful conviction for the murder of his wife in 1987. With people pointing to a lack of open discovery as a key contributor for the bad conviction, you can see why his name is on SB 1611, the discovery bill we are all talking about.
    Mr. Morton has recently released a book chronicling his ordeal titled Getting Life. It is a great read. Indeed, one defense attorney, Shane Phelps of Bryan, thought that it was so good that he sent a box of books to both Jarvis Parsons and Rod Anderson, the DA and CA in Brazos County. And this is a gift that will keep on giving: Both Jarvis and Rod have donated the books to the Texas District and County Attorneys Foundation so that we can lend them out to anyone who wants to read it. We have loaned them to Jarvis and Rod’s offices first but have asked that they finish them up by the Annual. There, we will have them at the registration desk, so come by and pick up your copy.  Just read it and send it back when you are through. Thanks Shane, Jarvis, and Rod.

PIA requests for info about officers
In the last couple months most prosecutor offices have received a Public Information Request for any letters the office has sent to a law enforcement agency notifying the agency that they would not accept cases from a particular peace officer and any lists maintained by prosecutors of officers who may be subject to impeachment if the officer testified. This is a follow-up to an article published in the Austin American Statesman newspaper concerning “gypsy cops,” which can be found at My guess is many offices have sent such letters in the past because in the last few years we have received numerous calls around here from prosecutors who have lost faith in a particular officer and want to know what they should do about it.  
     As the Morton Act works to focus us on information we need from peace officers and about peace officers, this discussion was timely and inevitable. Y’all have been taking these concerns seriously and have been notifying the departments when you will be turning over Brady information about a peace officer to the defense or not filing a particular officer’s cases because of credibility issues. This can put the sheriffs and the police chiefs in tough situations, but you are properly guarding the integrity of your cases and your offices.  
    We are aware of at least one or two lawsuits filed by officers who were let go after the department received such a letter. (Read about one at Case.aspx?cn=03-14-00231-CV.) The prosecutors are not named in the suits, of course, because they were not involved in the employment decision. I am not an employment law expert, but it seems reasonable for a department to let an officer go if the officer’s testimony won’t stand up in court or isn’t even good enough to get a case filed. And a quick read of the officer’s arguments on appeal in the case linked above seems like a tough sell—essentially that truthfulness is not a qualification to be a peace officer. Not sure how that argument will play out, but we will keep you informed.             

Welcome, Lily Braden
The TDCAA would like to welcome another member into the fold: Lily Braden, born to Kaylene and John Braden July 28 at 8 pounds, 15 ounces. Lily and Kaylene, our Membership Director and Assistant Database Manager, are doing great, and I am sure you will see them both at a TDCAA event soon!

One-up on mountain-climbing
In the last edition of the Texas Prosecutor we printed a photo of Bernard Ammerman, our Willacy County Attorney, on top of Guadalupe Peak flashing the Red Raider “guns up” sign. I still think that is a challenge and invite others to claim the peak for their school, but I recently learned that we all may be, well, pikers compared to another Texas prosecutor.
    Take a look at the photo of the climber, below. That is Jack Strickland, an assistant in Tarrant County. Turns out he is and accomplished climber—and by that I mean a real climber who travels the frozen world above 20,000 feet. His accomplishments include topping out on many unpronounceable peaks on many continents, but he caught my attention with his descriptions of his expeditions to the formidable and dangerous Denali in Alaska. Caught my attention in that he was actually still around to tell the stories after climbing that peak! Jack, that is inspirational stuff for us all. I am beginning my training for Enchanted Rock today!