Don’t get burned by thinking that a prosecutor’s duty to disclose hinges on the information’s materiality and admissibility. The Board of Disciplinary Appeals says that Texas ethics rules require prosecutors to disclose everything.
In Schultz v. Commission for Lawyer Discipline of the State Bar of Texas,1 the Board of Disciplinary Appeals (BODA), appointed by the Texas Supreme Court, held that a prosecutor’s ethical duty to disclose favorable2 information and evidence to the defense—pursuant to Texas Disciplinary Rules of Professional Conduct 3.09(d) and 3.04(a)—is broader that the prosecutor’s legal, constitutional duty of disclosure imposed by Brady v. Maryland3 and its progeny.4 That’s because the ethical duty to disclose allows a prosecutor no discretion to withhold favorable information or evidence because he subjectively considers it either immaterial or inadmissible.5 In reaching this conclusion, the BODA affirmed an evidentiary panel’s decision that a Texas prosecutor violated ethics Rules 3.09(d) and 3.04(a) by failing to disclose favorable information required to be disclosed under those rules.6
How did this happen?
The Schultz disciplinary case originated with the prosecution of Silvano Uriostegui for the aggravated assault with a deadly weapon of Maria Uriostegui, his estranged wife, by the Denton County District Attorney’s Office.7 In the underlying criminal case, Maria was attacked and stabbed in her apartment bedroom at night; the only light in the area was from a TV in another room.8 Maria told the police that Silvano had attacked her and testified to it in a hearing for a protective order.9
In 2011, when Assistant District Attorney Bill Schultz became the chief of the family violence division of the Denton County District Attorney’s Office, he took over the Uriostegui case from another prosecutor.10 Silvano’s defense attorney requested and received the State’s initial production of discovery from the original prosecutor but asked for additional discovery, including all evidence favorable to Silvano, in June 2011.11 Schultz and Silvano’s defense counsel met several times before trial to discuss discovery.12
In January 2012, one month before Silvano’s case was set for trial, Schultz and several other people from the Denton County District Attorney’s Office met with Maria.13 During that interview, Maria stated that she thought that her attacker was Silvano based on his smell, the sole of his boot, and his stature as she saw him in the shadowy light, but she admitted, “I couldn’t see his face.”14 Schultz did not disclose Maria’s statements to Silvano’s defense counsel, but at some point in his investigation, Schultz explored the whereabouts of Alvero Malagon—a man who had previously assaulted Maria—and confirmed that Malagon was incarcerated when Maria was attacked.15
In February 2012, Silvano pled guilty but had the jury assess punishment.16 At sentencing, Maria testified that she did not see her assailant’s face and that she did not know whether her attacker was Silvano; she explained that she had testified in the protective order hearing that she had assumed it had been Silvano, given his smell and his boot.17 Maria also testified that she had previously told Schultz that she did not see her attacker’s face.18 Based on Maria’s testimony and upon learning of Schultz’s investigation of Malagon’s whereabouts, Silvano’s defense attorney moved for a mistrial, alleging that the prosecution had violated its disclosure obligation under Brady.19
In defense of his actions, Schultz explained to the trial court that Maria had told him that she had identified Silvano by his smell, boot, and stature, and that Schultz did not consider Maria’s statement (that she did not actually see her attacker’s face) to be exculpatory20—he believed it was a prior inconsistent statement at most.21 The trial court disagreed, found that the undisclosed information was exculpatory, and granted the defense’s motion for a mistrial on Brady grounds.22
Silvano’s defense counsel then filed an application for a writ of habeas corpus, alleging that double jeopardy attached to the mistrial and that the State was barred from retrying him.23 In the habeas proceeding, two prosecutors stipulated that the indirect manner by which Maria had identified Silvano was favorable to the defense and should have been disclosed.24 Schultz also testified in the proceeding that, while he “had no doub