March-April 2016

Just disclose it

Melissa Hervey

Assistant District ­Attorney in Harris ­County

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 doubts” that Maria told him that Silvano was her attacker (and so it did not occur to him that the information was Brady material), in hindsight, he should have disclosed to the defense how Maria arrived at the conclusion that Silvano had been her assailant.25
    The trial court granted Silvano’s application for a writ of habeas corpus and permitted Silvano to withdraw his guilty plea.26 The trial court also held that double jeopardy attached to bar retrial because the State had purposefully withheld exculpatory information and intentionally goaded the defense into pleading and seeking a mistrial.27
    Thereafter, the Denton County Criminal District Attorney sent a letter to the State Bar of Texas to report Schultz’s conduct, though the District Attorney excused it as unintentional.28 Silvano’s defense attorney obtained a copy of that letter and then filed a grievance against Schultz with the State Bar, which resulted in a disciplinary proceeding before Evidentiary Panel 14-3 for the State Bar of Texas District 14 Grievance Committee.29
    The evidentiary panel determined that Schultz’s failure to disclose the information concerning Maria’s indirect and limited identification of Silvano violated Texas Disciplinary Rules of Professional Conduct 3.09(d) and 3.04(a), and imposed a six-month, fully probated suspension of Schultz’s bar license.30 Schultz appealed the evidentiary panel’s decision to the BODA to challenge the panel’s findings of misconduct, though he completed the six-month probation prior to submitting his appeal.31

What do Rules 3.09(d) and 3.04(a) say again?
Texas Disciplinary Rule of Professional Conduct 3.09(d) states:
The prosecutor in a criminal case shall 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.32
Texas Disciplinary Rule of Professional Conduct 3.04(a) provides:
A lawyer shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute alter, destroy, or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.33

What did the BODA decide in Schultz?
There are several important takeaways from the BODA’s decision in Schultz. For one thing, Rule 3.09(d) is broader than Brady in two significant ways. First, Rule 3.09(d) has no materiality requirement. In other words, Rule 3.09(d) requires the prosecution to disclose favorable information and evidence “without regard for the anticipated impact of the information on the outcome of a trial.”34 It will be no defense to a claimed violation of Rule 3.09(d) that the undisclosed information or evidence would not have affected the case’s outcome in any manner or deprived the defendant of a fair trial in any way.
    Second, Rule 3.09(d) has no admissibility requirement. That is, the prosecution must disclose favorable information and evidence without regard to whether the information and evidence would be admissible at trial. Again, this means that there is no defense to a claimed violation of Rule 3.09(d) that the undisclosed evidence would have been inadmissible.
    Explaining why a prosecutor’s ethical disclosure obligation under Rule 3.09(d) is broader than the prosecutor’s legal disclosure obligation under Brady, the BODA noted that the goal of the rule is to “impose on a prosecutor a professional obligation to ‘see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor’”—clearly extending past the requirements of Brady that the prosecution ensure that the defendant has due process of law by disclosing favorable, material, and admissible evidence to the defense.35 The BODA also emphasized that the rule’s ethical duty protects the public at large—as opposed to just safeguarding the fairness of trials—which requires that prosecutors be held accountable for timely and thorough disclosure of favorable information and evidence even when no trial or conviction is had.36 And finally, the BODA further distinguished Rule 3.09(d) from Brady by observing that “Rule 3.09(d) is specifically intended to advise and prevent a prosecutor from making an incorrect judgment call” regarding the materiality or admissibility of favorable information and evidence.37
    Rule 3.09(d) requires “timely” disclosure like Brady but requires disclosure before a defendant pleads guilty. The BODA explained disclosure must be made “as soon as reasonably practicable so that the defense can make meaningful use of it.”38 However, the BODA then asserted, “The ethical obligation’s usefulness to the defense in plea bargaining is a key difference from the duty under Brady.”39 The prosecutor must disclose favorable information or evidence to the defense prior to a guilty plea so the defendant’s lawyer may use it to find other evidence or to assist the defendant in plea negotiations.40
    Unlike Brady, Rule 3.09(d) attaches only when the prosecutor has actual knowledge. The BODA acknowledged that: “Unlike Brady, Rule 3.09(d) limits the information to that actually known by the prosecutor.”41 However, the BODA cautioned that “under the disciplinary rules, actual knowledge may be inferred from circumstances.”42
    This distinction from Brady is logical, given that Brady is a constitutional due process doctrine meant to ensure the integrity of a trial’s outcome by safeguarding the defendant’s right to obtain information for defending himself. Under Brady’s constructive-knowledge doctrine, a defendant is entitled to relief when he can demonstrate that someone in law enforcement connected to the case’s investigation and prosecution knew of favorable information or evidence and prevented the defense—in either good or bad faith—from having access to it, and that the information or evidence was material to the outcome of the defendant’s case.43 Thus, under Brady, even when a prosecutor is not personally aware of favorable information or evidence, the prosecutor is considered to have constructive knowledge of it if any other lawyer or employee in the prosecutor’s office or any member of law enforcement connected to the investigation and prosecution knows of or possesses it.44 The BODA in Schultz makes clear, however, that the constructive-knowledge doctrine of Brady does not carry over to Rule 3.09(d) and, thus, that a prosecutor does not violate his ethical duty of disclosure if he did not personally know the favorable information or evidence existed.
    But violating Rule 3.09(d) also violates Rule 3.04(a), even absent intent. Rejecting Schultz’s arguments to the contrary, the BODA held that if a prosecutor has actual knowledge of favorable information or evidence and he or she does not timely disclose that information or evidence to the defense pursuant to Rule 3.09(d), the prosecutor violates not only Rule 3.09(d) in failing to disclose, but also Rule 3.04(a), regardless of whether the prosecutor’s failure to disclose was unintentional, negligent, or in good faith.45 Quoting one of the drafters of the Texas ethics rules, the BODA opinion asserts:
“[A] lawyer need only be negligent to violate … Rule [3.04]. A lawyer need not have known of the evidentiary value of the materials or even [have] recklessly disregarded the possibility that they might have such value, if a competent lawyer would have recognized that fact. Thus, under this rule, a lawyer cannot ‘escape liability … by closing his eyes to what he saw and could readily understand.’”46
    Rule 3.09(d) imposes the same discovery obligation as Article 39.14(h). The BODA opined in Schultz that Article 39.14(h)47 of the Texas Code of Criminal Procedure mandates the same standard for disclosure as Rule 3.09(d) and, like Rule 3.09(d), disclosure does not depend upon the prosecution’s subjective determinations of materiality and admissibility.48
    Rule 3.09(d) is identical to ABA Model Rule 3.8(d). When interpreting Rule 3.09(d) and determining that it does not simply codify the constitutional disclosure requirements imposed by Brady but rather expands upon those obligations, the BODA relied extensively upon the American Bar Association’s (ABA) interpretation of Model Rule 3.8(d) of the ABA Model Rules of Professional Conduct, regarding “Special Responsibilities of a Prosecutor.” It is identical in wording to Rule 3.09(d).
    Given their matching texts, it is clear that Model Rule 3.8(d) is broader than the constitutional due process requirements of Brady.49 Model Rule 3.8(d) also requires prosecutors to have actual knowledge of the favorable information or evidence before he is required to disclose it but similarly denies the prosecutor any discretion to withhold potentially favorable information or evidence based on materiality and admissibility considerations.50

Why does Schultz matter to you?
The BODA opinion in Schultz means that prosecutors must disclose favorable information or evidence to the defense—we have no discretion to withhold evidence based on our subjective evaluations of its exculpatory, impeachment, or mitigating value. Stated simply, whether an item of favorable information or evidence is material or admissible at trial should be of no concern to prosecutors during discovery, and “if there is any way a piece of information could be viewed as exculpatory, impeaching, or mitigating—err on the side of disclosure.”51
    While failure to comply with Rules 3.09(d) and 3.04(a) may not rise to the level of a constitutional due-process, Brady violation—given that materiality and admissibility remain viable considerations for that legal disclosure obligation—violation of the ethical disclosure obligations can result in dire professional consequences. Schultz demonstrates that the State Bar is more aggressively enforcing Rules 3.09(d) and 3.04(a) and will hold prosecutors’ feet to the so-called disclosure-obligation fire. Don’t get burned—if there is any conceivable way in which information or evidence could be considered favorable to the defense for exculpation, impeachment, or mitigation purposes, don’t stop to wonder whether the information or evidence is material and admissible. Just disclose it.

Editor’s note: In the next issue of this journal, watch for analysis and commentary from experts about how prosecutors will practice law in light of this decision.


1 Schultz v. The Board of Disciplinary Appeals, No. 55649 (Tex. Dec. 17, 2015), http://www.txboda .org/sites/default/files/Schultz55649%20Opinion .pdf.
2 Remember, information or evidence is “favorable” for disclosure purposes when it is either exculpatory (i.e., tending to justify, excuse, or clear the defendant from guilt); useful for impeachment (i.e., anything offered to dispute, disparage, deny, or contradict); or mitigating (i.e., useful to the defense during punishment proceedings). See Little v. State, 991 S.W.2d 864, 866-67 (Tex. Crim. App. 1999); see also Banks v. Dretke, 540 U.S. 668, 702 (2004) (explaining that prosecutors are obligated to disclose mitigating punishment evidence, such as a State’s witness’s status as an informant).
3 Brady v. Maryland, 373 U.S. 83 (1963).
4 Although the United States Supreme Court has issued numerous opinions clarifying and shaping the Court’s original holding in Brady, for the sake of simplicity the line of such cases is referenced herein as just “Brady.” See, e.g., United States v. Bagley, 473 U.S. 667, 676 (1985) (reiterating that the prosecution has a general, affirmative duty under the Due Process Clause of the Fourteenth Amendment to disclose to the defense any evidence favorable to the accused and that, “if disclosed and used effectively[,]…may make the difference between conviction and acquittal”); Giglio v. United States, 405 U.S. 150, 154 (1972) (finding no exception to the prosecution’s duty to disclose under Brady even when the prosecutor actually trying the case was unaware of the existence of favorable evidence and, thus, establishing that favorable information or evidence is constructively “attributed … to the Government” as a whole).
5 Schultz, No. 55649, at *2, 21 (“Based on the plain language of Rule 3.09(d) and significant differences between the purpose and application of the duty under the disciplinary rule and the constitutional duty under Brady, we hold that Rule 3.09(d) is broader than Brady”).
6 Id. at *4, 21.
7 Id. at *4.
8 Id.
9 Id.
10 Id. at *5. When Schultz was assigned to prosecute the Uriostegui case, he had been licensed to practice law in Texas since 1995, and he had been a state and federal prosecutor for more than 16 years. Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 BODA took the opportunity to explain the significance of the prosecutors’ investigation into this possible alternative suspect by including a footnote quoting the habeas judge’s comments on it. See footnote 9, pages 15–16. The habeas judge believed that investigating an additional suspect after disclosure of the victim’s original identification was a tacit admission by the prosecutors that the information about Malagon was indeed Brady information.
16 Schultz at *5.
17 Id. at *5-6.
18 Id. at *5.
19 Id. at *6.
20 Id.
21 Id.
22 Id.
23 Schultz, No. 55649, at *6; see Ex parte Masonheimer, 220 S.W.3d 494, 507-08 (Tex. Crim. App. 2007) (explaining that double jeopardy may attach and bar retrial when a defendant’s mistrial was “necessitated primarily by the State’s ‘intentional’ failure to disclose exculpatory evidence”).
24 Schultz at *6.
25 Id. at *6-7.
26 Id. at *7.
27 Id.
28 Id.
29 Id. at *1, 7.
30 Id. at *2.
31 Id. at *2, n.2.
32 Tex. Disciplinary Rules Prof’l Conduct R. 3.09(d).
33 Tex. Disciplinary Rules Prof’l Conduct R. 3.04(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar Rules, art. X, §9, R. 3.04).
34 Schultz, No. 55649, at *10 (citing ABA Comm. On Ethics and Prof’l Responsibility, Formal Op. 09-454 (2009)).
35 Id. at *10 (quoting Tex. Disciplinary Rules Prof’l Conduct R. 3.09(d) cmt. 1); ABA Formal Op. 09-454.
36 Id. at *12.
37 Id. at *11.
38 Id. at *10 (citing ABA Formal Op. 09-454).
39 Id. at *13.
40 Id. at *13-14.
41 Id. at *10.
42 Id. at *10 (citing Tex. Disciplinary Rules Prof’l Conduct Terminology); Cohn v. Comm’n for Lawyer Discipline, 979 S.W.2d 694, 699 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
43 See Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011) (explaining that, pursuant to Brady, even when an individual prosecutor is not personally aware of favorable evidence, “the State is not relieved of its duty to disclose because ‘the State’ includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case”).
44 Pena, 353 S.W.3d at 810.
45 See Schultz, No. 55649, at *15-16, 19-21 (affirming that a prosecutor violates Rule 3.04(a) “where [the] prosecutor fail[s] to disclose information tending to negate the guilt of the accused as required by Rule 3.09(d) or other law, regardless of intent”).
46 Id. at *19-20 (quoting 48A Robert P. Schuwerk and Lillian B. Hardwick at §8:4).
47 Article 39.14(h), enacted as part of the Michael Morton Act and effective January 2, 2014, provides: “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.” Tex. Code Crim. Proc. art. 39.14(h).
48 Compare Tex. Code Crim. Proc. Ann. art. 39.14(h) with Tex. Disciplinary Rules Prof’l Conduct R. 3.09(d).
49 Compare Tex. Disciplinary Rules Prof’l Conduct R. 3.09(d) with Model Rules of Prof’l Conduct R. 3.8(d); Schultz, No. 55649, at *13.
50 See Schultz, No. 55649, at *13-14 (citing ABA Formal Op. 09-454) (emphasizing that “[Model Rule 3.8(d)] requires prosecutors to give the defense the opportunity to decide whether the evidence can be put to effective use”—as opposed to permitted the prosecutor to make the subjective determination of what information or evidence may be material and admissible).
51 Id. at *11.