CCA rejects death penalty cases over Brady violations: What statutory changes might deter withholding exculpatory evidence?

Here's something you don't see everyday, from the Dallas News Crime Blog:

Two death row inmates received favorable rulings from the Texas Court of Criminal Appeals on Wednesday, a rare occurrence, but particularly unusual because of the reasons: possible prosecutorial misconduct.

Michael Roy Toney, who was convicted in Tarrant County for killing three people in 1985 with a briefcase bomb, was ordered a new trial because of his claim that prosecutors failed to disclose evidence. Joseph Andrew Prystash, who was convicted in a 1994 murder-for-hire case out of Harris County, had his case sent back to the trial court for consideration of his claim that the state suppressed evidence.

Another death row inmate making a similar claim, Rodney Reed, was not so lucky. The Court denied relief, saying Reed, who was convicted of murder in Bastrop in 1996, failed to show the state did not disclose favorable evidence.

See the Fort Worth Star Telegram coverage of the Toney case.

Rodney Reed was denied a new trial by the CCA despite strong new evidence which only emerged after his conviction implicating the victim's fiance, a police officer named Jimmy Fennell, who is currently "serving 10 years in prison after pleading guilty in September to kidnapping and improper sexual activity with a person in custody." Reported the Austin Statesman:

Wednesday's court opinion noted some of the evidence that Reed's lawyers say suggests Fennell's involvement — including that he gave deceptive answers in a polygraph test during the investigation — "arouse a healthy suspicion that Fennell had some involvement in Stacey's death."

Even so, the court ruled that a "healthy suspicion" someone else committed the crime does not rise to the level of "reasonable doubt" and that a jury wouldn't have ruled any differently. Personally I doubt that they can really know that with such absolute certainty, given how much new information has come out about that case.

In any event, the common thread here are allegations of prosecutorial misconduct - specifically so-called "Brady" violations (i.e., withholding exculpatory evidence).

I wish I believed these two cases indicated the Court of Criminal Appeals is becoming a more interventionist watchdog over prosecutorial misconduct, but their past record can't be mitigated by just a couple of cases, though I certainly hope this is the beginning of a shift in thinking among the court's majority. Still, the CCA's oversight isn't a significant enough deterrent to Brady violations and I believe more preventive measures are needed.

The single best solution would be to mandate an "open file" policy in every Texas jurisdiction (right now it's done at the discretion of the local DAs and county attorneys) so that defense counsel could have access to the same police reports, witness statements, and other documents the prosecutors get to see. That system works wonderfully in Tarrant County, where these files are kept online and defense counsel can access files on their cases via a password that lets them see everything in there.

A more punitive approach was suggested by Dallas District Attorney Craig Watkins, who in the past has endorsed boosting criminal penalties for knowing Brady violations. Incoming Harris County DA Pat Lykos has also said that could be appropriate in some cases.

For my part, I'm not sure creating some new crime is needed so much as tweaking an existing one to allow its use in the types of cases where Brady violations routinely come up. I'm not a lawyer, but I don't see why a knowing Brady violation couldn't (theoretically) be prosecuted as a Class A misdemeanor under the rubric of "abuse of official capacity" (See Title 8, Sec. 39.02 of the Texas Penal Code). The problem comes because too often the violations aren't identified until years after the fact when the statute of limitations has already expired.

(Let me know in the comments, by the way, if you think a Class A misdemeanor is a stiff enough offense category for knowingly withholding exculpatory evidence in a capital case.)

Perhaps instead of creating a new offense, the timeline on the statute of limitations for "abuse of official capacity" could be changed to begin when the problematic behavior is discovered instead of when the offense is committed. After all, the harm to the falsely convicted defendant has been ongoing and didn't stop two years after the event.

Another option would be to create a new, separate crime with its own penalty categories, but in general I believe we've got plenty of laws on the books and for the most part only need to tweak and adjust the ones we have.

It's not so radical to think public officials deserve this extra layer of accountability. The statute of limitation for theft by a public servant is already one of the longest on the books - ten years - because of the extra expectation of integrity imposed on public servants. Revamping the limitation for "abuse of official capacity" would help ensure rogue prosecutors and others in positions of authority aren't rewarded for successfully concealing their crimes.

Equally important to realize: To a large extent this problem stems just as much from the failure of the legal profession's self-regulation of individual prosecutors' misdeeds. In truth, I wish the State Bar of Texas were handling its own business more aggressively so that it weren't necessary to turn to criminal statutes to enforce prosecutorial integrity.

If the state bar disciplinary committee began sanctioning prosecutors who engage in Brady violations or even, in egregious cases, stripping them of their license to practice law, there would be no need to contemplate tougher criminal penalties.

If that day ever comes, these problems would soon, IMO, self correct. Most prosecutors aren't engaging in overtly unethical behavior and the rest largely do so because there's virtually no risk they'll face any consequences for their actions. After all, lawyers, as a class, are generally a risk-averse lot. I'll bet they're much more responsive to adjustments in criminal sanctions than almost any other class of defendants.

MORE: Eye on Williamson County has more on the Reed/Fennell case.