I am the chief of the conviction integrity unit in the Bexar County DA's office, and I handled this case post-conviction. Police never forwarded this information to the District Attorney's Office until a couple of years after the conviction, when a writ was filed. It was at my suggestion and with my cooperation that the defense subpoenaed the records that showed the disciplinary action. This wasn't a case of prosecutors hiding evidence, it was a case of a properly conducted post-conviction review by the District Attorney's Office.Closed police disciplinary files in civil service cities have long been a hobby horse for this blog. But only after passage of the Michael Morton Act, which explicitly demands that impeachment material be handed over, has the issue come clearly into focus among the various stakeholders. The Texas Court of Criminal Appeals' Criminal Justice Integrity Unit identified this issue in the early months after the law took effect.
It makes no sense that these records would be secret at San Antonio PD and public if the same thing has happened to a Bexar County Sheriff's deputy, but that's how state law presently treats law enforcement disciplinary records. Most cities which operate under the civil service code voted to opt in in the '40s and '50s, decades before the Legislature changed the law in 1989 to close civil-service disciplinary files.
Understandably, prosecutors like Mr. Brandon don't want the DA to be blamed because police kept something secret. And police in Texas' 73 or so civil-service cities can claim state law mandates they can't share disciplinary files ... which is true, or at least has been since 1989, when the unions got the law changed. So everybody gets to pass blame to the next guy until we get to the Texas Legislature, which both created the problem and is the branch of government most readily in a position to fix it. (The courts could do it, but that would get messy.)
So yes, even though Grits stands by the headline that the "State hid evidence," in this case that doesn't imply prosecutorial misconduct. But the episode demonstrates that the "state's" responsibility is a shared one. It can't just be on prosecutors or they can't fulfill their duties. Police and ultimately, the Legislature, must do their part or the portion of the law requiring impeachment evidence about officers to be handed over to the defense becomes a dead letter: Prosecutors can't turn over materials they themselves never see.
The Lege should remove this excuse for civil-service departments - which are only a few dozen agencies out of 2,600+ statewide, though they include some of the largest - to thumb their noses at prosecutors and their Michael Morton Act and Brady v. Maryland obligations. Just eliminate (f) and (g) in Local Government Code 143.089 to open those records to the same extent as at county sheriffs and hundreds of other Texas law enforcement agencies. Or perhaps they should just strike 143.089 altogether. Maybe the state doesn't need to regulate what's in a local department's disciplinary files so long as they're open.