CCA: 'Reckless,' 'negligent' prosecutors don't merit sanction by courts

The prosecutors association's weekly case summary from last week includes this summary of a new case from the Texas Court of Criminal Appeals which affirmed a judge's decision not to exclude physical evidence withheld from the defense before trial:

Francis v. State

No. PD-0519-13                     4/30/14

Issue:
Did the prosecutor willfully violate a pre-trial discovery order requiring inspection of all physical evidence when, on the first day of trial, she revealed to defense counsel a machete to be entered into evidence when all the information previously available to the defense indicated only a small knife was alleged as a deadly weapon? 

Holding:
No, but only because the trial court didn’t see it that way, and the Court of Criminal Appeals concluded that under these facts, almost absolute deference was owed to the trial court’s implicit conclusion that the prosecutor’s conduct was less than willful. The opinion notes that under the same facts, the trial court could also have found the prosecutor’s actions to be willful and suppressed the evidence. Read the opinion. 

Notably, Judge Tom Price opined in the main ruling that, "Because exclusion of evidence in this context is in the nature of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should exclude evidence on this basis has been made to hinge on "whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.] Extreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding evidence." 

Indeed, according to the opinion, "the trial court could rationally have concluded that, despite her protestations to the contrary, the prosecutor's behavior constituted 'a calculated effort to frustrate the defense' ... But the trial court was not obliged to draw that conclusion" since her conduct "may have been only reckless, or merely negligent," and the CCA held that "we owe almost absolute deference to the trial court's implicit conclusion that the prosecutor's conduct was less than willful."

Nowhere in the appellate record are we told the name of the prosecutor in question who was either "negligent," "reckless," or in the opinion of Justice Evelyn Keyes from the First Court of Appeals, guilty of willful misconduct. In her dissenting opinion from the First Court, Keyes said she would have held the prosecutor's conduct to be "willful" and excluded the machete as evidence. Keyes noted that:

(1) the machete was not mentioned in any discovery, including the offense report, witness statements, or Thomas’s medical records related to the robbery; (2) the machete’s existence came to light only after defense counsel observed the machete among the State’s exhibits at trial, not as a result of any voluntary act by the prosecutor; (3) the State had possession of the machete for more than one month prior to trial; and (4) the State failed to disclose other evidence it introduced ― threatening telephone calls Francis made to Thomas while in custody―in violation of the discovery order.

Based on that, she concluded, "I would hold that in failing to disclose the existence of the machete in its possession and Thomas’s statement about its use in the course of Francis’s assault on her, the State acted voluntarily and with the specific intent to violate the trial court’s discovery order." The CCA, though, unanimously disagreed, saying that the judge's interpretation trumped the cited evidence.

I find myself wishing once again that appellate courts would name prosecutors when a judge issues an opinion that they willfully withheld evidence or even were "reckless" or "negligent," which seems to be the array of options presented in these two appellate reviews. Indeed, I can't even tell the prosecutor's name from the online information about the case at the trial court level. One reason prosecutors aren't more often held accountable - by the state bar or anybody else - is that nobody but insiders can tell when courts find they've been "reckless," "negligent," or engaged in misconduct. And I'm sure the Harris County DA won't discipline the prosecutor in this circumstance - they'll just call the case a "win" and move on.

UPDATE: In the comments, the defense attorney in the case confirmed that "The trial prosecutor was Gretchen Flader. The presiding judge was Mike Anderson (visiting judge for Marc Carter)."