Monday, November 16, 2015

Open up police disciplinary files to honor Michael Morton Act obligations

In the comments to this Grits post on the exoneration of Carlos Flores, Jay Brandon, chief of the Bexar County DA's Conviction Integrity Unit rightly deflected blame from prosecutors in the case. Wrote Brandon:
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.


Anonymous said...

How does Texas Local Government Code 143.089 (1989) supersede requirements set forth in Brady v. Maryland (1963)?
Who gets penalized (other than the defendant) and who does the punishing, Mr. DA?

Anonymous said...

It's been stated before...remove the responsibility of the Conviction Integrity Unit away from the District Attorneys office. Give the CIU to the Public Defenders Office who have a greater motive to dig into police files for Brady Material.

Then we don't have to listen to people like Jay Brandon make excuses for being lazy and/or ignorant.

Anonymous said...

The police/guards/prosecutors have so many different levels of protection, that it is appalling how we have slowly descended into becoming a police state. Citizens review boards are helpless, internal integrity units are a joke, people suffer. Killings and deaths by reckless, negligent, or downright criminal police/guards/prosecutors are commonplace. Citizens are becoming more and more aware that "serve and protect" can easily turn into "serve and protect our own sick interest."
"In addressing allegations of police misconduct, review boards are often toothless and blind. “Scripps News reached out to the more than 200 civilian oversight organizations across the nation, and found that nearly two-thirds of those that responded don’t have their own investigators. They rely on police department internal affairs officers to determine if a fellow officer went too far.” WPTV 5 as
reported by The Marshall Projects.
I hope the God will forgive all these perpetrators, because, I believe, the families of Sandra Bland and others never will.
As for me, I hope that, if even a small level of conscience allows those perps to feel some guilt, the guilt alone will eat them up. But those sociopaths in the force will feel no guilt. I have met many. They are COWARDS AND BULLIES - only fear will move them. If you are reading this and the shoe fits: you will NOT change. May God forgive you. Families will not. May their grief and anger toward you create a karma effect that will make your life miserable --- but may be it already is miserable and you take it out on whomever does not challenge you enough for you to quit your job which you use for evildoing.

Unknown said...

We do need a better system of accountability.

Anonymous said...

"...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..."

This was actually a case of improperly conducted pre-conviction Brady violation. You don't get bonus points post-conviction for screwing up your job during pre-conviction.

Mr. Brandon, should we assume that you reported the offending prosecutors to the State Bar for ethics violations?

I thought not...

Anonymous said...

A poor performing cop's right not to be embarrassed or more importantly shielded from impeachment on the witness stand pales in comparison to a defendant's right to a fair trial for his liberty and sometimes his life.

Anonymous said...

Ya know, Mr. Brandon, if there was PRE-conviction integrity...there would be no use for a post-conviction integrity unit.

Did you "suggest and cooperate" to report those offending prosecutors to the Texas State Bar for ethics (and perhaps criminal) violations?

You don't get belly rubs for 1/2 a job.

(sorry for the repeat post.)

Darrow said...

In almost all cases, disciplinary records will not be admissible. See Rule 608 of the Texas Rules of Evidence. And Brady won't help because of the definition of "material."

Anonymous said...

Wow. Have you ever tried a case? There are all sorts of ways to get a cop's past conduct into evidence. Usually all you have to do is let them open their lying mouths and you have all sorts of open doors.

Anonymous said...

Brady Material - any evidence favorable to the accused-- evidence that goes towards negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence going to the credibility of a witness.

Wouldn't it be up to the Defense Attorney to determine what is or is not "favorable". Maybe a jury should decide the weight of the evidence provided?

Gritsforbreakfast said...

@Darrow, it was material in this case, wasn't it?

Besides, the Michael Morton Act requires impeachment evidence be revealed over and above Brady. And you don't know if the evidence is "material" until you see it. E.g., if the cop was punished for mendacity, that's precisely the sort of thing Rule 608 envisions coming into evidence. Cops can't (or shouldn't) just assume impeachment evidence won't be material and thus never let prosecutors see it.

Darrow said...

Of course evidence that a cop lied in the very case for which the defendant is being tried, but it disingenuous to suggest that lying in other cases will always be discoverable or admissible. Remember, as I've pointed out before, the CCA does not regard inadmissible evidence as discoverable, and the Morton Act does not address the issue. As for Rule 608, find me a case that holds what you wish were the law. Rule 608 in fact bars attacks on general credibility--the exact opposite of your assertion about the intent of the rule. Grits, I'm on your side. Really. But perhaps you should be addressing a change in the rules of evidence rather than blinding asserting something that is not the law.

Darrow said...

Wow. Have you ever read the rules of evidence ? Please feel free to share "all the ways" you would get the evidence in over the objection of a prosecutor who knew about Rule 608.