Thursday, November 24, 2016
CCA plurality: 11th-hour evidence disclosure insufficient to comply with Brady
David Temple may be the most thankful Texan in the state today.
At the habeas hearing, Siegler testified before Judge Gist that she had no obligation to turn over potentially exculpatory evidence if she did not herself believe it was true. That "misconception" is what convinced three members of the court to sign on to a plurality opinion by Richardson granting a new trial (Judge Newell, who until recently worked for the Harris DA appellate division, did not participate in the case.)
Kevin Yeary provided the fifth vote for a new trial with a rather odd and IMO pointless concurrence. He would not have found Brady violations but instead grant relief based on ineffective assistance of counsel, with the ineffectiveness in question being that they could not adequately use information from the 1,400 pages because they were handed over so late. In other words, Yeary agrees the defendant got screwed but prefers to blame defense counsel for the prosecution's delayed disclosure. It's opinions like this one that make me think Yeary is moving quickly toward the Government Always Wins faction, though, as in this case, he still has one foot planted outside that tent.. That was a ton of work to craft an opinion whose sole purpose was not to change the result but to pretend that Kelly Siegler did not improperly withhold exculpatory evidence, when clearly she did so.
The other three judges in the Government Always Wins faction - Keller, Hervey, and Keasler - dissented but did not explain why. That's become somewhat common when they lose, but IMO an unexplained dissent here doesn't pass the smell test. If you think the result was wrong, explain why. Grits' sense is that, in cases like this, they don't explain their thought process because to do so would expose (barely) hidden motivations. It's difficult to disagree with Judge Richardson's reasoning that the extraordinary delay in disclosure prevented the defendant from getting a fair trial. Even Judge Yeary agrees that defense counsel couldn't adequately make use of the police reports so late in the process.
But although these three GAW-faction judges clearly believe convictions obtained in this fashion should be upheld, explaining why and how would open them to ridicule and condemnation in the legal community. They would be justifying Brady violations that cannot be viably defended on legal grounds. Instead, it looks to me like the three GAW judges are heeding some of my father's favorite advice, "It's better to remain silent and be thought a fool than to speak up and remove all doubt." And because media coverage of the court is so sparse and poor, they pretty much always get away with this sort of one-sided pro-government gamesmanship.