Monday, September 09, 2019

Harris DA sanctioned for Brady/Michael-Morton Act violations

In Harris County, reported the Houston Chronicle's Keri Blakinger, Judge Andrew Wright issued a monetary sanction of $500 on the Harris County DA's office for failing to hand over evidence to the defense under Brady v. Maryland/the Michael Morton Act.

The issue arose because the DA's office did not hand over evidence of sustained misconduct against an arresting officer in a DWI case until the eve of trial, many months after it was in their possession and the judge ordered them to turn it over. Reported Blakinger:
“The Court finds that the State has engaged in bad faith litigation tactics,” Wright wrote in an one-page order signed Aug. 23. “The Court further finds that this is a regular and pervasive course of conduct and that sanctions are necessary to deter future bad faith conduct.”
The DA's office claims the judge has no such authority, but Judge Mike Schneider was quoted in the story saying they have ample authority to apply sanction; he only questioned whether the one-page order was broad enough.

The District Attorney's office, however, claimed the only thing the judge could do was keep giving prosecutors ever-more time to comply: “The remedy for late disclosures is simple — more time,” DA spokesman Dane Schiller told the Chronicle.

The DA says they shouldn't have to turn over such information unless there's a protective order barring public disclosure of officer misconduct. But the officer was from the LaPorte PD, which isn't subject to the confidentiality provisions around personnel files in the state civil service code. That means the records under discussion are public under the Texas Public Information Act. 

Announcing you won't release public records unless a court makes them secret seems a tad disingenuous to this writer. Attorney Jordan Lewis bore down on that point, again, from Blakinger:
“They’re only asking for protective orders when they’re handing over police disciplinary files - so they’re asking for special treatment for police officers,” he said. “This is the same office that daily stands in front of a courtroom and repeats all of the bad unproven things that cops say about ordinary citizens.” 
In addition to the $500 sanction, Wright tossed all testimony from the former officer and banned any reference to him. 
Afterward, prosecutors moved to dismiss the case.
I have no idea who's right about the legality of monetary sanctions in such a situation, but this behavior has gone on for a long time and other sanctions haven't seemed to change it. By contrast, clearly the $500 fine got the DA's office's attention! 

6 comments:

Phelps said...

Given the broad inherent powers a judge has within his own courtroom, and the fact that that office is going to have to continue practicing there, the wise move would be to pay it and stop withholding Brady material.

Instead, they are likely to make a legalistic argument, fight the negligible fine, and watch their conviction rate in that court plummet.

Oprah, not her said...

“...The remedy for late disclosures is simple — more time,” said spokesman Dane Schiller..."

Does 25 years sound about right? I know Ken Anderson was on the verge of releasing the Brady material when he was caught. He just needed more time.

"...The district attorney’s office immediately announced the intent to appeal, and argued that the Michael Morton Act “expressly has no sanctions for violations...”

Of course, if a law has no provisions for violations, then it's not really a law, right?

I would punt this DAO just for making a stupid statement such as this. A $5000 fine may get their attention.

Steven Michael Seys said...

I find it refreshing that we're seeing judicial push back against this rampant and unconstitutional practice among prosecutors in so many courts. Thank God for judges who believe in justice and the rule of law.

SEMPER FINE said...

$500.00 is probably almost as much as Kim Ogg pays in lunch tips per week. Keep in mind that any fines are paid for with public dollars.
The only way to truly get the point across is to find a way to get past immunity and reimbursement issues, and fine the individual prosecutor. Better yet, in the above situation with the previous order to disclose, find the prosecutor in contempt and give them 72 hours confinement.
Until there are personal consequences, it's very easy to act with impunity.

Anonymous said...


The problem with the $500 fine is that are at least two zeros missing on it. That fine should have been $50,0000. Now that would get the elected DA’s attention!!!!!!!

The judge should have also put the individual prosecutor in jail for contempt until he Brady material was delivered AND dismissed the case WITH PREJUDICE on his own volition. When the individual prosecutors are held accountable with jail time, they may not go along with the status quo and actually do the right thing.

Another thing the judge should have done was to file an ethics complaint with the State Bar of Texas’ Disciplinary Committee. (Not that that State bar of Texas would actually sanction a prosecutor, but it’s the thought that counts.)

The judge could also further sanction the offending prosecutor by forbidding them to further practice in their court. Ogg’s office is understaffed, and that would create complete confusion for the HCDA.

Now they will have the attention of the DA’s office and probably end the flailing about by the DA’s office over what is Brady material and their obligation to provide it.

When Kim Ogg was elected, I had high hopes for reforms at Harris County DA’s office. She’s simply more of the same, with more broken promises and the treachery of her predecessors.


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