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! 

MMA Growing Pains

Texas is closing in on the end of its second year of living with meaningful criminal discovery via the Michael Morton Act ("MMA").  At the close of year one, the Texas Defender Service and Texas Appleseed prepared a terrific report reviewing implementation challenges (and the absence thereof, in some quarters).   But in addition to the sorts of logistical and administrative issues that featured prominently in that report, questions about the substantive scope of revised Article 39.14 of the Texas Code of Criminal Procedure continue to percolate.  Two such issues recently caught my eye.

Over at the Texas District and County Attorney's Association user forum, prosecutors have been chewing on whether they have a duty under either Brady v. Maryland or the MMA to obtain, scour, and disclose a defendant's probation records - documents that, unlike law enforcement records, apparently are not routinely provided to prosecutors by probation agencies.  In a similar vein, the Attorney General recently issued an opinion responding to the Tarrant County DA's query as to whether Brady or the MMA requires prosecutors to review recordings of jail-inmate telephone calls that are created and stored on the servers of a private company under contract with the county. Texas Lawyer reported on the opinion request here and here.

I won't go on here about what the "right" answer is to these questions.  In brief, it seems right to me, as folks at the user forum concluded, that probation records probably need to be disclosed, at least in a proceeding to revoke or adjudicate after a deferred adjudication disposition.  As for jail calls, I find the AG's opinion fairly confusing, and confused, with respect to both the MMA and Brady doctrine. The bottom line seems to be, according to the opinion, that disclosure is required only if investigators or prosecutors actually listen to the calls, and that all calls might be deemed in the "control" of the prosecutor if their contract with the recording company gives them "unfettered" access.  Good luck to prosecutors making sense of that, and to defense attorneys who might be stuck with a lot of jail calls to review when cautious prosecutors just disclose the whole kit and kaboodle.  (My advice to DA's offices is to revisit your contracts to limit your access to the calls!)

The more interesting point for me is this.  The queries are a good reminder that even under a statutory scheme that specifies, in essence, full disclosure by the state of anything that is "material to any matter involved in the action" (39.14(a)), questions will arise about the substantive scope of the obligation.  Open file is not a "set it and forget it" regime.  (I've been learning about this in some detail as the Reporter to the ABA's task force on criminal discovery standards, where task force members from North Carolina have shared accounts of that state's continuing process of revisiting and respecifying its "open file" discovery law.)  In fact, the more sweeping the legal disclosure obligation, the more that questions arise about items on the margins.  That's because from the prosecutor's standpoint, the burden of sorting through masses of documentation for the "material" bits becomes laughably burdensome; and on the flip side, the burden to the defense of receiving huge quantities of documentation that might contain a scintilla of relevant information is equally if not more deleterious.

A corollary observation is that neither the MMA nor any other discovery regime can fully remove discretion - prosecutorial discretion in particular - from the equation.  Prosecutors are necessarily making judgment calls about where to draw the line.  That's probably inevitable: no statute can fully specify its parameters.  But one of the potential dangers of open file regimes is a kind of lulling of defense counsel into reliance on the discovery packet.  The probation and jail calls conversations are good reminders to defense counsel that affirmative queries will still be required both to acquire relevant and helpful information in the control of the state, and to tee up for judicial determination some of the judgment calls that prosecutors might be making.