Rainy Day Reading

Poking around this afternoon on some state agency websites, I ran across several disparate items I wanted to record for my own purposes which may also interest Grits readers:

State Prosecuting Attorney: Check out an interesting Power Point detailing different legal provisions establishing prosecutors' duty to disclose evidence to the defense in Texas, as well as limitations on defense attorneys' ability to advise clients on how to handle potentially incriminating evidence.

Texas Indigent Defense Commission: See a variety of linked training resources related to magistration, managed-assigned counsel programs, and competency restoration from a conference in January. This presentation on the challenges of implementing the Fair Defense Act included a chart demonstrating smaller Texas counties are still resisting requirements to appoint counsel for indigent defendants in misdemeanor cases.

Texas Forensic Science Commission: The commission has published a complete list of licensed technicians and forensic analysts in Texas. Here's more background on the licensing program, which took effect last year. 

Texas Commission on Jail Standards: Here's their guidance to jails on implementing Governor Abbott's new executive order forbidding county jail visitation except for attorneys and clergy.

Texas Commission on Law Enforcement: See their guidance to agencies on law-enforcement training delayed by coronavirus restrictions. There are currently more than 80,000 licensed peace officers in Texas, or about 2.7 cops for every 1,000 people.

Stop the Train! An Epic Indigent Defense Fail in Travis County, execution scheduled without hearing on snitch recantation, new music from Just Liberty's decarceration campaign, and other stories

Here's the latest episode of the Reasonably Suspicious podcast for April 2018. You can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:


In this episode, we discussed:

Top Stories

• Travis County indigent defense system producing terrible outcomes. 
• Texas Supreme Court to consider whether prosecutors can be fired for refusing to break the law. 
• Listen to Just Liberty's new anti-incarceration/prison-closure jingle!  (~9:00 mark.)

Death and Texas

• Juan Castillo may be executed next month but courts haven't considered informant recantation. 

Fill in the Blank

• Litigation in Galveston County made national press after a judge refused to pay for defense-attorney investigation in misdemeanor case. 
• Two Tarrant County cases show how politicized elections-based criminal prosecutions can be. 
• Former Congressman Sylvestre Reyes authored a clueless column on Texas and the opiod crisis.

The Last Hurrah

• Houston limits zoning for offender services. 
• The Tyler Court of Appeals declared Texas' "revenge porn" statute unconstitutional. 
• The Harris County Sheriff fired the deputy who shot Danny Ray Thomas, an unarmed black killed man amidst a psychotic episode while his pants around his ankles when he was killed. 

Find a transcript of this episode below the jump.

Two Big-D capital-murder cases overturned for prosecutor misconduct

Stanley Mozee and Dennis Allen, two Dallas men convicted of capital murder and sentenced to life prison for a 1999 robbery, have finally been cleared of capital-murder charges after the Texas Court of Criminal Appeals approved habeas relief last week.  Their cases were championed by the national Innocence Project and my former employers at IPOT. The CCA set aside their convictions without confirming their innocence. (In cases lacking exonerating DNA or other forensic evidence, that's typically been the best the CCA has been willing to do.) There will be no new trial, however. The Dallas DA's office already agreed to their release in 2014 pending this decision, and has agreed the cases should be set aside.

Instead of straight-up innocence claims, the convictions were overturned based on withheld exculpatory evidence, the failure of prosecutors to disclose incentives for snitch testimony, and prosecutor Rick Jackson allegedly soliciting testimony he knew was false then failing to correct it. See good writeups from the national Innocence Project and from The Open File. Here's the order from the trial judge the CCA affirmed, and 2016 coverage of the case from the Dallas News.

RELATED: This seems like a good opportunity to link to attorney Jessica Brand's recent explainer article, "The Epidemic of Brady Violations Explained." The Michael Morton Act resolved some, but not all, of the discovery problems in Texas, it should be said. The disclosure requirements on Texas prosecutors today significantly exceed those under Brady, which exclusively governed criminal discovery at the time Mozee and Allen were tried.

CORRECTION: The date of the robbery and conviction were misstated in the original post and have been corrected.

Carlos Flores and the folly of secret police disciplinary files

At the SA Express-News, Rick Casey has a column following up on an episode discussed here on Grits involving the case of Carlos Flores. Despite having no criminal record, and contrary to his original claims that the officer had assaulted him, Mr. Flores pled no contest to assault on a public servant and later went to prison over probation violations. ("He missed several meetings with his supervision officer, hadn’t paid restitution or completed community service.") However:

What Flores wasn’t told, nor was the DA’s office, was that the Police Department determined that the officer had filed a false report on the Flores case and had violated department policy by not taking the seriously injured man to the hospital before booking him. The officer was suspended for 30 days without pay.

Photographs reportedly showed Flores with a severely beaten face and the officer with only a small mark on his.

Based on this and other evidence, the district attorney’s Conviction Integrity Unit filed a motion to dismiss the charges.

According to the FBI, who interviewed Flores a month before his conviction, this wasn't the only episode in which Officer Belver was alleged to have beaten up suspects.

Casey pointed out a disconnect in open-records and criminal discovery law that Grits has highlighted previously, including in relation to the Flores case. Hundreds of Texas law enforcement agencies operate with their disciplinary files subject to the Public Information Act, including all sheriffs departments except Harris County. But in police departments for 73 or so Texas municipalities, big and small, which have adopted the state civil service code, those files are secret except for brief summaries of episodes for which officers receive the most serious punishments. As with police use of Stingray surveillance equipment, even prosecutors can't see the records.

Clearly there's a structural problem. Information in police disciplinary files often qualifies as impeachment evidence which, under Brady v. Maryland and the Michael Morton Act, Texas prosecutors are obligated to produce. But that's a problem with a (legislative) solution. Since we know that hundreds of cities already operate with police disciplinary files subject to the Public Information Act - Dallas and El Paso are the two largest that never adopted the state civil service code - there's no reason to believe removing that open-records exemption would be harmful or unworkable.

Grits has previously suggested a simple legislative fix to this: "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." Easy peasy.

One also notices, though, that in this case, the officer who attacked Flores was given a 30-day suspension, which should have been long enough, even under the civil-service code, for the police department to be required to release summary information regarding a sustained complaint. So, while it's surely true the police department didn't forward the exculpatory information, it's also clear the DA's office wasn't tracking police-officer misconduct because that decision would have been a public record. Under the new DA, Nico Lahood, Casey reported, the office "has developed a list of officers in the county’s numerous police agencies whose disciplinary records should be disclosed to defense attorneys." So maybe that sort of proactive information gathering is happening now in Bexar County.

Prosecutors definitely should disclose police misconduct to the defense when they know of it, and the Michael Morton Act relieved them of any obligation to determine if the misconduct is material to the case, they simply have to disclose it. But if disciplinary files in civil-service cities were made a public record, as is the case in most law-enforcement agencies across the state, chances would improve greatly in any given instance that defense counsel will get hold of the information even if prosecutors conceal it. Plus, there are numerous other public-interest reasons for disclosing police misconduct beyond compliance with the Michael Morton Act. FWIW, Texas isn't the only state struggling with exactly this issue.

CCA proposes rules amendments to one-sided habeas process

The Texas Court of Criminal Appeals last month solicited public comments on new rules governing habeas corpus filings and witness statements, among other things. See here. For those who have an interest, your deadline for public comment is January 31st.

Although this was already part of the existing rules of appellate procedure, this tidbit jumped out at me. The State can file a motion for rehearing when they lose at the CCA on a habeas corpus writ, but writ-filers may not:

"A motion for rehearing an order that denies habeas corpus relief or dismisses a habeas corpus  application under Code of Criminal Procedure, articles 11.07 or 11.071, may not be filed," reads the rule. By contrast, the state may file a motion for rehearing if it is grounded on specific "substantial intervening circumstances or on other significant circumstances."  

In some sense, Grits understands this. Mostly pro se writ petitioners would have little incentive not to file motions for rehearing and the volume of pro se writs already is crushing the court. Grits believes the process would be much improved if, in the interests of justice and judicial economy, the state provided public-defender services for prisoners' habeas writs so they were more on point legally and less repetitive and fruitless as a practical matter. That's a topic for another day.

But the plain lopsidedness of allowing the state to seek rehearing - as, for example, prosecutors did in the Ex Parte Robbins case interpreting Texas' new junk science writ - but not allowing writ petitioners sitting in prison a similar second bite at the apple, for example, if membership on the court changes after a close decision, smacks of unfairness. For a court whose presiding judge once ran on a "pro prosecution" platform, it's a bit jarring to see that opportunity so expressly cabined to government and denied to the individual.

Notably, even capital defendants (CCP 11.071) are denied motions for rehearing, though if pigs fly that day and they win at the CCA, the state can ask the court to reconsider it.

Meanwhile, regarding implementation of the Michael Morton Act, the court clarified that the rule requiring witness statements to be turned over at trial after they testify does not preclude prosecutors' responsibility to comply with the Michael Morton Act. Their comment seemed like a workaday interpretation to this non-lawyer, but it clarified that Michael Morton Act obligations regarding witness statements, which by definition include grand jury testimony (!), must be fulfilled before trial, not punted until after a witness testifies.

Grits may disagree with various CCA judges on various issues, but it seems to this non-lawyer observer like all of them have embraced the Michael Morton Act to a greater degree than I ever expected. Good for them.

The Court also set a public hearing on April 5 in Austin regarding electronic filings in criminal cases.

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.