President's Message: Discovery - By Samuel E. Bassett

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Tuesday, February 16th, 2016

As a law student, I had a front row seat at the Michael Morton trial. I watched as two of my mentors and then employers—Bill Allison and Bill White—fought during the Morton murder trial in the late 1980s. I was a green law clerk, watching with my eyes wide open. A constant frustration throughout the case was the deep suspicion that evidence was being withheld, but there was no way to know for sure. Never was this more apparent than when the state declined to call the chief investigative deputy (Don Woods) and instead called legendary Williamson County Sheriff Jim Boutwell. On cross-examination, Boutwell was asked if he had prepared a report, if he had taken notes, if he had made sketches... anything? His repeated answer: “No,” except for one small page of limited notes. It took decades to discover what was withheld. That story is now well known. Key pieces of exculpatory evidence were found in the state’s file, items NEVER given to the defense. I remember Bill Allison telling me, “The biggest problem we have is that people don’t want to believe that random intruders can commit murder.” It turns out, Bill was exactly right. Three decades later, Michael is free and a random intruder is in prison for the brutal murder of Christine Morton.

Fast forward 30 years and we now have numerous instances of prosecutorial conduct exposed. Ken Anderson (the Williamson County District Attorney who prosecuted Morton) is now without a law license and has a conviction as a result of the misconduct. Charles Sebesta has been disbarred after a State Bar evidentiary panel found that he submitted false testimony and withheld favorable evidence in gaining a conviction against Anthony Graves. John Jackson, the former prosecutor in the case of State v. Cameron Todd Willingham, is facing possible disciplinary action for failing to disclose evidence of a promise of benefit to a snitch who testified in Willingham’s trial, which resulted in a conviction and execution despite the use of dubious “scientific” testimony regarding the alleged arson. Kelly Siegler, a legendary prosecutor with a strong media presence, now faces possible disciplinary action in State v. David Temple, in which she is accused of withholding favorable evidence from the defense in a legendary trial court battle with Dick DeGeurin. In fact, Retired District Judge Larry Gist made a finding on habeas that Siegler withheld facts during her prosecution of the case that would have assisted him in preparing a defense (kudos to Stanley Schneider and Casie Gotro for their work on the habeas).

Moving forward on these and other cases, the question becomes:

What is the real impact of these cases on the State Bar of Texas and disciplinary enforcement of prosecutors who fail to disclose exculpatory evidence or other evidence required under Brady and/or Article 39.14 of the Code of Criminal Procedure?

We may have the beginning of an answer in William Allen Schultz v. Commission on Lawyer Discipline (December 17, 2015). In that case, the Board of Disciplinary Appeals held that Article 3.09(d) of the Texas Discplinary Rules of Professional Conduct actually imposes a duty on all prosecutors that may very well exceed the limits of Brady. One argument from the prosecutor in the case, Mr. William Allen Schultz of Denton County, is that a prosecutor’s duty to disclose evidence to the defense should be limited to the due process requirements under Brady so as to avoid “multiple confusing standards.” The Board responded by writing, among other things:

We do not find this argument persuasive, particularly because of the recent amendment to Texas criminal procedure that now mandates the same standard for disclosure as Rule 3.09(d): Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. Tex. Code Crim. Proc. Ann. art. 39.14(h) (West Supp. 2014) (effective January 1, 2014). Although art. 39.14 is not dispositive in this case, its promulgation refutes Schultz’s position that imposing a broader duty on prosecutors to disclose information to the defense than Brady creates an unworkable burden. That “unworkable burden,” if there is one, already exists.

In the Schultz case, the prosecutor failed to disclose to the defense, in an Aggravated Assault prosecution, that the complaining witness had stated that “I could not see his face” when asked to provide an eyewitness identification regarding her attacker, an estranged husband.

Do I believe that every prosecutor who makes a mistake should be disbarred? No. Do I believe that prosecutors who repeatedly commit violations of the rules of fair play in discovery should be disciplined? Yes. The vast majority of prosecutors I deal with take their duties on this issue very seriously, and district attorneys across the state are revamping their methods of providing discovery thanks to the revelations on the Morton case and other cases. We have come full circle on this important issue. However, we must be careful not to abuse the process of filing complaints against prosecutors or we run the risk of losing ground in this ongoing battle.