GFALE II DOMAIN II Brady/Michael Morton Act

3 Sources of Discovery/Disclosure Obligations in TX Criminal Cases

1) CONSTITUTIONAL

US Constitution & Supreme Court ruling in Brady v Maryland

2) STATUTORY

Michael Morton Act (Article 39.14 of the Texas Code of Criminal Procedure)

3) RULES

State Bar Rules of Professional Conduct (for prosecutors)

Brady v. Maryland (1963)

CONSTITUTIONAL

-Brady found guilty of 1st degree murder & sentenced to death

-admitted to participating in crime but claimed he didn't do actual killing

-co-defendant confessed to killing

-defense never told of confession; suppressed by prosecution

-evidence that co-defendant admitted being the killer was favorable to him & could've been used to mitigate his punishment

-could've persuaded jurors not to give Brady death penalty

*established that the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense

Brady Rule

The suppression by the prosecution of evidence favorable to an accused that violates due process, where the evidence is material, either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

Brady violation consists of 3 things:

1) suppression of evidence by prosecution

2) evidence is favorable to the accused

3) evidence is material

Who is "the prosecution"?

*the prosecutor

*members of the police department

-everything the police know is imputed to the prosecutor, whether the prosecutor ever actually knew about it or not

*the lab

-everything the analyst knows is imputed to the prosecutor, whether the prosecutor ever actually knew about it or not, if te prosecutor relies on testing & analysis by a lab

-includes all bench notes, raw data, electropherograms, chemical analysis, and all other things in an analyst's file that a prosecutor might not even understand are imputed to him if they contain exculpatory or impeachment info

exculpatory evidence

-evidence that tends to exonerate the defendant

-prove he is not guilty of the crimes charged or

-that tends to excuse, justify or clear the defendant

mitigating evidence

-evidence that tends to reduce the defendant's moral blameworthiness

-that might be used to reduce the defendant's punishment

impeachment evidence

evidence or information used to assess the credibility or reliability of the government's witnesses

Examples of impeachment evidence

-a witness's criminal history, pending charges or other bad acts

-deals with the state in exchange for testimony

-prior statements that are inconsistent with trial testimony

-immunity in exchange for testimony

-the witness harbors animosity towards the defendant

Brady Rule has evolved to include

*the state has a constitutional duty to produce Brady material for a defendant without request

*the prosecutor has a constitutional duty to discover Brady material in the possession of government agencies or witnesses

*Brady applies to favorable information as well as favorable evidence

-something does not have to be admissible in it's current form

-can merely be information that might LEAD to evidence if investigated (ex. Crime Stoppers tip)

Michael Morton Act (Article 39.14 Texas Code of Criminal Procedure)

STATUTORY

The state, upon request by the defendant, must produce for inspection & copying everything in pre-trial discovery, & the state must get a receipt documenting the production of the items. Before any trial or plea of guilty, the state & the defense must produce an inventory of all the items that were produced.

Michael Morton Act's state law version of Brady Rule (Article 39.14(h))

"The state shall disclose to the defendant any exculpatory, impeachment or mitigating document, item or information in the possession of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."

*NO MATERIALITY REQUIREMENT in this statute

Michael Morton Act - Continuing Duty (Article 39.14(k))

"If at any time before, during or after trial the state discovers any additional document, item or information required to be disclosed under subsection (h), the state shall promptly disclose the existence of the document, item or information to the defendant or the court."

Michael Morton Act - What this means for Forensic Analysts

*TRANSPARENCY IS YOUR FRIEND.

*EVERYTHING in the case file is discoverable by the defense.

-If something in your file happens to be exculpatory, that information is imputed to the prosecutor whether he knows about it or not.

-The lab should err on the side of over-disclosing.

Texas State Bar Disciplinary Rules of Professional Conduct

RULES

governs conduct of lawyers

Texas State Bar rule 3.09(d)

"A prosecutor must make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense."

*NO MATERIALITY REQUIREMENT in this rule

Schultz v Commission for Lawyer Discipline

*concerns a prosecutor (Schultz) & his duty to produce exculpatory information to a defendant

*Prosecutor made the determination himself that the information was not exculpatory or material

*violated State Bar rule 3.09(d)

Why is Schultz an important case?

*It disciplines a prosecutor for a violation of State Bar rule 3.09(d)

*it makes clear that a prosecutor should NOT consider whether an item or information is material before deciding whether to produce it for discovery

*"It is the prosecutor's role to disclose impeachment information, defense lawyer's role to present the impeaching information as evidence, and the trial court's role to determine whether the information is admissible evidence."

*"If there is any way a piece of information could be viewed as exculpatory, impeaching or mitigating, ERR ON THE SIDE OF DISCLOSURE."

Brady Material

Any information or item that would tend to negate the guilt of the accused, that would impeach the government's witnesses, or that would mitigate the punishment for the offense.

Case 1: Analyst has a Pending Investigation

Chemical Weapons

*United States v Olsen

-concerns a Washington State crime lab analyst who was actively under investigation at the time he testified in a federal trial

*Findings:

-materials uncovered by an investigation of the original analyst clearly could have been used to impeach the testimony of the analyst at Olsen's trial

-Although prosecutor knew of the pending investigation, he never followed thru on his duty to discover underlying facts & disclose them to the defense

-according to rules under Brady, IGNORANCE BY PROSECUTOR IS NO EXCUSE

Case 2: Corrective Actions from Unrelated Cases

Cold Case

*People v Baldenegro

-concerns a California analyst's prior corrective action reports

-3 prior CARs related to the analyst was learned after the trial

-on appeal, defendant claimed Brady violation due to state's failure to turn over this impeachment evidence

-state conceded the items were in their possession & were favorable to the defense

-appellate court had to determine if undisclosed info was material

*Findings:

-court found CARs were minimally relevant to case

-if CARs had been produced in discovery as they should have been, the trial judge would've had to determine if they were relevant & admissible

-trial judge likely would've reached the same conclusion that the evidence was minimally relevant & inadmissible

-prosecution has a duty to produce info like these CARs BUT it doesn't automatically mean they will be admissible at the trial

Case 3: State Crime Lab Withheld Failed Calibration Worksheets

*Commonwealth v Ananias, Memorandum of Decision

-involves a unit of a statewide crime lab in Massachusetts withholding exculpatory info from DWI defendants

-group of DWI defendants consolidated cases & challenged breath test machine used by Office of Alcohol Testing

-trial court ordered state lab to produce all calibration worksheets generated over certain time period

-lab produced over 2000 worksheets (showed 11 calibration failures) but it was later discovered Office of Alcohol Testing intentionally failed to produce 432 worksheets that showed failures of annual calibration process

*Findings:

-court found that these intentionally withheld calibration worksheet failures were clearly exculpatory material that should have been divulged under Brady

Case 4: Investigation of Analyst Who Originally Tested Evidence but Did Not Testify

The Investigation

*State v Davila

-involves analyst who originally tested the evidence in murder case, but no longer worked at the lab, & didn't testify at defendant's trial

-analyst was investigated later the same year as she had performed the testing and uploaded DNA profile to CODIS which hit on the defendant

-audit found errors which resulted in Brady letters being sent to 11 prosecutors

-analyst was fired so did not testify since she no longer worked at the lab

-supervisor retested evidence & testified to their results

-defendant not made aware of original analyst's prior audit & firing until tthey learned of it after the trial

Findings:

1) a prosecutor has the duty to seek out exculpatory & impeaching info about a government actor

2) the crime lab was an arm of the state, for Brady purposes

3) the state's failure to disclose evidence of the analyst's prior incompetence consistuted suppression of evidence favorable to the defendant

Case 5: Draft Report Erroneously Indicating Exclusion

*State v Barfield

-sexual assault case where DNA was the only evidence connecting defendant to the case

-analyst made error on 1st report and got no DNA profile match in state's database

-Supervisor reviewed results & draft report & observed analyst made error in sizing certain DNA band

-analyst resized, retested & matched profile to defendant

-analyst discarded original sizing sheet & draft report

-denied to defense attorney in pre-trial meeting that he had run any tests that excluded defendant or discarded any evidence

-in same interview, admitted destroying original draft report

-testified at trial he lied because he was embarrassed about the sizing mistake & it was an obvious error

*Findings:

-court found discarded evidence & draft report were exculpatory because, on its face, it was favorable to defendant & tended to exclude him as suspect

-"Whether the information was erroneous or accurate, was a question of fact for the jury, not the prosecution to decide."

-excellent example of the need for ANALYST TRANSPARENCY regarding mistakes or errors in casework

Case 6: Bench Notes

Bench Notes - Fish

*People vs. Smith

-involves Pamela Fish, analyst from Illinois, whose bench notes didn't match her testimony in sexual assault trial

*for a forensic analyst, it's safest to treat all bench notes, electropherograms & any other key data as potential Brady material, subject to disclosure by prosecution

Case 6: Bench Notes

Bench Notes - Taylor

*North Carolina v Greg Taylor

-Taylor's vehicle got stuck near where woman was murdered

-became suspect when he returned next day to retrieve truck

-serologist's report stated "chemical indications for the presence of blood" were found on parts of defendant's vehicle

-many years later, it was learned from bench notes that the chemical indications were actually the result of presumptive test

-bench notes also showed confirmatory testing had been done & results were negative

-negative confirmatory test not mentioned in formal report, never introduced at trial, no record it was ever produced to defense

-subsequent DNA tests showed no blood was present & Taylor was exonerated after 16 years in prison

Case 6: Bench Notes

Bench Notes - DNA

*Christopher Smith v Warden

-trial witness, Allan, claimed he was waiting in the getaway car & unaware defendant was robbing store

-wig used in robbery tested for DNA

-analyst testified that defendant was excluded as contributor of DNA profile obtained from the wig

-analyst testified Allan could not be excluded as contributor of DNA profile

-defensive theory was that Allan was robber, not defendant

-after conviction, defense obtained DNA expert who testified amount of DNA on wig, found only by reviewing the lab bench notes, was likely not result of Allan touching but actually wearing the wig

-defense argued State committed Brady violation by not producing the lab bench notes

*Findings:

-court agreed State failed to produce exculpatory evidence when it failed to produce lab bench notes

-ordered State to immediately release defendant & let State determine if they wanted to retry him

*case is example of importance of the data underlying your formal report

-in this case, lab report excluded defendant as contributor but the combination of a defensive theory & the data behind the lab report combined to make the bench notes exculpatory evidence that should've been produced

Case 7: Failure to Disclose Protocol Change

*concerns DNA mixture interpretation & a protocol change by the lab

-analyst testified at trial regarding DNA mixture

-failed to disclose that days before testimony, lab had instituted new DNA mixture interpretation protocols

-result under new mixture protocols would've changed her findings from inclusion to inconclusive

*Findings:

-this was a Brady violation

-"crime lab personnel are considered to be part of the prosecution team and are therefore responsible for disclosing matters that may be considered favorable to a defendant

Case 8: Lab Management Case Success

*investigation still underway & not clear whether allegations of lab management's effort to cover up or minimize the error will be substantiated or not

-Washington Post article regarding Department of Forensics in Washington D.C.'s lab management's response to concerns about firearm analyst's performance & steps taken to protect analyst from criminal discovery & possible cross-examination

-decisions to hide/minimize issues in the lab can have tremendous adverse impact on the lab & its analysts

-lab's reputation can take many years to repair once customers & the public loses faith

When laboratory management makes an affirmative decision not to document concerns about an analyst's performance under the guise of protecting the analyst from courtroom cross-examination they risk:

1) impeding the prosecutor's ability to assess or disclose her obligations regarding impeachment information

2) withholding impeachment information from the defense to which they may be entitled

3) creating a greater long-term adverse impact on the affected analyst & the lab than if they had just dealt with errors & related corrective action directly up front

4) sending a message to the analyst that it is acceptable to hold back potentially relevant impeachment information to avoid a difficult cross-examination

Watkins v State - Facts & Holding

*leading Court of Criminal Appeals decision interpreting provisions of Michael Morton Act (MMA) since it was amended in 2013

*Under MMA, State must produce, after a timely request of the defendant, various pieces of "evidence material to any matter involved in the action."

-but State failed to provide copies of judgment & sentences related to defendant's prior convictions

-judgments were introduced over defense objection at punishment phase of defendant's trial

*Holding:

-held that the docs providing defendant's prior convictions were "material" to the case because that term is essentially synonymous with the word "relevant"

-docs should have been produced to defendant prior to trial

Watkins v State - Discussion

*Court clearly distinguished the term "material" as used in MMA from "material" as used in Brady

-MMA: anything relevant

-Brady: things that would affect the outcome of the case

*Court found MMA broaded criminal discovery for defendants

-"making disclosure the rule and nondisclosure the exception"

*ANY RELEVANT EVIDENCE....REGARDLESS OF WHETHER THE EVIDENCE IS "MATERIAL" UNDER BRADY V MARYLAND