The Duty to Disclose
Prosecutorial misconduct made the news again recently. Earlier this month, District Judge James Shoemake upheld complaints of prosecutorial misconduct against Harris County prosecutor Beth Shipley Exley. In doing so, Judge Shoemake recommended that the Texas Court of Criminal Appeals grant a new trial for Edward George McGregor, a convicted murderer serving a life sentence. Judge Shoemake made this recommendation after finding that the prosecutor failed to disclose that she had struck deals with three jailhouse snitches. What’s more, one of the informants lied to the jury during McGregor’s capital murder trial and the prosecutor failed to correct the false testimony.
It is not uncommon or unethical for prosecutors to make deals with so-called “jailhouse snitches” in exchange for their testimony. It happens every day in jails and courtrooms across the country. What is unethical is for prosecutors not to notify the defense about their backroom agreements, and as highlighted in this case, “non-agreements” where the prosecutor makes thinly veiled offers to provide a benefit to the witness without ironing out the specifics of the agreement.
For the most part, prosecutors work very hard to do the right thing. The best prosecutors, including many I had the privilege of working with at the Tarrant County District Attorney’s Office, live by this rule: “Give them everything you have, then give them everything you’ve got.” In other words, give the defense everything you have, and then go into trial prepared to kick their a**. This is a great rule to live by, because if you follow that one rule you will be in compliance with every rule outlined below.
The rules governing disclosure were developed through case law, statute and ethical rules. This article outlines a prosecutor’s obligation to disclose information to the accused, all aimed at preventing another Michael Morton.
The Constitutional Duty to Disclose: Brady and Giglio
In 1963, in Brady vs. Maryland, the United States Supreme Court ruled prosecutors have a constitutional or legal duty to reveal material information or evidence in their possession that is favorable to a defendant. This includes evidence that could negate the defendant’s guilt (exculpatory) or reduce his or her potential sentence (mitigating.)
In 1972, nine years after the Brady decision, the Supreme Court took prosecutors’ obligations a step further. In Giglio v. United States, the Supreme Court expanded the rule to include that prosecutors must also disclose to the defense impeachment evidence — that is, any evidence that could call into question the credibility of prosecution witnesses. This included information such as prior criminal records, acts of misconduct and promises of leniency or immunity in exchange for their testimony.
The Statutory Duty to Disclose
Not only do Texas prosecutors have a constitutional duty to disclose favorable information to the defense, but they have a statutory one, as well. Texas Code of Criminal Procedure Section 2.01 provides, in part, “It shall be the primary duty of all prosecuting attorneys, not to convicted but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”
Since its inception in 1965, Article 39.14 of the Texas Code of Criminal Procedure has regulated the discovery, or the turning over of evidence, in criminal cases. In 2014, a new law, called the “Michael Morton Act,” went into effect and codified the Brady requirement. Basically, the Michal Morton Act commands prosecutors to open their files to the defense and keep records of the evidence they disclose in an attempt to prevent wrongful convictions.
The Ethical Duty to Disclose
The Texas Disciplinary Rules of Professional Conduct are the ethical rules lawyers are supposed to follow. When it comes to turning over information, these rules actually require prosecutors to disclose more information than Brady. In that regard, the ethical duty to disclose favorable evidence to the defense is broader than Brady.
The Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) requires a prosecutor in a criminal case to:
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 mitigates the offense and, in connection with the sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information know to the prosecutor, except when the prosecutor is relieved by a protective order of the tribunal.
Texas Disciplinary Rule of Professional Conduct 3.04(a) provides:
A lawyer shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute alter, destroy, or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.
In 2015, the Board of Disciplinary Appeals (BODA) heard a case involving a prosecutor who held evidence from the defense lawyer that could have helped a man charged with aggravated assault. The prosecutor did not believe the evidence met the requirements of Brady v. Maryland. The Board, however, determined that, in Texas, the ethical duties of the prosecutor are even broader than what Brady demands of a prosecutor. Essentially, the Board said by its opinion, that prosecutors should always err on the side of disclosure.
Examples of Brady material:
Over the years, attorneys have often struggled with what kind of evidence or information might be considered Brady. As the rules have evolved in Texas, however, it has become less ambiguous. Examples of Brady material could include the following materials in possession of the state or state actor:
- Impeachment evidence – any evidence that could be used to attack the credibility of any potential witness at trial;
- Mitigation evidence – any evidence that the accused is not bad.
- Offense reports;
- Supplemental reports;
- Officer recordings – audio and video;
- Any documents and papers related to the case;
- Written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers;
- Books, ledgers, accounts, letters, photographs, or objects;
- Agreements not to prosecute witnesses in exchange for testimony;
- Leniency agreements in exchange for testimony;
- Arrest photographs of the defendant when the photos don’t match a victim’s description;
- Credibility issues with police officers or law enforcement authorities.
Failure to Disclose
Failing to comply with Brady can result in what is commonly known as a “Brady violation,” which may lead to a reversal of a conviction on appeal or a new trial for the accused, as well as disciplinary action against the prosecutor. The former has begun in the McGregor case.
A summary of the evidence elicited in the hearing on the Writ of Habeus Corpus in the McGregor case is provided below. The utter lack of understanding of a prosecutor’s duty to disclose demonstrated by the prosecutor in charge of lining up the jailhouse snitches should shock the conscious and be instructive to prosecutors across the state.
All three jailhouse snitches in McGregor’s case were provided with material benefits. Two had their charges reduced – one from a felony assault to misdemeanor deferred adjudication, and the other went from facing a 45-year capped open plea on aggravated robbery to a seven-year plea agreement on the lesser charge of robbery. The prosecutor wrote a letter to the parole board on behalf of the third informant, who was serving a 90-year sentence for solicitation of murder.
The third informant, “Delores Lee Gable,” testified at trial that she witnessed McGregor confess to her husband in front of McGregor’s father that McGregor killed the victim. Gable also testified that she did not receive a benefit for her testimony and that she was only testifying to clear her conscious because she was suffering from cancer. All of this was false. Gable lied about her name, her marriage, and she never had cancer. McGregor’s father could not have witnessed this alleged confession because he was in prison at the time. Gable and the prosecutor did have a conversation in which the prosecutor said she would write a letter to the parole board for Gable.
When prosecutor Beth Shipley Exley was asked if she understood impeachment evidence had to be turned over to the defense, Shipley Exley stated she did. However, she also testified that she would only “probably” tell the defense if a witness was given a benefit for testifying when the benefit was yet to be determined. As to her failure to correct Gable’s misrepresentation on direct examination about the agreement regarding parole, Shipley Exley testified she “probably forgot” to correct the misrepresentation. Shipley Exley sent the letter to the parole board five days after the conclusion of the trial. She later sent a second letter to the parole board.
Shipley Exley admitted that she had told Gable that she would write a letter to the parole board, but considered this a non-agreement and not a promise.
Shipley Exley’s trial partner, Jeff Strange, testified the evidence in the case was insufficient to prove McGregor’s guilt without the testimony of the snitches.
If the Court of Criminal Appeals follows Judge Shoemake’s recommendations, McGregor will receive a new trial after Judge Shoemaker ruled that Shipley Exley denied she had made deals with three jailhouse informants in exchange for their testimony, including one who lied on the witness stand.
In Judge James Shoemake’s findings and conclusions, he recommended that the Texas Court of Criminal Appeals grant McGregor’s request for a new trial based, in part, on the Brady violation. Wheter the Court of Criminal Appeals will follow his recommendation and whether the prosecutor in the case will be disciplined remains to be seen.
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