11.07 Brady Claims in Texas: what did they know, and when did they know it

For those not familiar with the Supreme Court case Brady v. Maryland, it holds that a prosecutor has an affirmative duty to disclose material evidence favorable to the defense. It’s a simple enough directive, but the details of what comprises exculpatory evidence and whether the prosecutor has control of the evidence gets complicated.

And that’s just from the pretrial perspective.

If you’ve been convicted and are trying to argue that the prosecutor failed to disclose exculpatory evidence after the fact, you will run into surprising limitations on what you can argue.

The first limitation relates to whether your defense attorney had access to the exculpatory evidence prior to trial.

Ask yourself, how did you find out about this exculpatory evidence? Where you digging through the State’s case file that you obtained via a public information request? Did you find a notation in the clerk’s file that contradicts the prosecutor’s later claim in open court (this may seem like a strange thing to find, but you’d be surprised what can you turn up when combing through publicly-available subpoena and business record affidavits and then comparing them to things that occurred during trial or during a hearing). Did you talk to a witness that the trial attorney knew about? If so, you probably can’t use the evidence in a post-conviction Brady claim.

If the records you are reviewing were readily available to the defense team prior to or during trial, then you are legally barred from relying on that evidence during a collateral attack of the conviction, at least if your intention is to bring a Brady-type claim.

It may be unclear whether defense counsel had access to the evidence in question. In such circumstances, an affidavit from counsel or an evidentiary hearing (the preferred method) is needed to resolve what evidence the State made available to defense counsel prior to trial.

If the evidence was available to defense counsel prior to trial, the Court of Criminal Appeals believes that your lawyer had to use that evidence during trial. Otherwise it’s waived.

That doesn’t seem fair, does it?

Luckily you can still raise a related issue by arguing your lawyer was ineffective for failing to lodge Brady objections or failing to file a motion for new trial after trial.

But think about what that means. If your writ application mistakenly pleads a Brady claim instead of an ineffective assistance claim, not only will you lose that ground, but unless you timely amend your pleadings before the writ is denied, you will never be able to raise the proper ground again. It will be excluded under Section 4 of Article 11.07 of the Texas Code of Criminal Procedure! So you may have a perfectly valid claim backed up by solid evidence. But if you make a pleading mistake in your writ application you are screwed. Permanently.

This is why I think filing a pro se writ application is very risky. Pleading mistakes are fatal.

Another practical ramification of hiring habeas counsel is that the District Attorney’s Office is more likely to find and disclose Brady evidence. This is simply because habeas counsel can make direct requests for file reviews, file or agree to protective orders for sensitive data contained in a file (like medical records), and physically review a file in the DA office. Because prosecutors typically have to justify redactions prior to a habeas counsel file review, they are more likely to find and disclose evidence that benefits the defense.

Of course, prosecutors always have an affirmative duty to disclose Brady evidence, regardless of whether the habeas applicant retains counsel. But without habeas counsel nagging them to pull an old file, it’s just easier for exculpatory evidence — especially in an old case — to never see the light of day.

Assuming the exculpatory evidence was not reasonably discoverable by the defense during or before trial, then you can raise a Brady claim in a post conviction 11.07 writ. Obviously the hard part is actually discovering this evidence. Since the State controls the disclosure of work product in their own files, it’s usually up to them to make an affirmative disclosure of exculpatory evidence post conviction.

In my experience, most post-conviction Brady disclosures occur when the prosecutor realizes that something previously labeled “work product” (and therefore not subject to disclosure) is in fact Brady. While preparing for trial, prosecutors may interview witnesses and make notes that contradict other statements made by that witness. Because impeachment evidence (evidence that can be used to show a witness is contradicting herself) must be disclosed under Brady, prosecutors have learned that labeling something as “work product” doesn’t obviate their disclosure duties.

Whether a State post-conviction notice provides sufficient grounds to raise an 11.07 habeas corpus claim will depend on the materiality of the evidence as it relates to the trial evidence. Although it can get complicated, the final “materiality” test is always the same: is there a reasonable probability (51% chance) that the jury would have acquitted the defendant if it had access to this particular piece of evidence.

You’ll notice that outside of post-conviction State disclosures, most evidence you find when researching a writ won’t classify as Brady evidence because it probably was not under their control.  Things like witness recantations, outdated forensic science methods, or newly-tested DNA evidence fall under the “new evidence” or “false evidence” jurisprudence.

Bottom line — writ applicants need to be careful how they plead their grounds for relief.

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