Exculpatory Evidence, Brady, and 11.07 Writs

After a conviction is final, the only effective way to hold the prosecution accountable for failing to disclose exculpatory evidence is through filing an 11.07 writ application in accordance with the Texas Code of Criminal Procedure.

But public disclosure laws make the investigation of prosecutorial misconduct difficult. Specifically, the Texas public disclosure statute allows District Attorney Offices to withhold prosecutor “work product” from defense attorneys who make written request to review the State’s file.

The State relies on this “work product exception” to remove all prosecutor notes, internal memoranda, emails from law enforcement, trial preparation documents, and court notes (to name just a few commonly-withheld items) from a defense attorney’s review. The result is that defense attorneys can’t see the very documents most likely to contain “Brady” material (i.e. potentially exculpatory evidence), or documents that at least reveal misbehavior on the part of law enforcement.

The State would argue that they have a continuing obligation to disclose exculpatory evidence even after conviction. So they can’t ethically or legally hide behind the “work product” exception.

This argument is correct — I’ve received Brady notices for my clients months, even years after conviction. Typically these notices concern broad state initiatives or problems that involve changes in scientific standards or mistakes made by state-run labs that affect hundreds of cases.

An example of a State-wide notice would be the coordinated effort by DA offices and the Texas Forensic Science Commission to notify defendants convicted on DNA mixture evidence that might include improper contributor probability calculations. Hundreds of inmates received notice that their convictions might be based on faulty analysis.

Another example would be a “bad apple” officer or analyst who’s caught lying in a case or tampering with lab results. Most DA offices will send out Brady notices to all defendants whose cases were handled by the bad actor.

But those large-scale notices are rare and get lots of media attention. The more likely “Brady” scenario for my clients is the discovery of a witness that the prosecutor knew was important but didn’t call, or a potential lead on another suspect left unexplored by the investigator. Significantly, this type of Brady evidence is contextual. We may already know the witness exists, but it’s the prosecutor notes on that witness that reveals his importance. Likewise, we may know the investigator didn’t do a thorough investigation generally, but that fact by itself isn’t a proper ground for relief. But if we see actual correspondence that he or she didn’t follow up on a unique lead, all of a sudden we have specific, actionable information that may increase a client’s chances to get a new trial.

All this is to say that reviewing the “work product” in a State’s file makes a real difference in framing grounds for relief.

So imagine this scenario: I’m literally sitting next to a prosecutor assigned to the conviction integrity department of a certain District Attorney’s Office, watching him put yellow post-it notes on a one-inch stack of documents. He pulls the stack out of the file, looks over at me, and says, “I’ve marked all of this as work product.” He then hands me the rest of the file and says, “you can look through these.”

Now imagine that scenario playing out over and over again. There I am, staring at a prosecutor as he or she pulls multiple documents from the file, or entire binders, then just says, “You can’t look at this. It’s work product.”

My favorite example is when a prosecutor was kind enough to scan the entire file and give me a digital copy. There I was happily reviewing it when I started encountering large groups of plain blue screens. “Why are all these pages blank?” I ask. I bet you can guess her response: “redacted work product”

Obviously, I’m annoyed. We are supposed to trust the prosecutor to affirmatively disclose Brady material, but I’m not allowed to check their work. How is this fair or even reasonable?

The simple answer is its neither. The non-disclosure of “work product” only makes sense prior to a final conviction. Of course I should not be able to sneak a peek at a prosecutor’s notes while she is preparing for trial. Nor should I be able demand her notes during trial. A lawyer has a right to not share her impressions, mental notes, and strategy with opposing counsel.

But post conviction, this rationale no longer applies. The State got its conviction, and we’ve already seen the State’s strategy during trial. So there’s no reason to keep their trial notes secret anymore.

Additionally, during the post conviction process the burden of proof shifts to the inmate applicant. He (and his lawyer) must establish his grounds by a preponderance of the evidence. With the burden shifted, access to notes and annotations made by the State can be essential to the fact-finding process and to the applicant meeting his burden of proof.

Having to rely on the State to interpret its own work product does not make sense in this scenario – it’s the classic set up of the fox guarding the hen house.

So what can be done?

Post conviction attorneys need to think outside the box. One possible solution is to file a motion for an in-camera inspection of the prosecutor’s notes by the trial court. Another strategy would be to depose or obtain affidavits from prosecutors and investigators who had been assigned to the case. You can also use subpoena power to obtain specific documents.

But these strategies can’t be employed until the writ has a file stamp on it. Pre-filing, your options are limited.

Nondisclosure laws require a Federal law suit if you feel the State is either refusing to comply with State law or that the State law violates the constitution.

Do you believe there may be exculpatory evidence lurking at the bottom of the State’s file in your loved one’s case? Your best bet is get a good post conviction attorney on board who will fight for the fullest review possible. And who knows, maybe your case is the one that leads to changes in the way DA offices comply with public information requests…