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Harris County We Have a Brady Problem

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For years, Texas and particularly Harris County, has struggled with the concept that prosecutors are to seek justice, not just convictions, and further they are to disclose favorable evidence, mitigating evidence, and even impeachment evidence. You know, the Brady stuff! Well Texas wins loses again and requires the Court of Criminal Appeals to affirm that prosecutors must disclose favorable evidence, regardless of the prosecutor’s individual belief in the evidence, and plea deals with witnesses.

Brady imposes a duty upon the prosecution to disclose impeaching, mitigating, and exculpatory evidence to the defense. And, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.[1]

In United States v. Bagley, the Supreme Court held that the duty announced in Brady required automatic disclosure of evidence that “might have been helpful in conducting the cross-examination” even when the defense did not request the disclosure of that helpful information.[2] Additionally, in Giglio, the Supreme Court held that the prosecution must disclose evidence of offers the prosecution gives to witnesses that may induce witness testimony noting that “evidence of any understanding or agreement as to a future prosecution would be relevant to [the witness’s] credibility and the jury was entitled to know of it.”[3]

Despite Brady being the law of the land since 1963, a number of Harris County prosecutors (and former prosecutors) have come under fire for their tactics in a series of cases. In particular, courts have criticized their understanding, or lack thereof, as it relates to Brady and their obligation to turn over evidence. While not every Brady violation was the same, the consistent factor is their general misunderstanding as to what Brady actually means or encompasses. What’s particularly interesting is that each of the prosecutors in question has worked as Harris County prosecutors. None of the offending prosecutors were young or inexperienced as lawyers. Instead, they were senior prosecutors handling some of the most serious cases.

In the series of cases outlined here, prosecutors testified that Brady permits a prosecutor to determine whether favorable evidence is sufficiently worthy of belief or sufficiently certain to warrant disclosure.

The “I didn’t believe it, so I didn’t have to turn it over” Misunderstanding

The rule announced in Brady does not create an exception for a prosecutor, even acting in good faith, to fail to disclose evidence the prosecutor deems unworthy of belief. DiSimone v. Phillips, a Second Circuit appeal, best summarizes why a prosecutor’s personal judgment cannot be factored into the Brady equation: if there [are] questions about the reliability of the exculpatory information, it was the prerogative of the defendant and his counsel – and not of the prosecution – to exercise judgment in determining whether the defendant should make use of it. To allow otherwise would be to appoint the fox as henhouse guard.[4] As the fox cannot guard the henhouse, the general rule must require disclosure and permit the defense team to form its own conclusions regarding the strength of the evidence.

Ex parte David Temple and Kelly Siegler/Craig Goodhart

In a circumstantial case, Kelly Siegler convicted David Temple of murdering his wife. Plaguing the case was a Brady claim – the prosecution team and law enforcement did not disclose the identity of an alternative suspect until the proverbial 11th hour during trial. And, even amidst the 11th hour disclosure, the disclosure was wholly inadequate and omitted thousands of pages of police reports and other evidence.

In his 19-page findings of fact, Judge Larry Gist noted at least 36 instances of prosecutorial misconduct; he painted a picture of a prosecutor willing to win at any cost and failing to follow her duty to disclose, or timely disclose, evidence favorable to the defense. Judge Gist concluded that Siegler withheld material Brady evidence that suggested an alternative perpetrator – and not Temple – committed the murder in this case. The trial court’s findings emphasized: “[O]f enormous significance was the prosecutor’s testimony at the habeas hearing that apparently favorable evidence did not have to be disclosed if the State did not believe it was true.”

Ex parte Linda Carty and Connie Spence/Craig Goodhart

Prosecutors Connie Spence and Craig Goodhart convicted Linda Carty as a party to capital murder following the kidnapping and murder of her neighbor. While habeas relief was ultimately denied, the trial court still found Brady violations in the prosecutors’ flawed understanding of their Brady obligations.[5] Again, the Harris County prosecutors determined they did not have to disclose evidence which they deemed untrue or unreliable. In fact, Spence testified during the writ hearing, “That’s kind of why I’m a lawyer, is to make those judgments.”

In this case, prosecutors failed to disclosed witness statements that conflicted with or were inconsistent with what they represented to defense. The trial court indicated if these statement had been disclosed, defense counsel would have been able to use them for impeachment of other witnesses. (Can we say favorable impeachment evidence?) Prosecutors also failed to disclose a witness statement stating the witness did not believe Carty to be a danger to society. (Can we say mitigating evidence?) Additionally, prosecutors failed to disclose a deal with another witness – the deal being that the witness would not receive prison time if Carty were convicted and received the death penalty. (Ok, let’s just say these prosecutors made the trifecta of Brady violations: failing to disclose exculpatory, mitigating, and impeachment evidence!)

The trial court concluded: the State was operating under a misunderstanding of Brady at the time of the Carty trial; the State’s Brady obligation was determined on a ‘case by case’ basis and was resolved with a ‘judgment call’ based on ‘gut instinct;’ and at the time of the Carty trial, the Harris County District Attorney’s Office did not believe that impeachment or exculpatory evidence needed to be disclosed if the prosecutor did not find the testimony credible.”

The “it’s not a deal that has to be disclosed” Misunderstanding

The prosecution must disclose evidence of offers the prosecution gives to witnesses that may induce witness testimony. This goes to the witness’s credibility and the jury is entitled to know any potential motivating factors in the witness’s testimony favoring the state.

Rather than split hairs over what constituted an “understanding or an agreement,” in Burkhalter, the Texas Court of Criminal Appeals “[found] it unrealistic to draw a line between an outright promise not to prosecute and a very real inference not to prosecute.”[6] In Duggan, the Court reaffirmed its holding in Burkhalter: “we decided that it was judicially imprudent to attempt to distinguish express agreements between the State and a testifying accomplice from those agreements which are merely implied, suggested, insinuated or inferred.”[7] With no distinction between implied, suggested, or inferred agreements, the prosecutor is to disclose any and all agreements.

Ex parte Edward McGregor and Elizabeth Shipley Exley

Edward McGregor was tried and convicted of capital murder and sentenced to life in prison. McGregor was tried in Fort Bend County. Harris County prosecutor Elizabeth Shipley Exley served as co-counsel for the State in the Fort Bend prosecution as she was simultaneously prosecuting a separate murder case involving McGregor, but in Harris County. The Fort Bend case was considered the “stronger” case and preceded to trial first. After McGregor received an automatic life sentence in Fort Bend County, Shipley dismissed McGregor’s Harris County case.

In a highly circumstantial case, Shipley relied on three witnesses who each claimed to hear McGregor “confess” to the murder. One of the witnesses was currently serving time and wanted a recommendation for parole in exchange for her testimony. The other two witnesses were jailhouse snitches who served time with McGregor pre-trial and wanted better deals in their own pending cases.

Ultimately all three testified under the direct examination of Shipley. Each was cross-examined and each denied receiving any benefit for their testimony. However, at the habeas hearing, evidence showed that each received a benefit and each had testified falsely about such benefit.

Shipley testified there was no specific promise for a deal, only that she “could” rather than “would” notify parole or the pending court of the witnesses’ cooperation. She believed, so long as there was no specific deal, there was no obligation to disclose it. In this case, Shipley made good on her promise that she “could” help after each testified; therefore, they were not testifying under a deal. In fact, the she and the State argued that it need not disclose rewards, agreements, or understandings for consideration unless there has been a firm promise – a quid pro quo – made before the witness testified. In other words, so long as there is no “binding contract” in place prior to the testimony, Brady obligations are not triggered. Clearly, her “understanding” was at odds with Giglio and other precedent.

Ex parte Kenneth Headley and Rob Freyer

Kenneth Headley was convicted of murder based on the testimony of one eyewitness, Rebecca Broussard. Unknown to trial counsel, Broussard had been given quite the deal in exchange for her testimony. She would receive misdemeanor time-served on her two new felony charges in exchange for her testimony at the grand jury and again at trial.

Rob Freyer, former Harris County prosecutor and current Montgomery County prosecutor, testified first there was no deal; however, evidence of “the deal” was nonetheless presented and the prosecutor was impeached.

The deal was memorialized in Broussard’s grand jury testimony. At the conclusion of Broussard’s testimony, Rob Freyer stated that “we all know…that you will be given a sentence under 12.44A for two crimes that you have and…you’ll get credit for all the time that you get in.” In response to this, Rebecca Broussard replied that this was indeed her understanding. This deal was never disclosed to the defense.

After being impeached with the deal, Freyer changed his position. Instead of contending there was no deal, Freyer testified he would have “brought this out” during the direct examination of Broussard had he tried the case himself, thus there was no duty to otherwise disclose the deal.[8] Again, the prosecutor was found to have a misunderstanding of actual Brady obligations.

Taken together, these four cases illustrate that even senior prosecutors within the Harris County District Attorney’s Office fundamentally misunderstood the duty to disclose favorable evidence and demonstrate the need for further clarification of a prosecutor’s duty of disclosure. While these examples represent a small cross section of Harris County prosecutors, it does show a systemic pattern of misunderstandings related to prosecutorial obligations stemming from Brady and its progeny.

[1] Brady v. Maryland, 373 U.S. 83, 87 (1963).

[2] See United States v. Bagley, 473 U.S. 667, 678 (1985).

[3] Giglio v. United States, 405 U.S. 150, 154–155 (1972).

[4] DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) (citations omitted).

[5] Trial Court’s findings and conclusions: “In considering the Brady violations cumulatively, in consideration of the evidence, in light of the entire body of evidence presented, including the trial testimony, the Court finds there is no reasonable likelihood it could have affected judgments returned by the jury and does not meet the Brady materiality standard.”

[6] Burkhalter v. State, 493 S.W.2d 214, 217 (Tex. Crim. App. 1973).

[7] Duggan v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989).

[8] In an interesting twist, a personal relationship was discovered between Freyer and the lead detective in Headley’s case. Based on that relationship, Freyer was removed from the case and another prosecutor was assigned to handle the trial.

 

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Just Because You Can, Doesn’t Mean You Should – Revisited

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One year ago today, I wrote “Just Because You Can, Doesn’t Mean You Should” to discuss the discretion of prosecutors. Prosecutors can and do choose which offenses and people they will prosecute. It’s a matter of resources. It’s a matter of proof. It’s a matter of discretion. Every case that is prosecuted requires some portion of an amount of limited resources. Just like policing – a heavy presence in one geographical region necessitates less presence in another – heavy focus in one prosecution results in a lesser focus on another.

In the past, Harris County District Attorney Pat Lykos decided to discontinue the general prosecution of “trace cases.” This involved freeing up prosecutorial and court resources which were being used to prosecute residue cases so that those same resources could be better utilized for other serious violent crimes. And that made sense: many resources were freed up. In fact, drug court backlogs were alleviated and impact courts were created in their stead. This meant that more serious cases were being taken to trial instead of using those same resources for low-level, almost non-existent offenses.

Even today, Harris County District Attorney Devon Anderson has decided to discontinue the general prosecution of first offender small amounts of marijuana. She expanded this to also include low-level thefts like shoplifting. By diverting these offenders from the jail and the court, she freed up resources to concentrate on other more serious offenders.

A year later, I am left wondering about other resources that may be better utilized. Today on Legally Speaking, John and I discussed the progression of cases in the local courts. Often, people are arrested and cases are filed, necessitating the use of substantial prosecutorial and court resources, even before evidence is available. Take for example, some DWI cases. If the accused exercises his right to refuse a breath test, the police will rely on search warrants for blood in an effort to prove intoxication. It can take 3 months or more before the results of that test blood will be revealed. Yet, the arrest is most often made and the accused is charged and supervised under pre-trial conditions for the next several months while we all wait on the results.

Incidentally, some blood tests (estimated to be between 10-15%) reveal a blood alcohol level lower than 0.08. Yes, that means in a percentage of the cases filed, the accused is actually and legally not intoxicated. Yet, they are arrested, have likely posted bond, have been placed on courtesy pre-trial supervision, paid the fees for intoxilyzer devices on their persons or vehicles, and have appeared in court every 3-5 weeks while waiting to be cleared.

The same is true of drug cases. Before anything can be done with a drug case, the evidence must be sent to an accredited lab and analyzed. This process can take 2-4 months. During that time, the prosecutor is not able to move forward with prosecution. The DA in Harris County has a standing policy against plea-bargaining these cases unless the substance is confirmed to be an illegal substance. So there is essentially a standstill. Yet, the accused is perhaps sitting in jail waiting, returning to court regularly, or maybe released on bond but still returning to court regularly.

This is an absurd use of resources. There is no reason charges must be filed in every instance up front. There is no reason to tie up police, jail, and court resources for each and every case. Counties outside of Harris have aptly figured this out. Just because you can, doesn’t mean you should.

In Nueces County, prosecutors are actually agreeing to the release of accused of possessing synthetic marijuana. Knowing it will take more than 6 months to have the substance analyzed, they are recommending the release of those accused. With analysis taking an average of 9 months to one year, they recognize the accused could remain in jail longer than the maximum punishment of 180 days in the county jail. This is a matter of resources, and perhaps justice. Jails are routinely overcrowded. The Nueces County jail has been at or near maximum capacity, and this is an opportunity to ease the overcrowding and refocus prosecutorial resources unless and until a lab confirms an actual illegal substance.

Yet, Harris County clings tight to the notion that prosecutions must be immediate and linger, even where evidence will not be available for some time. Yet, Harris County faces the same jail overcrowding. Yet, Harris County prosecutors have the same discretion: they do not have to file the case unless or until evidence is available.

But, apparently, that’s how we’ve always done it so it is most likely to continue. Because they can, they will. And not much will change.

 


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More HPD Crime Lab Problems; This Time it’s the Crime Scene Unit

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police-850054_1920Yes, I said HPD Crime Lab rather than Houston Forensic Science Center. Despite the fancy new name and claimed independence, it’s the same old game. This time the Lab commissioned an audit of its crime scene unit related to officer-involved shootings. The purpose of the audit was to address complaints by the District Attorney’s Office and HPD’s own homicide division. The audit focused solely on the crime scene unit and their performance during the investigation of officer-involved shootings. And the results reveal anything but independence.

Hat tip to the Houston Chronicle for revealing this audit and reporting on its findings.

Set aside for a minute the technical problems with the crime scene unit, the audit highlights a continued lack of autonomy expected of an independent and forensic agency. This “independent” crime scene unit is comprised of 26 employees: a civilian director, a civilian administrative employee, four civilian investigators, and 20 HPD officers and sergeants. 77% of their staff are commissioned officers from the Houston Police Department – the very entity it largely investigates and is supposed to remain independent of. The crime scene investigators even wear HPD uniforms or insignia as they collect evidence and process scenes. They are in fact HPD officers and employees who are subject to transfer out of the crime scene unit and back into the regular ranks. That’s not an independent agency.

Additionally, the crime scene unit personnel are directed largely by the homicide detectives on the scene as well as the officer involved in the shooting. The audit noted that the decision to stop evidence collection was made to appease the homicide detective who determined he “had enough” evidence and an iron clad case. The involved officer, the shooter and apparent target of the independent investigation, is present telling his colleagues “what happened,” it is difficult for crime scene investigators to look past those words and search for additional, or dare I say contradictory, evidence.

On a side note, this is the same bias faced by prosecutors and their investigators – they too are on scene and inside the scene listening to the officer describe what happened. They too will have difficulty looking past those words. Outside of the walk through and witnessing the charting of the officer’s weapon, they sit back and wait on reports from the crime scene unit, homicide, and internal affairs. They conduct no other independent investigation. Instead, they serve as only a somewhat independent review.

Having been on many of these scenes, both as a representative of the District Attorney’s Office and as an involved officer’s legal counsel, the “walk through” by the officer always leads the evidence collection. Sure the scene is secured prior to the walk through and some evidence may already be marked, but everyone is looking for the officer’s rendition to know where else to look and what might be there. To be fair, where a foot chase proceeds a shooting, the scene can be rather large and spread out, necessitating some direction by the officer involved. But for independence, his involvement and direction in the scene must be minimal. Investigators must be free to disregard his words and explanation as they search independently for evidence.

Back to those technical problems: the internal audit found that crime scene unit technicians lack basic forensic skills and training. That’s kind of a big problem given their role in evidence collection. They are not trained specifically in bloodstain patterns and trajectory analysis. This could mean they miss the significance of bloodstains found on the scene. They may guess at or misread an angle of fire as a bullet traveled from the officer’s gun through an object or into a person. They overly rely on two-dimensional photographs to document facts rather than notes, data, and measurements. In fact, they rarely use the sophisticated FARO Focus 3d X330 laser scanners available to capture millions of measurements within the scene and provide a three-dimensional view.

This is not to say that skills and training cannot be improved; it’s simply to point out that they must be strengthened. There is no need for their training to come at the Houston Police Academy. They need not work alongside and with “colleagues” who share the same experiences, badge, and paycheck. Much like the Harris County Institute of Forensic Sciences hires its own employees, the Lab’s crime scene investigators should not be linked to or tied to the Houston Police Department – at least not if they want to claim independence.

 

view and download the audit report: Findings of CSU Audit


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Baseball, Apple Pie, and High Speed Police Escorts

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Late for Work? Call a Trooper and Get to Work on Timepolice-lights

You’ve seen police escorts many times. Sometimes it’s a wide load. Other times maybe a caravan of equipment. Maybe even a funeral procession. We’ve come to expect them from time to time on Texas roadways. But did you know you could hire one when you’re late for work?
The Texas Rangers called upon a Texas state trooper to meet Joey Gallo and escort him into Arlington.

Gallo was sleeping and missed a couple calls from his manager. Apparently another employee was sick or something and Gallo was needed to cover a shift. Once awaken, he didn’t have much time to get there and, well, Texas is a big state. Gallo would have to drive from Round Rock, Texas, where he had just returned from some other business trip, to Arlington. Oh, and he was traveling by car. Round Rock to Arlington, according to MapQuest, is an approximate 181 miles and takes about 2 hours, 55 minutes on a good day with no additional traffic.

But you see, a normal drive wasn’t going to work. You know, traffic and all. So the Rangers, the baseball team not to be confused with the investigative unit of the Department of Public Safety, hired a trooper to escort him into Arlington. Flashing lights and all, the trooper cleared the way and made the last hour of the drive a bit faster.

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July 29, 2016

“I probably shouldn’t say how fast I was going,” Gallo said. “It might have been a little dangerous. But they told me I was in the starting lineup. I had to get there. Having the police escort was pretty cool.”

So maybe next time you need to get to work in a hurry, you too should call a trooper. On the other hand, maybe Texas just loves baseball. In either event, Gallo did get there in time to warm up and even homer against Oakland in the fifth.

It was more than just a home run. It left the bat at 110 mph and traveled 448 feet into the seats just above the visitors bullpen in left field. It was the longest opposite field homer in Arlington by a Rangers lefty this season.

100 mph sounds pretty fast, but it may not have even been his top speed for the day. Imagine the speeds at which you might travel with a police escort clearing the way! After all, posted speed limits are just presumptions. Texas follows a reasonable and prudent test for maximum speeds.* Needing that home run was apparently both reasonable and prudent under the circumstances.

And there you have it folks: baseball, apple pie, and police escorts. Good for America and great for you when you’re running late to work.

 

*Texas Transportation Code Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.


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Novelties, Brass Knuckles and Juveniles: What You Need to Know

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Brass knuckles are just one of the weapons that is prohibited in Texas. For that matter, brass or not, the knuckles are prohibited.

Why then do so many students get arrested with them? Kids are getting arrested, rather frequently, in schools with brass knuckles. Of course, the kids aren’t really even sure they are knuckles (well, maybe they are). In an interesting experiment, you can go to any novelty store around town and purchase them. You can find them in flea markets.

But wait, if they are prohibited, how are they being sold to our kids?

“Knuckles” means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles. Texas Penal Code 46.01(8).

Under Penal Code 46.05, a person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells knuckles. It is a class A misdemeanor punishable by up to one year in jail and up to a $4,000 fine. Except the offense level and punishment can be increased in certain instances. For example, possessing the knuckles within 300 feet of a school or on the premises of school function increases the offense level to a state jail felony, which carries a punishment of 180 days to 2 years in a state jail facility and a fine not to exceed $10,000.

Under Penal Code 46.03, it is a third degree felony punishable by 2 to 10 years in prison and up to a $10,000 fine to have the prohibited weapon in certain places: on the physical premises of a school, the grounds or building of a school activity, on a transportation vehicle of a school, on the premises of a polling place on the day of an election or while early voting is in progress, on the premises of a court or court offices, on the premises of a racetrack, in or into a secured area of an airport, or within 1,000 feet of premises designated as a place of execution.

Penal Code provisions apply as stated to adults, currently those age 17 or older. For juveniles (aged 10-17), the penal code offenses apply while the punishment, or more correctly the disposition, is different. The jail or prison time and fines do not apply to juveniles.

So, stores cannot legally sell them. They cannot legally have them. Yet, they are being routinely sold. Stores rely on a “novelty” approach: the knuckles are disguised as belt buckles or other common objects. Yet when the kids show up at school wearing the belt buckle, they are arrested. Their parents inform the school police the item was purchased in a local mall in a novelty store. However, no one does anything about it. I have notified several prosecutors over the years of the exact stores selling these “novelties” and even provided a receipt or two. Yet nothing is done. So why are kids continued to be prosecuted for something adults are illegally selling? If it’s illegal for the kid to have it, it was just as illegal for the store to have it and sell it.

As a parent, I can’t condone the child making the purchase or taking the item to school. At the same time, why do we continue allowing the stores to sell them?


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Lawyers Duty to Client Never Dies

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About a week after the heinous attack on Dallas police officers, media sought to understand more about the killer. They learned the gunman was honorably discharged from the military but knew he had been involved in some sort of sexual harassment. In their quest to fill the ever-growing hunger for details to report, the Associated Press reached out to the shooter’s prior military lawyer for an explanation.

Army lawyer Bradford Glendening was assigned to represent Johnson following an accusation of sexual harassment against him by a female soldier in his unit, Glendening said. Exactly what Johnson is accused of doing has not been made public.

Johnson deployed to Afghanistan in 2013, but was sent back to Texas with the recommendation that he be removed from the Army with an other-than-honorable discharge, said Glendening, who prepared the other-than-honorable discharge papers in September 2014.

However, Johnson didn’t actually leave the service until the following April, according to service records released by the Army that do not classify his discharge.

His attorney later learned that the discharge was honorable.

“I was shocked to see that,” he told The Associated Press by phone last week, less than 24 hours after the Dallas shooting. He said he never received final documentation on how Johnson’s case was resolved.

“Somebody really screwed up but to my client’s benefit,” he said.

Seems like a simple statement. Glendening, the gunman’s lawyer, filled in the basic details: a sexual harassment allegation, a recommendation that he be discharged other than honorably, and somebody really screwed up. Well, arguably he got that part right: someone likely did screw up. It seems Glendening revealed confidential or privileged information about his former client.

The attorney suggested that Johnson may have had other problems in his unit.

“It was not just the act itself,” Glendening said. “I’m sure that this guy was the black sheep of his unit. Every unit’s got one.”

This short media statement immediately became the topic of debate for lawyers across Texas. The thoughts and answers were varied. Some lawyers opined that it may not be “right” to have revealed privileged information, but there was no one around to sue for damages since the client is now deceased. Some flat out claimed there was no privilege when the client is dead. Neither of these opinions is correct.

The attorney-client privilege survives not only the attorney-client relationship, but also the client’s life. A lawyer cannot divulge confidential communications between his client and him ever, even after the client dies. Swidler & Berlin v. United States, 524 U.S. 399 (1998). Simply put, the attorney-client privilege is forever. And, this makes sense. Clients seek advice for a variety of reasons. Lawyers need to be able to provide accurate advice. This rule encourages clients to reveal even the most egregious facts to her lawyer, in confidence, so the lawyer may render the best possible advice knowing all the facts.

Professional rules for lawyers go even further:

The Rules of Professional Conduct generally are interpreted as protecting posthumous client confidences and all material relating to the representation of a client. The American Bar Association’s Model Rule of Professional Conduct 1.6 and similar state bar rules prohibit attorneys from disclosing information relating to their representation of a client without the client’s consent. A number of state bar opinions indicate that the ethical obligation to client confidentiality survives the death of the client. The purposes of the ethical rules on confidentiality overlap with goals of the attorney-client privilege and of work-product protection but also are said to be broader, in that they support the reputation of the legal profession. To the extent that the ethical obligation is seen as creating a duty to a client, the analysis that the privilege survives the death of the client would also suggest that counsel’s ethical obligations support the same result.

Texas Rules are similar. Disciplinary Rule 1.05 defines confidential information as including both privileged information and unprivileged client information.

“Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

As the Disciplinary Rule refers to Rule 503, Texas Rules of Evidence, it’s important to compare and include Rule 503:

503(b)(2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney–client relationship.

503(c) Who May Claim. The privilege may be claimed by: (1) the client; 19 (2) the client’s guardian or conservator; (3) a deceased client’s personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity—whether or not in existence.
The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf—and is presumed to have authority to do so.

Generally, confidential information should not be disclosed. While the rules (both disciplinary and evidentiary) provide for instances in which a lawyer may reveal confidential information and unprivileged client information, the exceptions have nothing to do with revealing information after the client’s death. The exceptions allow disclosure when authorized (expressly or impliedly) by the client or the representation, to defend the lawyer against claims of wrongful conduct, to apply with a court order or other law, to rectify a criminal or fraudulent act by the client using the lawyer’s services, and to prevent the client from committing a criminal or fraudulent act likely to cause death or serious bodily injury to a person, among other similar exceptions. But, nowhere do the rules allow for revealing confidential information because the client or former client is now deceased. In fact, Texas Rule of Evidence 503 is broader and extends the ability to claim the privilege to the deceased client’s personal representative, providing support for the privilege surviving the death of the client. Even after the client passes, his representative can still claim the privilege.

Remember, confidential information includes unprivileged information, which means all information acquired by the lawyer during the course of or by reason of the representation of the client. That’s very broad language. No matter the source of the information, any information acquired during the representation is subject to the rules of confidentiality.

And, because privilege survives the client’s death, all that broad information is forever the lawyer’s secret. It is her duty to maintain those secrets even where the media cries for answers; even when the former client is accused of some heinous act.

 

*Update:
Since posting, comments on social media suggest the privilege dies with the client. I have been unable to locate any Texas or Federal case to support such a position. But, there is a fairly recent case that distinguishes a “Corporation” as a client and holding privilege does not survive the death of a corporation: SEC v. Carrillo Huettel LLP, 2015 U.S. Dist. LEXIS 45988 (S.D.N.Y. April 8, 2015).

Additionally, see Dead Men’s Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death by Jon J. Kramer
The Journal of Criminal Law and Criminology (1973-), Vol. 89, No. 3 (Spring, 1999), pp. 941-972.


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Prosecutorial Discipline

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disciplineFor decades, discipline for prosecutors was atypical and virtually nonexistent. Times are changing, though, it seems. First, Ken Anderson and Charles Sebesta and now line prosecutors.

In a case of first impression for disciplinary actions, Denton County prosecutor William Schultz found out the hard way that Brady has meaning beyond the courts. While the courts might impose a mistrial, vacate a sentence, or even possibly sanction a prosecutor, the State Bar Disciplinary Panel could enforce broader rules and even discipline. After withholding Brady information, the Board of Disciplinary Appeals pointed out the error of his ways (Schultz had assumed he could determine what was or was not Brady and therefore what was or was not to be turned over) and affirmed his partially probated suspension from the practice of law.

Now, former Williamson County prosecutor Mark Brunner has agreed to a fully probated suspension based on his lack of candor untruthfulness to the court. Brunner represented the State of Texas in a series of charges stemming from a bank robbery. During the prosecution, Brunner was able to reach a plea bargain with the defendant. Apparently, the plea was quite the bargain and even the court was concerned about it. Upon inquiry by the court, Brunner stated he had spoken to the victims and the bank owner and that they were satisfied with the plea agreement. Before the judge accepted the plea, he affirmatively stated, “… but for the acquiescence of this agreement by the victims in this case, I would not be going along with this agreement.”

The court, relying on Brunner’s assertion, approved the plea bargain and sentenced the defendant accordingly. However, Brunner had not spoken with the victims about the plea and none of them were aware of the plea agreement. And, Brunner did nothing to correct his false statement made to the court or relied upon by the court. Thus, the Panel concluded Brunner violated Texas Disciplinary Rule of Professional Conduct 3.03(a)(1): a lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

In his defense, Brunner offered:

When asked why he lied to the Judge, Brunner told KXAN via text message: “I answered the bar with my side of the issue. They obviously saw it otherwise. Id [sic] rather not fight it out with them in public. I had that option and I passed. So I’m still passing.”

While it is unclear whether Brunner was attempting to justify his conduct, he agreed to the discipline. He further agreed to the findings of fact which include the victims were unaware of the plea agreement. Much like defendants work plea bargains to mitigate punishment, perhaps Brunner feared a greater discipline. A fully probated suspension gives him the opportunity to continue practicing law uninterrupted. It certainly could have been worse.

All-in-all, this is a lesson in change for the prosecutorial bar. No longer are complaints simply dismissed. No longer do prosecutors get a pass for their conduct. The Bar is getting serious and it’s time to restore integrity to the prosecutor’s role.


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Age: Is it Just a Number?

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A 17-year-old cannot vote, buy cigarettes or alcohol, and cannot serve in the armed forces. Yet, a 17-year-old is an adult for criminal prosecution purposes and can legally have consensual sexual relations. Hell, even a 14-17 year old child can legally engage in consensual sex so long as his partner is not more than three years older than him. Despite the fact that kids can legally engage in physical sex, kids may not share nude photos with her lover. Sex is ok, but photos are not because that’s child porn. So, is age just a number? Does it have any real meaning? Is it meant to reflect a level of maturity? Mature enough for sex but not for photos? Is it meant to protect the innocence of childhood even where we prosecute children as adults? Is it reasonable to think that citizens can keep all the differences straight and know what is allowed and what isn’t?

Aldo Leiva, a 51-year-old math tutor, is now facing criminal charges for possession of child pornography and sexual performance by a child. The pornography stems from him receiving topless photos from the 17-year-old. The sexual performance originated because prosecutors claim he induced asked the 17-year-old to provide the photos.

Set aside for a moment that Leiva was a math tutor for this 17-year-old. Imagine he were someone she met at the mall. (Do kids even hang out at the mall anymore?) It would be perfectly legal for Leiva and her to engage in a relationship, even a sexual relationship. Sure, her parents may not like it. But, be that as it may, it would still be legal. Given that he could physically inspect her naked body, why is it that he cannot possess a photo of it? If see her naked body was such a heinous crime, surely Texas would also criminalize the sex as well.

Texas isn’t alone in this enigma. Colorado punishes possession of child pornography where the subject is under 18, yet, the age of consent for sex in Colorado is 17 in general, 15 if the other party is no more than 10 years older, and even younger if the difference in age is four years or less. Kids can engage in sex. They just can’t share photos. Again, makes zero sense!

It’s time to have some consistency in our laws. Consensual relationships are simply that – a product of consent. Yet, we choose to criminalize some acts between the two consenting parties and not others. It’s time to make age more than just a number, especially when the number is different for every crime and situation. Until then, remember, You Can Have Sex With Them; Just Not Photograph Them!


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Good Deeds

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Criminal defense lawyer extraordinaire Mark Bennett has done his fair share of good deeds. As he can tell you, no good deed goes unpunished.

A true defender, Mark often comes to the aide and defense of his brethren in and around Harris County. He is head of the HCCLA Strike Force and responds to a “bat signal” whenever distress rears its ugly head.

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assessing the situation

Fairly recently (recent being a relative term when waiting on the State Commission on Judicial Conduct), a local judge was issued a private sanction after improperly detaining a colleague who was simply wanting to communicate with her client. Mark, and many others, rapidly appeared to assist. Mark took the lead, assessed the situation, and worked out an appropriate settlement. The judge withdrew her order of custody and released our colleague.

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researching remedies

In the aftermath, the State Commission on Judicial Conduct completed an investigation and issued a private sanction. During that investigation, the Commission took statements from those who witnessed the incident in whole or in part. (I know because I spoke to executive director, Seana Willing, who asked for my statement. I also spoke to the private investigator working for the judge’s attorney regarding the judicial complaint.) At the conclusion, the Commission determined a private sanction was appropriate.

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everyone willing to help

Fast forward: good deed done, now comes the punishment. Just last week, Mark had a case in said judge’s court. He took on this case last minute (yet another good deed) after the death of a colleague. He had a legitimate reason to request a very short continuance to cover a legal matter that could substantially affect his new client. His request was met with hadn’t he “just asked her for another day yesterday” and he “was losing credibility.” In Mark’s explanation about just taking over the case in an unforeseen tragic circumstance, the judge responded, “well, no good deed goes unpunished.”

And there you have it. Mark performed a series of good deeds only to have his credibility attacked. Retaliation for his assisting colleagues and providing a truthful statement to the Commission. Oh, and did I mention, when he wrote about all this, he learned just a little bit more about the judge and retaliation.


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(il)Legal Copycat

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In what Internet universe would a lawyer steal the words and work of another and not expect to be caught or called out? Why would a lawyer post “news” on their website by simply trolling the Internet and stealing others news? And, if a lawyer were going to do so, would they just take the easy way out and simply copy what the State Bar has already curated and pass it off as their own?

If you are a lawyer at Brown & Musslewhite in Houston, you would be lazy, plagiarize steal content, and pass it off as if some “author” in your firm wrote it.

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Jeff Musslewhite earned his law degree from The University of Baltimore School of Law. Apparently this is one school that doesn’t teach criminal law or copyright. Hell, they may not even teach ethics. Well, maybe it’s not fair to blame the school. After all, his law partner Lori Brown attended the University of Texas and didn’t learn the basics either.

Instead of creating and publishing their victories, successes, thoughts, and business plans, they have a “news” feed that does nothing but regurgitate the blog posts curated by the State Bar of Texas’ Texas Bar Today blog. The folks over at Texas Bar Today spend time reading and then passing on relevant information by providing links to various lawyers’ posts. When they do so, they identify the original writer, giving a link credit to the author, and simply send the interested reader directly to the original post.

Apparently, that’s too much work for the lawyers at B&M. They would rather just copy the work of the Texas Bar Today folks, create a fake author page, and link the readers back to themselves. By creating fake author pages, they give the appearance of the author writing or working for them. And trust me, I do not write for them, and I certainly would not work for them.

To be fair, their posts begin with “Written by JOANNE MUSICK” and “Originally published by JoAnne Musick.” Yet, when you click the link for JOANNE MUSICK, it circles right back to their site and a handy-dandy collection of everything they copied from me (which is only 2 [correction: 4, 2 as JoAnne Musick and 2 as JoAnneMusick] posts so far – but I’m not the only one they are copying – they have also copied HCCLA and HCCLA’s Reasonable Doubt).

They say imitation is flattery. Well, I’m not flattered. I find myself, much like Ruth, pissed:

When you like my blog work, I’m pleased. When you link to my site, I’m flattered. When you request a reprint, I’m delighted. When you rip off my work, even with an attribution, I get pissed!

You like my writing? Great! Let me know and I’d probably give you permission to use it. Want to curate like the Texas Bar Today folks? Great! Give proper links and I wouldn’t care. But don’t just blatantly utilize my words to enhance your google presence and seem relevant.

The interesting questions: Is this their work ethic? Do they really do real lawyer work? Or do they just copy others? Didn’t we learn in grade school that plagiarism was wrong? If they show deceit in their website, will they deceive a client? The court?

I have no desire to find the answers to these questions. I would never hire a lawyer engaging in such practice. It’s unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don’t try to make yourself look better; be better!

Update: see what they are copying here


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