Brady Doctrine Narrower Than Prosecutor’s Ethical Obligations

The Texas Board of Disciplinary Appeals has held that the ethical duties of a criminal prosecutor to disclose are broader than the requirements of Brady v. Maryland.

In this attorney discipline case of first impression, we must determine whether the Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) codifies the constitutional duty to disclose exculpatory evidence imposed under Brady v. Maryland, 373 U.S. 83 (1963). No Texas appellate court has yet determined whether the ethical duty of a prosecutor to disclose to the defense information that “tends to negate the guilt of the accused” pursuant to Rule 3.09(d) is limited to the scope of “materiality” in Brady. Based on the plain language of Rule 3.09(d) and significant differences between the purpose and application of the duty under the disciplinary rule and the constitutional duty under Brady, we hold that Rule 3.09(d) is broader than Brady.

The board upheld an evidentiary panel determination

Schultz, Assistant District Attorney for Denton County, admitted during the underlying criminal proceedings and during the disciplinary hearing that he did not disclose to the defense the limited ability of the state’s key witness to identify her attacker because he did not think it was either exculpatory or material. He relied on his interpretation of what was required under Brady in his own defense that disclosure of this information was not legally required.

Schultz later conceded at the disciplinary hearing that the information should have been disclosed. Further, the District Attorney’s office stipulated during the criminal proceeding that the information should have been disclosed. The trial judge in the criminal case found that Schultz’s failure to disclose the information violated Brady and granted a mistrial to which double jeopardy attached…

We hold that the materiality standard under Brady does not apply to Rule 3.09(d). We further hold that failure to disclose information otherwise required by law to be disclosed, regardless of intent, constitutes unlawfully obstructing another party’s access to evidence in violation of Rule 3.04(a). Finally, there is substantial evidence in this record to support the findings that Schultz failed to make timely disclosure of all evidence known to him that tended to negate the accused’s guilt and, in so doing, unlawfully obstructed another party’s access to evidence. Therefore, we affirm.

Reasoning

The ethical standard’s independent purpose of protecting the public is further apparent in this case where the withheld information came to light during the proceeding. Determining the materiality of undisclosed evidence by applying a Brady test in the context of an aborted prosecution is speculative. Therefore, limiting the ethical duty, as opposed to the constitutional duty, to disclose information would limit prosecutors’ accountability to the public because the failure to disclose would only arise if a conviction had occurred.

The board analyzed precedent from other jurisdictions in reaching its conclusion. It affirmed the imposition of a partially-probated suspension.

DentonRC.com has details here. (Mike Frisch)