Scenario - first trial - judge grants mistrial based on failure to disclose exculaptory info (statment from a witness of what defendant said to him - shouldn't defendant know what he said?)

Def pleads nolo contendere at second trial. Def manitained a self-def theory based on agressiveness (i.e. steriod use) of the victim.

Witness tells pros of steroids, pros informs def, def requests mistrial - grounds exculpatory info withheld (allegedly witness told pros prior to first trial about this)

Pros asks judge as a lesser remedy to allow w/drawal of plea and set for trial - but judge in chambers says that will allow pros to avoid double jeopardy. Judge grants mistrial - also finds pros acted with reckless conduct (note judge alludes to statement of the first mistrial suggesting grounds for this mistrial).

Ques - is this evid actually exculpatory w/ regard to guilt once def pleads - was mistrial improvidently granted especially in light of the least drastic remedy - is there a different standard regarding exculpatory evidence when def pleads?

I do not think the definition of exculpatory varies. But a guilty or nolo plea may affect the duty of the prosecution to disclose the type of evidence you refer to (i.e. impeachment or defensive evidence). United States v. Ruiz, 536 U.S. 622 (2002). Certainly this issue ought to impact whether there was a "reckless disregard" or whether the case falls within Bauder. My question is how did you get a "mistrial" after a plea of no contest? Your question seems to indicate there was no jury involved in the second proceeding. If that is the case, would not the proper remedy have been for the defendant to move to withdraw his plea? If there was a jury the second time, then do not you end up with the problem that even if no mistrial should have been declared, the judge's mistake still costs the State its ability to retry the case? Hill, 90 S.W.3d at 315.

Was the link between steroid use by the victim and the defendant's claim of self-defense so clear that the prosecutor should have recognized the exculpatory nature of the evidence? I think that is a good question. One case to look at is Keeter, 97 S.W.3d at 715, which discusses when evidence is "equally or fully available to the defense".

[This message was edited by Martin Peterson on 04-30-03 at .]

I believe we got the mistrial because the judge wanted to bar reprosecution. His comment in chambers was he wasn't going to allow withdrawal of the plea because prosecutors would be protected from the double jeopardy bar.

Keeter helps, but the steroid use was not available to defense. The first mistrial was probably in error because the statement was equally available (i.e. - defendant should have known what he said to the witness) but it is too late on that one.

Thanks for Ruiz - will try to see if that helps.

I remain confused. Was there a trial going on during the second proceeding or did the defense raise a Brady violation after discovering the evidence after the no contest plea had been accepted by the court in a non-jury proceeding? In other words, exactly when in what process did the sua sponte mistrial occur. If it was non-jury, then regardless of the label, the court had to have permitted withdrawal of the nolo plea rather than a true "mistrial" and I would argue the defendant waived any defense he may have had (hence no harm from the non-disclosure). By the way, you should probably be aware that the Keeter opinion I cited was withdrawn on April 3, but a very similar opinion will take its place in the books shortly. Also, the State will be asking that Keeter be reviewed by the CCA, in the hope the court will clarify several things, including the meaning of Richardson in this context.

Martin is right to point out Ruiz, and there are more detailed cases on the same issue out of the 5th Circuit that basically say that due process requires disclosure of exculpatory material only if there is a trial over guilt.

This issue is covered in The Perfect Plea on page 8, footnote 15, which also points out earlier law to the contrary from the Court of Criminal Appeals: Ex parte Lewis, 587 SW2nd 687, 701 (Tex. Crim. App. 1979).

I don't know that I would expect the Court of Criminal Appeals to follow the Supreme Court given their recent decision that a person who pleads guilty can still claim years later that they are innocent and get off.

But I also must say that, like Martin, I am confused about the facts of your case. If a judge discovers evidence in the middle of a guilty plea that suggests the defendant is innocent, the judge is not required to let the defendant withdraw the plea. But the judge still must go forward and make a decision on guilt. It seems rather unusual to announce a mistrial when there is no trial going on.

[This message was edited by John Bradley on 04-30-03 at .]

For what it is worth, the CCA granted review of the Keeter opinion today.

I quess I never made it clear, the plea was to the judge. Eventually this same judge gratned relief on double jeopardy. Still basing his decision on a statement that was alleged as Brady material during the first mistrial, a statement that was handed over to the defense prior to the second "plea hearing", and the statement with regard to the possible find of "alleged steroids" in the victims belongings. My appeal will be due in a few weeks. Hopefully the modification of Bauder and its application to double jeopardy bar the CCA did in Ex parte Peterson may be helpful. I will have to reread Keeter to see if the grant of a PDR will be another argument I might be able to use to support my position that the CCA is reviewing Bauder and may be more willing to limit the use of a mistrial to claim a double jeopardy bar.

[This message was edited by pkdyer on 10-16-03 at .]

I am sure you have argued that any claim under Bauder was waived by the fact that the defendant pleaded nolo at the time the case was called for trial the second time and apparently did not raise the issue until after the court had accepted his plea (if at all, since I understood the judge granted the second "mistrial" sua sponte). See Broce, 109 S.Ct. at 764 ("Relinquishment derives not from any inquiry into a defendant's subjective understanding of the range of potential defenses, but from the admissions necessarily made upon entry of a voluntary plea of guilty") and Birdwell, 7 S.W.3d at 163-4. Furthermore, I would take the position that since the trial judge was treating the initial order for mistrial as a permanent disposition of the case, that the State can still challenge the basis for that order. In other words, if that order was void, then the subsequent order relying on it was void.

But what effect, if any, will a finding in the underlying disciplinary action have on the issue of whether the first mistrial order was proper or gave rise to a Bauder claim? Seems ironic that one branch of the State government is now arguing contrary to the potential interests of all criminal prosecutions (for what appears to me to be an expansion of our duties under Brady or Rule 3.09(d) that is not really related to the innocence of the accused). How does one know that past use of steroids always or even frequently leads to "aggressiveness", which in turn will "fit" a defendant's theory of justification on a particular occasion? In any event, what is going on in Taylor County should serve as a wakeup call for us all.

I argued waiver of Brady violation because of plea through US v. Ruiz, 536 US 622; Matthew v. Johnson, 201 F3d 353, Ramirez v. State, 89 SW3d 222, and Jacobs v. State, 80 SW3d 631. But oral argument has not yet been set, so will look at those cases as possible additional arguments. Also argued waiver as def counsel never requested a continunace. And mere knowledge of prior drug use did not raise the issue of provocation through Moore v. State 882 S.W.2d 844.

John, looks like the Eleventh Court agrees, Lewis is alive and well. Masonheimer Things are not looking so good for Judge Harper, now that both the trial court and the court of appeals have found he was in possession of Brady material with respect to the information allegedly received from Clappart. I still think the relation between the finding of what "might" have been steroids accessible to the victim and a prosecutor's duty to recognize exculpatory evidence remains questionable. Augurs spoke of evidence "obviously of such substantial value to the defense that elementary fairness requires it be disclosed." Chalk, 816 A.2d 413 states the very workable standard: "evidence whose high value to the defense could not have escaped" the attention of the prosecutor. But, criminal trial work is taking on more of the aspects of civil litigation all the time, with the twist that the prosecution must reveal all and the defense virtually nothing.

A mere cite to Lewis, with no recognition or explanation of the SC's intervening discusion of the irrelevance of exculpatory evidence in connection with a guilty or no contest plea is lame. The court of appeals should be required to explain why Lewis is still good law. It isn't.

The SC has made it clear that the due process clause requires the State to disclose exculpatory evidence to make sure the defendant receives a fair trial. There is no trial following a guilty or no contest plea.

The court of appeals describes the procedure as a "bench" trial. What? The judge merely decides whether he/she is going to accept the plea as voluntary. Of course, the State must present evidence to support the plea, but that is not to decide guilt or innocence. It is a state mandated procedure to make sure the guilty plea is reliable.

I would strongly recommend a PDR on the issue of whether the prosecutor had a duty to disclose in connection with the no contest plea.

Just to set the record straight, the opinion misstates the facts. When Clappart contacted Trish Duque she stated that she could not swear that it was steroids in the vials because it was written in Spanish and she does not read Spanish. She only suspected steroids.

The Ruiz 536 US 622, Matthews, 201 F3d 353, and Orman, 228 F3d 616 decisions were well briefed and as well as Ramirez, 89 SW3d 222 and Jacobs, 80 SW3d 631 on the issue of whether a prosecutor has a duty to disclose. I agree that given the holdings in these cases there was no duty to disclose any Brady material in a guilty plea.

Can we cross appeal on that issue if defense files a PDR?