Rob, I know what you and Chip said in Fort Worth on Friday was perhaps the safest approach. But, I am still thinking Ruiz fully supports NOT disclosing the fact that another person at the scene did not think it was the defendant who was the robber. Basically, you have the one strong witness on ID and now the defendant himself not wishing to contest identity versus the argument that the other witness could not accurately identify the robber.

Here is how Ruiz was reported:

The SC said that the Due Process Clause, which is the source of a prosecutor's obligation to disclose exculpatory evidence, applies in cases that go to TRIAL.

When a defendant pleads guilty, he forgoes the opportunity to challenge the evidence and, therefore, no longer has a right to exculpatory evidence. [The SC left open the question as to whether that would apply to evidence that established absolute innocence.]

It seems to me this evidence would never be held to be material under the posed facts, even if Brady applies. But, then, maybe I am just too big of a fan of guilty pleas. With no case law to guide one's interpretation of Rule 3.09(d) we are sure put in difficult positions at times.

Defense counsel peruse this site quite often, and I have had it mentioned to me on several occasions by opposing counsel when posting a thread about a pending issue, and others have as well.

I'm a firm believer in full disclosure. I don't know what Rob and Chip said in Ft. Worth, but from the context of your first paragraph, that evidence sounds exculpatory to me.

"...the fact that another person at the scene did not think it was the defendant who was the robber." Sounds exculpatory to me, and mitigating as well.

Think about it this way: If it were you on trial, would YOU want to know whatever information is involved? I think the answer is always yes.

Many times, we as prosecutors discover exculpatory evidence during trial preparation or even during trial, and I make it a point to immediately disclose this information. Pretrial is a no-brainer as well, I have a fully open file and disclose everything I know about the facts. I keep my law in a separate folder, as it is my work product. I note dates and times on the file when exculpatory information that is not in the file is disclosed (i.e. verbal information), and generally memorandize that in writing or on the record before the court.

And from a purely legal standpoint, why create an appellate issue by non-disclosure?

It just makes life simpler and I think, adheres to our mandate of seeing that justice is done.

Martin, you have got to stop starting your conversations in mid-sentence. Please preface your threads with some background. We can't all read your mind. We were not in Fort Worth. We don't know what was said.

Part of the pop quiz for the Ethics portion of the Legislative update. One witness robbery case about to be reached for trial. The first case washed out at the last moment, but you still figure "you're a trial lawyer and can pick up anything and try it on the spot." "Your cop who made the case and your one witness" are available to testify. "Your one witness is strong a horseradish on the ID, but the investigator did note that one other person at the scene said that the defendant did not look like the guy who did the robbery. But, the defense attorney emerges from the holdover area and announces that his client will take the deal you offered him." Q: Before the plea do you tell the defense attorney about the other person?

Yes.

I see a difference in giving it over for a plea and giving it over for a trial. The defendant is in the perfect position to know if he is the culprit or not,if he is not contesting the fact that he is guilty, under Ruiz, why is it necessary to turn over that info ? For trial I agree 100%, turn it over !!!!!!!!!

I also see a difference if it were say a sex asslt and I had DNA results that said the defendant was not the supplier of sample.

According to the US Supreme Court, the due process clause of the US Constitution entitles a defendant to access to exculpatory evidence in order to prepare for an adversarial trial on the issue of his guilt and/or punishment. So, if the case is going to trial and the defendant is contesting his guilt, then the State has a duty to disclose the evidence.

If, on the other hand, the defendant short-circuits the process by indicating he is accepting responsibility for the crime and wants to plead guilty, generally in exchange for a reduced sentence, then the State may make waiver of any additional discovery, including exculpatory material, a condition of that plea.

There really is nothing so radical about this notion. Defense attorneys understand that a plea of guilty benefits a guilty client because of the time saved the State. The State saves time and money by not having to provide extensive discovery or face the risks and costs associated with a trial. That is the whole point of plea bargaining.

So, no, there is no constitutional duty to disclose the evidence once a waiver and guilty plea are obtained. I highly recommend that both prosecutors and defense attorneys read the Ruiz opinion. Although it focuses on potential impeachment evidence only, the reasoning makes it clear that the Brady line of cases are based upon the idea that discovery assists the defendant prepare for a contested trial. Any time the defendant pleads guilty, he makes his decision with less information than he would have obtained during a contested trial.

Nonetheless, Texas law does provide some protection against an innocent person pleading guilty. Although not required by the US Constitution, Texas law requires a judge, in a felony case, to hear sufficient evidence to support a guilty plea. That evidence generally comes in the form of a judicial confession by the defendant. Frankly, more judges should take that requirement seriously, asking for some details in that confession that confirm the defendant knows what happened and is factually guilty.

That doesn't mean, however, that a prosecutor can't indulge in a more protective standard of discovery than required by the US Constitution. And, with evidence of actual innocence, that is undoubtedly the better practice.

So, GG may well feel better about disclosing the evidence. He may even have a local policy requiring such disclosure. I'm betting, though, that no prosecutor consistently provides the same level of discovery in a plea bargained case as in before a constested trial. It just isn't possible.

For additional details and a form waiver for such discovery, see the forms in The Perfect Plea.

[This message was edited by JB on 08-19-07 at .]

[This message was edited by JB on 08-19-07 at .]

quote:

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Originally posted by Stacey L. Brownlee:
I see a difference in giving it over for a plea and giving it over for a trial. The defendant is in the perfect position to know if he is the culprit or not,if he is not contesting the fact that he is guilty, under Ruiz, why is it necessary to turn over that info ? For trial I agree 100%, turn it over !!!!!!!!!

I also see a difference if it were say a sex asslt and I had DNA results that said the defendant was not the supplier of sample.

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Nothing wrong with reasonable minds differing, my good friend...

The contention that there is no constitutional obligation to turn over exculpatory evidence when the defendant pleads guilty seems highly dubious.

McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003) (given Ruiz's distinction between exculpatory and impeachment evidence, "it is highly likely that the Supreme Court would find a violation of the Due Process Clause if prosecutors ... have knowledge of a criminal defendant's factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea"); United States v. Ohiri, 133 Fed.Appx. 555 (10th Cir. 2005) (granting relief).


United States v. Mackay, Slip Copy, 2007 WL 700895 at *16 n.14 (N.D.Tex. March 6, 2007) ("Although Ruiz seems to leave open the possibility of some disclosure requirement even in the context of a guilty plea, see 536 U.S. at 630 (suggesting that there is 'critical information of which the defendant must always be aware prior to pleading guilty'), the current case presents no occasion for this Court to explore that possibility.")

The CCA has even suggested that the Texas Constitution might provide greater protection even if the ambiguous federal case law breaks in the State's favor:

Ex parte Lewis, 587 S.W.2d 697, 700 (Tex. Crim. App. [Panel Op.] 1979) (a prosecutor's duty to disclose favorable information extends to defendants who plead guilty, in a case where state did not disclose {to new defense counsel} expert report indicating that the defendant may have been incompetent and had an insanity defense; "The requirement of due process and due course of law extends to guilty pleas as well as to contested cases.").

Ex parte Lewis was decided long before Ruiz, so it is questionable. It also did not involve an express waiver of discovery.

As for the others, they say nothing more than what is already in Ruiz -- namely, the SC did not decide whether the same rule applied to an obvious claim of factual innocence.

That is different from some piece of evidence that might have been helpful at trial to impeach or use in some exculpatory manner.

Evidence regarding a defendant's mental status, at the time of the plea, goes beyond exculpatory. Everyone has a duty, even in a guilty plea, to make sure the defendant is competent. That goes to the voluntariness of the plea.

So, I'm not seeing any outright challenges to the fundamental conclusion of Ruiz. Particularly if the plea papers include an express waiver of additional discovery.

[This message was edited by JB on 08-20-07 at .]

I would agree with the idea that a defendant who is claiming to be guilty is not harmed if evidence like that in the hypo is not turned over.

My problem with it, however, would be how to answer the question later, "I was innocent and only pled guilty because the State told me they had a witness who would identify me and I had no alibi." Whether the case stands up on post-conviction or not, it just doesn't smell right. Especially if the defendant has been saying not guilty all along and then takes the deal only on the eve of an unexpected trial. I wouldn't want to appear to be pressuring the defendant to plead, while at the same time concealing evidence from him which could help him prove his innocence.

It just seems like the safer thing to do is to tell them about it.

[This message was edited by Wes on 08-20-07 at .]

That should have been handled at the plea.

"Do you understand that you have the right to a jury trial, where you could challenge the state's case?"

"Do you understand that if you had a jury trial it would be preceeded by discovery beyond what has been given up to now, and you might develop additional evidence that could help you defend yourself?"

"Are you waiving your right to a jury trial and additional discovery, knowing that it will prevent you from continuing to challenge the State's case?"

"Do you also understand that 10 years from now you can't change your mind, declare your innocence and expect a court to give you a trial?"

Look, at some point the defendant has to take responsibility for his decision to plead guilty. Judges can do a better job of protecting the record by asking more than the typical plea questions to make it clear that the plea is voluntary.

I agree, but the thing about the hypo that concerns me is the timing. The scenario suggests that this case is going to trial right now unless the defendant pleads. Presumably he has been given all the discovery which he would normally get prior to this point. If the judge instructs him that he is waiving any further discovery, his lawyer is surely telling him that there is nothing else they could expect to get from the state. We have told them that there is a witness who will ID the defendant, but we have not told them that there is another witness who will say it was not him. The defendant has no reason to think that this witness exists. I don't think we can wait until after we see what plea the defendant will enter before we give him the Brady material.

And what do you do if he finds out later, and his attorney says "I never would have advised him to enter a guilty plea if the State had not concealed this information from us." I just think, in a case like this, you're setting yourself up for a possible reversal, and a definite black eye in the press.

I think I would see it differently if the defendant had confessed or come to me with an offer to plead before receiving discovery. That would suggest that the plea was less influenced by the pressure of imminent trial.

OK, given the scenario with the trial about the start, I can see your point.

Might be that Ex Parte Lewis is long before Ruiz, but I argued that to 11th COA in Masonheimer and they cited Lewis as a reason that the alleged Brady material would have to be turned over even in a guilty plea. I tried to get the CCA to look at the issue on cross-appeal PDR, but they declined to do so.

Not to belabor this issue but wouldn't your discovery have already have been done before the day of trial ? If the guy shows up on trial docket day (for my county the Friday before we pick the jury on Monday) and says he wants to plea, his attorney should already have my discovery, Brady and all, should I then be required to point out to the defense what the "possible" shortcomings of my case are ?

The scenerio indicates that the investigator made note of this and I would assume that meant in his offense report which we would have turned over (in most instances) prior to pretrial.

I think you are right, Stacey, but all of this arises from an artificial hypo designed to test the limits of discovery/ethics rules. But, we also all know that we discover some things as we get closer to trial. The question has evolved into, "Does the duty to disclose change depending on how close is the trial date?"

Brady says nothing about what is required to assure the voluntariness of a guilty plea and many cases say Brady does not require the State to disclose mere weaknesses in its case. To me, that means prosecutors are still allowed to take into account the materiality of evidence. Just because it is favorable does not mean due process will be denied if it is not disclosed. I realize this determination is like playing with fire, but the fact that a defendant is effectively conceding guilt should be allowed to be weighed. Besides guilty pleas should not be allowed to be withdrawn just because the chances at trial might not be what the defendant was predicting. I agree that the defendant does not know about the witness in question. But why does he need to know this? Effectively the police discovered a defense witness, whose testimony appears unlikely to change the outcome. But the prosecutor can assume this information will still encourage a contested trial rather than a guilty plea. Is that really what Brady was about? I am not suggesting exculpatory evidence be hidden to induce a guilty plea. But where it is merely useful to rebut the State's theory, it seems a lot more like those examples of things (like the fact that a witness is not available) which the defense would certainly like to know, but which do not have to be revealed.

quote:

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Originally posted by Martin Peterson:
I agree that the defendant does not know about the witness in question. But why does he need to know this? I am not suggesting exculpatory evidence be hidden to induce a guilty plea. But where it is merely useful to rebut the State's theory, it seems a lot more like those examples of things (like the fact that a witness is not available) which the defense would certainly like to know, but which do not have to be revealed.

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Last post for me on this thread, but we're the good guys. We are supposed to above above the pettifoggery and chicanery that many attorneys are so disliked for.

And I'm not saying that struggling with these dilemnas of what to disclose or not make you dishonest. It is just different from my interpretation of what we are supposed to be about as prosecutors. By disclosing everything, I don't spend any time worrying or thinking about what should I disclose. More time to concentrate on sending the violent and guilty away.

Many years ago, when my grown child was much younger and accompanying me to work often during summers, observing trials and whatnot, someone asked if my child was proud I was a lawyer. My child replied: "My dad's not a lawyer. He's a prosecutor. Prosecutors tell the truth. Lawyers often don't."

I was pretty stunned by that statement, because we had never discussed in depth the difference between attorneys and prosecutors. It was all stuff my child had gleaned hanging around watching folks like Stacey B. and other fine prosecutors I am privileged to know and to have worked with.

But it is right there in our oaths, and in the prime directive that "justice be done".

I think you should turn favorable evidence over as soon as you are aware of it. We cannot assume that every lawyer is sharp enough to have conducted an investigation of the case using due diligence. We need to realize that there are less than capable lawyers who continue to be appointed by judges. We cannot wear the white hat and will suffer a public relations nightmare if we take the position that we only have to reveal favorable evidence when the trial begins.