A local police officer is indicted for Aggravated Perjury. He writes a statement "explaining" his inaccurate statements under oath. He is given Pre-Trial Diversion. At the end of the PTD term, he is entitled to expunction. But he is still a working, local police officer. Clearly, it can be argued the paperwork to be expunged is Brady. What do you do?

Any information you have on an officer that can be used as impeachment evidence must be disclosed to the defense under the Morton Act. It doesn't have to be something in physical, tangible form. Just something you know. Even without an indictment, if you knew that officer has a reputation for not being truthful you have to tell the defense attorney that information. That doesn't mean that anyone but the defense attorney will ever hear about it because it may not come in at trial, but that's your obligation under 39.14.

However, there's going to be a statutory conflict between Morton and provisions regarding expunction that say you're not allowed to ever talk about expunged offenses. I don't want to shoot from the hip on that. Someone who knows a lot more about expunction law will have to sound off on that.

You should call the former CDA from Hays County, Sherri Tibbe. She had this exact issue a few years back, as I recall. I think the resolution they took was that a constitutional right of a defendant will trump a statutory right of another defendant. But talk with her. Her law firm number is: (512) 476-4475.

In any event, I would consider providing the exculpatory information to the Court, under seal, and let them either order its release or not.

Expunctions only apply to "records and files." Only records and files have to be expunged, and only release or use of the records and files is criminally prohibited under Art. 55.04. So you would not be able to release the actual paperwork -- and in fact should have already destroyed it under the expunction order. But the order doesn't prohibit you from informing the defense attorney about what happened. Expunctions destroy files, not create amnesia.

And when I said "someone who knows a lot more about expunction law," what I specifically meant was "You need to ask Andrea." But I figured she'd be along shortly.

Thanks for the vote of confidence! It's like a summoning circle. Just whisper the word "expunction" and I'll pop up before long.

And when Andrea pops up, she always has the correct answer!

So, if our office's designated "keeper of expunctions" has knowledge that a police-officer witness had a prior arrest for which records were expunged, is that knowledge imputed to all of our prosecutors, such that it must be disclosed to defense counsel pursuant to Morton?

I'd say yes. Why mess around with a Brady violation? Clay Abbott used to say a version of this: If it makes you think, Oh, Darn, disclose it.

The problem being that it's a separate criminal offense to violate an expunction order. That's more than an "oh darn." I'm torn on this, because if you start to create new documentation based on expunged case information, is that violating the expunction order? The caselaw only talks about a person testifying from their personal recollection of a case without referring to any of their notes, etc. That's unquestionably fine. Using that knowledge to create entirely new documentation of an expunged arrest so that you can cross-reference it to later cases filed is a murkier question.

One of many reasons expunctions annoy me! They sound very nice in theory, but in practice you have a lot of strange questions and difficulty trying to balance different sets of rights.