INTRODUCTION. Russell Shapiro

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1 Introduction.docx (Do Not Delete) 8/11/2016 5:39 PM de novo C ARDOZO L AW R EVIEW INTRODUCTION NEW MODELS FOR PROSECUTORIAL ACCOUNTABILITY Russell Shapiro The criminal justice system in the United States was established on a simple notion: that it is better that ten guilty persons escape, than that one innocent suffer. 1 It is for this reason that a prosecutor s burden at trial is so demanding, requiring proof beyond a reasonable doubt. Yet, while a vast majority of prosecutors are committed to the highest ethical standards, with troubling frequency, 2 some high profile exonerations shed light on systemic problems, most often involving failures by prosecutors and other law enforcement officials to disclose exculpatory and impeachment evidence 3 as required by Brady v. Maryland. 4 To address this serious challenge, we held a symposium at Cardozo Law School entitled New Models for Prosecutorial Accountability, 5 Head de novo Editor, Cardozo Law Review, Volume 37. J.D., Benjamin N. Cardozo School of Law, 2016; B.A., Binghamton University, I would like to thank Professors Jessica Roth and Ellen Yaroshefsky for their help in organizing the symposium, as well as the authors for their insightful work. I would also like thank our de novo editor, John Brill, for his hard work and enthusiasm throughout the year. 1 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 358 (11th ed. 1791). 2 For a recent example of an exoneration stemming from prosecutorial misconduct, see Les Burns, NAT L REGISTRY OF EXONERATIONS (Aug. 1, 2016), exoneration/pages/casedetail.aspx?caseid=4955 (Les Burns, exonerated on July 21, 2016, based on a failure by the prosecutor to turn over impeachment evidence). 3 Opinion, John Hollway, Reining in Prosecutorial Misconduct, WALL STREET J. (July 4, :00 PM), 4 Brady v. Maryland, 373 U.S. 83 (1963). 5 The Innocence Project, the Jacob Burns Center for Ethics in the Practice of Law, the Center 129

2 Introduction.docx (Do Not Delete) 8/11/2016 5:39 PM 130 CARDOZO LAW REVIEW DE NOVO [2016 with each panel representing a unique perspective within our criminal justice system: bar counsel; state and federal judges; academics; and prosecutors. The following essays stem from these discussions. Professor Ellen Yaroshefsky lays the groundwork for our discussion of prosecutorial accountability by defining misconduct as a term that captures the acts of various law enforcement agencies, not merely the prosecutor, while also covering both intentional and unintentional actions. Next, Professor Yaroshefsky compares the legal obligation with the ethical obligation of prosecutors to disclose exculpatory and impeaching evidence. Finally, Professor Yaroshefsky addresses the magnitude of the problem, paving the way for solutions offered in the subsequent essays. Judge Emmet Sullivan of the U.S. District Court for the District of Columbia details the eight-year effort to amend Rule 16 of the Federal Rules of Criminal Procedure: to exceed the government disclosure requirements set out in Brady and Giglio 6 regarding exculpatory and impeachment evidence. While the amendment did not pass, Judge Sullivan shares his own attempts at providing defendants with the protection of a federal disclosure rule. In addition to issuing a standing Brady Order for each criminal case on his docket, Judge Sullivan also urged the formation of an ad hoc committee in the District Court for the District of Columbia, which drafted a proposed disclosure rule. Finally, Dallas County District Attorney Susan Hawk and Special Fields Bureau Chief of the Conviction Integrity Unit in the Dallas DA s Office, Patricia Cummings, discuss the unique approach taken in their office. The impetus for change involved Michael Morton a man incarcerated for twenty-five years for his wife s murder 7 only to be cleared by DNA evidence 8 and recently released offense reports that had been withheld egregious Brady violations. As a result of lobbying by Morton and others that were wrongfully convicted, the authors detail the legislative changes in Texas regarding criminal discovery. In addition, the Dallas DA s Office has taken a unique approach in resolving both intentional and unintentional violations, changing the focus from assigning blame to taking prophylactic measures. Along with its Conviction Integrity Unit (CIU), the Dallas DA s Office has also incorporated training, performance evaluations, and hiring practices focused on ethics. It is our hope that the conference and these short essays increase for Rights and Justice at Cardozo School of Law, and the Cardozo Law Review, Symposium: New Models for Prosecutorial Accountability (Apr. 21, 2016). 6 Giglio v. United States, 405 U.S. 150 (1972). 7 Morton v. State, 761 S.W.2d 876 (Tex. Ct. App. 1988). 8 Ex parte Morton, No. AP-76663, 2011 WL (Tex. Crim. App. Oct. 12, 2011) (per curiam).

3 Introduction.docx (Do Not Delete) 8/11/2016 5:39 PM 2016] INTRODUCTION 131 the public discussion of prosecutorial accountability. A larger dialogue that engages all stakeholders of the criminal justice system prosecutors and defense attorneys, the judiciary, bar associations, and academia will help to address the systemic problem of failures to disclose evidence. Through the interchange of ideas and practices, both prospective and unsuccessful, we can limit the number of wrongful convictions at the earliest juncture possible.

4 Yaroshefsky.2016 (final).docx (Do Not Delete) 8/11/2016 5:40 PM de novo C ARDOZO L AW R EVIEW NEW MODELS FOR PROSECUTORIAL ACCOUNTABILITY Ellen Yaroshefsky There has been significant and increasing attention to prosecutorial accountability for misconduct in recent years by courts and disciplinary authorities, in some prosecutors offices and by defense organizations, in academia, and of course, in popular media. 1 In great measure, this attention is the result of the remarkable work of the Innocence Project and Innocence networks around the country. 2 It is also the result of awakening to the fault lines in the criminal justice system such as mass incarceration and to the disproportionate targeting of black and brown people for arrest and prosecution. 3 Of course, this attention is all exacerbated by the Internet, which makes stories available nearly instantaneously in various social platforms. 4 The attention has sparked a call to examine the conduct of prosecutors, notably in cases of exonerations. 5 Ellen Yaroshefsky is a Clinical Professor of Law and the Director of the Jacob Burns Center for Ethics in the Practice of Law at the Benjamin N. Cardozo School of Law. 1 Bruce A. Green and Ellen Yaroshefsky, Prosecutorial Accountability 2.0, 94 NOTRE DAME L. REV. (forthcoming 2016) (manuscript at 1 3) ( papers.cfm?abstract_id= ). 2 Id. at Id. at Id. 5 Radley Balko, Another Orleans Parish Man Freed Due to Prosecutor Misconduct, WASH. POST (May 12, 2014), (describing the release of Reginald Adams, convicted because of the Orleans Parish prosecution s intentional prosecutorial misconduct, which was a recurring problem under the former District Attorney s leadership); Radley Balko, The Untouchables: America s Misbehaving Prosecutors, and the System that Protects Them, HUFFINGTON POST (August 5, 2013), 132

5 Yaroshefsky.2016 (final).docx (Do Not Delete) 8/11/2016 5:40 PM 2016] PROSECUTORIAL ACCOUNTABILITY 133 Many of the exoneration cases were the results of prosecutors or their agents hiding evidence of innocence perhaps the most egregious form of prosecutorial misconduct. John Thompson, the Louisiana man nearly put to death for a homicide and robbery that he did not commit and the man who had his $14 million dollar civil rights verdict overturned by the Supreme Court in Connick v. Thompson visited Cardozo Law School some years ago to talk about the egregious prosecutorial misconduct in his case; the prosecutor, among other acts, hid blood evidence by taking the blood swab home with him. 6 John repeatedly asked, what should happen to prosecutors who do this to people s lives and significantly, what can change systems to avoid this in the future? We explored these questions at our symposium, 7 and the following pieces will do so too. Of course one must always start by asking the question, what do we mean by misconduct? It would seem that it would be a simple term to define, but as we all know it is not. Prosecutors offices, courts, and disciplinary authorities are charged with and want to hold prosecutors accountable when their conduct strays from the proverbial mission to do justice, or as the Supreme Court famously said in Berger v. United States, they strike foul blows instead of fair ones, but that is much too vague a concept. 8 The term misconduct has been used to refer to a wide range of conduct and its definition depends upon the context. 9 For appellate purposes, prosecutorial misconduct encapsulates not only the actions of the individual prosecutors, but also the failure of various law enforcement agencies to disclose information to the prosecutor. The prosecutor herself may have been diligent, but the agency s failure to comply with the law is termed prosecutorial misconduct /01/prosecutorial-misconduct-new-orleans-louisiana_n_ html (examining the Orleans Parish prosecution s suppression of evidence leading to the wrongful conviction of John Thompson, describing other misconduct in the same office, and referring to similar misconduct by other prosecutors offices); Michael Powell, Misconduct by Prosecutors, Once Again, N.Y. TIMES (Aug. 13, 2012), John Terzano, The Devastating Consequences of Prosecutorial Misconduct, HUFFINGTON POST (May 25, 2011), john-terzano/the-devastating-consequen_b_ html (discussing the Justice Project s Prosecutorial Accountability: A Policy Review, which recommends comprehensive reform, and urging harsher punishment for prosecutorial misconduct). 6 Connick v. Thompson, 563 U.S. 51 (2011). 7 The Innocence Project, the Jacob Burns Center for Ethics in the Practice of Law, the Center for Rights and Justice at Cardozo School of Law, and the Cardozo Law Review, Symposium: New Models for Prosecutorial Accountability (Apr. 21, 2016). 8 Berger v. United States, 295 U.S. 78, 88 (1935) ( [The prosecutor] may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ). 9 Green & Yaroshefsky, supra note 1, at See, e.g., State v. Maluia, 108 P.3d 974, 979 (Haw. 2005) (observing that prosecutorial

6 Yaroshefsky.2016 (final).docx (Do Not Delete) 8/11/2016 5:40 PM 134 CARDOZO LAW REVIEW DE NOVO [2016 Prosecutors often bristle at the use of the term misconduct in the context of a law enforcement agency failure because, in popular parlance, misconduct carries with it a notion of that lawyer s intentional wrongdoing. A better term might be government misconduct. 11 As an ethical obligation enforced by disciplinary rules, the term misconduct refers generally to a violation of any ethics rule. In particular at the symposium, we discussed violations of Model Rule 3.8(d), regarding the prosecutorial obligation to disclose favorable information. 12 And of course there is the question of whether the misconduct rises to a certain level of mens rea: is it intentional, gross negligence, recklessness, or negligent conduct that we refer to? Is conscious avoidance of information a reason to hold prosecutors accountable? Journalists, and the media more generally, rarely define the term misconduct and may use it to refer to a host of issues. We did not address these varying definitions, nor did we approach a definition of misconduct at the symposium, although we referenced these issues throughout our discussion. Instead, this conference focused primarily on the most egregious conduct in the truth seeking process. Various courts misconduct is a legal term of art that refers to any improper action committed by a prosecutor, however harmless or unintentional (emphasis in original)). 11 Prosecutors have urged a distinction between misconduct and error. See, e.g., Memorandum from John Kingrey, Exec. Dir., Minn. Cty. Att ys Ass n., to Minn. Cty. Att ys (Apr. 25, 2007), Memo Without necessarily agreeing that intentional misconduct is aberrational, the American Bar Association has supported prosecutors efforts to persuade judges to use the term error rather than misconduct in reference to prosecutors unintentional violations of law. Charles Joseph Hynes, Recommendation 100B, 2010 A.B.A. SEC. CRIM. JUST., Model Rule 3.8(d) requires the prosecutor to: [M]ake timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. MODEL RULES OF PROF L CONDUCT r. 3.8(d) (AM. BAR ASS N 2013). The critique of lack of discipline for prosecutorial ethical violations is robust despite the language in Connick v. Thompson, 563 U.S. 51, 66 (2011) ( An attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment. ). See also Imbler v. Pachtman, 424 U.S. 409, 429 (1976) ( [A] prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. ); State ex rel. Okla. Bar v. Miller, 309 P.3d 108, 120 (Okla. 2013) (noting that [i]nstances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension. Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. (footnote omitted)); Neil Gordon, Misconduct and Punishment: State Disciplinary Authorities Investigate Prosecutors Accused of Misconduct, CTR. FOR PUB. INTEGRITY (May 19, 2014, 12:19 PM), See generally CTR. FOR PUB. INTEGRITY, HARMFUL ERROR: INVESTIGATING AMERICA S LOCAL PROSECUTORS (2003).

7 Yaroshefsky.2016 (final).docx (Do Not Delete) 8/11/2016 5:40 PM 2016] PROSECUTORIAL ACCOUNTABILITY 135 and disciplinary authorities have referred to this as significant misconduct, egregious misconduct, or substantial violations. In most instances, what we discussed was the intentional or grossly negligent failure to disclose information that negates guilt or mitigates punishment. The symposium focused upon both the legal obligation and the ethical obligation to disclose. For shorthand, in state and federal courts we often call these Brady violations, although the contours of the legal obligation pursuant to Brady v. Maryland and subsequent cases are often subject to dispute. Beyond the legal obligation, we also discussed the ethical obligation to disclose information that is broader than the legal obligation in most state and federal courts. 13 Many of our panelists, notably on the first panel, focused on cases involving such ethical violations. 14 We also acknowledged that there is a difference in perception of the extent of misconduct between prosecutors and defense lawyers and, perhaps, by judges and the public. 15 Most prosecutors, notably those who were in attendance at the symposium, work hard to develop systems and practices for the lawyers in their offices to insure best procedures for doing justice and appearing to do justice. They believe the misconduct problem is overblown and the result of rogue individuals, and in some instances, inadequate training and supervision, and unhelpful office culture. Others, however, believe the issue to be of greater magnitude for which evidence cannot be readily uncovered. Many point out that Brady issues are a hidden problem because about 95% of cases result in guilty pleas, thus leaving us with few accountability mechanisms to determine whether evidence was disclosed. 16 Recent exonerations of persons who plead guilty demonstrate the problem all too clearly. 17 Recently Judge Kozinski in the Ninth Circuit famously called this problem an epidemic. 18 But the term does not capture its unknowable 13 See generally Report of the Working Groups on Best Practices, New Perspectives on Brady and Other Disclosure Obligations, 31 CARDOZO L. REV (2010) [hereinafter Cardozo Symposium]. 14 The first panel, The Role of Bar Discipline, included Laura Popps from the State Bar of Texas, Elizabeth Herman from the Bar of the District of Columbia, and Tracy Kepler, immediate past president of the National Organization of Bar Counsel. 15 Ellen Yaroshefsky, Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31 CARDOZO L. REV (2010). 16 Id. 17 Daniel Beekman, Judge Jed Rakoff Says Plea-Deal Process is Broken, Offers Solution, N.Y. DAILY NEWS (May 27, :30 AM), Rob Warden, Christopher Ochoa: DNA Exonerated Christopher Ochoa of a Crime to which he had Confessed, CTR. ON WRONGFUL CONVICTIONS, tx/christopher-ochoa.html. 18 United States v. Olsen, 737 F.3d 625, 626, (9th Cir. 2013) (Kozinski, C.J.,

8 Yaroshefsky.2016 (final).docx (Do Not Delete) 8/11/2016 5:40 PM 136 CARDOZO LAW REVIEW DE NOVO [2016 scope. Brady errors are not an epidemic in the sense of tuberculosis or any kind of virus. They may however exist in significant numbers as a result of systems and practices, as well as office culture. Prosecutors bristle at the notion of an epidemic or a systemic problem and instead believe that the problem is episodic. This contention is the subject of ongoing discussion and debate. These discussions are interesting, but our view is that we will not reach resolution in the criminal justice system about the extent of the problem. 19 Primarily, it is a hidden problem because we do not know in the guilty pleas that are fundamental to our criminal justice system whether there is evidence or information that should have been disclosed but was not. Nor do our systems provide effective mechanisms to insure disclosure for cases that go to trial except in rare instances. Instead we think we are finally at a point where, hopefully, we no longer need to reach resolution about the extent of the problem because we acknowledge that no matter how extensive, it is a problem, it needs to be fixed, and it can be fixed. Many jurisdictions, or at least some jurisdictions, are working towards solutions. 20 This is why this conference is styled New Models of Prosecutorial Accountability. We set out to explore these solutions throughout the conference. We looked at disciplinary systems, judicial control over prosecutorial conduct, and internal systems within the prosecutors offices. We asked questions such as the extent to which we could avoid such problems through open file discovery, 21 and by establishing computer-based systems with information flowing directly from the police to the prosecutor, so that it is not a guessing-system of what needs to be disclosed. 22 Some jurisdictions lead the way like certain Texas counties through legislation, within certain prosecutors offices, and within its disciplinary systems. 23 However, the progress is spotty across the dissenting). 19 Yaroshefsky, supra note 15 at Green & Yaroshefsky, supra note 1, at 24 27, nn (discussion of Conviction Integrity Units). 21 North Carolina adopted an open file discovery system. A study of the statute s implementation found that open file discovery increases the fairness, finality, and efficiency of criminal adjudications. Janet Moore, Democracy and Criminal Discovery Reform After Connick and Garcetti, 77 BROOK. L. REV. 1329, 1332 (2012). 22 Yaroshefsky, supra note 15 at See, e.g., Michael Morton Act, S.B. 1611, 83rd Leg., Reg. Sess. (Tex. 2013); Randall Sims, The Dawn of New Discovery Rules, 43 THE PROSECUTOR No. 4 (July-August 2013), Jeremy Rosenthal, How the Michael Morton Act Overhauls the Texas Criminal Discovery Process, 17/how-the-michael-morton-act-overhauls-the-texas-criminal-discovery-process (last visited Aug. 1, 2016). Some individual prosecutors did grouse both before and after the law was enacted. See, e.g., Terry Breen, New Discovery Statute SB 1611, TDCAA (May 23, :32 PM),

9 Yaroshefsky.2016 (final).docx (Do Not Delete) 8/11/2016 5:40 PM 2016] PROSECUTORIAL ACCOUNTABILITY 137 country and entrenched cultures in other systems make progress or accountability difficult. In some jurisdictions, there are conviction integrity units that actually function to explore the root causes of convictions. 24 The Quattrone Center for the Fair Administration of Justice recently produced a report about effective conviction integrity units. 25 Finally, there are two caveats. At the symposium, we focused only on prosecutors, although we know that defense lawyers actions and inactions contribute to and cause wrongful convictions. When defense lawyers engage in misconduct because they lack fundamental competency and diligence that is required by the ethics rules, it is called ineffective assistance of counsel. Prosecutors balk at the notion that the defense s conduct is not termed misconduct, while the prosecution is charged with misconduct even in circumstances where the individual lawyer is not blameworthy. The terminology is a function of the Constitution and the law. It is obvious, but it bears repeating, that the respective roles of the prosecution and defense are different and we only focused upon the prosecutor s role the party with the responsibility of the minister of justice. Second, we acknowledged at the outset that there is a distinction between misconduct and prosecutorial error. Our last panel discussed systems and practices to reduce both error and misconduct. The goal of the conference is to promote development of systems and practices to reduce both error and misconduct. We hope that throughout the day, interesting exchanges among panelists and attendees sparked ideas and promoted action to improve our practices. tdcaa.infopop.net/eve/forums/a/tpc/f/ /m/ ?r= # See, e.g., Barry Scheck, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them, 31 CARDOZO L. REV (2010). 25 John Hollway, Conviction Review Units: A National Perspective, QUATTRONE CTR. FOR THE FAIR ADMIN. OF JUSTICE, U. PENN. L. SCH. (2016), cru-final.

10 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM de novo C ARDOZO L AW R EVIEW ENFORCING COMPLIANCE WITH CONSTITUTIONALLY-REQUIRED DISCLOSURES: A PROPOSED RULE Hon. Emmet G. Sullivan TABLE OF CONTENTS INTRODUCTION I. DISCLOSURE ABUSES IN UNITED STATES V. STEVENS II. EFFORTS TO AMEND FEDERAL RULE OF CRIMINAL PROCEDURE 16 TO INCORPORATE THE REQUIREMENTS OF BRADY AND ITS PROGENY III. EFFORTS TO INCORPORATE THE REQUIREMENTS OF BRADY AND ITS PROGENY/REQUIRE DISCLOSURE OF EXCULPATORY EVIDENCE AT THE FEDERAL DISTRICT COURT LEVEL CONCLUSION INTRODUCTION I am of the opinion that the rules of federal criminal procedure should be amended to explicitly incorporate constitutionally-required disclosures. Specifically, Federal Rule of Criminal Procedure 16 governs discovery and inspection, but it does not incorporate the The Honorable Emmet G. Sullivan is a U.S. District Judge in the District Court for the District of Columbia. 138

11 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 2016] DISCLOSURES: A PROPOSED RULE 139 requirements of Brady v. Maryland 1 and its progeny to require the government to provide exculpatory and impeachment evidence to the defendant. Although there have been efforts over the years to amend the federal rules to affirmatively codify these constitutional disclosure requirements, they have not been successful, in part due to resistance from the U.S. Department of Justice (DOJ). 2 Some of the ninety-four district courts nationwide have taken action on their own and have adopted local rules and/or standing orders setting forth the disclosure requirements for prosecutors practicing before those courts. Further, some judges issue standing Brady Orders for each criminal case on their respective dockets. There are many reasons to support this rule change. First and foremost, greater compliance with the disclosure requirements would result in fewer unlawful convictions and unlawful sentencings, important aspects of overall reform in the criminal justice system. 3 Second, a single federal rule that affirmatively codifies the disclosure requirements would be enforceable against non-compliant prosecutors. Third, given that the overwhelming majority of criminal cases are resolved by plea agreements, it is imperative that the government interprets its constitutional obligation broadly and discloses exculpatory evidence to defendants during plea negotiations. An explicit disclosure requirement would ensure that the defendant s waiver of the right to trial is both knowing and voluntary. Fourth, although local disclosure rules and standing orders are laudable, they create the opportunity for inconsistency in federal prosecutions across the ninety-four districts nationwide. To provide a striking example of the need for a federal disclosure rule, in Part I, I briefly summarize a report on the discovery abuses that occurred in the case of United States v. Theodore F. Stevens. 4 In Part II, I describe efforts beginning in 2003 to amend Rule 16. In Part III, I provide an overview of the local district court disclosure rules and standing orders nationwide. Part III also provides the proposed rule now being considered for adoption by the United States District Court for the District of Columbia U.S. 83 (1963). 2 See infra Part II. 3 Readers interested in criminal justice reform may wish to read an opinion I recently issued in two cases where I was confronted with a request to approve deferred prosecution agreements for corporate defendants. See United States v. Saena Tech Corp., No (EGS), 2015 WL (D.D.C. Oct. 21, 2015); United States v. Intelligent Decisions, Inc., No (EGS), 2015 WL (D.D.C. Oct. 21, 2015). 4 United States v. Stevens, No. 1:08-cr (EGS) (D.D.C. Mar. 15, 2012).

12 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 140 CARDOZO LAW REVIEW DE NOVO [2016 I. DISCLOSURE ABUSES IN UNITED STATES V. STEVENS In 2008, Senator Theodore Ted Stevens (R-AK) was running for re-election for his seventh term. 5 He was also a criminal defendant in a case over which I was presiding. 6 After a four week trial, and about one week prior to election day, a jury found Senator Stevens guilty of lying on Senate disclosure forms. 7 He lost the election, a Democrat replaced him, and the balance of power shifted in the Senate. 8 This consequential chain of events may well have turned out differently had the government followed the law because during the course of post-trial proceedings, it became clear that the Stevens prosecution was permeated by systematic concealment of evidence favorable to the Senator in violation of the law, the Constitution, and the prosecutors ethical duties. About six months after the verdict was returned, then-attorney General Eric H. Holder, Jr. moved to dismiss the indictment against Senator Stevens with prejudice. 9 As it appeared to me that prosecutorial misconduct had tainted the proceedings in my courtroom, where I have sworn, for over thirty years on the bench, that every defendant will receive a fair trial, I appointed a highly regarded lawyer and former Assistant United States Attorney, Henry F. Schuelke, III, to investigate what went wrong in the investigation and prosecution of the Stevens case, and to recommend whether there was a basis to prosecute the prosecutors for criminal contempt of court. 10 After an investigation of nearly three years, during which both Senator Stevens and one of the attorneys who prosecuted him died, and following extensive collateral proceedings, Mr. Schuelke s report was made public. Based on his exhaustive investigation, Mr. Schuelke and his colleague William Shields concluded that [t]he investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government s key witness. 11 Mr. Schuelke further found that at least 5 See, e.g., Adam Clymer, Ted Stevens, Longtime Alaska Senator, Dies at 86, N.Y. TIMES (Aug. 10, 2010), At the time of his death in 2010, Senator Stevens (R-AK) had been the longest-serving Republican senator in history. Id. 6 See Stevens, No. 1:08-cr (EGS) (D.D.C. Mar. 15, 2012). 7 Clymer, supra note 5. 8 Id. 9 I granted that motion. Order, Stevens, No. 1:08-cr (EGS), 2009 WL (D.D.C. Apr. 7, 2009). 10 Order, Stevens, No. 1:08-cr (EGS) (D.D.C. Apr. 8, 2009). 11 Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court s

13 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 2016] DISCLOSURES: A PROPOSED RULE 141 some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial. 12 Despite his findings of significant, widespread, and, at times, intentional misconduct, Mr. Schuelke did not, however, recommend prosecution for criminal contempt. This was because he found that the court had not issued an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence. Noting that, [i]t should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation, Mr. Schuelke nevertheless recommended that, without disobedience of a clear and unequivocal order, the prosecutors not be charged with criminal contempt. 13 As a result of the Stevens trial and its aftermath, I suggested that an amendment to Rule 16 be revisited to require the government to disclose exculpatory evidence to the defense, as set forth in Brady and its progeny. I have also suggested that certain changes to the local rules of the District Court for the District of Columbia would ensure that the government is fully aware of its disclosure obligations. Finally, I now issue a standing Brady Order in each criminal case on my docket, which I update as the law in the area progresses. I discuss each of these efforts below. II. EFFORTS TO AMEND FEDERAL RULE OF CRIMINAL PROCEDURE 16 TO INCORPORATE THE REQUIREMENTS OF BRADY AND ITS PROGENY There have been concerted efforts to amend the federal rules to incorporate Brady s disclosure requirements, but to date they have not resulted in an amendment to Rule The Judicial Conference of the United States Advisory Committee on the Rules of Criminal Procedure (Advisory Committee or Committee) first began considering an amendment to Rule 16 that would require the government to disclose exculpatory and impeaching evidence 14 days before trial based on a Order, dated April 7, 2009, In re Special Proceedings, Misc. No (1:08-cr (EGS)), ECF No. 435 at 1 (D.D.C. Mar. 15, 2012). 12 See generally id. 13 Id. at The federal judiciary is authorized to set forth the rules of practice, procedure, and evidence for the federal courts, subject to Congressional rejection, modification, or deferral of those rules. Rules Enabling Act, 28 U.S.C A detailed description of this rulemaking process is available at

14 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 142 CARDOZO LAW REVIEW DE NOVO [2016 proposal submitted to the Committee by the American College of Trial Lawyers in Although DOJ opposed the amendment, the Advisory Committee voted at its April 2005 meeting in favor of amending the rule. 16 The Committee and its Rule 16 Subcommittee worked on the language of the amendment to address concerns expressed by DOJ, with the intention of taking final action on the proposal in April At the April 2006 meeting, DOJ presented to the Committee proposed revisions to the United States Attorneys Manual (USAM), which it offered as an alternative to amending Rule DOJ stated that the revision of the Manual would promote prosecutorial uniformity and regularity nationwide, would allow for early disclosure of exculpatory and impeaching evidence, and would encourage prosecutors in most cases to exceed the disclosure requirements mandated by Brady and Giglio. 19 One Committee member expressed concern about whether the proposed revisions would require disclosures regardless of materiality and DOJ responded that prosecutors... would be encouraged to construe materiality broadly. 20 Another member expressed concern that without the rule amendment, conflicting local rules would emerge. 21 As the revisions to the manual were presented as an alternative to the rule change, DOJ informed the Committee that it would vigorously oppose the proposed Rule 16 amendment at the Standing Committee and beyond, if necessary. 22 Committee members who were proponents of a rules change noted that the provisions of the USAM are not judicially enforceable, and they also stressed the importance of having a judge, rather than a prosecutor, determine whether disclosure of exculpatory or impeaching material is warranted in a given case. 23 In the end, the Committee, by a vote of seven to six, voted to table, until September 2006, consideration of the proposed amendment in light of DOJ s 15 HON. SUSAN C. BUCKLEW, ADVISORY COMM. ON FED. RULES OF CRIMINAL PROCEDURE, REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES 7 (Dec. 8, 2005), Id. 17 Id. 18 ADVISORY COMM. ON CRIMINAL RULES, MINUTES 9 11 (Apr. 3 4, 2006), Id. at Id. at Id. at Id. 23 HON. SUSAN C. BUCKLEW, ADVISORY COMM. ON FED. RULES OF CRIMINAL PROCEDURE, REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES 14 (May 20, 2006),

15 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 2016] DISCLOSURES: A PROPOSED RULE 143 proposed revisions to the USAM. 24 In September 2006, the Advisory Committee met in a special session to discuss DOJ s proposed revisions to the USAM and to determine whether, in light of those revisions, it should nonetheless forward the draft Rule 16 amendment to the Standing Committee. 25 At that meeting, DOJ reported that it had made improvements to the USAM provisions since the April 2006 Committee meeting. 26 DOJ explained that the policy, which was at that point fully approved, exceeded the disclosure requirements of Brady and Giglio, required supervisory approval to delay disclosure of impeachment or exculpatory information, and clarified that the policy applied to sentencing and the guilt-innocence phases of a case. 27 In contrast to its position at the April 2006 meeting, DOJ stated that the USAM revisions would go into effect even if the Committee voted to forward the draft Rule 16 amendment to the Standing Committee. 28 Although the Committee was appreciative of the improvements that DOJ made to the USAM provisions, it was concerned about: (1) the discretion given to the prosecutor to determine whether impeachment material is significant or substantial ; (2) the fact that the policy only applied to prosecutors; and (3) the lack of judicial enforceability of the policy. 29 In the end, the Committee voted eight to four to approve the Rule 16 amendment and forward it to the Standing Committee. 30 The proposed amendment created a new subsection requiring the government to provide exculpatory or impeaching information, without imposing the requirement under Brady that the information be material to the defendant s guilt or punishment. 31 The Standing Committee considered the proposed rule amendment at its June 2007 meeting. 32 Members the Advisory Committee presented 24 Id. 25 ADVISORY COMM. ON CRIMINAL RULES, MINUTES 1 (Sept. 5, 2006), Id. at Id. 28 Id. See also U.S. DEP T OF JUSTICE, U.S. ATTORNEY S MANUAL , (2016) (noting the policy regarding disclosure of exculpatory and impeachment information, and disclosure to prosecutors of potential impeachment information concerning law enforcement agency witnesses, respectively). 29 HON. SUSAN C. BUCKLEW, ADVISORY COMM. ON FED. RULES OF CRIMINAL PROCEDURE, REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES 5 (Dec. 18, 2006), Id. 31 The proposed amendment and commentary are provided at Appendix See generally COMM. ON RULES OF PRACTICE AND PROCEDURE, MINUTES (June 11 12, 2007), At this juncture, the role of the Standing Committee is to determine whether the proposed rule should be published for comment.

16 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 144 CARDOZO LAW REVIEW DE NOVO [2016 the proposed amendment as the culmination of four years of intensive study by the Committee, including a survey of all relevant local rules and standing orders in the district courts nationwide. 33 Advisory Committee members had also reviewed case law addressing Brady issues, relevant articles, the American Bar Association s model rules, and correspondence from federal defenders. 34 With regard to the changes made to the USAM elaborating on the government s disclosure obligations, the Advisory Committee determined that changes to the manual could not take the place of a rule change because: (1) as a practical matter, the committee would have no way to monitor the practical operation of the changes or even to know about problems that might arise in individual cases[;] and (2) the manual would not be judicially enforceable. 35 DOJ expressed its opposition to the proposed amendment to the Standing Committee. It argued that the proposal: (1) goes well beyond what is required by the Constitution and federal statutes ; (2) conflicts with the rights of victims and would cause insecurity among witnesses; (3) was inconsistent with current federal discovery procedures; and (4) would inevitably generate a substantial amount of litigation on such matters as whether exculpatory or impeachment information is material. 36 DOJ suggested that the Standing Committee wait to see how the revisions to the USAM worked, or in the alternative the rule should be referred back to the Advisory Committee to address the issues outlined by DOJ. 37 The Standing Committee declined to approve the publication of the proposed amendment with the understanding that the advisory committee will be free to study the topic matter further and take such further action as it deems appropriate at some future date. 38 The Standing Committee was concerned that the proposed amendment was too broad and believed it best to wait to see how the revisions to the USAM addressed the issues. 39 I thought the appropriate time for further action was in April 2009 after the Stevens case had been dismissed, and after the USAM revisions had been in place for a period of time and I urged the Advisory Committee to again consider proposing the 2007 amendment to Rule 16. In my letter to Judge Richard C. Tallman, then-chair of the 33 Id. at Id. 35 Id. at Id. at Id. at Id. at COMM. ON RULES OF PRACTICE AND PROCEDURE, REPORT OF THE JUDICIAL CONFERENCE 29 (September 2007),

17 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 2016] DISCLOSURES: A PROPOSED RULE 145 Advisory Committee, I argued that the compelling reasons for eight of the twelve members of the Rules Committee to support the proposed rule amendment in 2006 were no less compelling in 2009 after the Stevens trial and I walked him through the litany of problems in that trial that we were aware of at that time. 40 It was fortuitous that the Supreme Court issued its decision in Cone v. Bell, 41 on the day I sent my letter to Judge Tallman, giving me the opportunity to rely on that decision in which the Supreme Court reiterated the principles articulated in Brady and the Strickler v. Greene, 42 Kyles v. Whitley, 43 and United States v. Bagley 44 decisions. Although the Cone Court observed that the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure, 45 I suggested to Judge Tallman that a federal rule of criminal procedure requiring all exculpatory evidence to be produced to the defense in a timely manner and in a useable format would eliminate the need to rely on a prudent prosecutor deciding to err of the side of transparency, and would go a long way towards furthering the search for the truth in criminal trials and ensuring that justice is done. 46 In response, Judge Tallman appointed a subcommittee to reconsider the amendment to Rule At the same time that the subcommittee was reconsidering the amendments, and in the aftermath of the Stevens trial, DOJ launched a number of initiatives aimed at improving the compliance of federal prosecutors with their discovery obligations. These initiatives included: (1) appointing a working group on discovery issues; (2) conducting annual mandatory prosecutor training on discovery; (3) requiring each district to designate a discovery expert to advise prosecutors; and (4) creating a new position in Washington, DC to oversee these efforts. 48 DOJ told the Committee that it would not oppose amending Rule 16 to codify the disclosure requirements of Brady, but that it would object to any proposed amendment that went beyond Brady. 49 My response to DOJ s efforts was two-fold. First, while the steps it was 40 See Appendix U.S. 449, (2009) U.S. 263 (1999) U.S. 419 (1995) U.S. 667 (1985). 45 Cone, 556 U.S. at 470 n Appendix 2 at ADVISORY COMM. ON CRIMINAL RULES, MINUTES 5 (Oct. 13, 2009), HON. RICHARD C. TALLMAN, ADVISORY COMM. ON FED. RULES OF CRIMINAL PROCEDURE, REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES 2 (Dec. 11, 2009), 49 Id.

18 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 146 CARDOZO LAW REVIEW DE NOVO [2016 taking were laudable, efforts it took such as revising the USAM are not enforceable and could be weakened or discarded when an Attorney General with a different agenda is appointed by a successive President. Second, the government should not be able to unilaterally make the decision of what constitutes material information to be turned over to the defendant, and a Rule 16 amendment would change that. Over a period of two years, the subcommittee held consultative sessions with judges, prosecutors, defense counsel, academics, agency counsel, and crime victims representatives. 50 It also worked with the Federal Judicial Center to prepare a nationwide survey of judges, prosecutors, and the defense bar, which collected views on issues, problems, or concerns surrounding pretrial discovery and disclosure. 51 Fifty-one percent of the judges responding to the survey favored amending Rule Despite these efforts, in April 2011, the Advisory Committee voted six to five not to move forward with an amendment. 53 The Committee cited the following reasons for its decision. First, the results of the FJC survey reflected a lack of consensus throughout the judiciary as to whether an amendment was needed. 54 Second, while the Committee was impressed with the institutional structural changes in policies, procedures, and training implemented by DOJ since the Stevens case, it was not convinced that a rule change was needed to ensure that those changes would continue in subsequent administrations. 55 Finally, the Committee stated that it was not convinced that the problem is so severe as to warrant a rule change when existing Supreme Court authority on a prosecutor s disclosure obligations is clear and for which substantial sanctions are available for non-compliance. 56 While the Advisory Committee s consideration of amendments to Rule 16 did not result in a proposed amendment at that time, it did influence a new section in the 2013 edition of the FJC s Bench Book covering Brady 50 See, e.g., HON. RICHARD C. TALLMAN, ADVISORY COMM. ON FED. RULES OF CRIMINAL PROCEDURE, REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES 34 (May 19, 2010), 51 Id. at ADVISORY COMM. ON CRIMINAL RULES, MINUTES 12 (Apr , 2011), [hereinafter April 2011 MINUTES]. 53 HON. RICHARD C. TALLMAN, ADVISORY COMM. ON FED. RULES OF CRIMINAL PROCEDURE, REPORT OF THE CRIMINAL ADVISORY COMMITTEE 10 (May 12, 2011), [hereinafter May 2011 REPORT]. 54 Id. Although 51 percent of the judges responding to the survey favored amending Rule 16, 60 percent said that they were not aware of any Brady violations within the past five years. April 2011 MINUTES, supra note 52, at May 2011 REPORT, supra note 53, at Id.

19 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 2016] DISCLOSURES: A PROPOSED RULE 147 and Giglio obligations, which provides a wealth of relevant information for judges. 57 My colleague Judge Paul Friedman took the lead in drafting this section of the Benchbook. 58 Although efforts to amend Rule 16 have not been successful thus far, it is my firm belief that the Advisory Committee will revisit this issue and that a proposed amendment will at the very least be published for public comment. In recent years, public dialogue has begun to focus on ways in which the criminal justice system can be reformed to reduce over-incarceration of individuals for non-violent crimes, especially drug crimes. Codifying these constitutional disclosure requirements, particularly in view of the high percentage of criminal cases that result in guilty pleas, 59 is a critical aspect of criminal justice reform. I submit that it is difficult to see how a criminal defendant could knowingly and voluntarily waive his or her constitutional right to trial without being made aware of exculpatory evidence in the government s possession. III. EFFORTS TO INCORPORATE THE REQUIREMENTS OF BRADY AND ITS PROGENY/REQUIRE DISCLOSURE OF EXCULPATORY EVIDENCE AT THE FEDERAL DISTRICT COURT LEVEL In addition to efforts to codify the requirements of Brady and its progeny at the national level, some district courts have adopted local rules and/or standing orders that address the government s duty to disclose. Approximately twenty-eight of the ninety-four federal district courts nationwide have promulgated rules regarding the disclosure obligations of prosecutors who appear in those courts, 60 and eight more districts have issued standing orders governing those obligations See FED. JUDICIAL CTR., BENCHBOOK FOR U.S. DISTRICT COURT JUDGES 5.06 (6th ed. 2013), Public.pdf/$file/Benchbook-US-District-Judges-6TH-FJC-MAR-2013-Public.pdf. 58 Id. at iv. 59 MARK MOTIVANS, U.S. DEP T OF JUSTICE, FEDERAL JUSTICE STATISTICS, STATISTICAL TABLES 2 (2015). 60 See, e.g., SD ALA LR 16; N.D. Cal. Crim. L.R. 16-1, 17-1; N.D. Fla. Loc. R. 26.2; S.D. Fla. L.R ; LCrR 16.1, NDGa; S.D. Ga. LCrR 16.1; D. Haw. CrimLR 16.1; CDIL-LR 16.1; N.D. Ill. LCrR. 16.1; D.N. Mar. I. LCrR ; LR, D. Mass 116.1, 116.2; D. Minn. LR 12.1(a); D. Mont. L.R. CR 16.1; D.N.H. LCrR 16.1; D.N.M.LR-Cr. 16.1, 16.2; N.D.N.Y. L. R. Cr. P. 14.1; E.D.N.C. Local Criminal Rule 16.1; M.D.N.C. LCrR 16.1; E.D. Okla. LCrR 16.1; W.D. Okla. LCrR 16.1; W.D. Pa. LCrR 16; M.D. Tenn. LCrR 16.01; Western District of Texas Rule 16; D. Vt. L.Cr. R. 16; Local Rules W.D. Wash. CrR 16; N.D. W. Va. LR Cr P 16.05, 16.06; S.D. W. Va. LR CR P 16.1; E.D. Wis. Crim. R See, e.g., Standing Order on Criminal Discovery, Cr. Misc. No. 534 (M.D. Ala. Feb. 4, 1999); Standing Order on Discovery, L. Cr. R. App. 145 (D. Conn. Dec. 1, 2009); In re Revised Criminal Procedure Order, Gen. Order No. 242 (D. Idaho Mar. 1, 2010); General Order of Discovery and Scheduling (D. Kan. June 12, 2012); In re Standing Order for Discovery and Inspection and Fixing Motion Cut-Off Date in Criminal Cases, Admin. Order No. 03-AO-027 (E.D. Mich. Sept. 30, 2003); Standing Order Regarding Discovery in Criminal Cases, Admin.

20 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 148 CARDOZO LAW REVIEW DE NOVO [2016 These local rules vary in their scope and amount of detail. The U.S. District Court for the District of Massachusetts has promulgated one of the broadest rules for disclosure of exculpatory information. 62 The U.S. District Court for the District of Columbia, at the request of Judge Friedman and myself, convened an ad hoc committee of judges, prosecutors, and members of the defense bar, which spent the past year drafting a proposed disclosure rule. The proposed rule provides as follows: (a) Unless the parties otherwise agree, the government shall make available to the defense any non-trivial information known to the government that tends to negate the defendant s guilt, mitigate the charged offense(s), or reduce the potential penalty. This requirement applies regardless of whether the information would itself constitute admissible evidence. The information, furthermore, shall be produced, where not prohibited by law, in a readily usable form unless that is impracticable; in such a circumstance, it shall be made available to the defense for inspection and copying. The government shall make good-faith efforts to promptly disclose the information to the defense beginning at the defendant s initial appearance before the court, and this obligation shall remain ongoing throughout the criminal proceeding. (b) The information to be disclosed includes, but is not limited to: (1) Information that is inconsistent with or tends to negate the defendant s guilt as to any element, including identification, of the offense(s) with which the defendant is charged; (2) Information that tends to establish an articulated and legally cognizable defense theory or recognized affirmative defense to the offense(s) with which the defendant is charged; (3) Information that casts doubt on the credibility or accuracy of any evidence, including witness testimony, the government anticipates using in its case-in-chief at trial; and (4) Impeachment information, which includes: (i) information regarding whether any promise, reward, or inducement has been given by the government to any witness it anticipates calling in its case-in-chief; and (ii) information that identifies all pending criminal cases against, and all criminal convictions of, any such witness. (c) As impeachment information described in (b)(4) is dependent on which witnesses the government intends to call at trial, this rule does Order No (W.D. Mich. Aug. 28, 2006); In re Criminal Trial Scheduling and Discovery, Standing Order No (D.N.J. Sept. 22, 2015); In re Criminal Discovery, Standing Order No (D. Or. Mar. 16, 2015). 62 LR, D. Mass 116.2, 20RULES.pdf.

21 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 2016] DISCLOSURES: A PROPOSED RULE 149 not require the government to disclose such information before a trial date is set. (d) In the event the government believes that a disclosure under this rule would compromise witness safety, national security, a sensitive law-enforcement technique, or any other substantial government interest, it may apply to the Court for a modification of the requirements of this rule. (e) For purposes of this rule, the government includes federal, state, and local law-enforcement officers and other government officials participating in the investigation and prosecution of the offense(s) with which the defendant is charged. The government has an obligation to seek from these sources all information subject to disclosure under this Rule. (f) The Court may set specific timelines for disclosure of any information mentioned in this rule. Pursuant to our local rules, the court provided notice of the proposed local rule change and solicited comments, which were due no later than March 28, The ad hoc committee and the court will consider the comments received, and the court will ultimately vote on whether to adopt the rule. In addition to local court rules and standing orders, individual judges may issue standing orders in the cases before them. Following the Stevens case, I have issued a standing Brady Order for each criminal case on my docket, updating it in reaction to developments in the law. 63 For example, I recently revised my standing order to explicitly require prosecutors to disclose exculpatory evidence during plea negotiations. 64 CONCLUSION In advocating against any rule modification, the government argues that the number of cases involving discovery abuse is so small that no need exists to amend Rule 16. I acknowledge that the vast majority of prosecutors are dedicated honorable public servants. Nevertheless, the need for a rule change should not be determined by the small number of cases that demonstrate discovery abuse and after people are caught 63 My standing Brady order is provided at Appendix Federal circuits are split on whether Brady and its progeny require the government to disclose exculpatory evidence during the plea bargaining stage, and the question has not been addressed by the United States Court of Appeals for the District of Columbia Circuit. That said, one of my colleagues on the District Court here in the District of Columbia, in 2013, allowed a defendant to withdraw his guilty plea because the prosecution had suppressed exculpatory evidence before the defendant pled guilty. United States v. Nelson, 979 F. Supp. 2d 123, (D.D.C. 2013).

22 SULLIVAN.2016 (Do Not Delete) 8/11/2016 5:42 PM 150 CARDOZO LAW REVIEW DE NOVO [2016 abusing the process. Rather, a rule change would: (1) help to avoid unlawful convictions and unlawful sentencings; (2) be judicially enforceable; (3) help to ensure that a defendant s waiver of the right to trial is both knowing and voluntary; and (4) bring more consistency to compliance with disclosure obligations in federal prosecutions nationwide.

23 Appendix 1

24

25 Case 1:08-cr EGS Document 414 Filed 04/28/09 Page 1 of 4 Appendix 2

26 Case 1:08-cr EGS Document 414 Filed 04/28/09 Page 2 of 4

27 Case 1:08-cr EGS Document 414 Filed 04/28/09 Page 3 of 4

28 Case 1:08-cr EGS Document 414 Filed 04/28/09 Page 4 of 4

29 Appendix 3 ORDER Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, the government has a continuing obligation to produce all evidence required by the law and the Federal Rules of Criminal Procedure. See id. at 87 (holding that due process requires disclosure of evidence [that] is material either to guilt or to punishment upon request); Kyles v. Whitley, 514 U.S. 419, (1995) (holding that the obligation to disclose includes evidence known only to police investigators and not to the prosecutor, and that the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government s behalf..., including the police. ); United States v. Agurs, 427 U.S. 97, 107 (1976) (holding that the duty to disclose exculpatory evidence applies even when there has been no request by the accused); Giglio v. United States, 405 U.S. 150, (1972) (holding that Brady encompasses impeachment evidence); see also Fed. R. Crim. P. 16(a) (outlining information subject to government disclosure); United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir. 1998) (holding that the disclosure requirements of Fed. R. Crim. P. 16(a)(1)(C) apply to inculpatory, as well as exculpatory, evidence). The government s obligation to provide exculpatory evidence pursuant to Brady in a timely manner is not diminished either by the fact that such evidence also constitutes evidence that must

30 be produced later pursuant to the Jencks Act, 18 U.S.C. 3500, or by the fact that such evidence need not be produced according to Rule 16. See United States v. Tarantino, 846 F.2d 1384, 1414 n.11 (D.C. Cir. 1988); see also Advisory Committee Note to Fed. R. Crim. P. 16 (1974) ( The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. ). Where doubt exists as to the usefulness of the evidence to the defendant, the government must resolve all such doubts in favor of full disclosure. See United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988). Accordingly, the Court, sua sponte, directs the government to produce to defendant in a timely manner including during the plea bargaining stage 1 any evidence in its possession that is favorable to defendant and material either to defendant s guilt or punishment. The government is further directed to produce all discoverable evidence in a readily usable form. For example, the government must produce documents as they are kept in the usual course of business or must organize and label them clearly. The government must also produce electronically stored information in a form in which it is ordinarily maintained unless the form is not readily usable, in which case the government is directed to 1 United States v. Ohiri, 133 Fed.Appx. 555, 562 (10 th Cir. 2005); United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998); Sanchez v. United States, 50 F.3d 1448, 1453 (9 th Cir. 1995); White v. United States, 858 F.2d 416, 422 (8 th Cir. 1988) Campbell v. Marshall, 769 F.2d 314, (6 th Cir. 1985); U.S. v. Nelson, 979 F.Supp. 2d 123, (D.D.C. 2013); Buffey v. Ballard,782 S.E. 2d 204 (W.Va. 2015). 2

31 produce it in a readily usable form. If the information already exists or was memorialized in a tangible format, such as a document or recording, the information shall be produced in that format. If the information does not exist in such a format and, as a result, the government is providing the information in a summary format, the summary must include sufficient detail and specificity to enable the defense to assess its relevance and potential usefulness. Finally, if the government has identified any information which is favorable to the defendant but which the government believes not to be material, the government shall submit such information to the Court for in camera review. 3

32 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM de novo C ARDOZO L AW R EVIEW THE ROAD TO ADOPTING AND IMPLEMENTING SYSTEMIC DISCLOSURE CHANGES IN THE DALLAS COUNTY DISTRICT ATTORNEY S OFFICE Susan Hawk & Patricia J. Cummings TABLE OF CONTENTS INTRODUCTION I. MICHAEL MORTON: THE TEXAS CATALYST A. The Case B. The Michael Morton Act C. The Undercurrent Complication II. THE DALLAS COUNTY DISTRICT ATTORNEY S OFFICE APPROACH A. Brady Training B. Special Directive General Policy Regarding Disclosure of Susan Hawk began her career in Dallas County almost two decades ago, first as a Prosecutor, and then as a Judge, where she earned the reputation for being tough on violent criminals while also working to reduce the recidivism rate. In 2014, she became the first woman to be elected as District Attorney in Dallas County. As District Attorney, Susan Hawk aims to restore experience and integrity to the DA s Office, through specialized prosecution units, consistent training, and a commitment to justice and transparency. Susan Hawk is a Dallas-area native. She graduated from Texas Tech University and then Texas Wesleyan University School of Law with a special interest in Criminal Law. Patricia J. Cummings is currently the Special Fields Bureau Chief of the Conviction Integrity Unit in the Dallas County District Attorney s Office. Prior to joining the DA s Office in July 2015, Patricia was a criminal defense lawyer and a clinical instructor at the University of Texas School of Law. She served on Michael Morton s legal team and played a key role in drafting and securing passage of the Michael Morton Act. From , Patricia served as General Counsel for the Texas Criminal Defense Lawyer s Association (TCDLA) where she worked primarily on TCDLA s legislative agenda. 151

33 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 152 CARDOZO LAW REVIEW DE NOVO [2016 Exculpatory, Impeachment, or Mitigating Information C. Performance Evaluations CONCLUSION INTRODUCTION Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty. 1 Since 2007, there have been twenty-eight exonerations. There were eight exonerations prior to the creation of the unit. 2 As of July 28, 2016, The National Registry of Exonerations (the Registry) reports that there have been 1,855 exonerations nationwide. 3 The Registry is a project of the University of Michigan Law School. Founded in 2012, its goal is to provide detailed information about every known exoneration in this country since Exoneration is generally defined by the Registry as a case in which a person was wrongfully convicted of a crime and later cleared of all the charges based on new evidence of innocence. 5 As exonerations are reported, people search for root causes and accountability. These searches have revealed common contributing factors, many related to discovery and Brady issues. 6 Most, if not all, efforts for reform necessarily involve ethical considerations for all participants in the criminal justice system. Prosecutors in particular have become a focus of the accountability debate. 7 Within this debate, 1 See generally Conviction Integrity Unit, DALL. CTY. DIST. ATT Y, (last visited July 28, 2016). 2 The Dallas County District Attorney s Office has actually had more than twenty-eight exonerations. However, the CIU has historically kept the statistics from 2001 until the present, as 2001 was when the Texas Legislature enacted Chapter 64 of the Texas Code of Criminal Procedure, a statute that allows post-conviction DNA testing. TEX. CODE CRIM. PROC. ANN. art (West 2015). 3 NAT L REGISTRY OF EXONERATIONS, Pages/about.aspx (last visited July 28, 2016) [hereinafter NAT L REGISTRY]. 4 Id. 5 Id. However, the Dallas CIU has a narrower definition of exonerations, including only those cases where there has been a legal finding of actual innocence, i.e., by the Court of Criminal Appeals, a pardon, or a dismissal granted specifically on a finding of actual innocence. 6 See John Hollway, Conviction Review Units: A National Perspective (Uni. Pa. Law Sch. Faculty Scholarship Paper No. 1614, 2016), NAT L REGISTRY, supra note 3. 7 Editorial, To Stop Bad Prosecutors, Call the Feds, N.Y. TIMES (June 6, 2016),

34 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 2016] SYSTEMIC DISCLOSURE CHANGES 153 questions are being raised regarding everything from civil liability to professional and criminal liability. For good or for bad, the Michael Morton case in Texas has become the central catalyst in this debate and many resulting reforms. 8 An in depth review of the Morton case sheds light on causes of his wrongful conviction. In fact, that review, combined with lobbying efforts led by Morton himself, has led to the most sweeping legislative changes in Texas criminal discovery and disclosure in fifty years. 9 To understand those changes from both an ethical and practical perspective, it is necessary to review not only the resulting legislation the Michael Morton Act 10 but also other legislative efforts to reform the criminal justice system, as well as case law interpreting the ethical and legal ramifications of the legislation. 11 In addition to creating a completely new statewide systemic approach to how discovery and disclosure is conducted, the Michael Morton Act represents a significant shift in the power dynamic in criminal cases. Simply put, prosecutors no longer have control over most of the decisions involving discovery. Prosecutors throughout Texas are left trying to adapt to, and to comply with, these sweeping See also TRAINING SUBCOMM. ON EMERGING ISSUES, TEX. DIST. AND CTY. ATT YS ASS N, SETTING THE RECORD STRAIGHT ON PROSECUTORIAL MISCONDUCT 25 (2012), setting-the-record-straight-on-prosecutor-misconduct [hereinafter SETTING THE RECORD STRAIGHT]. 8 See Morton v. State, 761 S.W.2d 876 (Tex. Ct. App. 1988) (pet. granted); Ex parte Morton, No. AP-76663, 2011 WL (Tex. Crim. App. Oct. 12, 2011) (per curiam). See also Michael Morton, INNOCENCE PROJECT, (last visited July 31, 2016). 9 Patricia Cummings, Prison is Prison: A Conversation with Michael Morton, 75 TEX. B.J. 608, 610 (2012). See also Brandi Grissom, From the Tea Party, a Softer Line in Criminal Justice, TEX. TRIB. (July 10, 2013), ( Legislators approved at least seven bills that advocates argue could help prevent future wrongful convictions. Certainly, Morton s ubiquitous presence and lobbying efforts helped spur criminal justice reforms. ). 10 TEX. CODE CRIM. PROC. ANN. art (West 2015). 11 See generally, In re State ex rel. Munk, No CV, 2015 Tex. App. LEXIS (Tex. App. Oct. 15, 2015) (granting mandamus); Schultz v. Comm. for Lawyer Discipline, No (Board of Disciplinary Appeals, Dec. 17, 2015), files/schultz-v.-commission-for-lawyer-discipline.pdf; H.B. 2090, 83rd Leg., Reg. Sess. (Tex. 2013) (relating to written statements made by an accused as a result of custodial interrogation); H.B. 1847, 83rd Leg., Reg. Sess. (Tex. 2013) (relating to continuing legal education for prosecutors in ethics or professional responsibility); S.B. 1292, 83rd Leg., Reg. Sess. (Tex. 2013) (relating to DNA testing of biological evidence in certain capital cases); S.B. 1044, 83rd Leg., Reg. Sess. (Tex. 2013) (relating to access to criminal history record by certain entities); S.B. 825, 83rd Leg., Reg. Sess. (Tex. 2013) (relating to disciplinary standards and procedures for grievances stemming from prosecutorial misconduct); S.B. 344, 83rd Leg., Reg. Sess. (Tex. 2013) (relating to the procedure for an application for a writ of habeas corpus based on relevant scientific evidence); S.B. 1611, 83rd Leg., Reg. Sess. (Tex. 2013) (relating to discovery in a criminal case); Tex. Att y Gen. Op. No. KP-0041 (2015); Tex. Comm. on Prof l Ethics, Op. 646, 78 TEX. B.J. 78 (2015).

35 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 154 CARDOZO LAW REVIEW DE NOVO [2016 changes. 12 Complicating the process is an undercurrent felt by many prosecutors that these changes were an overreaction to one proverbial bad apple, given the fact that the Morton case involved what most people would agree were egregious Brady violations coupled with a very easy culprit to blame. 13 Prosecutor offices are now at a crossroad they must determine how to respond to a dramatically changed landscape. In the recent past, some stakeholders in the criminal justice system have attempted to address, study, and analyze mistakes or errors in the criminal justice system through a systems approach, rather than through the traditional approach of finding someone to blame. 14 Perhaps, we can draw a parallel between the mistake of convicting an innocent person and a plane crash. In the aviation industry, crashes are reviewed not just to assess blame, but also to understand the cause of the crash and to guard against similar problems in the future. Prosecutors should be asking whether reviewing legal errors and mistakes in an environment with less emphasis on blame can help us understand how the mistake or error occurred and allow us to put systems in place to minimize their reoccurrence in the future. 15 The Dallas County District Attorney s Office is uniquely situated to adopt and implement a system s approach to discovery and disclosure of exculpatory, impeachment, and mitigating information. This is due in part to the office leadership s commitment to cultural change as well as the work of its CIU. 16 While some systemic changes have already been made, such as hiring practices focusing on ethics and Brady 12 See MANAGING TO EXCELLENCE CORP., THE COST OF COMPLIANCE: A LOOK AT THE FISCAL IMPACT AND PROGRESS CHANGES OF THE MICHAEL MORTON ACT (TCDLA, March 2015), MMA%20Final%20Report.pdf [ 13 See Randall Sims, The Dawn of New Discovery Rules, 43 THE PROSECUTOR No. 4 (July- August 2013), SETTING THE RECORD STRAIGHT, supra note 7, at For example, Harris County, Texas, is currently leading the nation in exonerations due to their systems approach of identifying cases where defendants plead guilty to drug possession, and it was later determined from lab reports that they did not illegally possess a drug or what they possessed was not what they were convicted of possessing. In addition to taking steps to exonerate these identified defendants, Harris County has identified the problems that led to the wrongful convictions and is putting procedures in place to prevent the problems from reoccurring. See Jessica Lussenhop, Why Harris County, Texas, Leads the US in Exonerations, BBC NEWS (Feb. 12, 2016), See generally Montgomery Cty. Dist. Att ys Office & Quattrone Ctr., Using Root Cause Analysis to Instill a Culture of Self- Improvement (April 20-21, 2015) (unpublished white paper), files/4291-impact-report-root-cause-analysis [hereinafter Using Root Cause Analysis] 15 Using Root Cause Analysis, supra note See generally Terri Moore, Prosecutors Reinvestigate Questionable Evidence: Dallas Establishes Conviction Integrity Unit, 26 CRIM. JUST., Fall 2011, at 4; Mike Ware, Dallas County Conviction Integrity Unit and the Importance of Getting it Right the First Time, 56 N.Y.L. SCH. L. REV (2011/12).

36 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 2016] SYSTEMIC DISCLOSURE CHANGES 155 disclosure, 17 others such as training, performance evaluations, supervision, and auditing are evolving to reflect the leadership s vision, lessons learned from exonerations, and the ethical and legal requirements of all prosecutors. To illustrate, the office recently held an in-house mandatory training for all prosecutors and investigators entitled Discovery and Brady: Practical and Ethical Issues for Prosecutors. 18 Evaluations from the training are currently being used to assess its effectiveness and determine how future trainings can be improved. The office has also recently adopted a special directive written policy regarding disclosure of exculpatory, impeachment, and mitigating evidence. 19 This policy is designed to reduce unintentional failures to disclose (which represent the vast majority of disclosure errors), while also emphasizing that intentional failure to disclose will not be tolerated. Finally, written prosecutor performance evaluations have been modified to incorporate compliance with recent discovery changes and ethical and legal disclosure obligations. 20 A very important message in changing the culture is that ethical disclosure compliance is not only valued, it is a significant tool used to promote quality employee performance and ongoing professional growth. 17 During the hiring process at the Dallas District Attorney s Office, applicants for prosecutor positions are sent the following Dear Applicant, Thank you for your interest with the District Attorney s Office. You have been chosen to come in for a personal interview scheduled on [date] at [time]. Also, please be prepared to discuss the following cases attached. Again, thank you for your interest in a career with Dallas County. Attachments: Ex parte Johnson, No. AP , 2009 WL (Tex. Crim. App. May 20, 2009) (not designated for publication); Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972). 18 See Appendix A (agenda from mandatory in-house training). 19 See Appendix B (special directive regarding disclosure of information). Prior to adopting this policy, the Dallas District Attorney s Office had a written policy that read: Brady Policy I understand as a prosecutor that I have a Constitutional and ethical obligation under Brady v. Maryland and the Texas Rules of Ethics Rule 3.09 to timely notify the defendant of any exculpatory information I am aware of. I understand that my failure to comply with this policy may result in discipline including my termination. Further, I understand that any alleged Brady violations will be investigated by the administration. [Signature], [Date]. All prosecutors were required to sign and date the Brady Policy and a copy was placed in their personnel file. The special directive will also be disseminated to all prosecutors, who will be required to sign and date it, with a copy to be placed in their personnel file. 20 See Appendix C (prosecutor performance evaluation).

37 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 156 CARDOZO LAW REVIEW DE NOVO [2016 I. MICHAEL MORTON: THE TEXAS CATALYST A. The Case On August 13, 1986, Christine Morton, a young married mother with a three-year-old son, was bludgeoned to death in her suburban home located in the southern edge of Austin, Williamson County, Texas. 21 Christine's husband, Michael Morton, immediately became law enforcement's sole suspect in the crime. Although the scene of the crime was geographically located in the City of Austin, home of the liberal and progressive University of Texas at Austin, it was also in Williamson County, a conservative county known for its no-nonsense "tough on crime" law enforcement community the very same law enforcement community that had received accolades and national attention for being the first to prosecute Henry Lee Lucas and obtain a death sentence. 22 At the time of Christine s murder, the most powerful law enforcement men in Williamson County were Sheriff Jim Boutwell famous for his heroism during the deadly University of Texas Tower shootings in 1966 and District Attorney Ken Anderson a member of the Lucas prosecution team who was about to be named the Texas Prosecutor of the Year. 23 Working side by side from the very beginning of the investigation, these two men quickly concluded Morton was responsible for his wife's horrific murder. 24 An arrest and an indictment for murder soon followed. Then, just six months after the crime, a Williamson County jury convicted Morton and sentenced him to life in prison. 25 During the February 1987 jury trial, a hand written note Morton wrote to his wife Christine 26 was introduced to the jury to prove "motive," while testimony regarding a medical examiner's opinion on the time of Christine's death was used to prove "opportunity." 27 Persuaded by both, the jury deliberated for just a few hours before they reached a guilty verdict Wade Goodwyn, Free After 25 Years: A Tale of Murder and Injustice, NPR (Apr. 28, :00 AM), 22 Brandi Grissom, Michael Morton s Conviction Comes to Define Anderson, TEX. TRIB. (Feb. 3, 2013), 23 Id. 24 Id. 25 Id. 26 See Appendix D (Michael Morton s handwritten note to Christine Morton). 27 See Morton v. State, 761 S.W.2d 876, (Tex. Ct. App. 1988). 28 Id.

38 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 2016] SYSTEMIC DISCLOSURE CHANGES 157 From the day Christine's body was discovered in August 1986 until October 2011, Morton told anyone who would listen that he was innocent. In 2011, DNA evidence and recently released offense reports from the original criminal investigation proved he was telling the truth. 29 Christine was murdered by an intruder. Although it took almost a quarter of a century, Morton was set free on bond on October 4, The intruder, identified by DNA as Mark Alan Norwood, has since been convicted and sentenced to life in prison for Christine's murder. 31 Norwood is also currently awaiting trial in Austin, Travis County, Texas, for capital murder a crime committed in an eerily similar manner as the crime against Christine. 32 This crime, however, involved the bludgeoning death of Debra Jan Baker and was committed approximately eighteen months after Christine's murder. 33 While Morton was free on a post-conviction bond, the highest criminal court in Texas the Texas Court of Criminal Appeals reviewed his post-conviction claim of actual innocence based on the newly discovered DNA evidence. Then, pursuant to Ex Parte Elizondo, 34 the Court set aside Morton's murder conviction and remanded him to the custody of the Sheriff of Williamson County to answer the charge against him. 35 Because the State agreed to relief on the DNA claim, the Court of Criminal Appeals never ruled on the merits of the due process claims involving Brady violations. 36 In addition to the DNA evidence, Morton's defense team uncovered evidence proving Anderson intentionally suppressed Brady evidence during Morton's trial. 37 The most notable evidence involved two separate offense reports detailing witness statements to investigators in the case. The first report detailed a telephone conversation with Christine's mother where she told the lead 29 Grissom, supra note Brandi Grissom, Morton Released from East Texas Prison After 25 Years, KUT NEWS (Oct. 4, 2011), 31 Pamela Colloff, Mark Alan Norwood Found Guilty of Christine Morton s Murder, TEX. MONTHLY (Mar. 27, 2013), 32 See Travis County Criminal Case Settings, TRAVIS CTY. (last updated Aug. 1, 2016), (the trial date has been set to start on Sept. 15, 2016). 33 Ricke, supra note S.W.2d 202, 209 (Tex. Crim. App. 1996) (establishing that a petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence ). 35 Ex parte Morton, No. AP-76663, 2011 WL (Tex. Crim. App. Oct. 12, 2011) (per curiam). 36 Id. 37 Grissom, supra note 22.

39 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 158 CARDOZO LAW REVIEW DE NOVO [2016 investigator that Christine and Morton's three-year old son, Eric, had witnessed his mother's murder and that Eric said his father was not home when the murder occurred. 38 The second report involved various witness accounts of a green van seen casing the Morton house days before the murder. 39 After the remand from the Court of Criminal Appeals and in the midst of a request for a court of inquiry 40 to investigate the Brady violations, the Williamson County District Attorney elected not to retry Morton for the murder and filed a motion to dismiss the charge against Morton on the grounds of actual innocence. The dismissal, however, did not stop the legal or public demand for accountability for the Brady violations. After a lengthy legal battle, Anderson was arrested for three criminal offenses arising out of his prosecution of Morton: one felony count of tampering with evidence, one misdemeanor count of tampering with evidence, and one misdemeanor count of criminal contempt of court. 41 Facing a criminal trial and a state bar disciplinary trial, Anderson cut a deal. He agreed to surrender his law license and plead no contest to criminal contempt. 42 The agreed sentence was for ten days in the Williamson County Jail, a $ fine, and 500 hours of community service restitution. 43 B. The Michael Morton Act Until recently, the Dallas County District Attorney's Office led the nation in the number of exonerations. 44 Many of the Dallas County men who were exonerated have chosen to use their individual tragedies as both lessons and tools to improve the criminal justice system. Their early efforts led to legislation creating: 1) the most robust compensation statute in the nation for individuals who have been legally declared actually innocent of crimes for which they were convicted; 45 2) a 38 Id. See Appendix E (monster transcript). 39 Grissom, supra note 22. See Appendix F (green van report). 40 See TEX. CODE CRIM. PROC. ANN. art (West 2015). 41 See Chuck Lindell, Judge Finds that Anderson Hid Evidence in Morton Murder Trial, AUSTIN-AM. STATESMAN (April 19, :12 PM), local/ken-anderson-court-of-inquiry-resumes/nxrlm. 42 The criminal contempt charge was based on the fact that Anderson was not truthful to the trial court judge when he stated the State had no favorable evidence in its possession. See Appendix G (excerpt from pre-trial hearing in the original Morton case). 43 Chuck Lindell, Ken Anderson Gets 10-day Sentence, Surrenders Law License, AUSTIN AM.-STATESMAN (Nov. 8, :09 PM), 44 NAT L REGISTRY, supra note TEX. CIV. PRAC. & REM. CODE ANN (West 2015).

40 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 2016] SYSTEMIC DISCLOSURE CHANGES 159 commission to study wrongful convictions; 46 and 3) procedures for increasing the reliability of eyewitness identifications. 47 Legislative reforms in criminal discovery, however, did not appear to be on the horizon. Prior to January 1, 2014, a defendant's right to criminal discovery in Texas was statutorily limited to disclosure of the defendant's own statements and inspection of physical evidence. 48 Additional discovery was allowed only if a prosecutor voluntarily agreed to the disclosure or if a trial court, upon a showing of good cause, ordered disclosure. 49 And, even if a trial court found good cause existed, the trial court generally could not order the production of offense reports because they were by definition, work product. 50 In 2013, for the first time in almost half a century, criminal discovery reform appeared to be on the horizon due, in part, to the Morton case and Morton's efforts to effectuate change. Morton, much like Dallas County Exonerees before him, used his personal tragedy to call for legislative reform. 51 Due to the particular facts of his case, he very specifically targeted the discovery and disclosure laws that contributed to his wrongful conviction. 52 Simply put, Morton and others sought to mandate an open file discovery system under which requested and produced information is recorded. Central to these suggested reforms was the belief that such a system would change the power dynamic in the process, while also reducing both Brady violations and ineffective assistance of counsel claims. Senate Bill 1611, which was legislatively titled the Michael Morton Act, was signed into law on May 16, 2013 and became effective January 1, In short, it requires prosecutors to essentially open their files (defined as all material information in their possession specifically including offense reports and witness statements) "as soon as practicable" upon a timely request from a defense lawyer. 54 The Act also imposes a continuing duty on the State to disclose exculpatory, impeachment, or mitigating information to the defense if it is in their possession, custody, or control without regard to "materiality" as 46 TEX. CODE CRIM. PROC. ANN. art (West 2015). 47 Art Art (a) (West 2011) (amended 2013). 49 Id. 50 Id. 51 Gerald S. Reamey, The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or Not (Sept. 25, 2015) (unpublished manuscript), 52 Id. at S.B. 1611, 83rd Leg., Reg. Sess. (Tex. 2013). 54 TEX. CODE CRIM. PROC. ANN. art (a) (West 2015).

41 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 160 CARDOZO LAW REVIEW DE NOVO [2016 defined by Brady and its progeny. 55 In addition to the Michael Morton Act, the same legislature also passed two other significant and related pieces of legislation during the 83rd Regular Session. The more significant one resulted in an amendment to the Texas Disciplinary Rules of Professional Conduct and the Texas Government Code. 56 During the disciplinary proceedings against Morton's prosecutor, Anderson s attorneys argued that the State Bar proceedings against him were time barred by the four-year statute of limitations applicable to claims of professional misconduct because the alleged failure to disclose occurred in In response, the State Bar relied on a fraud exception to the statute of limitations, arguing that the four-year time period runs from the date the misconduct was discovered rather than the date of the misconduct itself. 58 Since the disciplinary action was ultimately settled by the parties, the issue was never legally resolved. 59 The legislature codified language specifically stating that the four-year statute of limitations begins when a wrongfully imprisoned person is released from a penal institution in cases involving an alleged violation of a prosecutor's ethical disclosure obligation. 60 These amendments have already had an impact in Texas. Disciplinary complaints that had previously been dismissed based on the statute of limitations have been refiled against prosecutors. One of those complaints resulted in a disbarment and the other remains pending. 61 The second piece of legislation involves a new law that 55 Art (h). 56 TEX. RULES OF DISCIPLINARY P. R (preventing the four-year limitation window for bringing disciplinary proceedings against prosecutors from running until the wrongfully imprisoned person is released from a penal institution); TEX. GOV T CODE ANN (b-1) (West 2015) (statute of limitations applicable to grievances against prosecutors for violations of the disclosure rule do not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution). 57 Latest for Judge Ken Anderson Charged in Wrongful Conviction Case, DARE TO THINK (Feb. 12, 2013), 58 Id. 59 In re Ken Anderson, No (Tex. Nov. 19, 2013), All_Archived_Documents/SupremeCourt/AdministrativeOrders/miscdocket/13/ pdf. See also Chuck Lindell, Ken Anderson s Law License Officially Canceled, AUSTIN AM.- STATESMAN (Nov. 19, 2013), 60 TEX. GOV T CODE ANN (b-1). 61 See Amanda Holpuch, Texas Prosecutor Officially Disbarred for Sending Innocent Man to Death Row, THE GUARDIAN (Feb. 9, :10 AM), /feb/09/texas-prosecutor-charles-sebesta-disbarred-anthony-graves-innocent-death-row; Maurice Possley, Prosecutor Accused of Misconduct in Disputed Texas Execution Case, WASH. POST (Mar. 18, 2015), misconduct-in-disputed-texas-execution-case/2015/03/18/caa37050-cd77-11e4-8a46- b1dc9be5a8ff_story.html; Edgar Walters, State Bar Opens Investigation Into Prosecutor, TEX.

42 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 2016] SYSTEMIC DISCLOSURE CHANGES 161 mandates a yearly one-hour approved training course regarding a prosecutor's duty to disclose exculpatory and mitigating evidence and information. 62 To help facilitate compliance with this new law, the Texas District and County Attorney's Association obtained funding to provide a one-hour training video approved by the Texas Court of Criminal Appeals. 63 C. The Undercurrent Complication Prosecutors throughout the state are undergoing both practical and cultural changes. 64 This is true regardless of whether a particular office previously operated under a voluntarily created open file system or a system involving a strict construction of Article of the Code of Criminal Procedure. 65 Five years ago, most prosecutors could not have fathomed a criminal prosecution against a prosecutor that stemmed from a Brady violation. Now, the pendulum has swung. The vast majority of prosecutors just want to make sure they, along with others in the prosecution team, are properly educated and equipped to fulfill their new disclosure obligations. Other prosecutors, however, have simply taken the approach that they are not Anderson, nor could they ever be Anderson an attitude which appears to be rooted in the undercurrent notion that a proverbial bad apple is responsible for these "unnecessary sweeping changes." 66 The problem with that attitude is that it makes systemic changes more difficult. Prosecutor offices throughout the state should seize the opportunity to create a systems approach to comply with both the legal and ethical disclosure obligations. The success of such an approach necessarily entails a thoughtful and consistent message to all prosecutors that our first and foremost obligation is to seek justice not convictions. Any systemic approach must then embrace the fact that no one wants to convict an innocent person, yet despite that fact, we as prosecutors TRIB. (Mar. 5, 2014), 62 TEX. GOV T CODE ANN See Mandatory Brady Training, TDCAA, ?type=1 (last visited July 31, 2016). 64 See generally Sims, supra note Tex. Comm. on Prof l Ethics, Op. 646, 78 TEX. B.J. 78 (2015). Prior to the enactment of the Michael Morton Act, many prosecutor offices agreed to provide discovery above and beyond what the defense was statutorily entitled to under article The mechanism for providing this discovery was often a discovery contract that enabled the prosecutor to dictate the terms and conditions under which the discovery was provided. However, given the ruling in Ethics Opinion no. 646, prosecutors who utilized these discovery contracts can no longer ethically impose restrictions on discovery in light of the passage of the Michael Morton Act. 66 Sims, supra note 13.

43 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 162 CARDOZO LAW REVIEW DE NOVO [2016 make mistakes just like other stakeholders in the criminal justice system. And on occasion, there are wrongful convictions. Formal and informal steps must be taken to lessen the opportunity for disclosure failures and wrongful convictions to happen. When mistakes do occur, we must be willing to attempt to differentiate the unintentional from the intentional and proceed accordingly. II. THE DALLAS COUNTY DISTRICT ATTORNEY S OFFICE APPROACH Systemic change requires both the commitment of leadership and the implementation of safeguards. In Dallas, we have moved on several fronts. A. Brady Training On January 21 and 22, 2016, the office co-sponsored a mandatory half-day training for all prosecutors and investigators regarding discovery and Brady. 67 Individual and panel presentations were made by the District Attorney, the CIU, the Policy Director of the Innocence Project of Texas, and three men who have been exonerated in Dallas County. 68 Overall, the seminar addressed ethical issues confronted by prosecutors with a specific focus on Brady and evidentiary disclosure. Although the office had previously provided training on some of these topics before, this was the first time an in-house training attempted to teach the topics through the lens of lessons learned from wrongful convictions. Whether this new approach was successful is still being considered. While most of the evaluations of the training suggest it was a success, some suggest the difficulties inherent in focusing on actual innocence cases involving prosecutorial misconduct See Appendix A. 68 The three men, Christopher Scott, Richard Miles, and Johnnie Lindsey, collectively served fifty-four years in prison for crimes they did not commit. All were prosecuted by the Dallas District Attorney s Office. See Christopher Shun Scott, NAT L REGISTRY OF EXONERATIONS, (last visited July 31, 2016); Richard Miles, NAT L REGISTRY OF EXONERATIONS, special/exoneration/pages/casedetail.aspx?caseid=3881 (last visited July 31, 2016); Johnnie Lindsey, NAT L REGISTRY OF EXONERATIONS, Pages/casedetail.aspx?caseid=3384 (last visited July 31, 2016). 69 Attendees were asked to evaluate the training on a scale of one to five (poor, fair, good, very good, and excellent, respectively). Thirty-seven attendees submitted anonymous evaluations and the overall rating for the quality of the program was a Individual comments ranged from the program offered balance between the head and heart nicely done, to the entire thing was absolutely insulting and quite frankly it made me angry.

44 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 2016] SYSTEMIC DISCLOSURE CHANGES 163 B. Special Directive General Policy Regarding Disclosure of Exculpatory, Impeachment, or Mitigating Information Probably one of the most important safeguards a prosecutor s office can implement to reduce Brady and disclosure errors is an appropriate written office policy. In other words, offices should adopt a written policy that simultaneously communicates: (1) the right tone for the desired office culture; and (2) sufficient substantive and procedural guidance to all prosecutors regarding their ethical, constitutional, and statutory obligations. Accomplishing both goals in one written policy is of course easier said than done. Given the complexities of the goals, it is important not to write an oversimplified policy and it is equally as important not to write a treatise. The Special Directive recently adopted in Dallas County is an effort to achieve the aforementioned goals in a balanced manner. 70 C. Performance Evaluations Performance evaluations have been and will always be an important yardstick used to measure salary increases and promotions in almost all employment settings. Historically, a lot of prosecutor offices evaluated performance, in part, based on convictions and sentences. Recent occurrences in the criminal justice system, however, have made some prosecutors rethink that practice and reconsider how to evaluate a prosecutor s performance. Simply put, if all stakeholders in the criminal justice system value the goal of not convicting an innocent person, it makes sense to evaluate prosecutor performance with that goal in mind. By regularly evaluating a prosecutor s discharge of his or her constitutional, statutory, and ethical disclosure obligations, offices can routinely emphasize an appropriate office culture as well as provide an additional layer of supervision and/or auditing to protect against wrongful convictions. 71 CONCLUSION Long-term success requires a willingness to consider new ideas and to be open to new ways to ensure our criminal system is just. By creating a systems approach to addressing disclosure based problems, the Dallas County District Attorney s Office is mapping out a road that 70 See Appendix B. 71 See Appendix C.

45 Hawk & Cummings 2016 (final).docx (Do Not Delete) 8/11/2016 5:46 PM 164 CARDOZO LAW REVIEW DE NOVO [2016 will not only potentially reduce discovery and Brady errors, but also other errors that contribute to wrongful convictions Just how long the road to systemic disclosure changes is in Dallas is hard to measure. Bumps, however, are to be expected in the future and have been encountered in the recent past. See e.g., Tanya Eiserer, Attorneys Accuse Dallas DA s Office of Withholding Evidence, WFAA (May 3, :00 PM), JoAnne Musick, Prosecutorial Misconduct in Dallas Ultimately Ended with Justice, MIMESIS Law (May 9, 2016), fault-lines/prosecutorial-misconduct-in-dallas-ultimately-ended-with-justice/9526.

46 Appendix A DISCOVERY AND BRADY: PRACTICAL AND ETHICAL ISSUES FOR PROSECUTORS AGENDA January 21, 2016 & January 22, 2016 Thursday, January 21 & Friday, January 22 (attend this program on either day) Program Description: This oneday program will be offered twice (on January 21, 2016 & January 22, 2016) and is open to Texas Prosecutors and their staff. This seminar will address ethical issues that confront prosecutors in the Century specifically focusing on Brady and evidentiary disclosure, and subsequent exoneration of Michael Morton. Presentations will discuss disclosure-based causes of Morton's wrongful conviction, legislative reforms intended to address those discovery problems and how prosecutors can adapt to these changes. Finally, a panel of those affected by wrongful convictions will discuss Brady and other issues in their respective cases. 12:00 p.m. 12:30 p.m. 12:50 p.m. 1:15 p.m. 3:15 p.m. 4:15 p.m. 4:30 p.m. Registration Ethics & Prosecution in the 21st Century Susan Hawk, District Attorney, Dallas County District Attorney's Office, Dallas, Texas An Interview with Michael Morton (Video) Disclosure, Ethics, Brady & the Michael Morton Act: The Ethical Duties of a Prosecutor (Includes a 15-Minute Break) Patricia Cummings, Special Fields Bureau Chief, Conviction Integrity Unit, Dallas County District Attorney's Office, Dallas, Texas Discussion Panel: Ethics from the Perspective of Exonerees: Moderated by: Cynthia Garza, DNA Project, Conviction Integrity Unit, Dallas County District Attorney's Office, Dallas, Texas Panel: Cory Session, Policy Director, Innocence Project of Texas Christopher Scott, Exoneree, Dallas Texas Richard Miles, Exoneree, Dallas, Texas Questions and Answers Adjourn Most materials will be provided electronically and/or posted on our website.

47 Special Directive Appendix B TO: ALL ASSISTANT DISTRICT ATTORNEYS FROM: SUSAN HAWK, DISTRICT ATTORNEY SUBJECT: DATE: GENERAL POLICY REGARDING DISCLOSURE OF EXCULPATORY, IMPEACHMENT OR MITIGATING INFORMATION Subject to any future changes in the law, this Special Directive sets forth the office policy regarding disclosure of exculpatory, impeachment or mitigating information pursuant to article 39.14(h) of the Texas Code of Criminal Procedure (the Michael Morton Act), Brady v. Maryland, 373 U.S. 83 (1963) and Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct (TDRPC). To the extent that this Special Directive conflicts with previous policies, this Special Directive controls. Article 39.14(h) specifically states: [n]otwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment or mitigating document, item or information in the possession, custody or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. TDRPC 3.09 in turn requires a prosecutor in a criminal case to: make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. DIRECTIVES It is imperative that assistant district attorneys understand and comply with their constitutional, statutory, and ethical duties to disclose exculpatory, impeachment and mitigating information to the defense. These duties exist regardless of the particular form of the information -- i.e., written or oral, recorded or not recorded. In the event an assistant district attorney is unsure whether disclosure is warranted or determines disclosure is not required, the assistant district attorney shall consult with their chief regarding the matter. In cases where the assistant district attorney decides to withhold 1

48 information, he/she must document and be prepared to articulate the basis for their decision. If additional guidance is needed regarding whether information falls within an assistant district attorney's constitutional, statutory or ethical disclosure obligations, the Public Integrity Unit and/or the Conviction Integrity Unit should be consulted. Absent good cause, any disclosure of exculpatory, impeachment and mitigating evidence shall be recorded in an approved office disclosure form and shall occur as soon as practicable. Because a prosecutor's statutory and ethical duty to disclose such information is a continuing obligation, if new information becomes known to, or comes into the possession of, the assistant district attorney that was not turned over to the other party as required above, the existence of the information shall be promptly disclosed to the defendant or the court. Intentional failures to disclose exculpatory, impeachment or mitigating information will not be tolerated. GUIDANCE Generally speaking, information is exculpatory if it could aid the defendant s case in some way it does not matter how, or even how much. Impeachment information on the other hand is a form of exculpatory information that can be used to attack the credibility of a state s witness. Although it may sometimes be more difficult to identify, courts have treated impeachment information as significant because the truthfulness and reliability of a given witness may ultimately be determinative of guilt or innocence. Finally, information is mitigating if it tends to reduce the moral blameworthiness of the defendant. Despite the simplicity of the aforementioned definitions, application of the definitions to any given case requires a fact specific analysis and an understanding that disclosure compliance is contextual. Even so, given the fact that the Michael Morton Act and TDRPC 3.09 impose a broader duty on prosecutors to disclose exculpatory, impeachment and mitigating information than Brady and its progeny, all prosecutors shall disclose such information without engaging in a materiality review. Materiality and "material evidence" are generally defined in the context of an appeal from a conviction. Neither one of which has a place in a prosecutor's assessment as to whether certain information is exculpatory, impeachment or mitigating to the defendant, thereby requiring disclosure. Disclosure decisions should always be made through the lens of the careful prosecutor who errs on the side of disclosure. Kyles v. Whitely, 514 U.S. 419 (1995 2

49 Quarterly Evaluation Form Purpose of Evaluation: Quarterly evaluation forms are not meant as disciplinary forms but as tools to promote quality employee performance and ongoing professional growth. A good evaluation will always include areas where an employee can improve and areas where they deserve accolades. The evaluation will always include discussion of both strengths and weaknesses. Employee s Name: Evaluator s Name: Evaluation Period: Appendix C Overview: Part 1 of the evaluation is a series of scaled questions for certain topics. Part 2 is an area to discuss strengths and weaknesses. Supervisors must fill out both parts. Once completed, a copy of the evaluation should be sent to your Administrative Chief for approval. Part 1: Part 1 is divided into eight categories. Supervisors should rate an attorney compared to the model attorney who holds the same position and level in the office. Here are some things to consider in each category. Ethics and Professionalism Does the attorney demonstrate a familiarity with her/his ethical obligations under the Texas Disciplinary Rules of Professional Conduct? Have any meritorious complaints been raised against her/him for failure to disclose exculpatory, impeachment or mitigating information? Is she/he respectful, ethical and candid with the court and opposing counsel? Does she/he treat the defense bar with dignity? Is she/he respectful and courteous with courthouse and office staff? Does she/he follow office policy? Trial Work Is the attorney able to handle herself or himself appropriately in trial? Is she/he effective in voir dire, openings, directs, crosses and closings? Can she/he offer, use and object to evidence appropriately? Is she/he a strategic thinker? Does she/he frazzle easily? Can she/he direct or cross an expert effectively? Trial Preparation Is the attorney competent in preparing for trial? Does she/he meet with witnesses in a timely manner? Is the attorney routing cases in a timely manner? Does she/he spend time preparing evidence or demonstrative aids so that they are effective? Is the attorney pitching cases and seeking advice when appropriate? Is the attorney identifying weaknesses and legal difficulties and preparing for them? Workroom Management How is the attorney handling the administrative part of being a prosecutor? Is she/he making timely witness contacts? Is the attorney making timely and fair sentence recommendations? Is discovery provided in accordance with the Michael Morton Act timely, completely and continually without regard to whether the case is a trial or a plea? Is she/he handling

50 multiple demands and competing priorities? Is she/he maintaining a manageable docket? Are the dispositions appropriate? Initiative Is the attorney going the extra mile? Is she/he eager to take on extra tasks? Does she/he try the tough cases or plea them for less than the cases deserve? Is the attorney proactive or reactive? Work Ethic Is the attorney a hard worker? Does she/he set and keep appointments and schedules? Is the attorney present and punctual? Will she/he spend the time to get the job done right? Is she/he efficient with time? Does the attorney document work well? Legal Knowledge Is the attorney proficient in the law? Does she/he take the time to research a topic at issue? Is she/he able to use the research effectively? Does she/he have a working knowledge of the major issue and topics we encounter on a routine basis? Leadership Skills Is the attorney a leader? Does she/he take the time to help other attorneys or train prosecutors less skilled than she/he? Does the attorney look for opportunities to make herself/himself and the office better? Do other prosecutors seek her/his advice and look to him/her as a leader? Part 2: Part 2 is an opportunity to discuss other areas not covered in Part 1. A goals plan should be put in place that fosters the strengths while helping correct the weaknesses. The more intentional this evaluation is the more likely it will result in improving the individual evaluated.

51 PART 1 Please rate the attorney on the scale below, 1 being the lowest performer and 10 being an extraordinary performer. Ethics and Professionalism Comments: Trial Work Comments: Trial Preparation Comments: Workroom Management Comments: Initiative Comments: Work Ethic Comments:

52 Legal Knowledge Comments: Leadership Skills Comments: Additional Comments Strengths: PART 2 Areas for growth: Goals plan: Employee s signature Date Supervisor s signature Date Administrative Chief s signature Date

53 Appendix D