News and Insights

In State v. Banda, the Third District Court of Appeals (Austin) decided a case at the end of last month addressing an issue regarding a discovery violation by the State.  The opinion addresses a key issue: what does a court do to remedy a discovery violation?  Often, the primary consideration is not whether a violation occurred, but what a court should do about it.

Let’s review the law on discovery:

Brady v. Maryland – A prosecutor must disclose exculpatory evidence if it is material to either guilt or punishment, including impeachment. Brady v. Maryland, 373 U.S. 83 (1963); see also Thomas v. State, 841 S.W. 2d 399 (Tex. Crim. App. 1992) (describing Brady parameters in Texas).

Under the U.S. and Texas Constitutions, Brady breaks down to two duties related to pretrial disclosure of evidence by the State:
1) Disclose all favorable, material evidence in her possession.
2) Preserve and make available to the defendant any favorable, material physical evidence that the accused cannot otherwise obtain and that may be material to his defense.

See also CCP art. 39.14; Whitchurch v State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983) (no general defense right of discovery in Texas). BUT, see also Nielsen v. State, 836 S.W.2d 245 (Tex. App. – Texarkana 1992, pet. Ref’d) (The prosecution has a duty to disclose exculpatory evidence regardless of whether the defense files a discovery motion requesting the material. But even if the evidence is requested, the State does not have to disclose it unless it is also material to the defense.)
Though a prosecutor is not required to deliver his entire file to defense counsel, a prosecutor’s open file policy is generally sufficient to comply with the prosecutor’s Brady obligation. See United States v. Bagley, 473 U.S. 667, 676 (1985).

As stated above, often the primary consideration for the trial court is not whether a Brady violation occurred, but what a court should do about it.  In Banda, the trial court decided that the State’s failure to comply with a court order on discovery was grounds for the court to dismiss the State’s case with prejudice to refile.  The appellate court did not focus on whether a discovery violation had occurred – it technically had.  The appellate court’s focus was on the fact that the trial court dismissed the State’s case without prejudice as a result of the violation.  The Court found that absent constitutional or statutory authorization a trial court cannot dismiss a prosecution except on the motion of the prosecuting attorney and that the trial court does not have general authority to dismiss the indictment without prejudice in absence of the State’s consent.  State v. Pambeck, 182 S.W.3d 365, 366, 370 ( Tex. Crim. App. 2005); State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997).  In Banda’s case there were no circumstances existing that would allow the court to make such a dismissal (even given the discovery order violation).

Ultimately, the Court held that “failure to comply with court orders on discovery may warrant suppression of the evidence in question, but discovery abuse is not recognized in the Texas Code of Criminal Procedure as a basis for dismissing the case with prejudice. See Tex. Code Crim. Proc. Ann. Art. 39.14 (West Supp. 2010)”. Id. at page 3.

Banda shows defense attorneys that discovery violations are extremely important and can be effective to win a case but only as long as the attack is not misplaced on attempting to get the court to dismiss the case.

Back in June of this year the Texas Court of Criminal Appeals addressed a case involving a conflict of interest.  Criminal defense attorneys will find that conflict issues come up frequently. The writ of mandamus that the CCA heard in this case addresses conflicts of interest and provides some assurance as to what attorney’s can do to shore up any issues they may have with conflicts.

In Bowen v. State, a writ of mandamus was filed by a defense attorney representing a client on trial for Capital Murder.  A principal witness in the case against his client was a jailhouse informant who happened to also be a former client of the defense attorney.  The State moved to disqualify the attorney arguing that his ability to cross-examine his former client would be hampered because of the past representation.  At a hearing on the State’s motion to disqualify, the attorney introduced into the record signed written waivers from both his client on trial for capital murder and the witness whom he formally represented.  The trial court granted the State’s motion to disqualify the attorney.

The Court primarily looked to the Sixth Amendment as addressed by the Supreme Court in Wheat v. United States, 486 U.S. 153 (1988).  In Wheat, the Court emphasized the question of whether or not an actual conflict exists.  The Court held that trial courts must, “recognize a presumption in favor of [a defendant’s] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Id. at 164.  In absence of an actual conflict, the court gives great weight to a waiver.

The Court in the Bowen case held that the decision to disqualify the attorney was a clear interference with the defendant’s Sixth Amendment right to counsel and that there had been no evidence of the existence of an actual conflict.  Ultimately, the Court held that the waiver that had been signed was sufficient in this case to preclude disqualification of the attorney.

It is a “must” in the defense world to obtain waivers when facing potential conflicts of interest.  Even in a Capital Murder case, a waiver can be effective to disclaim the conflict.  This case does not make waivers the "end-all, be-all," but it does show the legal world that the court will give great deference to waivers and a defendant’s Sixth Amendment right to the counsel of their choice.

In lieu of a post on an obscure Texas law this week, I have a bizarre story for you. This is a true story about something that happened to a coworker of mine in Washington DC this past week. I’m trying to convince her to write something about it for the Washington Post, but she doesn’t think it’s newsworthy. I disagree simply because it is so crazy and bizarre (and funny to everyone but her). So here goes.

My coworker, we’ll call her Lindsay, is a Marine officer and lawyer. Lindsay lives alone in a basement apartment in a, how should we say it, not-so-well-to-do section of Washington DC. She calls it a “transitional community.” On Monday morning, Lindsay woke up, got dressed, put on a pot of coffee and plugged her cell phone into her computer that was on the coffee table in the living room. Then she noticed a package waiting for her outside her front door. Lindsay went outside to get the package and did not lock the front door when she came back in. After all, who needs to lock the front door when they are about to walk right back out of it in 10 minutes to go to work?

Lindsay then went back to her bathroom to tie her hair into a neatly shaped bun, a daily requirement for female Marines (those with long hair at least). When she returned to her living room (only 10 minutes later) to retrieve her piping hot cup of Joe she went to grab her cell phone and found that it was missing. Not only that, the computer to which she had just plugged it in was also missing. Knowing good and well that her coffee had not yet begun to take the desired effect, Lindsay began questioning whether she had actually plugged her phone into her computer 10 minutes ago. “Was this the early onset of Alzheimer’s?” she thought as she checked the refrigerator and freezer for her computer and phone. Finally, after scouring the house, she gave up and went to work.

Lindsay told me about her troubles as soon as she walked in the door to our Pentagon office and then she called her bank and credit card company. Believing now that someone had entered her house and stolen her laptop and phone, she also tried to report the incident to the DC police, but they refused to take the complaint. “You have to be calling us from inside your home or we cannot do anything.” She protested by kindly pointing out that the perpetrator had stolen her phone, but they weren’t convinced.

Right about now you might be thinking, “Okay, so what? She was burglarized. What’s so crazy about that?” Well here’s the crazy (and ridiculously lucky) part of the story. About an hour after she got to work, Lindsay received an odd message. Someone had called our office to report that she was in possession of Lindsay’s computer and cell phone. Lindsay called the woman who confirmed that she indeed had the laptop and cell phone and they arranged a time and place to meet up. When Lindsay met the woman she received the rest of the story.

This woman (the one that found the laptop and phone) was walking to work near the Washington Navy Yard when she saw a little homeless man walking down the street carrying a laptop and an iPhone. In fact, the iPhone was still plugged into the computer.  Finding the Apple-laden homeless man a bit out of place, the woman approached the him and said “Hey, I don’t think that laptop and cell phone belong to you. How about I buy you some breakfast at McDonald’s and you give me the laptop and cell phone so that I can return them to their rightful owner.” (After all, what’s a MacBook Pro when you can have a tasty egg McMuffin, right?) The homeless man agreed, enjoyed a McDonald’s breakfast and promptly relinquished the contraband items.

Later Lindsay paid the kind woman back for the homeless man’s breakfast and thanked her for stepping in. She is still pretty “creeped-out” as she puts it, that a random homeless man just let himself into her apartment while she was in the back room, but she has learned a valuable lesson about locking the door behind her. As Lindsay told us the story while we went for a jog around Capitol Hill, we wondered whether we would stop a homeless man to ask where he got a laptop/phone. We’re not sure we would have done that, but Lindsay sure is glad someone did.

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District (Fort Worth Court of Appeals) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

As I was perusing my typical news sources this morning, I came across this article about a Tarrant County juror who was excused from a civil case and then charged with contempt for trying to "friend" the defendant in the case on Facebook.  That's the world in which we live, I suppose.  Everything is real-time, social media is pervasive, and folks are indiscriminate about what they do online.  It has already been and will continue to be interesting to see how the trial judges tackle this issue in their instructions to venire panels.  It is probably prudent to have a standard Facebook jury instruction.