Are You Gonna Make Me Beg?

Hawkins said all prosecutors were notified Jan. 28 there was “potential
Brady material,” meaning defendants and their lawyers must be told of
the investigation into Wick if they make requests for evidence
favorable to their clients.

District Attorney Flags Officer’s DWI Cases, Houston Chronicle April 8, 2009.

Really? That’s what “Brady material” means, we have to be told if we ask?

Because for some reason I thought that the State had an obligation to reveal exculpatory and impeachment information, if not under Brady v. Maryland and its progeny then under Texas Disciplinary Rule of Professional Conduct 3.09(d).

0 responses to “Are You Gonna Make Me Beg?”

  1. Mark, FYI– the reporter spoke about Brady and then gave the textbook definition of Brady– that was not a direct quote from the DA’s Office. There is an ongoing obligation by the State to disclose Brady evidence as soon as they identify it as such.

  2. So what textbook defines Brady material as material that has to be asked for? The Henry Wade Prosecutor’s Manual?

  3. Having seen the Chronicle’s handiwork, I’m pretty sure Bill was misquoted here. But on the face of it your indignation is quite justified, Mark. Yikes! Anyone should know no request is required. In fact, as a prosecutor we would often poke fun at defense attorneys who filed those “Request For Evidence Favorable to the Accused” for wasting paper.

  4. I guess the legal system is only handing over justice to the people who ask for it these days. But you have to say “pretty please,” when you do.

  5. “After giving conflicting stories, Banks confessed Monday that he shot Vogt to steal his car, said Harris County prosecutor Connie Spence.” Houston Chronicle, 4/12/09

    3.09 Special Responsibilities of a Prosecutor

    (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

    3.07 Trial Publicity

    (a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

    (b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:

    (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that persons refusal or failure to make a statement;
    But, it’s Harris County and the rules do not apply to Assistant District Attorneys

  6. I tried a DWI in County Court 8 several weeks ago. The ADA trying the case contacted me a week or so before trial to inform of the allegations against the officer. He also had a motion in limine regarding any mention of the accusations. What was weird is that the officer in question did testify at trial, but in civilian clothes, not a uniform. And the DA did sort of gloss over his work history and training. He turned out to be a great witness -but for us, not the State.

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