Whitmire: End secret state bar sanctions for withholding exculpatory evidence

State Senate Criminal Justice Committee Chairman John Whitmire filed legislation yesterday - SB 825 - that would disallow the state bar from issuing private reprimands to prosecutors who withhold exculpatory evidence from the defense. It would also cause the statute of limitations for state bar grievances alleging Brady violations (withholding exculpatory evidence) in exoneration cases to begin tolling when an exoneree leaves prison. At the Texas Tribune, Brandi Grissom quoted the head of the prosecutors' association saying DA's would likely not oppose the bill:

Polk County district attorney Lee Hon, president of the Texas District and County Attorneys Association, said most prosecutors would likely not oppose Whitmire's bill.

"Texas prosecutors are willing to discuss adjustments to the bar grievance statute of limitations where Brady violations are implicated," Hon wrote in an email. "We understand that given the nature of the non-disclosure, discovery of a Brady violation might sometimes be hard to find. At the same time, the reason that you have statutes of limitations for both criminal offenses and civil causes of action is that there comes a point in time when the ability of the person accused of the violation to defend the claim becomes significantly compromised due to the passage of time."

Chuck Lindell at the Austin Statesman noted that the bill in particular would clarify the state bar's authority to pursue its grievance against Williamson County District Judge Ken Anderson, who was the lead prosecutor in the Michael Morton case:

A state bar disciplinary committee, acting on its own initiative after news reports of Morton’s exoneration, filed a lawsuit last October accusing Anderson of violating his duty as a prosecutor by withholding evidence that could have supported Morton’s contention that an unknown intruder killed his wife.

If the accusations are upheld after a future civil trial, Anderson could be reprimanded, disbarred or temporarily lose his law license.

Anderson’s lawyers have challenged the lawsuit on several grounds, including a claim that the statute of limitations bars filing a grievance tied to the now-murky events of a quarter-century ago.

The state bar’s lawsuit is separate from a court of inquiry that convened earlier this month to examine allegations that Anderson violated state law in his handling of the Morton case. A decision in that proceeding is not expected until April at the earliest.

Morton called Whitmire’s legislation an important step in ensuring justice.

“As long as somebody is in prison as a result of fraudulent or illegal activity from an overzealous prosecutor, they shouldn’t have their ability to have their day in court taken from them,” Morton said in a statement released by the senator’s office.

Chairman Whitmire's legislation is a big improvement over current law, particularly the part eliminating secret, "private" reprimands for Brady violations by prosecutors.

On the question of when the four-year statute of limitations begins tolling, the bill would impact cases like Michael Morton's or Anthony Graves' where the defendant is finally exonerated, but that's just a small subset of Brady violations. After all, exonerations are much more rare than false convictions. The majority of Texas' exonerations have stemmed from post-conviction DNA testing. But biological evidence only exists in 10% or so of violent crimes and in many older cases it was long ago destroyed. Exonerees like Morton who actually win their freedom represent just a fraction of false convictions, but the act of prosecutors withholding exculpatory evidence should be punished whenever it arises.

Grits would prefer the statute of limitations on Brady grievances began tolling for all cases at the time the defense learns of the withheld, exculpatory evidence, whether the person is exonerated or not. But there are enough cases of Brady violations involving exonerees that the bill would still be a significant first step toward accountability and transparency.

MORE: See an editorial endorsing the bill from the Austin Statesman.