New Disciplinary Rule OKd for 'Brady' Violations

, Texas Lawyer

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Criticism from lawmakers, top attorney discipline officials and criminal-justice advocates has encouraged the Texas Supreme Court to loosen a rule governing when the wrongfully imprisoned can pursue grievances against prosecutors who they allege suppressed evidence.

The court first revised Texas Rule of Disciplinary Procedure (TRDP) 15.06 in October 2013 to comply with Senate Bill 825.

SB 825 required the Supreme Court to change the procedural rules to toll the statute of limitations for a wrongfully convicted person to file a grievance against a prosecutor who allegedly violated disciplinary rules about disclosing evidence.

Although the bill didn't call for the court to do so, the justices at the same time revised the existing tolling provision in TRDP 15.06, striking a requirement for "fraud or concealment" for tolling and replacing it with "the doctrine of fraudulent concealment."

But 10 public comments all complained that the new evidence-suppression tolling provision was too narrow because it required the evidence suppression to have "resulted in" the wrongful imprisonment. Comments said that having to show causation between the evidence violation and wrongful conviction would burden wrongfully imprisoned people and allow prosecutors to escape discipline.

"They gave it an extra hurdle for the person to have to climb. That was not the intent of the legislation," said Rep. Senfronia Thompson, D-Houston, the house sponsor of SB 825.

Responding to the public comments, the Supreme Court on Jan. 15 issued a "corrected" rule that broadens the tolling provision to any violation of disclosure rule that happened in a prosecution ending in wrongful imprisonment. Due to concern from attorney disciplinary leaders, the corrected rule also reverts to the old language for the "fraud or concealment" tolling provision.

"Public comments are always taken very seriously," said Texas Supreme Court Chief Justice Nathan Hecht. "They made the point that the legislation ... could be reasonably read differently, and of course, when we're trying to implement a statute, we're trying to do what the legislation intends."

Both Thompson and SB 825's author, Sen. John Whitmire, D-Houston, said they appreciate the Supreme Court's revision. They wrote a letter to the court to express concerns and suggest a change. The court implemented their suggestion exactly.

"I appreciate their concurrence. I appreciate their understanding of our legislative intent, and I think it's a very good statute, and I hope it sends a strong message," said Whitmire: "Do your job right. Seek justice. And don't violate the Brady rule."

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