No Post-Conviction Duty to Turn Over Brady Material

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By Lance J. Rogers

Dec. 6 — The Texas disciplinary rule requiring prosecutors to timely disclose exculpatory evidence doesn’t apply if the evidence surfaces after the defendant has already been convicted, the Texas Court of Appeals, 14th District, ruled Nov. 29 ( Comm’n for Lawyers Discipline v. Hanna , 2016 BL 394870, Tex. App., 14th Dist., No. 14-15-00931-CV, 11/29/16 ).

The American Bar Association amended Model Rule 3.8 in 2008 to explicitly impose on prosecutors a duty to disclose evidence learned post-conviction. But most states don’t have a comparable provision and there’s no post-conviction constitutional duty to divulge either.

Justice Delayed

The state bar contended that a county district attorney and one of his assistants violated Texas Disciplinary Rule of Professional Conduct 3.09(d) because they waited nearly a year before notifying Jacob Estrada that the state forensic chemist who tested the evidence used to convict Estrada admitted to falsifying results in dozens of cases.

The court tossed the charges, ruling that a prosecutor’s obligation under the rule ends once the trial is over.

For one thing, the rule only refers to the rights of an “accused,” which is commonly understood to refer to someone who has been blamed with wrongdoing—not someone who already has been convicted, Justice William J. Boyce said in his opinion for the court.

The court also noted that there is a “dearth of caselaw” applying Rule 3.09(d) in the post-conviction context and that the Texas rule was modeled on the ABA rule before it was amended to include post-conviction responsibilities.

The Texas legislature amended Tex. Code Crim. Proc. Ann. art. 39.14(h) to require prosecutors in all cases initiated after Jan. 1, 2014, to disclose exculpatory information learned post-conviction.

Justices Tracy E. Christopher and Martha Hill Jamison were also on the panel.

The Office of the Chief Disciplinary Counsel, Austin, Tex., represented the commission. Hasley Scarano LLP, Houston, represented the prosecutors.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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