Survey says…

Oh, are there ever some Texas prosecutors with some seriously ruffled feathers after Judge Barbara Hervey of the Texas Court of Criminal Appeals sent out a survey on dealing with Brady issues to prosecutors around the state.

The survey posed a series of hypotheticals and asked prosecutors how they would handle the situation. The correct answer is quite clear when you read the scenario, but many prosecutors, particularly Lee Hon (the Polk County District Attorney) were quite concerned about the survey.

Well of course prosecutors are concerned about the questions. If they did the right thing when confronted with the scenario presented there would be no case to prosecute. And, with no case to prosecute, there would be no big sentence imposed and no nice quotes in the local newspaper. Hell, if the prosecutor worked for Pat Lykos in Harris County there might be no bowling on Friday afternoon.

Here are the hypotheticals from the survey.

Scenario 1: Police converse with murder suspect 30 times, recording each conversation. The defendant confesses to the crime, and the entire case is built around that confession. Police do not reveal tapes despite the defense that the suspect was coerced. A few days after conviction, in a casual meeting with the arresting police agency, you are asked if your office “needs” the tapes. What do you do? 

Scenario 2: In a capital-murder case, you discover that the slain officer was under the influence of drugs at the time of the offense. Part of the defense involves the relationship, through drug connections, between the officer and the defendant. The State has corroborating evidence to support this alleged relationship. Do you inform the defense? 

Scenario 3: A complainant dies before trial. The State’s case would heavily rely on the complainant’s testimony. Do you inform the defense? Discuss. 

Scenario 4: Local crime lab establishes new protocols. Do you share this information with the defense? 

Scenario 5: Lab technician fails to test five rape kits, but his reports indicate that the kits were examined and implicate five defendants. Ultimately the fact of this lab malfeasance is disclosed to the defense. That same technician conducted tests on 500 other rape kits. Do you give notice to defendants in those cases? Retest? Discuss.

Seriously, you mean a prosecutor might need to listen to tapes that might provide evidence that a confession was coerced? Of course the bigger question is why the tapes weren’t produced to the defense prior to trial.

Scenario 3 shows up in various shades every day in courthouses around the country. Most commonly in domestic violence cases when the complaining witness either isn’t talking to prosecutors or has vanished. Prosecutors just love playing the bluffing game. I once had a prosecutor offer my client time served on a DWI with a breath test of .15. When my client said no thanks, the prosecutor dismissed the case because the arresting officer couldn’t be bothered to show up in court that morning.

And doesn’t Scenario 5 look just a little bit familiar?

Troubling questions indeed.

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