The Texas Prosecutor, July-August 2017, Volume 47, No. 4

A new tool in the disclosure toolkit

Please allow us to introduce the Harris County District Attorney’s Office disclosure database.

Every Texas prosecutor has the legal, statutory, and ethical duty to timely disclose to the defense any and all favorable information, items, and evidence that the State possesses, under both the tenets of Brady v. Maryland and its progeny; Texas Code of Criminal Procedure Article 39.14(h) and (k); and Texas Disciplinary Rules of Professional Conduct 3.04(a) and 3.09(d). Further, an individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in a case, including the police. The U.S. Supreme Court has explained that prosecution offices can meet this responsibility by establishing “procedures and regulations ... to insure communication of all relevant information on each case to every lawyer who deals with it.”
    To meet this goal, the Harris County District Attorney’s Office has created and maintains an electronic disclosure database, which serves as an enduring, centralized storehouse of information about recurring government witnesses that is potentially favorable to an accused and therefore may need to be disclosed to the defense.
    Among other things, creating a database of institutional Brady knowledge addresses the consequences that arise when employees leave the office, taking some or all of the Brady information concerning recurring government witnesses, which they have personally learned or acquired over their tenure, out the door. Future prosecutors are deemed to have imputed knowledge of that now-departed Brady information, regardless of whether that information was passed on to other members of the prosecution team before the employees left. Hence, by creating and maintaining an electronic database of the information, our office can ensure that current and future prosecutors who need access to the office’s entire wealth of known, potential Brady information about these recurring witnesses have this information for their use in seeking justice.
    Though an electronic database like ours is certainly not the only way in which a prosecution office can ensure that its prosecutors have access to potentially favorable Brady information on recurring government witnesses that may be subject to disclosure—after all, there’s really no wrong way to compile information or to disclose it, so long as full and accurate disclosure is made when necessary—the database may serve as a helpful model or at least an example of how one large Texas county is tackling the issue.
    
What information is in the database?
As discussed above, our database compiles potential Brady information about recurring government witnesses that may be favorable to the defense and may therefore need to be disclosed. A “recurring government witness” is any person who may testify on behalf of the State of Texas regularly, such as peace officers, forensic experts, civilian laboratory personnel, probation and parole officers, juvenile detention officers, and jailers. The Disclosure Database Committee (discussed in greater detail later) determines on a case-by-case basis whether a particular individual should be classified as a recurring government witness.
    Our office uses five categories to classify information in the database:
    Category 1: The recurring government witness has a pending or disposed felony or misdemeanor offense, other than a Class C misdemeanor traffic violation, committed at any time, that resulted in a final conviction, deferred adjudication, or pretrial diversion.
    Example: Information that, on October 3, 2010, in Cause No. 123456, in the 226th Criminal District Court of Bexar County, Dr. Bud Wyzer, now employed as an assistant medical examiner in Harris County, was finally convicted of the third-degree felony offense of intoxication assault, committed on or about July 5, 2009.
    Category 2: The recurring government witness is the target of a pending criminal investigation and is aware of the investigation.
    Example: Information that the Public Corruption Division of the Harris County District Attorney’s Office is investigating Houston Police Officer Frank Fourms for the offense of tampering with a governmental record, alleged to have been committed on three separate occasions when Fourms allegedly falsified his offense reports.
    Category 3: A law enforcement or government agency has made administrative findings of untruthfulness or lack of candor on the part of the recurring government witness.
    Example: Information that the Harris County Institute of Forensic Science has made an administrative finding that Dylan Deeinay, a former DNA technician, was untruthful—for falsifying information on a laboratory worksheet—despite that a Harris County grand jury subsequently no-billed him.
    Category 4: The committee has received from any person potential Brady information regarding a recurring government witness’s truthfulness.
    Example: Information from Polly Prossequetor that Polly formed the opinion that Peter Probaytin, a community supervision officer in Harris County, is an untruthful person or has a bad character for truthfulness because Peter was dishonest while testifying in a community-supervision-revocation case that Polly handled.
    Category 5: The committee has determined that a recurring government witness has other potential Brady issues based on misconduct—either on- or off-duty—or performance deficiencies related to his or her area of expertise.
    Example: Information that the Texas Department of Public Safety conducted an internal affairs investigation of Joanna Breth, a technical supervisor responsible for managing and maintaining 10 breath-alcohol instruments, and found that she had performed deficiently in her post for approximately five years before being terminated.
    If the recurring government witness’s alleged conduct is classified under Categories 1, 2, or 3, the database administrator (more about this position later) will automatically input the information about the witness and her alleged conduct in the database. Conversely, if the recurring government witness’s alleged conduct is classified under Categories 4 or 5, the administrator will list the information about the witness and her conduct as “pending” until the committee has voted to officially include or exclude the information. Category 4 or 5 information that is pending a final vote by the committee will still be disclosed to the accused.

Who decides what information is included in the database?
The Disclosure Database Committee in our office meets to discuss potential entries into the database, issues related to mass-disclosures (discussed in greater detail later), as well as other matters concerning database policy, function, and access. Committee members include upper-level prosecutors in the office’s Felony, Juvenile, Misdemeanor, Special Crimes, Appellate, Post-Conviction Writs, Civil Rights, Public Corruption, and Conviction Integrity Divisions, as well as the Chief Investigator and the Disclosure Database Administrator, who serves as chair of the committee. A quorum of six or more members is required for each meeting. A majority vote of the quorum determines inclusion or exclusion from the database, as well as deletion or removal from the database.
    The standard of review that the committee uses to make these determinations is whether the information at issue has any tendency to be favorable to the accused, including to impeach the credibility of the government witness. As a matter of office policy, the committee resolves close questions in favor of inclusion in the database.

Who actually enters information into the database?
To ensure that all information in the database is uniform and consistent, the database administrator, Donna Cameron (a co-author of this article), is the only person who has full access to the database and is authorized to make or delete entries. Donna receives information for potential entry into the database from law enforcement and government agencies,  individual prosecutors and investigators in our office, and prosecutors and investigators in our Civil Rights and Public Corruption Divisions, who, when they become aware of possible Brady information concerning recurring government witnesses or agencies, promptly alert her to information for her review, per office policy.

Who has access to the database?
Our office restricts access to only prosecutors and investigators, who must explicitly agree to the office’s terms and conditions of use. “Using” the database does not mean that prosecutors and investigators have full, unrestricted access to it—only Donna, the administrator, has full access. Instead, prosecutors and investigators are permitted only to query the database for the recurring government witnesses involved in their cases, and they may conduct searches only for purposes of complying with our office’s legal, statutory, and ethical disclosure responsibilities.
    The database is not accessible by defense counsel, defendants, members of the public, or anyone else. Our office’s Information Systems Technology Department is responsible for ensuring that the database is secure and inaccessible by unauthorized persons.

Do law enforcement and government agencies have a role?
Yes. Our office relies on law enforcement and government agencies to conduct internal investigations of officer and employee misconduct, and then to advise us promptly of the results of those investigations. Additionally, our office expects that all law enforcement officers and other recurring government witnesses will disclose potential Brady information—including impeachment information related to off-duty conduct—to the prosecuting attorney before the officers or witnesses serve as affiants or witnesses in any criminal case or matter.
    As a practical matter, because a database of potential Brady information concerning recurring government witnesses and their agencies is only as good as the information that a prosecutor’s office receives, it would be prudent to develop a cooperative, working relationship with all agencies in a jurisdiction regarding this issue. To do so, prosecutors might consider sending each agency a letter or a memorandum of law to explain what information they are seeking; why they are asking for the information, with specific references to the office’s legal, statutory, and ethical disclosure requirements; how the office will categorize the information; how and when information might be removed from the database; and appropriate assurances that the prosecutor’s office will use all reasonable and justifiable means to protect sensitive information, such as by asking the trial court for in camera inspection prior to disclosure, moving for a protective order or a motion to seal following disclosure, and arguing against the admission of any irrelevant or immaterial information or evidence in court. An example of a letter that our office sends to law enforcement and other agencies in our jurisdiction is available at www.tdcaa.com, along with a disclosure checklist that agencies can use when responding to requests for information.
    Because the subject of potential Brady information concerning officers and other government witnesses can be a sensitive matter, cooperative and mutually agreeable relationships with law enforcement and other agencies in a jurisdiction on this issue may take time to develop and will be ongoing and dynamic in nature.

Are the recurring government witnesses given notice that potential Brady information about them may be included in the database?
Yes. If Donna inputs information in the database concerning a recurring government witness for alleged conduct under Categories 1, 2, or 3, our office will provide the witness, as well as the witness’s employer at the time of the conduct—even if the witness has since resigned or been suspended or terminated from that employment—written notice of the category of inclusion and a summary of the allegations.
    For alleged conduct classified under Categories 4 or 5, our office sends notice of potential inclusion into the database to the witness and the witness’s employer at the time of the conduct. Notice in this particular instance provides the witness an opportunity to submit any controverting information to the committee in writing within 20 days. The committee will consider any response or rebuttal when it votes on whether the pending information should be officially included or excluded from the database; however, if the committee votes to include the information in the database, the decision cannot be appealed.

Is inclusion of information in the database a concession of its admissibility?
No. It is critical to note that our office’s disclosure of any information from the database to any party does not constitute a concession that the information actually fits the precepts of Brady or that it is relevant, material, or admissible in court. In fact, there are times when we disclose potential Brady information to the defense but argue strenuously against its admission, its further disclosure to other third parties or the public, or both.
    Further, it is also important to mention that the mere fact that a recurring government witness has been added to the database is not an admission or comment by our office about that individual’s credibility as a recurring government witness, on his reputation, or on his ability to serve in his current professional capacity. Similarly, a recurring government witness’s inclusion in the database also does not signify that we have concluded that person has actually committed misconduct.

Is information ever removed or deleted from the database?
Yes. A recurring government witness may petition the committee for removal from the database with proof of a change in the status or disposition of his administrative findings or criminal charges. Except as provided below, a recurring government witness may be removed from the database upon exoneration; acquittal; a grand jury’s no-bill; a grand jury’s decision to take no action; or circumstances under which the allegations against the witness are found to be unsubstantiated, unsupported, unjustified, unproven, unverifiable, or overruled by administrative or court action.
    Exceptions to removal from the database may occur in circumstances where the conduct of a recurring government witness tends to reflect negatively on his truthfulness or credibility or when the allegation in the exonerated or acquitted charge has nevertheless been sustained administratively.

How is sensitive or confidential information in the database protected?
Information in the database may be sensitive and require protection during disclosure for a variety of reasons. First, the information compiled in the database is an internal record prepared by our office in anticipation of or in the course of preparing for criminal litigation, and it reflects the mental impressions or legal reasoning of the attorney representing the State. Accordingly, the database entries—which are predominately summaries of information and documents that law enforcement and other agencies supply—are privileged work product, which our office seeks to protect from fishing expeditions and other broad, unspecific requests for disclosure.
    Second, the database may contain information that is related to an ongoing grand jury matter or a preliminary administrative investigation, or that is otherwise confidential by law or protected from public disclosure by statute. Finally, there can be legitimate privacy concerns over information about recurring government witnesses in the database, given that the release of information pertaining to preliminary-stage criminal and administrative investigations may subject the recurring government witnesses to unnecessary public criticism and unwarranted impeachment. Because of these concerns, our office requires that prosecutors employ all reasonable, prudent, and case-appropriate measures to protect the confidentiality of database information during disclosure to the accused, such as by filing and obtaining a court ruling on a motion for in camera inspection, motion for protective order, motion in limine, or motion to seal.

How is disclosure made when a large number of cases may be affected by misconduct?
Sometimes an event, incident, or condition related to an individual witness or to an entire law enforcement or government agency requires our “mass” disclosure of the potential Brady information to a multitude of potentially affected defendants, as opposed to disclosure in an individual case by the trial prosecutor. For example, mass-disclosure-triggering events in a jurisdiction may include the application of different standards for DNA mixture calculations due to scientific advancements; the widespread destruction of evidence in a law enforcement agency’s property room without court orders; the discovery that a law enforcement agency lacks a required legal policy, such as one for vehicle inventory; and alleged false testimony given by an expert witness who has testified in a large number of cases.
    Our office requires that an individual who or agency that becomes aware of information that may require mass disclosure must convey that information to the database administrator or our office’s chief investigator, who will bring the matter to the attention of the committee. The committee will then expeditiously review the information and make a recommendation as to whether mass disclosure is necessary. If the committee votes that mass disclosure is required and the elected district attorney concurs, the chief of the Conviction Integrity Division is responsible for drafting and disseminating mass-disclosure notices to the rest of the office; affected unrepresented defendants; current defense attorneys of record and, when deemed appropriate by the district attorney, the last-known attorneys of record on the affected disposed cases; the Harris County Public Defender’s Office; the Harris County Criminal Lawyers Association; the Office of Capital and Forensic Writs; and the Texas Forensic Science Commission. Additionally, the Conviction Integrity Division will maintain a record of all mass-disclosure notifications issued, including the parties notified and the details of the disclosures provided.

Conclusion
An electronic database for potential Brady information regarding recurring government witnesses, like our office’s disclosure database, is neither legally required nor the exclusive means by which a prosecution office can keep track of information for its prosecutors’ use when making their legally, statutorily, and ethically required disclosures to the accused. It is also very important to note that such a database will not alter prosecutors’ discovery obligations under Article 39.14(a); absolve prosecutors of their ongoing legal, statutory, and ethical obligations to disclose information favorable to the defense concerning people and evidence not yet in the database or who may not be included in the database at all—such as civilian complainants and witnesses, confidential informants, and jailhouse informants—or eliminate the need for prosecutors to have open and candid conversations with all of the witnesses in their cases concerning potential Brady information about those witnesses that may be favorable to the defense and, so, may need to be disclosed.
    However, despite these caveats, a centralized electronic disclosure database could serve as a useful, time-saving tool to aid prosecutors with their seemingly ever-increasing and potentially onerous discovery and disclosure burdens, and it might be worth considering for your office. For us, the database is the product of a lot of work by both our office and the law enforcement and other agencies in our jurisdiction, and, though it will always be a work in progress as we strive for full and transparent justice for all, we at the Harris County District Attorney’s Office are proud of it.

Endnotes

1  Information or evidence is favorable to the accused when it is: 1) exculpatory—tending to justify, excuse, or clear the defendant from guilt; 2) useful for impeachment—anything offered to dispute, disparage, deny, or contradict; or 3) mitigating—useful to the defense during punishment proceedings. See Little v. State, 991 S.W.2d 864, 866-67 (Tex. Crim. App. 1999), see also Banks v. Dretke, 540 U.S.668, 702 (2004)(explaining that prosecutors are obligated to disclose mitigating punishment evidence, such as a State’s witness’s status as an informant).

2  373 U.S. 83 (1963).

3  Kyles v. Whitley, 514 U.S. 419, 437-38 (1995).

4  Giglio v. United States, 405 U.S. 150, 154 (1972).

5  As explained later in greater detail, a “recurring government witness” is any person who may testify on behalf of the State of Texas on a regular basis.

6  For purposes of the Brady doctrine, knowledge of favorable and material evidence is imputed to the prosecutor trying a case when the evidence is possessed by or known of by any member of the prosecution team—including law enforcement officers and employees of the prosecutor’s office—even when that individual prosecutor does not have actual knowledge that that evidence exists. See Kyles, 514 U.S. at 437; Giglio, 405 U.S. at 153-55. Unlike under the Brady doctrine, Ethics Rule 3.09(d) is triggered only when the prosecutor has actual knowledge of the favorable information or evidence. See Schultz v. The Board of Disciplinary Appeals, No. 55649 (Tex. Dec. 17, 2015), at *10 (explaining that, “unlike Brady, Rule 3.09(d) limits the information to that actually known by the prosecutor,” but cautioning that “under the disciplinary rules, actual knowledge may be inferred from circumstances”).

7  Please note that this and the other examples provided are intended to be hypothetical and any similarity to any actual persons or the names of any actual persons is purely coincidental.

8  The committee chair is responsible for creating meeting agendas, record keeping, updating the disposition of criminal and administrative actions pending against recurring government witnesses, facilitating recurring government witnesses’ notices and responses, and making all entries and deletions to the database upon committee approval.

9  See generally Tex. Gov’t Code §552.108(a)(4), (b)(3).

10  See, e.g., Tex. Code Crim. Proc. Art. 20.02 (regarding grand jury secrecy); Tex. Loc. Gov’t Code §143.1214(b) (providing that, in municipalities with a population of 1.5 million or more people, a police department may release information in the department’s investigatory files for disciplinary actions against police officers only to another law enforcement agency or the office of a district or United States attorney).

11  “Subject to the restrictions provided by §264.408, Family Code, and Art. 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the State shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the State in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the State or any person under contract with the State. The State may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the State. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.”  Tex. Code Crim. Proc. Art. 39.14(a).