By Clinton Morgan
Assistant District Attorney in Harris County
Brady evidence can show up in the darnedest places. We can turn over what we have, and we can tell law enforcement agencies to do the same, but there’s always a realm of unknowns beyond our control.
For instance, unbeknownst to prosecutors, shortly before Lesley Diamond’s DWI trial, a report was misfiled at the lab where her blood was tested. This irregularity was unrelated to Diamond’s case and did not implicate the integrity, skill, or knowledge of the analyst who tested Diamond’s blood, but the analyst’s supervisor removed her from casework shortly before she testified at Diamond’s trial. The analyst believed she had been reassigned to document the misfiled report, but her supervisor later testified he lost faith in her abilities to do casework.
Is that Brady evidence that requires reversal if it is not disclosed?
In Diamond v. State,[1] the Court of Criminal Appeals provides a good example of how prosecutors and courts should approach situations like this. The focus should be on creating a record that establishes the facts at issue—including credibility determinations—and on the logical connection between those facts and the defendant’s trial. After the trial court found the worst allegations not credible and the Court of Criminal Appeals found the remaining evidence immaterial, Diamond’s DWI conviction was upheld.
Diamond’s DWI and the analyst’s self-reporting
The central characters here show contrasting examples of accepting responsibility for mistakes.
The facts of Diamond’s intoxicated driving were well developed and not seriously controverted. When an officer tried to pull her over for speeding, she took a long time to stop and made several unsafe lane changes. She was unbalanced and disoriented. She had an open can of beer in the car. She had glassy eyes and slurred speech. She couldn’t remember where she was coming from. She exhibited several clues on the sobriety field tests.
At the lab, Andrea Gooden analyzed Diamond’s blood sample and found a BAC of .193. At no time was the accuracy of this result questioned. But around the time Gooden analyzed Diamond’s blood, she took part in a chain of events that led to a report about a different blood sample being submitted in the wrong case. An officer had submitted a blood sample for a defendant named Hurtado, but he wrote the wrong incident number on it. Another analyst requested that the officer correct the form. Gooden, consistent with lab policy, analyzed the blood and set it aside.
A month later, the officer still had not corrected the form, but Gooden inadvertently signed a certificate of analysis for the Hurtado blood sample that still had the wrong incident number. Her supervisor, William Arnold, failed to notice this error and approved the report. The test results were entered into the lab’s data management system under a case where there was no blood evidence.
A few weeks before Diamond’s trial, Analyst Gooden noticed the error and reported it to her supervisor, Arnold. Arnold told her to stop casework and instead write a memo about the Hurtado incident. After she submitted her memo, Arnold told her she could not return to casework until others in the chain of command reviewed the memo. Gooden believed her reassignment was exclusively about documenting the Hurtado report.
Supervisor Arnold did not contact prosecutors about any of this. While Gooden was reassigned from casework, she testified at Diamond’s trial.
A couple of weeks after trial, Analyst Gooden emailed her supervisor expressing concern that nothing had been done about the Hurtado report and about the fact she was still removed from lab work. Supervisor Arnold told her he was keeping her removed from lab work because he watched her testify at Diamond’s trial and she needed to work on her skill as an expert witness.
The next month, Gooden self-reported the Hurtado incident to the Texas Forensic Science Commission (TFSC). After this self-report, her supervisor wrote a memo claiming he had removed Gooden from lab work because of the incorrectly entered report and because he was concerned about her skills and knowledge base. The TFSC, as well as the City of Houston’s Office of Inspector General (OIG), eventually issued reports on the Hurtado incident that faulted Supervisor Arnold, not Analyst Gooden. The TFSC specifically faulted him for withholding information from prosecutors and not properly documenting incidents at the lab.
Habeas proceedings and appeal
DWI defendant Diamond learned of the Hurtado incident well after her trial and petitioned for habeas relief. She alleged the State had withheld impeachment information about the analyst, Gooden, that the State failed to disclose the Hurtado incident, and that at the time of Gooden’s testimony, she was suspended from lab work because of her supervisor’s doubts about her competence.
Gooden and Arnold both testified at the habeas hearing, and the trial court received the OIG and TFSC reports. The trial court denied relief and issued 16 pages of findings and conclusions. It found that Analyst Gooden was not actually suspended from lab work at the time of her testimony, and Supervisor Arnold’s post hoc explanation that he suspended Gooden over concern about her competence was not credible. The trial court found that there was no evidence of any lab errors in Diamond’s case, and it also found evidence of the Hurtado incident was not material because it did not undermine Gooden’s credibility or the veracity of her results.
After originally affirming the trial court, the Fourteenth Court granted rehearing and reversed.[2] To find a Brady violation, a court must find undisclosed evidence was favorable to the defendant and material to the result of the case. The Fourteenth Court found the Hurtado incident would have been admissible to undermine the analyst’s qualifications. It did not matter whether Gooden was “suspended,” “under suspension,” or merely “removed from casework”— the Hurtado incident would have made for “painful cross examination.” Finally, it held the evidence was material because Gooden’s testimony was the only evidence that showed Diamond’s BAC was .15 or greater, which was necessary for her conviction of Class A DWI.
Justice Donovan dissented. He argued that, deferring to the trial court’s findings that Gooden’s removal from casework was unrelated to her skills or knowledge, there was “no logical connection” between the Hurtado incident and Gooden’s analysis or testimony here.[3]
Deference and relevance
In an opinion by Judge Newell, a unanimous Court of Criminal Appeals reversed the Fourteenth Court and affirmed the trial court’s denial of relief. The opinion is based on deference to the trial court’s findings and a focus on the logical relevance of the supposed Brady evidence.
Judge Newell began the analysis part of the opinion by focusing on deference. Generally, there are two types of post-conviction writs. Art. 11.07 writs are the vehicle defendants use to complain about felony convictions that resulted in prison sentences. In those writs, the trial court makes recommended findings, but the CCA is the ultimate factfinder.
In contrast, Art. 11.09 writs—filed after misdemeanor convictions that included jail sentences—and Art. 11.072 writs—filed after a conviction where the only punishment was probation—are litigated in the trial court. In those cases, the trial court is the ultimate factfinder, and appellate courts and even the CCA must defer to the trial court’s findings. Diamond’s case was a trial-court writ;[4] thus, the Fourteenth Court and CCA were not free to disregard the trial court’s findings or credibility determinations that were supported by the record.
Once the CCA deferred to the trial court’s determination that Supervisor Arnold was not credible when he said Analyst Gooden was suspended due to competence issues, the supposed Brady evidence looked a lot less material.[5] All that was left was that Gooden once accidentally certified in another case a report that someone else had mislabeled, but then she reported the error as soon as she realized it.
Giving deference to the trial court’s findings, Judge Newell held this was not material. First, the record showed a proper chain of custody for Diamond’s blood, and there was no evidence Gooden or anyone else made an error in this case.[6] Second, the Hurtado error did not undermine Gooden’s credibility as an analyst. It was a “protocol error” caused by someone else mislabeling a sample. Judge Newell pointed out that even in the Hurtado incident, no one questioned the accuracy of Gooden’s analysis. The Hurtado error was “a one-time incident in an unrelated case” that did not implicate the work Gooden did in Diamond’s case.
Based on the overwhelming evidence of Diamond’s intoxication and the fact that the credible evidence did not undermine the analyst’s testimony, the CCA held the supposed Brady evidence was not material and Diamond’s conviction should stand.
Relevance and credibility are key
The clearest takeaway here is that the lab director could have saved the judicial system an enormous amount of time—days of writ hearings and years of appeals—by disclosing this minor incident in a timely manner. The prosecutor could have told defense counsel and the trial court prior to trial, and, as later rulings show, the trial court would have declared it irrelevant. But prosecutors don’t always get every bit of information they need on every case.
When we get delayed disclosures that result in Brady claims, even the most minor issue can sound pretty bad. Here, Diamond’s claim could be phrased: “The State withheld the fact that its expert witness was unqualified and had been suspended due to incompetence.” The Fourteenth Court majority got a little caught up in that narrative.
This case illustrates the importance of staying calm and focusing on the facts adduced at a hearing—if the trial court found the testimony supporting a fact isn’t credible, it’s not a fact. And it also shows the importance of focusing on the specific logical relevance of the facts. Here, the Fourteenth Court focused on the general fact that Analyst Gooden made an error, but the CCA focused on the specific nature of that error and how it related to this case.
Everybody makes mistakes. As law enforcement agencies get better at documenting those mistakes, and as our cases involve an increasing number of expert witnesses, claims like this will become more common. Defense lawyers will claim that the relationship between analyst mistakes and defendants is like that between bells and angels—every time an analyst makes a mistake, a defendant gets his wings. Diamond shows how the State can keep that from being so.
Endnotes
[1] ___ S.W.3d ___, No. PD-1299-19, 2020 WL 3067582 (Tex. Crim. App. June 10, 2020).
[2] Diamond v. State, 561 S.W.3d 288 (Tex. App.—Houston [14th Dist.] 2018). The basis for rehearing is a peculiar side note to this case. Although Diamond’s trial was for Class A DWI, based on her BAC of .15 or greater, the judgment incorrectly said she was convicted of Class B DWI. On original submission, the Fourteenth Court held the impeachment evidence about Analyst Gooden was immaterial because the evidence of intoxication was strong and Gooden’s testimony was relevant only to the .15 element, which was not part of the judgment. Diamond filed a motion nunc pro tunc in the trial court to correct the judgment to show a conviction for Class A DWI, which the trial court granted. Diamond moved for rehearing in the Fourteenth Court, arguing that because her conviction was now for a Class A, she could show the impeachment evidence was material.
I was involved in this case for a hot minute. After a colleague won on original submission, I lost on Diamond’s motion for rehearing, and then, for good measure, lost again on my own motion for rehearing. Another colleague won in the Court of Criminal Appeals. It does not bother me that the only result of years of litigation is that Diamond’s criminal history now correctly shows the Class A conviction.
[3] Id. at 299-304 (Donovan, J., dissenting).
[4] The CCA’s opinion describes the case as an 11.072 writ. Diamond, 2020 WL 3067582 at *7. But Diamond received a small jail sentence so this was actually an 11.09 writ. For purposes of deference, however, there is no difference.
[5] Judge Newell pointed out that the trial court’s credibility determination was not just a personal feeling but had support in the record. The Texas Forensic Science Commission found Supervisor Arnold, not Analyst Gooden, negligent, and “all interviewees participating in the TFSC’s investigation believed Gooden to be a competent analyst who was unfairly blamed for the reporting error in the Hurtado case.” Diamond, 2020 WL 3067852 at *9.
[6] Judge Newell began the opinion: “Andrea Gooden was a laboratory technician who, as everyone seems to agree, properly analyzed Appellant’s blood for alcohol content in this case.” Id. at *1.