Discovery Bill Vote Comes on Brady Anniversary

Clinton Bamberger lost the most important case of his career, but most legal experts consider that 1963 U.S. Supreme Court decision a crucial victory for criminal justice.

“Everybody thinks I won it,” said Bamberger, 87, now a professor emeritus of law at the University of Maryland. He represented John L. Brady, a death row inmate, in Brady v. Maryland, in which the justices ruled that prosecutors are obligated to provide defendants exculpatory evidence “material either to guilt or to punishment.”

On Monday, the 50th anniversary of the decision, the Texas House is scheduled to vote on Senate Bill 1611, a bill that some legal experts say would help to ensure that the ruling’s tenets are carried out to help prevent wrongful convictions.

“Texas was way behind,” said Barry Scheck, a co-founder of the Innocence Project, an organization dedicated to exonerating wrongfully convicted prisoners. “This bill is a pretty big step forward.”

The bill, known as the Michael Morton Act, is named for Scheck’s highest-profile Texas client. Morton was convicted in 1987 of his wife’s murder, and spent more than two decades in prison before being exonerated on the basis of DNA testing.

The bill would require prosecutors to disclose evidence in their files to defendants accused in criminal cases. Lawmakers and experts said they hoped the legislation would clear up gray areas that remain in the Brady ruling five decades after it was issued.

In defending Brady, Bamberger said, he just hoped to save the prisoner’s life.

Brady and a friend, Donald Boblit, were sentenced to death for the 1958 murder of William Brooks. In questioning by the police, Brady consistently said that Boblit was the killer. Boblit gave five different statements, and Bamberger discovered that only four were given to Brady’s lawyers during the trial. In the fifth statement, Boblit admitted guilt.

When Brady appealed his conviction, a Maryland court said he should have received that fifth statement and granted him a new trial, but only to decide his punishment. Bamberger asked the Supreme Court to give Brady a new trial to decide both guilt and punishment. The court denied the request for a trial but allowed a decision on his punishment. Eventually, the sentence was commuted to life, and Brady was released on parole.

“They did not reverse the court, but in the course of writing the opinion, they wrote the Brady rule,” Bamberger said.

The Brady rule had been in place for more than two decades when, lawyers for Morton have said, the prosecutor in his case withheld critical information that could have prevented his wrongful conviction. DNA testing in 2011 led to Morton’s exoneration. Since then, Morton has lobbied for new laws that could prevent such wrongful convictions.

A rare court of inquiry determined that Ken Anderson, the former prosecutor who oversaw Morton’s conviction, should face criminal charges for withholding the evidence. Anderson, now a Williamson County state district judge, has appealed.

At the court of inquiry, Anderson said he was sure he would have told Morton’s lawyers about the evidence even though he believed he was not required to give it to them under Brady rules.

That view of Brady has dominated prosecutorial practice, said Jennifer E. Laurin, a professor at the University of Texas at Austin School of Law. Courts have decided that verdicts would be overturned because of Brady rule violations only if the evidence withheld would have altered the verdict or sentence.

So, many prosecutors came to view Brady as requiring only the disclosure of information that could change the outcome in a case. Laurin said that such an interpretation requires prosecutors, who are typically convinced of a defendant’s guilt, to imagine how the evidence could show the opposite.

“Factors that suggest there’s a problem with the state’s case are very naturally not going to seem very powerful,” she said.

With the proposed legislation, lawmakers hope to reduce chances for prosecutors to overlook evidence of innocence. The law would require prosecutors to give defense lawyers access to evidence in the state’s file without regard to the information’s potential impact on the verdict.

“It telegraphs legislators’ intent that they want prosecutors to err on the side of disclosure,” Scheck said. “That’s how you take care of this problem.”