The State Bar of Texas board of directors on Friday will vote on a proposal to change disciplinary rules and procedures to impose tougher consequences on prosecutors who withhold exculpatory evidence.
The proposed revisions conform with a 2013 law that called for extending the statute of limitations for such prosecutorial misconduct and eliminating the Commission for Lawyer Discipline’s (CFLD) ability to issue “private reprimands” in those cases.
The Texas Legislature passed Senate Bill 825 in response to the case of Michael Morton, who was exonerated of charges he murdered his wife. The CFLD alleges in a disciplinary suit that former prosecutor Ken Anderson withheld exculpatory evidence in Morton’s case. Anderson denies the allegations; he and the CFLD disagree about how the statute of limitations applies. [See “Hearing Set in Disciplinary Case Against Former DA,” Texas Lawyer, Aug. 12, 2013, page 7.]
The proposed revisions would amend Texas Rule of Disciplinary Procedure 15.06 to add that, “In addition to the tolling of limitations for fraud or concealment,” a claim of a prosecutor-disclosure violation is timely “within four years from the date on which a wrongfully imprisoned person is released from a penal institution.”
The revision also changes the CFLD’s Internal Operating Rules and Procedures to bar the use private reprimands when “[t]he misconduct involves the failure of a prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense.”
Texas Supreme Court rules attorney Martha Newton writes in an email that, if the State Bar board approves the proposed revisions, they would go to the high court for approval before Dec. 1, the deadline in SB 825.
David Whittlesey, chairman of the State Bar Disciplinary and Client-Attorney Assistance Program Subcommittee, who will present the revisions to the board of directors, declines comment. Claire Mock, spokeswoman with the State Bar Office of Chief Disciplinary Counsel, didn’t immediately return a telephone call seeking comment.
— Angela Morris