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Prosecutorial Misconduct in Texas Alert: Ethical Rules Held to Have Broader Duty Than Brady to Turn Over Exculpatory Evidence to the Defense

Back in November 2014, a State Bar of Texas Grievance Committee ruled that a Denton County assistant district attorney named William (”Bill”) Schultz had violated the ethical rules that all Texas attorneys are sworn to uphold.  Not only that, but more: he had committed a serious ethics violation and his unethical conduct deserved suspension from the practice of law. However, Schultz got a bit of a reprieve: the grievance committee ruled that his suspension would be probated as long as he was on his best behavior. One more offense, and the probation would be revoked and his license suspended.

Of course, this ADA did what lawyers do: he appealed the ruling. And now, we have the result of that appeal.

He lost. And in doing so, he has helped criminal defendants all over the State of Texas.

Read the Opinion Of The Texas Board Of Disciplinary Appeals Appointed By The Supreme Court Of Texas in Case No. 55649, styled William Allen Schultz, Appellant v. Commission For Lawyer Discipline Of The State Bar Of Texas, Appellee Here.



1. What Did ADA William Schultz Do and Why Did He Do It?

First things first, what did ADA Bill Schultz do that was so bad? He held back evidence from the defense lawyer that would have helped a man who was charged with aggravated assault with a deadly weapon. All the way from the investigation and the arrest through any plea negotiations all the way to trial, he didn’t share it. And this in a case where the defendant was facing a felony conviction and significant jail time.

That’s called “withholding exculpatory evidence.

It’s also a prime example of prosecutorial misconduct.

Specifically, and as admitted by Schultz, he didn’t disclose to the defense that his primary witness (the victim) couldn’t identify her attacker, even though it was understood by the defense at the time that she would take the stand and do so.

Schultz’s explanation: he did not think it was either exculpatory or material. Or, under the terms of Brady v. Maryland, it was his interpretation of the evidence that he didn’t have to turn this information over to the defense lawyer because it was not “material.” (Under Brady, it is legal for the prosecutor to hold back evidence that might help the defense if he or she decides that it’s not material to the case.)

In the criminal trial of the man accused of aggravated assault, the defense lawyer successfully moved for a mistrial based upon this Brady violation. Then the disciplinary investigation began into Schultz’s actions through the grievance process for violations of the Texas ethical code for lawyers.

Prosecutorial Misconduct and Withholding Exculpatory Evidence

Prosecutors holding back exculpatory evidence happens all the time. So much so, that criminal defense lawyers have to keep the thought in the back of their minds in every single case, “is the prosecutor holding stuff back from me?” It’s part of your case preparation — something that has to be considered and monitored every step of the way.

Think this is paranoid? Consider some of the instances of prosecutors holding back evidence that would help the defense that we’ve already covered in past posts, including:

2. The Texas Board of Disciplinary Appeals’ Opinion in the ADA William Schultz Case

If you read the Schultz opinion, which came down on December 17, 2015, not only has the Texas Board of Disciplinary Appeals held that the ethical duties of a criminal prosecutor to disclose evidence have to meet the requirements of Brady v. Maryland — the Board has determined that in Texas, the ethical duties of the prosecutor are even broader than what Brady demands of the state’s attorney.

This is a very big deal. Now, prosecutors are held to an ethical duty to fork over any exculpatory evidence in their file. They don’t get to hide behind their own opinion that it’s not material to the case so it gets to be kept away from the defense lawyers.

A. What is Brady v. Maryland?

Many years ago, the United States Supreme Court held in the case of Brady v. Maryland, 373 U.S. 83 (1963) that the United States Constitution requires all prosecutors in criminal cases (state and federal) to reveal any evidence that may help the defense to the defense lawyer and the defendant. This is called “exculpatory evidence,” or anything that “tends to negate the guilt of the accused.”

From Brady, 373 U.S. at 87:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

B. Importance of the Schultz Decision by the TBDA to All of Us

What is important in this new Disciplinary Opinion is that it has been clarified by the Board (which was appointed by the Texas Supreme Court to make this determination) that the Texas ethical rules make it an ethical duty that material exculpatory evidence be disclosed by prosecutors to the defense.

It is a violation of the Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) not to do follow Brady. That’s their ruling. But there’s more.

They also hold that [b]ased on the plain language of Rule 3.09(d) and significant differences between the purpose and application of the duty under the disciplinary rule and the constitutional duty under Brady, we hold that Rule 3.09(d) is broader than Brady.”

Under the Texas ethical code for lawyers, prosecutors are not limited to the “materiality” factor of Brady v. Maryland — if there is anything that “tends to negate the guilt of the accused,” then the prosecutor is ethically bound to turn it over as a licensed member of the State Bar of Texas.


We hold that the materiality standard under Brady does not apply to Rule 3.09(d). We further hold that failure to disclose information otherwise required by law to be disclosed, regardless of intent, constitutes unlawfully obstructing another party’s access to evidence in violation of Rule 3.04(a).…

The ethical standard’s independent purpose of protecting the public is further apparent in this case where the withheld information came to light during the proceeding. Determining the materiality of undisclosed evidence by applying a Brady test in the context of an aborted prosecution is speculative. Therefore, limiting the ethical duty, as opposed to the constitutional duty, to disclose information would limit prosecutors’ accountability to the public because the failure to disclose would only arise if a conviction had occurred.

3. What if a Prosecutor Refuses to Hold Back Evidence But He’s Overruled by His Boss?

The big problem with prosecutorial misconduct is that it is more than just a single rogue prosecutor: it is a system-wide problem. If prosecutors can keep something back for the other side, then they will. See, for example, “The Untouchables: America’s Misbehaving Prosecutors, And The System That Protects Them“ published in Huffington Post; and “Another Rigged Prosecution? Prosecutors withheld potentially exculpatory evidence in the AIG case,” published in the Wall Street Journal.

And what are the attorneys who work for the state supposed to do? Down in Corpus Christi, Eric Hillman has sued Nueces County for wrongful termination, arguing that he was fired from his job as a Nueces County prosecutor because he wouldn’t follow orders. Specifically, Mr. Hillman alleged that he was instructed by the District Attorney’s Office to keep back the identity of a witness who could help the defense. He believed this to be a violation of Brady v. Maryland and refused to comply, and as a result he argued he was wrongfully terminated.

Hillman’s not alone here. It’s been alleged in several cases (notably, Overton) that prosecutors down in Nueces County allegedly have been holding back important evidence in felony cases as standard operating procedure. See, for example, “The Guilty and the Innocent, The Case For Punishing Prosecutors Who Abuse Their Power,” published in Texas Monthly.

As for ADA Hillman, he lost his first round last month when the Nueces County state court trial judge ruled that there it had no jurisdiction to hear the case because Nueces County has sovereign immunity. Mr. Hillman is reported to be taking his case on appeal — arguing that a violation of Brady is an illegal act and therefore sovereign immunity doesn’t apply.

One may think that this new opinion in the appeal filed by ADA Schultz may be helpful to Mr. Hillman’s cause ….


For more information on Appeals of a Trial Result, check out our web resources page and to learn more about prosecutorial misconduct, check our series of blog posts on that topic.



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