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Criticism from lawmakers, top attorney discipline officials and criminal-justice advocates has encouraged the Texas Supreme Court to loosen a rule governing when the wrongfully imprisoned can pursue grievances against prosecutors who they allege suppressed evidence.

The court first revised Texas Rule of Disciplinary Procedure (TRDP) 15.06 in October 2013 to comply with Senate Bill 825.

SB 825 required the Supreme Court to change the procedural rules to toll the statute of limitations for a wrongfully convicted person to file a grievance against a prosecutor who allegedly violated disciplinary rules about disclosing evidence.

Although the bill didn’t call for the court to do so, the justices at the same time revised the existing tolling provision in TRDP 15.06, striking a requirement for “fraud or concealment” for tolling and replacing it with “the doctrine of fraudulent concealment.”

But 10 public comments all complained that the new evidence-suppression tolling provision was too narrow because it required the evidence suppression to have “resulted in” the wrongful imprisonment. Comments said that having to show causation between the evidence violation and wrongful conviction would burden the wrongfully imprisoned and allow prosecutors to escape discipline.

“They gave it an extra hurdle for the person to have to climb. That was not the intent of the legislation,” said Rep. Senfronia Thompson, D-Houston, the house sponsor of SB 825.

Responding to the public comments, the Supreme Court on Jan. 15 issued a “corrected” rule that broadens the tolling provision to any violation of the disclosure rule that happened in a prosecution ending in wrongful imprisonment. Due to concern from attorney disciplinary leaders, the corrected rule also reverts to the old language for the “fraud or concealment” tolling provision.

“Public comments are always taken very seriously,” said Texas Supreme Court Chief Justice Nathan Hecht. “They made the point that the legislation … could be reasonably read differently, and of course, when we’re trying to implement a statute, we’re trying to do what the legislation intends.”

Thompson and SB 825′s author, Sen. John Whitmire, D-Houston, wrote a letter to the court to express concerns and suggest a change. The court implemented their suggestion exactly.

“I appreciate their concurrence. I appreciate their understanding of our legislative intent, and I think it’s a very good statute, and I hope it sends a strong message: Do your job right. Seek justice. And don’t violate the Brady rule,” said Whitmire.

Brady v. Maryland, a 1963 U.S. Supreme Court case, established a prosecutor’s duty to disclose evidence to a criminal-defense lawyer that could prove a criminal defendant’s innocence or lessen the punishment for the offense.

Public Comments

Each of the 10 public comments sent to the high court expressed concern and disapproval about the new tolling provision.

The words “resulted in” made the provision narrower than the Legislature intended, said an undated comment by Whitmire and Thompson. The law did not require tolling only when the violation caused the conviction. The Legislature wanted tolling “without exception,” they wrote.

“Officers of the court should not be free to lie, engage in perjury, offer false evidence, or destroy evidence without fear of discipline because no litigant has suffered direct harm,” the lawmakers wrote.

The Legislature passed SB 825 in response to the case of Michael Morton, who was convicted of murder and spent 24 years in prison before DNA evidence exonerated him. [See "Inadmissible," Texas Lawyer, March 18, 2013, page 3.]

“It is far from clear that even Mr. Morton could have held his prosecutor accountable were such a standard in effect at the time of his exoneration,” said a Dec. 23, 2013, letter from Morton cocounsel Barry Scheck, codirector of The Innocence Project in New York, and Madeline deLone, executive director.

Ken Anderson, the prosecutor in Morton’s 1987 trial, faced allegations that he failed to disclose exculpatory evidence. In November, he resigned as a district judge, gave up his law license and spent time in jail for criminal contempt of court. [See "Former DA Gets Jail Time, Will Lose Law License, Have Work Audited," Texas Lawyer, Nov. 18, 2013, page 7.]

The high court also heard opposition from four other criminal-justice advocacy groups, two former prosecutors and a law school in Michigan.

Guy Harrison, chairman of the Commission for Lawyer Discipline, and Linda Acevedo, State Bar of Texas chief disciplinary counsel, voiced concerns similar to those of Whitmire and Thompsonin a Jan. 6 letter. Acevedo’s office represents the commission in disciplinary cases against lawyers.

They also explained problems with the court’s change to the other tolling provision.

They wrote that the new fraudulent-concealment standard “has elevated the CDC’s burden of proof” because they would have to prove four elements of the fraudulent-concealment doctrine.

“The court’s new standard could seriously impact the commission’s ability to prosecute trust account violations,” wrote Harrison and Acevedo.

Hecht said at first the high court rewrote this tolling provision for clarification. “But the comment suggested it went further, and since that was not our intent, we returned to the prior language,” he said.

Harrison didn’t respond to a call for comment. Acevedo didn’t return an email seeking comment.

Scheck said the Supreme Court’s correction was “well considered” and he thinks other states should follow suit. He explained that prosecutors have broad immunity from civil suits, and it’s rare for them to face criminal charges for failing to disclose evidence. So it’s very important to at least discipline a prosecutor for misconduct, said Scheck.

“Now, with these amendments to the disciplinary rules, it makes it clear this kind of conduct won’t be tolerated,” he said. “I think all prosecutors agree if there is someone who engaged in willful and deliberate misconduct, there ought to be consequences.”