NO. 16CR0129

THE STATE OF TEXAS	§	IN THE DISTRICT COURT	
	§		
	§		
V.	§	10th JUDICIAL DISTRICT	
	§		
ROBERT WESLEY FAIRCLOTH	§	GALVESTON COUNTY, TEXAS	

DEFENDANT’S MOTION FOR PROTECTIVE ORDER 

This Motion for Protective Order is brought by Defendant, Robert Wesley Faircloth, who shows in support:
1.	 Robert Wesley Faircloth has been served with an indictment charging him with the offense of Possession with Intent to Manufacture or Deliver a Controlled Substance. The undersigned counsel has been appointed to represent the Defendant.
2.	The Galveston County Criminal District Attorney’s Office is aware that the Defendant is represented by counsel. 
3.	The State has provided what purports to be a “Brady notice” regarding Deputy Hunt on June 2, 2016.  That notice declares that Deputy Hunt is being investigated for a complaint from a citizen for harassment. The State declines to provide to defense counsel any more evidence or information regarding this so called Brady information. Instead the State seeks a protective order signed by the Court to determine if such information is Brady and if it is admissible. To avoid confusion with this protective order the State’s will be referred to as the GCCDAO Protective Order. 
4.	  To ask a judge to determine if evidence or testimony is admissible without even informing opposing counsel of what the evidence and testimony is deprives the Defendant of the right to effective assistance of counsel. This practice also allows the State to make an unauthorized ex parte run at the judge in violation of Texas Code of Judicial Conduct Canon 3 (8), and Texas Code of Professional Responsibility 3.04 (a), and 3.05. 
5.	Counsel for defense filed a request for Brady and Morton disclosures on January21, 2016 and March 21, 2016.  Counsel for defense filed a Motion for Disclosure of Withheld Information on August 3, 2016.  That is three formal written requests for Brady information,
6.	Such refusal to provide this material violates the defendant’s rights under Brady v. Maryland, 373 U.S. 83 (1963) The Michael Morton act, also known as TCCP Art. 39.14, Texas Rules of Professional Responsibility 3.04 and 3.09(d), the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Constitution of the State of Texas.
7.	The State through the Galveston County Criminal District Attorney Jack Roady and his sworn Assistant Criminal District Attorneys have duties established under the Texas Code of Criminal Procedure Art. 2.01,and Art 39.14  and the Texas Code of Professional Responsibility 3.09(d). 
8.	The Galveston County Criminal District Attorney Jack Roady and his sworn Assistant Criminal District Attorneys have taken oaths both upon becoming licensed to practice law and on the first day of the job and on the first day of every four year elected term that begins afterward by the Galveston County Criminal District Attorney. When those prosecutors take those oaths they swear to God to protect and defend the Constitutions and law of the United States and Texas. Those prosecutors have a sworn duty to God and to the people to not violate a defendant’s rights under Brady v. Maryland, 373 U.S. 83 (1963) The Michael Morton act, also known as TCCP Art. 39.14, Texas Rules of Professional Responsibility 3.04 and 3.09(d), the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution  and Article I, Sections 10 and 19 of the Constitution of the State of Texas.
9.	The Texas Code of Criminal Procedure Article 2.10 sets out by statute what the primary duty of a prosecutor in Texas is to see that justice is done. Despite the adversarial design of our criminal justice system, this duty of TCCP Art. 2.01 takes priority over the desire to attain a strategic advantages in the courtroom. 
10.	That duty to see that justice is done has always been the primary duty of every prosecutor in Texas. The duty to disclose exculpatory evidence has been the duty of the prosecutor since 1963 when the United States Supreme Court issued it’s opinion in Brady v. Maryland 373 U.S. 83 (1963).
11.	The prosecutors in Texas have had the duty to disclose inculpatory and exculpatory evidence as soon as practicable since 2013 when the Texas Legislature passed the Michael Morton Act and codified such duty in TCCP Art. 39. 14.
12.	Despite these clearly and strongly mandated duties being in place until recent years there have been no liability or consequences in our criminal justice system for the breach of these duties. 
13.	The recent exoneration of Death Row inmate Michael Morton case raised awareness of the tragic and severe risk of convicting and potentially executing the innocent when evidence is suppressed by the prosecution and law enforcement. That case was the first time prosecutors (including one who had left prosecution to become a judge) were sanctioned by the State Bar of Texas and one incarcerated (afore mentioned judge) for acts in violation of these duties, 
14.	The December 17, 2105 opinion of Schultz v. Commission For Lawyer Discipline of the State Bar of Texas Op. 55649 upheld sanctions probating the license suspension against a prosecutor for violating their ethical duties to disclose evidence to the defense.  The opinion stated on page 11 that It is the prosecutor’s role to disclose, the defense lawyer to present as admissible evidence and the trial court’s to determine whether it is is admissible evidence. The Galveston County Criminal District Attorney’s Office seeks to cut the defense out of the process and impose one sided restrictions on defense counsel to gain strategic advantages in the courtroom.  
15.	On November 10, 2016 in the 10th District Court in the case of The State of Texas v Pablo Ariza Gonzales, 15CR0122, a hearing was held regarding the Galveston County Criminal District Attorney’s Office’s efforts to get the judge to sign the GCCDAO Protective Order. 
16.	In that hearing the First Assistant of the Galveston County Criminal District Attorney’s Office Kevin Petroff testified and his prosecutors argued of the need to get judges in Galveston County to enforce the privacy interests of law enforcement officers by signing the     GCCDAO Protective Orders. He said he knew his office had a duty to gather such evidence from the police and disclose to the defense. He explained that he wanted to be nice to the officers  to make them more comfortable providing evidence that the Galveston County Criminal District Attorney’s Office is required by law to gather. 
17.	Said GCCDAO Protective Orders seek to have defense counsel held in contempt and jailed or fined in the event of a violation of the Michael Morton Act or any disclosure of evidence given in discovery anyone other than  a staff member, expert or investigator. 
18.	Petroff expressed grave concern lest defense attorneys publish discovered evidence on Facebook or the internet. 
19.	No testimony was presented by the Galveston County Criminal District Attorney’s Office of any such action by a criminal defense counsel supporting such  concern. 
20.	Petroff testified that it is not uncommon for his office to not disclose Brady information about police officers to defense for many months after the Galveston County Criminal District Attorney’s Office obtained it. 
21.	He spoke of a new office policy of disclosing notice that there may be Brady material right before a plea or final disposition of a case. He mentioned the difficulty of accessing only one witness’s information at  time from their database as the reason the Galveston County Criminal District Attorney Office searches the Candor database near the end of the litigation rather than the beginning. 
22.	Petroff testified that once any potential Brady information about a police officer is obtained it is put into a database they call Candor. (The irony is inescapable.) Petroff said that all attorneys in the Galveston County Criminal District Attorney’s Office and their staff have access to this computer data base. The only limitation is that only one witness’s name can be run at a time. He further acknowledged that all employees of the Galveston County Criminal District Attorney’s Office can share and consult with one another about the information stored in Candor. 
23.	Petroff specifically mentioned his concern about the information being disclosed to defense counsel being shared by attorneys on the “listserve”. That is probably truly his biggest concern. 
24.	Criminal defense counsel participate in closed communication email type systems to share information and learn. There are very strict confidential requirements for participants typically. Violating such confidentiality rules result in being kicked off of the listserve immediately and forever in addition to being severely ostracized by one’s peers. Lawyers typically use this to listserve to share motions, educate one another about the law, and how to do their job most effectively for their clients etc. Nothing ever shared on the listserve can be made public.  
25.	Petroff’s expectations about whether such Brady information will be shared is speculative and his concern does not justify his office seeking the GCCDAO Protective Order. 
26.	Yet even if he were correct the only disadvantage the Galveston County Criminal District Attorney’s Office could face by criminal defense attorneys sharing Brady material with each other in the defense of their clients is the risk of any criminal defense attorneys learning that the prosecutors hid Brady. The risks faced by pandering to this concern by signing the GCCDAO Protective Orders regarding disclosure by the defense are the same as those faced by allowing them to violate their disclosure duties with impunity. 
27.	Allowing the Galveston County Criminal District Attorney’s Office staff to share this data to better do their jobs while signing protective orders threatening criminal defense attorneys with jail or fine if they engage in a similar practice violates the Defendant’s rights under the Sixth Amendment right to effective assistance of counsel. 
28.	The Defendant does not seek to prohibit the Galveston County Criminal District Attorney’s Office from sharing such Brady information among themselves. In fact they are obligated to for all of the reasons presented in this motion. Defendant does seek to stop the game playing, excuses and intentional roadblocks set up to prevent and delay Brady and Morton evidence be distributed to the defense as soon as practicable. 
29.	The duty of the Galveston County Criminal District Attorney’s Office is not made conditional on the defense counsel’s compliance with the procedural safeguards of TCCP 39.14
30.	Furthermore Defendant seeks to prohibit the State from approaching the judiciary ex parte to delay or prevent the prosecutors fulfilling their duties to disclose Brady and Morton evidence. 
31.	Most importantly the Defendant seeks to prohibit the State from seeking the defense counsel agree to or have force on them anything that makes their own duty to comply with any above mentioned duty conditional. 
32.	Petroff represented his prosecutors would not seek the GCCDAO Protective Orders be presented to judges ex parte.
33.	The GCCDAO Protective Orders are routinely being presented to judges ex parte in violation of the Rules of Judicial Conduct, and the defendants’ rights under Brady v. Maryland, 373 U.S. 83 (1963) The Michael Morton act, also known as TCCP Art. 39.14, Texas Rules of Professional Responsibility  3.04 and  3.09(d), the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Constitution of the State of Texas
34.	When asked Petroff was unable to explain the need for such contempt remedy in the event of a GCCDAO Protective Order violation in light of the sanctions available through the State Bar of Texas Grievance Process.  
35.	Important, time consuming and costly work is to be done by both the State and defense in the litigation of criminal accusations. Either enough evidence points toward guilt or it does not. Evidence regarding mitigation, impeachment, and innocence exists or it does not. The duties regarding the gathering, discovery and disclosure of Brady and Morton evidence are clear. Delayed disclosure and nondisclosure of Brady and Morton evidence is not negotiable. 
36.	Delay for months due to the Galveston County Criminal District Attorney’s Office attempting to litigate a way out of or to justify the nonperformance of those duties violates the rights of the accused under Brady v. Maryland, 373 U.S. 83 (1963) The Michael Morton act, also known as TCCP Art. 39.14, Texas Rules of Professional Responsibility 3.04 and  3.09(d), the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Constitution of the State of Texas
37.	Said delay for those waiting in jail including the Defendant causes irreparable harm. 
38.	The interest referred to at the hearing on November 10, 2016 in protecting the privacy interests of the police officers is not at play here. The Texas Legislature set up procedural safeguards for the disclosure and non-disclosure of Morton evidence. That legislation was debated and negotiated by several criminal justice entities that included the Texas County and District Attorney’s Association. To alter the duties and requirements of the Galveston County Criminal District Attorney’s Office, the defense counsel and the judiciary regarding Morton evidence is to rewrite the law to give loopholes the legislature did not intend. To do so also requires the prosecution to ask the judiciary to show favor and bias to a particular class of witness in violation of the Defendant’s rights under Brady v. Maryland, 373 U.S. 83 (1963) The Michael Morton act, also known as TCCP Art. 39.14, Texas Rules of Professional Responsibility3.04 and  3.09(d), the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Constitution of the State of Texas.
39.	In consideration of all of the above the Defendant seeks a protective order punishable by contempt prohibiting the prosecution from the following:
1.	Approaching the court ex parte. 
2.	Violating the rights of the Defendant under the Brady v. Maryland, 373 U.S. 83 (1963) The Michael Morton act, also known as TCCP Art. 39.14, Texas Rules of Professional Responsibility 3.04 and 3.09(d), the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Constitution of the State of Texas.
3.	Delaying the disclosure to the defense of any Brady material.
4.	Attempts to intimidate the counsel for defense from vigorously defending her client in accordance with the duties imposed on her by the laws of this nation and this state. 
5.	Withdrawal of plea bargain offers or any other negative consequences if the defendant asserts rights guaranteed under the laws and cases mentioned above. 
6.	Conditioning the disclosure of evidence or information the State has a duty to disclose on the compliance by defense counsel of any conditions requested by the prosecution including but not limited to the GCCDAO Protective Order.
7.	Intentional delay of any proceeding to wear the Defendant down to take an offer to just get out of jail. 
           Since the Galveston County Criminal District Attorney’s Office has asserted a need for the GCCDAO Protective Orders punishable by contempt to ensure that defense counsel live up to the duties imposed by law and the ethics of our profession, Counsel cannot imagine why they would object to this motion and order. 
Robert Wesley Faircloth prays that the Court grant a protective order.
Respectfully submitted,

CRISS & ROUSSEAU LAW FIRM LLP
719 59th St. 
Galveston, TX 77552
Tel: (409) 771-4069
Fax: (409) 763-1508

By:	
Susan Criss
State Bar No. 06630475
crissrousseaulaw@gmail.com

	
Susan Criss
Attorney for the Defendant

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on November 13, 2016.

Susan Criss
Attorney for the Defendant

NO. 16CR0129

THE STATE OF TEXAS	§	IN THE DISTRICT COURT	
	§		
	§		
V.	§	10 JUDICIAL DISTRICT	
	§		
ROBERT WESLEY FAIRCLOTH	§	GALVESTON COUNTY, TEXAS	

Notice of Hearing

The above motion is set for hearing on _______________________2016 at _____.m.
SIGNED on 	.

Judge or Clerk