CAUSE NO. 16CR0129

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

DEFENDANT’S MOTION FOR DISCLOSURE OF WITHHELD INFORMATION
 
The state is withholding information subject to discovery under 39.14 CCP. Such disclosure is required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  See Brady v. Maryland, 373 U.S. 83, 87 (1963); see also United States v. Bagley, 473 U.S. 667, 675-78 (1985).  Disclosure is also required under the Due Course of Law provisions of Article I, §§ 13 and 19 of the Texas Constitution and TCCP 39. 14 (h).
TCCP 39. 14 (h)  states “Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”
	. Counsel for defense filed a request for Brady and Morton disclosures on January 21, 2016 and March 21, 2016.  Counsel for defense filed a Motion for Disclosure of Withheld Information on August 3, 2016.  
Such refusal to provide this material violates the defendant’s rights under Brady v. Maryland, The Michael Morton act, also known as TCCP Art. 39.14, Texas Rule of Professional Responsibility 3.09(d), the First, 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
             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. 
            The refusal to provide this material violates the defendant’s rights under Brady v. Maryland, The Michael Morton act, also known as TCCP Art. 39.14, Texas Rule of Professional Responsibility 3.09(d), the First, 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.
            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.  It also asks the judge to make an evidentiary ruling without context. 
               The State and every criminal attorney and judge in this country knows there is no way that the material referred to cannot be considered Brady material. The Michael Morton Act, also known as CCP 39.14, (h) does not require such a screening process be engaged before such disclosure is mandated. To expect that would be to slow down the criminal justice system to almost a complete stop.  Meanwhile county jails are full of accused persons waiting for their day in court. 
Furthermore the standard for disclosure is NOT whether the information is admissible in court. The standard is “tends to negate….guilt…or…reduce the punishment.” Such Brady material may not be admissible itself but could lead to evidence that is. The entire purpose of the Michael Morton Act is to remove the gatekeeping function on what is required to be turned over to the defense from the discretion of the prosecution. The legislature did not put that gatekeeping discretion in the hands of the judiciary either. The State shall disclose.
The prosecutor’s duty to disclose Brady evidence is even broader under the Rules of Professional Conduct than the Brady opinion. The opinion in Schultz outlines the duties of the State, the defense and the judge. The State shall disclose. The defense presents the evidence. Then the judge determines if the evidence is admissible. The prosecutor cannot do their own analysis of whether such evidence is material or admissible prior to disclosing to the defense. The judge is not to screen the evidence for materiality or admissibility prior to it being disclosed and giving the defense the chance to review the evidence and to argue those issues. 
The Michael Morton Act was passed after much testimony, debate and negotiation that involved the Texas County and District Attorney’s Association. The Legislature had the opportunity to set up an in camera screening process or a protective order process. The legislature did neither. It is not appropriate for prosecutors who are disgruntled with the law’s disclosure requirements to demand conditions they make up be complied with by the defense prior to the State meeting their statutory and constitutional obligations. 
The State is trying to protect their witness by avoiding their duty to disclose negative information until the Court and defense meet burdens not required or allowed by the law. 
The State purports to make these activist demands on defense counsel to protect the privacy interests of police officers under investigation. Such an interest does not override the Defendant’s constitutional interest in effective assistance of counsel, due process of law or equal protection. Officers whose investigations result in criminal charges are not protected when their own such constitutional interest to effective assistance of counsel, due process of law and equal protection are sacrificed to cover up another officer’s impeachment material. Furthermore the State’s true interest in hiding the Brady material is to gain strategic advantages at trial. Such interest was held in Ake v Oklahoma, 470 US 68 (1986) to not outweigh the defendant’s rights to effective assistance of counsel.
Any information which may tend adversely to effect the credibility of any person called as a witness by the State is required to be turned over to the defense as soon as possible. Absolutely no exception is made for law enforcement officers. 
The information about Officer Hunt has been known by the District Attorney’s Office for over ten months. In other cases that both include Officer Hunt as a witness and other officers under investigation as witnesses the Galveston County Criminal District Attorney’s Office has presented and secured the signature of judges on these “protective orders” by making unauthorized ex parte presentations to judges. This practice is the policy and mandated to be followed by all prosecutors per the direction of First Assistant Kevin Petroff. This practice results in a systemic and chronic violation of the Constitutional rights of the accused in Galveston County. 
Disclosure of the Brady material is made conditional on the signing of the protective order by defense counsel in order to give the State the ability to incarcerate defense attorneys who share Brady information with other defense attorneys. Such a practice of consulting with other attorneys by defense attorneys is done to adequately prepare for trial or plea. The prosecutors in the Galveston County Criminal District Attorney’s Office consult with one another about these same witnesses and about the same information to prepare their own cases for trial. To allow one side to engage in this practice while prohibiting the other side under threat of incarceration violates the accused clients the right to effective representation of counsel.  Such practice is an illegal and unethical attempt to gain a tactical advantage at trial while using their office to intimidate opposing counsel into taking the path of least resistance. 
Finally this tactic of delaying and trying to avoid disclosure of Brady material violates the Defendant’s right to a speedy trial. 
           Pursuant to 39.14(c) CCP, the defendant requests a hearing to determine whether the state's withholding or redaction is justified. The defendant also requests disclosure of the withheld information. 
                                                                                    Respectfully Submitted,	

							Criss & Rousseau Law Firm L.L.P.
                                                                                   
							_________________________                                  
                                                                        	Susan Criss 
							Attorney for Defendant 
							State Bar No. 06630475
							PO Box 17046
							Galveston, Texas 7755
                                                                                    PH:    409 771 4069
                                                                                    FAX: 409 763 1508

CAUSE NO. 16CR0129

CERTIFICATE OF SERVICE
	By the execution of my signature above I hereby certify that a copy of the above foregoing Defendant’s Motion For DisclosureOf Withheld Information has been served on the Galveston County Criminal District Attorney’s Office in person on this 10 day of November, 2016.

                                                                                    _____________________
                                                                                    Susan Criss