An Explanation on Brady Letters
May 26, 2020
By: Joe C. Tooley, J.D.
“This office will not accept for prosecution any case which is dependent upon the testimony of Officer ________"
This, or something similar, is the critical phrase in what is known as “Brady letters” which are received by law enforcement agencies from prosecutors somewhere in Texas about once a week – possibly more often – and which usually constitutes a death knell for a law enforcement career. Once an agency receives one of these letters, the officer who is the subject of the letter is no longer able to testify in support of criminal cases referred for prosecution in that jurisdiction– a core function of law enforcement. Accordingly, the officer is often terminated from employment as he/she is no longer able to fulfill a core duty of their job. Some agencies are large enough to find a role for such an officer which does not involve court testimony, but most are not. Of the more than 2700 law enforcement agencies in Texas, slightly more than 90% are below 50 in authorized strength.
Why are these letters sent? The reasons vary broadly among the hundreds of prosecutors in the State. The letters originate from a prosecutor’s duties arising from the Brady case, decided over 60 years ago, and are amplified by recent enactments of the Texas Legislature (the Michael Morton Act, codified within Art. 39.14 of the Texas Code of Criminal Procedure.).
1. “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.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
2.. “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.” Texas Code of Criminal Procedure, Art. 39.14(h). (Often known as the ‘Michael Morton Act’).
3. “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” Art. 2.01, Texas Code of Criminal Procedure.
4. Prosecutors must "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 mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal..." Texas Bar Rules, Rule 3.09(d) (Special Responsibilities of a Prosecutor)
These are the primary sources of prosecutors’ obligations in Texas pertaining to what is commonly called “Brady” material. Anecdotal information indicates that many prosecutors are “running scared” of these obligations as the State Bar (as well as some defense lawyers) appears to be rather aggressive in pursuit of severe penalties upon individual prosecutors for alleged violations of Art. 39.14. Recent national publicity regarding prosecutors’ apparent failure to comply with Brady can only be expected to exacerbate this factor. For these reasons prosecutors will understandably tend to err on the side of caution in favor of the defense when identifying and disclosing Brady material. A review of many of the reported opinions indicate that the Courts will do the same.
Speaking generally, Prosecutors engage in two steps of the Brady process. First, they must determine what is potential Brady material. Second, they must determine what to do with it and how to respond. The first step is, or should be, relatively straightforward as the Brady opinion and those following it lay out the definition of Brady material. Generally, Brady material is evidence which is “exculpatory and impeachment evidence . . . that is material to either guilt or punishment . . .” Such material must be released to a Defendant in a criminal prosecution and the failure to do so constitutes a deprivation of due process. The Michael Morton Act in Texas, codified within Art. 39.14 of the Texas Code of Criminal Procedure, tightens the duty of Texas prosecutors regarding the disclosure of Brady material and also seems to broaden the scope of Brady by requiring disclosure of “information” (not just evidence) and “mitigating … information” (whatever that may be if it is not exculpatory or impeachment material). This obligation is also reflected by the Texas Bar Rule mentioned herein.
Art. 39.14 provides that prosecutors must disclose to a Defendant in a criminal case “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.” Art. 39.14((h). The term “mitigating” appears to broaden somewhat the “exculpatory and impeachment” material required to be disclosed under Brady although it appears no statute or reported case opinion in Texas discusses the meaning of the term in this context. Whether material or information might tend to “negate guilt” or “reduce punishment” and is therefore Brady material is often a judgment call of the prosecutor or his or her staff. Although a procedure is provided for submission of suspected Brady or Michael Morton Act (MMA) material to a Court for this determination, it seems that some prosecutors elect to err on the side of caution; deem any questionable information as Brady material; voluntarily disclose it to the defense bar (not just to a counsel in the individual case), and; proceed with sending a “Brady letter” to the involved officer’s agency. Especially in smaller jurisdictions, the prosecutor sending such a letter well knows the officer will be fired as most agencies are unable to absorb officers whom the prosecutor will not permit to testify. Indeed, it appears that some prosecutors (certainly not all!) assume a Brady situation exists when they see facts reported in written reports which do not appear on a video. Sometimes there is a good explanation for this absence, sometimes not. However, a close review of the facts of an individual case (which one would assume a good prosecutor is conducting anyway) is often necessary in such a situation. Due to the fact that such a review sometimes does not occur, some officers appear to be unjustly placed on a “Brady list” often resulting in an unjustified termination.
Thus, there appears to be two potential issues presented: First, are some prosecutors hastily (and unnecessarily) placing officers on “Brady lists”? Second, is the “Brady letter” to the agency – especially with knowledge of its effect on the agency and the individual officer – required by law and even necessary?
It is the intent of this article to focus upon the second issue more than the first. As to the determination of whether information, or the lack thereof, constitutes Brady material, the Texas Code of Criminal Procedure also provides that this issue may be resolved by the Court upon a motion by “a party” to the criminal case. Art. 39.14 (b). Thus, in questionable or close cases, the prosecutor may submit the issue to the Court to determine whether particular information or material falls within the ‘Brady’ or MMA classification rather than proceeding with a ‘safe’ determination that it does. Such determinations without judicial involvement appear to be subject to no review or oversight.
As to the second issue regarding the transmission of a “Brady letter” to an officers’ agency, some legitimate reasons for doing so may exist even though these letters do not appear to be required by any reported case or statute. For example, when information regarding an officer’s gross misconduct clearly impeaches any testimony the officer may give in any case – related or not -- and renders it impossible to successfully prosecute such cases, notice of such to an agency might be regarded as an efficient method of operation to save time and effort by both the agency and the prosecutor’s office in avoiding preparation of cases which cannot be effectively prosecuted. However, especially in smaller jurisdictions with smaller agencies, this notice usually results in the loss of employment by the officer involved. Accordingly, such notices should be issued only after careful consideration of the underlying circumstances given that there appears to be no legal requirement to send the notice in the first place.
It is incumbent upon prosecutors to review all cases submitted for prosecution to determine whether pursuing the case is consistent with the ends of justice. This duty is found within the provisions of Tex. Code of Crim. Proc., Art. 2.01. This review should encompass consideration of whether Brady issues may affect the prosecution. Some prosecutors clearly engage in this review, while it appears others simply apply a blanket prohibition (under the mantra of a “Brady list”) of any case bearing any mention of a designated officer – regardless of the effect on the ability to prosecute the particular case. The second step – placing the officer on a “Brady list” and sending notice to an agency that the prosecutor will no longer accept cases involving that officer appears to be an action not legally required and, in many jurisdictions, an action known to the prosecutor to result in an employment termination of the officer. For these reasons, letters such as this should be reconsidered by those who are issuing them.
Perhaps a better approach would be for a prosecutor’s office to undertake a close review of any questionable situation to determine if obligations under Brady and Art. 39.14 are triggered. In clear cut cases where the officer is found to have actually lied in some sort of investigation, the prosecutor would proceed with his/her obligations and disclose the material to the defense in the particular case. Actions beyond such disclosure do not appear called for by the various reported opinions and statutory provisions referenced herein. In close calls, the information should perhaps be submitted to the Court for en camera review and determination. If the Court decides the information is within the mantra of Brady and Art. 39.14, then disclosure to the defense in a particular case in which the officer is a witness will usually be required. Again, actions beyond such disclosure (such as disclosure to the entire defense bar in a county or a ‘Brady letter’ to the agency) do not appear to be called for by the provisions referenced herein. Motivations for taking such additional actions will certainly vary among the hundreds of prosecution offices across the State. Thus, it appears that an individual review of the potential Brady issue should take place in each case in which the officer is involved with the prosecutor’s office proceeding as outlined herein. If the information/material is clearly not within the scope of Brady, no further action is needed. If the information/material is clearly Brady material, disclosure to the defense in that particular case will be necessary. If it’s a close call, perhaps the matter should be submitted to the particular Court for decision. Regardless, none of these options seem to require or justify the ‘Brady letter’ to an officer’s agency which, in most cases, results in termination. Rather, individual cases involving the specified officer should be reviewed independently to determine if prosecution is feasible given the (potential) Brady issue. This review may be intensive or quite brief depending upon the underlying circumstances and nature of the information in question. For example, a material falsehood by an officer in an investigation will almost always constitute Brady material which must be disclosed in a case where the officer is to testify and the prosecutor’s review in such an instance would be expected to be rather brief. Should situations such as this become recurring, informal contact between the prosecutor’s office and the agency management might be a better option. However, whether a simple mistake in a report (even though in good faith) or a situation where the case can be prosecuted without the questioned officer’s participation triggers any Brady duty is a determination which should be be made on a case-by-case basis – either by the prosecutor or by the Court. Regardless, neither situation gives rise to any obligation to issue the ‘Brady letter’ to the agency.
Preparation and issuance of recommended standard practices for this area would seem to be a appropriate activity for the Texas District and County Attorneys Association (TDCAA). This is a new and still somewhat vague area of the law which continues to develop as additional judicial opinions are issued.
Thus, it appears that prosecutors can comply with their obligations under Art. 39.14 and Brady without the use of the ‘death sentence’ arising from the issuance of Brady letters to police agencies.
 Source: Texas Commission on Law Enforcement (TCOLE), 2019.
 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963).
 “Mitigation” is defined by Black’s Law Dictionary as “Alleviation, reduction, abatement or diminution of a penalty or punishment imposed by law.” Black’s Law Dictionary, 11th Edition, 2019.
 Unfortunately, incidents such as this arise from time to time and this will continue so long as law enforcement must select its officers from that pool of imperfect applicants known as the human race.