Criminal

Unrepresented Pro Se Defendants and Prosecutor’s Duties

Now the prosecutors may know that the criminal case is coming, I have clients routinely arrested at the protective order on the criminal charge. So the prosecutors know that they are going to have a criminal case and yet my client just knows that if they can just tell this prosecutor their side of the story, this protective order won’t go forward. They have the same obligation to the defendant to make sure he does not misunderstand their position because they are putting themselves in the position of becoming a witness in the case and the ethical rules specifically prohibit that. 3.08; the lawyer cannot be a witness in the case, so the prosecutor cannot go up and get my client side of the version at the protective order.

Article 1.051 was a big change in the way that unrepresented defendants were handled and a lot in misdemeanor cases because it prohibits again we are recognizing that prosecutors have a very powerful position. They should not communicate it to unrepresented defendants about waiving that right to counsel until that client has had a chance to ask for a court appointed attorney, had it denied and not obtained court appointed attorney or waived the right to do so.

So we even have that in the code that the prosecutors are not supposed to be talking to these unrepresented defendants. So what other duties do prosecutors have under the rules 3.09 is our Brady rule and it’s very clear that they have a duty to timely disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the defendant.
Nowhere in there and then the next one is on mitigates offense on punishment, nowhere in there is a materiality. Nowhere in there does it say that it has to change the outcome of the case. They have a duty to give the Brady material. Nie Fong from North Carolina held onto his DNA evidence that exonerated the Lacrosse team until after he was re-elected DA. He was forced to resign as DA, he lost his bar license and he was arrested and imprisoned for his Brady violation.

So they became a lot of issues with what can Texas do to try to do better job at policing the prosecutors. There was house bill 328 that would have raised official impression to a 3rd degree felony. If there was as a result of the bready violation and it would have completely eliminated any statute to limitation issue on ready violence’s to prosecutor, try to take their bar license as you can imagine how spell 328 did not passed but senate bill 825 did. And 825 established that yes there is statute of 4 year of limitation and that’s the problem whenever perusing a prosecutor through the grievance system is all of this bready material out comes win.

Well in the redherring that is 10, 20 and more in case 25 years later you get all this information that in fact this Brady material was not turned over the 4 year statute limitations is long gone on filing grievance on those prosecutors. So senate bill 825 says the 4 years begins when the wrongfully imprisoned person is released. A new statute limitations encouraging the state bar to persue these violations against prosecutors. It also prohibits private reprimands and there is a bill to require that one of the three hours that prosecutor do his own prosecutorial misconduct. As you know senate bill 1611 is our new discovery bill, it also mandates and requires that Brady be disclosed in the bill as the time that this was prepared there was that certificate for the prosecutors were going have certify that they had complied with Brady and they did not want that.

Francisco Hernandez

Author Francisco Hernandez

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