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Harris County Assistant Public Defender Craig Still must have done a double-take when he noticed a machete lying next to evidence that the prosecution intended to introduce at his client’s aggravated robbery trial.

A jury had been impaneled to hear State of Texas v. Stacy Francis and opening statements were set to begin when Still stumbled upon the weapon. Having never seen the machete before, he immediately brought it to Harris County Judge Mike Anderson’s attention:

Your Honor, I’ve conferred with State’s counsel about the evidence they intend to offer… I’ve noticed that State’s 16 is a giant machete. The — what is in our pleadings is a knife, nothing about a machete. I’ve asked for 404 notice in a timely fashion. That has not been given to me that a machete was wielded or used in any way as something that’s going to be introduced by the State. I object to its introduction in any way.

Four months earlier, Judge Anderson had signed an order that directed the prosecution to turn over all physical objects, including weapons, to defense counsel at least 10 days prior to trial. Yet the prosecutor failed to tell Still about the machete when she received it more than a month before trial.

The Giant Machete

After the defense objected to the introduction of the “giant machete” because it had not been properly disclosed, Judge Anderson asked the state to explain why it hadn’t produced the weapon sooner. The prosecutor offered:

I brought the machete as evidence. And when I was showing the defense counsel all of the evidence that I was intending to offer in this trial, that’s when he mentioned that he hadn’t seen the machete. I did receive the machete from [the victim last month] when I went to interview her in preparation for trial. That is the first time that I knew about it. . . .

It’s been in my possession since that time. I honestly didn’t know that the defense didn’t know about the machete. I thought that it was in the offense report, but it wasn‘t.

The scenario described by the prosecutor might have made more sense if the machete hadn’t been in her sole custody from the time the victim gave it to her. There’s no question that she knew on the eve of trial that Still had never inspected it.

No big deal, Judge Anderson concluded. There was nothing special about this particular machete anyway. Defense counsel might not have seen it before, but he’d seen it now.

Now There’s a Knife

But for Still, it was a very big deal. He had intended to argue to the jury that his client was only guilty of robbery – not aggravated robbery with a weapon – since the state had not recovered a knife in relation to the crime up to that point.

The difference between the two charges in terms of sentencing was profound: robbery in Texas carries a penalty of two to twenty years; aggravated robbery carries a penalty of up to ninety-nine years.

Nevertheless, Judge Anderson denied the defense request to exclude the machete from evidence.  Francis was convicted of aggravated robbery and sentenced to seventy-five years in prison.

The Harm of Last Minute Disclosures

At The Open File we spend a lot of time talking about prosecutors’ failure to disclose favorable evidence to the defense in a timely manner under state rules of professional conduct and the standards set out by the Supreme Court in Brady v. Maryland.

However, the impact of last minute disclosures of unfavorable (or “inculpatory”) evidence can be just as problematic for the defendant’s trial preparations and even more difficult to punish than Brady violations.

The Francis case, decided on Wednesday by the Texas Court of Criminal Appeals, raises two questions about the harm of disclosing incriminating evidence at the last minute. The first is how the late disclosure might negatively impact the defendant’s case. The second is what the late disclosure signals about the prosecution’s integrity.

In a split vote, the First Circuit Court of Appeal in Texas decided that the prosecutor’s mistake in Francis wasn’t willful and therefore the machete was rightly introduced in trial as evidence. The Texas Court of Criminal Appeals affirmed, reasoning that the harm to the defendant’s case was not likely significant anyway.

Whatever one makes of those rulings, both courts acknowledged that the prosecutor had violated an important court order. The question remains: what reprimand should the prosecutor receive to discourage last-minute disclosures like this in the future?

No Incentive To Disclose on Time

In a 2010 survey of 35 current and former state prosecutors by Ellen Yaroshefsky and Bruce Green, one prosecutor recalled deliberately holding onto evidence until the last minute as a matter of course:

We did what the law said and nothing more… I used to be a jerk and hold onto material until the trial was actually starting. I held onto material until the last moment. We did no favors for the defense.

Prosecutorial behavior, like human behavior, is influenced by incentives and disincentives. Even if a prosecutor’s error is the result of negligence, a disincentive is required to ensure she is appropriately scrupulous in turning over evidence next time.  It is important for protecting the integrity of our criminal justice system and preventing wrongful convictions that evidence is disclosed by the state according to the law.

The prosecutor’s negligence in Francis was palpable. At first, she told the Court that she thought the machete was mentioned in the offense report. It wasn’t. Then she told the Court that another prosecutor had made notes about the machete in the case file. But she later conceded those notes probably weren’t available to defense counsel.

In actual fact, the machete wasn’t mentioned in relation to the robbery at all. Not in the report generated by the first officer on the scene, not in the report written by the family violence officer who conducted a post-incident investigation, and not in the report created by the family violence counselor who worked with the victim.  Defense counsel had no notice that the state intended to argue that a machete was used in the commission of the crime. Nevertheless, neither the trial court nor the courts of appeal took measures to discipline the prosecutor for failing to turn over the court-ordered material.

Francis is the latest case of many to demonstrate how prosecutors who make last-minute disclosures gain the tactical advantage of surprise through their bad-faith acts or negligence, and yet are rarely held accountable by the courts.

A Widespread Problem

In Warrick County, Indiana, a judge was recently forced to delay trial midway through because the defense attorney in a child exploitation case only became aware of certain court-ordered discovery after opening statements. The judge ordered a continuance to accommodate the defendant’s due process rights but denied his request for sanctions against the district attorney who had suppressed the evidence.

A realistic risk of discipline might influence prosecutorial behavior, but in practical terms, the reluctance of courts to impose sanctions – even in cases where the suppression is intentional – ensures that there are no meaningful incentives to encourage timely disclosure.

As we learn from Francis, prosecutors who sit on evidence – even unfavorable evidence, like a giant machete – will likely be rewarded for it, since the element of surprise and the lack of recourse both work in their favor. There is no real threat of discipline for late disclosure, and so, whether the state’s tardiness is the result of intentional misconduct or reckless negligence, there is no incentive to discourage it from happening again.

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