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Over four years have passed since we last covered the wrongful-termination lawsuit filed by a former assistant district attorney, Eric Hillman, against the Nueces County District Attorney’s Office in Corpus Christi, Texas. Hillman alleged that then-District Attorney, Mark Skurka, fired him because he had insisted upon turning over Brady material to a defendant. In mid-March this year, the Texas Supreme Court finally resolved the case. In its unanimous opinion, the court held that “[g]overnmental immunity protects all governmental entities against suits and liabilities for their governmental actions, even when acting as employers.” On this basis, the court upheld the trial court’s decision to dismiss the lawsuit for lack of jurisdiction. Despite reaching this conclusion, several justices expressed dismay about the state of law, lamenting how difficult it is to hold prosecutors accountable.  

            The lead opinion sets out the facts:

Eric Hillman served as an assistant district attorney in Nueces County for two years. While preparing to prosecute a defendant charged with intoxicated assault and leaving the scene of an accident, Hillman discovered and interviewed a witness who said she was with the defendant the night of the incident and he was not intoxicated. Because the police report did not identify this witness, Hillman told his supervisor that he needed to disclose the witness to the defendant’s attorney. The supervisor disagreed and instructed Hillman not to disclose the witness. Believing that he was legally required to disclose the witness, Hillman called the State Bar Ethics Hotline and the Texas Center for Legal Ethics for advice. Both told him he should disclose the information.

Three days before the defendant’s trial, the victim confirmed to Hillman that the witness had been present at the scene. Hillman relayed this information to his supervisor and informed her that he had decided to disclose the witness to the defense attorney. On the day of trial, Hillman was fired for “failing to follow instructions.” He alleges he was fired solely for refusing to withhold exculpatory evidence.

The court’s opinion goes on to explain that governmental immunity is basically an insurmountable obstacle, and that reality foreclosed the lawsuit. But, before moving on too quickly, we want to applaud Hillman for his conscientiousness. He called not one but two ethical hotlines! While it is not clear how much traffic these hotlines receive, they can provide a crucial service to lawyers facing an ethical conundrum. Although the legal question of his responsibility to disclose exculpatory evidence is not a difficult one, if your supervisor tells you to do something you think is illegal (like suppress evidence), reaching out to experts is a wise move.    

While it seemed like the Texas Supreme Court had little trouble agreeing on how to rule, the justices were not happy. Justice Guzman wrote a separate concurring opinion to vent her frustrations. Joined by justices Lehrmann and Devine, she wrote that “[w]hen one good man refuses to stay silent, refuses to ‘just follow orders,’ and refuses to do the wrong thing under the misguided belief that it’s for the greater good, he should not lose his job. . . . The law must—but currently does not—afford a remedy . . . .”

Justice Guzman went further, summarizing well how the current regime for prosecutorial accountability falls on its face. As she put it:

While multiple external forces are aimed at ensuring accountability for misconduct—including professional discipline, potential criminal charges, and loss of elected office—this case epitomizes the limits of existing accountability measures. Research shows professional discipline and criminal charges are rarely imposed for prosecutorial misconduct. Even in the rare instances when misconduct is uncovered, it usually does not surface until after an innocent person has stayed in prison for years, presenting time-based challenges to any investigation or prosecution of wrongdoing. The possibility of some adverse consequence in some future public election has even less force as a deterrent and, more importantly, does absolutely nothing to alleviate irreparable harm resulting from the wrong.

At bottom, the concurrence calls upon the legislature to come up with a solution. It seems wrong that a District Attorney could fire an assistant because that assistant refused to break the law and behave unethically.

One other point warrants attention. We like to see the arguments that prosecutors make when dealing with allegations of misconduct, particularly the legal claims. In this case, the Texas Attorney General filed an amicus brief. While it is difficult to think of a more clear-cut Brady violation than failing to disclose to a defendant charged with intoxicated assault that a witness told law enforcement the defendant was not intoxicated, the Attorney General could not help itself. It argued that there was no duty to disclose because “[t]he witness was with the defendant leading up to and during the alleged crime, so the defendant surely knew that the witness existed and knew what the witness could testify to. This is not a case in which evidence was suppressed.” This line of argument—popular among suppressors—disfigures Brady beyond recognition. Hillman found out specifically what the witness said—and was willing to say to a law enforcement investigator—not simply that the witness was present at the scene. The knowledge that a witness exists is totally distinct from the knowledge of what that witness actually told the prosecution. If the prosecutor finds out the information is exculpatory, it must be disclosed, regardless of whether the defense could potentially get the information another way. We will say this: it is a good think the Attorney General does not run the Texas ethics hotlines.

This entire story is bad enough without knowing what has happened to Hillman since he was fired. While our system should provide strong disincentives to misconduct, it actually appears to provide strong disincentives to ethical behavior. According to a recent news report: “Hillman, who was a police officer before he became a lawyer, says he was blacklisted from law-enforcement jobs after the Sims case and, in some cases, badmouthed by the DA’s office. ‘I sent out 80 applications to different prosecutors and police departments and got back 80 rejections,’ he told the Observer.” In the future, when a law enforcement official claims that there is no code of silence, remember this case.

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