Monday, June 1, 2009

How hard is this?

You don't just naturally think that the Texas Court of Criminal Appeals is the place to go for common sense rulings and for instruction to prosecutors about how to do their jobs. But once in a while they get it right.

Consider, if you will, Ex parte Johnson, an unpublished, per curiam opinion from May 20. In two pages, the court explains that Johnson entered a guilty plea to aggravated sexual assault of a child and was doing life. He complained that Brady material was withheld and that he should get a new adjudication. The trial court agreed and the Court of Criminal Appeals granted relief. You can see why they didn't publish it: It says nothing.

Judge Cochran's concurrence, on the other hand, tells a story. Seems that five days before the trial, an investigator for the prosecutor went to the child's school and was told by school officials that the child was "a great liar" but always seemed believable. The day before trial, the child recanted. Nobody told defense counsel these things. The day of trial, Johnson entered a plea. Counsel said that, had he known, they'd have gone to trial because the case would have been a winner.

You think?

But why bother with the concurrence? Certainly not just for the sake of the story. In fact, Judge Cochran explains his motivation:
I join the Court’s opinion. I write separately because many prosecutors, acting in all good faith, may not realize that, under Brady, a prosecutor must always disclose information that the complaining witness has recanted her allegations of sexual molestation (or any criminal act) even when the defendant pleads guilty or has already agreed to plead guilty.
In "all good faith"? He's gotta be kidding. Or delusional.

Still, you've heard it from Texas. When the complaining witness recants, the prosecutor has to tell the defense.


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