Prosecutor misconduct has been all the buzz lately,1 especially in the wake of a steep uptick in exonerations. In 2013 there were 13 exonerations in Texas,2 compared with 39 in 2014,and 54 in 2015.4 Cases like Michael Morton and Anthony Graves pushed prosecutorial misconduct into the media, front and center. Morton spent close to 25 years in prison for murdering his wife . . . a crime for which he was exonerated. Graves spent 18 years in prison before his capital murder conviction was overturned for the prosecutorial misconduct of former Burleson County District Attorney, Charles Sebesta. Sebesta was later disbarred5 and the charges against Graves were dismissed for lack of evidence. To the credit of prosecutors, much of the progress in overturning wrongful convictions has been attributed to the prosecutors themselves. By taking the initiative to ensure the validity of their convictions through the work of conviction integrity units, they have been instrumental in securing many of these results. But clients, past and present, still wonder whether prosecutors withhold evidence favorable to them. In response, I’ve helped them understand the difference between a prosecutor’s ethical misconduct and inadvertant Brady error.

The case of Brady v. Maryland, 373 U.S. 83 (1963) held that a prosecutor’s suppression of favorable evidence violated due process principles when the evidence was material either to guilt, or to punishment, regardless of whether the prosecutor intentionally withheld the evidence. Under Brady, a prosecutor had constructive knowledge of all evidence known to anyone on the prosecution team. So, for example, if a police detective developed exculpatory evidence favorable to the accused person, a Brady error occurred if the prosecutor failed to disclose it to the defense, even if the prosecutor did not have actual knowledge of the evidence. Consequently, a prosecutor could create Brady error without knowing it. The focus of Brady was essentially on the potential harm to the accused resulting from the nondisclosure. It did not involve any punishment for the misdeeds of the prosecutor involved. The passage of the Michael Morton Act6 in 2013 eliminated much of the guesswork for prosecutors who were contemplating what evidence must be disclosed. The current state of Texas law is that a prosecutor must turn over all material evidence in their (or law enforcement’s) possession that isn’t work-product or privileged.

The intentional behavior of prosecutors is handled differently. Charles Sebesta was disbarred because he both knew about favorable evidence concerning Anthony Graves and because he intentionally withheld it. Under the Texas Disciplinary Rules of Professional Conduct (Rule 3.09(d)), punishment for a prosecutor is reserved for those who consciously choose to suppress known, favorable evidence. Brady error can result in the reversal of a conviction and a new trial. Professional misconduct, on the other hand, can result in the professional discipline, and even disbarment, of an offending prosecutor.

How often are prosecutors knowingly withholding favorable evidence to the accused? At least here in Brazos County, misdemeanor and felony prosecutors have conducted themselves with the highest degree of professionalism and ethics. In 25 years of law practice, I’ve never had opportunity to question the ethical behavior of any prosecutor I’ve worked with. There have been the occasional Brady errors, but those have typically been the fault of the police, not the prosecutor. In my experience, it’s the rare prosecutor who intentionally manipulates the system to gain advantage. But obviously, prosecutor manipulation does occur. Thankfully for my clients, though, open discovery rules have all but eliminated Brady errors in criminal cases. And for the rare prosecutor who intentionally games the system for an advantage? Well, what goes around will certainly come around again.


1. Popps, Laura Bayouth. “WRONGFUL CONVICTIONS PROSECUTORIAL MISCONDUCT AND THE ROLE …” State Bar of Texas. Texas Bar Journal, July 2017. Web. 14 July 2017.

2. Exonerations in 2013, The National Registry of Exonerations, p.1 (February 4, 2014)

3. Exonerations in 2014, The National Registry of Exonerations, p. 2 (January 27, 2015)

4. Exonerations in 2015, The National Registry of Exonerations, p. 5 (February 3, 2016)

5. Commission for Lawyer Discipline v. Charles J. Sebesta, Jr., No. 201400539 (State Bar Dist. 8-2 June 11, 2015) (Disbarment)

6. Michael Morton Act, 83d Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106 (codified at Tex. Code Crim. Proc. Ann. Art. 39.14 (West 2014))


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

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