One of the Houston-based special prosecutors who is prosecuting Texas Attorney General Ken Paxton may have violated state law requiring prosecutors to receive training in how to avoid so-called Brady violations regarding the withholding of exculpatory evidence.

The Michael Morton Act, passed in 2013, requires all prosecutors, within 180 days of taking their jobs, to complete training in how to comply with state laws requiring the prosecution to disclose exculpatory evidence to the defense. The law was passed on the tail of several controversies in which state prosecutors withheld evidence from defendants in pursuit of a win-at-all-costs mentality.

Exculpatory evidence, or evidence that is favorable to the defense, is required to be disclosed under the precedent set in Brady v. Maryland.

In response to Public Information Act requests from Texas Scorecard, special prosecutor Nicole DeBorde has been unable to produce a certificate or other evidence that she complied with state law requiring Brady training.

DeBorde was appointed to the case in August of 2015, joining the original two special prosecutors, Brian Wice and Kent Schaffer. Deborde works in the same criminal defense firm as Schaffer. It is unknown whether she has also been involved in representing the Bandidos motorcycle gang along with Schaffer.

These revelations are particularly concerning after a heap of evidence has come forward that the Paxton special prosecutors have repeatedly failed to comply with state law regarding the grand jury process. Failure to comply during the grand jury phase, and failure to comply with the training requirements, casts additional doubt on whether the prosecutors have complied with the law in producing exculpatory evidence to Paxton.

A case in federal court based on identical facts and brought by the Obama Administration’s Securities and Exchange Commission was thrown out of court for failure to even articulate a factual theory under which Paxton violated securities laws.

It is clear from that decision that the Paxton prosecutors will never, in a fair trial, be able to prove beyond a reasonable doubt, that Paxton criminally violated the same securities laws.

It appears the Paxton prosecutors are more interested in a political vendetta and in getting paid than in complying with their obligation to do justice. It is well past time that the Texas courts step in to put a stop to their abuse of power.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.

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