Alabama Ethics Commission says it doesn't have to share exculpatory information with accused

The Alabama Ethics Commission on Wednesday said it did not have to disclose evidence that could potentially clear a person accused of violating state ethics laws during an investigation.

The unanimous vote came after an hourlong discussion where the Alabama attorney general's office argued the accused had the right to access such material, and members of the commission raised concerns about the commission's investigatory nature, the potential of discouraging legitimate complaints, and the current wording of the ethics statute.

"It's clear that at some point in time, exculpatory material is something that a respondent or defendant is entitled to, and additionally, they're entitled to read the material," said commission member Lyn Stuart, a former Alabama chief justice. "The question is, when are they entitled to that information? When should that information be provided? And then secondarily, who should provide the information to them?"

The Alabama Ethics Commission investigates complaints about potential violations of the state's ethics act for public officials, acting as a grand jury under Alabama law. The commission itself does not bring charges. Should the commission find probable cause that a person has violated the law, it refers the case to the Alabama attorney general or a district attorney, who decides whether or not to prosecute the accused.

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The debate centered around a provision known as the Brady rule, stemming from a 1963 U.S. Supreme Court ruling. The Brady rule requires prosecutors to disclose information to defense attorneys that would either prove a client's innocence or raise questions about the credibility of witnesses for the prosecution.

Material filed with the commission, including the identity of the person making the complaint, is considered subject to grand jury secrecy rules. Alana Cammack, a deputy attorney general with the attorney general's office, argued before the commission Wednesday that state courts have ruled that grand jury secrecy requirements may be breached to disclose exculpatory evidence to the accused.

"What this commission does can ruin lives and careers, and if exonerating evidence is not considered and present in its appropriate context, that destruction might happen for no reason," she said.

The commission considered three opinions: one that said the commission did not have to disclose exculpatory material; one saying the commission could do so but was not required to, and a third supported by the attorney general's office and the Office of Prosecution Services that would have required the disclosure of exculpatory information, pending review by the commission.

Outlining the first two opinions, Brian Paterson, an attorney for the commission, said earlier that the Legislature had addressed due process rights for those accused before the commission, "and did not provide a right to exculpatory material." Paterson said that the Alabama Constitution's due process guarantees apply to criminal prosecutions, not investigations, leaving compliance with the Brady rule to prosecutors pursuing violations of the ethics law.

"The proper authority with the discretion and the duty to assess and disclose what information might be exculpatory would be the district attorney or the Attorney General, rather than this commission," Paterson said.

Members of the commission expressed uneasiness with the attorney general's request, saying it went beyond the law as written. John Plunk, the chair of the commission, asked Cammack if such disclosures would have "a chilling effect" on complaints if people knew their names would be disclosed to the people they were accusing.

Cammack said she hoped not, "because obviously, we all want an honest and transparent government."

"People report crimes to the police and get called as witnesses and they are made public as well, sometimes," she said.

The attorney general's office said in a statement Wednesday that the commission's decision was "deeply concerning, both ethically and legally."

Stuart, who called herself a "strict constructionist" when it came to reading law, said she wished the law was clearer.

"I just don't see that we have the authority to expand upon what's there, and declare that we have certain obligations or responsibilities or rights for that matter, or obligations to determine," she said.

Contact Montgomery Advertiser reporter Brian Lyman at 334-240-0185 or

This article originally appeared on Montgomery Advertiser: Alabama Ethics Commission says it doesn't have to disclose evidence