Friday, May 24, 2013

Prosecutors dissing the Michael Morton Act, and defending it

At the Texas District and County Attorney Association's user forum, see 24th judicial district ADA Terry Breen's embittered critique ofTexas' new mandatory open file policy for prosecutors - he's mad that he may have to give up incriminating as well as exculpatory evidence - followed by a quite reasoned response from forum regular Greg Gilleland which explains in essence why TDCAA supported a "one-sided" open file bill. Steamed Breen, "This is the most anti-law enforcement bill to come out of the legis. in memory. The fact that it was pushed by the leadership of the TDCAA makes it especially galling, and the fact that it was sold as a bill that 'all the stakeholders,' (i.e. including you and me) is even more galling." Gilleland responded:
I've had an open file policy for my entire career. Folks like my old boss, John Healey and my current boss, Bryan Goertz, mandated it. I never had a problem with it. They felt it necessary for the accused to know all the evidence against him and I have always agreed.

If you search this forum you'll find some debates from years past between myself and former DA John Bradley. In those exchanges, I argued for an absolute open file policy like I practiced with. He disagreed.

Being the son of a former prosecutor and a long time defense attorney had convinced me that abuses in closed files could only be cured by having an open file. ...

My open file policy and my copied file policy have not prohibited me in the least from obtaining big sentences for bad violent criminals over the years. It has NEVER handicapped me even when it revealed facts adverse to my case. And of course, it eliminates a plethora of appellate issues.

I really recoiled in horror when former DA and now Judge Anderson testified to the effect that he wouldn't be much of a prosecutor these days if he had to give everything to the defense and that he would lose a lot.

When I've lost, it wasn't because of the open file policy but because of the facts and the truths they revealed.
And so on. The whole thing is worth a read.  The Governor has already signed the "Michael Morton Act" so Mr. Breen is crying over spilled milk. Come January 1, 2014 it will be the law of the land.

RELATED: From the SA Express-News, "Bill requires new ethics training for prosecutors."


  1. It amuses me somewhat that the media seems to believe that Texas prosecutors always think exactly alike and march in lock step with one another on policy, procedural or legislative matters. I would submit that there is as much diversity of opinion among prosecutors on such issues as there is among the defense bar. With that said, the fact that TDCAA permits and fosters such debate among its ranks on a PUBLIC FORUM says a lot about the progressivity and transparency of Texas prosecutors in general. The criminal defense lawyer's association certainly doesn't have a comparable forum. Any time you have structural change in any profession, you will always have some dissent among those who are just resistant to the idea of having to change the way they are accustomed to doing things. With that said, clearly most Texas prosecutors are already well ahead of the discovery curve now mandated by the Michael Morton Act. All that act has done is codify what is already the policy of most DA's offices across the state. I guess it's just a little bit amusing to me that the media and legislature have completely overlooked all of the progress that has been made in our criminal justice system over the last couple of decades.

  2. As an Investigator for Fort Bend CA Roy L. Cordes, Jr., proud member of TCDAA and someone who has been in criminal justice for 37 years (since I was 19), I cannot fathom not having an open file policy. It is simply unimaginable. Law enforcement and prosecutors should never be afraid of letting anyone know the WHOLE TRUTH. Of course, I came up under the same system as DA John Healey - Thank God. Honesty and integrity must win...always.

    1. Interestingly, the Fort Bend County DA's Office was the only one in the State that spoke against the bill in the House. I know they have an open file policy, which made their opposition a bit connfusing.

  3. Terry Breen shows an astounding ignorance of the law in that thread. Looks like he needs to put on his big boy pants and be the first to sign up for the new prosecutor's ethics course.


  4. Grits, the title to your post is somewhat misleading. As I read the TDCAA forum, prosecutorS - plural - aren't dissing the new law. Rather, it is one prosecutor. And if you go to the TDCAA forum archives, it doesn't take much to discern that this particular prosecutor is.... um...., an outlier, to say the least, in many of his opinions.

    I believe that the vast majority of prosecutors hold the same opinions as Greg so aptly expressed in his responses to Mr. Breen.

    In fact, my reaction to the new law was simply, "what's the big deal, we've been doing complete open file discovery for years!" I would bet that most of my brethren had a similar reaction.

  5. Open files are a good thing. Open incomplete files (ya know the stuff the LEO's didn't send over because it might invoke the exclusionary rule)are bad things and all too common. When video of the stop is not sent over in a drug case how many prosecutors ask for it and how many say I don't think I want to know? How many sit in jail until evidence is routinely deleted and an appointed attorney with 500 cases a year never subpoenas it? What about when that video points to another person's guilt? Oh well as long as you have enough to convict the charged person why rock the boat...we have dockets to move!

  6. 3:59, I doubt I'd be able to write anything y'all didn't nitpick with but the plural prosecutors may also be read to describe the two of them engaged in the debate. Plus, since you wrote that more have joined in.

    I realize success has a thousand authors and now that the law has passed I expect all my prosecutor friends to immediately forget that for many prior sessions their agents fought open files tooth and nail with arguments virtually identical to Breen's. Now nearly everyone will say they were always for open files, but the truth is even if I disagree with him, Breen's being consistent and I'll guarantee he's not the only prosecutor in the state who feels that way.

    And 11:28, I don't know if you consider this blog part of "the media" but part of the point of this post was to display the "diversity of opinion" among prosecutors. I know better than to portray prosecutor opinion as a monolith, even if it sometimes seems that way because their reps at the Lege advocate on behalf of only a narrow range or prosecutor interests - their public positions taken aren't nearly as diverse as the array of opinion among prosecutors on the ground.

  7. Terry's fear of disclosure makes me wonder if he can be trusted with the power Texas gives prosecutors. What evidence is Terry so determined to keep from the defense?

  8. Regardless of what many prosecutors say publicly the fact is most would agree with what Doug Mulder said years ago about it all being a game. "Doesn't matter if the defendant is guilty or not, what matters is if I can get a conviction. And if the defendant is innocent, all the better, because that shows just how good I really am". He said that a few years after Randall Dale Adams was exonerated.

  9. Yes@6:17 Good at convicting...not good at doing justice as the law defines his duty and common sense ethics would dictate.

  10. Interesting reading that some prosecutors didn't find the Michael Morton Act no big deal because they practice open records. 1. The Michael Morton Act is for those that don't. Not all people are criminals yet we have laws. I find that one more law needs to be written and passed NO IMMUNITY for prosecutors. Maybe that will really made prosecutors think before they present to the court. Again it will not be for those that follow the law but for those that don't. Doctors and all other professional don't have that immunity. Why??

  11. Anyone have any thoughts on a case in which newly discovered evidence is obtained showing that evidence in a criminal case was destroyed BEFORE the trial? Just ran across this one and am curious as to any previous issues like this one.


  12. superstes..... I thought trials were to provide a medium to protect the innocent and punish the guilty.

  13. Breen thinks it is not illegal to view child pornography. Does he not know the law or is this his day to day doings? I don't think he has a clue. He's not intelligent enough to prosecute any criminal case.