Thursday, September 18, 2014

Prosecutor's jeremiad against open-file law met with uncomfortable silence

Several days ago on the Texas District and County Attorneys Association user forum, prosecutor Terry Breen from Goliad suggested that, although "The TDCAA has a long standing policy of being neutral on pending legislation. This needs to change."

Why? "During the last legislative session," Breen alleged, "the result of this passivity was the passage of the Michael Morton Act, which expanded the defendant's right to discovery from exculpatory and mitigating evidence--'Brady material'--to include effectively any relevant evidence, including incriminating evidence that the state might wish to not even use at trial." (This, btw, is revisionist history: TDCAA was intimately involved in negotiating the language of the Michael Morton Act; it was their decision to drop the demand for reciprocal discovery that got the deal done.)

Mr. Breen believes that, "The Association should come out publicly for repeal of this ghastly and costly mistake, and then campaign vigorously to that end. Since the act is a costly unfunded mandate on the counties, county judges should be recruited to press for its repeal as well."

His jeremiad, though, has thus far been met with an uncomfortable silence on the normally active user forum. If there's an uprising on the horizon, it's not showing up in that venue. Long-time readers may recall that Mr. Breen made similar complaints when the bill first passed and not all of his colleagues agreed with him. Grits admits the law may not be perfect but has argued that, since it only took effect in January with seemingly no major hitches - beyond a few DAs grumbling about unfunded mandates - the Legislature should leave it alone for a session to give counties around the state time to implement it, judges time to rule on it, appellate courts a chance to consider it, etc., and then evaluate how it has played out. They'll have a lot more information to work with if the Lege evaluates and possibly tweaks the Michael Morton Act in 2017, perhaps making it the focus of some committee's interim charge.

But Mr. Breen doesn't want to tweak the law, he wants to repeal it, going back to what I suppose in his mind's eye were the good old days when he got to decide what defense attorneys did and didn't see in his case file.

Whatever one's view of the Michael Morton Act, and Grits is a strong supporter, Breen is deeply misguided to encourage TDCAA to actively campaign for or against legislation. Too many prosecutors disagree on these and various other questions for the association to always speak with one voice. It would put their full-time staff in an impossible position.

Besides, it's not true TDCAA takes no positions on legislation. They register as officially neutral but routinely speak for or against bills all the time in such an obvious fashion that it's a bit of a running joke in the committees before which they routinely testify. They also facilitate elected DAs and their reps showing up at the capitol to testify and they definitely take positions. This feigned neutrality has been quite an effective tactic for TDCAA over the years and if they began taking pro/con positions bill-to-bill, as Breen asks, it would reduce their effectiveness at the capitol and needlessly create divisions among their base.

If I were their political consultant, I'd discourage TDCAA from taking Breen's advice. OTOH, there's a darker side of me that considers, as a supporter of reforms like the Michael Morton Act, that criminal-justice reformers can only benefit if the prosecutors association were to adopt less effective tactics or even implode through internal dissent. But it appears the group's leadership is probably smarter than that. Don't take the bait, Rob and Shannon. Y'all know better.


The Comedian said...

This makes me wonder how many innocent defendants Breen has convicted by withholding exculpatory evidence. Sounds like an investigation might be in order.

Anonymous said...

Mr. Comedian, at the very least his comments show that Mr. Breen considers it acceptable to convict innocent people. Maybe he is against the Morton Act because it forces him to do his job properly?

Brunner said...

Its the week of the TDCAA Annual Convention, so a good chunk of the prosecutors across the state are "off campus" this week. Maybe that accounts for the lack of response to Mr. Breen's plea. Or maybe its just such an "out there" position that's not worthy of a reply.
The Morton Act is certainly not perfect. Its got some 18-wheeler sized holes in it that need to be tightened up, etc., and it needs to harmonize more with the rules of ethics (e.g., who owns the discovery contents of a defense attorney's file? the State Bar seems to indicate that its the property of the client while the Morton Act can be interpreted in a way that discovery almost remains the property of the State even though its sitting in a defense attorney's file), etc.
But just because a law isn't perfect isn't an excuse to throw it out (baby + bathwater and all). Rather its a sign that we ALL need to roll our sleeves up next session and fix it: keep what works, clarify what's confusing, and only reject what is simply never going to be able to be fixed or clarified (and I don't frankly think that would be much).
What we really, really can't do is just shake our fists (as prosecutors) at the Act and wish for a magic time machine to take us back to what I call the "Good Ol' Bad Ol' Days" to some time when we could hide all the cards. That day is gone and good riddance. Better to light a candle than simply curse the darkness. Work to fix it instead or working to scuttle it. Ain't Gonna Happen.

Brunner said...

And by Aint Gonna Happen, I mean a wholesale repeal of the Act.

Anonymous said...

Kind of makes one wonder just what kind of skeletons Mr Breen has hiding in his closet. Agree that this law is not perfect in any way, but at least it's a step in the right direction towards reigning in prosecutors whose only goal is a conviction, guilty or not.

Anonymous said...

You would think it would just be common sense that both sides should have to show all their cards in order to insure a fair trial..... but, like they say.. "Common Sense is just not common" ESPECIALLY when it comes to the Criminal Justice System.

Anonymous said...


Anonymous said...

They can't take a position because of their tax exempt status with the IRS. But this whole debate is hilarious because legislators constantly do things because the prosecutors are for or against bills.

dfisher said...

The Michael Morton Act only restates what has always been the law in the State of TX since 1876.

The TX "Inquest Statute" requires all evidence collected in an unattended death to be turned over to the Justice of the Peace, who must then file an "Inquest Report" with the county district clerk and keep a separate copy in his or her office available for public inspection, which includes defense attorneys.

What is required to be in an inquest report is extensive and covers just about everything in the Morton Act. Every defense attorney handling a death case should read former AG Cornyn's 2002 Opinion JC-0542 in its' entirety.

Barry Green said...

Ask any JP if he has ever prepared an "Inquest Report". He'll look at you like you are crazy (as he takes a spit of tobacco.)

Doesn't happen. Never happens.

Robert Langham said...

Is there ANY state-created position that isn't abused by the folks who are entrusted and sworn into it?

Anonymous said...

Travis County prosecutors BELIEVE they have an open file policy. They don't. If you ask for something that is already in their file then they will probably give it to you... but otherwise it is like playing a rigged game of "Go Fish"

Q: Do you have a lapel microphone recording?

A: Go fish!

Q: Do you have a crime victim compensation application?

A: Go fish!

Q: Do you have any medical records?

A: Go fish!

I swear that rural Polk County in deep east Texas has a better open file policy than the supposedly enlightened land of Travis County.