Tuesday, July 13, 2010

Quit Digging

Yesterday's Houston Chronicle had this editorial in it, giving their views of Houston Police Chief Charles McClelland's ill-advised memo forbidding HPD officers from talking to Defense Attorneys without express permission from the prosecutors. As usual, the Chronicle's effort to suck up to the Lykos Administration makes it painfully apparent how little the editorial board knows about the Criminal Justice System.

But I'll get back to them in a minute.

The first thing that stands out is the response of the Chief, himself. In all honesty, I was kind of excited when Mayor Parker appointed Chief McClelland. I'm a big fan of promoting from within when it comes to law enforcement, because I think it makes for better leadership and respect between the Chief and the rest of the Department. I thought his memo was basically just a brain fart that he would retract when called out on.

I was wrong. Apparently the Chief never heard the old adage about the first thing you're supposed to do when you find yourself in a hole is stop digging.

His quote to the Chronicle astounds me.

"It makes you wonder if there's something improper going on between police officers and defense attorneys."

Are you kidding me, Chief? I knew that you weren't a big fan of defense attorneys from your memo, but did you really just suggest that your own officers are doing something improper?

And you're dumb enough to say that to the freaking media?!?!?

Well, apparently, the stupidity is contagious.

Because First Assistant Jim Leitner decided to weigh in on the topic.

Now, keep in mind, I've been taking it easy on the Lykos/Leitner administration lately because they hadn't done anything too profoundly idiotic recently. I had assumed that Lykos would disavow any knowledge or encouragement of McClelland's new policy.

I mean she is the one who campaigned on the platform of transparency, right? Surely ordering any and all police officers to clam up when it comes to defense attorneys would fly in the face of transparency, wouldn't it? I was kind of thinking old Patsy would give a statement that read something like: "Our Office would never discourage the free exchange of pertinent information between police officers and attorneys representing their clients. The Chief of police was not requested to issue this policy and our Office does not believe it to be necessary in the pursuit of truth and justice."

Nope.

Instead, she sends out Big Jim, who gives a statement that is really making me think that running out in the middle of an interview wasn't such a bad move for him, after all. Here's the Office's official position:

"Harris County prosecutors will permit willing police officers to talk to defense attorneys, but will insist on being present for the interviews."

Are you kidding me with this crap, Jim? Seriously? You're going to insist on being present in all interviews. Hmmm.

Okay, well, then I'm going to insist on being present for all of YOUR interviews with police officers. How about that?

Wait. What do you mean I can't do that? You can only do that if you're a prosecutor? Oh, I see.

Now, it's one thing when the Chief of Police who isn't a lawyer starts writing stupid crap in a memo that borders on witness tampering, but now we've got Genius Jim, the 1st Assistant of the Harris County District Attorney's Office insisting that they be present.

Damn Jim, it was less offensive when us scumbag defense attorneys weren't allowed to talk to the cops at all. Now you want to babysit them to make sure that they are only telling us what you want them to tell us?

That's some damn fine transparency you've got there, Gang.

And last, but not least, let me turn my attention to our friends at the Houston Chronicle -- the D.A.'s Pets.

They have this to say about Jim's moronic statement:

This is a good solution, one that brings defense, law enforcement and prosecution together in the same room to exchange information and facilitate the fairest outcome of a case.

I'm so glad to hear that the Chronicle Jurisprudence Department has given it a stamp of approval.

What if a defense attorney wants to ask questions of a police officer that are part of his legal strategy and he doesn't want the prosecutor to know about it? The Code of Criminal Procedure says the defense doesn't have to tell the prosecutors where they are going with a case. Why does Jim Leitner get to override that?

You know what the difference is between Leitner and McClelland, though?

Leitner is a lawyer and a former defense attorney. He should know better than to encourage that type of behavior.

Is it unethical of him? Quite possibly.

Is it stupid of him? Absolutely.

23 comments:

Anonymous said...

I knew that's where it was headed. Again, people wonder why the average citizen doesn't trust the system.

I also asked in the first post how many ADA's agreed with the policy. At least one did in that thread, and Leitner does, and I'm guessing a few more do as well. They're not interested in transparency. No DAO is.

Rage

Anonymous said...

Doesn't adoption of the policy say something about the reputation of defense attorneys?

Anonymous said...

Murray, this sort of twisted logic and name calling is why you are twice married...and divorced.

Anonymous said...

Defense attorneys in this county need to start using what little power we have. If we get together, we can stop some of the abuses going on here. For example, what do you think would happen, very quickly, if everyone started setting all cases for trial? No plea bargains in any court? What do you think would happen if every appointed attorney on every drug case demanded that the drugs be tested by an outside expert at county expense? How about every appointed attorney demanding investigator fees? I'm betting that once the system ground to a complete halt, went broke, and had no place to put all the inmates, that we could come to some understandings about how some things should be. We can have input in this system, but we just don't do it. We need a strong organization, with all defense attorneys acting together, and we can stop some of the bullying and abuses that go on. We need to get organized and do it.

Derek G. Flynn said...
This comment has been removed by the author.
Derek G. Flynn said...

Anon. 6:20 - You are a coward and fool for making such a comment while hiding behind anonymity. I have no problem with anyone disagreeing with what someone puts out their on the web for others to read and critique, but come on! What relevance does that comment have to the discussion or the article? It is nothing more than a juvenile and classes comment by someone who does not have the spine to put his or her name behind such a comment.

Anonymous said...

Mr. Flynn;...Anon 6:20 is hiding for a reason - and the reason has nothing to do with this blog.

Now...Returning to topic - If the DA's office is volunteering for babysitting duty, let's call 1-800-BABYSIT. It is time that some good defense attorneys request permission to have a SHORT conversation with a police officer or two related to their case(s). To add some fun, I suggest you consume lots of sugar & caffeine prior to engaging the Leitner babysitting brigade . I am sure you can all think of some lengthy and monotonous questioning that lasts through lunch and well into the evening (...sometimes parents "forget" to pick up their kids ...)

Once you have sufficient documentation of the limitations and unfair burden placed on defense attorneys, then the legal and ethical issues can be resolved. ...and the DA and ADA's can be re-educated.

Anonymous said...

Let's see. The defense gets a copy of the report, the criminal histories of all jurors (which is probably against the NCIC/TCIC rules), and access to the truth by their client. Now you're going to bitch and whine that you don't get to talk with the officer, except with the ADA present. I suppose you'd like the ADA's to tell you where the weaknesses of the case are too! You get paid good money to defend mostly POS's. Do some work and earn your money!!!

Anonymous said...

Well, I think the memo was poorly construed and thought of even before it was released. Now, the repercussions are beginning to unfold. I just find it humorous how police officers during these hard economic times have enough money to drive around in Corvettes and Harley Davidsons when I know they aren't "walking the beat" at all times. Finally, the Chief thinks improper conduct is running amok in the office. Let's just throw out the Criminal Code all together and ABA Model Rules, so we can have a bailout. Now, I have a clearer picture of why Stricklin wants to retire. I guess J.Johnson won't have trouble carpooling secretaries on tax payer money any more. After all, November is fast approaching.

jigmeister said...

So, how much trouble are the ADA's that refuse to attend or "listen in" gonna be in? Does the policy mean that phone calls to the cops or any witness is not permitted at all?

I suppose all DA's(senior or not) have no control over their cases and how they work anymore either. I recall that I decided which defense attorneys I thought were ethical and interested in the truth and which were solely interested in harassing witnesses.

There certainly are defense lawyers that I would "request" being present when they interviewed witnesses; particularly if they were children or traumatized witnesses. Most defense lawyers were sensible and ethical enough not to need that kind of supervision or waste of my time.

This sounds more like micro-management and lack of trust than a problem with the defense community.

Anonymous said...

And yet another DA policy that is given to the prosecutors via the chronicle - and not through any channels in the office.

Murray - just FYI - all the DA's I've spoken to say they haven't heard about Jim's policy......

Anonymous said...

"and I'm guessing"

Of course you are. What else do you have? Nothing.

No DA in the office that I have talked to--and I talk to many, many more than you possibly can every single day--thinks the policy is a good idea or wants to limit contact with cops. It's stupid on its face, and gets no better from there.

Bluster on Rage, bluster on.

Anonymous said...

There are absolutely NO Sixth Amendment issues here. Or ethical issues. And it's not witness tampering if the State does it. And regardless of the "relationship" that police officers may have developed with defense attorneys, if Chief McClelland is so concerned about the professionalism of his officers, he needs new officers. Most officers in the past have politely declined to speak with me, and that's okay. When they testify, I can make them look like they have something to hide. Now the whole department has something to hide?? Leitner, please come back to the real world. You were such an honorable man. Your association with Queen Pat has turned you into a pathetic lapdog.

Anonymous said...

Bluster on Rage, bluster on.

Bluster on? This has been adopted as the official policy of the police department and district attorney's office for the fourth largest city in the country, which just so happens to send about 40% of the nation's death row inmates to death row, and I'm blustering?

Cognitive dissonance on, Anon 1:39, cognitive dissonance on.

Rage

Anonymous said...

The administration that campaigned on transparency is the most secretive administration the Harris County District Attorney's Office has ever seen. If the current administration springs new policy on their staff through interviews with the press, why would anyone expect them to have a different strategy in prosecution.

It is clear this blog will not bring down the current administration however I would suggest that everyone make a list, as I have been doing, of every error in judgement and every failure of this administration and make the list with documentation available to the challenger in the next Republican primary for DA.

Richard said...

Take this with a very big grain of salt, because I have not had thee need to use or research this since the late Eighties or early Nineties.

Back then, one of the greatest things from a defense standpoint was to have a police officer (or any other witness who whould potentially be called to testify at trial) too refuse to talk to defense counsel. Why? Because it gave defense counsel an absolute right to depose the witness under oath and on the record. And unlike an examining trial, neither the trial court judge or DA could circumvent this right, e.g., by an indictment.

The further plus was that one the deposition was governed by the looser civil rules, on the whole, and, most importantly, if the witness did not submit to the deposition under oath then he or she coulkd not testify at trial.

FWIW, I only got to use this on two HPD officers, because over the years those two officers were the only HPD (or HCSO) officers that I ever had refuse to talk to me.

Also, FWIW, I was shocked when I moved back to Texas, after prracticing in Florida for six years, that Texas did not have criminal deposition rules like Florida (Florida Rules provided open criminal deposition rules just as in a civil case, whereas Texas required defense counsel to first petition the court for "permission" to depose a prospective witness.

Again, I haven't researched this lately, but I suspect the chief and the DA's office has just opened the door to giving defense counsel a very, very powerful discovery tool.

Anonymous said...

Just some random thoughts:

1. There had to be some underlying reason for Chief McClelland to have issued this policy. Likely one of his legal advisors/policemen weighed in on this and failed to see the collateral damage.

2. Right or wrong, most police officers NEVER talk to defense attorneys about their pending cases.

3. The argument by Nicole DeBorde that "It's irresponsible and it's certainly not geared toward obtaining justice," is negated by the fact that defense attorneys represent defendants, most of whom, are not interested in Truth and Justice. They just want off!

4. Poor Jim Leitner's solution is completely unworkable.

5. Lykos' "Transparency of Office" is an absolute joke. The administration operates in a total veil of secrecy. Only Hannah Chow is regularly consulted by Lykos on policy decisions. These two incompetents have a 19 month history of stupendously stupid decisions. Lykos mainly cares about how to spin facts to make make her look good in the press. She is an unbelievable narcissist who requires daily reassurance that she is the Queen.

Anonymous said...

Hey Murray, how about commenting on the international fugitive who just killed three teenage girls that he hit while apparently DWI.

He seemingly fled to Nepal, his home country the same day HPD released him..

Anonymous said...

I'm interested in others thoughts on this: Leitner is quoted as indicating that DAs will be present during these defense attorney-HPD interviews so that neither side can manipulate or sabotage the other. So Jim, does that mean that when you were a defense attorney you manipulated and/or sabotaged the state or knew of others in the defense bar who did? Or are you saying that the DA's office now is manipulating and sabotaging witnesses?

The fact that there has been no memo to the staff on this issue since Leitner's comment suggests that he shot from the lip.

Cannot shoot straight is right.

Anonymous said...

There is a lot to criticize about Pat Lykos and her current administration. One topic that has not been discussed is Lykos’ wasteful use of community funds for cosmetic renovations to the DA’s Office which is a relatively new facility. Her expenditures are particularly offensive given Harris County’s current economic environment of budget cuts and personnel layoffs. Also, Lykos’ redecorating efforts contribute nothing to office efficiency or productivity.

Despite decreased resources for prosecutors, Lykos finds it appropriate to spend community funds on the following: renovation of Lykos’ personal office, including removing walls, installation of wood floors, and new furnishings; painting the offices of several bureau chiefs; new furniture for the administrative reception area; renovation of Hannah Chow’s office, including removing walls, adding doors, painting, new carpet, and new furniture; renovating the 6th floor break area, including the addition of a commercial ice machine, new floors and countertops, and replacement of an existing door; new carpet, new furniture, and chair railing for the 6th floor reception area; renovation of the 6th floor conference room, including removing walls, new carpet, painting, and the installation of pink lights for an improved on-camera appearance; and, new countertops and cabinetry for the 6th floor receptionist’s office.

And that’s just the 6th floor of the DA's Office. Plans for more unnecessary renovations are in the works.

Anonymous said...

Understandably, this Blog deals primarily with "Life at the Harris County Criminal Justice Center". However, regarding this topic - just run on over to Lubbock and see just who runs those courts.

I have literally seen lawyers talking with officers and cutting deals about leaving or cutting so-in-so slack etc. Very incestuous. How do I know? I'm a criminal (non-ticket) lawyer who was waiting on my own trial and was just standing in the hallway watching the "show".

BTW: the officer on my case DID show and after 1 & 1/2 years I took a deferred and RAN!

Anonymous said...

Well, I bet one solution to this is to have the legislature create reciprocal discovery for both the defense and the state. Both parties have to give witness lists and the defense has to give notice of whatever defenses it is planning to use - much like the State gives notice in its indictment. What do you guys think? I bet even Leitner and the Judge would be willing to rescind their policy if that panned out. It works in a lot of other states...

Just Sayin' said...

What are the career trial stats for the 5 Amigos since the coup at the Harris County District Attorney's Office ~19 months ago?
1. Pat "the Troll" Lykos: 0 for 0
2. Jim "Wee Man" Leitner: 0 for 0
3. Hannah "the Ewok" Chow: 0 for 0
4. Roger "the Backdoor Baptist" Bridgewater: 0 for 0
5. Clint "Wee Man's Bitch" Greenwood: 0 for 1
How's that for competence? And these guys are going to set working policies for jobs they know nothing about. Who's kidding who boys and girls?

Just Sayin'