I was a little surprised when an anonymous friend of mine (not a police officer) sent me a copy of this memo circulated from Houston Police Department Chief Charles A. McClelland, Jr. to all HPD Officers.
If the picture is blurry on your computer, the highlighted portion reads:
Effective immediately, officers shall have no discussion with criminal defense attorneys regarding any pending criminal case without first obtaining express permission from the federal prosecutor, assistant district attorney or municipal prosecutor assigned to the case. This circular applies to criminal cases pending in any federal, state, county, or municipal court and shall include the prosecution of traffic citations.
Now, it doesn't exactly take a rocket scientist to realize that police officers generally don't enjoy talking to defense attorneys about their cases. After all, the defense attorney is usually trying to undo the job a police officer has done on the attorney's case, isn't he?
But when I was a prosecutor, we knew better than to ever instruct a police officer or any witness from talking to defense counsel. If a police officer's work on a case was so fragile that a phone conversation with the defense attorney could make the case fall like a house of cards, then we had a really big problem.
Telling an officer not to talk to the defense was unethical, in my opinion, and it gives an appearance of impropriety that borders on witness tampering.
If the officer didn't want to talk to the defense attorney, that was his or her business. They could expect the standard cross-examination question of "Isn't it true, Officer, that when I called you to talk about the case, you refused to speak with me?".
The good cops that I knew never had to answer that question, because they always spoke to the defense bar when called. They knew the job they had done on the case, and no call from a defense attorney was going to make that come undone.
So, the memo coming from Chief McClelland is actually doing his officers a pretty big disservice, if you ask me. The men and women who work for him are entrusted with guns and badges and the power to deprive people of their freedom, but he doesn't trust them to have a conversation with a defense attorney??
What kind of message does that send?
And by the way, Chief, you just gave every defense attorney in this county some great cross-examination material on each and every one of your officers before they even hit the stand.
They deserve better than that.