Thursday, July 1, 2010

A Troubling Memo

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.

36 comments:

Anonymous said...

Most jurisdictions tell their officers to not talk to defense attorneys unless the DA is present. And I have seen lots of officers get off the stand and hug/handshake/greet the defense attorney on the case. I'll never forget Paul Lasalle getting off the stand and Todd Overstreet asking him if he got his Christmas Card and Paul said "yeah, loved it, did you get mine." Both class act guys.

Obviously something has happened to make this come about. Maybe Jolanda got a little too excited when Jarvis got arrested......

Anonymous said...

So the officers have to get "express permission" from the District Attorney before talking to defense counsel. How can the DA do anything other than give that permission? The DA can't say "no don't talk to the defense attorney." I don't think that would just appear unethical, I think that is flat-out a violation of the rules of professional responsibility.

So this memo doesn't just set up officers for problems on cross-examination, it sets up all the prosecutors for accusations from officer that "she told me I couldn't talk to the defense attorney."

Anonymous said...

Isn't the question - "why won't you talk if you got nothing to hide?" appropriate now?

What is chief afraid of or hiding?

Anonymous said...

Absolutely, as a prosecutor I want to be present when defense counsel talks to the police officer or the victim for that matter.

Anonymous said...

I wonder how many ADAs are in favor of this. DA's frequently prevent witnesses from talking to Defense lawyers. It's no surprise the cops are doing it too.

Anonymous said...

So my question is Who put the Chief up to issuing this order? It does not sound like something he would come up with on his own.

jigmeister said...

How are the cops gonna interpret "express permission", when most DA's will tell them I can't or won't tell you who to talk to. That doesn't sound like "express permission". Also wonder who or what occurrance prompted this memo.

Anonymous said...

Wow. Just wow. It's one thing to think it, but to actually make it a written policy... Honestly, it breaks my heart a little. Who are the good guys?

Anonymous said...

"Anonymous said...
I wonder how many ADAs are in favor of this. DA's frequently prevent witnesses from talking to Defense lawyers. It's no surprise the cops are doing it too.
July 2, 2010 10:23 AM"

Bullshit. More like inexperienced defense attorneys tell witnesses not to talk to law enforcement. I don't know any ADAs who tell witnesses this, and most of the defense bar as well. no ethical lawyer needs to do this. A case is what it is. They can talk to whoever they want and don't have to talk to anyone if they don't want to, including the state. Anon 10:23am, get with it.

Anonymous said...

Anon 455--right on. I've never told a witness or victim not to talk to the defense, but I've damn sure had witnesses tell me the defense told them not to talk to me.

Anonymous said...

This idea and the memo looks like something that Patsy and Craig Ferrell conjured up after a single incident that made someone eat crow. They are two peas in a pod... Both make policy / disciplinary decisions from their ivory towers and really have no idea the day to day impact they have.

I realize that the Chief's signature is on it and he ultimately takes responsibility for it coming from his office, but make no mistake.... McClelland is not the type of guy to put out stupid bullshit. He has been a police officer for a LONG time and has a clue...unlike our DA and HPD legal.

My guess is that an officer spoke with a defense attorney who recorded it and the officer stepped on his dick while on the stand. This made Patsy's people and the legal folks over at HPD angry. A blanket policy to prevent it from happening again was subsequently mandated.

This little "nugget" gift to local defense attorneys has Pat Lykos and Craig Ferrell written ALL over it.

Anonymous said...

This is completely retarded! The police should NEVER discuss their case with the defense. There's no reason. If the defense has questions, they should ask the prosecutor. The cops don't work for the defense and have no ethical, moral, or any other reason for letting them know any more about their case than is in the report. The only problem I have with it is that the memo had to be issued in the first place. I put it up there with a memo from the Chief saying, "Always tell the truth when you're testifying." It shouldn't need to be said (or maybe it should).

The officer doesn't have anything to hide but by giving information to the defense it could give his client an excuse, not a true defense. Even the DA's have "work product" that they don't turn over! What's the difference?

Anonymous said...

I could see consulting with the DA if an officer feels nervous. But - as long as we are on this subject - how about defense attorneys who tamper with witnesses in domestic violence cases - you know - write out their affidavits for them? How can a defense attorney claim to represent the interest of the defendant and the complainant at the same time?

THE LONE RANGER said...

AS A PERSON ON THE INSIDE WILL CLEAR THIS MISUNDERSTANDING UP.THIS MEMO WAS CREATED BY DA EMPLOYEE HANNAH CHOW WHATEVER HER TITLE IS. WITH STRINGS ATTACHED FROM A CERTAIN UNITED HOUSE REP IN ACRES HOME,AND 2 CITY COUNSEL MEMBERS ONE BEING BRAFORD. THIS ALL CAME ABOUT WHEN SOME OFFICERS TALKING ABOUT A CASE IN PRESENCE OF A GRAND JURY. YOU WILL HAVE TO FILL IN THE BLANKS CONCERNING CERTAIN NAMES. NOW BACK TO THIS MEMO WHICH TO ME AS NO MERIT NOR IS LEGAL TO THE WORDING OR FACE VALUE OF IT. IF I STAND TO BE CORRECTED PLEASE CORRECT ME.

Anonymous said...

Why are you assuming just because the memo directs officers to seek permission from a prosecutor first before speaking with defense counsel that the prosecutor is either going to tell the officer to not speak with opposing counsel or the officer will, on his/her own accord, refuse to speak with opposing counsel? The bigger picture is really just notice to the prosecutor that his/her witness has been approached by the defense to talk to him or her. There's nothing wrong with that. There's nothing unethical about telling your witnesses to please refrain from speaking to defense counsel until you tell me he/she has requested to speak to you. No prosecutor with an ounce of common sense should ever tell their witness to refuse to speak to opposing counsel, that would obviously be unethical. Any smart prosecutor should tell all of their witnesses, "I want to be there or on the phone when you speak to defense counsel, not because I'm afraid of what you'll tell him/her, but because I want to know exactly what you tell him/her." There's a difference.

Anonymous said...

The police work for the people and as such, should not have to worry about their chief punishing them because an ADA was handed his hat in court. A properly prepared ADA is not going to worry about his police witnesses talking to the other side but in case you haven't noticed, Harris County is really starting to feel the pinch on those that have been dismissed or left out of disgust.

Anonymous said...

Wanna bet it was the cops talking to the Union Attorneys about the alleged beating by the other cops.

Anonymous said...

The cops should no more speak with the defense than they should talk with the press. Both are slimy and pretend to be your friend. Just say NO!

Anonymous said...

In all seriousness, Murray, you think that the officers should be able to speak with the defense yet you censor your blog. I guess you don't want people putting out "inappropriate" comments, no matter how "appropriate" the writer believes they are. I guess that might be what the memo is about as well. Your thoughts?

A Harris County Lawyer said...

Anon 11:54 a.m. & 11:58 p.m.
On behalf of all of us "slimy" defense attorneys, thank you for providing an illustration of the type of attitude we get to deal with from people who only believe there is one side of the story to everything.

And seriously, we are equating my blogging to the job that police officers do when it comes to censoring? Are you kidding?

First of all, I have certain guidelines on what I will censor. I don't put up personal issues (especially not of the sexual nature). And I don't put up stuff that could be deemed libel (if untrue) unless I know for a fact that it IS true.

Second of all, NOBODY GOES TO JAIL BECAUSE OF WHAT IS WRITTEN ON THIS BLOG!!

Third, if a police officer doesn't want to talk to a defense attorney (or the press), that's his business. I've never said differently. I did point out that if his case is so fragile that it would fall apart during a phone conversation then he has a problem.

I am keenly aware of the fact that prosecutors and police officers view themselves as being on the "same side", and that's fine. But theoretically, the police are there to serve the PUBLIC and sort out the truth of the matter. Having an open mind and being able to look at different angles makes for a better police officer (at least on the witness stand).

I always appreciated the Officer that talked to the defense attorneys and didn't have anything to hide on the stand, back when I was a prosecutor. They looked professional and in charge of their business. They had also gotten an idea of where the DEFENSE ATTORNEY was going to be going with his cross when they had spoken.

My problem with the memo is that the Chief has just ORDERED all police not to speak to the defense attorney. Even the slightest illusion of neutrality has gone away and that makes them appear to be nothing more than part of a convicting machine. Most cops I know aren't like that and aren't scared to talk to defense attorneys.

And don't even get me started on how sometimes these conversations with the police officers can actually help resolve cases without trials. Can you really argue that there isn't some value in THAT?

Anonymous said...

Well spoken, Murray.

(from a police officer who reads your blog)

..By the way, sometime sit can be helpful to speak with the defense. Nothing wrong with developing a rapport and getting to see where he/she is coming from. COMMON SENSE should dictate here folks.

Anonymous said...

"...theoretically, the police are there to serve the PUBLIC and sort out the truth of the matter. Having an open mind and being able to look at different angles makes for a better police officer (at least on the witness stand)."

You just described the "theoretical" job of a prosecutor. And if you were worth your salt as a prosecutor, you'd agree.

A Harris County Lawyer said...

Anon 10:54 p.m.,

I do agree. And I was.

Anonymous said...

I just read the Houston Chronicle article. I am glad you are pointing out stories for them to write. I read Lykos' response and was so disappointed. Lykos should have repudiated the policy and instructed her ADA's not to be involved in deciding if any officer should talk to a defense attorney. I strongly suspect Holmes would have issued any immediate email to the entire office instructing his ADA's not to be involved as required by the HPD memo. But then Holmes was a true prosecutor and dedicated to seeing that justice was done.

Anonymous said...

Murray---could you please post this letter on HCCLA LISTSERVE----the copy here is hard to read and copy. Thanks. A FRIEND

A Harris County Lawyer said...

I'll try to post to the listserve now.

Anonymous said...

Murray---Thank you very much. You are a good man. A Friend

Anonymous said...

It is great to see that Brian is looking at both sides of the story. I am glad to know that he reads this blog. You do a great service for many who are not involved in the court system. You allow us an insider peek into what was previously kept behind closed doors. It is good to see someone stand against the stupidity that walked into the office in the form of Lycos. Thank you.

Anonymous said...

Hardworking, diligent citizens of Harris County and the surrounding areas applaud you, Murray. A prosecutor's duty is to uphold the law in good faith through their best efforts. A prosecutor's job similarly represents that of an officer on the street except in the court room, and thereby, respecting the victims demands by seeing a case to their full potential. I think there are some Harris County employees that sit on their laurels meandering around in their inner circle to bring home the hefty benefits along with the pay. Maybe some of those employees should go muster some courage and try a case once in a while. If they don't like the office then leave, and I'm sure they are all well-suited for private practice. Prosecutors and judges are the last line of justice and if people cannot depend on them, then who exactly can we depend on?

Anonymous said...

Somewhat off topic, but can you or any of your readers confirm that Judge Stricklin turned in a letter of resignation to the governor? If that's the case, will Marc Brown be appointed judge?

A Harris County Lawyer said...

I have heard the rumor that Judge Stricklin was retiring early, but I don't know whether or not they are true.

Anonymous said...

The real reason for the chief's letter is municipal court. It has become a joke. The new presiding judge was walking through the building and heard officers and defense atty's not only talking about cases, but coming up with deals for the defendants. Officers have no business making deals or any arrangements on any case but it has been done there for quite a while. I have no issues talking to def atty's and do it often, but I won't discuss the case and I won't be the one who decides what happens to a case. That's not my job as a cop...

Anonymous said...

we believe the rumor is true. The hangup is Gov. Goodhair wants to place one of his top contributors in the job for his political reasons.Not a good reason for the criminal justice system,but he is not well known for worrying about what happens there.

Anonymous said...

Judge Stricklin's last day on the bench will be Friday.

Anonymous said...

I am Rage Judicata's lack of surprise.

Y'all wonder why many of us don't trust those in the system? This is a great example.

Rage

Anonymous said...

I had the opportunity to work in as a prosecutor in municipal court, and I think this policy may have arisen b/c of problems in municipal court. In municipal court, several defense attorneys work deals with officers in which the officers conveniently forget any detail related to a case or agree not to appear to testify in exchange for who knows what (very suspicious). I witnessed this myself. Defense attorneys would basically bargain for dismissals with the officers (what the officers got in the bargain, I don't know). Apparently, at one point, a municipal court attorney attempted to address this corrupt practice. One of the officers threatened the attorney, and as a result, municipal court attorneys have been instructed not to get in the way of these deals.