Friday, August 11, 2017

Cop Versus Prosecutor

The headline coming out of The Coastal Bend Chronicle sounded pretty damning.
Assistant County Attorney Makes Implied Threat on Secret Video Recorded by Officer.
It's a story out of Aransas County, but the headline got my attention when I saw that a defense attorney out of Dallas had shared it on her Facebook page.  It further garnered my attention when I saw that my friend (and fellow defense attorney and native Bryan-ite) Eddie Cortes was commenting on the article in defense of the prosecutor.  Eddie is a die-hard defense attorney, and doesn't throw around support for The Government lightly.

I then read the article and realized that the prosecutor in question is former Harris County Assistant District Attorney Kelsey Downing.  I knew Kelsey when she was a prosecutor here.  We are friends on Facebook, but we never socialized together.  I dealt with her in court on a case or two and always found her to be above-board and professional.  The article made several accusations about her that I found to be shocking in light of my experiences with her.  I watched the entirety of the video to see if it comported with what the article accused her of.

From the news article:
Downing begins the conversation addressing the writing of criminal offense reports, but quickly changes the topic to a personal issue which she says exists between her and the officer.
Well, that's sort of accurate but it's misleading.  The video starts with City of Rockport Police Officer Chad Brooks' body cam rolling in the parking lot of the Aransas District Attorney, where Kelsey serves as First Assistant.  That's your first sign that there's a pre-existing problem between the officer and the D.A.'s Office.   Officers and prosecutors typically are copacetic with each other.  The prosecutor is the legal advocate for the case the officer filed.  Some relationships between cops and prosecutors are stronger than others, but when one side is taping the other, the relationship has clearly fractured badly.

So the fact that the Officer Brooks turns on his video before he even hits the door is pretty telling. Perhaps the biggest flaw that I find with the article is that it characterizes this conflict as a "personal issue" but it doesn't make any attempt to flesh out what that issue is.  I'll write more on that a little further down, but suffice it to say that the "issue" is clearly a professional issue, not a personal one.
Downing spends the rest of the 16-minute recording criticizing the officer's criminal offense reports, telling him they have too much detail and are too long.
That's just a complete misstatement.  The video is sixteen minutes long, but Kelsey's issues with the officer's report writing are largely confined to the beginning of that.  She tells Brooks that he spends too much time self-aggrandizing his personal qualifications and takes issue with him putting factory specifications on a pellet gun in the report.  She tells him that a defense attorney will embarrass him on the stand for this type of over-explaining.

Okay, maybe this is a little over-critical on Kelsey's part, but she moves off of the topic and begins talking about the facts of the case.  As Eddie pointed out in his comments on the article, this is called "woodshedding the witness," and it is absolutely standard practice for trial preparation.  Every prosecutor should absolutely meet with their witnesses and that's what Kelsey and Brooks are doing.

But this woodshedding session is so painful to watch.  Kelsey's questions for Brooks are answered with short replies that are reminiscent of when I ask my kid why he got in trouble.  He isn't evasive, but he's also not helpful.  At one point, Kelsey tells Brooks that she needs Brooks' wife's phone number because she's a witness on the case.  (Side note:  It is never explained why on earth an officer's wife is a witness in a drug bust case, but whatever.)  Rather than give Kelsey the number, Brooks points out that she knows his wife is a court reporter and she can get in touch with her that way.

There is clearly not a lot of love between prosecutor and cop at this point, but in my opinion, Kelsey is trying to be conciliatory.
Citing her lengthy experience as a trial attorney, and her participation in over 70 trials throughout her career, Downing told the officer she had the experience to make these type of determinations.
Um, okay, she's a former Harris County prosecutor and she's the First Assistant.  She has every right to cite her experience in justifying why her trial recommendations are sound.
As the conversation between the two comes to an end, the conversation turns hostile after the assistant prosecutor implies she can give Brooks a bad work reference to other law enforcement agencies if she so chooses. 
That's super misleading.  What she actually says is that she had given a good recommendation to another agency about a different officer and then tells Brooks that she would like to be able to do the same for him.  That's a conciliatory statement that the article unjustly characterizes as implying "she can give Brooks a bad work reference."

As I mentioned earlier, the article's biggest flaw is its failure to make any attempts to uncover why there is so much tension between Officer Brooks and Kelsey.  Fortunately, Brooks' video explains that.

Towards the end of the video, Kelsey points out that Brooks is not allowed to blurt out a Defendant's criminal history when he's testifying.  The wording of the conversation indicates that the origin of this issue is because Brooks had done exactly that in a previous trial.

For those of you who don't practice criminal law, during the guilt/innocence phase of a trial, the Defendant's criminal history is not to be mentioned unless there has been an exception established under the law.  Understandably, police officers aren't fond of this rule.  They would love nothing more than for the jury to be aware that the guy sitting there claiming innocence actually has a rap sheet a mile long.  Experienced cops know that they can't blurt out anything about priors.

Inadmissible testimony about a Defendant's priors will almost certainly lead to an automatic mistrial.  If the judge feels that the infraction is severe enough, under certain circumstances, they could make a finding that the inadmissible testimony was the result of prosecutorial misconduct and bar the case from being retried.

The end of the Brooks video is Kelsey trying to impress upon Officer Brooks that he needs to follow direction and he needs to follow the law.  From what I viewed on the video, it seems that Brooks is pretty non-committal about promising any such thing.

If that is truly the case, then Officer Brooks is a fool.

When I was a prosecutor, I tried to remain cognizant of the fact that the streets were the police officers' arena.  I tried not to second guess how they did their jobs in the line of duty unless it became absolutely necessary.  But on the flip side of that, I always felt that the courtroom arena was mine.  I respected their side of the street and I expected them to respect mine.

What I viewed in Officer Brooks' video was Kelsey Downing doing her best to politely inform an officer that he needed to listen to her advice while testifying.  The Coastal Bend Chronicle grossly mischaracterized what happens on the video.

Disappointingly, some in the Defense Bar have pounced upon the article without really analyzing what the video shows.  I've seen it characterized as a prosecutor criticizing and trying to influence a poor police officer.  In fact, she's a prosecutor who is trying to make sure a witness that she intends to sponsor in trial will follow the law and the rules of the court.  As noted in this article, the Aransas County District Attorney's Office ultimately lost faith in Officer Brooks' ability to follow those rules.  The Office no longer sponsors him as a witness, nor prosecutes cases in which he is involved.

At the end of the day, what more could the Defense Bar ask of a prosecutor with a cop that doesn't seem to want to follow the law?


Anonymous said...

Murray, as always, you do a good job explaining the legal issues and the true context of the video.

In the video, the cop is not being overtly combative with the prosecutor because he knows this meeting is being recorded and doesn't want to come off looking bad in any way. He knows he's going to Youtube this video so he knows he can't give his wife's cell phone number on the video. If he does, then he knows the phone number will be out there over the Internet.

I'm glad the prosecutor office won't accept anymore of this guy's cases. Actions have consequences.

Anonymous said...

Lacking the full context makes it tough to completely side with either party across the board. Kelsey is a talented prosecutor and probably a Godsend to Aransas County compared to the level of ADA they are likely used to but I can't acquit her part in this either. The officer clearly knows he's recording her so this is not some "I forgot and left the camera running" scenario that do happen all the time. As such, his comments are measured and non-combative for the most part, his statement about some emails filling in some of the blanks.

The earlier article alludes to the officer allegedly lying on the stand, a serious charge with potentially serious consequences. Kelsey admits that she did not know but had ordered transcripts to ascertain the truth, a rarity in a world where people move forward after a trial rather than play a costly game of Monday morning quarterback. Given the mention of his chain of command it is likely his job on the line. That is probably why he recorded the conversation, a defensive measure destined to blow up. Small town police departments with 9 patrol officers have no civil service protection and the officer has 7 years invested in the department, so I imagine those emails included something about his desire to move to a bigger department, else why bring it up at all? As a side note, her body language screamed a dismissive attitude, their minor verbal bantering inhibited by the officer's knowledge of the meeting being recorded but obvious from very early on.

And while you dismiss it away, one could easily take her comments regarding a recommendation as either a threat or, much more likely, a bribe to induce him to do things her way for a favorable recommendation. She shouldn't have to offer him anything to follow her lead in trying a case, as Murray said, the courtroom is the prosecutor's domain, so her saying anything along those lines comes across as problematic at very best, the aforementioned emails probably had something in them regarding this because I just don't see Kelsey bringing it up out of the blue.

From the articles, the police chief and department support the officer, expecting the prosecutors to follow policy and formally complain on him, not set up some star chamber where they force the police department to fire the officer without doing so. If the officer is that loose a cannon, you'd think they'd be lining up to write down what happened, provide the chief the facts to act upon, and act sensibly. For the chief's part, he should provide needed training without officers being forced to leave it to answer calls for service, either set a few sessions up where half go one day and the other half go the next day; maybe he was being penny wise and pound foolish.

So again, without more information on what led to this meeting, I'd say both sides have ample wiggle room. The officer needs an attitude adjustment and more training but to completely blackball him, the nuclear option if you will, the DA's office is setting itself up for a great deal of criticism if it doesn't formally complain. That they are so livid about being recorded is going to strike a nerve with the defense bar, the implication that the DA's office is now retaliating against the officer for doing so.

Anonymous said...

I work in Harris County, I wish our prosecutors met with us for 15 minutes to prepare for a case. The best we get is a 3 minute phone call with a prosecutor who is juggling multiple tasks at the same time and a quick "here's what I need you to say" just before being called to the stand on a felony case. Otherwise, the reporter did a terrible job providing a balanced story, just too many questions left unanswered considering the stakes.

Anonymous said...

The fact that you consider trying to figure out if an officer perjured himself on the stand as a "costly game of Monday morning quarterback" speaks volumes about your position. That's without knowing what your body language is "screaming" by the way.

Anonymous said...

Anon 9:46, unless the DA is preparing to file charges against the officer, ordering a transcript is just that. From the bulk of the conversation, it sounded like the officer was baited into providing a defendant's criminal history by the defense lawyer, and that is most certainly a semantic game played by some in the field. If the ADA doesn't object to the improper question in a timely fashion, the officer can feel compelled to answer just how he "knows" the defendant so well when he is asked, more seasoned officers typically answering in general terms so they are not called to task for it.

Anon 8:05, I agree the reporter did a lousy job.

Anon 11:54, the DA took the officer to task about his body language, repeatedly demanding he look her in the eye when replying to her, so it's fair game to mention hers. From a public policy point of view, if the officer is screwing up to the point where the DA's office refuses to use his testimony, effectively ending his career, you make a reasonable point that they should be filing charges against him for perjury or swearing out an affidavit for his chain of command to act upon. That has to be balanced against whatever wrong he is said to have committed but it shouldn't be kept a secret to the public and those may be defending clients in court.

Anonymous said...

According to some of you, due process is a one way street, the policeman unable to address any specific complaints and just enough of the public allowed to draw conclusions based on facts not in evidence. Hinting that he may have perjured himself doesn't mean he did it, the 1st DA admitting she had not read a transcript at that point to draw a conclusion. Now they retaliate against the policeman for recording her yet still no charges or complaint?!?

Anonymous said...

@Anon 1:00

You don't think ordering the transcript and reading it should come before she knows if she is considering charges? To say that she was considering or not considering charges before having the evidence would be a mistake either way.

@Anon 8:28

This is public because the officer recorded it and then put it on Youtube. No one would know anything about this meeting if he had not chosen to do that, agreed?

Anonymous said...

Anon 12:49, this is Anon 1:00. I might be reading between the lines too much but from the articles, it sure seems like the email exchanges prior to the recording included a growing number of people. In small town Texas, that gossip mill spreads faster than anything written in a newspaper. But if the DA was willing to spend the money to order an official transcript, it wasn't likely to be for light reading, it would be to take action one way or another based on the details discovered. Perjury is a serious charge of criminal conduct so if she found something of substance, simply not using the officer moving forward is weak tea, but when spending other people's money to order transcripts, isn't it reasonable to expect it's for a lawful purpose? I look forward to your insights because I just add to my growing list of questions whenever I ponder the situation.

Anonymous said...

541, where is this perjury talk coming from? Did I miss something? I only watched this once, but it seemed like she said she wanted to order the transcript to figure out if his blabbing about the defendant's criminal history in front of the jury was intentional or if his excuse was viable (that the prosecutor asked the question in such a way that led him to answer that way). The officer doesn't seem to deny that he made the statement, in any event.
Also, not sure what you mean by "lawful purpose." If I was considering using a cop in a future prosecution, I'd certainly want to know what happened that other time when his dumb-ass testimony caused a mistrial. The transcript might be helpful in that regard.

Anonymous said...

That officer's career needs to be over- now!

Anonymous said...

Anon @5:41
I think you're assuming way too much. Her decision to act or not act would be based on what she read in the transcript. Also, why are you assuming that it was expensive to order? If the officer mentioned a criminal history during a trial in which someone was convicted, I think there's a good chance there was an appeal, so someone had already ordered a copy. She could even be handling the appeal.

Jig said...

I would certainly have a hard time working with a cop that covertly recorded our pre trial meeting and then releasing that recording. Guessing that in a small county with just a few prosecutors, that would get around fast so that none trust him. But I doubt I ever was that critical of a cop during a pretrial meeting either. Perhaps his prior testimony justified some criticism, but perhaps her method was less than purely educational. Still the covert recording would be enough for me to beg off handling his cases.