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.
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.
Comments
Obviously something has happened to make this come about. Maybe Jolanda got a little too excited when Jarvis got arrested......
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."
What is chief afraid of or hiding?
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.
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.
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?
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?
(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.
You just described the "theoretical" job of a prosecutor. And if you were worth your salt as a prosecutor, you'd agree.
I do agree. And I was.
Y'all wonder why many of us don't trust those in the system? This is a great example.
Rage