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?
