The Miami Public Defender’s Close-Up

Since outrage is the flavor of the day, why not the public defenders in Miami?  And as David Ovalles at the Miami Herald shows, they’re plenty steamed.

A Miami Beach cop, worried about his words being twisted at trial, recently used his newly outfitted “body camera” to record a hallway interview by a defense attorney — without telling her first.

The resulting objection from the Miami-Dade Public Defender’s Office, it is safe to say, was strenuous.

Not to be trite, but they strenuously objected? About what?

The incident sparked outrage from the Public Defender’s office, which called the recording “a violation of Florida law” and re-ignited long-running complaints that defense attorneys in minor cases are generally not allowed formal interviews with witnesses before trial.

Except it’s not really a violation of Florida law, which exempts police from a prohibition on non-consensual recording of private communications.  And more to the point, the police officer recorded a communication in the courthouse hallway. While the chat may have been conducted in whispers, or without anyone else around, it was otherwise conducted in a public place.

What appears to raise hackles is that the public defender had no expectation that the officer would record his informal hallway “deposition.”  Of course, that’s only true until they find out for the first time that cops have turned their cameras on. After that, there can be no claim of surprise.

And what’s wrong with that?  If a cop records his being questioned by the defense lawyer, he creates a record of what was said so that words can’t be put in his mouth later.  And that same record, memorializing the conversation, can prove that words helpful to the defense were, indeed, said. Fair is fair.

Underlying the problem is that, while formal depositions exist for felony cases, there is no comparable discovery mechanism for misdemeanors, under the misguided belief that they’re just not serious enough for the effort.  The widespread assumption is that a misdemeanor conviction is no big deal, which is held by pretty much everyone except those who take a misdemeanor hit and everyone who cares about them, who realize that any conviction can wreak havoc with their life.

So, denied formal depositions, an unwritten process of hallway depositions has developed, where lawyers talk to cops outside the courtroom, informally and voluntarily, in an effort to get some degree of understanding of what the cop has to say.  And that’s what was recorded.

The episode and backlash have spurred Miami Beach police to ban officers from using the new technology at such so-called “hallway depositions” — and underscored the difficult balance of providing the public a transparent view of how law enforcement operates while protecting privacy rights.

What “privacy rights” are at stake?  That’s unclear.  There’s no doubt that the PD are outraged, but who isn’t these days. What can’t be found is a good reason why they’re outraged. Sure, they don’t like having their hallway depositions recorded by the cop. Who would? Just as cops don’t like having their interrogations of perps recorded, so they can claim that the dude spewed totally of his own volition.

If the issue is that the police have access to their recording of the hallway deposition, which they can pull out when it serves their interest but will be denied PDs when it doesn’t, that would be understandable. It would also be curable by making the recording disclosable, or adding a missing video presumption should the cop claim he forgot to turn the body cam on.

It appears that the PD’s complaints were sufficient to get Miami Police to prohibit officers from using their body cams to record these hallway interviews. A victory for some amorphous claim of privacy?

The new policy has done little to mollify Martinez, the public defender who now plans to file a public-records request to determine exactly how many times Miami Beach police officers have recorded his lawyers in court. He believes that officers will now stop consenting to the informal interviews, leaving defense lawyers less prepared to defend the accused.

There’s the catch. These hallway depositions arise from a gap in the law that puts misdemeanor defendants at a disadvantage.  The ability to question a cop in advance of trial, even if informally, inures to the defendant’s benefit.  It does nothing to help the cop or the state, but any information defense counsel can glean is more than he had before. More information about the prosecution is always a good thing.

But it’s a voluntary procedure.  There is no entitlement to a hallway deposition, and cops can’t be forced to talk to public defenders. It’s just developed over time as the way things are done.  Now, it’s being revisited in light of the PD’s griping about the unfairness of cops memorializing the interview.

What if cops decide they don’t feel like chatting anymore? What if cops decide they won’t talk without a prosecutor at their side? When they’re doing it voluntarily, they can demand any terms they want. Or they can refuse to be interviewed at all. And what is the Public Defender going to do about it?

“You have a constitutional issue here. You cannot prepare to go trial,” Martinez said. “You cannot adequately advise your client. It’s outrageous.”

See? I told you “outrage” was a thing.  While there is a constitutional right to prepare for trial, there is no such right under the United States Constitution to depose cops, whether formally or informally. They’re just used to the good life in Miami. In many jurisdictions, defense lawyers get no depositions for any crime, big or small. And the scope of permissible discovery is negligible, which is why criminal defense lawyers can’t bear hearing civil lawyers whine about their discovery beefs, where it’s about money rather than lives.

Does the argument that misdemeanors are as worthy of a serious defense as felonies, and thus formal depositions where they’re provided, make sense? Of course. And that’s true everywhere, not just Florida. But that’s a different fight than whether cops should be able to use their body cams to record hallway depositions.

If the Miami Public Defender’s outrage results in the end of voluntary hallway depositions, and the law isn’t extended to provide for formal depositions in misdemeanor cases, he will have won the battle over privacy and lost the war over the ability to prepare a trial defense. How’s that going to work out for defendants?

Before you crank up the outrage machine, bear in mind that just because a situation turns bad doesn’t mean it can’t get worse. Just smile for the camera, and ask whatever you want. The benefits and detriments of recording cut both ways, and there’s nothing outrageous about being on the receiving end once in a while.

7 thoughts on “The Miami Public Defender’s Close-Up

  1. wilbur

    just a thought: If the police officer said something different at trial than he said to the defense attorney in the hallway, how can the attorney properly impeach him? There has to be another individual present and listening at the hallway interview, otherwise if at trial the officer denies saying in the hallway what is alleged there’s no witness available to testify otherwise.
    This would seem to militate against the police wanting to record the interview, in that the video could act as an impeaching witness.

  2. Alex Stalker

    Thanks for reminding me how great it is to work in a jurisdiction where I get fairly comprehensive discovery prior to trial, and have the right and ability to interview the witnesses against my clients prior to trial.

    I don’t understand how attorneys can do this job effectively without those things.

  3. Alex Bunin

    Carlos Martinez is fine PD and a smart guy. I doubt he will do anything to jeopardize the practice of getting hallway depositions in misdemeanors. However, unlike me, he is an elected official and being able to express public outrage now and then can be politically savvy.

  4. Rick Horowitz

    When I first read this story, I thought I must be a poor criminal defense lawyer, because my first thought was “where’s the beef?”

    We’re always complaining (where I practice, at least) that cops lie about questioning witnesses all the time, and we wish we could have more recordings to see what really happened when someone “consented” to a search, knowing they had 500 lbs of marijuana in the house.

    But here there is a complaint about a recorded “deposition” of a witness?

    And so, as I said, I think “damn, I’m not in tune enough with the need to twist words, I guess, to be a decent defense attorney.”

Comments are closed.