Contrary to the way lawyers talk about witnesses, we don’t own them. There aren’t really prosecution or defense witnesses, even though there are witnesses whose testimony would make them more naturally appropriate for one side or the other. They are just witnesses.
If a witness whom I wanted to call on behalf of a defendant, and who was cooperative with the defense and sympathetic to the defendant, is willing to talk to me, we talk. At no time, however, would I tell the witness that he cannot speak with the police, the prosecutor or anyone else. It would be obstructionist, unethical and wrong. I can, and will, tell a witness that he can choose not to talk to anyone he doesn’t want to talk to. That’s his right, and the cops, who may well try to strong arm or trick the witness into talking to them by telling them that it’s a crime for them to refuse and they will be arrested and executed if they don’t, are lying.
Then, cops lie, and it’s perfectly lawful and proper for them to do so, making a bit of preparation of a witness not only appropriate but necessary. What is too often forgotten, however, is that cops too can be witnesses. And like any other witness, they are free to talk, or not talk, as they wish. Except in Houston.
Via Murray Newman at Life at the Harris County Criminal Justice Center, a blawg begun when Murray was a prosecutor and, following his unceremonious dumping in a regime change, continued as a criminal defense lawyer. a memo issued by Houston Police Department Chief Charles A. McClelland, Jr. directed officers not to speak with defense lawyers absent express permission.
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.
So much for claiming the moral high ground, eh?
It’s not as if there was an epidemic of cops sitting down in the comfy chair in a criminal defense lawyer’s office, being tricked or coerced into admitting that they didn’t see what they claimed they saw, or conceding to fabricating evidence. It’s more along the lines of the first prong of the Miranda warnings coming back to bite them in the butt.
You have the right to remain silent. Anything you say can and will be used against you in a court of law.
It doesn’t take much to find a crack in the testimony, description, explanation of what happened to exploit the difference on cross-examination. The certainty and clarity found in a sworn complaint can give way to some equivocation and confusion when questioned. It lends itself to the question, “but officer, didn’t you tell me out in the hallway of this very courtroom that you didn’t actually see the drugs in the defendant’s hand?
Well, yeah, I said that.
Were you lying then or now?
No, these chats don’t usually go that way, but this is only a blawg post and I can make up testimony any way I please.
As Murray points out, as well as Scott at Grits for Breakfast, this memo at minimum will provide great fodder for the cross-examination of Houston police officers as to why they’ve been ordered not speak with defense lawyers. Fear of the truth? Got something to conceal? Can’t be trusted to tell the same story twice? Hard to remember every detail of a story? And so on. It could add an hour or two to any cross-examination.
But for all those who labor under the misimpression that one side is closer to truth and justice than the other, the memo serves as a testament to the hard reality that the police own no greater truth than anyone else. If they did, there would be no reason to fear their speaking with anyone, defense counsel included. This memo is a direct reflection of the fear that cops can’t tell the same story twice. It’s written evidence of the fear that talking to a criminal defense lawyer will reveal something the prosecutor does not want revealed. They fear that the truth will come out.
The Houston Chief of Police has the authority over the members of his department to order them to do pretty much anything he wants. If he wants them to keep their big mouths shut, he need only have someone type the words (assuming he doesn’t do his own typing) on a piece of paper and have it disseminated amongst the force. He’s already done this.
This gives rise to the next question: Will prosecutors give their “express permission” to police officers to talk to criminal defense lawyers? If not, how bad must their case, or their witness, be?
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Wow. The nice thing about this is the dummy was dummy enough to put it in writing. Even your most pro-LE juror has to raise an eyebrow to this.
In the last year or so, I’ve begun the practice of (after my investigator’s phone calls and messages go unreturned) sending a written set of questions to officers and then crossing them about the fact that they never responded.
The other nice thing about the Houston memo is that you can now request, as part of the discovery process, that the prosecutor grant permission to speak to you. If they don’t, I think that comes in on cross too.
It is amazing that he put it in writing, though perhaps he had the hubris to believe that no one would ever know?
As for requesting permission in discovery, I’m not entirely sure how that comes in. You ask the witness if the prosecutor discussed it with him, he says no, and that’s that. I can’t imagine a judge who would allow a prosecutor to be called as a witness to testify that he refused to grant permission, and I’m not sure the judge would allow it on argument. Am I missing something?
Well, you’d have to follow it up with direct attempts to contact the officer (voicemails, e-mails, certified letter).
Me: Officer, my investigator has made numerous attempts to contact you, correct?
Objection, relevance.
Me: Goes to motive & bias
Overruled (maybe sustained)
Me: Your department has a possibility in place that actually prohibits you from speaking to people who work for criminal defendants unless the prosecutor so authorizes?
Objection, relevance; goes to motive & bias; sustained
Did Prosecutor Jagov here ever communicate to you that I repeatedly sought clearance to speak to you regarding the inconsistencies between your report and the other eye witness accounts?
Here is the other thing, at least in CA, a prosecutor cannot tell a witness not to talk to the defense (even though they do it all the time). If I make a request via discovery that you permit the officer to speak with me per his department policy and you do not do so, I think I’d be able to get a judge to order you to do so. It still doesn’t require the officer to speak to me, which he won’t, so I like it better just making the requests and then addressing it on cross in front of the jury.