Thursday, July 15, 2010

Erasing the 'last vestige' of police as neutral truth seekers

The Texas criminal defense blawgosphere has done itself proud regarding the story of Houston PD's new, probably illegal policy that their officers can't speak to defense counsel without prosecutors' permission.

Murray Newman first broke the story on July 1 at Life at the Harris County Criminal Justice Center, publishing the actual memo text, as I'd noted a couple of weeks ago. The Houston Chronicle followed up with a story July 7 quoting Newman: "It is absolutely destroying any last vestiges that a police officer is a neutral witness who is just trying to figure out what happened," Newman said ... "If, theoretically, the truth is supposed to help you, why would anyone advocate hiding it?"

Then over the weekend the Chronicle published an odd editorial that critiqued the new practice but called instead for prosecutors to be present when defense attorneys speak with officers - an even more cumbersome requirement. (Would prosecutors be similarly banned, one wonders, from speaking with police without defense counsel present?) That's not a serious proposal, almost like the unsigned editorial was written by an intern.

The Chronicle's reporting, however, was flamboyantly bested by excellent editorial coverage from Newman, Mark Bennett and Paul Kennedy. On his blog, The Defense Rests, Kennedy reported on the Tuesday City Council meeting where the issue was raised for the first time publicly before the Houston Chronicle did, mentioning that:
Robert Fickman, Mark Bennett and Nicole DeBorde (current president of HCCLA) spoke out this afternoon at the weekly city council meeting and were joined by about 50 of their colleagues. (Click here to see the video of today's meeting.)

Councilwoman Jolanda Jones, a criminal defense attorney, understood the larger issues involved and told Mr. Feldman that "the Constitution trumps overtime."
Notably, Kennedy provides readers with direct access to the video so they can judge what happened for themselves. Bennett links to the relevant law and HPD policies. As an aside, that's one big reason people read blogs and I've never understood why the MSM doesn't make us all redundant by just linking to their primary sources. Instead they pretend they're some sort of information gatekeepers when the fences surrounding raw information in the modern world have all blown down. Why is it that all the links to primary sources on this story come from Newman, Kennedy and Bennett?

Speaking of Bennett, who also spoke to the City Council, he has an excellent analysis of the issue in this post. At his blog Defending People, he notes that:
Texas’s highest criminal court, the Court of Criminal Appeals, has held, in Stearnes v. Clinton, that a rule barring defense counsel from talking to some witnesses without the prosecutor’s presence “is not only in conflict with principles of fair play, but in direct conflict with defense counsel’s responsibility to seek out and interview potential witnesses.”
 Bennett also mentioned that:
At the City Council meeting, City Attorney Feldman poo-pooed the Tampering With Witnesses statute, which suggests that he hadn’t read it—the clear language of the statute could easily be interpreted to forbid the Chief’s conduct. Everyone knows the Chief is never going to be prosecuted for tampering with witnesses, but our government officials shouldn’t be in the business of committing crimes just because they know nobody is going to prosecute them.
This episode not only speaks poorly of whatever dark forces in the Houston Police Department or the City Attorney's office generated this troubling memo, it also shows how blogging has grown up in recent years. Houston criminal defense blawggers not only broke this story but are providing by far the most important, in-depth discussions of the subject and even helping lead the charge to change this odious policy, bypassing the gatekeeper media to dominate the story more than any MSM outlet. Well done, gentlemen. Well done.


Anonymous said...

The Criminal Justice is, at it's core, an adversarial system; In response to the concern here re; limiting defense attorney access to LE witnesses by allowing defense attorney unfettered access to all witnesses? The concept is the same! Yes, LE officers are the public representatives of the CJ system but once they make a decision and take action, their judgement and opinion is expressed and neutrality is appropriately compromised. The defense attorney function is to prove their client innocent and, absent that ability, their function is to compromise the government's case by basically any means possible. Unfettered access to witnesses is a perfect medium in which to cultivate their very, very biased protection strategies.

Anonymous said...

I can't tell the defense about exculpatory evidence even though I've told the DA and DA plans to withold it from the defense?

Again, I believe this is a 1st amendment issue and would ultimately be ruled so by the courts in an unlawful termination situation or discipline sanction for violating the new rule.

Anonymous said...

Grits, I'm glad to see you're finally waking up to what a complete joke the Houston Chronicle is becoming. Let me assure you, their incompetence is equally frustrating for those of us on the "law and order" side of the ledger. What is particularly odd--and this latest HPD "memo-gate" controversy is the perfect example--is how often they seem to be getting into bed with the Pat Lykos adminsitration or vice versa. More often than not, the "Comical" comes down on the "pro-defense" or "anti-death penalty" side of any criminal justice issue. And I've noticed in the past that you've readily linked to their editorials or columnists. I'm telling you though, that newspaper is going to hell in a handbasket and this stupid editorial that you're alluding to in this discussion is pretty darned typical of the type of crap they come up with. As much as it pains me to say it, your bleeding heart, liberal, pro-criminal, anti-justice rantings are typically more reliable and informative than the stuff that passes for "news" in that rag. Jeff Cohen has just ruined that once proud institution.

quash said...

"The defense attorney function is to prove their client innocent and, absent that ability, their function is to compromise the government's case by basically any means possible. " Whew. A defendant, at least under the Constitution, does not prove his innocence. The state has the burden to prove guilt beyond a reasonable doubt.
And prosecutors are sworn to seek justice, not convictions. I have found that a dutiful investigation of my client's case often results in a more favorable plea bargain after an interview with the officer. Sometimes, however, it results in an acquittal. Horrors!