Friday, July 02, 2010

Houston police chief to cops: Don't talk to defense counsel

Murray Newman over at Life at the Harris County Criminal Justice Center circulates a memo from Houston Police Chief Charles McLelland barring Houston police officers from speaking with defense attorneys, even on minor traffic violations, without permission from the prosecutor. Here's the relevant text from the memo:
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.
Newman, a former prosecutor under DA Chuck Rosenthal, considers this unethical:
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.
This strikes me as about nine or ten different kinds of dumb. If a case has problems, better to identify them as early in the process as possible instead of waiting until cross-examination at trial. And Murray's right, if the case is so weak it can't survive a phone call from the defendant's lawyer, the state probably shouldn't be prosecuting it, anyway.


Anonymous said...

Pretty skeevy. Why the sudden clamming? Couldn't a skilled defense attorney use this to his advantage?

Anonymous said...

More than unethical is the fact it is a violation of free speech and no doubt a court would rule such.

bigdan said...

Sounds like a DA who is more interested in winning than seeing justice done.

TDCJEX said...

R Shackleford Yes a skilled defense or appellate attorney will use this to their advantage . It at least can plant a seed of doubt . It is of course unethical . Prosecutors , cops and ethical are words that are exclusive of each other. On the other hand prosecutor / persecutor can be used interchangeably . To be successful in securing conviction the true description of a prosecutor/ persecutor job being unethical and violating the Constitution. It means convicting the innocent, ignoring mitigating factors .Prosecutors about those things do not care a longs as they get a conviction and in TX a death convictions is highly coveted. It will boost your career in government and in some districts securing a death sentence is a good way to get votes as repulsive as that is . If a innocent man or woman dies Prosecutors / persecutors and cops do not think twice as long as the advance in their career. This is noit just a Texas issue either . It is USA issue

It cold well be a violation of the first amendment if it applies to them off duty .How many cops talk ot defense lawyers any ways unless they are subpenaed ? Is there a problem in

I'd love to see the long history of unethical and illegal actives done by Smith counties “criminal (in) justice system exposed. If the public only knew just how dirty and corrupt they are. IA cop with a courage and integrity along with a sense or right and wrong needs to come forward and talk to a good attorney and expose those guys for who they are criminals who put innocent humans in prison .
Those type of rule wold prevent that maybe that is the real reason not just losing a case that never should go to trail or be prosecuted at all .

This rule in Harris county tells me that the DAs office is not so sure of their cases and has many very weak cases .

Anonymous said...

With all respect to Mr. Newman, I must disagree with him. I am not a lawyer, but I see it like this: The officer in question is often the lead, and often only, witness. Forbidding a witness to speak to the defence council does not border on witness tampering, it is witness tampering.

Sam said...

From the ABA Model Rules:

Model Rule 3.4

Fairness to Opposing Party and Counsel
A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.

I think to prohibit the defense from speaking to witnesses is unethical and probably unconstitional in scope as a violation of his/her due process rights.

What if the Court orders the officers to talk to defense counsel? Will the police chief still prohibit them?

Anonymous said...

Off topic here, but I just wanted to say "Weak. Weak and chickenshit." about this San Marcos cop.

CharityLee said...

Well this is just bullshit....the defense is allowed all the same evidence as the prosecution. I know this does not always happen but this is obviously a blatant attempt to cover up police mistakes, hide evidence, and make sure the state always win. Sorry for cussing so much here in a minute but bullshit bullshit bullshit. Going to be interesting to see how this one plays out. Keep us posted.