Monday, July 12, 2010

Mother, may I?

Tomorrow afternoon, at the weekly Houston City Council meeting, the Harris County Criminal Lawyer's Association will speak out against Houston Police Chief Charles McClellan's newest bad idea -- forbidding his officers from speaking with criminal defense attorneys without the DA's permission. My colleague, Murray Newman, wrote about this policy and posted the memo itself on his blog, Life at the Harris County Courthouse.

The Houston Chronicle ran an editorial about the new policy this morning and suggested that Harris County District Attorney Pat Lykos' flak man, Jim Leitner (former criminal defense attorney and unsuccessful candidate for the Republican nod for DA), had the right idea when he said the officer had no problem with police officers speaking to criminal defense attorneys so long as a prosecutor was present.

Well, the only problem with that is that the officer is a fact witness in the case and defense attorneys have the right to speak to fact witnesses. So what if the fact witness in this case is wearing a blue uniform and a badge -- all that officer can do is testify as to what he or she saw (or claims to have seen). To the best of my knowledge the state is not required to call in the defense attorney when they wish to speak to a witness.

I think it all flows to the attitude of prosecutors at 1201 Franklin that the police are their witnesses. Nope. A witness is a witness is a witness. A witness either has knowledge of the circumstances surrounding an alleged criminal act, or they don't. Both sides have the right to examine the evidence prior to trial. The testimony of a witness is part and parcel of that evidence and by forbidding an officer from speaking to the defense attorney, Chief McClelland, and by extention, the Harris County DA's Office, are depriving criminal defendants of their due process rights.

Of course, if the DA's Office wants to claim that HPD is an agent of the state, well, let them go ahead...


Mark Bennett said...

"Sergeant Kennedy was, at all times relevant to this case, an agent or servant of the State, as an investigator with the Houston Police Department. The statement concerns force Sergeant Kennedy allegedly used on a suspect while he was acting in his official capacity. This statement is an admission by a party-opponent, and therefore is not excluded by the hearsay rule. Tex.R.Crim.Evid. 802" Rodela v. State, 829 S.W.2d 845, 849 (Tex. App.-Houston [1 Dist. ][] 1992).

cjclawyer said...

The memo sucks. But don't blame I on "the attitude of prosecutors...". The DA's office didn't write it. Eat about defense attorneys who tell prosecutors "I'll let you talk to his wife," on family violence cases. Or worse, tell the complainant not to speak to anyone else about what happened. That's the difference between defense and prosecution. Defense has a duty to the client, complainant be damned (which is important and valuable) and the prosecution had a duty to justice.

Paul B. Kennedy said...

Thank you for your comment. As it turns out, the policy in question was cooked up due to some alleged monkey business at the municipal courthouse.

However, based on Leitner's comments to the Chronicle, there seems to be a belief in the DA's Office that certain witnesses are "the state's witnesses" such as police officers and complainants.

I would disagree with your statement that the "prosecution has a duty to justice." The prosecutor has a duty to act in the interest of the state. The two are not the same.

Paul B. Kennedy said...

Mark, I once had a prosecutor who wanted to quash a subpoena I had served on the Sheriff's Office and she was about to assert that the DA's Office had standing to object to the subpoena before the judge asked her to think twice before making that argument.

Mark Bennett said...

I think "police officers are agents of the state" is a different proposition than, "the DA's Office represents the Sheriff's Department."