HPD and Video Redux

 Posted on December 29, 2008 in Uncategorized

HPD Officer Paul Lassalle comments on this long-ago post about his communications with Harris County Assistant District Attorney Warren Diepraam (who will likely be at the coronation on Thursday) concerning whether HPD has to actually use the videotaping equipment that the statute requires them to have and maintain.

When a man with a gun and a badge tells me, "I would hope that you would edit your article or remove your abuse of the emails from your website entirely", I have a difficult decision to make: should I tell him to go perform unnatural sex acts with himself with his ASP, or should I just republish the offending material? Since I've always been fond of Officer Lassalle (ever since I defended a friend's brother whom he arrested for minor in possession) I'll take the latter route.

Here are the emails we're talking about, and here's the money quote: "Now, it states that we have to purchase and maintain the equipment of video taping a person charged with certain crimes but there is no requirement to actually do so, correct?"

Lassalle signs himself "the misquoted officer." Here's my description, from that long-forgotten post, of the exchange:

HPD DWI Task Force officer Paul Lassalle wants to make sure HPD doesn't have to actually use the video equipment that state law requires it to have and to maintain.

Where's the misquote?

Officer Lassalle also suggests that I should have published the entire chain of emails; I don't have access to his emails, but if he will provide me with the "entire chain" I'll certainly publish it. In fact, I'll publish all of his and Mr. Diepraam's emails if they would like. I'm sure it'll be an edifying read. I've even offered to let Warren Diepraam guest-post here, provided that he not get the post approved by the DA's Office first (I don't care to be Pat Lykos's propaganda organ).

Officer Lassalle refers a couple of times in the comment to "defense lawyers' lies" - he's apparently talking about defense lawyers trying to convince baby prosecutors that they can't prosecute DWI cases without videotapes. Let me remind those watching from home (if not Officer Lassalle himself) that what defense lawyers say in court is not evidence. When one lawyer tries to convince another lawyer that the law is one way rather than another, that's called "advocacy". If the county court and court of appeals agree that DWI stops have to be videotaped, then a defense lawyer had at least a good faith argument that DWI stops have to be videotaped, until the CCA reverses.

What police officers say in court, however, is testimony, and often (not in Officer Lassalle's case - I believe him to be a truthteller) it's false. The amount of perjury committed by officers dwarfs the amount of perjury committed by civilians by orders of magnitude. There's even a word for it in police culture: "testilying".

Even in DWI cases? Especially in DWI cases. The amount of money in DWI investigation is staggering.

When there's a videotape in a DWI case, the jury has something more than the officer's (very biased, motivated by several factors) version of the facts to go on. Which is why I'm usually the one showing the videotape to the jury (if it were bad for my client, the case would probably have settled) and why officers sometimes claim that video equipment has mysteriously malfunctioned for a single stop and then repaired itself without a visit to the shop.

The defense bar is, I think, 100% in favor of video recordings of every traffic stop. It would result in fewer false arrests and less abuse. I wish HPD were as committed to that principle as Lassalle claims. But they've had plenty of opportunities to be, and they're not, It's the State that's looking for reasons not to provide video evidence - observe the lesson that Officer Lassalle takes from the court of appeals: "a video did not have to be made of the defendant unless the officer believed that the video would provide additional evidence that could lead to the conviction of the defendant".

That HPD doesn't, according to the law, have to do something that it's capable of doing doesn't mean they shouldn't. Or, differently put, "legal" is not necessarily "right". Or, to put it still differently, just because the court thinks HPD shouldn't gather evidence that might be inculpatory, doesn't mean that juries will agree.

Officer Lassalle and I will probably never agree on how often HPD DWI Task Force officers enhance their testimony against people accused of drinking and driving. We do agree on one thing, though: Don't give HPD any opportunity to do it to you. Don't drink and drive.