The HPD “Don't Talk to Defense Lawyers” Memo

 Posted on July 14, 2010 in Uncategorized

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."

Murray Newman got the scoop: a memorandum originating from the HPD Chief's Command/Legal Services:

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.

(Paul Kennedy, who has been doing particularly outstanding work lately, commented on the memo here and here.)

The rule supplements HPD General Order 300-25. It is impractical; as Murray points out,

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.

The truth does not change; the truth does not take sides. Witnesses do not belong to one side or the other. A policy against cops talking freely to defense counsel suggests that the police department is more interested in the outcome of litigation than in the truth; a state of affairs that casts doubt on every officer's testimony.

Impractical as it is, is it unethical? Lawyers wrote the rule, the DA's Office put its imprimatur on it (Murray Newman again), and City Attorney David Feldman defended it at yesterday's City Council meeting (video of the meeting). Feldman also said that chief traffic prosecutor Mark Randall "Randy" Zamora (a law school sectionmate of ours, by the way) had not been involved in the writing of the memo, but agreed with it.

(Feldman's fluctuating and cryptic explanation of the reason for the memorandum first had something to do with overtime, and then involved some police officer-defense lawyer skulduggery in municipal court that was discovered in the course of looking into overtime problems. Is this memo a coverup of serious problems with dishonesty in the Houston Police Department? I don't spend a lot of time in municipal court, but my guess is that the City is trying to stop police officers from discussing cases with defense lawyers and agreeing to drop them, because that costs the City money, which is after all what municipal court is all about.)

Is there bar liability?

The American Bar Association's Standards Relating to the Prosecution Function discourage prosecutors from discouraging or obstructing communication between prospective witnesses and defense counsel; specifically, they advise prosecutors not to "advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give."

But those ABA Standards are advisory; the Texas Disciplinary Rules of Professional Conduct are not. They provide (in Rule 3.04) that, as a general rule, a lawyer shall not request a person other than a client (or an agent, employee, or family member of a client) to refrain from voluntarily giving relevant information to another party. But police officers are agents or employees of the City Attorney's client, the City of Houston. They are also agents of the DA's client, the State.

So no, probably no bar liability for the government lawyers.

It may not be unethical, but is it illegal, and could that illegality trigger sanctions under Rule 8.04, which bars a lawyer from, among other things, "commit[ting] a serious crime"?

Texas's Tampering With a Witness statute (full text here at onecle.com) makes it a felony for a person to (among other things) coerce a prospective witness in an official proceeding to withhold any information. Chief McClelland's rule applies only to criminal proceedings; officers are prospective witnesses; by not talking to defense lawyers they withhold information (something that they could do voluntarily, but that others can't coerce them to do); the coercion is the threat of discipline.

By ordering officers, under pain of discipline, not to speak to defense counsel, Chief McClelland coerces prospective witnesses to withhold information, tampering with those witnesses. 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.

City Attorney Feldman made it clear at the City Council meeting that he wasn't involved in the writing of the memo. Neither, most likely, did Jim Leitner, Pat Lykos, or anyone else from the DA's Office. But the memorandum originated (so it says) from the "Chief's Command/Legal Services." That sounds like lawyers to me. It'd be interesting to find out what discussion preceded the issuance of the memo, and who said what. Because even if the client will, for whatever reason, escape prosecution, a lawyer is not allowed to advise a client to commit a crime.