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


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.


2 responses to “The HPD “Don’t Talk to Defense Lawyers” Memo”

  1. Mark, last year in one of my rare trips to muni court. The officer (who was clearly a regular) suggested I take my client to lunch and come back after the break and he would announce NOT READY. Thats exactly what happened. Could this be the problem the memo was addressing? If so you are using a nuke to swat misquitoes.

    The cops and the traffic lawyers are regulars; the prosecutors for the most part are civil lawyers who shift in and out.

    The memo is wrong and needs to be rescinded; but the original problem seems to be one of the cities own making; they fired their full time prosecutors. threatened the cops for not showing up for trial, and now they are pissed at the cops are milking the system?

  2. Two thoughts here:

    1) “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.” – I hate to say this, but in just about every instance I have had occasion to be a part of, or observe, this IS the case. Unfortunately [most] Officers seem to have more of an interest in closing cases and their conviction rate, rather than getting to the truth. The “truth” is whatever gets the case off their desk, and not thrown out more often than not. At 16 I had to take an Alfred Plea on a B&E of a car that two girls and some guy (knew the girls, still dont know who the guy was) committed as a joke on someone that didn’t find it so funny…well the girls wouldn’t give up the guy, so they inserted ME as that guy. I DISTINCTLY remember the Officer that interviewed me saying something to the effect of “I have yet to send a case to the DA that didn’t end in a conviction, and you need to start telling me about your involvement because you ARE going to be convicted.” That, while may be nothing more than a scare tactic, is a pretty strong thing to say…

    2) After my experience here in Houston at kangaroo…er…I mean traffic court, I would say this memo is aimed DIRECTLY at traffic. My atty (who my normal atty uses for his own traffic violations specifically because of the nature of Houston Traffic Court) went and had a conversation with the officer and came back and told me something like “I just got a favor from him yesterday, and he doesn’t want to help today…” That alone bothered me…but even at that, apparently if you come to Traffic with an atty, get your case pushed till after lunch, it appears that all cases will then be dropped, or will be changed to non-moving violations with fines and court costs. Granted, I was happy my $150 flat rate got me out of a speeding ticket, but the entire thing reminded me of something out of a movie in a small town where all the city income is from traffic violations on the highway through town. I had never seen such a thing, and I come from a city that literally has the same number (if not more) traffic cops as the city of Houston, with a population of only 300k. Avoiding a ticket there required taking the bus, and I never saw such BS kangaroo court antics back there….

    JD

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