Jun 21, 2011 When cops clam up with criminal defense counsel, what do they have to hide?
Commonly, police ask suspects: "Do you have any drugs, weapons (or nuclear devices, some cops add)?. When the answer is no, a common police follow-up question is: "If you have nothing to hide, then you won’t mind me patting you clown/popping open your trunk/letting me take a look inside your car, will you?" Unfortunately, the knee-jerk reaction of so many suspects at that point is to allow the search. The question is not properly one of "Do you have anything to hide", but instead: "Do you mind if I intrude on your privacy?" Why do we want police to intrude on our time and privacy any more than we would allow a non-cop stranger to put his or her hands all over our bodies, probing all over for drugs and other items?
Recently, while waiting for my criminal bench trial to start — which my client and I won — I walked over to one of the police officers in the case, who seemed to only have this one case set that day, and did not seem to be particularly occupied as he sat in the hallway. I have known this police officer on and off for over a decade. I greeted him. I followed up by asking if there was any information outside of the police reports that he had available. He immediately went into the automatic reflex mode that so many police officers do with me more in this courthouse — the D.C. Superior Courthouse — than in any other courthouse where I appear. He pointed towards the courtroom and said for me to speak with the prosecutor. That remained his repeated mantra when I asked why I could not just get the information unfiltered from him.
Believing that it would not hurt my client’s case to inquire whether the officer might talk to me about the case considering that he knows me well enough to know I am an honorable person and lawyer, he simply repeated the mantra for me to talk to the prosecutor. I think I asked him if there were some police department policy not to speak with criminal defense counsel, and that his response again was for me to talk with the prosecutor.
I was about to share with the officer the article I carry with me for such situations, in which one of his own encourages police that there are only advantages or at worst neutrality in speaking with criminal defense counsel. Instead, I took a page from cops’ own standard script, and asked: "If you have nothing to hide, why won’t you speak with me?" He replied with his mantra to speak to the prosecutor. I replied that I respected his assertion of his right to remain silent. I could not figure out any other way to plant a seed in him to reconsider the wrongheadedness of his only speaking with prosecutors and not criminal defense lawyers.
Of course, if we were in front of a jury, that would have been a great chapter for cross examination to have juxtaposed the multiple in-depth conversations the officer had with the prosecutor in preparing for the trial, and his utter silence with me about the case. What does that tell you, jury, about the officer’s lack of bias or the opposite?
The District of Columbia Superior Court is the best place — compared to the nearby state and federal courts — to get jury acquittals. One reason might be that many of the jurors feel that they or those close to them have been victimized by the police, or at least by the government establishment in general — and do not trust the police. How on earth, though, do police in the District of Columbia feel that more convictions will be obtained by their refusing to speak with defense counsel?
As the proverbial prune or limburger cheese atop the head cheese cake of the police officer’s refusing to speak with me about the case, as we waited for the judge to take the bench to start the trial, I started talking to a civilian witness in the case. The prosecutor walked over, and cut in by telling the witness that I am the defendant’s lawyer, and that it is the witness’s option to speak with me or not. I congratulate the witness for having still spoken with me, whereas some prosecution witnesses seem to take such prosecutor-speak as a signal not to speak with defense counsel, and follow accordingly. Particularly considering that lawyers generally are not permitted to tell non-clients not to speak with opposing counsel, I urge prosecutors to refrain from telling their witnesses, unsolicited, that they do not have to speak with defense counsel if they do not wish to.
I thought police where here to serve everyone. They do not serve truth nor justice when they refuse to speak with criminal defense counsel.
ADDENDUM: Of course, knowing that numerous police and civilian witnesses are resistant, at least at first, to discussing the case with the criminal defense lawyer, ways to try to get around that include discussing matters unrelated to the case at the get-go or when the witness refuses to discuss the case. Police are skilled at that, and criminal defense lawyers can also apply such skills.
As I blogged two years ago, storytelling can be very important for trial lawyers to move the case investigation forward, e.g., to get otherwise recalcitrant witnesses to talk, which might start as simply as talking about something entirely unrelated to the case, and drawing out the story (e.g.: "I am riveted by your calm demeanor," (if you dare be anything but honest and real in talking, watch out for the fallout), and see if that draws out the person’s story, e.g., "My grandmother was as calm as gently flowing waters. That always stayed wtih me."
At-first recalcitrant witnesses are more likely to speak with an opposing lawyer with whom they feel comfortable and in whom they feel they can confide and trust. That often involves the lawyer sharing relevant parts of himself, herself or the case with the witnesses. Most people have important stories to tell that they fear others do not want to hear. If the lawyer listens empathetically and with active listening to the opposing witness’s personal story that s/he wants to tell, that can make the witness more trusting in the lawyer to discuss the case with the opposing lawyer.