Thursday, October 8, 2009

Prosecutorial Mindset - "My" Witnesses

Jim Leitner, currently one of the head honchos of the Harris County District Attorney's office, attended the DIVO presentation yesterday just long enough to be on a panel. He did not listen to the presentation, and to my knowledge, has not attended a presentation to learn about the program. But, he had been told about it at least somewhat and was there to represent the view of the DA's office.

As he related, the DA's office is completely against the idea. I cannot quote verbatim what he said about the program but generally it was that the defense would abuse the situation in some way.

First the rules - a defense lawyer must make at least an effort to talk to all witnesses in a case. The definition of witness can vary, and does not necessarily mean "eye witness", especially in a capital case.

Witnesses are just that - people who know something about the offense, the complainant (victim), the defendant, etc. They belong to no one, and in fact, if my memory serves correctly, it is unethical for one side (defense or prosecution) to advise a witness not to talk to the other side. (They can tell them that they do not have to talk to the other side but they cannot tell them they cannot.) Indeed, what fairness is it if you can't determine what the witnesses are going to say so that you can (1) make a decision how to proceed - you might advise the client to plead guilty, (2) prepare for trial, etc.

So, when Jim Leitner was talking about the position of the DA's office, the most interesting thing he said was to refer to the survivors of the victims of capital murder as "my witnesses." MY witnesses. (Of course, I had to correct him & remind him that they are "the" witnesses & do not belong to either side.)

What makes this assertion of particular interest is that Jim used to be a defense lawyer, and he was widely known for his work on capital cases.

If the leadership in the DA's office opening takes such a position of "ownership" of witnesses knowingly in my presence as well as distinguished defense lawyer Kathryn Kase (there were probably about 20 people in the room including the presenters), what can we expect they are teaching their underlings? What can the defense expect is being related to those against whom we try cases? Was it just a mistake? Or, as I believe is more likely given my experiences in trial of late, was the mistake only that he said publicly what he believes and how the trial prosecutors are being taught?

[Read my last post about what DIVO is for additional information.]

Defense Initiated Victim Outreach - DIVO - capital murder defense to reach out to victims?

I attended an interesting continuing legal education seminar (CLE) yesterday. From 8:30 to 5:00 less lunch & 2 breaks, we learned from those involved in the defense, some involved in prosecutors' offices, families who had a member murdered, and psychology related experts,about a new program that being promoted. It is called DIVO - defense initiated victim outreach. (I point out the length of time to emphasis that after a full day, I still have tons of hmmms so you won't get all the answers here for sure.)

Right now (a year into the grant period), the group is focusing on capital murder cases. The thought is that there are the - I don't know another word to use - "residual" victims - of murder? Those who are affected by the murder but who did not die. The family members, other loved ones, etc. Those who often are kind of forgotten in the process. (That will be the topic of another blog.)

The result is not defense oriented, although it originates from the defense. The speakers talked about the discomfort most lawyers feel when it comes to dealing in and outside of court with those left behind. (For purposes of this writing, I'll will simply call them victims. I am not attempting in any manner to minimize their hurt or loss - just trying to put a term to a list for this posting.)

A couple of therapists attended - one who had conducted a study and as she was giving her results, she had tears in her eyes. It was quite apparent that in working on the study with the victims, she had grown to know the them and sympathize with them. She told us that when she first learned of the program, she was quite suspicious that it was an effort by the defense to try to get something from the victims - to act in a manner that would cause further harm to the victims. However, after learning about it and seeing it in practice, she is now an advocate for the program.

The plan is that a Victim Outreach Specialist (VOS) who has been specially trained (not certified just because there is no avenue for certification at this time) will be requested by the defense (funding requested by the defense) for the purpose of communicating with the victims & trying to meet their "judicial needs" - any questions they have about the process. (I came to understand how complicated it is for them yesterday. I'll write separately about that.) The VOS CANNOT share with the defense, unless the victim wants them to do so. The VOS will work with the victim (possibly in the victim witness office of the DAs' office) to help the victim through the process, and help the victim obtain answers to their questions.

I'm trying to narrow down to posting the bottom lines, but I know defense lawyers, prosecutors, judges, & others who read this will have many questions including (1) what is in it for the defense; and (2) the prosecutors' offices have victim rights people so why can't they fill this need. The whole idea is very complicated.

First - there is often going to be nothing in it for the defense. Remember, the defense only gets information from the VOS IF the victims agree. The VOS signs a contract with the defense so advising them. The defense MIGHT find that the victims are more willing to talk with the defense team. And, some times the defense might find that the DA's office is pursuing an end against the wishes of the victims.

The thought conveyed to attempt to get the defense interested in the program is that the defense is making an effort to reach out to the victims so that very weird wall that arises during trial, during victims' testimony, is at least not so high. As was stated, "how can the defense ask for compassion while showing none to the victims?"

It is a hard sell to the defense in my view for such reasons as (1) we have a duty to attempt to interview every witness so we may still have to try to interview those same victims with an investigator or mitigation specialist; (2) there are already limited funds for the defense in attempting to obtain evidence that is helpful & this would probably encroach on those funds & our client would likely not receive much from it; (3) I still have a hard time understanding why the defense is to make this effort. The State has people to do the job - apparently, though, they are not doing a satisfactory job. (It is likely they do not have enough funding & have too many cases. This would vary by office. Could be a training issue. Could be a personnel issue. So many things.); (4) Why can't the trial court appoint someone instead of the defense asking? And the list goes on . . .

The bottom line answer for why it must be the defense is apparently this (in a nutshell): victims have questions that only the defense can answer. In the healing process (which never ends & continues for the victims' entire lifetime), there is the need for answers and the need does not fit with the schedule of the trial. The healing process is hindered because the victims cannot get answers & are left in the dark for so much of the process (despite the efforts of the prosecution - which cannot provide many answers.) An example? Did the deceased see it coming? Was s/he asleep? Did they suffer? Did s/he know you? Where are you from? Did you have one or both or neither of your parents raise you? Did you have a good childhood? Were you abused? What were you thinking when you killed my love one? Why would the lawyer take a case like this? The list goes on. (You can imagine all the thoughts that go through a person's head from the time right after the death, throughout possibly the rest of their lives.)

So - the explanation of why it must be the defense who requests it starts with the fact that there must not be a question of guilt. Then, the defense must be in agreement to participate - even if it means that the answer is "I cannot answer that at this time." The hope is that the VOS obtains at least some answers that help the victims gather knowledge that they "need". (Need meaning whatever the victim feels because every victim handles the situation different. Every victim has different feelings.)

It is definitely innovative. It starts with a good premise - people helping people. It has potential for abuse - by the defense (if the the VOS is not properly trained.). It has little potential for helping the defense (without the abuse.) It has great potential for damaging the defense - the State is not prohibited from learning what the VOS has discovered. AND, it is being flat rejected by the Harris County District Attorney's Officer per one of the top leaders in that office. (More on that in my next blogspot.) Surprised? Not me. The most offensive part to the prosecution is that it has been proposed as by a well respected DEFENSE lawyer - Dick Burr & is supported by another well known & respected DEFENSE lawyer - John Niland, AND - I think this is the biggest problem - it is entitled DEFENSE Initiated Victims Outreach. More on this in the next spot.

But, leave this knowing that defense lawyers are not all bottom dwelling scum suckers who care nothing about anyone (including victims) and want to win at all costs. We are people, and there are many interested in the human, humane side of the law, too. (And, there are bottom dwelling scum suckers in the prosecutors' offices, too. I have dealt with some personally.)

Think about the DIVO program. Comment if you like. It is in the infancy stages, and I am positive I don't totally understand it because my initial reaction was "hell no" and my continued feeling is uh - why would we as zealous advocates for our clients - which we must be - it is the rules, the law, & the only way the system can work. But then again, we are all people (& most of us care, in general, about other people. . . )

As the saying goes, it is complicated . . .