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.]


  1. You are so right on this one!! According to the ABA Standards for Criminal Justice Prosecution and Defense Function Standard 3-3.1 Investigative Function of Prosecutor, it states that prospective witnesses should not be treated as partisans. They should be regarded as impartial and as relating the facts as they see them. Because witnesses do not "belong" to either party it is improper for a prosecutor, defense counsel, or anyone acting for either side to suggest to a witness that the witness not submit to an interview by opposing counsel.
    Unfortunately, at least here in Texas in my experience, this does not always seem to hold true and prosecutors make statements such as you described regarding "their" witnesses.

  2. Where was Pat Lykos? Have you talked with her on the issue?

  3. @Black Ink. Funny you'd ask where Lykos was. Leitner told us that "everyone in the office" was upset or mad that he was even coming to the CLE! He said that he had a couple of other people who would not be as nice as him is why he came. I don't know where Pat was but no, I have not spoken with her. I corrected Leitner when he said it. One thing about it - there is no denying it because the CLE was videotaped. : )

    @texasprivateinvestigator - thanks for that bit of research. I knew that somewhere was a comment about such instruction. Course, they would never admit it (unless they slipped like Leitner.) They claim they just tell the witnesses their right to decline an interview. I'm sure it is couched in such words & a tone to make clear that to talk to the defense is akin to talking to satan.

  4. Leitner's attitude is very problematic. If the case is "his" and the witnesses are "his" and the alleged victim is "his" -- where's the objectivity that's required to do justice?

    Once you internalize a case you lose the ability to see it for what it is.

  5. It is amazing how the DA's office views, and handles "their witnesses". I'm going to refer to Denise Spiller (defendant) case, which if you count both her statements (2), was prosecuted for perjury but, when it comes to the "state's witness", let me tell you, they allowed "their witness" to make over 150 contradictory statements in testimony to prosecute a man, no other evidence, and did not prosecute "their witness" for aggravated perjury. Then I get told by an ADA, "I'm just not convinced they lied." Let's see, "he had a gun", "he didn't have a gun." Yes, this was the answers to the same question, same situation. I would say, that is a definite lie, especially if you do it numerous times! And, the ADA can't tell they lied? Where did they get their law degree? The law applies to all, not just the "select few", but to "their witnesses" also. They violate other's Constitutional rights under the 14th Amendment by not providing equal protection under the law.
    I'm not even going to voice my opion about Jim Leightner, or Pat Lykos, but I will tell you, there is nothing positive.


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