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.]