Thin Blue Line: Virginia Police Department Threatens Officers’ Jobs If They Speak With Defense Lawyers

WEJohnson33251412949c6bd4ffff8144ffffe907I just saw this story about how Petersburg police and prosecutors have been under fire after an internal memo surfaced from 1st Sgt. Carl Moore, telling officers not to speak with defense attorneys and suggesting that they could lose their jobs if they help strength defense cases even by telling the truth to counsel. Petersburg City Manager William Johnson (left) is making no statement at this time: he was recently arrested for allegations of assault and domestic battery against his wife. Petersburg Commonwealth’s Attorney Cassandra Conover (right) was also criticized for thanking Moore despite the memo’s conflict with ethical rules governing prosecutors. However, I have not been able to find anything more recent on this story about the instructions or the ethical review.

Notably, Conover was copied on the memo and sent a thank you to him for the memo. That is a bit of a problem since prosecutors cannot interfere with defense counsel speaking with officers and the memo potentially abridges the rights of defendants. The Virginia ethical rules state: “Prosecutors shall not instruct or encourage a person to withhold evidence from the defense.” Yet, Conover just thanked an officer threatening the jobs of police who speak with the defense. She insists that she was just thanking him for addressing communication issues. The bar is investigating.

City Attorney Bill Hefty for his part seems to be defending the memo rather than calling for its recall and possible discipline for those behind it. He said that “The intent of the emails was to ensure officers make contact with the Commonwealth Attorney’s Office in advance of speaking with defense counsel. This was an internal communication, and nothing in the emails indicated that the police should do anything illegal or not testify truthfully.” That clearly sends a message to officers supporting the thrust of the memo to refuse to talk to defense counsel at least until Conover approves — causing delay and sending an implied message that they should say no.

You will note that none of them explains the danger in officers answering questions from defense counsel. These cases often have little time for preparation or investigation by the defense. The memo, and Hefty’s defense, seem calculated to harass efforts to learn the record and the truth about charges. Defense counsel talks to officers to simply confirm facts and evidence in preparation for trial. That should be viewed as a good thing for the rule of law, right?

Does anyone have an update on this story which first broke in 2012?

24 thoughts on “Thin Blue Line: Virginia Police Department Threatens Officers’ Jobs If They Speak With Defense Lawyers”

  1. Same old BS. They don’t want the truth, they want to ‘win’. So guilty these cop managers should be fired and jailed but I won’t hold my breath.

  2. “This is not going to end well for the police or its sergeant of the prosecutor.”

    I’d like to believe. I really would. But time and time again we’ve seen optimism such as yours undermined by the reality of police and prosecutors closing ranks, generic statements about following policy and investigations, and quiet acceptance when the matter goes behind closed personnel doors until the furor blows over.

  3. It is patently unethical in Virginia for an attorney to impede the investigation of a criminal matter by instructing a fact witness — any fact witness — not to talk to opposing counsel. Only expert witnesses are off limits because they work in the realm of opinions not facts. It’s likely an obstruction of justice to threaten a witness with an adverse job action for talking to an attorney as well. Imagine if the roles were reversed an employer threatened a witness’ job if he spoke to the Commonwealth with the approval of the defense attorney. This is not going to end well for the police or its sergeant of the prosecutor.

  4. It is U.S. who are responsible for how much bad faith parties are able to flagrantly/brazenly and blatantly get away with!

    If we didn’t tolerate corruption (and that’s what this open efforts in obstruction of justice are); then those engaging in venality would not be so brazen.

    It is why – no matter how much evidence I have;
    chances are – we are going to wind up with Pitten’s as POTUS.

    Because the world simply doesn’t comprehend that the “State”

    has NO moral compass….

  5. If there is exculpatory evidence and it is not divulged by the prosecutor forthwith on the day that an indictment or information is filed, then the case should be dismissed with prejudice. Some states have laws requiring swift production of such evidence.
    This is not to say that a defense attorney roaming around a crime scene the day after a murder has a right to talk to a detective who has just collected the evidence.

  6. Shafar, You are new. I am VERY tough on prosecutors who do not divulge exculpatory evidence. I worked for an incredibly honorable prosecutor. If I[only investigator @ the time] or one of the other attorneys, did not reveal exculpatory evidence, you were fired. That’s much to rare a policy nowadays.

  7. Shafar, It’s reasonable and proper because the cop is our witness. They are often part of the state’s complaint. It is improper for the prosecution to have any contact w/ the defendant w/o their attorney present. Now, a cop has a right to speak w/ the defense, if they wish, w/o prosecution present. But, please understand, they don’t want to in almost every instance. I have been asked this question literally thousands of times by expert and lay witnesses, both in criminal and civil cases. “Do I have to speak w/ the other side?” My response is always, “This is the U.S., you get to speak w/, or not speak w/, anyone you choose.”

  8. @Nick
    Why is it reasonable and proper. It would seem that a police officer is could be less than candid in providing information to a defense attorney that might be exculpatory and undermining to the prosecutions assertions if someone in a position of authority over his lively hood is figuratively circling over his head like a vulture (or better yet, a $h!7 eating buzzard.) There may be a rationale that is more compelling from a moral/legal perspective that I have overlooked. However, if the foregoing perception as I have suggested vis Ă  vis an intimidation or ‘chilling’ of candor and openness then regardless of its ‘legality’, I envision Lady Justice sans blindfold.

  9. Darren, I was speaking to when I worked for the prosecutors office and we had a cop listed as our witness for trial. They abided someone from our office being present. Your DUI arrest scenario is different. You’re correct that cops almost always say, “It’s a civil matter” when I contact them as a PI on a civil litigation case. I then give them the reality. Almost all civil cases settle. But, the facts must be determined prior to that. Now, if you want both sides present that will mean a deposition. That will not be scheduled @ your convenience. Or, you can just let me interview you and that will help settle the case. I’ll meet w/ you @ your convenience. If they work dogwatch that meant this old man staying up late! They agree to an interview the vast majority of the time.

  10. I think to lesser degrees this happens in many other locations, albeit not policy that is written.

    I don’t see a problem with talking to a defense attorney as far as being a LEO. I can see this being an issue in a civil matter between a person and the opposing counsel. But with regard to criminal matters I see a difference.

    It is common in DUI arrests, at least where I worked, where the defendant will request to telephone his defense attorney before the breathalyzer test and afterward will hand the phone to the officer for the attorney to ask questions. It’s not a big deal. The evidence is going to come out anyway.

  11. When I worked for the prosecutors office we had a protocol that someone from our office would be present when cops were interviewed by defense. The defense attorneys didn’t like that but it is reasonable and proper.

  12. Furthers the perception that the “justice” system is rigged against the small guy.

  13. That should be viewed as a good thing for the rule of law, right?” – JT

    No.

    “Winning” by doing harm to the factual scenario and record is really no win at all.

    For prosecution or for defense.

  14. Shouldn’t the cops have their lawyer there if they are talking to defense lawyers who may be civil rights lawyers looking for evidence of civil rights violations so that they can file a civil suit? Talk to my lawyer.

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