HPD and Video Redux

HPD Officer Paul Lassalle comments on this long-ago post about his communications with Harris County Assistant District Attorney Warren Diepraam (who will likely be at the coronation on Thursday) concerning whether HPD has to actually use the videotaping equipment that the statute requires them to have and maintain.

When a man with a gun and a badge tells me, “I would hope that you would edit your article or remove your abuse of the emails from your website entirely”, I have a difficult decision to make: should I tell him to go perform unnatural sex acts with himself with his ASP, or should I just republish the offending material? Since I’ve always been fond of Officer Lassalle (ever since I defended a friend’s brother whom he arrested for minor in possession) I’ll take the latter route.

Here are the emails we’re talking about, and here’s the money quote: “Now, it states that we have to purchase and maintain the equipment of video taping a person charged with certain crimes but there is no requirement to actually do so, correct?”

Lassalle signs himself “the misquoted officer.” Here’s my description, from that  long-forgotten post, of the exchange:

HPD DWI Task Force officer Paul Lassalle wants to make sure HPD doesn’t have to actually use the video equipment that state law requires it to have and to maintain.

Where’s the misquote?

Officer Lassalle also suggests that I should have published the entire chain of emails; I don’t have access to his emails, but if he will provide me with the “entire chain” I’ll certainly publish it. In fact, I’ll publish all of his and Mr. Diepraam’s emails if they would like. I’m sure it’ll be an edifying read. I’ve even offered to let Warren Diepraam guest-post here, provided that he not get the post approved by the DA’s Office first (I don’t care to be Pat Lykos’s propaganda organ).

Officer Lassalle refers a couple of times in the comment to “defense lawyers’ lies” — he’s apparently talking about defense lawyers trying to convince baby prosecutors that they can’t prosecute DWI cases without videotapes. Let me remind those watching from home (if not Officer Lassalle himself) that what defense lawyers say in court is not evidence. When one lawyer tries to convince another lawyer that the law is one way rather than another, that’s called “advocacy”. If the county court and court of appeals agree that DWI stops have to be videotaped, then a defense lawyer had at least a good faith argument that DWI stops have to be videotaped, until the CCA reverses.

What police officers say in court, however, is testimony, and often (not in Officer Lassalle’s case — I believe him to be a truthteller) it’s false. The amount of perjury committed by officers dwarfs the amount of perjury committed by civilians by orders of magnitude. There’s even a word for it in police culture: “testilying”.

Even in DWI cases? Especially in DWI cases. The amount of money in DWI investigation is staggering.

When there’s a videotape in a DWI case, the jury has something more than the officer’s (very biased, motivated by several factors) version of the facts to go on. Which is why I’m usually the one showing the videotape to the jury (if it were bad for my client, the case would probably have settled) and why officers sometimes claim that video equipment has mysteriously malfunctioned for a single stop and then repaired itself without a visit to the shop.

The defense bar is, I think, 100% in favor of video recordings of every traffic stop. It would result in fewer false arrests and less abuse. I wish HPD were as committed to that principle as Lassalle claims. But they’ve had plenty of opportunities to be, and they’re not, It’s the State that’s looking for reasons not to provide video evidence — observe the lesson that Officer Lassalle takes from the court of appeals: “a video did not have to be made of the defendant unless the officer believed that the video would provide additional evidence that could lead to the conviction of the defendant”.

That HPD doesn’t, according to the law, have to do something that it’s capable of doing doesn’t mean they shouldn’t. Or, differently put, “legal” is not necessarily “right”. Or, to put it still differently, just because the court thinks HPD shouldn’t gather evidence that might be inculpatory, doesn’t mean that juries will agree.

Officer Lassalle and I will probably never agree on how often HPD DWI Task Force officers enhance their testimony against people accused of drinking and driving. We do agree on one thing, though: Don’t give HPD any opportunity to do it to you. Don’t drink and drive.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in criminal defense lawyers, DUI/DWI, government protecting itself, Houston Police Department and tagged , . Bookmark the permalink.

22 Responses to HPD and Video Redux

  1. Michael says:

    Mark:

    Curious about this section of Lassalle’s letter:

    “Others would also be able to see the findings of the State Court of Appeals [sic; probably should be the Court of CrAp] in the matter. Those findings were that a video did not have to be made of the defendant unless the officer believed that the video would provide additional evidence that could lead to the conviction of the defendant, and that the defendant did not have a right to be videotaped at the county’s expense. The other outcome of the decision of that court was to reprimand the county and appellate court that attempted to reverse the guilty verdict in that case.”

    Not that an HPD officer’s ability to site to CCA means he’s right and you’re wrong, but I wondered why you didn’t respond to his citation in your post.

  2. Mark Bennett says:

    Michael,

    I didn’t see a cite (I think he’s probably talking about Lyons v. State), but I thought I responded to the relevant portions — the notion that, because it’s legal not to videotape a DWI suspect, it’s okay not to videotape a DWI suspect; and the idea that officers would elect not to videotape a DWI suspect because they didn’t expect inculpatory evidence (a clear case of confirmation bias). What’s interesting is not that the law supports his position, but that an HPD officer should be looking for justification not to videotape suspects, rather than gathering all of the evidence that a jury might need to correctly decide a case.

  3. I can understand why a good, honest cop wouldn’t want it to be legally necessary to provide a videotape of the suspect in order to get a conviction — if, say, the machine breaks or the tape gets mislaid (and such things do happen, as well as machines happening to “break” or a tape getting “mislaid”), such a cop wouldn’t want the guy to get off just because of that.

    But looking for excuses not to . . . uncool. And that’s what, from the email, it appears from here that Lassalle is doing. (If it’s just the fact of it being a fragment of a whole chain, he can fix that. If it’s that he expressed himself poorly, writing is a skill that can be learned; it need not be handed down as a gift from God. Probably quicker to learn Greener’s Law, though; it applies in Texas, like everywhere else.)

    I’m wondering if the underlying issue — testilying aside, since you seem to be vouching for this guy’s honesty — is that the guest of honor might not appear to be stumbling-around drunk on the tape, and that the honest cop who thinks it’s his job to get the guest of honor convicted might not want a jury to see him seeming to be no sheets to the wind.

    Moving on . . . at first, I was surprised to read your statement that the defense bar would be in favor of recordings of all traffic stops, but I guess the underlying reason is that Officer Murphy’s Law applies? If in a given traffic stop, a video is going to be bad for your guy, there’ll be a video, so recordings of all would be break-even-or-win?

  4. Trafficnerd says:

    Wait, if, as the officer contends, the entire series of emails on the DWI video subject weren’t posted, and assuming the pdf of the open records response is all of the provided information, then is it not basically an admission by the officer that HPD did not release all the documents as ordered by the AG’s office in response to the open records request in the first place?

  5. Paul Lassalle says:

    WHOA! I thought that I made myself clear when I stated that the discussion was in response to an attorney “advocating” that a case be dismissed due to the lack of a video. I hope that I in no way implied that a suspect should not be videoed on every traffic stop. I am a firm believer that should be done and as a result I have personally headed up the project to update the department’s equipment making this possible. In an effort to keep from being misunderstood let me state the following:

    I BELIEVE THAT ALL TRAFFIC STOPS SHOULD BE VIDEOED!

    I HAVE DONE EVEERYTHING IN MY CONTROL TO SEE TO IT THAT EVERY DWI SUSPECT IS VIDEOED!

    TO MY KNOWLEDGE BOTH THE DISTRICT ATTORNEYS OFFICE AND WARREN DIEPRAAM WANT US TO VIDEO ALL DWI SUSPECTS!

    AN ATTORNEY THAT PURPOSEFULLY MISLEADS ANOTHER ATTORNEY AS TO THE FACTS OF THE LAW IS NOT ADVOCATING THEY ARE LYING!

    Thank you Mark for alluding to my honesty, which is a virtue that I have worked hard to achieve and the thought of loosing that would hurt me deeply. Please believe me when I say that I in no way wanted to get permission not to video tape a suspect.

    Hopefully this will clear up any misunderstandings.

    Paul Lassalle

  6. Jason says:

    So, if and when video tapes are presented and the facts known. Will the defense concede to the facts? Or will they watch the video tape and find some minor, obscure, insignificant detail (like the tracking of the stimulus was 2.3 seconds instead of 2.0 seconds) and mislead the jury into believing the test isn’t valid? Or if the stop was originally made for an equipment violation, that the fact the driver reeked of alcohol prevents the officer from doing a further investigation?

  7. Michael says:

    Officer Lassalle:

    I, for one, find the sentence:

    “Now, it states that we have to purchase and maintain the equipment of video taping a person charged with certain crimes but there is no requirement to actually do so, correct?”

    to imply, strongly, that you do not think a suspect should be videotaped on every traffic stop. I can see where you meant something else, and perhaps you should clarify that quote. Your belief aside, there are plenty of cops in Austin (where I practice) who won’t video a DWI defendant if he first “flunks” a breath test, even if the defendant requests it.

    Jason:

    Mark said that videos that are bad for his clients usually lead to the case settling without a trial (i.e. a plea bargain). I don’t understand why it’s insignificant that a stimulus tracking took 15% longer than it should (of course, I also think the HGN is a crock), and to my knowledge it’s still hard to duplicate a “reeking” odor in the courtroom.

  8. Paul: Free writing advice, from an actual pro writer: years of intensive scientific research has proven, to a scientific certainty, that assertions types in ALL CAPS are less persuasive than assertions where conventional capitalization is used. Trust me on this.

    I’m not actually misleading you, even though I am lying a little. Like an honest cop, though, I’m allowed to lie to a suspect. It’s for the greater good.

    The problem you’re running into is that the email makes it seem as though you’re making what the law-talking dudes call an admission contrary to interest. I’ll take your word that you honestly mean, to the best of your ability to express, all the stuff you type in caps. Pinky swear.

    So, the obvious question is: what the hell were you drinking when you typed that email, and can you help me be sure I never accidentally imbibe any?

    • Mark Bennett says:

      Here‘s a better scan of the emails. Yes, I’ve published everything HPD produced. No, HPD didn’t want to produce even these 10 pages.

      Jason, are you high? Evidence is just evidence. The parties are very rarely, in a trial, going to agree on how to interpret it. All I want is for the jury in a DWI case to be able to see the best evidence of the accused’s actual mental and physical states.

      Paul, “the facts of the law” doesn’t make any sense. The law is very different than facts. While facts don’t change, the law does. While the facts are one way or another, often the law is two different things at the same time.

      Even assuming that a lawyer knows that the law doesn’t help his client (a big assumption — you’d be amazed at the level of ignorance of the law in lawyers at the courthouse), it’s a lawyer’s job to make every supportable argument for the law to change in his client’s favor. A certain amount of gamesmanship is to be expected. Most of us, though, leave the lying to those who think it’s okay as part of The Job. It’s easy to get a reputation among your adversaries as a liar, and much harder to shed that reputation.

  9. Rage Judicata says:

    I BELIEVE THAT ALL TRAFFIC STOPS SHOULD BE VIDEOED! (especially now that I got caught with my hand in the cookie jar.)

    I HAVE DONE EVEERYTHING IN MY CONTROL TO SEE TO IT THAT EVERY DWI SUSPECT IS VIDEOED! (especially now that I got caught with my hand in the cookie jar.)

    TO MY KNOWLEDGE BOTH THE DISTRICT ATTORNEYS OFFICE AND WARREN DIEPRAAM WANT US TO VIDEO ALL DWI SUSPECTS! (But that doesn’t mean that I have to, just that they want me to.)

    AN ATTORNEY THAT PURPOSEFULLY MISLEADS ANOTHER ATTORNEY AS TO THE FACTS OF THE LAW IS NOT ADVOCATING THEY ARE LYING! (And by “purposefully,” I mean “Advocating a position permitted by the courts that just so happens to be contrary to my way of thinking”.

  10. Edintally says:

    The “reek” of alcohol is significant in the absence of a moving violation, but professionalism, procedure, and precedent are insignificant? I think I see what you did there, thumbs up.

    (stick to taking pictures)

  11. Clay S. Conrad says:

    LaSalle seems pretty confused here. He keeps asking for the law that requires counties of 100,000 or more to buy and maintain video equipment, and Diepraam keeps citing the law that requires counties of 25,000 or more to do so. LaSalle seems to be arguing that 100K or more is MORE than 25K or more… I found that amusing.

    The important thing is that LaSalle’s contention in his comment here contradicts his earlier position. There is no way around it.

    And Joel Rosenberg makes an error, in my mind, in saying that ” the honest cop who thinks it’s his job to get the guest of honor convicted might not want a jury to see him seeming to be no sheets to the wind. ” An honest cop would want to gather all the evidence, inculpatory AND exculpatory, and let the jury sort it out. A cop who only gathers evidence to support one side is dishonest: he is trying to mislead the finder of fact. It is dishonest for a cop, instead of gathering objective evidence, to decide a suspect is guilty and only gather evidence that supports that premise.

  12. Ron in Houston says:

    Rage

    Man chill out. Mark said Paul was honest. He came on here to clarify the record. I’m pretty willing to write this whole thing off as a communication error.

    I see Mark’s context. I see Paul’s context. Both make pretty fundamental sense. I think the discussion was good and helped clear the air.

  13. Michael says:

    Clay says it in a nutshell: “The important thing is that LaSalle’s contention in his comment here contradicts his earlier position. There is no way around it.” I don’t see any context that redeems Lassalle’s point here.

  14. Lasalle’s comments in the email are consistent with both: “Wooooo hooooo, we don’t have to tape record DUI suspects when we think that they’ll look too sober to the jury who might let ‘em go,” and “Wooooo hooooo, if we screwed up and forgot to video a suspect, the charges don’t get automatically dismissed.”

    The only thing they’re not consistent with is “wooooo hooooo.” ‘Cause that’s in there.

    Which is it? I don’t know the guy, and don’t see a problem with giving him the benefit of the doubt. YMMV.

  15. Amused says:

    I know Officer Lasalle. Very well. He is nothing if not honest. The fact that Mark will vouch for him, well, speaks volumes. Lasalle’s concern has always been for those baby prosecutors that lose to the more savy defense attorney’s. And as they are baby prosecutors, they generally learn by example…so until that more savy defense attorney gets one over on you, you don’t learn! The very lack of experience that Mark comments on with regard to the baby prosecutor’s is definitely something that he takes advantage of with his gamesmanship!

  16. Michael says:

    Why would Officer Lassalle be concerned about baby prosecutors losing to savvy criminal defense lawyers, but not about baby defense lawyers losing to savvy prosecutors? The latter offends the Constitution; the former does not.

  17. “Definition of character” is neither a crime nor a tort. And you misspelled it as “vile calumny.”

    Not criticizing, mind you.

  18. Amused says:

    Michael, Officer Lassalle is actually one that will help out and talk to the defense bar. He is one DWI Task force officer/instructer who has been called to testify by defense attorneys. And he is concerned about doing what is right and what is morale. A baby defense attorney will have to ask a more savy defense attorney for help when confronted with a new issue, just like baby DA’s. I think I would be fair to say that most defense attorneys are not going to seek an audience of cops for advice on their strategies. Mark, am I right here?

  19. Amused says:

    oops, moral.

  20. Why would Officer Lassalle be concerned about baby prosecutors losing to savvy criminal defense lawyers, but not about baby defense lawyers losing to savvy prosecutors? The latter offends the Constitution; the former does not.

    Michael : How so? I’m not a lawyer, obviously, so I missed the classes on savviness.

    More seriously, the Sixth Amendment is unique among the Bill of Rights in that the SCOTUS has determined (reasonably, I think) that the right to an attorney has to be funded by the State if the guest of honor can’t afford one. If I can’t afford a rifle, the Second doesn’t guarantee me even a Chinese SKS knockoff (NTTAWTT); if I can’t afford a printing press to exercise my First Amendment rights, I don’t even get a government issue pencil. But if I’m the guest of honor where the consolation prize might be jail time, I do get a lawyer. (Again: I’m cool with that. Honest.)

    If I don’t get an experienced one, does that so vitiate my right that it offends the Constitution? What if I “only” can afford Mark Bennet, but both Mark Bennett and Racehorse Haynes are out of my price range?

    My own take: savviness right up to (but not beyond) the point of ethical conduct is laudatory for defense attorneys (because it’s unethical for a defense attorney to stay away from what might appear to be the edge if that disadvantages the client); savviness (while staying away from the gray areas, because of the asymmetrical responsibilities) is laudable in prosecutors.

    Getting back to Officer LaSalle (remember him?) if what he was really happy about is what he says he was, good for ‘im. That he (manifestly) doesn’t quite get the asymmetry between the responsibilities of the different kinds of guys and guyettes in lawyers suits is an educational and intellectual defect, not a moral one.

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