Post by WaTcHeR on Feb 23, 2006 11:03:24 GMT -5
02/23/2006 - Chief says it's common police practice; others call it an illegal wiretap.
By Tony Plohetski
AMERICAN-STATESMAN STAFF
Thursday, February 23, 2006
Austin police detectives investigating two colleagues accused of beating a handcuffed suspect secretly taped a private conversation between the officers and their attorney during a November interview at police headquarters, according to documents obtained Wednesday.
State and federal laws prohibit investigators from intercepting discussions between lawyers and their clients, with only a few exceptions; state law also prohibits recording other people's conversations without their knowledge.
Police Chief Stan Knee defended the detectives, who left a hidden camera running when they briefly left the interview room to photocopy a document.
"It was not an attempt to surreptitiously record a conversation," Knee said. "If the attorney had mentioned he was going to talk to his client, the detective would have had an obligation to stop the tape."
Legal experts said the incident could affect the case against the officers and raises questions about the legality of what is described as a common police practice.
Austin defense attorney Keith Hampton, a lobbyist for the Texas Criminal Defense Lawyers Association, said most lawyers realize they are being recorded when they are in police interview rooms.
However, "leaving the tape on when the attorney is talking to his client to me is outrageous," Hampton said. "They are supposed to turn the tape off."
Bill Allison, a University of Texas clinical law professor, added: "It is a classic wiretap when you don't have consent."
The lawyer involved, state Rep. Terry Keel, a former Travis County sheriff and prosecutor who is representing officer Christopher Gray and former officer William Heilman, has asked a judge to dismiss all statements his clients made to detectives during the Nov. 21 interview.
Keel declined to comment on the conversation or the recording. But during a pretrial hearing earlier this month, Keel asked Sgt. Mark Spangler, who supervises the department's public integrity unit, why investigators left the camera on after leaving the room.
Spangler testified that the department tapes all witness and suspect interviews but that conversations between attorneys and clients were not included, according to transcripts of the hearing.
Under further questioning by Keel, Spangler testified that detectives recorded Keel and his clients and that police are allowed to record similar attorney-client conversations, which he said could later be eliminated from the record and "separated from anything that would then come in at the trial."
Spangler testified that he thought the law concerning the taping of certain conversations had been repealed.
Knee said Wednesday that the department will examine its practices but that it appeared from an initial review that the detectives did nothing wrong.
Investigators do not start and stop recording when they leave an interview room because they "do not want to compromise the integrity of the tapes," police spokesman Kevin Buchman said. "We don't want to give the impression or have it construed that these tapes were edited."
In December, about a month after their interview with detectives, Heilman and Gray were indicted, along with a third officer, on an official oppression charge after prosecutors alleged that they beat 25-year-old Ramon Hernandez after a minor traffic accident in North Austin.
Police have said Hernandez left the scene and Heilman found him about a block away. Hernandez, they said, struggled with Heilman, and three officers eventually handcuffed Hernandez.
Keel has said the force was necessary to subdue Hernandez, who received cuts to his head and face and puncture wounds that appeared to be from a Taser stun gun.
Gray remains suspended without pay. Heilman is no longer with the department.
When Gray and Heilman were interviewed at police headquarters, Spangler said he could not remember if Keel and the officers were aware that they were being recorded, according to the transcript.
Christine Russo, who works for the private transcription service used by the department, said that the detectives were out of the room for about five minutes and that Keel's conversation with his clients "concerned something different than what they were being interviewed about."
According to the documents, Russo sent an e-mail to Spangler in December: "There is a confidential discussion between the attorney and client with (the detectives) out of the room about other cases Heilman is involved with in the department. Should that be omitted?"
Spangler responded in an e-mail: "Please include the entire conversation. We can then redact what needs to be taken out."
Allison, the UT professor, said the law includes narrow exceptions for law officers, including suspicion that a suspect and attorney might be colluding to hide a crime.
But "the immediate suspicion from the courts is going to be, 'This is bad, and the burden of proof is going to be put on the prosecutor and the police to justify their behavior,' " he said.
Mike Sheffield, president of the Austin Police Association, said he is concerned about preserving the rights of the accused officers.
"The law is very clear," Sheffield said. "As police officers, we are expected to obey all laws and follow the Constitution. There are no exceptions to that."
www.statesman.com/news/content/news/stories/local/02/23taping.html?COXnetJSessionIDbuild120=D9MZLpbgky0Q8qIaJkWDDPZVtvLR1vyZPxKVh9AtSO8KNfVBBfzV!170152973&UrAuth=`NcNUOaNWUbTTUWUXUWUZT[UUUWUcUcUZU`UaUcTYWVVZV&urcm=y
By Tony Plohetski
AMERICAN-STATESMAN STAFF
Thursday, February 23, 2006
Austin police detectives investigating two colleagues accused of beating a handcuffed suspect secretly taped a private conversation between the officers and their attorney during a November interview at police headquarters, according to documents obtained Wednesday.
State and federal laws prohibit investigators from intercepting discussions between lawyers and their clients, with only a few exceptions; state law also prohibits recording other people's conversations without their knowledge.
Police Chief Stan Knee defended the detectives, who left a hidden camera running when they briefly left the interview room to photocopy a document.
"It was not an attempt to surreptitiously record a conversation," Knee said. "If the attorney had mentioned he was going to talk to his client, the detective would have had an obligation to stop the tape."
Legal experts said the incident could affect the case against the officers and raises questions about the legality of what is described as a common police practice.
Austin defense attorney Keith Hampton, a lobbyist for the Texas Criminal Defense Lawyers Association, said most lawyers realize they are being recorded when they are in police interview rooms.
However, "leaving the tape on when the attorney is talking to his client to me is outrageous," Hampton said. "They are supposed to turn the tape off."
Bill Allison, a University of Texas clinical law professor, added: "It is a classic wiretap when you don't have consent."
The lawyer involved, state Rep. Terry Keel, a former Travis County sheriff and prosecutor who is representing officer Christopher Gray and former officer William Heilman, has asked a judge to dismiss all statements his clients made to detectives during the Nov. 21 interview.
Keel declined to comment on the conversation or the recording. But during a pretrial hearing earlier this month, Keel asked Sgt. Mark Spangler, who supervises the department's public integrity unit, why investigators left the camera on after leaving the room.
Spangler testified that the department tapes all witness and suspect interviews but that conversations between attorneys and clients were not included, according to transcripts of the hearing.
Under further questioning by Keel, Spangler testified that detectives recorded Keel and his clients and that police are allowed to record similar attorney-client conversations, which he said could later be eliminated from the record and "separated from anything that would then come in at the trial."
Spangler testified that he thought the law concerning the taping of certain conversations had been repealed.
Knee said Wednesday that the department will examine its practices but that it appeared from an initial review that the detectives did nothing wrong.
Investigators do not start and stop recording when they leave an interview room because they "do not want to compromise the integrity of the tapes," police spokesman Kevin Buchman said. "We don't want to give the impression or have it construed that these tapes were edited."
In December, about a month after their interview with detectives, Heilman and Gray were indicted, along with a third officer, on an official oppression charge after prosecutors alleged that they beat 25-year-old Ramon Hernandez after a minor traffic accident in North Austin.
Police have said Hernandez left the scene and Heilman found him about a block away. Hernandez, they said, struggled with Heilman, and three officers eventually handcuffed Hernandez.
Keel has said the force was necessary to subdue Hernandez, who received cuts to his head and face and puncture wounds that appeared to be from a Taser stun gun.
Gray remains suspended without pay. Heilman is no longer with the department.
When Gray and Heilman were interviewed at police headquarters, Spangler said he could not remember if Keel and the officers were aware that they were being recorded, according to the transcript.
Christine Russo, who works for the private transcription service used by the department, said that the detectives were out of the room for about five minutes and that Keel's conversation with his clients "concerned something different than what they were being interviewed about."
According to the documents, Russo sent an e-mail to Spangler in December: "There is a confidential discussion between the attorney and client with (the detectives) out of the room about other cases Heilman is involved with in the department. Should that be omitted?"
Spangler responded in an e-mail: "Please include the entire conversation. We can then redact what needs to be taken out."
Allison, the UT professor, said the law includes narrow exceptions for law officers, including suspicion that a suspect and attorney might be colluding to hide a crime.
But "the immediate suspicion from the courts is going to be, 'This is bad, and the burden of proof is going to be put on the prosecutor and the police to justify their behavior,' " he said.
Mike Sheffield, president of the Austin Police Association, said he is concerned about preserving the rights of the accused officers.
"The law is very clear," Sheffield said. "As police officers, we are expected to obey all laws and follow the Constitution. There are no exceptions to that."
www.statesman.com/news/content/news/stories/local/02/23taping.html?COXnetJSessionIDbuild120=D9MZLpbgky0Q8qIaJkWDDPZVtvLR1vyZPxKVh9AtSO8KNfVBBfzV!170152973&UrAuth=`NcNUOaNWUbTTUWUXUWUZT[UUUWUcUcUZU`UaUcTYWVVZV&urcm=y