Wednesday, April 23, 2014

An Appeal for Non-Attorney PD Staff in King County

Public defense in King County, Washington is currently in a state of upheaval. In case you are not from the region or you don't pay attention to public defense news, I'll give you the summary.

A public defender with one of King County's non-profit public defense firms filed a lawsuit against King County. The lawsuit alleged that he is entitled to membership in the County retirement program but that the County failed to report him and contribute to his retirement plan as required by the Department of Retirement Services. This lawsuit became a class action and after much argument made it to the Washington Supreme Court where the Justices sided with the plaintiffs. Some appeals were sought but in relatively short order, a settlement was reached.

Settlement of the Dolan Class Action has resulted in King County transitioning all employees of the non-profit public defense agencies to county employment, forming the Department of Public Defense. Transitioning a system with a long history of independence and autonomy has proved very difficult for the county. All members of the Department of Public Defense have chosen to be represented by SEIU 925 and a union contract is currently under negotiation. The King County Council and Executive have elected to form a Public Advisory Board to advise on all elements of the future of public defense in King County. Nominations have gone out, names have been submitted, and a slate of potential members should be presented to the County Council for approval before mid-May (http://www.kingcounty.gov/courts/OPD/PublicDefenseAdvisoryBoard.aspx).

As someone who cares about public defense in King County and hopes to preserve the exemplary system we have, I have been active in the conversation of "where do we go from here?" As a citizen of King County and a ardent supporter of public defense, the work I have seen and participated in makes me proud. As a member of the non-attorney staff, I can't help but be concerned.

Before I dive into my explanation, I want to be clear that I do not believe any one person is to blame and I don't think any injury is intentional. Much of the conversation about appropriate funding and support of public defense systems focuses on attorneys. There are many reasons for this. Attorneys are the face of public defense since they are usually the people standing in court next to the defendants. They are licensed through their state bar associations, and in return they have powerful advocates in the local bar. Criminal defense lawyers and public defenders are fairly well organized locally and nationally. What's more, some public defender offices only have attorneys on regular staff. For all these reasons, when people talk about funding and support for public defense, they think about attorneys. But building a strong system of public defense means a lot more than that and sometimes I worry that King County will forget that in the rush to transition us all into county employees.

One more disclaimer: I can only give an investigator's perspective on this situation. I think it applies to other non-attorney staff as well, but I can't be positive.

The Washington Bar Association does currently give a recommendation of one investigator to every four attorneys in their Standards for Indigent Defense Services, which was approved on June 3, 2011. There is some speculation that the Department of Public Defense may actually be operating on the razor's edge of that number. However, the WSBA makes no mention of appropriate compensation or training for investigators. An argument I hear all the time in relation to attorneys is that if you offer low salaries to public defenders, you will not get strong attorneys sticking around at your office. The same is true for investigators. In fact, I would argue that the number of alternative career paths available to investigators makes it more difficult to keep them around.

The bigger concern I have is that the WSBA standards do not address ongoing training for investigators. This speaks to a lack of understanding about our job and our responsibilities as a part of the defense team. I have tried to talk about the variety of PD investigator responsibilities on this blog, but they go far beyond what I have discussed here. In the model public defense systems, investigators serve as a second set of eyes for the attorney, someone to double check their analysis of discovery and suggest avenues of exploration that the attorney may have overlooked. Investigators need to be up to date on technology, processes, and standards of their local law enforcement and need to know when the industry best practice differs from that of the LEO standard. We need to be expert problem-spotters, and at least in Washington, expert interviewers. We are regularly up against law enforcement officers who have a huge amount of specialized training so we need to be able to match them or tell an attorney when a specialist is needed. An investigator cannot come anywhere near this aspiration without ongoing training. I have heard no mention of that in the discussions with the county and it worries me.

A related problem I see is the lack of interest in mentorship of investigators and a desire to give them relevant supervision. The Department of Public Defense should not treat investigators as subordinates of attorneys, this encourages an atmosphere where our input, experience, and knowledge is not solicited or even listened to. We should be supervised by a lead investigator paired working with supervisors, all who have investigative experience. This will ensure that our supervisors understand our arguments and will advocate for us if or when a dispute with an attorney occurs. This is vital to developing a community of investigators who can rely on one another and to foster appropriate communication between attorneys and investigators.

These two concerns may seem basic but they are excellent examples of topics where needs are being addressed for attorneys but not non-attorney staff. I would hate to see the public defense system in King County develop into one where non-attorneys are treated like lesser employees. A situation like that will scare away talent in many job classifications and ultimately erode the quality of public defense in our county.

Tuesday, April 15, 2014

What Does a Public Defense Investigator DO? - Testify

TESTIFY! (Can't help but picture a preacher screaming that to his flock.)

I know this is not in the order I listed originally but I just testified recently so it is on my mind.

Testifying is something that seemingly everyone dreads. I suppose it is because it is public speaking in a potentially contentious atmosphere it frightens people. I want to sit here and play like I am beyond that. I really am not but I'm getting better.

I have testified a decent number of times. Some of my testimony has been contentious and scary, some has not. There are definite stages to the experience of testifying which I am going to outline for you all.

1) Find out you are likely to be called to testify. A lot of times attorneys will psyche you out by saying they will probably call you to testify. They'll say, "I will need to call you to testify about that" or "Because _____ I will need to have you testify". This goes for both defense attorneys and prosecutors. But there is a moment when it becomes real. If it is the prosecutor trying to call you, it will be when you get a subpoena (and then frantically run to your supervisor because, UGH). If it is the defense attorney it will be when they talk to you very specifically about some issue in the case and ask about your schedule. Usually I feel fine at this point, just make a mental note that nothing will get done the day I am likely to testify.

2) Day of testimony. Usually I think over whatever I was asked about by the attorney and get together any documentation that might be useful for court. This is where I usually feel badass because I am a perfectionist. I document SO MUCH about what I do and if I bring that stuff to court with me it usually makes my life infinity easier. No offense, but usually the attorney does not think to ask about this stuff but experience has taught me it is important to do and then have with me in court. Examples include photographs, court orders, signatures, reports, and diagrams. Oh random reader, if you are looking at this blog and ever become an investigator, hear me: Unless there is a good reason not to, DOCUMENT EVERYTHING. My advice. Take it with a grain of salt, I'm a n00b.

Oh, quick note about bringing documents to court: make sure you tell the attorney what you are bringing. You likely won't have that stuff available to you on the stand but if the attorney knows you have it, they can work out making relevant items available to you as needed.

3) Dress up and go to court. I have a love/hate relationship with getting fancy for court. I am of the opinion that you should do whatever it takes to make yourself feel confident, keeping in mind that you will be in a professional atmosphere. So get a wonderful, expensive outfit if it makes you feel like a million bucks. On the other hand, if that is too fancy and attention-drawing play it demur and simple. The judge, jury, and attorneys will sense your energy. Look professional and feel good. Err on the side of too conservative.

4) Arrive at the courthouse feeling great. Self explanatory. Sit on a bench, talk to the defense attorney, find out it will be thirty minutes to eight hours before you testify (not really, but kind of).

5) Get comfortable on that bench. You'll be there a while. Look at your phone. Read a book. Feel pretty good about the situation.

6) Talk to the attorney and find out you will be testifying soon. You'll probably be there another hour but now you start to get nervous. Look over your documents. Think about the testimony. Check your phone a hundred times to make sure it is turned off. Generally start freaking about about something that is probably straightforward.

7) Direct examination. The attorney calling you asks you questions. If you had a conversation with the attorney beforehand, this won't be too bad. If they didn't have a conversation with you beforehand, that is kind of not cool. They should. Anyways, once you're on the stand just get past the awkward formality of it and you will be okay. Try to say "sir" or" ma'am". Make eye contact with the attorney, judge, and jury (when appropriate). Try not to say "um". If you feel unsure about a question, ask for it to be repeated.

8) Cross examination. Dun, dun, DUH. Opposing council gets to ask you questions. The biggest thing about this is to avoid getting bent out of shape with them and don't try to analyze why they are asking you something. Don't worry about "right" or "wrong" answers. Just answer. When you are testifying it is not your business to achieve any goal. If the attorney calling you needs to achieve something, they will deal with it on redirect. Let them do their job, you do yours and talk about what you did/saw/heard. Pause before you answer questions so in case there is an objection (that actually applies to both direct, cross, and redirect) and if there is an objection that is overrruled, ALWAYS ask for the question to be repeated. Trust me.

9) Redirect. The attorney calling you gets to ask follow up questions. Same rules apply, just answer questions and if you are me, savor the fact that you won't be wearing high heels much longer.

10) Be excused. Leave. Change into more comfortable clothes. Reflect on your experience and if you are lucky enough to have people in the audience from your office, ask them for feedback when you next see them.

So those are the stages of testifying according to someone who has testified a ____ number of times. It is always scary but a lot of times it doesn't need to be. Over thinking is your enemy.

I have a good number of testimony stories but I will save the for another time.

What do you all think? Is this a pretty good rundown of what testifying is like/should be like?

Sunday, April 13, 2014

What Does A Public Defense Investigator DO? - Gathering Records and Background Checks

I have been wondering when I would ever have time to sit down and write again and then magically, as though the universe heard me and responded to my desire for more time to do stuff, my lovely insomnia came back! So, here I am with some free time to write. Hopefully I will write and finish this all in a day or so. 

Anyways! On to the meat of this entry..

Despite the fact that it can sometimes become quite tedious, one of my favorite tasks is gathering records and investigating the backgrounds of defendants, witnesses, and alleged victims. Not to minimize the role of interviewing but I often think about the fact that people can say anything. They can tell the truth, they can lie, they can forget things, but records feel a lot more set in stone. They are what they are and no one is going to be able to do much about them. When I find records that are good for a client in some way, I feel like I've found a small treasure.

So what kind of records am I looking for? Government records, medical records, documentation of criminal convictions, records from schools or technical training, news items, and work history. There is no way that list is exhaustive and of course the particular records needed will vary depending on the case and client. Furthermore, what is available to the defense will be limited by privacy laws. Sometimes a release of information or subpoena will get you what you want but it can also be more complicated than that. 

Phone records and housing records, I just thought of those while I finished typing the last paragraph. I told you the list wasn't exhaustive.

A competent background check also means checking social networking and googling the person in question. Now, I know investigators who do not do this but in the current social environment I think it is negligent not to do at least a cursory internet search. Tons of people have an internet presence and while finding them online may not give you immediate information, it can help you build to something relevant. Addresses, potential witnesses, gossip, this could all be relevant down the line. Maybe you don't spend a lot of time on it but it is worth ten minutes on Google, Facebook, Spokeo, etc.

Now I want to address yet another area in which regions, states, counties, and offices vary greatly. Who is responsible for actually obtaining records? I have worked in two offices where there were minimal or no paralegals and so investigators were responsible for all record gathering. This could mean simply taking subpoenas written up by an attorney and serving them or even drafting subpoenas and presenting them, and THEN serving them. My current office has paralegals. A lot of the time they will gather information relevant to actually obtaining records (like calling the general counsel, records custodian, etc) and draft the subpoenas which investigators will ultimately serve.

By the way, for the uninitiated, there are different kinds of subpoenas. The two relevant to my writing here are the witness subpoena (you have to come testify) and the subpoena duces tecum (for the production of evidence). Now with the second type you are still responsible to come to court with evidence unless otherwise specified by the attorney. In my experience, usually this means if you give over the requested information prior to the date on the subpoena you may not need to come to court at all.

Now is a good time to remind you all: I AM NOT AN ATTORNEY. I AM A DULLARD ABOUT THE LAW. I AM MERELY WRITING ABOUT MY EXPERIENCES IN THE LEGAL SYSTEM.

YOU? YES YOU. I AM NOT GIVING YOU LEGAL ADVICE. GO AWAY.

So, anyways. In my current position the paralegals and investigators have a very symbiotic relationship when it comes to obtaining documents. We usually uncover where documents could be, document them as we can, and if further documentation is needed, we forward our information on to the paralegals and attorneys. Then we serve subpoenas.

I'm not going to lie, it isn't too bad for us out here.

ARE YOU STILL LOOKING FOR LEGAL ADVICE? GO AWAY.   

Saturday, February 8, 2014

Gerald O'Donnell and Erring on the Side of Caution.

"Hi. My name is Socialist Gumshoe and I am an investigator with the [insert location name here] public defender's office. I am working with an attorney named [insert zealous attorney's name here] who represents [insert unfortunate defendant's name here] regarding the incident that occurred on [insert date here]."

I can ramble off those two sentences like they are engraved on the inside of my eyeballs. Get me shitfaced drunk, I can say them. Wake me up in the middle of the night and I can run through them in a heartbeat. They're drilled into my head along with the raising of my hand to present a business card or an identification card. It is my practice to ask people if they understand who I am if they seem unclear in any way. No one I contact while working doesn't know who I am or who I am working with, I make sure of it.

I have also never bought anything for a witness. Not coffee. Not dinner. I haven't attempted to form friendships with them. I am maybe a little too strict but ultimately I want to be able to say that without doubt in court. Even still, sometimes I doubt my absolutist approach to dealing with witnesses. I have known investigators over the years who are not as stringent as I am. They will do little things to smooth over conversations, buy coffee, offer a small meal, in the name of making the witness comfortable and facilitating the interview. On one or two occasions I have known investigators who became something of a friend to witnesses in their cases. These people have never admitted any ulterior motives for their actions, in reality I think they did their jobs and just responded to the witnesses as a decent human being would. No ill intentions, just being nice. I am not that way because I am paranoid and hyper aware how those niceties might look from the outside. Then, just the moment I am starting to soften, something like the story of Gerald O'Donnell comes along.

Now I don't know Mr. O'Donnell and I have no idea what his reputation is. I haven't viewed any trial transcripts or looked over any evidence in any of the cases in question. However, I can imagine his position. It sounds like Mr. O'Donnell located a witness who willingly recanted. Because of the long term nature of the appeal process, he had to stay in contact with her for a while. Multiple contacts with someone and you become more friendly with them. Maybe you like them and want to extend a kindness to them. Little things here and there, no pure cash exchanges. No promises made or demanded from either side. You think you're being nice.

A few years later, some government pressure, and suddenly you are on trial for bribing a witness.

Needless to say, any criminal charge is hell for an investigator and potentially career-ruining. Of course, if you have done the job for any length of time you have probably had an overzealous prosecutor attempt to bring some kind of charge against you. I have had it happen, and when it did I was so glad for my absolutist approach and memorized introduction. I said it five times - three more than was probably necessary, but it meant I didn't have to sweat it on the stand. In some ways that makes me sad because I think it might hurt my ability to establish a human connection with some people but on the other hand, I like having the clarity.

The ultimate bitch of this is that the police department here has no issue with spending money on their witnesses. I've heard of them buying food, providing hotel rooms, and offering cash "for food" for their witnesses in less than fortunate circumstances. Will they ever be accused of bribery or obstruction of justice? No. Could their actions still have that effect? Certainly.

Great example of something I have observed for a while: defense investigators are severely disadvantaged compared to police but are ultimately expected to fulfill similar investigative functions. Another way that defendants are crippled by the power of the government.

I wrote this a couple weeks ago and looking back on it now...maybe I need to soften my approach. Buying coffee or a little bit of food for someone probably isn't the end of the world. What do you all think?



Wednesday, February 5, 2014

Now George Zimmerman is a Boxer: Part One

George Zimmerman is supposedly going to fight DMX in a live pay-per-view boxing match. Good.

This news enrages me and I am writing about it to try and unravel those feelings. I suppose first I should give some background.

Like a lot of people in the criminal defense field, I have a complicated relationship with the death of Trayvon Martin and the subsequent trial of George Zimmerman. I recall talking to my brother during the time the public was protesting over George Zimmerman's release from custody and saying, "if he has a coherent story at all, the most the government will get on Zimmerman is a manslaughter charge of some sort. Either that or the jury will hang for reasonable doubt". 

I wasn't clinging to the television to observe the trial, which in my mind became a disgusting, disrespectful media circus (not that I was surprised by this). I cautioned everyone I knew that the jury would not necessarily be looking at everything the public saw and that fact was because of rules put in place to ensure evidence entered into trial had true value. On the other hand, the media could throw whatever they wanted at the general public without any review and we could be swayed whichever way we were inclined to be swayed. I reminded people no one knows the truth, no matter how much we might believe some conclusion to be true. We weren't there. Only two people ever really knew what happened, and one is dead.

I tried to withhold predictions about the verdict but I happened to see it announced on television while having brunch with my boyfriend. I admit to being a little shocked the jury didn't go for the lesser of manslaughter. I felt some anger at the injustice but reminded myself about the burden of proof and ultimately believe that justice was served. The government didn't have enough to prove their case and so George Zimmerman rightly walked free. 

I have to admit to being a little disappointed in some of my criminal defense friends following the verdict. These are people who I had previously watched cheer on "not guilty" verdicts in other high profile cases; reviling anyone who claimed "that bastard/bitch/child is CLEARLY guilty and should be in jail for life" and now here they were saying the same thing! Mostly I didn't call people out on it (I've gotta work with some of them) but observed it in disappointed silence.

I think the problem with the death of Trayvon Martin and the trial of George Zimmerman is that it does represent an injustice, but it is not an injustice that can be resolved by the courts. Trayvon's death is sad for us as a society on so many levels. We look to the courts because many of us see them as a source of supreme power and clarity, but the court can't stop someone from fearing their fellow man because of the color of their skin or the way they dress. The court can't ease from men their deep rooted panic and need for control that drives them to vigilantism. The court can't ultimately change the history of discrimination and bias that has undermined and even destroyed the lives of millions of people. The court cannot ease the reasonable pain and frustration of those people affected by this insidious societal prejudice. The court isn't going to go into the minds of people and bestow them with the understanding that bringing a gun to a confrontation with a child is no way to conduct yourself. These are all social problems that spring from our media, our culture, and have infiltrated the way each of us sees the world. Sending George Zimmerman to prison would not change those things. Tragically, it will not bring Trayvon Martin back to his family. 

That is the struggle of the whole criminal justice system. At the end of the day, it gives no true reprieve for the most damaged victims. It is a poor method for extracting revenge and that is as it should be because revenge is not the goal of our system. Revenge is not justice. Closure is not justice. 

The acquittal of George Zimmerman was justice. His perpetual media presence is injustice.

(I've got more to say on this but it must be later. I know my vast audience is real concerned about that...)

Wednesday, January 15, 2014

The Worst Part About Being in Trial

Probably the worst part about being in trial as an investigator is the helplessness. For months or years you have invested huge amounts of time in getting to know everything about a case. You know the client, their friends, the characters in the case, and minuscule details about the incident. When you have put so much time and energy into something it is supremely difficult to realize it is now in the hands of someone else. It helps to trust your attorneys, of course. But even when you do, it’s very hard to let go.
Usually when I have one of these cases in trial, my productivity drops in the office. It’s tough for me to leave my desk. What if an emergency comes up during trial? I check my phone a lot to ensure I haven’t missed any last minute requests. And most of all, I continue pouring over discovery. Review interviews, police reports, photos, anything at all and if I see any issues or feel like things need clarifying I spend my time on that.
I know some investigators might chide me for being too attached and to some extent they might be correct. However, I have always seen it as my job to know the case better than anyone. Better than the defense attorney, better than the prosecutor, better than the case detective. I need to be able to see the case from dozens of different angles and use this deep familarity to assist the attorney. Kind of like a whetstone sharpens a blade. This obligation doesnt stop just because trial has begun. In fact, trial usually involves rapidly developing new information which it is my responsibility to digest and understand.
Part of this obligation is knowing when to go forward and when to put the breaks on. I am personally a very curious person (thus the job). I will dig, and dig, and dig for information if I feel there is some question still unanswered. Of course, sometimes there is but it has no relevancy at all to the legal case. You have to be able to see that and if you must push forward, do it on your own time. On the other hand, sometimes you feel the need to do something no attorney would ask you to do that may turn out to be useful.
I can’t really say how to tell the difference, because I’m still learning myself. A big greenlight in my mind is when something has not been done or documented by the police or the prosecutor. I see it as a chance to have access to more information, keeping you one step ahead. A red light I guess would be an academic interest or general curiosity. Something that I have been trying to do lately is take note of these instances and use them for research topics when I have free time. An investigator really can never know too much - and if I can learn more and then pass it on to my office, so much the better.
Anyways, I guess I have distracted myself enough for now. Thanks for listening to me rant imaginary listeners. ;)

Saturday, January 11, 2014

Words have meaning, dammit.



I know I am not the most eloquent person on the planet. I don't claim to be. But at least I try to use words accurately. With that said...

Attorneys: Please do not say the sentence "everything is a priority". Please also do not enumerate everything on the task list you gave me when I ask you what your priorities are for a particular case. If you do these things, I will start wondering how you finished law school and passed the bar because...

THAT IS NOT THE MEANING OF THE WORD "PRIORITY".

Yes. I have had attorneys do both of the above to me on multiple occasions. Rant as I might, I don't think I can really describe how much it annoys me.