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.



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.


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...


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.

Wednesday, January 8, 2014

Do As I Say Not as I Do: How to Use "Science" to Undermine Justice

In my time as an investigator I have interviewed a good deal of child victims and witnesses. They have been young enough to have poor sentence formation and old enough to drive a car. My interview style varies depending on the person's age but of course it is also tailored to the individual person. Some young children are very sophisticated, some teenagers are very immature.

When I first started at my current job, I listed "child interviewing" as one of my training goals. I was honest and in retrospect, horribly naive. While I have had general and on the job training regarding child victim interviews, I was vaguely aware of professionals who were specially trained to speak with children following established guidelines meant to get the highest quality information from the youngsters while minimizing any trauma associated with discussing the alleged incident. In my understanding, these were not the government shills (aka police officers) responsible for embarrassments like the Wenatchee Witch Hunt. No, they were independent, scientifically-minded civilians. Naturally I wanted to better myself and the service I could offer my clients. I wanted the training these professionals had.

Boy sometimes my own naivete surprises me.

My first step was to start reading about how to interview children. I poured over studies and websites and memorized the Washington State Child Interview Guide. I researched training options on the subject and discovered one of my former coworkers attended a well known training put on by the Harborview Center for Sexual Assault and Traumatic Stress. The training was offered in cooperation with the Washington State Criminal Justice Training Commission (the same organization that trains the police officers throughout the state) and is called "Child Abuse Investigation and Interviewing". Notably, this is the required class for anyone attempting to become a "forensic child interviewer" with the King County Prosecuting Attorney's Office. In talking with my peers, I discovered that defense investigators who had interviewed child victims or witnesses were often criticized on cross-examination for failing to complete this very training.

Not one to back away from spending a week surrounded by police officers and social workers I thought, "Fair enough, I'll rectify that by attending the course".

I registered for the training and told my fellow investigators to do the same. I figured that since the recent county take over of the public defenders in King County, we may even get some of the training paid for or be allowed to attend for free. My fellow investigators gave me the same sideways look of caution they always do when they know I'm about to cause trouble, but ultimately they followed suit.

Shortly after we registered our supervisor received an email from the course's director. She explained we would not be allowed to attend the training. She had a laundry list of reasons. They were struggling to meet demands from police officers, prosecutors, and CPS professionals registered for the class. (Except we registered five months in advance and the class was certainly not listed as full. In fact, their website did not show the class as full until a few weeks beforehand, months after we had been denied.) She later argued that the class was designed specifically for a law enforcement audience and therefore not appropriate for our needs. (Huh?! This flies directly in the face of the party line among the "forensic" child interviewers in King County who claim to be unbiased professionals charged with uncovering the truth from children involved in criminal matters.)

She went on suggest we either 1) attend the vastly more expensive and much rarer training provided by the American Society on the Abuse of Children, 2) discuss holding a "defense oriented" training by herself and a peer, which the Washington Defenders Association would have to pay for exclusively.

One of my coworkers is fond of saying, "Don't piss on my leg and tell me it's raining". That is exactly how I felt. Particularly given I have personally heard her peer say that the WSCJTC training would put the defense in a bad position because the job of the defense is "to PROVE it didn't happen" (emphasis mine). She further went on to argue that since the defense has to represent their client, they have little interest in dong things the "correct" way and a much stronger interest in doing things in a slimy, manipulative way.

There are two issues here. 1) Biased advocates with a poor understanding of the criminal justice system are representing themselves as unbiased scientists and training other professionals to do the same. 2) The prosecutors are representing to the court and to jurors that defense investigators' failure to attend this child interview training signifies a deficiency in their qualifications. I could get behind this if it wasn't for the fact that we have now attempted to attend the training and been rejected. You can't tell me I am barred from a training and then use it against me.

Anyways. I am currently at an impasse with this problem which I guess is why I am writing this. I am so unbelievably pissed about it but have yet to decide on a next step. One thing is for sure, if I am asked about my failure to attend that training while on the stand, I will make the situation abundantly clear.

Again. "Don't piss on my leg and tell me it's raining."