Tuesday, November 25, 2014

White People in Criminal Defense: Where Does Your Allegiance Lie?

Working in criminal defense makes it difficult for me to direct rage at most not guilty verdicts. I have worked on so many cases that most times I assume unreported facts or nuances in the law are responsible for jury verdicts that cause so much public outrage. As an investigator for the defense I am all too familiar with the little facts that can swing a case, all the little holes that can be poked in the government's theory to pull it apart. It is my job to look for them. 

For the many white people working in public defense, that is a comfortable position in the wake of the grand jury's decision not to indict Darren Wilson. I am deeply disturbed by the comments that are already beginning to surface. People who distrust the government for a living suddenly take their guard down and say, "Respect the system". It sounds very much to me like a variation on the phrase, "Just wait until we have all the facts". In reality, it was prosecutor Bob McCulloch's intention to frame the public's perception of the process to make it seem like all of the facts have come out. But wait...is that what a grand jury is for? I don't think so. A grand jury exists to determine if probable cause exists that a crime was committed. (No, I'm not an attorney but I looked it up on Wikipedia asshole.) My experience with the probable cause standard is that it is disastrously low. If it's not then there are hundreds upon thousands of cases that need to be revisited. 

It is doubly difficult because in most cases the criminal defense crowd would cheer for a prosecutor hedging on the side of the defendant in a grand jury hearing, maligning the reliability of eyewitness testimony, or urging restraint in finding against the defendant. But if we look again and observe the context of McCulloch's choices, we can see why that is impossible. He did not need a grand jury to charge Darren Wilson, so why did he chose one? He didn't need to present so much testimony to argue for probable cause, so why did he? The sad reality is that Bob McCulloch wanted the grand jury to look like a trial. A trial where Wilson was found not guilty but never had to face blistering cross examination or truly have anything at risk. McCulloch, like many prosecutors, manipulated the system and got what he thought was just. That is hardly a system any of us should trust. 

If you are advocating for anyone to trust it, I think you need to look a little closer at yourself and ask where you are really placing your allegiance.  

Wednesday, November 12, 2014

Florida Attorneys Want Investigation Into Indigence Applications

Because I had such a great day today, what with finding out that the local public defender's office is having its much needed budget slashed, I decided to check out the state of public defense around the country to calm my celebratory attitude.

I was rewarded with a story out of Orange County, Florida which reminds me of an unethical practice I wrote about that is going on in Waco, Texas. Apparently in Orange County several conflict panel attorneys are concerned defendants are faking indigence to obtain a taxpayer funded public defender. Now this makes sense given the high value the public places on public defenders. Don't be fooled, nicknames like "public pretender", "public offender", and  "dump truck" are all fond ways of recognizing the hard work that these low paid attorneys put into defending the rights of their clients. Who wouldn't want an attorney who society by and large portrays as incompetent and incapable of finding a "real job" at a big law firm? Boy, sign me up!

The article begins by discussing the situation of one defendant who was arrested in a Nissan Pathfinder (they don't specify the year) and allegedly told deputies he had a job. Apparently the fact that this individual later hired a private attorney is evidence that he could afford one on his own all along and was just lying to...well, I guess have a public defender for fun? What the article doesn't explore is the insane lengths people sometimes go to in order to hire a private attorney. Many defendants' families mortgage houses, sell their only means of transportation, go into debt, cash in their retirement (or their loved ones' retirement), all to "afford" an attorney. I fail to see how subsequent choices, access to a car of ambiguous value, and a job with unstated income means a defendant is "undeserving" of effective representation.

The following paragraphs become even more ludicrous as they praise a local judge for drilling defendants about the information in their applications for public defenders. With the language used in this article, one would expect this to segue into the story of a billionaire who tried to dupe the system for free representation. Instead it tells the story of a defendant who, under pressure from Judge Carol Draper, admits he does have a job...mowing lawns off the books. The judge scolds him for not paying taxes and expecting to receive a public defender, then denies his application.

Now I'm not a genius social theorist or anything, but two points immediately come to mind. 1) I doubt many people who work low paying jobs off the books would earn enough to be above the poverty line, which should absolutely qualify them for a public defender. 2) If you are indigent, it is highly unlikely that you pay taxes. So by Judge Draper's standard these people shouldn't receive public defenders so...who should?

It is depressing to see society increasingly viewing social services like an insurance plan, you pay into it so in case one day you need it. If you don't pay in, you don't benefit. That is completely wrong headed. Social programs like public defense should be about ensuring that people's needs and rights are provided for, without question. The idea that someone would intentionally lie to obtain a public defender belies a disgusting lack of compassion for people less fortunate than oneself and moreover, a disrespect for the fundamental components of our criminal justice system. If someone needs a public defender, they should be effective and well trained, if they ultimately decide to hire a private attorney, they should not be looked upon with judgment.

At least the article seems to recognize that the county has no ability to investigate defendants' claims of indigence and that is absolutely how it should stay. By all means, have someone present to help people fill out their paperwork and ask them pointed questions about their means. This is assistance. But encouraging judges to harass defendants about the minutiae of their financial circumstances and pushing for investigation into these claims - it is sad, disgraceful, and (as is the case in Texas) probably a violation of people's Constitutional rights.

Updated - There Ain't Hope for Public Defense Investigators in King County

Update: The digital ink was hardly dry on this post when the King County Council's budget committee posted this budget article spitting in the face of everyone in the new Department of Public Defense. No where in the article do they mention that the budget committee has approved a budget that will knee cap public defenders and drag us ever closer to failing in our mandate to provide effective assistance of counsel to the indigent. Instead they pat themselves on the back for giving additional funds to the King County Sheriff's Department to increase investigation of sexual assault and domestic violence cases. They fail to mention who will be around to defend all the extra cases this funding that will result.

Meanwhile, King County Prosecuting Attorney Dan Satterberg has insisted on pursuing death penalty cases against three defendants which has cost the County millions to prosecute and defend. The cost would be vastly lower if they were allowed to plead to life without the possibility of parole and yet the death penalty has been doggedly pursued. And yet, it is the public defenders who need to cut back.

***

Friday, October 31st at 4:00pm the Public Defense Advisory Board certified a report covering County Executive Dow Constantine's proposed budget for the newly created Department of Public Defense. The two year budget caused a lot of distress among the King County public defenders when it was released a little over a month ago. Some of the more alarming cuts would require approximately forty attorneys be laid off or have their contracts terminated, the elimination of several deputy directors as well as the only investigations supervisor, and retracting the department to three divisions down from the current four division system. Public defense has only been in house with the county government for a year and a half and many questions about the impact of department-wide changes remain unanswered. The Public Defense Advisory Board, which is charged with ensuring public defense in King County remains strong and effective, pushed back against the Executive's proposed budget and its consequences in their report. Their conclusion accurately states the department must be well funded and supported through its transition into a government organization, otherwise the quality of representation will be drastically reduced.

While in and of itself this is a great sign, I was particularly excited about several statements made regarding investigation. The fact that these stances are being argued for by some of the most knowledgeable people practicing criminal defense in the State of Washington make me very hopeful for the future of public defense investigation in King County. This is especially heartening as it goes against the national trend of cost cutting in public defense offices by undercutting professional staff in a race to the bottom. 

The first statement I ran across was very simple and did not call out defense investigators directly but merely stated, "Department Funding Should Provide Parity With the Prosecution, Recognizing that the Prosecution's Investigatory Burden is Borne by Law Enforcement Agencies". Inherent in this statement is the acknowledgement that investigation is a primary element of criminal law and that this need should be taken into account when calculating the budget for the department. This correctly positions investigators as a necessity for criminal defense. Within this same paragraph the Board refers to the ABA's Ten Principles of a Public Defense Delivery System which mandates that public defense should have access to parity with prosecution across the board, including staffing, resources, training, and supervision. By placing law enforcement under the same umbrella as the prosecution, the Board is making a great case for a dramatic increase in public defense investigators' access to resources and training. 

The next statement is even more powerful. Grab a tissue (just kidding, only absolute nerds like me will get teary eyed over this).

"Supervision of investigators and social work/mitigation services staff requires specialized knowledge and training. Defense investigation and social work/mitigation services housed in a defender practice require specialized and ongoing training that is outside the competency of attorneys. These employees cannot be properly evaluated, their work cannot be meaningfully overseen, and their skills cannot be further developed, without oversight from dedicated supervisors with relevant expertise."

It wasn't too long ago that an attorney supervising investigators told me that she can only evaluate us from the standpoint of an attorney. Everyday I suggest something to an attorney that they may not have considered or utilize an interview technique they have never heard of. I don't learn these things from attorneys, I learn them from other investigators. Consistent with this reality, an investigator is the only person who can give me meaningful feedback on how I do an investigators' job. In addition, attorneys and investigators can sometimes come into conflict. When an attorney supervises investigators, their stance is much less likely to be recognized as the attorney supervisor is likely to only understand the attorney's side of the argument. Having our own advocate would not just increase the rigor of the investigators' practice but the process of push back against attorney requests could even be enlightening for the attorneys. The purpose of this change would not to be to help investigators be lazy or difficult, rather to put investigators' concerns on equal footing with the concerns of the attorneys. This is vital to a work environment where both jobs are viewed as professionals and treated as such. 

Of course, an investigator supervisor would also be in a prime position to develop and seek out training opportunities for their supervisees. Thankfully Washington is already moving in the right direction with this. However, the fact remains there is no one to take responsibility for connecting investigators with these resources, which would be a prime role for an investigation supervisor.

The Board closes out the section by discussing the success of the investigation and social work supervisors at one of the divisions. In particular, the nationally recognized investigator training program which has arguably saved money and improved client outcomes, and the credibility of these supervisors in the larger criminal justice community which opens doors and brings in benefits that could never be achieved without such recognition. These are the type of long term benefits that will be destroyed if the County goes forward with eliminating the investigator supervisor position.

I hope the Board knows how grateful this investigator is for their acknowledgement and attention to the importance of investigation in public defense. Moreover, I hope that the County Executive and the County Council take notice of their recommendations and preserve the budget while the transition is completed. If they do not, I fear the changes necessitated by the budget will signal the death of the high quality, efficient investigation King County has benefited from for decades, all in the name of saving some money today.

You can access the full report here.

Saturday, October 25, 2014

The WDA Investigators' Network

It's been a quiet few weeks for me while work has stepped up and good (or interesting) news has been hard to come by. But now, I have something really exciting to talk about. The Washington Defender Association recently announced a new project called the WDA Investigators' Network. The project's goals include promoting peer networking among defense investigators both in person and through a list serve, developing relevant and effective training opportunities, and advocating for appropriate funding of effective indigent defense investigation.

As anyone who reads this blog or follows me on Twitter would guess, I am over the moon about this new project. I strongly believe that access to effective and knowledgeable investigation is key to achieving just outcomes in our adversarial system. Traditionally investigators in public defense are not given much thought despite the huge impact their work can have on a client's case. In the past WDA acknowledged this reality by providing an investigator track at their yearly conference and sponsoring investigator-focused training year round. Sadly the investigator track was abandoned and even the investigators' training seminars have become infiltrated with discussion of legal precedents and trial tips.

This is the natural outcome of putting an attorney in charge of training for investigators. Some attorneys might have a background in investigation or work closely enough with investigators to appreciate our training needs, but it is rare that they can bring their perspective in line with ours to create strong opportunities for professional growth. This is why I am a strong advocate for investigators supervising investigators at public defender offices. I am happy to say that WDA has a number of investigators serving on their steering committee and in particular, in charge of outreach and training.

Anyways, I need to wrap up but I am definitely excited about the project and will be looking forward to their training classes. If you are an investigator reading this (or know some) and would like to share resources, please let me know!

Monday, September 29, 2014

Refocusing the blog.

Hi y'all.

I'm writing a brief little meta entry this morning because I feel like I haven't posted much of anything lately. Not that there hasn't been a lot going on.

In Seattle, the City Prosecutor is dismissing all pot smoking tickets written by embattled SPD officer Randy Jokela. Also in SPD news, a group of officers want the citizens to pay for their crusade to overturn the new Use of Force policies. In King County, the head of the Office of Law Enforcement Oversight, Charles Gaither, has resigned and is being investigated by the King County Council.

I have drafts of posts on all of these news stories but my perfectionist nature just never allowed me to hit the "publish" button.

With that said, I have been putting a lot of thought into focusing this blog a bit more. I love writing about news that involves public defense investigators when it comes around (this is rare). I also like writing in broad strokes about my job and some of the difficulties staff investigators face at public defense offices. While legal news interests me generally, I know I should leave the commentary about those things to the people with the licenses and education.

So I am trying to refocus my writing. What I am really passionate about is educating people on why investigators are vital to achieving the goals of indigent defense programs, what exactly we do that makes us important, and issues with the way public defense currently handles investigation. My last couple posts about the lack of funding for an investigator in one Ohio office and railing against the assumption that ex-cops are the best PD investigators are examples of this focus. I sense this is going to take more work than simply commenting on new stories and so posts might not be as frequent. But rest assured, I am still here and still working (P.D.G. says this and is met with the sound of crickets quietly chirping).

I also haven't been writing as much because I have been sick, work has been a bear, and there is much drama afoot at my office. Can't do much about these things but wait them out. 仕方が無い.

Sunday, August 31, 2014

The Mission of Public Defense is Incompatible With Reality TV

Last night I was distressed to read an article over at the Broward/Palm Beach New Times stating that the Broward Public Defender's Office is currently in discussions to be the subject of a reality tv show.

Reading this got a visceral reaction from me. I already wrote about the problems with the initial Mother Jones article that supposedly got the attention of television producers. The article tells two tales: 1) Ex-cops discover "criminals" are human beings and are sometimes actually innocent, 2) Public defense investigators at the Broward County Public Defender's Office are doing a better job than their peers around the country in part because they are ex-cops. The first story is interesting enough, the second is insulting. The author clearly did not take the time to research what public defense investigators actually do or talk to anyone outside of Broward County to gather supporting evidence. I can say this because as a public defense investigator still early in my career, I have already witnessed my coworkers doing the exact things that the Broward County investigators are lauded for doing and I have never worked alongside an ex-cop. I am all about praising the work of public defense investigators but implying that the majority miss the mark is an insult and a gross misrepresentation.

I won't blame the Broward County Public Defender's Office for Jason Fagone's misrepresentation of my profession. I will blame them for entertaining the notion that public defense work is suitable for reality tv. Reality television is an inherently self-aggrandizing medium, built for thrills and intrigue. It takes advantage of the participants to evoke an emotional response in the audience to keep them coming back for more. The reality of public defense is not like that. There is rarely intrigue, much of the work is prolonged, sad, and more complicated than any series of one hour episodes could hope to present. Yes there are victories but they are often subtle or hard for the general public to rally behind. Public defenders and their staff are not dealing with a trip to the beach, plastic surgery, or hilarious family drama; they are dealing with people's freedom and dignity. Making this fight about entertainment is dehumanizing to the people we represent. They are not stories to be traded and sold for our benefit. They are people. Public defense is about them. If you don't get that, you should get out of the profession.

I understand the desire to raise awareness about what public defenders and their staff do but this is not the way to do it. It degrades our work and the people we represent. I hope Howard Finkelstein and Allen Smith get this message and reject any proposal to sell out their clients' dignity for notoriety and a quick buck.

Thursday, August 21, 2014

Wayne County Board of Commissioners - "No Investigator? No Problem!"

An article posted on Sunday in the Wooster Daily Record (sadly most of the article is behind a pay wall but the first paragraph gets you the idea) discusses Wayne County Public Defender Bev Wire's perennial request for one staff investigator. A quick search pulls up several articles discussing her requests.

Apparently the Wayne County Public Defender's Office lost their full time staff investigator in 2008. The investigator took a voluntary lay off after county shortfalls reduced the office's budget. Since then they have been getting by without one, presumably by not investigating cases. To her credit Ms. Wire has been diligently requesting the funds to hire a new investigator but clearly the message has not been getting through to the Wayne County Board of Commissioners.

I was curious about the number of cases being handled by this investigator-less office. Luckily the Ohio Public Defender Commission publishes an annual report outlining this very information (among other things). Checking the numbers for 2009 - 2013 it appears that the Wayne County Public Defender has had to handle 1,529 felony cases, 4,875 misdemeanor cases, and 2,407 juvenile cases without the assistance of an investigator. That is a total of 8,811 cases worth of witnesses not interviewed, scenes not visited, research not done, and a lot of government statements left unchecked.

I assume the Wayne County Board of Commissioners are not familiar with the recent decision in Wilbur v. City of Mount Vernon but in case they end up here, I encourage them to click that link and do a search for "investigation". They will see lack of investigation is a prime component of the finding that the Sixth Amendment Rights of the defendants in the City of Mount Vernon and Burlington were violated.

The majority of people do not understand the importance of supporting defense attorneys with competent investigators. They are used to television dramas where attorneys do their own legwork, have all the skills necessary for investigation, or hire grimy PIs. In the real world it can't work that way. Attorneys are busy with court appearances, meetings, research, and brief writing. PIs are often expensive enough that a handful of requests could justify a full staff investigator for a year. Someone needs to go and do the legwork of defense cases. Judge Lansik understood that, now we just need to get the message across to hundreds of cities and counties all over the county where, like Wayne County, they are forced to do without.