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.

Tuesday, August 12, 2014

The Lure of Apathetic Privilege

My friend Gideon wrote a beautiful blog entry about the temptation of abandoning his difficult job as a public defender for less controversial causes. I am sorely tempted to try and add to what he has said because I identify so strongly with his words but I don't know if there is much to add.

I guess I can say one thing, as a Millennial. I wish I could grab all of the idealistic, politically correct, wealthy young adults I know and somehow grill Gid's words into their brains. Landing the talking points of progressive causes is merely identity signaling. I know it makes you feel like a good person but that is an illusion, a defense against the work of truly making the world a better place. I do not begrudge anyone their causes but I hate seeing so many privileged people of my generation oblivious to the what actually matters. So to you all I say, if you are not in the trenches, you are not making a difference. You are comfortable in your privilege and I don't blame you. However, please think twice about who you really are and what legacy you may leave behind. If you say you want to make the world a better place - take some real action.

Okay, really shutting it now before I shit up all the good things Gid has said. I doubt anyone who reads my blog doesn't read his, but if not, go now.

The Apathy of Privilege

Monday, July 28, 2014

Do We Need Ex-Cops For Quality Defense Investigation?

Public defense investigators are rarely discussed in the criminal law community. Even in literature geared toward indigent defense, investigators are often treated as an afterthought. For this reason I was excited to see Heather Hall's article on NAPD's website. Ms. Hall's article, "Can An Ex-Cop Be An Excellent Public Defense Investigator", reflects on the question in its title. The origin of this reflection is a story in Mother Jones about a group of ex-police officers who left the force and later became PD investigators in Broward County, Florida. The article tells their war stories and discusses their transformation from police officers to defense investigators. While I am happy for their successes and glad to hear some police officers can go to the "other side", I was bothered by the way the article insinuates inability in the rest of PD investigator community. To a lesser extent Ms. Hall takes up this tone, praising the idea of utilizing ex-cops as PD investigators. She states, "I was excited that what I once thought was a wound in the side of public defense delivery might instead be a secret weapon". On the contrary I would argue that any investigator can be a secret weapon, if only provided with the support and ongoing training. 

Public defense investigators very rarely benefit from these things. Anyone with a basic understanding of the financial state of most indigent defense programs can infer their inability to provide the mentorship, advancement, or monetary incentives which would encourage able investigators to stay put. Furthermore, wrapped up in the day to day stress of criminal defense work, many public defenders and senior investigators also lack the ability to provide thoughtful feedback or recognition to their staff. It is a common joke among PD investigators that we are the first to be blamed when something goes wrong and the last to be thanked when something goes right. This reflects an environment which destroys coworker trust and individual pride. Outside of the office setting there is a similar lack of support. Police officers have strong unions which stand up for them and rally around them, public defense investigators have nothing of the sort. All in all, PD investigators are not incentivised to stick around with their office and even if they do, the atmosphere is rife with demotivators which slowly erode the drive for professional excellence. 

Also, many public defense investigators do not benefit from regular training. Some public defense offices do have a training budget but with attorneys who require regular CLE credits, it is difficult to prioritize learning for investigators. Instead we have to make due with rare opportunities for training, or take on additional expense to obtain training on our own. On the other hand, police officers typically have access to free work-related training and are supported in developing a specialized knowledge base. This inequity can go straight to quality of representation, leaving defense teams poorly equipped to challenge the government's evidence. It may also drive up the cost of representation when the public defender is forced to request expert service funds. Of course it also impacts the morale of the driven public defense investigator who many very well start looking for a work environment with better employee development.

Praising the transformation a police officer into a public defense investigator is understandable, and hiring ex-cops as PD investigators can make sense depending on the individual and their approach to public defense. However, rather than focusing on bringing more ex-cops over to the defense, I suggest we look at the work conditions that have helped make many of these officers great investigators. If we provide similar conditions to the public defense investigators we already have, we might not need to look to hiring ex-cops as a panacea for lacking defense investigation.







Thursday, July 10, 2014

An Investigator's Summary of WA Supreme Court Decision in State v. Russell

Sometimes I can't help but appreciate how fortunate the citizens of Washington State really are. We can stand to improve ourselves in some respects but overall we do pretty well.

This moment of reflection was brought about by the opinion in State v. Russell issued by the Washington Supreme Court this morning. Mr. Russell was stopped by an officer in Chelan County for a number of traffic infractions he committed while riding his bicycle down the roadway. The officer (who was working without a partner that evening) recognized Mr. Russell from a stop a week before. On that occasion, he found a .22 derringer on Mr. Russell after he explicitly stated he did not have any weapons. The officer was concerned for his safety and performed a frisk which turned up a small box. He perceived Mr. Russell to be compliant with a search of the box so he opened it and uncovered a syringe of meth. Obviously Mr. Russell was then charged with possession. He proceeded to trial, and eventually through the appeals process.

The WA Supreme Court Justices considered three questions: 1) was the frisk justified; 2) was the warrantless search of the box justified; and 3) did Mr. Russell consent to the search of the box?

The Court found the the frisk was justified, unsurprising given the context of the officer and Mr. Russell's prior meeting. More surprising was that they ruled the search of the box was not justified and that Mr. Russell did not give consent for the search.

The State seems to have argued that searching the box was an extension of the frisk, which was justified by the officer safety exception to the Fourth Amendment. The opinion focuses on whether it was reasonable for the officer to believe that something inside of the box could pose a threat to his safety. He had previously testified that the box was small and much lighter than he would expect if it was concealing a gun. The opinion uses this to argue he did not have reason to believe the box was holding something threatening to his safety. Furthermore they state any risk could be eliminated by simply holding the box until the interaction was complete.

Regarding consent to search the box, the opinion outlines a number of obligations the State must meet to prove consent was given: whether Miranda had been read; the suspect's intelligence and level of education; and whether the suspect had been advised of their right not to consent. The officer had stated that Mr. Russell did not seem to mind him opening the box and made no further comment about his belief that he had consent to search it. In light of these considerations, the Court rejected the assertion that consent was given.

In the time I have been working in Washington, I have seen a large number of cases with evidence uncovered during the course of officer safety searches. Further they seem to be upheld by the court. From my indirect experience, judges seem much more likely to look for reasons justifying a search. This case is notable because the Justices take a different stance. For example: there seems to be no indication that the Justices considered weapons other than guns could be concealed inside of the box. They also seem to believe the officer is safe once the interaction is complete. These both seem to be pretty conservative approaches to the officer safety exception, putting a lot more of the burden onto the State to justify a search. This is especially true when you put it in the broader, national context. Recently we had the ruling from SCOTUS effectively barring police from searching cellphones without a warrant. This recent ruling from the WA Supreme Court seems to indicate a cellphone search would be doubly difficult to justify in our State, even prior to the SCOTUS decision.

This is a good example of why I think it is important for investigators to stay up to date on legal news in their region. Knowing the Court took a different approach in this case allows me to keep my eyes open for similar circumstances in my cases. Furthermore, it can inform my questions when interviewing anyone involved in a stop and frisk. For example, confronting the officer about what his or her specific safety concerns were and sussing out how that connects to the actions they took. While I don't have the education or qualifications to advise a client, I can bring this information to an attorney. I have the time and opportunity not only to keep up to date on these things but also perform the detailed discovery review that might turn up issues. Even when it doesn't pan out, it is never a bad thing to practice issue spotting and discussing what you find with the attorney. Worst case scenario is that you are both practicing for the time that an issue is just what you needed to get a good result for the client.

If you want to check out the opinion you can find it here: http://www.courts.wa.gov/opinions/pdf/892539.pdf

Friday, July 4, 2014

Happy Independence Day!

I hope you all have a lovely day. I hope like me, you find some time to reflect on how much death, struggle, and hard work went into forming the United States of America. I hope you remember the people who are still working and fighting everyday to maintain our freedoms.

Most importantly I hope we can all remember that with freedom and fortune come responsibility. Everyone has their struggles and admitting to your fortune does not erase them. It also does not erase your obligation. For all the benefits we have been given we owe something back to our society and the world around us.

Please consider doing something this summer to better your community. Volunteer time at a homeless shelter. Help care for injured animals. Clean up a local park or wildlife preserve. This will go much farther in changing the world for the better than crusading for political correctness or arguing politics on the internet. Do something where you can immediately see your impact. Don't plan something, don't get fancy. The world doesn't need your smarts as much as your labor.

You can portray yourself however you want, but if you fail in this regard your community and world will be worse for it. My point is freedom comes with responsibility and so little is asked of us in comparison to the generations of the past. Celebrate today, work tomorrow.

Oh, and grill up something tasty for me! :D

Sunday, June 22, 2014

The "Pardon Guy" of Los Angeles County

I needed something to restore my faith in humanity today, for reasons I won't bore anyone by ranting about right now, and so I was thrilled to stumble upon this article in the Los Angeles Times.

The article tells us about the job of John Garbin, a senior paralegal with the Los Angeles County Public Defenders' Office. He assists felons who are looking to move forward with their lives. He does this not by giving them addiction counseling, mental health services, or monitoring probation, the people who come to him have paid their debt to society and are amply prepared to rejoin it as productive citizens. Unfortunately, bureaucracy and the stigma of a felony record stand in their way.

Mr. Garbin explains the problem pretty well for the uninitiated.

"We do not live in a forgiving society."

He helps the people who come to him (mostly drug offenders) secure a "certification of rehabilitation" which restores some civil rights and makes them automatically eligible for a governor's pardon. Much like an investigator, he looks into the client's history in an attempt to verify they have been clean for the requisite seven years. He also digs through paperwork, conducts interviews, and helps the clients argue their case to a judge. He has a 95% success rate. The article discusses one such success where the client went on to fulfill her lifelong dream of becoming a veterinarian.

Mr. Garbin's role as the "pardon guy" reminds me a lot of mitigation specialists but on the other end of incarceration. I really respect people like them who are able to combine investigation skills, compassion, and persuasion to humanize their clients. In doing this they embody the high ideal of forgiveness. They embrace someone who has made mistakes in their lives and fight so they may do better with their future.

If you can't get behind honoring people like Mr. Garbin for idealistic reasons, there are economic benefits too. The stigma of a felony record can close many doors for an individual. Even if you manage to make it after you have been released from prison, in the long term licenses and jobs will likely be denied to you. There will be places you cannot live and even opportunities for education that will be impossible. If you put someone who may already be struggling with poor social support systems, mental health issues, or past trauma into a situation where nearly all chances at bettering themselves are blocked, it shouldn't be surprising when they re-offend, either through desperation or despair.

Cities, counties, states, and even the federal system are all struggling with the heavy price of mass incarceration. What is more is that we are missing out on a well of human resources: talents, skills, labor, and intellectual capital. What we need is more people like Mr. Garbin bringing former inmates back into society and clearing their path for success, not more cops or more prosecutors arguing to keep them down.

I know so many people don't see it that way but I hope Mr. Garbin and all the people who do his job know how vital and meaningful it is. I hope someday our whole society will understand that.

Wednesday, June 4, 2014

Q&A: Scary Events in the Life of a PD Investigator

Hi all!

A few times on this blog I have tried to answer job related questions that I am regularly asked. "Has anything frightening happened to you at your job," is a very popular one. My job is actually a lot less dangerous than most people think but I have built up one or two stories to tell. In the interest of entertainment and practicing my creative writing, I am going to recount some of them for the blog.

This first one is one of my favorites. (I have changed one or two details of the story in the interest of privacy, however, nothing that impacts the substance of this story has been changed.)

A long time ago I had to conduct some out of state investigation in a part of the country I had never been before. And I have to go by myself. A number of people asked if I was scared but truth be told, fear never entered the picture for me. I had devoted a lot of time to the case and I am always one for an adventure somewhere new. So once I set up my itinerary, filled out some forms, and packed my bags, I was on my way.

I had two stops to make which were about five hours driving distance apart so I drove a rental car instead of booking a flight. Both locations were relatively back water and presented a culture shock that I had not experienced in a long time. Few of the roads had streetlights. Everyone lived in trailers, often isolated and surrounded by forests. Many roads weren't paved and my GPS did not function. Casual racism was very common and I encountered some prejudice as a career oriented woman. Like a true investigator, I did my best to adapt to the environment so that I could get my job done. It wasn't the easiest thing to do but I think I coped fairly well.

I had some ups and downs at my final destination. I met wonderful, friendly people and was screamed at by furious alcoholics. I backed out of a couple of interactions because I didn't feel comfortable but I was also able to obtain unique information because of my willingness to engage people very different from myself. Sideways glances, angry words, and tense situations didn't bother me much while I was out and about. The creepy part happened in my hotel room on the last night.

I arrived back at my hotel room very late. I had a big dinner and a busy day in the unforgiving heat, so I was ready to go straight to bed. As I walked in the front entrance the desk person stopped me to say someone had been looking for me earlier. She explained that he asked for my room number, knocked for me, but never left a message. She explained that she wanted me to know in case I recognized him.

I had spent the whole week talking to strangers and handing out my business card so I thought maybe it was someone I had met or someone who heard about my investigation through a secondary source. I had no clue how the person knew which hotel I was in but it was a small enough town that it seemed sensible that they found out through the grapevine. I thanked the woman and went to my room. I hoped they would come back but in the meantime, I checked my work phone. There were no new messages.

I sat down in my room, connected to the internet, and started watching some YouTube videos while catching up on Facebook. I had my shades drawn and my door chained and dead locked. I got relaxed and eventually changed into my pajamas thinking the man would not be coming back. I was almost ready for bed when over one of my videos, I thought I heard knocking. I muted my video and heard it loud and clear, someone was knocking on my door. I almost jumped right up from my bed, it was past midnight!

Since it was so strange for someone to be looking for me so late on my last night in town so I waited. More knocks came. There were probably three rounds of loud knocks on my door before I relented and walked towards it. Being in my pajamas and very aware of how alone I was, I felt very exposed. I cautiously tiptoed forward. As I put my eye up to the peephole, I could barely perceive some movement in the bottom area. Then I heard a quiet whoosh and looked down.

There was a piece of paper at my feet. I turned it over.

It read, "Come to room 1009. I need to talk to you."

Looking at that piece of paper I wasn't sure what to think. Mostly I was disturbed. I doubted anyone local would be staying in a hotel room and if they were, I could only imagine they were up to no good. I sat at the desk in my room and tried to decide what to do. I was vacillating on the intent of the visit. Could it be someone related to my case? Even if it was I couldn't take the risk. Eyes drifting over the desk, I pondered calling a friend and telling them to call the police if I didn't call back soon enough. I thought about prepping 911 on my phone so I could dial at a whim. I considered going to the room and refusing to go inside. Then it struck me: calls within the hotel were free.

I picked up the phone and dialed their room number.

*ring, ring, ring* I was trying to think of a plan. I decided to just get them talking and if helpful, schedule something in the early morning. If it was good information I could always do a last minute extension of my car rental. *ring, ring, ring* Maybe they were bluffing?

Then someone picked up the phone. It's hard to remember the voice now but it was gruff and masculine. I explained who I was and the voice laughed. I asked why he came to my door and he explained that he had noticed me around and thought we had some things to discuss. I asked what kinds of things, including that I was in town on government business and really couldn't be slacking off too much.

"I'm not talking work. I'm talking pleasure."

Dudes have said some creepy things to me but that sent shivers down my spine. Just knowing he was a few doors away and hearing the desire in his voice, I was disgusted. I told him that if he didn't have anything to discuss with me related to my work, then I wasn't interested in talking to him. He told me to come by his room if I decided to have fun. I hung up.

Surprisingly I didn't have a hard time sleeping that night. I emailed my supervisor detailing the situation and my location in case something bad happened but I assumed that I would be okay. The next morning I had breakfast and eyed the other guests. I walked past room 1009 and almost knocked out of curiosity.

I didn't. I knew I wasn't missing anything.

Now I guess that's not 100% work related. Really it could have happened anywhere I was staying in a hotel alone but when I get that question, this is always the first thing that pops to mind. I guess cause it is just so creepy.