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.

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