Sunday, February 1, 2015

Confidentiality and the Confessing Client

I read an article last night about a pair of investigators in Alaska who have been torn between the obligation of confidentiality and the desire to exonerate a potentially innocent client.

The investigators in question were both employed with the Public Defender Agency of Alaska. According to the filings, the first investigator held strong opinions about the conviction of the so-called "Fairbanks Four" - four young men charged in the beating death of a fellow teen who had long protested their innocence. Prior to his employment with PDAA this individual, Thomas Bole, discussed the case of the Fairbanks Four with a fellow private investigator by the name of Richard Norgard. Both men were later hired by the Public Defender Agency of Alaska.

During his employment with PDAA, Bole was assigned to assist an attorney in Jason Wallace's unrelated case. During the course of PDAA's representation of Wallace, he made admissions to Bole implicating himself and three other men in the murder of John Hartman. Bole discussed these revelations with Richard Norgard, his supervisor at the time. At this point, nothing was amiss. It is common practice for investigators and attorneys in offices to discuss their cases among one another. However there is a clear understanding that the communications are to stay within the office to preserve client confidences.

Many years down the line, it became clear that Richard Norgard did not understand this. Working with his new employer, the Alaska Innocence Project, he assisted attorneys representing three of the Fairbanks Four in their appeals. In this capacity he revealed what he had learned from Bole regarding the statements made by Jason Wallace. He attempted to get Bole involved in this, but the investigator repeatedly refused to discuss the matter with Norgard. Currently the Alaska Innocence Project is attempting to admit Wallace's statements in the post-conviction hearings. Notable is the fact that Wallace's statements back up the confession of William Holmes to the same crime.

The Alaska Innocence Project has taken the offensive by arguing that Wallace waived his privilege by speaking with an investigator for the public defenders' office. This is where I get mad.

Oftentimes when an attorney introduces me to a client they say, "This is Gummy. You can talk to her just like you talk to me. Anything you tell her is confidential so please be honest with her. This way you will get the best investigation possible for your case." I take that obligation seriously. Without clients' trust conducting an investigation can be incredibly difficult. I know that it only takes one failure on my part to damage my reputation for trustworthiness. Not only that, but it can damage clients' trust in my office generally.

My feelings about this situation are pretty solid. Norgard violated confidentiality. Furthermore, the Alaska Innocence Project should have attempted to alert the court or Wallace to a potential conflict as soon as they became aware of the situation. I don't know the nuances of how the situation was handled but it seems to me the appropriate course would have been to reach out to Wallace, explain the circumstances, and request his consent to release the information. It is my understanding that Wallace is currently serving a lengthy sentence outside of Alaska, perhaps ensuring even if charged, he would be unlikely to ever make it to Alaska. Perhaps he would be willing to waive his privilege.

Many of the people I have discussed this situation with have commented on the difficulty created by believing three men are completely innocent and having access to information that could give them a second chance at freedom. While I sympathize with the hard place Norgard was in, I simply cannot agree that the ends justify the means. This is exactly the sort of attitude people in criminal defense fight back against daily. To adopt it ourselves is intolerable. Public defenders and their staff are already looked upon in a very negative light. Making that image worse, not following the rules, and introducing chaos into the system reinforces negative stereotypes. This hurts public defense offices as well as their clients. Even worse, I would worry about endangering my office's representation of the clients. Or jeopardizing their appeals.

I guess what it comes down to for me is that one investigator should never behave as though they know the most ethical/morally correct course of action in a difficult situation like this.

It appears the court will remedy the situation by allowing the statements into the post conviction record but disallowing it should Wallace be charged with the crime. This makes sense unless you are the family of the victim in this case who could eventually be tormented by the statements of your son's murderer while also knowing he is unlikely to ever be formally charged. More than that, Norgard betrayed a former client by revealing confidential information. Regardless of the court ruling, I wish criminal defense investigators had a mechanism to punish Norgard. There ought to be some formal recognition of his misconduct.

Anyways, what do you all think? Was Norgard correct in coming forward with this information? Fellow investigators: what would you do in this situation? What do you feel your obligations would be? Should Norgard and/or Bole face some sort of formal consequence? Very curious about people's take on this so please, if you have thoughts, hit up the comments.

Also, I haven't talked to many attorneys about this situation. Am I totally off base with my understanding of privilege? Does the Alaska Innocence Project bear any responsibility in this? What would you do if an investigator came to you with information like this?

Source article is here.

Sunday, January 11, 2015

The Problem With Serial's Criticism of Adnan Syed's Defense

I haven't listened to Serial. Frankly I don't care to. At some point in my several years in criminal defense I have come to recognize argument patterns - what the defense and prosecution will say at trial. What I have read about Serial fits this pattern. More than that, I have respect for primary records. My standard approach to speculation on criminal cases is, "have you looked at the primary sources and do you understand how the trial(s) went down?" If no, please stop talking. Rulings, strategy, and nuance play such a large role in the outcome of a trial, it is ludicrous to pass judgment about the outcome sans extensive background knowledge.

Therefore, I will not quibble with the verdict in Mr. Adnan Syed's case. I do, however, take issue with some of the commentary on the popular podcast.

My issue with the coverage of Serial is exemplified in a recent ACLU article entitled "Serial and What It Says About America's Criminal Justice System". Never mind that it double downs on the idea that defeated criminals' war stories are fair game for upper class entertainment and armchair lawyering, but it makes incomplete assertions about the failures of Syed's defense.

Primarily the author discusses insufficient investigation done by defense counsel but strangely they never mention the investigator retained in the case. The prime contention is that defense counsel never obtained potential video surveillance from a library.

Let me be direct: this is not an attorney task. Yes, attorneys may take this on when they have the time or do not have the resources to hire an investigator. It sounds simple - call the library and ask for the video, but the task is usually much more complicated and time consuming. I agree in theory that the defense attorney should have pursued the video surveillance as soon as she got word of it, either to form an alibi defense or to confront the defendant regarding their unreliable alibis. But where the ACLU article attributes this failure to the defense attorney not doing more than showing up in the courtroom, I attribute it to a lack of funds and accessibility to credible, skilled defense investigators who, if retained in time, would have surely prevented this misstep from happening.

It is bizarre to me that an article that highlights a failure to investigate neglects defense investigators. Unfortunately, this shouldn't surprise me. While investigation is a fundamental element of an effective defense (particularly in more serious cases), investigators are rarely recognized in the conversation on funding these necessities.

This clearly needs to change, which the public understands this on a subconscious level. They are now regularly exposed to stories of ineffective assistance of counsel and deficient investigation, but they only see the defense attorneys' needs. Modern media and nonprofit portrayal of criminal defense is responsible for this. That is why I am calling out the ACLU to recognize the importance of funding and supporting defense investigators as well as attorneys.

Once popular media and nonprofits chuck aside the idea that attorneys are the end all be all of criminal defense, we will have a better system. Until then, we are likely to have more attorneys writing more motions, doing more court appearances, relying on their interns or their rare free time to investigate cases.

In that atmosphere we will continue to endure wrongful convictions.

Thursday, January 8, 2015

Revisiting My Last Post

Hi!

On further reflection it occurs to me that daily blogs are 1) unrealistic, 2) too specific and potentially revealing of my identity and my clients' cases.

So I think my alternative is going to be (hopefully) weekly updates on what I have spent time on in the past week. Even though this is a less visceral depiction of my job, I think it still achieves the goal of educating people about what public defense investigators really do.

On that note...see you all tomorrow. Or Saturday. Or sometime early next week....

Monday, January 5, 2015

My 2015 Project and a Brief Retrospective

I'm coming up on my first year writing this blog and I have been suffering from some absurd writer's block so now seems like a good time to write a retrospective. 

I started writing here mostly for selfish reasons. I want to have a place to put down my thoughts and maybe even share them with a few people. While I used to be a prolific and skilled writer, getting my career started has taken a lot of time away from my writing and I have become rusty. I want a place to practice. I also saw a void in the blawosphere, there are a good number of public defenders, prosecutors, law students, private attorneys, professors, and private investigators blogging but no public defense investigators. I want us to have a voice so here I am. 

I haven't yet refined my voice or my overall message. I did have some popular posts. Even better, I am beginning to understand what I am passionate about communicating to people. Don't misunderstand me, I like talking about public defense news and I like having a place to put down my social commentary. However, the posts that give me the most pleasure are about public defense investigators; what we do, the incorrect assumptions about us and reporting news specific to public defense investigators. I really don't think the full story of public defense is being told because no one hears about the support roles that are vital to the work of any successful PD office. That's what I want to change. 

Telling the story of public defense investigators is a difficult task though. I am constrained by the same confidentiality concerns that lawyers have, fewer people understand my role on the defense team, and while I have many engaging war stories, those do little to educate people. I have tried to respond to the negative portrayals of PD investigators in the media and educate once I am done venting. My only real goal for this blog is to continue educating and reach as many people as possible. Trying to find a way to do this is a little more difficult, of course. 

Recently a seven and a half hour day filled with reviewing phone records gave me an idea. People out there don't understand what public defense investigators do because there aren't clear examples in the media. This is because the reality is boring and difficult and sometimes depressing. A real world example could help change this narrative if enough people were exposed to it. 

To that end, my goal this year is to start posting brief synopses of my days. I can provide almost no detail since I am bound by confidentiality. But I can talk generally about my work, my feelings, and the very real pressure and stress of my position. My hope is this will give people some alternative to the media narrative about public defense investigators (as in, they don't exist). 

Obviously I will continue to bring positive investigation news to y'all and rail against inaccurate articles and television portrayals. In fact, I am currently working on an article about the ACLU/Serial, Benched, and The Divide. Unfortunately, well, like I said...writer's block has taken hold.

Stay tuned, hopefully my block will subside. Until then, happy new year to my readers (*sound of crickets chirping*), I wish you all the best. :)

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.