Chapter

17

Criminal Defense Cases

In This Chapter

Criminal defense cases provide private investigators a unique opportunity to work within the law enforcement community, interact with law enforcement (LE), and still maintain our own standards of professional conduct. Our criminal justice system is built upon the precept that a person is innocent until proven guilty. However, all too often, criminal suspects are arrested and overcharged with crimes. The principal criminal charge might be sale of drugs, but suspects are also often charged with possession of the drug, intent to distribute, manufacturing, possession of drug paraphernalia, and sale of drugs within 1,000 yards of a school or community center. Each carries a separate penalty, and if convicted on all counts, the suspect might serve a very, very long time in jail for basically one offense.

The forces are massed against anyone who is arrested for a crime. Law enforcement has all the resources it needs at its command. The police or sheriff can put 20 men on a case. They have the services of the state bureau of investigation and the FBI, if needed, plus all their forensic people and local, state, and federal laboratories to help them make their case. They have multiple prosecuting attorneys who each can be assigned one aspect of a criminal case, and the prosecuting attorney’s office has its own investigators as well. They probably have already talked to the suspect and may have extracted some incriminating remarks from him, maybe even a confession, before you are ever assigned the case.

So before you ever get started working with a suspect in a criminal investigation, you’re way behind. Perhaps you’re working for a court-appointed attorney who has received permission from the court to hire an investigator at a rate that’s significantly lower than your normal hourly rate, and the maximum you can bill is going to be less than what is necessary. With all these forces marshaled against you, why bother taking the case?

I would say take it for truth, justice, and the American way. But also do it because criminal cases make for interesting investigative work. My most satisfying cases have been criminal defense cases. Having a jury declare your client innocent after all the manpower and work the prosecution put into the case just plain feels good. To know that you kept an innocent person out of jail for a crime he didn’t commit—there is no better feeling. Do innocent men go to jail? All of the time, often because of the factors I just mentioned. Criminal defense investigators are outmanned and outgunned. That means you have to be smarter than the police—and more thorough, more precise, more diligent, and more committed. That’s what you learn in this chapter.

Guilt or Innocence: Does It Make a Difference?

Criminal defense cases usually come to you from attorneys who specialize in that field. Market to those attorneys if you want to work criminal defense cases.

When you begin a criminal defense case, the first thing you have to realize is that your client might be guilty. Nevertheless, he’s entitled to the best defense that you can provide him. Most all of us are guilty of something. But is your client guilty of the crime with which he’s being charged? And was his case handled properly, allowing your client full access to the justice system? Later in this chapter, I introduce you to Justin, who is on death row for a double homicide. I’m not convinced that Justin committed those murders. I do know that he shouldn’t have been convicted of them because the State’s Attorney’s Office used what they knew was perjured testimony to convict him.

Where do you start? The case will most likely come to you through an attorney, but it may come directly from a family member who has the resources to pay your regular hourly rate. For the sake of this chapter, I assume that you’ve been contacted by a criminal defense attorney. You’ll sit down with the attorney, who will explain the basic facts of the case and what he needs to defend his client. The attorney will most likely have some sort of direction for his defense planned out.

Work out a game plan with the attorney. Generally, the attorney will want to use the “some other dude did it” defense. If your client is innocent and a crime was committed, then somebody else had to do it. You’ll spend some time trying to find this “other dude.” But you don’t have to find the “other dude” if you can prove that your client was someplace else or has a credible alibi, or that the police investigation was so faulty that any number of other persons might have committed the crime.

THE SCOOP

The Discovery Evidence

When you’re on board with the case, the attorney will probably provide you with boxes of the discovery material that the prosecution is required by law to hand over to the attorney. In that box may be copies of DVDs of the interviews that the police conducted with the subject. Watch the DVDs closely. Listen to what the subject says and how he responds to the police questioning. Don’t form your own opinion yet; you’ve still got a lot of work to do.

The police are often lazy in their approach to conducting investigations, and they just don’t act like professional investigators. I know that sounds harsh, but let me give you an example.

I was investigating what I believe was a murder, or a case of Russian roulette gone bad. This young man had been in the passenger seat of a vehicle. He had just called his mother and told her to meet him and his new girlfriend at a local popular restaurant. His mother had said she would be there in 20 minutes. The girlfriend had been driving the car. Both the girlfriend and the victim had been using drugs. There was one cartridge in the revolver; the other five chambers were empty. It was about 8 P.M. and was getting dark. The victim, my client’s son, was right-handed. Somehow he ended up with a bullet in the left side of his brain. We believe they were taking turns pointing the gun at each other, spinning the cylinder on the revolver, and pulling the trigger as they drove down the road.

When the gun went off, the girl pulled into a shopping parking lot, leapt from the car, and began screaming. A couple close by told me later that the girl had said, “My boyfriend has just been shot”—not “My boyfriend just shot himself.” The police arrived, followed by the CSI techs, and they took the photos and collected the evidence. The witness couple was never interviewed in any depth by the police until I gave them copies of my report. I spent several hours with that couple going over everything they could remember, taking recorded and signed statements.

I obtained all the photos from the sheriff’s office and even went into the office and had the CSI folks bring out the clothing so we could photograph it and send it to our own blood spatter expert. The coroner ruled the death as an “accident,” and the sheriff’s office stopped any further investigation. When we went over the crime scene photos very carefully, we discovered some very interesting facts that the police had missed.

DEFINITION

The following photo is the left hand of the deceased. Notice the blood spatter on his palm. If he were holding the revolver and had shot himself in the left side of his head, there should have been a shadow or clean spot where the palm was covered by the revolver’s handle. Yet the left palm is covered with blood spatter.

Autopsy photo of victims’ left hand. Note blood spatter on left palm.

The weapon used was a six-shot revolver. For those unfamiliar with guns, let me explain how a revolver works. As you pull the trigger on the revolver, the cylinder that holds the cartridges (bullets) rotates so that, with each trigger pull, the firing pin hits a new cartridge. If it didn’t revolve, you would get one shot and then the hammer would keep falling on the same, now empty, cartridge. Look at the next photo. You can see that the hammer is resting on an empty cylinder. The bullet that killed this boy is to the left of the hammer. This means that the trigger was pulled, the gun fired, the bullet entered the boy’s head, and then the trigger was pulled a second time, leaving the hammer on the empty cylinder. We’re convinced that his female companion was mad enough at him to pull the trigger twice.

One spent shell in the cylinder to the left of the hammer indicates two trigger pulls.

Despite the gun evidence and some blood spatter evidence that indicated he didn’t shoot himself, the case was not further pursued.

The Crime Scene

The next step is to go out to the crime scene. Go even if the crime occurred several years before and the house where it occurred has burned down. Do your best to walk through what the police say happened, and then walk through again keeping in mind what your client says. This is probably the area criminal defense investigators neglect the most, which is unfortunate because it’s usually the most important part of the case. Sure, you can look at the photos of the crime scene. They will be in the discovery material. But often you can find important facts at the crime scene that aren’t in the discovery material.

Matt was charged with selling a single $20 rock of crack cocaine. He had been approached in a sting operation by an undercover policeman. Undercover policemen in four cars had watched the transaction or were in the near vicinity. Matt denied that he sold the crack to the cop and claimed the police arrested the wrong man. Matt did have two previous convictions for selling crack, so this would have been his third strike.

According to the prosecution, the arrangement was for the buyer (the undercover cop) to leave a $20 bill under some bushes in a hedge. The drug dealer would go get the crack and swap it for the $20. The undercover cop would come by in a few minutes and take the crack. This all occurred near the front of a community center, which escalated the crime from a misdemeanor to a felony. Two cops were parked down the street observing. Another car was a block away and didn’t have a clear view of the transaction; they were placed there to help with the arrest in case the drug dealer took off running in their direction.

Matt lived across the street from the community center. He claimed that he walked out his door and around the corner past the bushes where the alleged transaction was to take place and joined some of his friends hanging out in front yard of the community center. Once he was with his friends, the police came in and began asking for identification for all the people there. They ran their names through the police computers and, when they found Matt’s name and saw that he had two previous convictions for drug sales, they arrested him for this one as well.

Of course, the question is, why did they have to run all those names before arresting Matt? Well, Matt’s attorney had him plead not guilty and asked for a jury trial. The first trial ended in a hung jury. The state attorney did not want to let it go, so she pushed for a second trial. That one ended in a hung jury as well. That’s when I got the call from the attorney. He needed some expert help.

The defense attorney explained the facts to me, and he and I both went down and walked through the crime scene together. The first obvious question I had was, why were there no photos of the transactions? Why no video? Did the police use binoculars to observe this? Any beginning PI would know enough to video or photograph the transaction, to avoid any case of mistaken identity. Did the police do this? No. Too lazy? Too unprepared? Why? Well, we’ll never know the answer to that question.

Then I went to work. I measured the distance from the surveillance point where the police said they were parked watching the bush in question. It measured over 408 feet away, a third longer than a football field. It would be probably impossible to get any good facial identification of a subject from that the distance. I placed cones in the street at various distances and photographed people standing by the cones using a 35mm camera. In the film age, a 35mm photograph shot with a 50mm lens approximated what the naked eye would see. In the digital age, it depends on the camera, but a 35mm camera using a 31.4mm lens gives you the same view as the naked eye. So I used a 35mm lens, which was as close as I could get.

Not only would it have been impossible to tell two faces apart, but there was traffic on the street. I set up at the same location where the surveillance police were sitting and counted the number of cars and trucks that came up and down the street during the time that “the transaction” took place. Also, full-grown oak trees and other shrubs would have made getting a clear view of any transaction very difficult.

I made numerous copies of each photo.

From this picture, you can clearly see that, with the naked eye, facial recognition from over 400 feet away would be impossible.

The third trial took place, and I testified as an expert on surveillance. This time the jury came back with a not guilty verdict. Since I was testifying, I couldn’t sit in the courtroom and listen to what the police testified to, but according to the attorney, their testimony was way too rehearsed and became more consistent and rehearsed with each trial. Was Matt guilty? Was he the drug dealer? Maybe, maybe not, but the police didn’t have their act together enough to convict him. I called my wife after the trial and told her it was a red-letter day; I’d just help put a drug dealer back on the street.

The part of Matt’s case that really bothered me was that the State Attorney’s Office spent thousands of dollars and used up three judges’ days and the juries’ time to try to prosecute one $20 crack case. But if I hadn’t gone down and walked through the “crime scene” and observed firsthand the problem with the state’s case, Matt might have his third strike against him and be doing life in prison for a crime on which he ultimately was found not guilty.

I can’t emphasize enough the need to go over and over the crime scene. It is the bridge between your client being found guilty or not guilty, and the police often miss things when they process the crime scene. Remember, they are looking for evidence that proves your client guilty. You are looking for evidence that proves “some other dude did it.”

I mentioned Justin earlier in this chapter. Justin was accused of a double homicide using an axe to kill a drug dealer and his pregnant girlfriend. Unfortunately, Justin’s first attorney didn’t come to me before the trial. But his father came to me after Justin had been convicted and retained me to go over the evidence and see what the defense attorney had missed. I spent many hours with Justin on death row going over the facts. Justin denies that he committed the murders, and had no real motive for doing them. When I first met with Justin, he admitted to me that he was a career criminal. He had been involved in home invasions with a gang of four or five other young men. Their home invasions typically targeted drug dealers in homes where they knew substantial sums of money or drugs would be present.

The victim in this case was a low-level drug dealer who was known for cheating his customers. The home invasion crew kept all their black clothes in a duffle bag together. When prepping for their next home invasion, they would meet, pull out the black masks and sweatshirts, and put them on. Sometimes each person wore the same mask, but most often, they just grabbed the first mask they came to. Justin was smart. One time he had to kick in a back door. To make sure the police couldn’t trace the shoeprint back to him, he’d later burned the tennis shoes he’d been wearing.

What evidence did the police have against Justin in this double homicide? Four days after the incident, a gardener for a church behind the victim’s house had found a black sweatshirt and a black mask dumped next to an air-conditioner unit. They’d found some blood and some of Justin’s DNA on the clothing. Now, remember, the home invasion crew kept all their clothes together in a duffle bag, so anyone with access to that bag could have used those clothes, and Justin’s DNA was probably on all the clothes in the bag. They also found other DNA on the clothes that they couldn’t identify.

I find it incredibly difficult to believe that Justin, who had burned his tennis shoes, would just dump the clothes he’d used to commit these murders nearly on the property line, where they could be easily found. To show you what a lousy job the police did at the crime scene, they were called back three times as neighbors found other evidence on the property, including a glove caught on a barbwire fence and the murder weapon, the axe, in the backyard.

All the DNA on the sweatshirt proves is that, at one time, Justin wore that piece of clothing. The victim’s blood on the shirt pretty well establishes that whoever committed the crime wore that shirt that night or took it with him to plant blood on it. It does not prove that Justin was wearing that shirt the night of the murders. So the police needed something else.

As for the “other dude did it” defense, I’d come up with a plethora of other dudes who had much stronger motives for such a crime than Justin.

Witnesses

Interviewing witnesses is usually a larger part of a criminal defense case than any other aspect. I discuss at length in Chapter 8 how to warm up a witness. Those techniques are universal. In criminal defense cases, many of your witnesses are going to be criminals themselves, so they may be a little hardened in their attitudes. But the techniques still work. Give them a reason they should help you, and many of them will.

In Justin’s case, the only witness against Justin was Mike, a fairly successful cocaine dealer. He would travel to southern Florida to buy several kilos of cocaine and then sell them in northern Florida for double what he paid for them. Mike testified at Justin’s trial that one evening Justin had come to Mike’s house and, in a conversation, admitted that he had killed the two victims. The police told Mike that the sweatshirt put Justin at the scene, but Mike’s testimony put the axe in Justin’s hands. That was their case.

I asked Justin about Mike’s testimony, and he said, “If you ever get the chance to talk to Mike, just ask him to tell you the truth.” I thought that was an interesting statement for Justin to make. Sounded like an innocent man to me. As so often happens in criminal cases, while I was working Justin’s case, Mike had been arrested in south Florida for killing a man in a drug deal. Mike was certainly a possible “other dude” in Justin’s case. Another possible “other dude” was the son of the victim, who was currently in a federal prison for drug offenses. This son was very mad at his father for abandoning his mother and impregnating the new girlfriend, the second victim. I had a number of people tell me that the son had sworn the new child “would never see the light of day.”

When Mike testified at Justin’s trial, he stated that the prosecution had not promised him any sort of deal in another case he was being tried for. The prosecution makes these sorts of promises all the time, and really I think the courts should put a stop to it. No, Mike did not have a written deal with the prosecution for a reduction in sentence if he testified against Justin, but he had it verbally that they would reduce a potential sentence of 15 years to 6 years in exchange for his testimony. As soon as Mike testified and Justin was convicted, they reduced the charges against Mike.

I guess it’s karma, or “what comes around, goes around,” because now the axe victim’s son wrote a letter to the state’s attorney in south Florida and said he would testify against Mike, that Mike had told him he shot the dealer in south Florida but wanted a reduction in his federal time. A deal was worked out, and the son testified against Mike. I was in the courtroom for a week because I wanted to get a feel for Mike and how to approach him. I heard the prosecution ask the son if he had been promised any sort of deal for his testimony. Of course he said no, but that was a lie. How the prosecution, in good conscience, can allow that is beyond me. It is fairly common, unfortunately, even though the U.S. Supreme Court ruled in Giglio v. United States (U.S. 1972):

The Northern California Innocence Project found more than 700 cases of prosecutorial misconduct between 1997 and 2009.

I also found an instance of what I believe was a Brady violation in Justin’s case: the prosecution did not deliver in their discovery material to the defense a diary that the female victim had kept. I was told of this diary by a very close friend of the victim. The victim told my witness that she and her drug-dealing boyfriend were sometimes so screwed up on drugs that they couldn’t remember who owed them money and who they’d sold drugs to, so she’d started keeping a diary of each transaction and everybody who visited the house. The next day when they were sober, they could go over the diary and know what transpired the night before. The diary was not listed in the materials the police claimed they had. Yet when I looked closely over the crime scene photos, the day-planner diary was quite clearly visible in some of the photographs. I took the photograph to my witness, and she identified it as the drug dealer’s diary. I took a notarized signed statement from her to that effect.

DEFINITION

Well, Mike was convicted and now sits in a Florida state prison. A month after Mike’s trial, I visited him in prison.

Prison and Jail Visits

If you’re going to visit a prisoner in jail, it is best to take the following steps.

If it’s a state or federal prison, call the prison and get the name of the assistant warden or the official who approves “legal” visits. Write that person a letter, stating that you’re working a case and that the prisoner is a witness in your case and you would like a “legal” visit. You will need to write the prisoner’s ID number after his name. Include all your personal information, a copy of your state PI license, a copy of your driver’s license, and your contact information.

HIDDEN HINT

Also state the date when you would like to visit. State that you will bring with you a pad and pen and a digital recorder. If you don’t list the recorder, they won’t let you take it inside. Be sure you bring your driver’s license with you, since they usually take that from you and return it to you when you leave the prison.

If it’s a county jail, you can usually just call in advance and tell them who you are and who you want to see for a legal visit, and then show up. Be on time. They will show you through the gates and lead you to an interview room, where the prisoner is most likely already there, secured with cuffs to a chair.

In a legal visit to a prisoner, you will be in a private room and are guaranteed the right to privacy. After the guard leaves and shuts the door, the two of you are alone. Always, always, repeat the following words before you begin. Announce your name and say, “This is a legal visit between (insert prisoner’s name) and (insert your name). The matters we are to discuss are work product from an attorney’s office and are not subject to being recorded, listened to, or monitored in any manner. If there are recording devices or any sort of monitoring devices being used, they should be turned off now.”

Making such a statement puts the prisoner at ease because he will know that whatever he tells you is between you and him and nobody else, unless you choose to release it to someone. Next, start your interview. Find a common ground; make him your friend.

In Mike’s interview, I began talking about another murder case that I thought he had some involvement in and for which no one yet has ever been charged. Mike actually went into great detail about how he was present when the other drug dealer was killed. Finally, we got around to Justin’s case. I told him that Justin had asked me to ask Mike to tell me the truth.

Mike was actually contrite and said he felt bad about testifying against Justin. Justin had never gone to Mike’s house or told Mike that he had committed the double homicide. Mike had made up that story because he’d been mad at Justin. Justin had been an informant for the local sheriff. The sheriff had obtained a wiretap order on Mike’s phone, partly based on some of the things Justin had told them. Mike said he’d read the wiretap order, and there were 14 informants’ statements used on the order. He could tell by what they said who each of the 14 were. He understood why the other 13 had said what they said. They’d been mad at Mike for one reason or another. But Mike felt that Justin was his friend, and Justin had betrayed that friendship by telling the sheriff about Mike. So to get even, Mike had lied on the stand and made up the story of Justin confessing to him.

Justin still sits on death row as his new attorney goes through the appeal process. Did Justin kill that man and his pregnant girlfriend? I don’t know. I do know that he was convicted on perjured testimony and shouldn’t have been found guilty. I also know of six other “dudes” who had a greater motive for killing them than Justin did.

Informants

Working with informants is similar to interviewing witnesses, but there are differences as well. You must first develop the same level of trust and rapport with an informant as I mentioned in the preceding section and go into detail about in Chapter 8. Informants usually have some motivating factor, something that drives them to help you besides the bond you develop with them, such as a secret desire to be a private investigator themselves. It’s good to kid with your informants about “putting them on the payroll.” It feeds their need to live an exciting life vicariously through yours.

DEFINITION

Forget what you’ve seen on television about police and informants. The tough-cop routine, slamming the informant against the wall, threatening him, and then expecting him to work for you, is ridiculous and just pure fiction. You should never call an informant a “snitch.” It’s derogatory, and if you think about him in derogatory terms, your actions, mannerisms, and tone of voice when speaking will betray your true thoughts. He will sense your demeaning manner, and you can kiss that informant good-bye. Repeat after me: your informant is a friend first, an informant second.

When Does a Private Investigator Use an Informant?

An informant can simply be a neighbor of a subject in a domestic case under surveillance who will let you know when the subject arrives home. This informant may call you when your client’s wife, who is supposed to be at the gym, just showed up for a different kind of workout. To motivate this informant, you must build a bond with him. Chances are, however, the two neighbors have some sort of ongoing dispute. It could be something as trivial as your subject’s dog relieving himself on your informant’s front lawn every morning. Regardless, whatever the reason, your informant is probably using you to get even with your subject.

Can You Pay Informants?

Money and informants seem to go hand in hand. You can perform favors for informants. You can pay informants. But you can never pay an informant if that person may be a potential witness in a civil case. A witness may hint to you that, for a little money, her memory might improve. After all, her testimony might save your client, an insurance company, millions of dollars or result in a not guilty verdict in your criminal defense case. Regardless, you can’t pay her.

If you were to pay a witness in a civil case and then that witness was called to testify, her testimony would be thrown out. You might see witnesses paid on television shows. No matter. You can’t do it. Now, with law enforcement and criminal cases, the story changes. Police can pay informants, but civil cases have different rules than criminal law. There’s no quicker way to be embarrassed in open court in a civil matter, lose the case, and lose a very good client at the same time than by paying a potential civil witness. Don’t do it. The exception to that rule is the “expert” witness, who can be paid.

In criminal cases, I have often paid informants—usually not more than $100, and more often $50. If I’m looking for a particular person and I don’t know where they are, but a friend of that person can tell me exactly where they are working or living, then it’s certainly worth the $50 to find the person I’m looking for rather than waste a day or two trying to hunt him down. I’ve also bailed informants out of jail on multiple occasions. I’ve never gone higher than $500 to bail a person out.

Now, be careful here. The informant in jail will try to strike a bargain with you. He’ll say, “Bail me out and then I’ll tell you everything I know.” No, no, no. First get the information from him. Get the signed statement, the recorded statement, everything you can—and then bail him out. If you do it his way, he’ll be out and impossible to find, and you’ll be out the bail you put up, with nothing to show for it.

The Least You Need to Know

• Discuss in detail with the attorney the plans for the defense.

• Always be on the lookout for the “some other dude did it” defense.

• Walk through the crime scene, even if it’s years later. Carefully go over every crime scene photo. The police miss lots of evidence.

• Interview in depth every possible witness.

• Don’t hesitate to interview witnesses who are in jail or state prison.

• Obtain your information from your informant before you pay him or bail him out of jail.