Criminal Defense Investigations: A Method to the Madness

Criminal Defense Investigations: A Method to the Madness

By: Stephen J. Koenig

Certified Criminal Defense Investigator

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

 

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My father was a football coach, teacher, and guidance counselor – after he returned home from the service and before he returned to farming.  He was a great communicator and used his Educational Psychology, graduate degree, in his and my mother’s raising of their five children.  I later learned from former students and players that my father spoke of the K.I.S.S. Method of Football Coaching. ‘Keep It Simply Simple’ – or something to that effect.  I looked at criminal defense investigations with a similar understanding,

K. Know your case.

I. Interview your witnesses.

S. Summarize your findings. 

S. Support your attorney.

In hindsight, my approach was perhaps a little too – simply, simple.  In pursuit of becoming a more serious-minded, criminal defense investigator, I came upon the Criminal Defense Investigation Training Council.  CDITC is where I learned about the Component Method.  The Component Method, developed by Brandon Perron, has become a national standard for training and certifying public defender, investigators.  Many public defender offices around the country have their in-house investigators become certified, via this program.  The Component Method is a roadmap on how to conduct a criminal defense investigation.  It has brought me a deeper understanding, both intellectually and philosophically of the process.

As stated in his training text, Uncovering Reasonable Doubt, the role of the criminal defense investigator has never been more necessary. And now in the news we hear story after story of those falsely accused, and subsequently found guilty of crimes from which they were later exonerated.

In the book, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted highlights the role of DNA exonerations; poor witness identifications; and shoddy police work.  The book by Barry Sheck, Peter Neufeld and Jim Dwyer – highlights some of their cases where the use of DNA analysis led to successful exonerations.  The authors and their merry-band of investigators helped pave the way to how we look upon and attack such cases today.

My state of Nebraska is not immune to such issues.  When many think of Nebraska, they may think there is nothing there but corn, cows, and cowboys.  The truth is we have had our share of high-profile criminal cases, including, the Charles Starkweather case.

Charles Raymond “Charlie” Starkweather was just a teenager when he went on a killing spree and murdered eleven people, between December of 1957 and January 1958, in the states of Nebraska and Wyoming.  He was accompanied by his 14-year-old girlfriend, Caril Ann Fugate.  Starkweather was incarcerated until being put to death by electrocution in 1959.  The story has been portrayed in several films.

But the most notorious of Nebraska cases have come to light in recent history.  No author has done better in bringing out the facts in these cases then, John Ferak.  Ferak, a former Omaha World-Herald reporter, has written two noteworthy novels that have exposed weaknesses in the criminal justice system in Nebraska.

Ferak wrote, Bloody Lies: A Scandal in the Heartland.  This story revolved around the murder of an elderly couple. What occurred over the next few years was a scandal of monumental proportions.  A noted CSI director went rogue and twisted evidence to fit alleged facts,  Facts that had been distorted by false confessions, suspect police work, and poor polygraph examinations.  I still don’t think the general population in our state truly understands the scandal that it was.

Another scandal in Nebraska was portrayed by Ferak in his novel involving the Beatrice 6Failure of Justice: A Brutal Murder, An Obsessed Cop, Six Wrongful Convictions, highlighted the case that led to the largest DNA exoneration case in the country, to date.  Again, misguided police work and false confessions led to the convictions of six individuals in the Beatrice, Nebraska area.  They remained incarcerated for almost twenty years before the truth finally came to light.

On both sides of my family, are members of the law enforcement community, including, my grandfather (T. C. Stevenson) who graduated from the second, Nebraska State Patrol (Highway Safety Patrol) academy.  I have a great deal of respect for them and the challenges that they faced.  But cases such as those highlighted in John Farek’s, true-crime novels, and my own experience in conducting criminal defense cases in the state of Nebraska, have enlightened me that the need for professional, criminal defense investigators is paramount.

 

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The Component Method:

  1. Investigative Review of the Discovery File; police reports, victim/witness statements, crime scene examinations, lab reports, etc.
  2. Initial Defendant Interview.
  3. Crime Scheme Examination, Diagram, and Photography.
  4. Victim/Witness Background
  5. Witness Location, Interviews, and Statements.
  6. Report of Investigation & Testifying.

Review Your Case:  Whether you are investigating a sexual assault case or a capital murder case or a white-collar case, it is important to review the discovery documents.  My view as a private investigator is probably somewhat different than an in-house investigator at a public defender’s office.  The simple fact that they are in the same location as the attorney and all the discovery documents is a certainly a bonus.  For private investigators, we don’t always have that luxury.  Good attorneys will make sure the defense investigator reviews the discovery documents, as they know this is a necessary step in conducting sound defense investigation and enlightened witness interviews.

The defense attorney will likely have an investigative case-plan in mind, but the investigator should acquaint themselves with the facts and nuances of the case, as it pertains to their specific role.  With the assistance of the attorney, make a list of the witnesses and fact-finding tasks that need first to be performed.

During the case review, the investigator should prepare a timeline of when each pertinent case-event occurred, along with the corresponding source of that information, for example, June 22, 2016 – 11:42 PM – 911 call made by Victim.  Timelines are very, very important.  Timeline information should be corroborated via the witness interviews and aggressive fact-finding, casework.  

Another thing to keep in mind at this point in the investigation is that all court-appointed cases, involving a private investigator, have a budget.  So you have to focus your bar-bucks accordingly.  That initial budget will need to cover your review of the discovery documents and initial review of the case with counsel and the defendant.  And you will need to allow for time to locate and perform cursory background checks on your witnesses and key players in the case.  Then you will need to travel to and interview your witnesses and write-up your initial report. There is no blank-check in these cases.  You will need to be able to show how you spent your time and the state’s money.

Interview Defendant:  In some of the criminal defense cases I have worked, the attorney has not been real receptive regarding the investigator interviewing the defendant.  Other cases I have been on, I have conducted solo interviews with the defendant … who may or may not be in jail.  The attorneys sometimes may ask after such interviews, “Did he confess?”  I think that may be one of their concerns.  (I would NOT attempt to obtain a confession of a defendant, ever.)  Even though the attorney usually does a very fine job in reviewing the information with his client, it is still good for the defense investigator to also ask questions.  Many insights are gained in the defendant’s case via these defendant interviews, which will pay dividends when you go to interview witnesses, not to mention the ability to get an overall feel for your client.

Crime-Scene Examination:  The importance of examining the crime scene cannot be understated.  The first thing that comes to mind is CONTEXT.  As you prepare to interview witnesses it important to have a feel for the location(s) where the crime was committed.  Most humans are visual in our thinking.  So when those witness interviews take place, we as investigators need to put ourselves in the shoes of the defendant and witnesses.  And the only way to do that is to visit the pertinent scenes and locations associated with the issues at hand.

Many of the murder defense and sexual assault defense cases I have been involved in, I have referred to the Death Investigator’s Handbook by Louis N. Eliopulos.  The 826-page book goes through virtually every kind of death you will deal with as a criminal defense investigator.  It has protocols that should be followed to investigate every kind of death, and I have found it very helpful as a resource.

Victim/Witness Background Investigation: Fortunately for me, as a (Nebraska) private investigator, Nebraska’s online court system is a very effective, efficient and affordable tool for gathering civil, criminal and traffic court information on your victim/witness, subjects.  There are some tricks, such as you need to be cognizant of common names, i.e., Tom Smith.  But there are tricks I have learned to accurately navigate towards the information you are looking for.  It is a tool, I virtually use every day.

Witness Locations, Interviews, Statements:   “How many licks does it take to get to the center of a Tootsie Pop?”  How many interviews does it take to get to the center of your case?  You won’t know until you start interviewing your witnesses.  After reviewing the case with the attorney, you should carefully coordinate your interviews.  In the criminal defense arena, it is not uncommon to be dealing with witnesses who are hard to locate or pin down.  The background work and review of the discovery will generally locate the subjects you need to interview.  But shoe leather and knocking on doors may be needed to track people down otherwise.

Generally, the investigator will work their way from the outside-in, starting with lesser witnesses before focusing on key witnesses.  Starting with the simpler interviews allows the investigator time to assimilate themselves to the feel and facts of the case and get acquainted with the parties involved.  Each investigator has their style as it relates to interviewing.  As someone who was not a former law enforcement officer – my interviewing experience was gained by learning how to get witnesses to speak with me, sans any perceived authority via the badge and gun.  My interviewing techniques somewhat mimic my father’s conversational, non-aggressive style.

On eyewitness type cases, where the witness is cooperative, I use cognitive interviewing techniques to maximize memory retrieval. I first learned about cognitive interviewing via a former U.S. Marshall turned criminal defense investigator, when I had my office in Colorado.  He had a presentation on cognitive interviewing techniques via our state, private investigator association.  A great resource I found for this subject was the book, Memory-Enhancing Techniques for Investigative Interviewing, by Ronald Fisher, Ph.D. and R. Edward Geiselman, Ph.D.  It is an art and technique of which I will forever be working on – to more fully develop my skills.

Another good resource I have found is the book, Spy the Lie: Former CIA Officers Teach You How to Detect Deception, by Phillip Houston, Michael Floyd, and Susan Carnicero.   There is no such thing as a human, lie-detector but there are some tells that the investigator should be cognizant of when conducting interviews.  As you are testing the veracity of your witnesses their body may give them up in certain ways that will lead the investigator to further investigate their story.  This book will teach you certain physical and verbal behaviors to be on the look for.

The criminal defense investigator also has to be able to adjust and adapt.  The witnesses you are interviewing may only speak with you on their front porch or maybe they will meet you at a parking lot – away from their spouse, or maybe at their attorney’s office. It is also very important to understand that you will be dealing with witnesses and information sources from every socio-economic segment of society.  Children, the elderly, pastors, gang members, mentally-challenged, blue-collar, white-collar, the homeless, prison inmates and millionaire business owners – we interview them all.   You will need to vary your technique depending on the setting and the subject. I have had my share of bizarre interviews. You need to be prepared and learn to go with the flow.

Interviews are like mining for gold, and sometimes you have to work a long time before finding that one nugget.  I have returned from interviews and updated my attorney about the veracity of a key witness’s, statements and a song from the Turnpike Troubadours has come to mind, during these times… “All I smell is cheap perfume… and gin, and smoke, and lies.”

Then there are times when you speak to a witness who blows the doors off the case, and those moments are priceless.

Reports of Investigation & Testifying:  The investigative report should be a concise summary of your investigation.  I list the pertinent facts gained during the witness interviews in a numerical-bulleted manner.  So to further assist the attorney, my interview summaries all have headings noting the witness’s name, age, work title, address and phone number.  I also note the date they were interviewed and if the interview was recorded, the length of the recording.  If the attorney needs to have the witness served – I want them to have that information at their fingertips.  If the witness has made key statements to police or others, I may put an italicized summary of their statements at the beginning of my interview summary, so that the attorney can compare and contrast.   The investigator should also provide the attorney with an insight into the witnesses’ veracity and how they might be perceived at trial.  Specific information regarding the witness should be a separate written or verbal report, provided to the attorney.  I also provide a separate timeline of the case activity – which is gained during the review of the discovery documents, and from my witness interviews and fact-finding casework.

The criminal defense investigator should always be ready to testify.  I recently testified at a pre-trial hearing for a, (prison) murder defense case I was working on.  I had conducted several interviews at the prison in question, in a private room with various inmates.  When I arrived to do additional interviews, prison officials informed me that it would be necessary for a prison staff person to be present during the interviews, allegedly for security reasons.  (It just so happens that the prison staff to sit on the interviews were all prison intel officers.)  Well, that wasn’t going to happen.  We went to the judge, wherein I relayed what had transpired.  The judge ruled that the prison would no longer be handling our interviews in this manner, going forward.  Be professional and be prepared.

 

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Support Your Attorney:  As part of the defense team, the investigator’s job is to provide investigative support for their attorney-client and to be the face for that attorney when witnesses are being interviewed in the field.  I provide witnesses with my business card and the business card of the defense attorney for who I am working for.  This is to ensure there is no confusion that the witness thought they were speaking with a law enforcement investigator.  It is important that the investigator conduct themselves in a professional manner; provide truthful information to the witnesses; and make no promises on behalf of the attorney.  Investigators need to return calls to witnesses and their attorney-clients.  Criminal defense, investigative work also requires the investigator to be flexible.  Investigative work is not a nine-to-five endeavor.  Investigators may need to beat the streets on nights, weekends and holidays.

In the book, Moneyball: The Art of Winning an Unfair Game, by Michael Lewis, they talk about the five-tool, baseball player.  In the movie, starring Brad Pitt, they also talk about how rare it is for a baseball player to possess all five-tools.  Most players only have a couple of these abilities.  But the great ones, like Jackie Robinson, might possess them all;

  1. Run
  2. Field the Ball
  3. Throw the Ball
  4. Hit the Ball
  5. And Hit for Power

A criminal defense investigator should have a good understanding of the following five-tools as well, and be able to:

  1. Analyze
  2. Research
  3. Organize
  4. Communicate
  5. Write

Your investigator should be at the very least, be an expert at locating and interviewing witnesses, general fact-finding and be able to provide a professional report.  Their investigative approach should be focused, flexible and cost-sensitive.  And a total team effort.

Stay Educated and Informed:  The investigator should attempt to stay up on modern investigative techniques, and much of this can be done via professional investigator associations.  There you will meet like-minded investigators who are walking in your shoes every day.  Professional criminal defense investigators like, April Higuera is someone to emulate.  I would invite everyone to read her articles The Defendant Confessed So Why Investigate; When Innocence Needs a Champion; and Homicide Investigations – Choosing the Right Private Investigator Can Help You Win Your Case.  She also has a book out, Making A Case for Innocence.  Professionals like April are an invaluable resource.

Investigator Advice:  My sister is an attorney and I saw in an interview where she had listed the best advice she was ever given was that by our father.  Advice that I recall him saying as well, “Remember the common touch.”  This is a line from the Rudyard Kipling poem, If.  The poem should be on every criminal defense, investigators wall.

I attended a one-room, country schoolhouse and dreamed of being a private investigator – in my youth.  (Thanks to the Hardy Boys books.)  If we were poor, I never knew it.  The parishioners at my country parish, where I was an altar-boy, were hard-working, farm families.  Common folks as they like to call them.  And they were all white.  So I had a lot to learn to get to the point where I can now interview racially diverse, prison inmates, some  with ‘KILLA’ tattooed on the side of their face, and not bat-an-eye.  No matter who it is, I still use that “common touch” approach to interviewing witnesses.  It’s just my personality.

It is also important to understand that most of the defendants and witnesses you deal with will be poor and indigent people.  Many of the homes and places you will visit will have very tough, living conditions and family life at best, may be very dysfunctional.  If you have no empathy for people in those situations, you should not be in this business.

Recent prison inmate interviews I have conducted on the (prison riot) murder defense case, has enlightened me as to just how adversarial our criminal justice system can be.  Much like the reason that crime is mostly due to frustration, the strains that are placed on prosecuting and defense attorneys can lead to sincere tensions on both sides.  To remain professional in such situations is very important.

There are other correlations to the Moneyball, story, as it compares to criminal defense cases.  Sometimes a criminal defense team can feel like the Oakland A’s, with one of the lowest payrolls in baseball, going up against the New York Yankees, with one of the highest payrolls.  Criminal defense work can feel like an “unfair game” at times.   Manpower and resources at the disposal of prosecution far out-weigh the criminal defense team’s,  resources.  It is a fact of life, and there is no time for a pity-party, you and the attorney have work to do.  No matter the disparity, you need to come together as a team and do a professional job.

End of Report

 

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Bibliography:

Eliopulos, Louis, N. (1993).  Death Investigator’s Handbook.  A Field Guide to Crime Scene Processing, Forensic Evaluations, and Investigative Techniques. Paladin Press. 

Ferak, John (2014).  Bloody Lies:  A Scandal in the Heartland.  “The remote farming community of Murdock, Nebraska, seemed to be the least likely setting for one of the heartland’s most ruthless and bloody double murders in decades.  Over the next few years, the astonishing “bloody lies” were revealed, culminating in a law enforcement scandal that turned the case on its head and destroyed the career of Nebraska’s celebrated CSI director.” – Amazon.com.  Black Squirrel Books. 

Ferak, John (2016).  Failure of Justice: A Brutal Murder, An Obsessed Cop, Six Wrongful Convictions.  “For nearly twenty years, the Beatrice 6 rotted in prison, until the unthinkable occurred in 2008. Now, the red state in America’s Heartland faced a real quandary that could only mean one thing: Nebraska had a colossal FAILURE OF JUSTICE on its hands.”  – Amazon.com. WildBlue Press.

Fisher, Ronald P, PhD, & Geiselman, R, Edward, PhD. (1992).  The Cognitive Interview. Memory-Enhancing Techniques for Investigative Interviewing. Charles C. Thomas – Publisher.

Higuera, April (2016).  Making A Case for Innocence.  True Crime Novel. April Higuera – Publisher. 

Higuera, April (May, 2017).  When Innocence Needs a Champion. https://thecrimereport.org/2017/05/02/when-innocence-needs-a-champion/

Higuera, April, (August, 2016). The Defendant Confessed: So Why Investigate.  A criminal defense investigator sheds light on why people confess to crimes they didn’t commit, how our justice system is skewed toward the prosecution and what we do to fix it.  Pursuit Magazine. http://pursuitmag.com/defendant-confessed-investigate/

Higuera, April, (July, 2007).  Homicide Investigation.  The Champion  Choosing the right private investigator can help you win your case.  (www.NACDL.org). 

Houston, Phillip; Floyd, Michael; Carnicero, Susan.  (2012 ).  Spy the Lie: Former CIA Officers Teach You How to Detect Deception.  St Martin’s Press.

Kipling, Rudyard.  (30 December 1865 – 18 January 1936 ) Source: https://www.familyfriendpoems.com/poem/if-by-rudyard-kipling

Legal Information Institute.  Amendment VI.   https://www.law.cornell.edu/constitution/sixth_amendment

Lewis, Michael. (2004).  Moneyball: The Art of Winning an Unfair Game.  W. W. Norton & Company.

Perron, Brandon. (1998).  Uncovering Reasonable Doubt:  The Component Method.  Edited by Dr, Richard Grieg, Sr,  Investigative Support Specialists, Inc. – Publisher.

Scheck, Barry; Neufeld, Peter; Dwyer, Jim.  (2000).  Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted.  Doubleday.

Starkweather, Charles Raymond “Charlie”.  (November 24, 1938 – June 25, 1959).  Wikipedia. https://en.wikipedia.org/wiki/Charles_Starkweather

Turnpike Troubadours. (2012).  Gin, Smoke, Lies.  Bossier City Records.

 

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If

By Rudyard Kipling

If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too:
If you can wait and not be tired by waiting,
Or, being lied about, don’t deal in lies,
Or being hated don’t give way to hating,
And yet don’t look too good, nor talk too wise;

If you can dream – and not make dreams your master;
If you can think – and not make thoughts your aim,
If you can meet with Triumph and Disaster
And treat those two impostors just the same:.
If you can bear to hear the truth you’ve spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to, broken,
And stoop and build’em up with worn-out tools;

If you can make one heap of all your winnings
And risk it on one turn of pitch-and-toss,
And lose, and start again at your beginnings,
And never breathe a word about your loss:
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: “Hold on!”

If you can talk with crowds and keep your virtue,
Or walk with Kings – nor lose the common touch,
If neither foes nor loving friends can hurt you,
If all men count with you, but none too much:
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run,
Yours is the Earth and everything that’s in it,
And – which is more – you’ll be a Man, my son!

 

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