"Investigative Bias, and How Mistakes are made" An Investigative Case Study

Good morning defenders! While conducting some research recently I came across an interesting case, State v. Dempsey (Nov. 20, 1997), 8th Dist. No. 71479; State v. Dempsey, 83 Ohio St.3d 107, 1998-Ohio-497, 698 N.E.2d 977. This case makes for a very good opportunity to point out pretty distinctly why mistakes happen in the system, even today. Not only does a defendant have the right to counsel they also have the right to competent investigation of the prosecution’s investigation. The national registry for exonerations says that “ Since 1991 approximately 40 men and women in the US have been exonerated from wrongful arson convictions. Over two thirds of those convictions were due to unreliable, unscientific, or clearly exaggerated testimony of expert fire investigators played a lead role in the original convictions’ ‘ (Beiber 2018).

People make mistakes, they don’t follow procedure, they may contaminate or overlook evidence in a case, it happens everyday. The defendant was found in a basement of a burning building, and then charged with the arson of that building and burglary. He was initially convicted and eventually through the appeals process was aquitted, released and compensated for being wrongly accused. So how does the victim of a crime become the perpetrator in the prosecution’s eyes. We have talked alot about cognitive bias. We know that it can shape, and change the course of any investigation and hide the truth. Fire investigation is particularly unique in that it can easily fall victim to investigator bias.

In a study conducted for the Arson Project, a group that helps to uncover wrongful convictions in arson investigations, He stated in this study that cognitive bias is a subjective bias on the part of the investigator that can make it difficult for the investigator to focus on details and observations that “Run contrary to pre-established beliefs.” It can make the investigator see things that are not there, or not see clues that are there. It unlike expectation bias or the tendency for the investigator to confirm, or certify a specific outcome of the investigation regardless of what the evidence is telling you, confirmation Bias is the Investigator coming to a conclusion, like they did in the Dempsey Case, before the investigation is completed, and making the evidence fit that conclusion. They believed from the beginning and said that Dempsey set the fire, and was overcome with smoke trying to escape through the basement.

This happens in investigations. It is the good investigator that recognizes that he or she may have some sort of bias, and does not let that potential bias influence their investigations.
In the appeal that Dempsey won, it said that “The arson investigators noted, among other things, signs of forced entry and two points of origin for the fire on the first floor, ruled out accidental sources of the fire, and concluded that the fire may have been intentionally set.

If I didn’t see cases like this all the time I might find it hard to believe. It was also reported that Dempsey’s original attorney had names of witnesses, and information that could have cast great doubt in the original trial that Dempsey did not start the fires, and was a victim of an attempted murder. It seems that none of the methodology that is normally followed for the investigation of crime scenes was followed in this case. From the basic interviewing of potential witnesses, to establishing a motive for Dempsey to commit the crime. What did he steal? Or attempt to steal? Why weren’t witnesses, and potential exculpatory evidence considered. This is the exact reason why when accused of a crime, not only do you need a competent criminal attorney, you need a competent Criminal Defense Investigator, to investigate the prosecution’s case, and provide the truth. Not what the prosecution says you did, not what the police say you did, not what you say you did, but what the truth is. The investigation in this case was completely inadequate.

“The CCDI as an Expert”

“The CCDI as an Expert”

Good  Morning Defenders!

As Board Certified Criminal Investigators (CCDI’s), we represent the industry standard, nationally recognized,  professional standard, in Criminal Defense Investigations. We are experts in the specialty field of Criminal Defense Investigation.  The CCDI is dedicated to the fundamental mission of criminal defense and due process investigation, in defense of the United States Constitution, with emphasis on the 6th Amendment.

The CCDI has demonstrated a mastery of advanced knowledge, skill, experience, training, and education, that  qualifies you to speak in the form of opinion, scientific, technical, and  specialized knowledge to assist the trier of fact in understanding the evidence, and facts pertaining to an investigative effort. 

The CCDI’s testimony in court is based on sufficient facts, data, reliable principles, and methods, relevant to either a specific or non-specific investigative issue.

The Criminal Defense Investigation Training Council (CDITC), provides relevance and reliability, certification and recognition of professional competence, academic excellence, and promotion of the methodology and philosophy unique to defense investigation.  

William A. Monroe, CCDI, CSFI, CFI-FTER

CDITC Faculty and Advisory Board Distinguished Member

Thank You!

I am honored and privileged to accept my certification as a Board Certified Criminal Defense Investigator from The Criminal Defense Investigation Training Council Center for Investigative Studies (CDITC). Today I am honored to join the ranks of only 8 in the state, and 300 nationally, of the finest public defender investigators and private investigators in the nation. I feel rejuvenated, fresh, and ready to continue to absolutely, and unconditionally, pursue the objective and impartial search for truth! It was a special treat to have the National Director of the CDITC, my esteemed colleague, and friend Brandon Perron award my CCDI to me personally at the ELITE training in Campbell California this weekend. I would also like to thank the great folks at the (California Association Of Licensed Investigators (CALI) Cris Reynolds the President, C.W. Sellers the East Bay coordinator, for having my wife and I. If that was not enough I also had the distinct pleasure as one of my first duties as a CCDI, to present Ms. Francie Koehler another colleague that I admire and respect, who is also the host of the radio show PI’s Declassified, her CCDI board certification from the CDITC. I am ready more than ever to protect and defend the constitution and my client’s rights to fair trial under the law, defending the 6th Amendment one case at a time!

Qualified Immunity

Qualified Immunity……… This defense exists to prevent the fear of legal prosecution from inhibiting a police officer from enforcing the law. The defense will defeat a claim against the officer if the officer’s conduct did not violate a clearly established constitutional or statutory right. In other words, the specific acts the officer prevented the individual from engaging in must be legally protected, otherwise there is no civil rights violation. In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that the actions of the police exceeded reasonable bounds, infringed the victim’s constitutional rights, and produced some injury or damages to the victim

Forensic Case Review and Analysis

W.A. Monroe & Associates provides our attorney clients with a comprehensive Forensic Case Review and Analysis within 24 to 72 hours after receiving your case information and discovery. We identify inconsistencies, discrepancies, errors, omissions, and leads to be pursued based on police reports, arrest affidavits, statements, evidence lists, etc. 

While every criminal defense case does not require a criminal defense investigation, all of your cases can benefit from our process of case review and analysis, to assist in deciding which cases warrant further professional investigation, to what extent, and which do not.  

Our process facilitates the identification of crucial facts, cross-contamination, inconsistencies, errors, omissions, investigative leads, and alternative theories that tend to be buried and lost within the details of a narrative reporting style. We will identify leads and develop a lead tracking system of “incriminating facts” and “exculpatory facts”, “mitigators” and/or “aggravators”, and construct a timeline of events. We will generate a cast of characters and witnesses and compile them into the initial Forensic Case Review And Analysis report, allowing our client to make every investigative effort to promptly explore appropriate avenues relevant to the case, and develop a defense strategy with evidence to support it. We Investigate so that you can litigate.  

Call us today for a forensic case review and analysis.

Toll Free:  1- 888-681-594141

“While the practitioners and academics are embroiled in a scientific debate over the most logically, mathematically, or reliably ‘correct’ or ‘accurate’ way to present forensic evidence, they often forget to stop and consider the consumer of this information – the fact-finder. While the goal of providing accurate and logically cohesive evidence is a laudable one, if juries cannot understand or appropriately apply the testimony that is given, then forensic science has not been effective, transparent, or ultimately useful to the trier of fact.”

“Juror comprehension of forensic expert testimony: a literature review and gap analysis.” FSI – Synergy; Vol 1 (2019), pp 24-34.

Lack of qualitative study equals lack of justice.

The lack of qualitative studies and empirical research in indigent defense has been well documented. Studies in determining trends, frequency in occurrence and answers to questions like who the customer is, Is it the defendant? Is it the prosecution, or the judges? Or is it the taxpayers, the U.S. Constitution, society? The substance of the qualitative data we have to draw on comes from emotions, and the perceptions of the defense professionals which are included in the data, attorneys, paralegals, investigators, and other support staff. In order to understand where the problem exists and how to address and fix, the public defense program across the country, reliable qualitative data could be the single most important piece to the puzzle. Study that includes what the impacts of multiple variables are such as, time, resources, education, experience, expertise, and specialty training, have on stakeholders and the adversarial justice system is needed.

      Public defenders, private attorney’s, and contract attorneys across the country are attempting to fulfill their responsibility to provide indigent defendants with quality defense and due process, on nominal pay, with few resources, and limited support staff, (which include investigators), available to them to fulfill their duty. This has been well documented and is a well-known issue in the field, one that occupies public defender administrators all over the country. The lack of qualitative data from the field, is indicative of one of the issues with IDP programs nationwide and demands further study. Specifically, with respect to the reluctance to collect accurate, reliable, reflective data, for fear of identifying the lack of experience, expertise, education, and professional training which may exist, that may contribute to the failure to provide an adequate public defense.

     Without reliable data and study, accountability tends to point to the lack of funds and resources rather than the possible failure of specific processes, and management of IDP programs across the country. One of the issues that prevent accurate qualitative data from the indigent defense field, is the unwillingness to expose attorney clients relationships, under the auspices of protecting an attorney-client privilege. In Moore,Yaroshefsky, & Davies (2018), they point out that allowing researchers to observe the actual interaction between the attorney and indigent clients in real-time is one of the most valuable ways to collect the data in the field. Allowing observation interviews could significantly increase and add validity to the future study.

   In the 2015 Report to the Texas Indigent Defense Commission, study conducted by the Public Policy Research Institute Texas A&M they cited lack of funding for investigative experts and other support services, poor compensation, for public defenders and private lawyers, insufficient lawyer training, and poor oversight and supervision of defense providers as the main issues affecting the Defender Services Program in Texas. This is consistent with public defender offices across the country with few exceptions. Defenders complain of perception of experience, and education, where the defendant may question the attorney’s education, experience, or expertise, and may not believe the attorney is actually qualified to handle their case. They reported not being able to get defendants to listen to their advice, and trust them to defend them adequately. Some of the other issues that were determined from this particular study indicated that most often a defendant will not talk to his or her public defender until the preliminary hearing. In most cases it is brief, and most often results in a plea agreement from the onset, leaving the defendants feeling that they have not contributed to the defense of their case by not being given the opportunity to properly explore and investigate the facts of the case.

  The Supreme Court of the United States has acknowledged that communication is a critical component of the right to counsel, yet recent studies, like these document the disparity between the amount, timing, and quality of communication between people who face criminal charges and the attorneys who are assigned to represent them. Lack of ability to consult your attorney, or properly investigate the prosecutor case against you, coupled with the lopsided advantage that the prosecution has in time, resources, and money leave defendants feeling detached and removed from the process. This leaves us to determine how effective our IDP programs are across the country, and what we can do to make the process work as intended. Reliable , accurate, current data is where we should begin.