“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!

“Cognitive Bias In Defense Investigation”

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,before the investigation is completed, and making the evidence fit that narrative conclusion. The defense Investigator must be able to recognize, and adjust for bias in every investigation, from every aspect.

“ The Defense Investigators Dilemma”

William A. Monroe, CCDI, CFSI, CFI-FTER
Faculty Advisory Board Distinguished Member CDITC

I commonly field and respond to questions (Most often from Attorneys) like “Explain what you do as a defense investigator that my paralegal or legal assistant cannot do”? Unfortunately, this is a seldom discussed elephant in the room amongst professionals in my field. Speaking frankly and honestly, this discussion amongst attorney clients, and other investigators, can sometimes become more of an adversarial debate that often detracts from the purpose and goal of the discussion, and is a constant challenge in investigative defense work.

How many times have you as a criminal attorney hired a private investigator who has charged you an exorbitant retainer fee that you have to chase for information continually? Or, the investigator that fails to be honest with you from the onset and discuss upfront what their areas of expertise are? How about the investigator (which is most common) that you feel the need to micro-manage because you have been burned in the past by investigators who lack the skill required to conduct a competent defense investigation?

Another challenging situation for the defense investigator in private practice is an attorney waiting until the last minute to hire a competent, qualified professional investigator to conduct a defense investigation. In many situations, we, as investigators, contribute to those problems, opinions, and assumptions ourselves. Just as the client has the right to a skilled attorney, who is trained, educated, and experienced in defense, so too, they are entitled to a qualified criminal defense investigator explicitly trained in the art and science of defense investigation.

I speak to attorneys and investigators both in private practice and those who work in the area of indigent defense for state and federal public defenders offices across the country regularly. In most cases, the honest ones will tell you; they instead prefer to investigate themselves (meaning their paralegals or office staff) and bill for investigation and take their chances.

When confronted by these situations, my answer is always straightforward:

Your paralegal or legal assistant cannot do what I do, nor do they have the training, education, experience, and expertise that I possess as a defense investigator. Most importantly, you cannot put yourself or your paralegal on the stand to provide expert testimony on defense investigative methodology, process, or philosophy.

Criminal investigation and defense investigation are two very different things with very different goals, methodology, and philosophy. I am required to be licensed in California to do what I do as a defense investigator. The fact that I maintain a private investigator’s license does not solely qualify me to conduct defense investigations properly, which is a common misconception amongst attorneys and private investigators in the business. The fact that a private investigator has spent 20 years in law enforcement as a homicide investigator does not necessarily qualify them to conduct defense investigations. The same applies to a paralegal or legal assistant for that matter.

Can an attorney that has spent his or her career focused on family law, for example, handle a criminal defense case. Sure, I would imagine they could. However, Is that the attorney you want to entrust your money, freedom, and the rest of your life to when accused of a crime? The same questions should apply to the investigator you hire to investigate your cases. There are many great private investigators out there, and some do fantastic work for their clients. However, only a small percentage of investigators are qualified to be called “Defense Investigators.”

As to the investigator, every private investigator is not a defense investigator, no matter what they call themselves, as difficult as that may be for some to swallow. The specialty field of defense investigation encompasses the entire investigative area of study. No one is an expert in every discipline there is. No matter what an investigator may tell you or advertise. It is impossible and is, in large part, the reason private attorneys cite that discourages them from the required use of an investigator in criminal cases. The statement “You get what you pay for “is often used by investigators trying to justify inadequacy in their work (or lack thereof).

I preface my next comments as I do with every case from the onset and state that I am not an attorney, nor do I profess to be. I cannot and do not provide legal advice. Attorneys litigate I investigate. I am a criminologist, an expert in criminal defense investigation, and the preparation and presentation of accurate facts. I am expertly trained in the component method of defense investigation. I am a private practitioner and a licensed California professional investigator and assist counsel in the preparation of civil and criminal cases for litigation through investigation.

I have an undergraduate degree in Police Science, a bachelor’s degree in Social and Criminal Justice, A graduate degree in Criminal Justice with a field-specific concentration in forensics. I am currently a first-year doctoral student pursuing my doctorate in psychology in criminology with a specific focus in justice studies. I have 21 years of law enforcement and security experience performing a multitude of duties and responsibilities in those fields.

I have provided expert opinion in both state and federal court proceedings regarding police procedure and use of force, as well as K-9 search and seizure. I am a Board Certified Criminal Defense Investigator (CCDI), A Board Certified Forensic Science Investigator (CFSI), and a Board Certified Forensic Interviewer trained in Forensic Testimonial Evidence Recovery (CFI-FTER). I serve on the Faculty and Advisory Board as a distinguished member and teach yearly at the National Defense Investigators Academy for the Criminal Defense Investigation Training Council (CDITC).

The first obstacle that I had to overcome once I decided to focus specifically on defense investigation was to forget everything I learned as a cop over 21 years. I am not purporting that I do not draw upon that knowledge and experience, but first and foremost, I’m a defense investigator. It is the only thing that I do.

As a defense investigator, I understand that every criminal case does not require a complete, extensive investigation. However, every situation demands a Forensic Investigative Case Review And Analysis (FICRA), provided by a competent defense investigator who is trained specifically in defense investigation. If you do not know what that is, ask your investigator if they do. You may be surprised by the response.

A Forensic Investigative Case Review and Analysis (FICRA), is a comprehensive forensic examination of the prosecution’s evidence that can reveal flaws, inconsistencies, errors, and omissions in a case. It consists of a line-by-line, page-by-page, forensic examination of all the discovery provided to the defense by the prosecution. It should be the very first thing that your investigator does in every one of your cases. A FICRA, adequately conducted from the onset of a case, provides you the factual information you need to determine a defense strategy. Further, It should not cost you half of your retainer to have completed.

You should expect and receive, (in most cases within 24-72 hours), dependent upon the volume of discovery and complexity of the case, a detailed attorney work product from your investigator. It should provide you with a documented analysis identifying inconsistencies, discrepancies, errors, omissions, and leads to be pursued during the process of investigation. If you are not getting that from them every time, you should be asking your investigator why.

Finally, your relationship with an investigator should be like all of the other relationships you have in your profession. You should be able to communicate, trust, respect, and expect honest, lawful, ethical, productive, professional behavior and effort in every case to prevent these dilemmas both for attorneys and the investigators that they use.

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.

Our Duty to Elevate the Criminal Defense Investigation Specialty

I feel it is imperative as specialists in our field, that we promote excellence through mentoring, training, peer reviews, seminars, and conferences, promoting expert knowledge and expertise within the discipline of criminal defense investigation. There is an art, and science to this.

However, contrary to what some of us may think, or say to each other, everybody is not good at EVERYTHING. You know the guy or gal, the one who will tell you they are an expert at everything. Surveillance, “I’m an expert”. Backgrounds “I’m an expert”. Domestic, “I’m an expert”. Criminal Defense, “I’m an expert”. I tell people all of the time, I may not know EVERYTHING but I know a whole helluva lot of stuff about SOME things. I am an expert in Criminal Defense Investigation; My specialty is capital case mitigation, police procedure and use of force, K-9 search and seizure, and K-9 narcotics and explosives detection. I am a facilitator I can make large-scale investigations, with multiple investigators, witnesses, and moving parts go. I can bring a team of different individuals together and galvanize them around a central goal. I am a specialist, a warrior, a gladiator, in search of the truth. Although I cannot be the best at everything, I do have a pool of over 300 CCDI’s in the world stretching from Guam to London at my disposal who are experts in just about anything I will ever need. If I can’t do it I know a Guy, or Gal who can. I also know that the professional Board Certified Criminal Defense Investigator shares my same philosophy, my same methodology, and the need to standardize and develop an investigative philosophy and methodology specific to the discipline of criminal defense investigation. If you are not utilizing your fellow Investigators in your cases, you should be. The goal should always be to provide the client with the MOST comprehensive, impartial, search for the truth we can provide them