"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.

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