A lack of focus on investigative trade craft stunts our ability to learn superior investigative skills, result, we are not serving the public
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.
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
CDITC ACADEMY – June 11-15 – Florida
MEET THE INSTRUCTOR:
William A. Monroe LPI, CCDI, CFSI
Bill Monroe is the Director of Investigations/Qualified Manager of W.A. Monroe & Associates Security Consulting and Investigations. Mr. Monroe began a career in the Security Police Career field with the United States Air Force. During his time with the Air Force, Mr. Monroe served in several law enforcement and Security capacities including canine handler, trainer, kennel master, Security force supervisor, Patrol supervisor, Desk Sergeant, Federal executive and dignitary protection detail supervisor, Special Investigations Joint Drug Enforcement Team member, Anti-Terrorism response team leader, and Department of Defense vulnerability and risk assessment team leader. He is a diligent and highly skilled Security, Law Enforcement, and Investigations professional with a broad understanding of the criminal justice system.
Bill is currently a California Licensed Professional Investigator with over 10 years of professional investigative experience, ranging from insurance fraud investigations, felony three strike cases, to capital murder cases. Mr. Monroe is an expert in Criminal Defense Investigation and specializes in capital case mitigation, police procedure and use of force, K-9 search and seizure, and K-9 narcotics and explosives detection. He has superior investigative abilities coupled with comprehensive skills in forensic interviewing, forensic photography, crime scene examination, blood spatter detection, recognition, and analysis, and preparing and presenting accurate facts.
In addition, he is a Criminal Defense Investigation Training Council (CDITC) board trained and certified Criminal Defense Investigator CCDI. He is also a CDITC board trained and certified Forensic Science Investigator (CFSI).
I cannot say how important professional ethics are in the Criminal Justice profession. In everything we do as Board Certified Criminal Defense Investigators, we must remain neutral, and free from bias when conducting research and investigation in the field, especially in areas like investigation were confirmation bias happens regularly. Defense Investigators, and Criminal Investigators especially, must be aware of the bias that can occur when an investigator comes into a case with preconceived notions and opinions. This causes the investigator or researcher to search for evidence to support the theory instead of a search for the truth. In criminal Defense Cases I have worked it was additional information that we may have uncovered through the investigative case review and analysis that brought this type of investigative police work to light.
Tools are often used by criminals to force entry to premises and can leave behind evidence for the forensic scientist to find.
Two tools of the same kind and made by the same manufacturer may look the same, but through use each tool can acquire differences. It is these differences that make them unique.
Forensic Scientists are able to help the courts convict criminals by matching the marks on tools to those found at crime scenes.
The examination of tool marks, as with other physical evidence, is based on two characteristics – class characteristics and individual characteristics.
Class characteristics are those characteristics that are common to a group of objects. For example, a hammer has a distinctive shape and typical size.
Individual characteristics are those characteristics which are unique to a given object. They are generally as a result of wear and tear or may be caused by isolated incidents during manufacture. For example, you buy a new pair of shoes and as you wear the shoes, over time you will get scratches and gouges on the soles. These marks are unique to your shoes.
Tool Mark Impressions
Caused by the interaction of two objects, tool mark impressions are distinguished in a variety of ways:
Static marks are made when the tool is pressed into a softer material and leaves an impression. A good example is a crow bar being used to force open a window and a subsequent impression is left in the softer surface of the wood. The Forensic Scientist will examine the marks and may be able to identify what type and size of tool caused the damage.
Dynamic marks are made when a tool slides or scratches across a surface. Think of a key being dragged along the side of a car; such an instrument leaves behind a pattern of lines or striations in the metal of the car. The pattern of striations may be enough for the examiner to identify a match with the tool belonging to a suspect.
Cutting marks are a result of pressure being applied at both sides of an object and are often associated with scissors, wire cutters or shears. When used these tools can leave behind marks and striations along the cut edges of the material.
Multi-stroke marks are caused by repetitive action, such as a saw moving back and forth.
The Scene Examiner will examine and photograph the tool marks in situ. If appropriate, the Scene Examiner will remove the object with the marks and take it to the lab for further analysis. If this is not possible they will make a cast of the marks, generally using a silicone rubber.
A tool may be recovered that is suspected to have caused the damage and this will also be taken to the lab for further analysis.
The Forensic Scientist will make test marks using the suspect implement. The test mark and the mark recovered from the crime scene will then be compared.
The Forensic Scientist will examine and compare the striation patterns using the comparison microscope. By comparing and matching the striations the scientist can prove whether the tool is responsible for the impression.
Tools can also have trace evidence, such as paint flakes adhering, or in the case of a human victim, blood or other body fluids. This evidence greatly assists in the investigation of a crime.
Investigators efforts when hired by attorney
Coito v. Superior Court (2012), 54 Cal.4th 480 [dictum discussed witness statements and suggested efforts of investigator must reflect attorney initiative or thoughts]
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377 [“Chicago Title objected to questions to the adjuster Look concerning her interviews with third parties (the escrow company and the seller’s agent) as part of her investigation. These questions concerned her factual claims investigation and do not constitute attorney-client communications or attorney work product.”]People v. Collie (1981), 30 Cal.3d 43, at p. 59 [“Nobles also persuasively reasons that the privilege should extend not just to the attorney’s work product, but to the efforts of those who work with him to prepare the defense: “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys must often rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” (Id. at pp. 238-239 [45 L.Ed.2d at p. 154].) We conclude that the work-product doctrine applies to criminal cases and protects the work product of defense investigators.”]
Rodriquez v. McDonald Douglas (1978), 87 Cal.App.3d 626 at p.647-48
Southern Pacific Co. v. Superior Court (1969), 3 Cal.App.3d 195 at p.198 [ Protected per dictum not disapproved in Kadelbach ]
Mize v. Atchison, Topeka & Santa Fe (1975), 46 Cal.App.3d 436 at p. [Court assumed investigators reports were work product and compared them to expert’s reports but found waiver because the investigator was to testify ]
Brown v. Superior Court (1963), 218 Cal. App.2d 430 at p. 437
Suezaki v. Superior Court (1962), 58 Cal.2d 166, 178 at p. 177 [films taken by investigator hired by attorney solely for trial prep and intended to be confidential are work product but not privileged as a matter of law; court discretion must be exercised with qualified work product ]