|
|
"Most criminal trials
are won by the methodical chiseling away of the state's case..."
Introduction
For the purposes
of this article "Capital/Violent Crimes" is defined as any
crime that has a required penalty of 20 years or more of incarceration.
This shall include all violent crimes, including but not limited to,
capital murder, murder, manslaughter, armed robbery, kidnapping and
aggravated assault.
The defense of "Capital/Violent Crimes" is the
single most important part of criminal practice. While other types of
offenses may have "serious consequences", there is nothing
more serious than the possible imposition of the death penalty or
removal of an individual's liberty for a period of twenty years to
life. It doesn't get more "serious" than that.
Everyone plays a valuable role in the defense of these
cases, but the role of the legal investigator is "priceless".
This is not an easy task due to the highly charged emotions of the
parties involved. Although you may be compassionate, you must maintain
your objectivity or become ineffective. In most cases you are dealing
with the fact that someone's life has been taken. Therefore, a
professional, businesslike, methodical and thorough work ethic is
required, because someone else's life is resting in the balance.
The legal investigator should be a "sponge" and
absorb everything pertaining to the case. The legal investigator must
be the objective part of the legal defense team, taking each piece of
evidence, reviewing and knowing it better than anyone. It is not the
charge of the legal investigator to make the facts or try the case. It
is the responsibility of the legal investigator to take a "no
nonsense - businesslike" approach in gathering the facts as they
exist and reporting them without bias to the attorneys representing the
client.
Legal investigators with "civil" backgrounds do
not generally make the transition into criminal investigations well,
while legal investigators with "criminal/law enforcement"
backgrounds make the transition into civil investigations quite
smoothly. I have witnessed this many times. While general investigative
techniques can be applied in any case, the change to criminal
investigations, particularly in capital cases, is a different and
unique animal. A background in criminal investigations and general or
specific knowledge of the inter-workings and capabilities of law
enforcement agencies, forensic laboratories/scientists and prosecutors
offices are absolutely necessary. Without this vital knowledge, the
legal investigator is severely lacking and will have difficulty gaining
the respect and cooperation of the agencies in the public sector with
whom he/she will be dealing.
These skills are also invaluable assets to the defense
team in critiquing the investigating agencies work.
Responsibilities
The legal
investigator will be called upon to conduct many of the following tasks
during his/her investigation.
- Interviewing/reviewing
previous statements of all witnesses and parties
- Photographing and
drawing the crime scene
- Reviewing all
physical & forensic evidence
- Gathering and
processing new evidence
- Drafting reports of
his/her investigation
- Preparing exhibits
for trial purposes
- Courtroom testimony
- Follow-up during
trial
- Penalty/Sentencing
Phase
Interviewing
The
interviewing of "all" witnesses and parties is
essential in the course of any investigation. The investigator must
have good interviewing skills which are adaptable to each witness in
order to glean the most information possible from that individual. The
"reluctant/adverse" witness is often encountered in
these cases and always a challenge. Examples of these include: the
victim, victim's family or friends, law enforcement officers,
government experts. The key to success is to "hook"
the witness into identifying with you and agreeing to talk to you. Some
approaches are : friendly, sympathetic, apologetic, same opportunity,
businesslike/authoritative, and whatever works.
The State nor the Defense has the authority to
tell a witness:
"YOU DON'T
HAVE TO TALK TO ANYONE ABOUT THIS"
Never assume that
a witness will not talk to you. It has been my experience that most will.
Sometimes a second attempt with a new approach is required. Many
factors have to be considered when making contact with these persons.
If a witness absolutely refuses to talk to you, document this in the
file so it can be used at trial.
Crime Scene Investigation
Whenever possible the scene of the crime should be
inspected by the investigator. A "walk through" with the
client and/or other key witnesses is preferable. Photographs should be
taken from each possible vantage point and a scene drawing should be
done. Samples of material relative to the case should be collected, and
if necessary, submitted to private forensic laboratories for analysis
to compare with the state's reports. These are fundamental things that
can bring positive results during the investigation and course of the
trial. Caution should be exercised that the "chain of
custody" is protected and that all exhibits can be authenticated
in the event they are needed at trial.
IMPORTANT NOTE: "CHAIN OF CUSTODY" is the
procedure of documenting any individuals or agencies which take custody
of an article of physical evidence from the time of collection at the
crime scene or other site pertinent to the investigation until it is
introduced at trial. This step- by- step procedure must contain the
initials, date and time of each person/agency who takes possession of
the exhibit in chronological order. A "break" in the
"chain" can cause the article of evidence to become tainted
and unauthenticated at trial. Due to this, the Court, as a point of law,
may exclude the introduction of the exhibit which may cause disastrous
results in your case.
EXAMPLE: The legal investigator collects an article of
physical evidence at a crime scene. He/she delivers it to a forensic
laboratory for testing. The legal investigator must initial, date and
time the exhibit at the time of release. The agent for the laboratory
must initial, date and time the exhibit showing the receipt of the
exhibit for testing. Upon completion of testing, the exhibit can be
returned to the legal investigator and the procedure done again, or the
laboratory may hold the exhibit until time for trial.
The "KISS PRINCIPAL" (Keep It Simple Stupid)
should be observed here, because each individual who may be in the
"chain" may be called upon at trial to testify to the
continuity of the chain for authenticating the exhibit. Therefore, the
fewer people involved in this process the better.
Reviewing The Evidence
A careful review of all physical, photographic,
documentary and forensic evidence should be conducted by the legal
investigator. A careful eye is needed to pick up discrepancies and
inconsistencies in the state's case. After a review of this evidence,
the legal investigator should review his/her findings with the
attorneys and plan strategies for trial.
IMPORTANT: Most criminal trials are not won by the
"slap you in the face" evidence, but by the methodical
chiseling away of the state's case with inconsistencies, discrepancies
and subtle nuances of the evidence developed by the legal investigator
and the defense team which brings the jury to conclude that
"reasonable doubt" does exist.
Investigative
Reports
The legal
investigator must have good command of the English language and proper
grammar . Reports created by the legal investigator must be detailed
but concise and easily understood by the client and attorneys on the
defense team. A chronological order of his/her actions in each case
should be kept, and all reports should reflect the time and date of any
action taken by the legal investigator. The practice of including a
spiral bound legal pad in each case file for field and progress notes
for reference and authenticity should be established by the legal
investigator.
Preparation of
Exhibits
The legal
investigator should review, organize and label each exhibit planned to
be used at trial. If the legal investigator possesses the skills to
draw scene drawings on computer or mechanical drawings, his/her value
is increased dramatically. These can be drawn with a simple program
such as "Paint" provided in the Windows 95 software or a
variety of other drawing programs available at reasonable costs. These
drawings and photographs can be "blown up" to poster size or
done on transparency for overhead projection for the courtroom
presentation, providing a prepared, professional image for the defense
team. Juries look for and expect this type of preparedness. The Court
will also appreciate this and will not take opportunities to "get
on to" the attorneys for causing delays thereby lessening the
credibility of the presentation before the jury.
A well- prepared, professional presentation of the case
will win points with a jury, rather than a haphazard, unorganized and
lackadaisical attitude toward the presentation. The practice of
attaching a "Prepared By" label or text box on any documents,
drawings or photographs should be established. This keeps the name of
the defense in front of the jury, and they realize that you have gone
to great lengths in your preparation and investigation even though the
defense "doesn't have the burden of proof".
Courtroom
Testimony
The legal
investigator may be called upon to provide testimony in any case which
he/she works. It is imperative that the integrity, reliability and
truthfulness of the investigator is above reproach.
The legal
investigator must never "manufacture" evidence, only
testify truthfully to the evidence available. The use of "jargon"
and "trendy" language or phrases should be avoided.
Again, a well- prepared, organized and professional demeanor is
required to enhance the legal investigator's credibility with the jury
and the Court.
Follow-up
Investigation
In the event the
legal investigator is not expected to testify during the trial, he/she
should be in the courtroom listening carefully to each witness testify
and take careful trial notes in order to identify discrepancies and
inconsistencies of their previous statements. Sometimes questions arise
about weather conditions, lighting conditions, traffic flow, time of
day, etc. The legal investigator should be prepared to check on these
issues immediately and relay an answer to the defense counsel in order
to use it in cross examination. The legal investigator should be
available to meet with the attorneys at breaks and after testimony each
day in order to go over the day's events and plan for the following
day.
Penalty/Sentencing
Phase
In the event the
client is convicted of the crime which he/she is charged, a sentencing
hearing may be conducted. This procedure is considered a
"mini-trial" in the respect that both sides are allowed to
put on evidence in their favor to justify the sentence given. In all
but death penalty cases, the judge assigns the sentence to be served by
the accused in accordance with the penalties prescribed by law.
Depending on the jurisdiction, the jury or the judge may assign the
sentence in death penalty cases. In some jurisdictions, if the judge
feels that the jury has imposed an inappropriate sentence, he/she can
overrule the sentence and impose what he/she feels appropriate.
Whatever the case, the evidence in this phase must be
meticulously prepared and presented. Rest assured the prosecution will
put on evidence to make your client appear as a combination of Jack the
Ripper, Attila the Hun, Ted Bundy, Charles Manson --- well, you get the
picture. They will "de-humanize" the defendant and paint a
picture of a monster/menace to society to whom the judge/jury will want
to attach a heavy sentence
The defense must
bring forth evidence through witnesses and other means (i.e. school
records, military records, church records) to "humanize" and
"mitigate" the defendant's position. Character/expert
witnesses such as , family members, psychologists/doctors, clergy,
co-workers, and school teachers will be asked to testify on behalf of
the defendant in order to gain some sympathy with the jury/judge.
The legal investigator must review all documents that may
be introduced and decide whether they are beneficial or detrimental to
the client. Interviews of each of the witnesses prior to the hearing
must be conducted to insure their testimony. God forbid a witness or
document is presented cold and during testimony damaging statements are
made about your client. The results can be disastrous as to where your
client will be spending the next many years of his/her life.
Results & Closing
In the trial,
State of Tennessee vs. George Hughlett, et al, a highly publicized and
nasty "gang murder", Mr. George "TRAIN" Hughlett is
the refuted leader of the Lemoyne Gardens Mafia, an organization
targeted by the Memphis Police Department for prosecution. The victim,
"COWBOY", was chased around a parking lot and shot fourteen
(14) times and made a "dying declaration" to the police at
the scene stating "TRAIN SHOT ME". Only two (2) exhibits
introduced at trial were prepared by the Memphis Police Department. The
remaining ten (10) photographic, crime scene drawing and documentary
exhibits were prepared by me, the legal investigator for the defense
team. Each of the "enlarged" exhibits had -- "Prepared
by Terry R. Cox, Legal Investigator, Farese, Farese & Farese
Attorneys at Law", which kept the name of the defense team in
front of the jurors throughout the trial and let them know we had been
to the crime scene and had properly investigated and prepared our case,
even though the defense does not have the "burden of proof".
The Tennessee Attorney General's Office for Shelby County would not
introduce the homicide division's "crime scene drawing" into
evidence, because it was not just "NOT TO SCALE" but in the
words of the chief prosecutor it was "NOT EVEN CLOSE". It was
further discovered during cross examination of the state's forensic
firearms examiner that the state had not been provided a second page of
his report.
I had interviewed the expert prior to trial and was
provided the entire report by him. The state was humiliated by this and
the fact that the lead detective had it and had not provided it to the
prosecutors. The state's entire case lost credibility with the jury due
to this and other gross inconsistencies and discrepancies brought out
in testimony. The combination of the testimony and exhibits was so
compelling that it overcame the "dying declaration" by the
victim.
A sentencing hearing was not required, Mr. Hughlett was
"ACQUITTED".
In this case all the elements I have discussed here came
together.
The old saying "ALL THE WORLD IS A STAGE AND EVERYONE
PLAYS A ROLE" has never rung truer.
The legal investigator is a cog in the large wheel we call
"justice" which too often seems to turn at a snails pace,
however, if he/she performs their "role" in the
investigation, preparation and presentation of each case, no matter the
verdict, the end result is:
"THE CRIMINAL JUSTICE SYSTEM WORKS ".
|
