The Role of the Legal Investigator In The Defense of Capital / Violent Crimes
By Terry R. Cox, CLI, CFC
Certified Legal Investigator
Certified Fraud Consultant
“Most criminal trials are won by the methodical chiseling away of the state’s case…”
- Crime Scene Investigation
- Reviewing The Evidence
- Investigative Reports
- Preparation of Exhibits
- Courtroom Testimony
- Follow-up Investigation
- Penalty / Sentencing Phase
- Results & Closing
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.
The legal investigator will be called upon to conduct many of the following tasks during his/her investigation.
1.Interviewing/reviewing previous statements of all witnesses and parties
2. and drawing the crime scene
3. Reviewing all physical & forensic evidence
4. Gathering and processing new evidence
5. Drafting reports of his/her investigation
6. Preparing exhibits for trial purposes
7. Courtroom testimony
8. Follow-up during trial
9. Penalty/Sentencing Phase
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.
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”.
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.
Review and 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 “.