Three Cheers for Our Witnesses

The Los Angeles Times ran an article today about a woman who recently died, after testifying in a gang murder case.

http://www.latimes.com/news/local/la-me-witness6dec06,0,5870658.story?page=1&coll=la-home-local

Whether witnesses testify for the prosecution, or for the defense, or somewhere in between (the legal knife does have a tendency to cut both ways), they deserve props for showing up to court and doing their civic duty.

Here's to our witnesses. Whatever our witnesses have to say, they are a criminal defense investigator's bread and butter.

The Common Cold Call

A competent criminal defense investigator does not make appointments. Meaning: We don't call witnesses up on the telephone prior to just showing up on their doorstep. I have found that the higher up the socioeconomic ladder, the more people have a problem with "cold calls" as a violation of their privacy. I have been accused of being rude numerous times in Beverly Hills and Palo Alto, but rarely do I have that accusation thrown at me in South Central or East Palo Alto. Generally, people in lower socioeconomic areas have more of an understanding and respect for our jobs as criminal defense investigators. Hey, the police don't call before they come either.

Here's some reasons why cold calls are crucial to criminal defense work:

1) People are flakes. The number of times I have made an appointment with a witness ahead of time, is roughly equal to the number of times I have been stood up when I arrive at their home. Yes, there are exceptional folks who keep their word to the hardworking criminal defense investigator, BUT, they're the minority and time is a precious commodity when you have a full case load.

2) People don't want to be bothered. Never mind that your client describes a particular witness as friendly. Even if they're friendly, people generally don't like dealing with legal stuff. Once your client is behind bars, it's depressing how scarce his or her "friends" become -- even when your client has a righteous case.

3) Dysfunctional people don't do lunch. Criminal defense investigators often interview people who live on the margins of society. We have a hard enough time finding them because they don't own property, nor do they put in a change of address with the post office when they move. Often they are unable to keep a steady job, so why would we expect them to keep an appointment with us? When someone's address is the second cardboard box past the freeway onramp, well you're hardly going to be able to get them on the horn to schedule a playdate.

4) People have a harder time saying "no" in person than on the phone. The Fuller Brush Company has known this for years. Defense investigators fight an uphill battle in getting people to talk to us at all. Most folks are prosecution oriented, even if they don't realize it. They pick up their views of the system from TV and books, most of which portray the defense attorneys we work for as slimey and downright evil. People generally think there is something wrong about talking to the defense. Your average Joe doesn't realize that our criminal justice system only works if there are a series of checks and safeguards in place. I am not going out to their home to dupe them into saying something to help the defense's case. I am going there to get an accurate statement about their observations while they are in the comfort, security and neutrality of their own home. Sometimes what they have to say is exactly what's on the police report. Sometimes it is quite different. Most of the time, it's somewhere in between.

But I will never know until I talk to the witness, since not every witness can or needs to be brought into court, and not every question gets asked on the stand.

The proof is in the pudding: when people are approached in person, the overwhelming majority talk. Some are genuinely appreciative that you cared enough to come out in person to see them, especially if other court personnel are not returning their calls.

The Often Arrested

In addition to talking to people about the details of a crime, criminal defense invesigators must ask potential witnesses whether they have any criminal convictions. You can never assume that some one's record is clean because they seem like a law abiding citizen, nor can you assume it's dirty because they live in a high crime area. And it's not always as easy as going down to the courthouse and looking for yourself, as people can have records in another county or state, or under another name. Sometimes this line of questioning can be awkward, especially to people who have no record and are offended by the implication. Most of the time, people with records are happy to talk to you about it, perhaps too much so.

As a young investigator, I once made the mistake of not asking a witness that I subpoened to court about his record. I found him the morning he was needed to testify, he proved our case by his observations and I was just so elated. When I telephoned the attorney to tell her about the witness, she asked me whether he had a criminal record. It was then that I realized I hadn't asked, but he was already on his way to the courthouse. The attorney and I both agreed that as long as he wasn't a murderer, she'd still put him on the stand. Turns out he WAS a convicted murderer. The attorney put him on anyway, and our juvenile client ended up getting a break.

I once interviewed a 400 pound biker in Sacramento who told me he had been arrested 431 times and he had no idea what all he had been convicted of. This guy was pretty scarey. He did not like what I was there to talk to him about (an old murder my habeas client had been convicted of) and I knew he was not going to like it when I subpoened his butt to court. At my suggestion, I interviewed him on his porch. No way I was going inside THAT house. True to my name, I needed a witness that day, and the busy street he lived on provided it. I didn't even care that cats had pissed all over the couch on his porch causing me to have to change my clothes immediately afterwards. This is why an investigator keeps a change of clothes in the car.
All this got me wondering -- what person holds the record of most times arrested? Lincoln, Nebraska actually keeps tabs on this sort of thing. Edward Rooks holds the record there with 652 arrests. Given new sentencing laws, the often-arrested are a dying breed. Literally.

Seems the Guinness Book of World Records has given the title of "Most Arrested" to this guy: Henry Hollis, everyone's favorite busker.

btw, Did you know that the co-writer of the Guinness Book of World Records was a murder victim? You learn something new every day on the internet.

Cleaning House

I once heard a guy interviewed on the radio about his lucrative business of cleaning up crime scenes. He said that the most disturbing thing about his job was the realization of how filthy and alone so many people live, and die. He said that the bulk of his work was cleaning up apartments after a tenant had literally disintegrated on the couch, only to be discovered after the smell became overwhelming for the neighbors.

We criminal defense investigators get to meet the folks he speaks of before they actually disintegrate. But it's no less disturbing. We come into their private spaces unannounced to interview them about a crime they have witnessed or been a part of somehow. We are often greeted with filth and clutter, or conversely with an eerily spare space, despite their having lived there on the margins of society for many years. Once you talk to these folks, you realize they're a person just like you and me. But for one reason or many, they have found themselves on the edge of society. It breaks your heart, and you never forget them, because you know that everyone else has.

A couple of years ago, I was looking for a witness, but got to his room at a residential hotel just as they were cleaning it out. The manager of the place was a young hipster type who was trying to restore the hotel to it's former glory. The manager insisted on bringing me up to the room to show me how much stuff my witness had accumulated by the time of his death. The manager kept boasting to me, "And we've already taken away four dumpsters of the stuff." The manager seemed so proud and excited about it. Frankly, the room didn't look as if they'd even started to clean it out, as there were newspapers, knick knacks and lord knows what else, scattered everywhere. The manager told me my witness had once had a successful acting career, having played the "Fix It Man" on Sanford and Son TV show.

There was a nice guitar slated for the trash bin, so I asked if I could have it. It's made a great beginning instrument for my son. I looked on the internet when I got home, but could not find any information on a "Fix It Man" character on Sanford and Son. I did find a character of that name on the Andy Griffith show, but that actor died in 1973. Seems my witness' greatest public accomplishment has disintegrated as well.

Double Trouble

In California, a defense attorney can file a Pitchess Motion to get relevant complaints by other people against the police officer involved in your criminal case. A large number of the people who have taken the time to file complaints against the police are people with lengthly criminal histories. A multiple felon might not be all that helpful to your case, except when the details of their case just too kawinkadinkally match your case. Another segment of the hits are likely to be the mentally ill. The reason: both these groups are easy targets for the police. What makes these witnesses' complaints more believeable also makes them less believeable, if you can follow what I'm trying to say. Who ya gonna believe -- the police or the crazy cat lady? the police or the five time felon? This is where third party witnesses come in handy (a law-abiding neighbor who happened to look out the window), etc.

Once the complainers' names are handed over by the judge, the investigator goes out to locate and interview the people about the nature of their complaint (or at least makes a diligent effort to find them so the attorney can go back to court and get the actual description of the complaint). Some times third party witnesses are listed on the complaint.

Once I telephoned a witness who had moved out of the area. When I asked him about his complaint, he informed me that he had not made a complaint. He said that it must have been his double. He explained that at that time he had a double living in our city and also one in Denver. The witness clarified that he himself was living in a third city at the time. Efforts on my part to break through this scenario were unsuccessful, and were only met with further details about the challenges of living in a world with your double. I would imagine a double could do a real number on your credit score, not to mention the social stigma.

When we got this person's actual complaint from the court in order to "refresh his memory," it detailed how his double had been sitting at the table eating cereal when the police came into his house after a call from his mother about the double threatening to kill himself. The police proceeded to overeact to the situation by grabbing the double and beating him up. Although I could never find the double, the double's mother (quite mentally ill herself) ended up being a useable witness.

My Eyes Have Seen You

I had a client named Mr. Wilson who was accused of robbing something like 16 different grocery stores and drug stores at gunpoint. The evidence against him was strong, but each one of the robberies needed to be investigated, because you never know when one that he didn't do might be thrown in by the investigating officer for good measure. And it's not unheard of for the cops to have gotten the wrong guy, even when the evidence appears so overwhelming on the front end. It's called having an open mind, and it's standard operating procedure for a criminal defense investigator. To clarify here, it doesn't mean we think our clients are all innocent. It means we're open to the possibility that they could be.

One of the convenience store workers, a young guy of a different ethnicity than Mr. Wilson, had gone on and on, both in court and in my interview with him, about how he recognized Mr. Wilson from his eyes. He had gone to being 75 percent sure of his identification of Mr. Wilson when I interviewed him, to 90 percent sure once he got to court. Even stating, "I'll never forget those eyes." After this witness' preliminary hearing testimony, I was back in the holding cell with the client and the attorney. Mr. Wilson, a smart guy who in another life would have made a great family man as opposed to a career criminal, was totally beside himself. It's not my job to talk to clients about their guilt or innocence. Mr. Wilson, however, blurted out incredulously, "but Anita, I had dark glasses on the entire time. He would have never seen my eyes."

Welcome to the faulty world of witness identification, Mr. Wilson. Enter memory researcher, witness for the defense and friend of the misidentified, Elizabeth Loftus. She's written several books on witness identification, all available on amazon. I've only read Witness for the Defense, and one of her false memory book. She even autographed a copy for one of my incarcerated clients. It's his prize possession (she helped him escape a death sentence). She tells it better than I could ever do, so read this interview she gave as part of a Frontline show on a man who was wrongly identified and convicted of rape.
http://www.pbs.org/wgbh/pages/frontline/shows/dna/interviews/loftus.html

Thanks to Jim Morrison and the Doors (of Perception) for my tag line. See you around.

Baby I'm Bored

I once had a witness fall asleep on me while I was interviewing him. I know I have a knack for making people feel at ease, but come on.

Mr. Drowsy was the night clerk at one of those sleazy residental hotels we investigators find ourselves going to way too often. He had witnessed a domestic dispute inside the hallway of the hotel. Typical public defender case. He was about 300 pounds and was sitting on his bed, while I sat on a nearby chair. He started to cat nap early on in the interview. Each time he'd nod off, I'd look around his room for awhile, and eventually work up the courage to yell out his name to wake him back up so I could ask him another question. Then he'd nod off again, and the process would continue. Once I had all the answers to my questions, I quietly let myself out of his room. Yes, I did later confirm with him everything he told me that day when I went back to give him a subpoena. And that woke him up alright. But am I THAT boring to talk to?

Going into an altered state during an interview is not uncommon. Most people, once you start interviewing them, do, in fact, go into a sort of daze. They almost stop noticing you are there, and become consumed with talking about themselves and their observations. And yes, their eyes literally glaze over. I've seen this happen repeatedly. It's the hallmark of a good interview. It is my job as an investigator to allow this altered state to happen and take full advantage of it when it does. It's human nature to like to talk about ourselves and once we have a captive audience (like your local criminal defense investigator), those floodgates swing wide open. Witnesses frequently don't remember who I am, even tho I have told them repeatedly. They were simply too consumed with listening to themselves think, I mean talk. I give people a business card for when their euphoria wears off. I've always thought this was a form of "flow," a psychological state of optimal experience that has been reported by surgeons, athletes and artists alike:http://talentdevelop.com/Page8.html. Btw, lying is not conducive to the the flow process.

Witnesses often make their most important statements as I am at the door in the process of leaving. This is no time to put away your dumbos. If there is something they have held back, it may be blurted out as my hand turns their doorknob. Or, they might make a seemingly out of the blue comment that applies to the case. Classic example: "Well, you know, [insert ethnic group here] people all look alike" when they have identified your client, a [insert ethnic group here] from a 6 pack of photos. I'm sure there is also a psychological reason why the exit door becomes a last minute confessional. Whatever it is, it's an investigator's bread and butter.