VOL. 37, ISSUE 2
the legal investigator The Official Journal of the National Association of Legal Investigators
WhenYour Client is Subjected to
in Jail or Prison Jennifer Brown, J.D., CLI | p.4
CRIMINAL | p.8
Savvy legal investigators are learning and using database skills to gather critical public record data for their criminal defense clients and earning new business opportunities in the process.
CIVIL FOCUS | p.14
How do you avoid the various risks involved in doing physical surveillance and set policies that safeguard against getting your agency and your client held liable for damages?
AUTHOR EXCERPTS | p.18
Striking the right balance in the business and personal attorneyclient relationship can be tricky, but using this authorâ€™s tips for each stage of an investigation can help you get it right.
VOL. 37, ISSUE 2
the legal investigator The Official Journal of the National Association of Legal Investigators When Your Client is Subjected to Abuse and Neglect in Jail or Prison | p.4
Learn about the various sources you can tap to find out whether prison abuse is occurring and how to gather the evidence to get your client relief from ongoing abuse or neglect.
Managing Editor Paul Jaeb
Jennifer Brown, J.D., CLI
Contributing Writer Scott Harrell
Contributing Writer Dean Beers, CLI
Data Provides Answers to Criminal Sentencing Questions; A Business Opportunity for Legal Investigators | p.8
Editor in Chief
Find out how savvy legal investigators can learn database skills to obtain case-winning answers from public record data for their criminal defense clients.
CIVIL FOCUS | p.14
MESSAGE FROM NATIONAL DIRECTOR | p.16
Avoid the various pitfalls involved in doing physical surveillance and learn how to set policies to safeguard against getting the client hiring you and your agency held liable for damages.
NALI National Director Terry R. Cox, CLI shares the many highlights of the NALI 45th Annual Conference, the location chosen for 2014, and details about the upcoming 45th Mid-Winter.
EXCERPTS FROM MEMBER AUTHORS | p.18
NEWS / UPDATES | p.22
Use these best practices for establishing the right balance in both the business and personal attorney-client relationship while maintaining the role of an impartial collector of facts and information.
Find out whoâ€™s been in the public eye, whoâ€™s been been busy behind the scenes, and whatever else your fellow NALI members have been up to over the last few months.
The Legal Investigator is an official publication of the National Association of Legal Investigators, Inc. All rights reserved. Copyright 2012. Please send all requests, change of address and all other NALI business to: NALI, 235 North Pine Street, Lansing, MI 48933 Readers are cautioned that opinions expressed are those of writers and are not necessarily endorsed or supported by NALI or the editor/ publisher. Publication of advertising does not imply endorsement. All advertising is subject to the approval of the editor/publisher. Advertiser and advertising agency assume all liability for all content (including text, representations, and claims arising therein from/ against the publisher and/or NALI.
the legal investigator
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WhenYour Client is Subjected to
by Jennifer Brown, J.D., CLI
in Jail or Prison
It is important to be aware of how our clients are being treated— not only for their own safety and well being, but because mistreatment of inmates by prison or jail staff that rises to the level of “cruel and unusual treatment” is a violation of a guaranteed right.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 8th Amendment, U.S. Constitution When a person is imprisoned, they are inherently placed in a situation where they are unable to take care of themselves or protect themselves and they are at the mercy of the government. Because of this, the government has an obligation to protect prisoners from harm, neglect and abuse by both staff and other inmates. Unfortunately, abuse and cruelty in U.S. jails and prisons are rampant and even considered “normal.” Staff routinely refer to abuses as “part of prison life” and courts often rule in their favor under the guise of deferring to prison officials’ declarations that what happens behind prison walls is necessary to ensure order. It would be easy to fill this entire issue of The Legal Investigator with instances of mistreatment from any one randomly selected institution. It is important to be aware of how our clients are being treated—not only for their own safety and well being, but because
mistreatment of inmates by prison or jail staff that rises to the level of “cruel and unusual treatment” is a violation of a guaranteed right. Many times, these cases need to be litigated in order for a client to get relief from ongoing abuse or neglect, and investigators are needed to research, interview and document instances of cruel and unusual punishment. Abuse comes in many forms—inmate on inmate, guard on inmate, abuse due to poor prison conditions and abuse resulting from inadequate health or psychological care. Inmates are frequently subject to excessive and unnecessary force by guards, such as being kicked, tased, pepper sprayed or having restraints put on too tightly for simple trips to the shower or legal visits. One inmate at a maximum security facility where each was in solitary confinement told me that it is not unusual for the entire unit to be tear-gassed when one inmate starts acting up (usually due to extreme mental health issues). The entire unit suffers needlessly when one inmate is suffering from solitary-induced psychosis. How is that not cruel towards not only the mentally ill the legal investigator
inmate (for a lack of medical treatment), but for the rest of the inmates who are subject to being gassed and must suffer for hours in extreme pain from irritated eye and respiratory issues? Assault (both physical and sexual) is rampant, as is the use of degrading language and slurs intended to be derogative in racial or sexual ways. When fights or rapes occur, it is not uncommon for guards to look the other way. One client told me that it is better for the guards to ignore gang issues and inmate on inmate attacks, because, “If [inmates] were taken care of and had no issues to worry about, they might become a cohesive unit and turn on the guards.” In other words, many inmates believe there is no hope of conditions improving, because the institutions knowingly and willfully mistreat inmates and place them in conditions that lead to unrest and violence—presumably for the safety of the guards. The legal investigator’s first job is to listen to their incarcerated clients. During visits, always ask how they are doing, and how their daily lives are going. Are requests for medical care being ignored repeatedly? (This is very common, and another way prisoners suffer needlessly.) Are there gang issues that are affecting your client, even if he is not part of a gang? Is your client sharing a cell with someone who is abusing them, either physically or sexually? These are ugly topics that most of society would prefer to ignore, but this is daily life for most of our incarcerated clients. Another source of finding out about whether prison abuse is occurring is other inmates. Many inmates will place investigators on their visitor lists so they can talk to us about prison conditions, which can be arranged by writing to inmates at a particular institution. It is good to find out if the problems are widespread throughout the prison, and if so, there can be power in numbers when formal complaints are made. Many prisons have at least one “old-timer” who has been there for years and has seen everything. Find out who that inmate is, and try to get a visit with him. He is a “historian” and can provide countless examples of abuses, poor conditions and neglect. More importantly, he can provide names. Sometimes the most vocal inmates can be helpful— look in “letters to the editor” sections of newspapers summer 2012
Paul Jaeb Minneapolis, MN Member since 1998
Ellis Armistead, CLI Denver, CO Member since 1992
Jayne McElfresh Phoenix, AZ Member since 1995
Cynthia Hetherington Wayne, NJ Member since 2001
John Hoda, CLI White Plains, NY Member since 2002 5
criminal focus by Jennifer Brown, J.D., CLI case manager or client manager. At times, it becomes necessary to be an inmate’s voice when trying to correct a particular problem. We have to keep going up the chain until we get to the warden if needed. If conditions still don’t improve for the client, or if the problems go unresolved, inform a member of congress or notify the press about the transgressions. Many congress people or reporters are interested in exposing corruption and would be very willing to help showcase the problems at a particular institution. Very frequently, inmates will know who this reporter or congressperson is. Another person who often knows of the abuses and problems in a prison is the prison chaplain, if there is one.
and prison-related publications for inmates who try to publicize the abuses in prison. While talking to your client, or other inmates, start documenting. Document the stories you hear, each incident your client tells you about and stories that make it to the news. In addition to the anecdotal evidence, you will want to start subpoenaing information from the institution. Attorneys will take care of the subpoenas, but it is critical you know what documents you need in order to show that abuse and neglect are occurring. For instance, ask for incident reports for abuses that are similar to what is happening to your client. If it involves being stabbed or raped by particular gang members, ask for reports that involve all stabbings or rapes in that prison. Ask for after-action reports for incidents. One of the best methods of finding out which documents to ask for is to consult with former wardens who willingly help defense and civil rights attorneys with prison conditions issues and litigation. They can look at paperwork and tell you what is missing. They can tell you exactly what reports are regularly created and which documents you need to ask for to help support any cases involving 8th amendment issues. They are invaluable when cases are dependent on getting records from an institution to show that the conditions are ripe for violence and abuse. When dealing with a specific client who is having problems getting medical care or who is suffering from abuse from a particular guard, start with the 6
Another option is to reach out to one of the dozens of prisoners’ rights groups who advocate for prisoners. There are many organizations out there that have trained, experienced staff and volunteers who can advise on how to shine a light on the problems your client is facing. Some of these groups include the ACLU’s (American Civil Liberties Union) Prison Project; CURE (Citizens United for the Rehabilitation of Errants); Human Rights Watch; the Innocence Project or the National Legal Aid and Defender Association. These groups can be valuable resources for obtaining information on prison conditions and suggestions on how to assist your client. If the situation is dire enough, some of these groups may even be willing to take on the case for your client. No inmate should ever have to suffer needlessly beyond the restrictions and punishment of “normal” prison life. If your client is being abused or neglected, there are steps we can take to assist in getting that abuse stopped or the neglect addressed. Being outside the prison walls, we are able to find resources or provide litigation support for those who are least able to do it for themselves. — Jennifer Brown, J.D., CLI, is owner of J. Brown Legal Investigations in Denver, CO. She also is associated with Heartland Investigative Group. She focuses on criminal defense and is a death penalty mitigation specialist with 11 years of experience. She is also the newsletter editor of the Professional Investigators Association of Colorado. Ms. Brown can be reached at 720-318-5270, or at firstname.lastname@example.org. the legal investigator
Eighth Amendment Cases before the US Supreme Court Francis v. Resweber, 329 U.S. 459 (1947), whether a state can put a condemned man on an electric chair a second time, after sending a non-lethal bolt of electricity through him in its first attempt. By a 5 to 4 vote, the Court in Frances permits the second execution, with the majority concluding that the “cruelty” of the punishment at issue should not be measured by what happened in the past or the mental anguish the prisoner might feel as he awaits his second date with the chair. The four dissenters, however, contended that the sequence of events was relevant, and that no one would doubt that a punishment that consisted of two jolts of electricity weeks apart would be cruel. Ingraham v. Wright, 430 U.S. 651 (1977), whether schools can inflict corporal punishment. Florida students were subjected to such a severe beating with a wooden paddle as to cause bruising to one student that required medical attention and another was deprived of the use of his arm for a week. By a 5 to 4 vote, however, the Court found that the punishment was not a violation of the Eighth Amendment because, it said, the framers were concerned solely with punishments in the criminal justice context and would not have intended the amendment’s provisions to apply to discipline in the public schools. The four dissenters disagreed, arguing that nothing in the text of the amendment suggests the limitation found by the majority. Harmelin v. Michigan, 501 U.S. 957 (1991). The Court (5-4) upheld the sentence of life imprisonment for the first-time offense of possession of cocaine (albeit a large amount of cocaine). Two justices argued that the Eighth Amendment did not address the proportionality of punishments at all. Four justices would have reaffirmed an earlier decision that adopted a three-prong test to determining disproportionate punishments and would have reversed Harmelin’s conviction. A key concurring opinion signed by three justices argued that grossly disproportionate punishments did violate the Eighth Amendment, but offered a test that would only rarely allow courts to reach such conclusions. Hudson v. McMillian, 503 U.S. 1 (1992), whether the beating by prison guards of a handcuffed inmate at Louisiana’s Angola prison violated the inmate’s Eighth Amendment rights. Voting 7 to 2, the Court found a violation of the cruel and unusual punishment clause summer 2012
even though the inmate suffered no permanent injuries or injuries that required hospitalization. The Court rejected the lower court’s argument that only beatings that caused “significant injuries” rose to the level of Eighth Amendment violations. In dissent, Justices Thomas and Scalia argued (controversially) that the Eighth Amendment was intended to reach beatings by guards at all--rather only judicially-imposed sentences. Roper v. Simmons, 543 U.S. 551 (2005). Is it cruel and unusual punishment to execute a prisoner for a crime he committed when he was a minor? In previous decisions, the Court had found it unconstitutional to execute persons who were less than 16 at the time of their crime, but had upheld executions of those 16 and 17 at the time of their crimes. (The Court had also, in 2002, held it to be a violation of the Eighth Amendment to execute mentally retarded persons.) Voting 5 to 4, the Court in Roper cited recent evidence to conclude that the execution of persons who were minors at the time of their crimes now violated “evolving standards of decency” and, hence, the Eighth Amendment. Graham v. Florida 130 S. Ct.. (2011). By 5-4 vote, the Court ruled that the Eighth Amendment does not permit sentences of life without possibility of parole for minors who commit non-homicide crimes. Terrance Graham was 16 when he committed armed burglary for which he was sentenced to probation. However, he violated his probation by committing other crimes. Under Florida law, he was sentenced to life without parole. Miller v. Alabama 132 S.Ct. 548 (2011). The decision came in the robbery and murder cases of Evan Miller and Kuntrell Jackson. Miller, then 14, was convicted in 2006 of capital murder for beating a man with a baseball bat and leaving him to die in a burning trailer after stealing his baseball card collection and $350. The Supreme Court says it’s unconstitutional to sentence juveniles to life in prison without parole for murder. Cases compiled by Prof. Doug Linder, University of Missouri-Kansas City School of Law, for an e-series, Exploring Constitutional Conflicts. Reprinted with permission. 7
criminal focus CLI WHITE PAPER
DATA PROVIDES ANSWERS
by Rich Robertson, CLI
TO CRIMINAL SENTENCING QUESTIONS A BUSINESS OPPORTUNITY FOR LEGAL INVESTIGATORS
In the computer age, the answers are out there. Even better, legal investigators are in a good position to become the source of those answers for their criminal defense clients. The answers are in the databases maintained by the courts and prosecutors. That data can be obtained under public records laws by legal investigators who have or are willing to learn database skills.
The plea offer was 40 years in prison for online luring of a 14-year-old into a sexual liaison. That certainly seemed like a big number to the defendant, a well-respected physician. And it seemed like a big number to his legal team. But, compared to what? What sentences have other defendants received for similar misconduct? What is the “right” number? What sentence is “fair” and “just?” Traditionally, the answer has been based on either the defense attorney’s personal experience or whatever can be gleaned from other attorneys who have defended similar cases. More likely, the answer is based on whichever side is the better negotiator. In the computer age, the answers are out there. Even better, legal investigators are in a good position to become the source of those answers for their criminal defense clients. The answers are in the databases maintained by the courts and prosecutors. That data can be obtained under public records laws by legal investigators who have or are willing to learn database skills. That is what R3 Investigations did for the accused physician. He received a 13-year prison sentence instead of 40 years. During the last five years, R3 Investigations has provided charging and sentencing proportionality analysis in scores of cases.
The comparative analysis is used regularly in plea negotiations, sentencing hearings and clemency hearings. Another important benefit of the data is in adjusting the defendant’s expectations. The physician, for instance, thought he deserved five to seven years in prison. By showing him the data, he could see for himself that others who committed similar crimes received sentences closer to 15 years. The criminal defense lawyer doesn’t have to say to his client, “trust me.” Instead, he can say, “look at the data and draw your own conclusions.” In addition to defense counsel, R3 Investigations has provided complex analysis of death penalty cases to a public defender’s office; and provided reports to news organizations that wanted to tell their readers and viewers about similar cases of certain crimes. How it Started The idea for providing this service to the criminal defense bar grew out of a 2003 fatal vehicular hit-and-run case committed by the then-Bishop of the Catholic Diocese of Phoenix, Thomas O’Brien.1 It was an extraordinary case that came in the middle of controversies about sexual abuse by priests under Bishop O’Brien’s watch. A jury convicted Bishop O’Brien of a felony count of the legal investigator
leaving the scene of a fatal accident. It was up to Maricopa County Judge Steven Gerst to determine the sentence. The felony carried a presumptive prison sentence of 3.75 years. Probation was an option, but a condition of probation could include a jail term of up a year. Emotions ran high. Whatever the sentence, it was certain to generate criticism of the judge by those who would perceive it as either too harsh or too lenient. Judge Gerst wanted to know how other cases were handled. At his request, court administrators identified 99 other hit and run convictions and gave him a list of case numbers. The court clerk pulled the case files and the judge spent hours comparing them, identifying ones with similar facts. He then crafted the sentence for the Bishop that was consistent with other cases with similar fact patterns. In the end, the Bishop’s sentence was neither more nor less than what other “ordinary”citizens received. The expected firestorm of criticism was considerably blunted.2 A popular newspaper columnist commented, “(The judge) ignored the rants of self-righteous, marginally informed, overly emotional hacks like me and treated Bishop Thomas J. O’Brien equally under the law.” Since then, Judge Gerst has become an advocate for proportional sentencing analysis. Now retired from the bench and an associate law professor for the Phoenix School of Law, he has written two law journal articles advocating such analysis.3, 4 He wrote that “as a result of electronic data-gathering by courts, resources previously unavailable or difficult to find are now available for judges to review and analyze in making difficult sentencing decisions. These resources may also provide valuable information to attorneys in assessing and resolving criminal cases. Fairness and public confidence in the criminal justice system will be best served by information being made available which promotes both interests.” 5 While Judge Gerst advocated for attorneys to use this data, court administrators were less supportive. R3 Investigations spent more than two years battling the courts to get even the minimal data that was provided to Judge Gerst.6 R3 Investigations eventually prevailed. The Data The data resides in multiple locations. Prosecuting agencies and courts, for administrative reasons, have summer 2012
to maintain databases of the cases filed. Prisons have to keep track of the cases that sent the inmates to them. Each entity, by necessity, has to maintain data that includes the case number, defendant’s name, date of birth, gender and race. They need to know what charges were filed and what happens to those charges, whether dismissed, pled out, or convicted. And, of course, they need to know what sentence, if any, was imposed. Additionally, they need to know who the prosecutor was, the defense attorney and the judge; and they need to know which police agency conducted the investigation. The databases are also often the sources of the information on the courts and prison system websites. The limitation there, of course, is that you can only look up records by name or case number, which are not always known. Those databases, because they are maintained in the course of conducting the public’s business, are public records.7 In Arizona, and likely elsewhere, there are different public access laws for the executive branch and judicial branch because of separation of powers. The prosecutors — county attorneys in Arizona — are governed by the executive branch; courts are the judicial branch.8 A number of cases in Arizona establish that that electronic records, including databases, are public records under both the statute and the Rule.9 R3 Investigations submitted written requests to the prosecutor’s office and the Maricopa County Superior Court, which is the level of courts that deal with felony cases in Arizona. The requests asked for all the fields of information mentioned above for all cases filed in the previous five years. After considerable back-and-forth, R3 Investigations received all the data on more than 250,000 felony cases on a DVD. Every three months since then, R3 Investigations re-submits the same public request and receives updated data. As a result, the five-year database is always current to within a few months. Additionally, R3 Investigations recently obtained statewide data on more than a million cases from the Arizona Supreme Court. Eventually, the plan is to merge all that data with data from the Arizona Department of Corrections. The result will be the most complete, far 9
criminal focus by Rich Robertson, CLI reaching, privately-held database of the Arizona criminal justice system.
• What police agencies handle the most cases of certain charges?
• What is the trend for a particular prosecutor?
Most often, attorneys are looking for a list of all cases with the same criminal charges their client is facing. They want to know typical outcomes for similarly situated defendants. Not all the answers can be found solely in the data. Many times, it requires a trip to the courthouse to pull all the cases on the list, just as Judge Gerst had to do. An effective analysis depends on identifying the myriad of factors in each case so they can be compared. An analysis of a leaving the scene of a fatal accident may depend on whether it was a car or a pedestrian, whether the pedestrian shared fault, whether the driver was intoxicated, whether the driver had prior offenses, whether the driver eventually self-reported, and so on.10 To compare those factors across cases requires considerable time for which defendants need to be willing to pay.
• Which defense attorneys have the most experience with a particular type of charge, or with a particular prosecutor or judge? Conclusion Legal investigators are retained by criminal defense attorneys to conduct the fact-gathering aspects of a case. Since most cases are eventually pled out, an important part of the fact-gathering is how this defendant’s case is similar or dissimilar to other cases. Legal investigators who are willing to invest time and effort to acquire their local criminal case databases can add this invaluable service to their attorney-clients. 1
State of Arizona v. Thomas J. O’Brien, No. CR 2003016197 (Ariz. Super. Ct. Maricopa County: 2004). O’Brien was charged under Ariz. Rev. Stat. Anno. § 28-661 (2003). 2
One interesting option is to let the defendant’s family pull the case files. R3 Investigations provides a list of cases from its database and then family members are assigned to go the court and make copies of documents that describe underlying facts. It not only is cheaper for the families, but they quickly become educated about the factors that are important and the nuances involved in the sentencing decision. Just as importantly, they feel like they are doing something to help their loved one. This kind of client relations is invaluable.
E.J. Montini. Judge Hands Down a Harsh Sentence... On Columnists, The Arizona Republic, March 28, 2004, at B10.
In addition to the proportionality analysis in sentencing, R3 Investigations has been able to offer specialized research on a variety of questions:
5 Gerst. Fairness and Public Confidence in Sentencing. Ibid. at 26.
• How do sentences compare between male and female? • How do charging patterns compare by race? • Have penalties become more (or less) harsh since the implementation of some new prosecution policy or since a change in state laws? • How do sentences compare when defendants take pleas on a particular charge compared with going to trial? • How do sentences compare between certain judges? 10
3 Hon. Stephen Gerst. Fairness and Public Confidence in Sentencing - A Novel Approach. Judges’ Journal. American Bar Association. Winter 2009. at 23-26. 4
Hon. Stephen Gerst. Comparative Proportionality Analysis: Feasibility and Usefulness in Sentencing. Phoenix Law Review. Spring 2008, at 59-119.
6 Rich Robertson, Maricopa Courts Deny Access to Valuable
Sentencing Data, The Defender (a quarterly publication of Arizona Attorneys for Criminal Justice), Fall 2007, at 1213.
7 Ariz. Rev. Stat. § 39-121.01(B). “All officers and public bodies shall maintain all records...reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from the state or any political subdivision of the state.” 8 Arizona
Revised Statutes § 39-121 et seq. is the state’s public records law, governing the executive branch. the legal investigator
Judicial records are governed under Arizona Supreme Court Rule 123. Public policy is consistent between the Statute and the Rule. As stated in Rule 123(c)(1), says, “Historically, this state has always favored open government and an informed citizenry. In that tradition, the records in all courts and administrative offices of the Judicial Department of the State of Arizona are presumed to be open to any member of the public for inspection or to obtain copies....” 9
“We ... hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.” Lake v. City of Phoenix. Az. Sup. Crt. 218 P.3d 1004-2009 (2009).
Exhibit A is an example of a comparative analysis of leaving the scene of an accident analysis is attached. — Rich Robertson, CLI, operates R3 Investigations in Mesa, AZ, specializing in criminal defense. He has been a legal investigator for 12 years and, before that, was a newspaper and television investigative reporter and editor for 28 years. He is the editor of The Legal Investigator. He can be reached at 480-726-3961 or email@example.com. His website is www. r3investigations.com.
criminal focus by Rich Robertson, CLI
the legal investigator
by Scott Harrell
Conducting surveillance illegally is just not worth the consequences (i.e. losing your business, your license, your reputation). If for some reason you are placed in a situation that may involve trespassing, entrapment or some other violation, think before you commit.
The laws pertaining to surveillance can definitely be a legal minefield for private investigators. Our licensing does not bestow any type of extra powers and we are bound by the very same rules relevant to criminal laws as any other private citizen. Before you conduct physical or electronic surveillance you should be competent and well trained in the technical and legal aspects of surveillance. If for any reason you have violated a subject’s rights and are indeed found negligent in a court of law, not only can you or your agency be held liable, but the client hiring you or your agency can also be held liable for damages. Conducting surveillance illegally is just not worth the consequences (i.e. losing your business, your license, your reputation). If for some reason you are placed in a situation that may involve trespassing, entrapment or some other violation, think before you commit.
Trespassing Trespassing is simply the act of entering private property without the consent of the land owner. Trespassing can be a very complicated subject, mostly because state laws vary so extensively. As an investigator, the key thing to remember in gathering your evidence, whether photographically or otherwise, is that if you violate trespassing laws while gathering your evidence then all that evidence is going to be inadmissible in a court of law. Yes, there are states that still allow an investigator to go on a third party’s property with consent, such as a neighbor. Again you should thoroughly research your state’s laws on trespassing prior to setting up in the neighbor’s yard.
Some of the possible risks that may arise from physical surveillance are traffic violations, trespassing, roping and entrapment, invasion of privacy, and stalking.
A stationary technical surveillance platform should never be placed on the subject’s private property. Nor should an investigator enter posted private property or attempt to utilize a right of way to access a better vantage point of the subject’s property. Right of ways are legal property agreements between two parties and the fact that a right of way exists on the subject’s property does not make it a public thoroughfare.
Roping and Entrapment
In all instances, you should obey the law to the best of your capacity and traffic violations are no different. Seldom are we ever working a case that is so important as to jeopardize the general public due to careless or reckless driving and the flagrant disregard for traffic laws. If you have an accident because of negligent acts committed during an investigation your client will be held liable as well; this is not good for positive word of mouth advertising.
Roping is the obtaining of information from another person by means of legal deception. For instance, a private investigator acting drunk in a lounge in order to gain the confidence of a drinking buddy is “roping that person.” Roping, however, can also lead into nefarious acts such as dropping a bunch of loose change on a subject’s porch in order to videotape him bending over to pick the coins up during a disability assignment. the legal investigator
Roping is, in many instances, very obvious to a judge and jury and should never be attempted as it could cause your client exorbitant amounts of money in civil suit damages. Roping is synonymous with pretexting and the investigator should be mindful that the things he does or says may very well come out in a courtroom. Entrapment is creating a condition in which the target of an investigation is required to perform a certain action. Letting the air out of a target’s tires in order to obtain photographs of his ability to change a tire is entrapment because the subject is required to change the tire in order to use his vehicle. In the instance of an undercover agent investigating employee theft, the investigator must be careful not to do or say anything that entices or encourages the subject(s) to do anything illegal. His job is to detect theft not to cause it; he may assist but never insist. In order to obtain evidence by means of pretending to be an accomplice in this situation you must be absolutely sure of the following precepts: 1. The plan and criminal intent must originate in the suspect’s own mind; 2. The target must commit all of the essential elements of the crime. Invasion of Privacy “Invasion of Privacy” deals with the area of expected privacy by an individual. Any evidence obtained in violation of an individual’s privacy will not be admissible in a court of law. Privacy is “the condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions.” (Black’s Law Dictionary.) Therefore, surveillance in a public place is not private and there is no reasonable expectation of privacy in a public place. Determining whether the law protects your privacy requires knowledge of the law and it is often a question of what society deems is reasonable. Surveillance in areas such as bathrooms, locker rooms, changing/dressing rooms, bedrooms and other areas where a person should expect a high level of personal privacy is off limits. Stalking Stalking is defined as “a term used to describe unwanted attention by individuals (and sometimes groups of people) to others. Stalking behaviors are related to harassment and intimidation. It may also be used to refer to criminal offenses or civil wrongs that include conduct summer 2012
which some people consider to be stalking, such as those described in law as “harassment” or similar terms. Over the past decade, most states have passed legislation prohibiting stalking. Investigators conducting surveillance must be aware of their own state’s stalking statutes and take the necessary steps in their surveillance activities to prevent themselves from being on the wrong side of a lawsuit. One example that comes to my mind where surveillance may be alleged as stalking is the surveillance tactic of “rough shadowing.” Rough shadowing is a tactic used by investigators who are “public,” overzealous, or outright blatant in their surveillance activities such as parking outside the subject’s home in full view of neighbors, following subjects into places of business, or publicly videotaping subjects with no effort to conceal their motives or actions. This method of surveillance exposes the subject to public disgrace, ridicule, contempt or public embarrassment and may potentially result in a lawsuit. Remember Schultz v. Frankfort M. Accident & P.G. Insurance Company, 139 N.W. 386 (1913). The Wisconsin Supreme Court ruled in favor of the plaintiff where the plaintiff had filed suit that he was being investigated through the use of rough shadowing. The plaintiff’s primary complaint was he could not perform his daily duties in a natural manner. Bottom line, surveillance is to be covert and should never be openly and blatantly performed and never cause the subject to suffer any type of substantial emotional distress. When you have a moment check out your state’s statues regarding stalking: http://www.esia.net/State_Stalking_ Laws.htm. This article is a small excerpt from Serious Surveillance: Obtaining Evidence that Stands up in Courts, an online continuing education course for private investigators. — L. Scott Harrell, the founder of CompassPoint Investigations in Pensacola, FL, has been a professional investigator for over 17 years. He began a career in the intelligence and investigations tradecraft when selected to work with several intelligence units while serving his country in the United States Navy. Scott has worked with Fortune 500 companies, served as a senior executive manager at IRBsearch, and developed two very successful investigation agencies located in Texas, Louisiana and in Florida. Scott is a noted speaker, mentor and educator. For more information, please visit http:// compasspointpi.com. Article republished courtesy of Pursuit Magazine: http:// PursuitMag.com. 15
MESSAGE FROM THE
by Terry R. Cox, CLI
Thank You to each of you for electing me for a second term as your National Director. I only pledge to do the job as I have in the past and always have the best interest of NALI and each of you in mind.
NATIONAL DIRECTOR Well, it’s Summer and it’s hot here in the Mid-South. Your NALI colleagues had a great time in Chicago for the NALI 45th Anniversary Conference and it is now history. It was filled with excellent information for the attendees. Each of the presenters were captivating. The Crowne Plaza and its staff were most helpful and attended to every detail. Our cocktail party on Thursday evening was grand and our Annual dinner on Friday evening was elegant and enjoyable. Some of the Highlights: Officers for the coming year were installed. “Thanks” to Al Petritus, CLI for conducting the installation ceremonies. We welcome, Harriet Gold RD III and Dave Johnson RD IV as our newest Executive Council members. Rich Robertson earned his Certified Legal Investigator (CLI) designation — “Congratulations Rich!!!” Kitty Hailey and Jennifer Brown were awarded the TLI Publishers Awards for articles they wrote this year. “Congratulations Ladies!!” We recognized our thirteen 2012 Legacy members — Joe Laski was in attendance and brought his son, John.
We presented $1500 Scholarships to Rich Robertson’s daughter and Harriet Gold’s son. “Congratulations” to both of these fine young people. We raised $3595 for the Scholarship fund with our auction. “Thanks” to all for your generosity. A “Special Thanks” to Michael Petritis (Al’s son) a world class DJ who provided dinner music and some pretty cool sound effects throughout the evening. “Thanks Michael” “Thanks” to each member who came early to assist in the CLI testing. This could not happen without the valuable contribution of your time and expertise. A very special “Thanks” to Sgt. Keyser, Sgt. Solis, Sgt. Sanchez and Lance Cpl. Robertson of the 2nd Battalion - 24th Marines who honored us by posting the colors of our country in our opening ceremonies on Friday morning. I took some time visiting with these four young men before we began. They were so polite, respectful and interesting to speak to. Each of them has seen combat service and are now serving with this Honor Guard unit. These were four “Squared Away” United States Marines and made me personally proud to share some time with them. These young men do the Marines and our country “Proud.” “Thank You Gentlemen.” Our Management Team at Julian Vail - Larthe legal investigator
ry, Val, and Karen, were on site and took care of all the details that made this event truly outstanding. “Thanks Team NALI.” “Special Thanks” to Susan Carlson and Rikki Glen for arranging a stellar lineup of speakers and being on hand to introduce each of them. Denver was selected as the location of the 2014 Annual Conference. The proposed Amendment to Article III Section 2 of the NALI Constitution was not passed by the required super majority of 66 2/3%. However, it was the narrowest of margins (80 to 46). A decision to bring it back up or not will be made at a later date. This is not a negative thing. It is obvious that a “clear majority” of the voters support this amendment. NALI will continue to move forward, grow and even flourish in its present position. The 45th Mid-Winter will be held February 14 - 16, 2013 at The Peabody Hotel in Memphis, Tennessee. Come join us there in the Home of the Delta Blues, Birthplace of Rock ‘n Roll, World Class Bar-B-Que, Graceland, “The Ducks” and more. It is Valentine’s Weekend, so bring your valentine and celebrate together in Memphis. You will just love it. More information to come soon.
Note from CLI Committee Chair David Luther: I am excited to announce that the CLI Committee offered a first of its kind, one hour presentation entitled: “De-Mystifying the CLI Exam” at the Orlando Mid-Winter. This presentation was offered to those who are considering taking the CLI examination but have reservations. The presentation covered the four sections of the CLI Examination. The goal wass for the attendee to clearly understand the requirements and format of each section of the test. This was not a “Prep Course” but discussed the general knowledge areas important to successfully completing the testing process. If you have ever considered taking the CLI Examination but had concerns about study materials, test difficulty, or any other questions, consider this presentation. You will get valuable information and direct answers to your many questions. Contact me for more information.
“Thank You” to our Executive Council who give of their time and resources to make sure we conduct the business of NALI in a professional and transparent manner. My personal “Thanks” to our publication staff for continuing to bring us a well produced periodical. Finally, “Thank You” to each of you for electing me for a second term as your National Director. I only pledge to do the job as I have in the past and always have the best interest of NALI and each of you in mind. “Be Proud” to be a member of NALI. “Thank You” all for your continued confidence and support. See you in Memphis. Who knows... you might just run into Elvis.
Contact Chairperson David Luther, CLI for information on the Certified Legal Investigator Program firstname.lastname@example.org
“Keeping You Informed...” summer 2012
excerpts from member authors
by Dean Beers, CLI, CCDI
There is a duty of the legal investigator to report all of the investigative findings to the attorney-client, which must also be understood by the attorney-client and witnesses. However, it may not be appropriate to share the information with the attorneyclient, and sharing information between witnesses is both improper and potentially damaging to a case.
The Legal Investigator’s Relationship With Families At the time of a lawsuit, the injured person or survivors of the decedent are still experiencing deep emotions from the trauma. When meeting with the victim or family, there will be a feel for their emotions and animosity, memory and recollection, honesty and reluctance. These meetings may be in the presence of their attorney-client, or just between the legal investigator and the victim and family. They will look to the attorney-client for advocacy and to the legal investigator they will look for answers — some that the legal investigator will not be able to give, such as when will they feel better again. The first 18 years of this author’s career was as a legal investigator and then transitioning to work at the Larimer County Medical Examiner’s Office in Colorado, part-time from January 2003 and full-time from November 2005 until returning to the private sector in September of 2008. This author’s experience at the medical examiners’ office focused on two things — working the case and maintaining positive contact and communication with the families. The communication skills that
were honed focused on having a positive relationship with the families through their life changing experience. It is strongly encouraged that attorney-clients call the legal investigator as soon as they have scheduled an appointment with a attorneyclient so that they can sit in. It is important to establish both a business and personal relationship with the attorney-client. Assuring and maintaining attorney-client privilege is started with the simple presentation of business cards, including for the attorneyclient if necessary. Developing a relationship on a more personal level with the attorneyclient is as simple as accepting attorney-clients of all kinds and being sympathetic to their situation. This author always sympathized with the family — whether it was a gang member that was killed, the parents that lost a newborn baby, or the family that had not seen their transient brother in 20 years. It was only possible to tell the family that their pain, grief, sorrow and anger, even relief were understood — but it was not possible to the legal investigator
empathize with how they were feeling. Establishing the business relationship and being on a personal level with the attorney-client sets the tone and will allow for the free flow of questions and answers. It develops confidence in the attorney-client of the existing relationship with the attorney-client and will also come to share with them. In a short time the legal investigator will have developed a rapport, leading into asking very personal questions and reliving the trauma with them. This is the time that the legal investigator will gain the knowledge and information needed. This is also the time that the legal investigator will share with them the commitment to gather the facts, knowledge and information needed to assist the attorney-client with advocating for them. It is important that they realize that as the investigator, the role and duty is to be an impartial collector of facts and information. This is not the time to pass judgment, negative or positive, on the family, victim or even the opposition. Be supportive and comforting, and never be dishonest or even embellish this role, the case or the information reported. Maintaining case discipline is very important.
The attorney-clients come from all walks of life â€” economic status, blue collar and white collar, races, color, religion and sexes... and the legal investigator does not care. They do care about the attorney-client, but task and role is not to judge. Likewise, legal investigators do not care about the type of case. They do care about the merits and facts of the case. The chosen duties of this profession summer 2012
are to Prepare, Inquire, Analyze, Document, and Report. These are, in part, what defines a legal investigator as a professional. They must also follow the rules and ethics of the attorney-client that has retained them. Keep in mind that when giving a business card to the attorney-client and witnesses, the legal investigator is also representing the attorney-client and law firm. During the course of any communications with the attorney-client and witnesses it is important to maintain their confidentiality and trust. There is a duty of the legal investigator to report all of the investigative findings to the attorney-client, which must also be understood by the attorney-client and witnesses. However, it may not be appropriate to share the information with the attorney-client, and sharing information between witnesses is both improper and potentially damaging to a case. Imagine, for example, a key witness being cross examined at deposition or trial, and unexpectedly disclosing that aspects of their testimony is based upon information from the legal investigator or another witness that the legal investigator had improperly disclosed information to. How and with what frequency contact is maintained with the attorney-client depends on many factors. These include distance, attorney-client preferences and contact, case needs and the needs of the attorney-client. The legal investigatorâ€™s initial contact with them should instill the confidence that the right person for them and the job is at hand, and that their best interests are the primary mission. The legal investigator may find themselves holding their hand and assisting them through some very tough emotional times. Making promises or predictions is not part of the legal investigatorâ€™s job. Answer questions honestly and intelligently, keeping in mind that less is often more. It is better to give no answers than false hope. It is also better to be honest at the worst of times than not, which can also lead to creating false hope. The victims and families often have information that they have not shared with law enforcement or even their attorney-client. This can be deliberate, such as shame or embarrassment; or unintentional, such as memory recall or making a connection between previously unrelated events. The legal investigator and the attorney-client have been through hearings and trials, meetings and strategy sessions. The legal investigator has probably devoted a significant amount of time to the case and are nearing the fruits (ripened or spoiled) of the devoted time and 19
excerpts from member authors by Dean Beers, CLI, CCDI skills. Having been available at all times the attorneyclient needed an ear, a hand, a heart and a smile. It is now time to prepare for the closure of the investigator-client relationship. The chances are great that they experienced the trauma or the loss of a loved one without closure. Share the feelings the attorney-client experiences — empathy can be sadness or joyous. It is possible that a quasi-friendship has been developed, possibly proportional to the elapsed time of the investigative and litigation process. How should the legal investigator handle the close of the case with the attorney-client? This is not the same as the relationship with the attorneyclient — the legal investigator will continue working with them. It would not be unusual for the legal investigator to have seen and helped the attorney-client through the worst times and brought them closure to their case. Now that it is over, does it just stop? At some point, yes. This might be similar to the first meeting — with or without the attorney-client, in their home or agency office. This is the last opportunity for the attorney-client to ask questions and know that everyone did the best they could, regardless of the outcome of the case. In a month, year or even a decade from now the attorney-client will reflect on their case, much as the legal investigator often does, and everyone reflects backwards — from the last communication, through the case to the beginning. At the medical examiner’s office this author made every effort to keep in contact with the family. Judgment was never passed, assumptions never made and no person was treated differently or unfairly. Being a death investigator is a truly thankless job, one that was done passionately. The final communication — when a family member offered their thanks for having a tough job — was the best part of the job. In the private sector the final obligation to the attorney-client is to bring closure to the relationship that has been developed and having supported them through. As with the initial meeting, this may be with or without the attorney-client. In closing the death investigation the legal investigator’s communication was always open-ended, leaving the families with the knowledge that if they ever needed to contact me they were always welcome to. That important human touch has been extended to this author’s business practices. Often though, it is simply good-bye. Excerpt from “Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases” by Dean 20
A. Beers, CLI and published by CRC Press February 2011. — Dean A. Beers, CLI, CCDI is an expert in criminal defense homicide and civil equivocal death investigations. He is certified in Medicolegal Death Investigations and is a Colorado POST-certified instructor, and has served as a forensic autopsy assistant. He has lectured extensively and authored multiple articles, peer-reviewed white papers, and provided expert testimony on Protocols of Private Investigation, and Forensic Investigation of Injury Pattern Analysis, as well as consulted as a subject matter expert in Equivocal Death Analysis, Injury Causation, Time of Death, Crime Scene Analysis, Investigative Protocol, Evidence Protocol, and Forensic Photography. He is the author of Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases, released by CRC Press in February 2011, and previously Professional Investigations: Individual Locates, Backgrounds and Assets & Liabilities. He founded his agency in 1987 and operates it with his wife Karen S. Beers, BSW, CCDI, with whom he codeveloped Death Investigation for Private Investigators online continuing education for 14 states.
Kelly Riddle San Antonio, TX Member since 2009
NALI thanks the following patrons for their Gold Level sponsorship: • Burt Hodge, State Information Bureau, Inc. the legal investigator
In-House Investigators! Law firm with in-house investigative unit hiring licensed private investigators and investigators with substantial public sector experience. Heavy emphasis on information gathering, evaluation, research and analysis (including interviewing witnesses, document/data analysis, computer research, and asset/ background checks). Please send resume, cover letter and references to Recruiting Department, P.O. Box 1449, Dallas, Texas 75313.
Save The Date NALI MidWinter February 14-16, 2013 The Peabody Hotel Memphis, TN
More Info to Come!
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CALGARY ALBERTA summer 2012
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TORONTO ONTARIO 21
news / updates
SUMMER 2012 Patricia Shaughnessy, owner of Investigative Resources Service, Phoenix, AZ., received the “Sustaining Award of Excellence for Investigation” from the Volunteer Lawyers Program, which is a civil law project of the Maricopa County Bar Association and Community Legal Services. The award recognizes Pat’s pro bono contributions to the program over the last 23 years on behalf of indigent clients who are embroiled in non-criminal legal matters. Member Richard “Rich” Robertson, owner of R3 Investigations, in Mesa, AZ., recently earned the prestigious Certified Legal Investigator (CLI) designation. To achieve the certification, he underwent a rigorous written and oral test which was administered on June 6, 2012 in Chicago, Illinois. There are only 79 CLI’s in the world, thus admitting Robertson to an elite group of board certified investigators. Robertson has been a licensed Private Investigator since 2000, focused primarily on criminal defense, including death penalty cases. Previously, he was an investigative reporter and editor for Arizona 22
newspapers and television for 28 years. Robertson is also known in the criminal justice arena for his unique analysis of criminal case trends. The data collected by Robertson is used by lawyers to evaluate sentencing and plea arrangements. Author Laura Jerpi, writing for South Source, a publication of South University, mentioned NALI’s CLI designation in her article, “Working as a Private Investigator.” The newest members of the NALI Executive Council are Harriet Gold, who was elected to the post of Regional Director for Region 3, and Dave Johnson who was elected to Regional Director for Region 4. They replace Mark Murnan, CLI and Ron Watkins, Jr. Many thanks to Mark and Ron for their years of dedicated service to the association. Member Sean Mulholland was the featured guest on the June podcast of the American Private Investigator, a monthly show produced by member Paul Jaeb. Long time member Kitty Hailey, CLI, was published in the August 2012 issue of PI Magazine.
“Your Proactive Voice” from the State Capitol to the Nation’s Capitol Over 100 years of proven legislative leadership experience Singularly focused on the legislative needs of the Investigative and Security Professions Be part of a forward thinking and proactive movement to protect your profession Join ISPLA now
“Educate to Legislate” www.ispla.org
Phone: 734-428-9663 235 N. Pine Street, Lansing, MI 48933
National Association of Legal Investigators Send Us Your NALI Member News! Please send news regarding NALI members to: email@example.com or firstname.lastname@example.org 235 North Pine Street, Lansing, MI 48933 866.520.6254 • Fax: 517.372.1501 www.nalionline.org the legal investigator
the executive council III - Harriet Gold P.O. Box 922996 Norcross, GA 30010 770.441.8913 email@example.com
National Director Terry R. Cox, CLI #5 CR 7026 Booneville, MS 38829 662.720.0063 firstname.lastname@example.org Asst. National Director David Luther, CLI 21175 Tomball Pkwy. #325 Houston, TX 77070 281.261.5777 email@example.com National Secretary Troy Fleming 30 Franklin Rd., S.W. Suite 700 Roanoke, VA 24011 540.444.4010 firstname.lastname@example.org Regional Directors I - John Hoda, CLI 333 Mamaroneck Avenue Unit 395 White Plains, NY 10605 888.222.6096 email@example.com II - Don C. Johnson, CLI P.O. Box 2603 Bloomington, IN 47402 812.334.8857 firstname.lastname@example.org
IV - Dave Johnson 555 N. Carancahua Suite 1400 Corpus Christi, TX 78401 361.651.1000 email@example.com V - Rikki Glen, CLI 131 W. Wilson St. Suite 1200 Madison, WI 53703 608.294.1257 firstname.lastname@example.org VI - Jayne McElfresh 810 W. Bethany Home Rd., Suite 102 Phoenix, AZ 85013 602.840.7770 email@example.com VII - Sheila J. Klopper, C.C.D.I. PO Box 28038 San Jose, CA 95159 408.246.8982 firstname.lastname@example.org Julian Vail, LLC 235 North Pine Street Lansing, Michigan 48933 866.520.6254 (NALI)
association management Julian Vail, LLC 235 North Pine Street Lansing, Michigan 48933 866.520.6254 (NALI)
By the Numbers
Percentage of inmates who reported = sexual victimization in 20071
Number of homicides in Texas = prisons from 2000-20082
Percentage of youth who = reported sexual misconduct by female staff in 20113
Number of prisons and jails in the U.S.4 =
cost to taxpayers to billion = Annual incarcerate citizens 5
1 Bureau of Justice Statistics 2 Texas Department of Criminal Justice 3 National Survey of Youth in Custody 2011 4 Commission on Safety and Abuse in America’s Prisons 5 Commission on Safety and Abuse in America’s Prisons
NALI thanks the following PATRONS for their Silver Level sponsorship: • Dean Beers, Forensic Investigators of Colorado • Reggie Montgomery, R.J. Montgomery & Assoc. • Gordon Bulla, Gordon W. Bulla & Assoc. • Donald Shawver, Shawver & Assoc. • David Luther, Luther Investigations, L.L.C. • Jennifer Brown, J. Brown Legal Investigations • Neeta McClintock, A Closer Look Investigations, LLC • Terry Cox, The Lonewolf Group • Jimmie and Rosemarie Mesis, PI Magazine, Excerion LLC • Ron Watkins, Watkins Investigations 23
Published on Aug 9, 2012
The Legal Investigator is an official publication of the National Association of Legal Investigators, Inc. Design, desktop publishing, and i...