Presentation on theme: "Criminal Defense Investigation:"— Presentation transcript:
1Criminal Defense Investigation: BRIAN McGUINNESS – Private InvestigatorCertified Legal InvestigatorCertified Fraud ExaminerMcGUINNESS & ASSOCIATESMiami, FLIm a former dade County Public Defender InvestigatorStarted agency in 1985 Bob Josefsberg gave me a brea US v Waldron 11 ct Fed Bank Fraud Indictment – 5 Ct Perjury Bruce Rogow Mr Motion
2Speaker Background BA Psychology – University of Connecticut Two Years Graduate School toward MSW degree Masters in Social Work – Barry UniversityRehabilitation Counselor – State of Florida
3Speaker BackgroundCriminal Defense Investigator Miami Dade County Public Defender Office1979 Nova University Law School (leave of absence)1985- Present with McGuinness & AssociatesPrivate Investigations
5DEFENSE ATTORNEY PERSPECTIVE QUALITY CONTROLOBLIGATION TO CLIENTPRESUMPTION OF INNOCENCEUSE of QUALIFIED DEFENSE INVESTIGATOR & EXPERTSDef Atty responsible for using best defense investigator and experts
6Criminal Defense Investigator: RESPONSIBLE FOR:GATHERING THE FACTSREPORTING THEM WITHOUT BIAS TO ATTORNEYREPRESENTING THE CLIENT
7Declarations for ex in federal cases phrasing including under penalty o perjury – go over w/ atty early on in case
9Criminal Defense Investigator Perspective ProfessionalBusiness LikeMethodicalThoroughEthical is a given
10Defense Attorney Perspective CONSIDERATIONS when retaining a qualifiedCriminal defense investigator
11Choice of Defense Investigator Should be Case SpecificAssess strengths & weaknesses
12Choice of Defense Investigator Issue re: are men more able to go into tough neighborhoods to conduct investigationsIssue re: race of investigator as determining factor for selectionIssue re: are women better listeners?These are issues that should be addressedIs your investigator your golf buddy or the best choice for the job at hand?
13Choice of Defense Investigator Ask about relevant experienceAsk about backgroundAsk what other criminal defense lawyers have used your servicesAsk about approach to the case at handIF YOU HAVE A COMPETENT, QUALIFIED INVESTIGATOR, HE OR SHE WILL BE QUITE WILLING TO ANSWER
15Investigative Skill Set PrimaryInterviewing Skills / TechniquesAbility to Locate WitnessesResearch Backgrounds of witnesses, victims & experts including Social MediaDatabase Search StrategiesPublic Record Knowledge
16Investigative Skill Set SecondaryPhotography: Digital / 35mmVideography
17Build Investigative Skill Set INTERVIEW TECHNIQUES – A Critical SkillFINGERPRINTSDNA EVIDENCETRACE EVIDENCE: Hair, Fiber, Tool MarkBLOOD SPATTERCROSS-CONTAMINATIONCOMPUTER FORENSICS - Tracing
18Build Investigative Skill Set Attend Investigative / Educational SeminarsRead: Forensic / Investigative magazines / Bar Journal ArticlesLegal Investigator NALIForensic Magazine
19Build Investigative Skill Set PI MagazineNACDL The ChampionCriminal Defense Certification Programs – Consider training and certification
21HOW TO DIFFERENTIATE YOURSELF FROM THE PACK Take a CREATIVE approach to each caseUse CREATIVITY if you are gifted in this area OR develop it if you are NOTOutlaws Motorcycle Gang RICO case – late 1980’s Creative Approach to witnesses: biker bars and khaki don’t mix / Needed to establish some credibility w/ biker culture / grew hair longer / changed the khakis for blue jeans – black T-Shirt Creative approach to witness location: Find “Cindy” from CincinnatiWell what do you know about her “hell you’re the investigator “ no other info provided other than she was a “titty dancer” Located via other dancers mothers old address book Other problems locate Big Tina / Little Tina ? Going into biker bars w/ active Outlaw (escort-bodyguard_
22HOW TO DIFFERENTIATE YOURSELF FROM THE PACK If you are an investigator that simply awaits instruction, you are destined to have a mediocre careerdefendants are not going to get the proper representation that they deserve
23HOW TO DIFFERENTIATE YOURSELF FROM THE PACK EDUCATIONIf you truly consider yourself a “professional” investigator then you have to maintain a Continuing Education programIf you want to get an edge on the “competition” then take it upon yourself to constantly educate yourself in a cross-disciplinary method
24HOW TO DIFFERENTIATE YOURSELF FROM THE PACK Working on a bombing case/ Get up to speed:Pick up a copy of the Anarchist’s HandbookGet online re: IEDs – Improvised Explosive DevicesContact a colleague or contact w/ ATF experience
25HOW TO DIFFERENTIATE YOURSELF FROM THE PACK READ WHAT LAWYERS ARE READINGBAR JOURNAL ARTICLES / BOOKSWORKING A CAPITAL DEATH CASE – BE FAMILIAR W/ DEATH ROW ISSUES / LAW
26HOW TO DIFFERENTIATE YOURSELF FROM THE PACK Be familiar with hot button defense issuesDNA Exonerations – Barry Scheck, Esq. – The Innocence Project
27HOW TO DIFFERENTIATE YOURSELF FROM THE PACK ANTICIPATE CASE SPECIFIC ISSUESFOCUS ON ISSUES - One at a TimeCOERCED CONFESSION – Read everything you can on the issueSELF DEFENSE – Know the legal standardBe prepared to discussw/ Defense CounselIn any criminal case even if you believe you know the elements go to the statute and review for ex. Aggravated Assault
28HOW TO DIFFERENTIATE YOURSELF FROM THE PACK Be a “Utility” player - Excel atInterviewing / Obtaining StatementsConducting backgrounds / developingimpeachment material for attorneyCost effective witness location
29How to Differentiate yourself from the Pack Photography / VideographyHave the Necessary EquipmentBeing a Skilled Witness in CourtDemonstrative Evidence Skills – Timelines etc.
30How to Differentiate yourself from the Pack Review / Purchase :State Rules of Criminal ProcedureFederal Rules of Criminal ProcedureBe familiar w/ legal terminologyBe familiar w/ basic motions in criminal defensecases: Brady Motions / Motions in Limine
31Creativity Role of pretext interviews Use of atypical police and public records -Police Incident Reports can be goldDeveloping information from likeminded or defendant sympathizersThe “Doorknock” approach – a vanishing artPretext interviews in the Eric Rudolph case used frequently by myself and one of the two other investigators working for meDealing w/ white supremacists, KKK, cross-over militant anti-abortion typesUse of throw away cell telphonesAtypical police records – always get Incident reports ex of Boston PD case sex asslt victim 3 Baker ActsLike minded sympathizers – Interviews of clergy in NCDoorKnock ex of Boston PD case 3 trips to apt complex checking (routine) on witness reputationWhite Rose Banquet – annual national meeting of anti-abortion extremists – auction off for. Ex leather jacket an extremist used to firebomb an abortion clinicPretext interviews and extensive internet research – dozens of anti-abortion sitesPolice Incident Reports on sex asset victim in Jax-showed serious psychological problems 3 Baker Acts, racial slurs (client was black)ER Case: Sympathizers Church ministers, priests, set up network so ER would not be shot on site, help him surrender, cell phone or pager left for him w/note Interviewed various church ministerDOORKNOCK- Ann Goldbach Boston PD- interviewed neighbors, found Betty, learned drunk, lesbian, uncertain if would travel to NE, others supported alch abuse, distasteful to some investigators –approach Important
32BUILD AN INVESTIGATIVE LIBRARY There is so much to KNOW in the investigative fieldTo be a well rounded investigator means a well READ investigatorSpend the money, it will pay offPurchase books, subscribe to magazines, professional journalsReference Books – use as needed
33Building an Investigative Library Research online subjects such as blood spatter on search engines “Google”Check results against online Booksellers ex. Amazon.comReview – Online: Table of Contents, Index CritiquesCheck Library for book – review before buyContact professionals in the field for recommendations
36IRE.org Investigative Reporters & Editors 5th Edition of Handbook
37RECOMMENDED~READINGThe Investigative Reporters Handbook, Fourth Edition A Guide to Documents, Databases and TechniquesBy Brant Houston, Len Bruzzese and Steve WeinbergCheck
38RECOMMENDED READING:Advanced Forensic Criminal Defense Investigations Editor: Grace CastleCo-Author: Paul J. CiolinoLawyers and Judges Publishing
39A Manual of Private Investigation Techniques, Developing Sophisticated Investigative Business Skills to Meet Modern ChallengesWilliam F. Blake Publisher: Thomas 26 Chapters including: *Homicide & Questionable Death *Basic to Advanced Skip Tracing *The Art of the BackgroundRecently published, authored by members of IntellenetI wrote chapter entitiled “Basic to Advanced Skip Tracing”
40Advanced Private Investigation - A Manual of Advanced Investigative Skills for the Private InvestigatorWilliam F. Blake – Thomas PublishersCapital Defense InvestigationPolygraph ExaminationDefending the Criminally AccusedInternet ProfilingComputer Forensics
41Forensic Science: An Introduction to Scientific and Investigative Techniques Second Edition by Stuart H. James and John NordbyCRC PressChapter Honorable Mention:Techniques of DNA Analysis
42RECOMMENDED READINGDeath Investigator’s HandbookBy Louis N. Eliopulos8 1/2 x 11, softcover, photos, illus., 976 pp.
44Aug 12, 2013 Justice Dept. moves to cut down on minimum sentencing Important move will attenuate War on Drugs while wresting undue power from prosecutors' hands
45Justice Dept. moves to cut down on minimum sentencing Attorney General Eric Holder announced Monday that the Department of Justice (DOJ) aimed to overhaul federal minimum sentencing laws, particularly to help those facing low-level drug charges from facing prosecution and lengthy minimum jail-time.During an American Bar Association speech Monday, Holder plans to say: “Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities… However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it.”
46Justice Dept. moves to cut down on minimum sentencing The New York Times noted on Holder’s prepared remarks that he plans to detail the extent of the over-incarcertion rate and its roots in the War on Drugs. The A.G. will comment that while the American population has grown by about a third since 1980, its prison rate has increased nearly 800 percent.At the federal level, more than 219,000 inmates are currently behind bars — nearly half for drug-related crimes — and the prisons are operating at nearly 40 percent above their official capacity.
47Technology Impact on Criminal Cases Police mini-helicopter spy dronesFAA required Certificates of Authorization (COA) fordrones that fly above 400 ft.GPS-cellular phones – we all have had cases where it’s anissueGPS Tracking devices on vehicles : Police / Private
48Police Spy DronesThe Spy Drone that looks as if it has come direct from a Star Wars movie can:Travel at 57mphReach an altitude of 10,500 feet.
49SPY DRONES – New Police Technology PR New Wire - Source - ReutersMiami Dade police get all the best gadgets, just watch an episode of CSI Miami and you will see what I mean. Well it now looks as if this U.S. police force is about to take possession of these Spy Drones.These Honeywell Micro Air Vehicles has forward and downward looking cameras and can set 100 different way points.
50Technology Cellular telephone geo-location by police Digital records can hurt and help the defenseBar code readers in parking lotsManual car tag tabulation at airportsSunPass / EasyPass records: time and location of exits
51TECHNOLOGYWearing a wire –from actual metal wire to fabric weaves (wireless) that are 87% lighterand 26 times stronger than cooper wireVideo Surveillance – security cameras, license plate scanners – Boston Marathon Bombers captured on videoTLO New license plate tracking searchAbraxas private contractor championing pubic private surveillance camera usuage
52"Wearing a Wire" Becomes Obsolete in Real Life. Will Hollywood Be Next? Everybody knows that wire tapping is an extremely useful tool for police agencies around the world. Getting a witness or an undercover agent to wear a wire on a meeting with a crime boss is something else.It's very risky for the cop and very easy for the bad guys to find a wire stuck to the body with duct tape. But a NASA sponsored technology is about to change the famous Hollywood quote to "wearing a wireless."
53NEW: Wearing a Wireless Note embedded conductive strands
54Wearing a WireThe new technology is called “AmberStrand” and it's a spool metal wiring.AmerStrand is a trademark of Syscom Technology Inc. sponsored by NASA, it's made of conductive fibers forming a web-like pattern, which are more lightweight and flexible
55OLD: Wearing a WireMetal wire connected to battery operated recording device