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 BRIAN McGUINNESS – Private Investigator Certified Legal Investigator Certified Fraud Examiner McGUINNESS & ASSOCIATES  Miami, FL.

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Presentation on theme: " BRIAN McGUINNESS – Private Investigator Certified Legal Investigator Certified Fraud Examiner McGUINNESS & ASSOCIATES  Miami, FL."— Presentation transcript:

1  BRIAN McGUINNESS – Private Investigator Certified Legal Investigator Certified Fraud Examiner McGUINNESS & ASSOCIATES  Miami, FL

2  BA Psychology – University of Connecticut  Two Years Graduate School toward MSW degree Masters in Social Work – Barry University  Rehabilitation Counselor – State of Florida

3  Criminal Defense Investigator Miami Dade County Public Defender Office  1979 Nova University Law School (leave of absence)  Present with McGuinness & Associates Private Investigations

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5  QUALITY CONTROL  OBLIGATION TO CLIENT  PRESUMPTION OF INNOCENCE  USE of QUALIFIED DEFENSE INVESTIGATOR & EXPERTS

6  RESPONSIBLE FOR:  GATHERING THE FACTS  REPORTING THEM WITHOUT BIAS TO ATTORNEY REPRESENTING THE CLIENT

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9  Professional  Business Like  Methodical  Thorough

10  CONSIDERATIONS when retaining a qualified Criminal defense investigator

11  Should be Case Specific  Assess strengths & weaknesses

12  Issue re: are men more able to go into tough neighborhoods to conduct investigations  Issue re: race of investigator as determining factor for selection  Issue re: are women better listeners?  These are issues that should be addressed  Is your investigator your golf buddy or the best choice for the job at hand?

13  Ask about relevant experience  Ask about background  Ask what other criminal defense lawyers have used your services  Ask about approach to the case at hand  IF YOU HAVE A COMPETENT, QUALIFIED INVESTIGATOR, HE OR SHE WILL BE QUITE WILLING TO ANSWER

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15 Primary  Interviewing Skills / Techniques  Ability to Locate Witnesses  Research Backgrounds of witnesses, victims & experts including Social Media  Database Search Strategies  Public Record Knowledge

16 Secondary  Photography: Digital / 35mm  Videography

17  INTERVIEW TECHNIQUES – A Critical Skill  FINGERPRINTS  DNA EVIDENCE  TRACE EVIDENCE: Hair, Fiber, Tool Mark  BLOOD SPATTER  CROSS-CONTAMINATION  COMPUTER FORENSICS - Tracing

18  Attend Investigative / Educational Seminars  Read: Forensic / Investigative magazines / Bar Journal Articles  Legal Investigator NALI  Forensic Magazine

19  PI Magazine  NACDL The Champion  Criminal Defense Certification Programs – Consider training and certification

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21  Take a CREATIVE approach to each case  Use CREATIVITY if you are gifted in this area OR develop it if you are NOT

22 If you are an investigator that simply awaits instruction, you are destined to have a mediocre career defendants are not going to get the proper representation that they deserve

23 EDUCATION  If you truly consider yourself a “professional” investigator then you have to maintain a Continuing Education program  If you want to get an edge on the “competition” then take it upon yourself to constantly educate yourself in a cross- disciplinary method

24  Working on a bombing case/ Get up to speed:  Pick up a copy of the Anarchist’s Handbook  Get online re: IEDs – Improvised Explosive Devices  Contact a colleague or contact w/ ATF experience

25  READ WHAT LAWYERS ARE READING  BAR JOURNAL ARTICLES / BOOKS  WORKING A CAPITAL DEATH CASE – BE FAMILIAR W/ DEATH ROW ISSUES / LAW

26  Be familiar with hot button defense issues  DNA Exonerations – Barry Scheck, Esq. – The Innocence Project

27  ANTICIPATE CASE SPECIFIC ISSUES  FOCUS ON ISSUES - One at a Time  COERCED CONFESSION – Read everything you can on the issue  SELF DEFENSE – Know the legal standard Be prepared to discuss w/ Defense Counsel

28 Be a “Utility” player - Excel at  Interviewing / Obtaining Statements  Conducting backgrounds / developing impeachment material for attorney  Cost effective witness location

29  Photography / Videography  Have the Necessary Equipment  Being a Skilled Witness in Court  Demonstrative Evidence Skills – Timelines etc.

30 Review / Purchase : State Rules of Criminal Procedure Federal Rules of Criminal Procedure Be familiar w/ legal terminology Be familiar w/ basic motions in criminal defense cases: Brady Motions / Motions in Limine

31  Role of pretext interviews  Use of atypical police and public records - Police Incident Reports can be gold  Developing information from likeminded or defendant sympathizers  The “Doorknock” approach – a vanishing art

32  There is so much to KNOW in the investigative field  To be a well rounded investigator means a well READ investigator  Spend the money, it will pay off  Purchase books, subscribe to magazines, professional journals  Reference Books – use as needed

33  Research online subjects such as blood spatter on search engines “Google”  Check results against online Booksellers ex. Amazon.com  Review – Online: Table of Contents, Index Critiques  Check Library for book – review before buy  Contact professionals in the field for recommendations

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37 RECOMMENDED~READING The Investigative Reporters Handbook, Fourth Edition A Guide to Documents, Databases and Techniques By Brant Houston, Len Bruzzese and Steve Weinberg Check

38 RECOMMENDED READING : Advanced Forensic Criminal Defense Investigations Editor: Grace Castle Co-Author: Paul J. Ciolino Lawyers and Judges Publishing

39 William F. Blake Publisher: Thomas 26 Chapters including: * Homicide & Questionable Death * Basic to Advanced Skip Tracing * The Art of the Background

40  William F. Blake – Thomas Publishers  Capital Defense Investigation  Polygraph Examination  Defending the Criminally Accused  Internet Profiling  Computer Forensics

41  Forensic Science: An Introduction to Scientific and Investigative Techniques  Second Edition by Stuart H. James and John Nordby  CRC Press  Chapter Honorable Mention: Techniques of DNA Analysis

42  Death Investigator’s Handbook  By Louis N. Eliopulos  8 1/2 x 11, softcover, photos, illus., 976 pp.

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44 Important move will attenuate War on Drugs while wresting undue power from prosecutors' hands

45  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.”Bar Association criminal justice

46  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.noted  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.

47  Police mini-helicopter spy drones FAA required Certificates of Authorization (COA) for drones that fly above 400 ft.  GPS-cellular phones – we all have had cases where it’s an issue  GPS Tracking devices on vehicles : Police / Private

48  The Spy Drone that looks as if it has come direct from a Star Wars movie can:  Travel at 57mph  Reach an altitude of 10,500 feet.

49  PR New Wire - Source - ReutersReuters  Miami 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.

50  Cellular telephone geo-location by police  Digital records can hurt and help the defense  Bar code readers in parking lots  Manual car tag tabulation at airports  SunPass / EasyPass records: time and location of exits

51  Wearing a wire –from actual metal wire to fabric weaves (wireless) that are 87% lighter and 26 times stronger than cooper wire  Video Surveillance – security cameras, license plate scanners – Boston Marathon Bombers captured on video  TLO New license plate tracking search

52  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."

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54  The 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

55  Metal wire connected to battery operated recording device

56  Gait recognition technology is a biometric method -- that is, a unique biological or behavioral identification characteristic, such as a fingerprint or a face  2002 Georgia Tech  2009 U.S. Federal Defense Studies  2009 India

57  So far, Facial Recognition, despite its flaws as well, does possess one distinct Advantage over the existing Biometric Technologies-That is, it can scan subjects at a relatively far distance.  But if Gait Recognition proves to be a viable means of Verifying and/or Identifying individuals, it could even surpass Facial Recognition and Iris Recognition, or they could all possibly be used as a pretty extensive Multimodal Security Solution.

58  2013 Review of the literature  Some degree of accuracy from 500 ft.  Multiple corporate/scientific entities worldwide working on perfecting

59  Facial Recognition Software – price reductions, accessibility, use by LE  Gait Recognition Software – use at airports for known suspects/terrorists  Websites such as are potential sources of info  Keep abreast of new websites as sources of impeachment material

60  Budgets for investigation  Time Frame required  Juggling other cases – duty to defendant

61  Attorney and Defendant Contacts  Determine your role and extent of involvement in the case early on

62  Private cases : Budget proposals  Indigent cases : State vs. Federal  In Either Criminal Case: Manage your investigative objectives responsibly  Often difficult to anticipate how an investigation may open up  Don’t waste resources (budget) going down the wrong path

63  Meeting w/ defense attorney  Meeting w/ defendant  Review Discovery  Discuss evidence against client  Discuss initial theory of defense - subject to change  Request copies of ALL Discovery

64  Common Errors in Management of case by defense investigator  Under budgeted: establish a budget that accounts for unforeseen work and expenses  Time Commitment to case can be compromised by other cases that come in or existing cases that require more work  Inattention to investigation priorities: for ex. waste time/budget

65  State Court Appointed Cases  CJA Federal Appointed Cases  Investigator as a Team Member of Defense should voice his/her objections  Assist Defense Attorney in Motion language requesting additional budget  Contact other Criminal Defense Attorneys to see if they have motions that you can utilize or modify

66  Court: Eric Rudolph Defense Cost $4M  September 14,2005 | BIRMINGHAM, Ala. -- Legal fees to defend Eric Rudolph in a deadly Alabama abortion clinic blast and the Atlanta Olympics bombing cost taxpayers more than $4 million before he agreed to plead guilty in a deal that spared his life, court documents show.  One of Rudolph's attorneys said Tuesday the bill would have been far higher had the case gone to trial." That would have probably tripled the cost," said Bill Bowen, part of a team of at least nine lawyers who defended Rudolph.

67  Rudolph is serving four life terms after pleading guilty in the Birmingham clinic bombing, which killed a police officer in 1998, and the Olympics bombing, in which a woman died in  He also pleaded guilty in two other bombings that occurred in Atlanta in  U.S. Attorney Alice Martin said the government had not computed the total cost of prosecuting Rudolph, who was the subject of an intense manhunt following the Birmingham bombing in 1998 until May 2003, when he was captured in Murphy, N.C.

68  The cost of defending Rudolph was disclosed in an order filed last week by U.S. District Judge Lynwood Smith. Attorneys in the Alabama case were paid $2.02 million for representing Rudolph, who declared himself broke and received court-appointed legal representation following his arrest in  Experts, investigators and others who assisted in the defense were paid another $2.02 million, according to Smith's order.

69 1. United States of America vs. Eric Rudolph (Eastern District of Alabama)

70  Massive case with 10 defense investigators  10 at times up to 12 defense attorneys  5 Mitigation investigators  Team Defense meetings in Birmingham  Case Vault Security Online Repository for a half million Discovery Documents, investigative reports, photos etc.  Encrypted s

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76 2. STATE OF FLORIDA VS. SEAN TAYLOR

77 An Only in Miami type of criminal prosecution Assistant State Attorney in charge of prosecuting the NFL star safety had a side job as a DJ on South Beach. He was known as DJ Esq.  State of Florida v. Sean Taylor  Star Safety: Washington Redskins Charged with Aggravated Assault with a Firearm

78 When Prosecutors Mess Up! Creativity came into play as a young associate just decided to google the prosecutor and came up with information that embarrassed the Miami- Dade County State Attorneys Office and jeopardized their case.  State of Florida v. Sean Taylor  Star Safety: Washington Redskins Charged with Aggravated Assault with a Firearm

79  TWO LESSONS LEARNED ON THIS CASE: 1.Always do a background check or at least media and social media check on the Prosecutor in your case 2. Always do multiple criminal background checks on State witnesses especially right before trial

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85 Red Washington Post Thursday, April 13, 2006 skins Safety's Attorneys Allege Misconduct; Trial Is Delayed Again MIAMI, April The lead prosecutor in the felony assault case against Washington Redskins safety Sean Taylor resigned from the case on Wednesday, hours after the defense alleged he was using it to promote his side career as a Miami Beach disc jockey. Michael Grieco, left, resigned from the case after attorneys for Sean Taylor, in blue shirt, alleged Grieco was using the case to promote his side job as a disc jockey. (David Adame - David Adame for The Washington Post)

86  Miami Herald News Story: “On a wild day in which Taylor's trial, scheduled to start Monday, was delayed for the sixth time Assistant state attorney Michael Grieco, 30, shut down a personal web site detailing his DJ activities and relinquished his role as lead prosecutor even while his superiors accused Taylor's lawyers of a smear campaign”.

87 3. Commonwealth of the Bahamas vs. Troyniko McNeil

88  DNA exoneration  Murrio Ducille, well respected Defense Attorney  Dr. Martin Tracey FIU retained  Professor to Bahamas DNA expert who had a flawed DNA match  Rare instance of Defense Investigator trumping defense attorney re: discussion on case direction and use of an expert

89  Earlier this week, I had an interesting initiation into the Bahamian criminal justice system. The Bahamas gained their independence in 1973 and previously had been a British Crown Colony. Their political and judicial system is still heavily influenced by Britain.  I have traveled there multiple times on criminal cases and even have met with top police officials on one case involving money laundering; But, I had never attended a court proceeding before.

90  I sat in all day to hear testimony in a murder case trial wherein I am the defense investigator. I was in Supreme Court Number 2, Nassau, Bahamas. The building appears to have been constructed in the late 1800’s.  The jurors, all twelve and alternates are seated on the left side and the prosecuting attorney and his assistants and defense counsel and his assistants sit at dark wood bench style desks in the center.

91  The Court Clerk and his assistant sit at a desk facing out toward the attorneys and audience. All the lawyers wear the traditional British white wigs and black robes with white cravats. The Judge wears a more ornate crimson robe with black vertical sash complete with white wig and is addressed as "Your Lordship" and presides from a raised platform oak desk fifteen to twenty foot long.

92  The defendant sits in the "dock" the traditional box in the center of the courtroom behind defense counsel. The various trial assistants, all wearing similar wigs and attire, sit at desks facing the judge.  I noticed that a prosecution witness, the DNA expert who has testified numerous times in the Bahamas turned toward the bench and bowed as he exited the courtroom.

93  It was interesting to hear the prosecutor continually refer to defense counsel as "My learned friend". It was all so, shall I say “civilized”!  Aside from these trappings and unfamiliar surroundings, there was a common theme, a drama: a young man's future at stake and another's future lost, the 37 year old victim who was an internationally known handbag designer.

94  It is a front page murder case and has captured the public’s interest in Nassau  The prosecution case is weak and hinges on suspect DNA evidence. There is no other evidence to implicate our client in the murder. There were mistakes made in the analysis  The defendant is also alleged to have stabbed the victim (his father's business partner) multiple times while on crutches from a basketball injury.

95 Our defendant is a soft-spoken, polite 23 year father of two who says he has no knowledge of the crime. His father, the victim’s business partner was a suspect for a period of time and his DNA blood sample was excluded. Yet, nine months later his son’s sample was taken and was matched to trace DNA evidence at the scene. He had often visited the victim’s residence since his father had lived there for a time. If you know anything about DNA evidence, that should raise a flag in your mind.about DNA

96  The case is likely to go to the jury today and I am very hopeful that our client will be exonerated. This is a case where I really believe that our client is innocent!

97  “The main point of my testimony was that the defendant lived or often visited the crime scene, so it was not at all surprising to see his DNA mixed in with swabs of blood stains which matched the victim ”.

98  “His father was excluded, because father and son share 50% of their DNA and over 15 genes that means that the father had only a (1/2) to the 15th power = 1/32,768 chance of matching his son's profile”.

99  Britain’s Leicester University  Geneticist Alec Jeffreys  1975 began his research  Soon recognized the potential for the use of  Repetitive regions of the genome to individual biological fluids

100  First High Profile Forensic case covered in Joseph Wambaugh’s book The Blooding  Rape and murder in a small British village of two high school girls  Worker at a mental hospital confessed to one murder  Police sent blood samples of this suspect and victim’s blood to Dr. Jeffrey’s for genetic analysis

101  Suspect was exonerated as rapist/murderer who left semen at both scenes since his DNA profile was different from the semen sample takenfrom the victims  Revolutionary: police had the DNA fingerprint of the real rapist/murderer but NOT a name  Problem was there was no DNA database  Samples taken voluntarily from all men in village

102  Several thousand samples were obtained  The assailant (Colin Pitchfork) asked a friend to provide a sample for him  Problem was the friend was overheard in a pub discussing the switch  Pitchfork’s sample was later taken and was a perfect match  He later pled guilty to both murders and got a life sentence

103 FORENSIC NEWS 08/14/2013 Forensic Experts Create Cat DNA Database University of Leicester forensic scientists have created the UK’s first cat DNA database — which has already helped convict a killer

104  Experts in the University’s Department of Genetics have compiled a database of DNA from 152 cats around the country.  The database was used to demonstrate the likelihood that cat hairs found on the dismembered torso of Hampshire man David Guy belonged to “Tinker”, a cat owned by main suspect David Hilder.  This evidence was used as part of the prosecution case leading to the successful conviction of Hilder for manslaughter.

105  “This is the first time cat DNA has been used in a criminal trial in the UK. We now hope to publish the database so it can be used in future crime investigations," says Dr. Jon Wetton, who led the project.  “This could be a real boon for forensic science, as the 10 million cats in the UK are unwittingly tagging the clothes and furnishings in more than a quarter of households.”

106  In July 2012, the torso of David Guy was found on a Southsea beach wrapped in a curtain on which eight cat hairs were found.  Hampshire Constabulary sent the hairs to California for analysis, where the scientists examined the cat’s mitochondrial DNA — a type of DNA contained in small structures within cells, and passed down the maternal line.

107  The mitochondrial results showed not only a match with the suspect’s cat, “Tinker”, but also that the same DNA type had not been seen among 493 randomly sampled US cats.

108  Patrick McGuinness, my twin brother and no we are not identical!  Jacksonville Florida Public Defender for 32 years, private practice for 4 years  Has tried more murder cases than 99% of attorneys in Florida  Star of Oscar Winning Documentary

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111 THANKS FOR LISTENING !


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