Questions From the Class: Part #2

Management Resources principles Bob Rahn and Kim Anklin were honored to be included in Penn State’s online course, Presumed Innocent? The Social Science of Wrongful Conviction. Interviewed extensively about the wrongful conviction and exoneration of Jonathan Fleming, many questions arose from the class. Kim Anklin has been answering questions from students in the forum, “Ask Kim Anything.” Although the class is complete we are reprinting some of the general entries with the hope that readers will learn more about these types of investigations.

Management Resources
Kim Anklin and Bob Rahn conducting investigation

I am involved in exoneration efforts for a convicted sex offender.  He was convicted on the basis of a combination of testimony generated in repressed memory therapy, changed testimony after police interrogations and perjury.  Key witnesses were eliminated by being placed in the charging process which made their testimony unavailable to the defense. A moral panic ensued in this case. The victims have since been paid millions of dollars in settlements through civil attorneys.  

The convicted has no money to hire investigators so this work must be done by amateurs.  There is a remote possibility that a key “victim” may recant.  There was no mention during the trial of the testimony being generated in therapy although the therapist himself sat next to the deputy attorney general during the trial.  Efforts to obtain information regarding the suggestive therapy which tainted the testimony failed due to confidentiality laws cited by the judge.

Is there any book, publication or whatever to help us do this investigative work?  How do we document the police interrogations of the witnesses who we believe were intimidated?  How do you interview people who know people and that sort of thing? How do we find out who the victims were in therapy with.  The civil attorneys who mandated the therapy will not reveal names, but do assert publicly that life-long therapy is a necessity for their clients.

In other words….is there a “do it yourself guide” for those who have to do this work as a volunteer?

Do you have any advice for me?

This is a difficult question to answer in a few paragraphs without knowing the details of the case, but I will try to address your points as best I can. Before I do, I must stress that anyone who wishes to do this sort of work must be EXTREMELY careful. In general, witnesses and victims can be afraid and even hostile. I would never recommend anyone attempt this work on their own. Perhaps you can find a licensed investigator, preferably armed, that may work with you if he or she believes in the case.

The first issue I see is where did this happen? Since it is a sex related case, many states have rape-shield laws that protect the identity of the victim. Also, you are up against The HIPAA Privacy Rule that protects individuals’ medical records. At the same time if this ‘key victim’ wants to recant his or her testimony voluntarily, then again I would highly recommend that a professional defense investigator be utilized to obtain a detailed, sworn, and notarized affidavit. Keep in mind that you will be asking this person to say they lied under oath which is a very difficult thing for people to do, especially to something that may have convicted an innocent person. I would look for an investigator that has experience working with sex related cases, is a notary and someone that will be compassionate towards this person.

You bring up an excellent point that the majority of the time the convicted does not have the funds to investigate their case in a meaningful way. Their money has already been spent on their defense and usually includes exhausting family resources as well.

Was there DNA obtained in this case? If so, is there a question as to its validity and have you reached out to your closest Innocence Project? If there was no physical evidence, then you are in the same boat as we were with Fleming. It will require a thorough case analysis to develop strategies and ‘boots on the ground’ investigative work.

I would recommend you register with InvestigatingInnocece.org. They are a non-profit organization, 501 (c)(3) based out of Illinois, and include attorneys and private investigators. When financially feasible, the attorneys will provide a limited number of hours of pro bono services to the organization in helping to review worthy cases that deserve further investigative work. The approved cases are then assigned a local investigator.

Ultimately, the ‘name of the game’ is to uncover and obtain newly discovered evidence. Whether you are going to work with an appellate attorney who will focus on the constitutionality of the trial, or if you have a Conviction Integrity Unit, neither will take the case seriously without new evidence. Unfortunately, even a recantation of the victim may not sway the courts to hear a new case. Fleming’s eye witness recanted only a few months after his conviction during the sentencing hearing. The judge dismissed her testimony stating she could not be believed. The precinct command logs we obtained proved her recantation was indeed the truth.

Any case has ‘known’ witnesses – those known to the police and prosecutors. Those are not exciting to defense attorneys, prosecutors and the courts. If you can develop ‘unknown’ witnesses, those who have never been spoken to by anyone in law enforcement, that can shed new light into the case, then you may peek their interest. Of course, we love high credible witnesses, however we take them for who they are if they have new and meaningful information. I would also strongly warn you that if you, or anyone who attempts to speak to a witness, refuses to speak you must cease and desist. For you yourself could face harassment charges if you do not. This is probably the best argument for using an experienced investigator. Many times we only have one shot at getting the cooperation. It had better count.

If this is a high profile case, you can use the media to generate interest. If is not, you’ll need to make it newsworthy. Start with the local papers both paper and digital.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey. .  Management Resources is a member of the New York State Association of Criminal Defense Lawyers, Associated Licensed Detectives of New York, and Founding Members and Regional Directors of Investigating Innocence.

Bob Rahn and Kim Anklin are available for interviews or speaking engagements.  Contact ImaginePublicity at 843-808-08509 or email contact@imaginepublicity.com 

Questions From the Class: Part #1

Management Resources principles Bob Rahn and Kim Anklin were honored to be included in Penn State’s online course, Presumed Innocent? The Social Science of Wrongful Conviction. Interviewed extensively about the wrongful conviction and exoneration of Jonathan Fleming, many questions arose from the class. Kim Anklin has been answering questions from students in the forum, “Ask Kim Anything.” Although the class is complete we are reprinting some of the general entries with the hope that readers will learn more about these types of investigations.

Bob Rahn, Kim Anklin, Management Resources LTD of NY, Wrongful conviction of Jonathan Fleming
Investigators Kim Anklin and Bob Rahn of Management Resources LTD of NY

Do you have any sense of how often cases of tunnel vision occur in homicide investigations and what factors make these more likely?

How often does tunnel vision occur in homicide investigations? While there is no way to know an actual number, it is frightening to consider even the cases we get right, tunnel vision can easily occur both internally and externally. Consider the actors and other known factors that contribute into an initial homicide investigation, particularly when the perpetrator(s) is not initially known. They include police and detectives, the crime scene techs, forensic personnel, the medical examiner, the prosecutors, all of the police bosses, the witnesses, the victim, the family members for both sides, the geography where the crime occurred, the crime rate, the culture of the law enforcement agencies, the economy, the political landscape at the time. That is only naming some of the many factors that are in play even before there is a plea offering or a trial. All along the way these factors do indeed influence whether justice will be served or denied.

We are all human beings that while we think we try our best not to, we bring our own cognitive biases into play. The goal is to counter these factors by not allowing any of them to dominate the investigation. It is not an easy undertaking; however through counter measures such as training, education, and public awareness, many can be minimized. The heavy burden cannot be solely placed on a defendant to prove his or her innocence after being indicted.

At first glance, the Fleming case appeared to have been flawed by the police. How could they not investigate the leads provided by the witness who was in close proximity to the shooting? How could they believe one eye-witness that was 427 feet away, at night, through bars on the windows, without her glasses for distance, through trees positively identify Fleming? When she tried to tell the truth and recant, how could the judge then dismiss her as not being truthful? What about all the independent witnesses Bob and I found 24 years later who were there and never spoken to by any member of the criminal justice system. How could they continue to cram Fleming into this crime when he was in Florida?

The answer is Fleming’s wrongful conviction did not happen because of detectives’ tunnel vision. This case is about the District Attorney’s ADA and staff turning away from seeking the truth towards orchestrating many lies and hiding evidence to fit their theory.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey. .  Management Resources is a member of the New York State Association of Criminal Defense Lawyers, Associated Licensed Detectives of New York, and Founding Members and Regional Directors of Investigating Innocence.

Bob Rahn and Kim Anklin are available for interviews or speaking engagements.  Contact ImaginePublicity at 843-808-08509 or email contact@imaginepublicity.com 

The Investigation of a Wrongful Conviction: The Jonathan Fleming Case

 

Jonathan Fleming, Management Resources, wrongful conviction
Jonathan Fleming greeting his mother after release (AP Photo/Seth Wenig)

 

On April 8, 2014, Jonathan Fleming became a free man after serving almost 25 years of his life in the New York prison system for a murder he did not commit. News of his exoneration captured the world’s attention and hearts.

Taking a look back Bob Rahn and Kim Anklin, principals of Management Resources LTD of NY, reflect about their experience as the investigators who turned up the evidence that ultimately lead to Fleming’s exoneration.

“Our 12-year professional relationship did not include criminal defense investigations until 2008.” says Anklin and Rahn. They had been invited to attend a NECOSIA conference where they were moved by F. Lee Bailey’s passionate speech about how crucial the role of a criminal defense investigator is when defending a person accused of a crime. Bailey talked about the imbalance of the system for the accused, how much power and resources prosecutors possess, while the defendant likely had to find an attorney who would be willing to go up against such power, and find funds to pay for a strong defense.

Kim and Bob were discovered through a Google search by the family of Jonathan Fleming. They explained he had been in prison over 23 years at that time and was serving a 25 to life sentence for a 1989 homicide in the Williamsburg Housing Projects of Brooklyn, NY. The family and Fleming claimed he was on vacation in Orlando, FL at the time of the shooting death of Darryl Rush.

While making contact with Bob Rahn and Kim Anklin, they also expressed their concerns about hiring yet another team of investigators because those they had hired in the past did not deliver results they had paid for. Another concern was that Rahn was a retired NYPD Brooklyn based homicide detective around the time of Fleming’s original case. They asked ‘Would you be able to take on all that was wrong and fight for Jonathan’s freedom?’

Fleming’s current defense attorney, Anthony Mayol, urged the family to again put their trust into hiring private investigators in order to move the case forward. He needed evidence that would convince the court to hear a motion to vacate the conviction, as he tried unsuccessfully to personally fulfill the investigative tasks, such as locating witnesses and convincing them to come forward.

After encouraging Fleming’s family to thoroughly verify the references of Rahn and Anklin, they recommended a conference between all parties including Fleming to answer their concerns. The family’s apprehension and caution was justified due to the complexities of investigative, prosecutorial, and political issues surrounding the case.

Jonathan Fleming, wrongful conviction, Management Resources, defense team
Jonathan Fleming Defense Team

Anklin says, “On April 7, 2013, Bob and I were handed all case materials that Attorney Mayol had, and the responsibility of disproving a 24-year-old homicide case with a man’s innocence now rested on our shoulders. Anthony Mayol was entirely committed to Fleming, but as sole defense practitioner and not an appellate attorney with endless resources, he was at a standstill. He believed in Fleming’s innocence completely and didn’t want anything to impede the chance of winning his client’s freedom.”

While confident in their skills and experience, Rahn and Anklin knew that rare successful outcomes of post-conviction relief took time, focus and dedication. Anklin began with the daunting task of sorting and organizing the contents of the case files, police reports, transcripts, and witness affidavits. She found the case had not only a fantastic alibi defense, including plane tickets, hotel receipts, but witness testimony so outrageous anyone would cringe, that led them to think ‘how could anyone bring this case forward?’ After finding so many verifiable issues with all aspects of Fleming’s case, she set out to convince Rahn that they needed to do whatever it took to prove or disprove his guilt or innocence.

Anklin says, “During many long nights of poring through research and articles, fate seemed to step in. I decided to take a break and picked up the recent copy of PI Magazine. One of the featured articles was Susan Carlson’s “Post-Conviction Relief…The Role of the Legal Investigator.

Susan wrote:  “What is it that we as defense investigators are attempting to do? We are looking to drive a stake though it – by identifying procedural errors or evidence that could not have been identified prior to the original trial and that could have affected the outcome of that trial. A post-conviction investigator must meticulously review each document in the case file, analyzing its contents for comprehension and strategy solidification. Simultaneously, we are looking for inconsistencies, mistakes, procedural errors and constitutional rights violations. We must have solid grounding in the law to be a key member of the team, for it is very often during the preparation step of the investigation that a basis for an appeal or post-conviction petition is found. This preliminary preparation can be very time consuming, and requires a solid commitment and understanding of the heavy burden of responsibility.”

“Susan unknowingly gave us a way to clearly articulate the step-by-step process, what it takes to fully accept a post-conviction case as an investigator, and what any family should expect from any investigator they hire. This was exceptionally true in wrongful conviction cases where by a man’s life stood still such as Jonathan Fleming’s.”

After the initial assessment of case files, Rahn and Anklin traveled to the crime scene and placed themselves in the position of the one and only eye witness and others who provided statements to the police in 1989. It was immediately apparent that the eye witness testimony was erroneous.

From the location where the eye witness testified she was during the homicide, Anklin and Rahn found that in relation to where the victim was shot 427 feet away, she said she stood in a hallway looking through a window with thick horizontal bars. She testified she saw the shooting across a dimly lit courtyard, with trees in full foliage. She also had admitted to being under the influence and was not wearing her glasses prescribed for distance.

It was discovered that this witness was given a deal in exchange for her testimony. Told by the prosecution she was probably not going to be needed as there were others who stated what they saw, she tried desperately to convince prosecutors that she had lied. Warned that she would then be charged with perjury, she had to consider that when the trial began 11 months after the shooting, she was now seven months pregnant and would be having her baby in jail if she didn’t go forward. After Fleming was convicted, and before the sentencing hearing, the witness fully recanted her testimony, but was now not believed to be credible.

At the legal end of the case, Anklin says, “We decided to proceed with a two pronged approach. We contacted several high profile criminal defense attorneys and appellate attorneys and, to our surprise, nobody wanted to touch the case.”

Citing that these cases were almost impossible to get overturned, and finding no interest from any other defense attorney but Mayol, the Management Resources team turned to the Conviction Integrity Unit of the Kings County District Attorney’s Office. Formed in 2011 to conduct reviews of convictions, research on this unit was done to be sure it was legitimate and functioning the way it was supposed to. Although apprehensive about a unit investigating its own convictions, Bob and Kim found the Bureau Chief’s reputation was beyond reproach. It was collectively decided to present to the Bureau Chief Jonathan Fleming’s case.

The compelling evidence for the CIU was a signed affidavit from one witness that was never before obtained. In summary, this witness had information that confirmed Jonathan Fleming was not involved, and the witness was never questioned by the police.

In what was considered to be an unprecedented move, the CIU then allowed for a joint cooperative investigation. Bob and Kim worked with their DA investigators and Attorney Anthony Mayol worked with the assigned ADA. Combined strategies identified additional witnesses never interviewed by the police. The result, another witness was located in South Carolina who emphatically confirmed that Mr. Fleming was not the killer.

Upon returning from SC and during a follow-up meeting with members of the Conviction Integrity Unit, the assigned ADA turned over to the defense the infamous telephone receipt and a letter from the Orlando Police Department stating that in 1989, they interviewed hotel employees in Florida who remembered Mr. Fleming. In other words, the suppressed evidence was there the entire time. These two documents were never turned over to the defense counsel at the original trial.

Also discovered were police department logs which corroborated the eye witness’ statement that she was given a deal by the prosecutor, whereby felony charges against her would be dropped in exchange for her testimony against Fleming. Again, this information was never disclosed at the time of trial.

Kim Anklin, Jonathan Fleming, Bob Rahn
Kim Anklin, Jonathan Fleming, Bob Rahn

However, that alone is not what exonerated Jonathan Fleming. What began with a defense investigation, took convincing a District Attorney’s Bureau Chief, who had the courage to authorize an unprecedented joint investigative effort, including speaking to numerous witnesses that supported the evidence, is what was needed to make their decision to hear the motion to vacate Fleming’s sentence.

Ironically, twelve months to the day, April 7, 2014, a phone call from Jonathan Fleming from Wende Correctional Facility stated that his counselor had just left his cell. She told him she had received parole board hearing materials from his attorneys, his investigators, and his friends all supporting his release; however, she didn’t think he was going to need them.

She then said the words he longed to hear; that the next morning he was to be escorted for a scheduled appearance before a Brooklyn Supreme Court Judge.

On April 8, 2014, as the world watched, Jonathan Fleming listened to Judge D’Emic vacate his conviction and legally tell him he was free, a completely free man.

After hugging his defense team, the tears fell as he ran to embrace his mother.

Written by Kim Anklin

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey. .  Management Resources is a member of the New York State Association of Criminal Defense Lawyers, Associated Licensed Detectives of New York, and Founding Members and Regional Directors of Investigating Innocence.

Bob Rahn and Kim Anklin are available for interviews or speaking engagements.  Contact ImaginePublicity at 843-808-08509 or email contact@imaginepublicity.com 

A True Story of Law and Order

police officer, law and order, true story of law and order

 

Licensed Professional Investigators receive new cases in a variety of ways. We at Management Resources Ltd of NY are contacted by attorneys as well as their clients seeking the services of our investigative staff. Many times the attorney will contact us and say they need our services for a client, but the client will be hiring us directly. Whenever we take on a new case, whether it is criminal or civil, we recommend that the attorney hire us and not the client.

The following story is a prime example of an attorney retaining a private investigator as quickly as possible:

On 12/27/09, the Sunday after Christmas I was planning to unwind from the hectic holiday shopping season by watching football games all day. These plans changed around 1pm when the phone rang. Edgar De Leon, owner of De Leon & Associates, PLLC (http://www.deleonlawyers.com/) told me he had just been retained by a couple from Boston who had stayed the weekend in New York after visiting relatives. The wife retained Mr. De Leon on behalf of her husband who had been arrested for disorderly conduct and harassment the night before. During the course of his arrest, the husband had been beaten by the police to the extent that his leg was broken in 3 places. At this time, her husband was in the hospital and she needed to be spoken to immediately.

By 4pm I was in Manhattan speaking to the wife. She was extremely upset, understandably confused, and did not know who to turn to for help. I sat with her for about an hour and learned that she and her husband where staying in a midtown hotel for the weekend on their way back to Boston. On Saturday evening they were in the hotel’s bar having a few drinks and watching a soccer game. There were several other people at the bar also watching the game. Her husband and the other individuals got into a verbal altercation about the two teams who were playing. According to the wife, there was some “back slapping” and some pushing between her husband and the other men, but that was the extent of the incident. No one was fighting, yelling, or injured. She and her husband left and went up to their room. A short time later, the police arrived and knocked on the door waking them both up. The wife answered the door and the police stated they wanted to speak with her husband because they had been told that he pushed his wife downstairs in the bar. The wife stated that this was untrue and that nothing had happened. The police came into the room and handcuffed the husband behind his back. They took him out into the hallway where one of the officers kicked her husband in the leg several times causing him to fall to the floor in pain. An ambulance was called and her husband was taken to the hospital where he was diagnosed with multiple fractures of his lower leg.

I left the wife and immediately went to the hotel. As luck would have it the bartender was on duty from the night before. I spoke to him and he confirmed the altercation between the husband and the other men at the bar. He stated that there was some pushing and shoving, but no one was hurt and no one requested medical attention. I then went up to the room and canvassed the other residents on the floor in search of witnesses.

The next day I spoke to the hotel manager and asked to see the hotel video cameras for the bar, lobby and hallway where the incident with the police occurred. The manager was very helpful and provided me with a copy of the video footage which I immediately turned over to Mr. De Leon. The coverage clearly recorded the altercation between our client and the officer.    http://bit.ly/8Y0jCV

The end result of this case was that all charges were dropped against our client. Our clients are now seeking damages from the City of New York. The officer that broke our client’s leg in three places is still working. The key to this successful outcome was the timeliness in which this case was handled. Mr. De Leon contacted us immediately after retaining the client. We were able to get to the location the day after the incident and identify and interview witnesses before anyone else. We were also able to obtain the necessary evidence which Mr. De Leon used in defense of his client.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey. .  Management Resources is a member of the New York State Association of Criminal Defense Lawyers, Associated Licensed Detectives of New York, and Founding Members and Regional Directors of Investigating Innocence.

Bob Rahn and Kim Anklin are available for interviews or speaking engagements.  Contact ImaginePublicity at 843-808-08509 or email contact@imaginepublicity.com 

The Intersection of O.J. Simpson and Jonathan Fleming

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Kim Anklin’s thoughts on O.J. Simpson, Jonathan Fleming, and the criminal justice system 

Twenty years have passed since Nicole Brown and Ron Goldman were brutally murdered in Brentwood, CA and what would be known as “the Trial of the Century” began. Today, it remains a hallmark case that is discussed and analyzed across many disciplines of study.

 In 1994, I was living in Simi Valley, California. I remember when the verdict was read and how the public’s reaction was racially and divisively split. Unlike most of my peers and colleagues I was not surprised. A relatively short time had passed since the 1992 Los Angeles riots began, sparked from what most of us considered an unjust verdict for four LAPD officers responsible for the brutal beating of Rodney King. The video footage was played by the media every day for months. It seemed obvious and indisputable as to what happened. However frame by frame the “experts” argued whether “excessive force” was used, and somehow the jury did not bring down fair punishment. As a result of the riots 53 people were killed, thousands injured and over a billion dollars of destroyed property left South Central Los Angeles in ruins.

 Twenty years later, I am hopeful we are seeing the tides turn in favor of fairness and justice. My hope is based upon the much needed attention given to the recent exonerees who were wrongfully convicted during the 80’s and 90’s. It is exhausting, gut-wrenching work that we as investigators, attorneys and organizations like Investigating Innocence take on. Each time a person is exonerated, it proves what many communities have been screaming for decades. Where is our fairness and justice?

 Those who are proving their innocence, after being wrongfully convicted, are the direct result of decades of corruption that has already eroded the public’s trust across the county.

 By the time the Simpson-Goldman case became a national obsession, our client Jonathan Fleming was already into his fifth year of a 25-life sentence for a homicide he did not commit in 1989. While he is an exceptionally forgiving man, his case clearly illustrates why the reactions to the Rodney King case and the OJ Simpson case were so emotionally charged. The first message was clear; the world’s “greatest legal system” is rigged. However, for every action there is an equal and opposite reaction. Hence, the celebratory reaction to Simpson’s acquittal was equally clear.

 Why are we so captivated by high-profile cases? Simply because we do not want to see the wrong person incarcerated while the guilty go free. We want to believe we are operating under a fair and balanced set of processes that do not make such egregious “mistakes.” When the “mistakes” appear to be, or are proven to be deliberate, we are outraged.

 The widely covered high profile case, especially one with a lot of drama, can serve as an educational tool for the public to raise important questions. The public, of course, is our future jury pools that will serve to hopefully see through and question when prosecutorial misconduct presents itself.

 Our justice system can only be a great system if both sides play by the rules that society as a whole agreed to follow. I try to convince myself the damage is caused by a small percentage of prosecutors, police officers, and judges that rig the system. At the same time, that belief becomes weak when, for example; if you take one prosecutor systematically hiding Brady Material over the span of a 30 year career, how many cases would therefore be flawed?

 If we are indeed experiencing the beginning of a new era, my hope is that the divisive reaction is shifting away from race, as seen in the trials of O.J. Simpson and Rodney King, and towards shutting down the corruption where it belongs. Those who have corrupted our system have long used distractors of the “us versus them” mentality for their end-game to divide and conquer.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey. .  Management Resources is a member of the New York State Association of Criminal Defense Lawyers, Associated Licensed Detectives of New York, and Founding Members and Regional Directors of Investigating Innocence.

Bob Rahn and Kim Anklin are available for interviews or speaking engagements.  Contact ImaginePublicity at 843-808-08509 or email contact@imaginepublicity.com