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.
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.
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.
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.
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.
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.
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.
We have conducted hundreds of Mortgage Fraud investigations throughout NY and NJ for our insurance company clients. The following is the story of how one case of fraud was perpetrated, and ultimately, discovered.
We located the suspect and conducted a telephone interview. The subject informed us that he posed as the buyer for the property and provided his name, date of birth, and social security number for his friend so the friend could purchase a $400,000 home.
The friend had bad credit and could not get a mortgage. Our subject completed a URLA (Loan application) and listed his income, assets and liabilities. He signed the application and then went to the closing and signed all the closing documents.
The term for this type of Mortgage Fraud is “Straw Borrower” where the borrower on the application is not actually the buyer of the property.
Impact of Mortgage Fraud
Most committing fraud of this type think there isn’t a negative impact simply because they have all intentions of living in the home, as well as paying back the loan in a timely fashion. However, the waters become murky when you find there are lenders and brokers who are not verifying information on the application properly, or are editing the information without the borrower’s consent or knowledge.
Fraud for profit by overstating income, or otherwise falsifying the loan application, is a federal offense with a long statute of limitations and possible prison time for those who commit this type of mortgage fraud. Often there are several parties involved who come together to purchase property for the profit possibilities only, never intending to actually use the property as a residence or a business.
Mortgage Fraud is one of several different types of fraud investigated by the Management Resources team. We are experienced in all types of corporate fraud investigations .
According to the Association of Certified Fraud Examiners, American companies lose $660 billion dollars to internal fraud every year. A single incident of internal fraud costs the victimized company approximately $200,000. Companies with fraud awareness strategies in place reduce that loss by 50 percent or more.
Fraud and employee theft are one of the areas of crime which essentially affects us all as losses are passed on to consumers in the long run. If you feel you need to take a closer look into your corporate or personal assets, please contact us for an appointment.