Being an Investigator: A Personal Look at the Profession

Bob Rahn and Kim Anklin review requests from possible wrongful convictions

Bob Rahn and Kim Anklin review requests from possible wrongful convictions

Being an investigator is a unique and intriguing profession. A vocation that requires us to stay in the background of a case, working in the shadows of others.

Given this fact, Bob and I never imagined we would one day come from behind the scenes in such a big way and talk publicly about ANY case, let alone the exoneration that was heard around the world. Receiving the Investigator of the Year Award was such an amazing honor.

Receiving awards represent the work that investigators do every day. But more importantly, awards represent all the work we have yet to do because exonerations are rapidly increasing in frequency. To quote Marty Edelman, “….we are in a growth industry.

Yes, exonerations are rapidly increasing, but let me put that into context.

In 2012, when we began to consider post conviction cases, there were more than 2.2 million people incarcerated in the US. That same year the National Registry of Exonerations listed only 79 exonerations across the country.

We knew the odds of prevailing in proving a wrongful conviction were small. However, after working only a couple of months on Jonathan Fleming’s case, we told ourselves, this case was going to be one of them.

Why? Because IT HAD TO BE -what we found could not be ignored. We had an innocent man who had already spent half of his life locked up. He and his family were depending on us.

We are proud to state that our case is one of the only 125 exonerations for 2014.

When we took Jonathan’s case, we were on our own. We were handed his box of transcripts and a wish of good luck. After some pretty big breaks there came a time when we we needed some strategic advice. Everyone told us “Eh, you’re wasting your time, you’ll never get him out, these cases are impossible

Even members of the media shrugged us off, and doubted the viability of the case. Bob and I like to think all the doubters ended up sitting together at the same bar watching the story on every news outlet knowing they could have been in on it.

After the exoneration I met Marvin Schecter who said to me, “Kim, for years defense attorneys have fought hard to level the playing field. We knew some weren’t playing by the rules. We knew amongst other things they were hiding exculpatory evidence. Kim, exonerations are the gifts that keep on giving because each time an exoneration occurs, we get to find out why and how it happened in the first place.”

One of these gifts came when Brooklyn District Attorney, Ken Thompson, publicly acknowledged that his predecessors got it wrong, and that Jonathan was indeed an innocent man. Thompson took it further by saying the DA’s office withheld the evidence that HE believes would have acquitted Mr. Fleming.

It’s our job, it’s what we do

As investigators we bring the evidence the attorneys need in order to win. I ask that each investigator take on a post conviction case.

We can no longer ignore the fact that innocent people are incarcerated, losing years of their lives. If you do take a case, get ready to have your patience tested with our criminal justice system, but your efforts WILL matter to the incarcerated and his or her family.

To quote Ralph Waldo Emerson:

“To know even one life has breathed easier because you have lived – that is to have succeeded.”

You never know, as an investigator, your efforts may one day bring home a son or daughter home to their mother.

 

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey, members 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

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Posted in Criminal Defense Investigations, Wrongful Convictions

Brendan Dassey: The Power of Confession in Making a Murderer

Brendan Dassey interview

Brendan Dassey interview

Both mainstream media and social media are in the grips of the Netflix documentary, Making a Murderer. Everyone has an opinion on the guilt or innocence of Steven Avery with some calling loudly for his release.

The film has opened needed dialogue on the issue of wrongful convictions, as well as police corruption, prosecutorial misconduct, and the dynamics of a flawed justice system.

One of the key players in the documentary is Avery’s 16 year old nephew, Brendon Dassey,  described as having an IQ in the range of 70, borderline for being classified as intellectually disabled. Dassey was tried separately and also convicted in the murder of Teresa Halback.

Several scenes in Making a Murderer surround the video taped confessions of Brendon Dassey describing the horrific torture, rape and murder of Halback, his alleged participation at the instruction of his uncle, Steven Avery.

In one video we see the defense investigator who seemingly coached Dassey to admit his involvement and sign a document of his confession which he handed over to the police. Ordinarily, this is never done unless forced by the court.

Listening to phone conversations with his mother, it’s quite possible that Dassey’s confession was elicited by investigators and that he had little understanding of the consequences. Does the story he tells contain some thread of truth? Possibly so.  Transcript of Brendan Dassey interview

Is Brendan Dassey Telling the Truth?

Brendan Dassey in court

Brendan Dassey in court

Dassey’s narrative is, for the most part, one word answers to questions posed by investigators who threaten to walk out if he doesn’t tell the truth on more than one occasion.

For someone with cognitive difficulties the truth may not be so simple, and when accused of lying, or under pressure, truth gets mixed up with the intent to please. Dassey admits to being nervous, he admits that he lied and changed his story, and he admits to taking part in the crime.

However, it’s apparent that Dassey should have been accompanied by someone who understands those with intellectual difficulties, someone who could speak objectively to the questions and answers and offer an opinion to investigators as to what is, or is not truth, before considering his testimony as evidence. He was questioned without his attorney or parent present.

In a recent article by Attorney Dan Abrams at Law Newz he states, “The notion that an attorney sent a defense investigator to a jail to convince a 16-year-old client with a well below average IQ to confess without his mother present is beyond inexplicable.”

It’s shameful to think someone who is intellectually challenged would find compounded challenges in the justice system that would change everything in his future.

Making of a Murderer’s best attribute is revealing to the general public the many flaws within the current judicial system and creating a platform for discussing change.

Whether Avery and Dassey are guilty or innocent, there’s an abundance of shortcomings in the case.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey, members 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

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Posted in Criminal Cases

Reflecting on Wrongful Conviction and “Making a Murderer”

The nation is gripped with the Netflix documentary, Making a Murderer, featuring the case of Steven Avery’s wrongful conviction in Manitowoc County, Wisconsin.

Avery was imprisoned for 18 years, and subsequently exonerated with DNA evidence, for a rape that he did not commit. Tasting freedom for 2 years and awaiting the start of a $36 million settlement lawsuit, he was accused and convicted for the gruesome murder of Teresa Halback along with his nephew, Brendon Dassey, a teenager with a very low IQ.

The discussions in America’s living rooms range from Avery’s part in the murder, whether he did or didn’t do it, and the misconduct of the prosecutors and police.

Because Management Resources works with the wrongfully convicted we’ve seen these issues arise first hand. Avery’s murder conviction could be the culmination of each piece of the puzzle, or, he could be guilty as he was found by the jury. Like many who come into the justice system, Avery was from the “wrong side of the tracks,” and with limited resources.

But, all that said, there are many unanswered questions about evidence which was not presented at trial, and which the jury never heard before making their decision to convict Avery of murder. For a good wrap up of that evidence we point you to a recent article by J.J. Slate, What did Netflix’s “Making a Murderer” leave out?

In her post Slate writes about missing evidence she was able to compile from searches and offers her opinion on each point, but leaving it up to readers to form their own opinion on Avery’s guilt or innocence.

 I don’t think it’s enough to convince me of Steven’s guilt–but I don’t necessarily believe he is 100% innocent either. All I’m saying is we still don’t know what happened there that day and, to be honest, I’m not sure any of us will ever know.

It’s good to see a case of wrongful conviction stir the emotions and raise the pulse of average Americans who may not have any idea how prevalent these cases are. We are finally seeing the public’s rage after viewing and our hope is it won’t stop with the Avery case, but that people will take a closer look into the thousands of cases of the wrongfully incarcerated and collectively do something about it.

Making a MurdererThe documentary shows viewers the coercion of witnesses, the reliability of eyewitness testimony, and the possibility of prosecutorial misconduct with no accountability. All the ingredients of wrongful conviction which we have written about extensively on this site.

The fact is, Making a Murderer relates a prime case of flawed justice. Avery and Dassey are still imprisoned and likely will stay there unless the wheels of justice take a turn. And then what? Will Steven Avery and Brendon Dassey ever be able to return to society and live normal lives?

Forbes writer Paul Tassi says,

In a way, Making a Murderer is justice for Steven Avery and Brendan Dassey. Obviously, they’re still in prison, a situation which needs to be rectified, but a problem always was that even if they were found not guilty, at least in Wisconsin with the facts the police and media presented, everyone still would have believed they did it. What Making a Murderer does is restore their reputations, and tell their horrible story to those who have never heard it. The show itself is its own form of justice, showing the real heroes and villains of the case for the world to see.

When our justice system returns to the search for truth, instead of quickly solving crimes and rushing to judgement, we may see less innocent people in prison.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey, members 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

 

 

 

 

 

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Posted in Wrongful Convictions

The Guilty Plea and Wrongful Convictions

Guilty plea and wrongful conviction

In order to ease the burden of the criminal justice system, plea bargains are offered to defendants who are allowed to plead guilty to a lesser charge, have the more serious charge dismissed, and agree to a reduced prison term.

While on the surface it may sound like a fair system, and, historically, plea bargains worked well. But, as time went on, legislation went into effect with mandatory sentencing guidelines outlining the minimum to maximum and increasing penalties, especially for drug related crimes.

One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since. Why Innocent People Plead Guilty

The guidelines seemingly leveled the playing field in regards to how judges handed down sentences, some being too lenient and some too harsh, however, it armed prosecutors with more power, as well as the ability to shape the charges in the plea bargaining procedure.

Defense attorneys are in a precarious spot. While defending the rights of their clients, they don’t have much recourse in the plea bargain process and limited knowledge of the evidence if the prosecutor doesn’t share.

The defendant enters into the process already charged with a crime, but not proven guilty or innocent and relying on evidence produced only by the prosecutor. This is the point where the imbalance of power is dangerous.

Why would an innocent person accept a guilty plea bargain?

Reasons are as varied as those charged with crimes, but typically the individual comes into the system with a troubled past and little in the way of resources. When faced with the possibility of prison time, or the death penalty, and cost of representing attorneys, they often feel it’s better to just take the plea and reduce the time and charges.

Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted and a guidelines range of considerably more—but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time by many years.

Additionally, if the defendant is facing murder charges and lives in a death penalty state, the prosecution may offer to take the death penalty off the table in exchange for a guilty plea. Defendants can be led to believe there is strong evidence against them and it would be advantageous to accept the plea, even though they are innocent and they know it.

Flawed justice is the result of a bargaining process that denies the right to a day in court to prove and argue evidence before a judge and/or jury. During a plea bargain the prosecutor does not have to reveal evidence before the court, therefore leaving little risk for misconduct, and essentially no consequences if misconduct occurs.

Jonathan Fleming case

During the course of investigating the Jonathan Fleming case it was revealed that key evidence which would prove he was out-of-town when the homicide occurred was not produced during trial and that several eyewitness accounts were not credible, or their statements coerced. This is the type of misconduct that is allowing innocent people to be sent to prison at alarming rates throughout the country, and rarely are there consequences.

Locating and interviewing the eyewitnesses clearly showed their testimony was based on deals made with prosecutors in the case in exchange for their testimony against Fleming in court. Also located was a time stamped receipt showing that Fleming was nowhere near the crime scene, but with his family at Disney World.

Although Fleming always professed his innocence, and did not plead guilty, he spent the next 24 years in prison for a crime he did not commit.

The premise of the judicial system that we are “innocent until proven guilty” just doesn’t seem to work within the context of plea bargaining where the “win” is seemingly more important.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey, members 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

 

 

 

 

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Posted in Criminal Defense Investigations

The Problem with Eyewitness Testimony and Wrongful Convictions

court-appearance-bench-warrant

Each criminal case has its own set of unique circumstances and defendants aren’t always tried and convicted as easily as seen on television. Untold things may happen behind the scenes of an investigation before the case goes before a judge and jury, especially  interviewing witnesses.

Eyewitness testimony has a great impact on juries, especially if that testimony or identification is from a victim witness, and most eyewitness testimony is given by honest people who wish to help solve the crime and convey justice.

According to the Innocence Project, “In the first 239 DNA exonerations, mistaken eyewitness identifications were a factor in more than 70% of the cases, making it the number one cause of wrongful convictions in DNA cases.” 

Police lineups and eyewitness rules

One of the issues in mistaken eyewitness identity is the fact that many police agencies lack standardized policies surrounding lineups and photo arrays, even though the seriousness of the testimony will contribute to a verdict.

In recent cases, eyewitnesses and victim witnesses have recanted what they believed to be the truth at the time they were initially interviewed by investigators. Whether an increase in knowledge or a repressed memory surfacing, they realized that their identification and testimony was wrong.

Substantial positive changes to policies in some larger police agencies have shown that not only do they protect the potential suspect, but also protect the police, as well as lend credibility to the justice system.

Detectives and prosecutors who are looking for a “win” may also contribute negatively to the identification and testimony of eyewitnesses. By using coercion tactics, or making deals to extract favorable information, they are often instrumental in convicting the wrong person.

Every time a person is wrongfully convicted, an active criminal is still at large.

Mistaken identity, human memory errors

Human beings are notably good at recognizing faces, especially faces that we already know or have seen before. When it comes to someone we’ve only seen briefly, psychology experiments show that we are very poor at accurately recognizing that face. Their evidence also shows that remembering a face is not like taking a photograph, and what we see is also influenced by other factors coinciding with the incident.

Several components determine whether the eyewitness has the ability to accurately remember an account, particularly if it was a traumatic incident and whether the eyewitness is also the victim.

In many criminal cases the eyewitness testimony may be the only direct evidence presented at trial.

Mistaken identifications that lead to wrongful convictions can be as unjust as not solving the crime at all.

Jonathan Fleming case

While investigating the wrongful conviction of Jonathan Fleming it was difficult to track down all the witnesses who testified at the original trial that convicted Fleming of murder.

Through our network of investigators we were able to track down one witness who recalled,…. she was paid by the police in exchange for her statement. She would later tell the DA that the police helped her write the statement by telling her what to say and how to write it. She stated that at the time she was addicted to crack and would do or say anything to get it.

Another, considered the “eyewitness” in the case, ….maintained her original story that she made a deal with the police to testify against our client to get the charges against her dropped for a felony arrest she had been picked up on.

All of the ingredients of a flawed conviction can come down to the testimony of one person who could be wrong, who could be mistaken, who could be coerced. Our justice system, and those wrongly accused deserve better.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey, members 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

 

 

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Posted in Criminal Defense Investigations

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investigating innocence, management resources, bill clutter, bob rahn, kim anklin
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