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.
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.
Management 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 email@example.com