Timing Is Everything

As Public Defender investigators, we rarely have the “first on the scene” or “strike while the iron is hot” advantage of getting the case while the trail is fresh, while witness emotions are raw or while the camera footage still exists. Our opponents have a huge advantage in this regard and the unfortunate reality is that the chances for change are not very high. The system is set up in a way that several days may have passed before attorneys are assigned a case. It may be several more days before attorneys have a chance to talk with their clients in detail about the events leading up to the arrest. If investigation is needed, it may be another couple of days before an investigator is assigned or brought on to the team. Whatever the process, timing is rarely is on our side.

So in the world of the Internet, social media and surveillance cameras on almost every street corner, public defender investigators have had to think of ways to adapt and fashion our investigations so we can get to information as quickly as possible.  The reality today is that much of the “best evidence” and pertinent information in our cases will be “deleted” before we even have the state’s discovery in our hands. 

In Minnesota’s Fourth District Public Defender’s Office (Hennepin County), this problem came clearly into focus when law enforcement kept shortening the retention periods for video before it was destroyed.  What started out as a 14 day retention period for all of the footage captured by the city’s Safezone cameras, soon became 10 days or occasionally even eight or six days.  Depending on the day and the case, we were getting different answers each time we inquired. We also ran into the problem of disappearing text messages on witness’s phones.  Many alleged victims wanted to tell us what really happened (recant) the day after the incident, only to change their minds again a week later.  It became more and more apparent that we needed to capture certain information more quickly in order to give our clients the best representation possible.

Our solution to this growing problem was to assign an investigator to the arraignment and felony first appearance courtrooms. The investigator is available in court to do whatever the attorney needs to investigate the case from the day of the first appearance. Our investigators request surveillance videos from police departments, metro transit and local business owners, often the morning after an incident has occurred.  We take statements from witnesses who show up and want to tell someone what really happened.  These witnesses frequently have cell phones which contain relevant text messages or voicemails that we need to preserve.  We photograph our client’s fresh and untreated injuries. Our investigators run DVS checks to find out who owns a vehicle or to check the status of a client’s driver’s license. We call insurance companies to get documentation to prove that our client did have proper insurance. And, we even call treatment facilities to see if a bed is open so a client can go to treatment instead of sitting in jail. What seems like the smallest of tasks can make a huge difference in the life of a client.

Here are three success stories stemming from having an investigator at the first appearance calendars:

1. I had a client charged with assault. He told me the police had picked up the wrong brother and it was his twin who assaulted the victim.  The investigator at court that day was able to quickly call the brother and mother to verify.  He was even able to get the mother come to court.  The judge released my client and the case was dismissed.  I'm sure it would have taken much longer for justice to be served and my client would have stayed in custody or had to post bail, had the investigator not been present at court that day. This tool is especially valuable in domestic arraignments where we barely have time to interview our clients and things tend to get heated.
2. My client was charged with pulling a knife on his former girlfriend.  He had a bunch of prior domestics.  The felony first appearance investigator took a picture of my client’s injury in the jail immediately after his first appearance in court.  He was cut, obviously with a knife.  The former girlfriend had a hard time explaining how he got a defensive wound on his hand.  Case dismissed.
3. Client has a history of multiple OFP’s with different women but has remained law abiding and has been enrolled in school, meeting his probation requirements.  In the new case, client and his father were invited over to a woman’s home and there was an argument after he found her drug dealer’s cell phone number on her phone.  The client deleted it and she walked up and punched him, knocking him off the chair.  She then picked up the chair and broke it over his head.  Client and his father left and he went down the next day and filed an OFP against her.  He did not file criminal charges against her and she did not file charges against him.  When she found out he got an OFP against her, she then went down the next day and filed an OFP against him as revenge, knowing it would cause his probation to be revoked.  Client’s dad showed up for court and I was able to get a statement from him.  City Attorney was adamant about the no bail issue and the P.O. was off of work that day so they were not prepared.  Ironically the Judge was the sentencing Judge in client’s prior case and was not happy with client.  When client appeared at the arraignment to argue for bail our attorney was able to tell the Judge about client’s dad being present during the incident and my interview with him.  The Judge had me testify briefly as to my conversation with client’s father and the historical practice of the victim filing other OFP’s that were dismissed.  The City Attorney was not in a position to argue bail because of missing documents and because the P.O. was not present.  Final result, client was released so he could go to school that day.

Having an investigator alongside our attorneys at the first appearance is a fairly simple thing we are doing to improve the representation of our clients. Having someone designated to help with the smallest of tasks on a busy arraignment calendar can make a huge difference for our clients and even for our staff.  The lawyer can close the case dismissed at the first appearance without having to prepare for future appearances. An early investigation means less frustration for an investigator who, as time passes, risks losing witnesses and valuable information.  Because of our ability to do these seemingly simple tasks early on in the process, a bit of teamwork, and that rarely attainable “beat ‘em to the punch” timing, our clients get terrific representation and great results.