The Defense Investigator

 Posted on March 18,2008 in Uncategorized

In a comment to my "Who Are You" poll post, reader Sean Shopes writes:

While I checked the "non-lawyer, elsewhere" box I thought I'd chime in as a criminal defense professional – I am a defense investigator in San Francisco. I am curious about your thoughts regarding defense investigators (to include Public Defender Investigators as well as private investigators that do court-appointed and retained work) and their value to defense attorneys and defendants.

Good question.

A good investigator is invaluable in the defense of a criminal case. In many of my cases, the single smartest thing that I have done has been to hire the right investigator. My investigators (JJ Gradoni and Associates) have frequently made the difference to my clients between acquittal and conviction, or between dismissal and trial, or between probation and prison.

We start every case knowing only what government agents claim to have learned in their investigation. Their investigation is usually incomplete - often woefully so - and almost invariably biased. The usual police investigation is geared toward confirming hunches, rather than discovering the truth.

We use PIs to discover the truth, for good or ill. Frequently our investigators discover information about the case that the government doesn't yet know; some of this information is unfavorable to our clients, and some is favorable. It's good to have both types of information because we can prepare for the possibility that the government will learn the unfavorable things while deciding whether to use the favorable things as negotiating points or save them to use as NLSes.

We use PIs to interview witnesses, diagram scenes, check backgrounds, serve subpoenas, take photographs, and do just about anything else that we might need someone to testify about at trial - if I interview a witness and she says something different at trial than in the interview, I've got a problem, but if my PI did the interview I've got evidence of the inconsistency.

My experience with court funding for private investigators is limited but varied. In appointed cases in federal court, on the one hand, I have spent the money that needed to be spent out of my own pocket with confidence that the court would repay me when I turned in a voucher. In a state case, on the other hand - a death-capital case in Victoria County in which my client was indigent and sought funding for experts and investigators under Ake v. Oklahoma - the court preapproved a much smaller payment than the case merited.

My investigators charge me $75 an hour. In Dallas County the court specifies a rate of $40 per hour for investigators in non-capital cases; in Harris County the rate for non-capital investigations is $50 per hour. Both counties specify a limit of $750 in first-degree felony cases without court approval. In Bexar County the presumptive limit for investigations in first-degree felony cases is also $750; the limit for capital cases without court approval is $1,500. $1,500 - 30 hours of investigation at a below-market $50 per hour - is a ludicrous presumptive limit for the defense investigation in a death penalty case - I have had first DWIs in which I've spent more than $2,500 on investigators. Yes, court-appointed lawyers get funding for private investigators, and some of the investigators doing court-appointed work, like some of the lawyers doing such work, are among the absolute best despite the below-market rates, but there are very few judges who seem to appreciate what it takes to properly fund a defense.

One of the advantages that public defenders' offices have over ad hoc appointed lawyers is that a PD's office can have a staff of professional investigators in-house and on-call. The local federal PD's investigators are so outstanding that a couple of years ago the Harris County Criminal Lawyers' Association, representing state and federal practitioners, PDs, court-appointed lawyers, and hired lawyers, awarded them a Torch of Liberty award. They do outstanding work, and there is no way that the quality of their work could be matched by investigators hired ad hoc for $750 per case.

My thoughts regarding defense investigators? A defense lawyer ought to know how to investigate his own cases, so that he has some idea how it's done, but the work should be left to the pros. Find a good investigator, pay her well, and make her part of the team.