Getting and Handling the Recanting Witness
By Paul J Ciolino
Investigation Manual, DePaul University
If you enjoy getting beat up, doors slammed in your face, police and prosecutors hating you to the point of wanting to lock you up, then you are reading the right chapter. Re-interviewing state or government witnesses in a criminal case is the meat and potatoes of the criminal defense investigation. There is no way around it, it has to be done and done right. The opportunities to do it are limited and the path to the witness is loaded with rattlesnakes and landmines. One wrong step and your career or at the minimum your case is ruined.
The single biggest reason that there are more people in prison for crime that they didn't commit is that a bad witness(s) sat on a witness stand somewhere in the United States and lied or colored their statement to a point that the defendant never had a chance. Forget forensic or expert advice. It is the witness from the community with no apparent ax to grind that will bury an innocent defendant faster then a judge or jury can say, “guilty as charged.”
The only way to navigate you through this treacherous area without losing a limb or your career is preparation and detailed mind numbing hard work. There is no easy way to do this. Whenever the facts of a case are simple and straightforward the side that works the hardest will usually win. Out-working the government is not easy. They have at their disposal a black hole filled with hundred dollar bills. They have unlimited law enforcement personnel to call on. They have all the toys and all the money. You one the other hand have nothing but your willingness and work ethic.
As this manual primarily concerns itself with capital cases, that means one thing. You are playing in the Super Bowl or World Series of the criminal justice system. The stakes get no higher. This is not multi million dollar civil litigation, where ladies and gentlemen patiently and quietly litigate in front of some judge who is an intellectual giant. You and the defense team are in the ultimate street fight. The state is used to winning. They feel as if they are fighting for all that is pure and right. They are defending the honor of the law enforcement community and a poor victim, as well as the community at large.
You on the other hand are defending the scum of the earth. A murderer who has no conscious or honor. Perhaps a child killer. From day one you are in a hole that has no opening. The fight is entirely uphill and the government will have no problem in ruining your life if you dare get in the way. They will usually stop at nothing to win. Because they feel that they are on the high moral ground, they will justify all that they do in order to bring this pond scum (your client) to justice. If that means running over you in the process, so be it. They will not hesitate to destroy you.
With this in mind, I would caution you against doing anything in this case without giving much thought to it. This point cannot be stressed enough. Prior to ever picking up one piece of discovery and reading it, you had better give serious thought as to how you are going to deal with every worst case scenario. It is your career and your life on the line. If you do not think everything through completely, you may find yourself, injured, dead, or indicted.
If you are a young investigator, or a college student working for an innocence project somewhere in the United States , forget about all of the romantic notions of fame and fortune that you may be thinking about. This arena is no place for amateurs and wannabes. If you think different, do a little research. From California to New York , and from the Mississippi Delta to the Canadian border, the landscape is littered with the bodies and ruined careers or your predecessors in these cases.
The single biggest mistake that all of these folks made was being unprepared and thinking that the government would hesitate to make them an issue in a criminal case because of their naïve belief that they were “just doing their job.” They have made examples of many defense investigators, paralegals, law students and won't hesitate to do it again. If the author has learned one thing over the past twenty-five years of doing criminal defense work, it is, that if you do this long enough, you will get hammered by some police agency or prosecutor somewhere.
The single biggest issue that will get you “hammered” is the interviewing of witnesses. Reading discovery, dissecting crime scene data, taking photographs are all fairly routine investigative functions.
Nobody is going to climb up your backside for these activities. It falls under the category of doing your job. Even the state will recognize these functions as routine and innocent.
The trouble starts and begins when you start investigating and interviewing witnesses. This falls under the category or meddlesome, intrusive, and how dare you? When you undertake this particular endeavor, you will quickly start receiving a lot of attention that you don't want. You will be under the prosecutor and police department's spotlight. You will quickly find out that you are under investigation. Everything you do or say will be examined under a microscope.
If you are a former law enforcement officer, it will not matter one whit whether or not you were the best cop to ever strap a gun or a bum. They will nailyyou to the proverbial cross if you mess with them. If you are well known for doing this type of work prior to this case, they will have already investigated you several times. It doesn't matter what your background or experience is, you are now in the enemy camp, and you will be held to a much higher standard then you were held to in your previous career.
Before examining how to interview winesses and get some of them to recant prior statements made to the authorities. Let's address what kind of activities that will get you in trouble and hopefully too avoid them.
Shortly after you have left a witnesses home or job and attempted to or did in fact get a statement, the defense lawyer you are working with, will get a frantic phone call from the prosecutor. It might sound something like this:
Prosecutor: Jill, this is Jack from the prosecutor's office. I'm calling about your investigator in the Simpson case.
Defense lawyer: Hi Jack, how can I help you?
Prosecutor: Well is seems that your investigator was out interviewing on of my witnessesand he told my witness,that he was a cop. I think that we may have a serious problem here. In fact I may have him charged with impersonating a police officer.
Defense lawyer: Well Jack, I have worked with my investigator for many years and I know that he would never do something like that.
Prosecutor: Well Jill, maybe that's true, but my witness's wife also heard him say it. I think that I am going to file a motion and ask the judge to prevent your investigator from harassing my witnesses.
Defense lawyer: Do what you want, but you know this is nonsense.
Prosecutor: Well we'll see what the judge has to say, Good-bye.
Defense lawyer: Bye.
The opening salvo has just been fired across your bow and what happens next will set the tone for the rest of the case. The above example is the single most popular trick that a prosecutor will use on you. If you have been doing this work for more than a year, you almost certainly have already been accused of this. If you have been doing this work for more than 10 years and you have been effective this will be the tenth or twelfth time that you have been accused of this. For those of you who have no experience in dealing with this issue, this is how to handle it generally.
Number one rule. Do not ever imply, insinuate or act like you are anything else but an investigator for the defense. Old habits die hard, and you former law enforcement types should be especially sensitive to this accusation. Number two rule. As soon as you learn of this accusation, treat it very seriously. Sit down with the defense attorney and prepare a detailed memo of who said what to whom during the interview. Be very specific as to who was present during the entire conversation. Who left the room, who answered the door, and what exactly you did to insure that the witness knew exactly who you were. I am assuming here that you were not dumb enough to actually do what you are being accused of.
Although you may have just got the information that will spring your client from death row, it will be worthless if it wasn't documented properly. Even if you got the real killer to confess, it will be worthless, if you didn't take the appropriate steps to ensure the integrity of the statement. You might as well give the statement to your kids for coloring, or making paper dolls. So before we talk about recantations, confessions and getting the reluctant witness to cooperate, we have to have some guidelines for making it usable.
Background Investigation of Witnesses
Prior to purchasing the $6.00 Latte from Starbucks, plugging in the Van Morrison CD in the old Porsche and racing down the interstate to interview and get confessions, you might want to consider doing a background investigation on Bubba Jones, the star witness. The background should consist of more than you asking your old police contacts to violate 15 department regulations while doing a NCIC check on your witness.
For starters, you will have read every police report, statement, grand jury testimony transcript, and any other documents that Clarence Darrow III has been kind enough to provide you with. Hopefully by this time you reach Bubba's double wide, you will be more familiar with his prior statements than he is. If you're not that may prove to be very costly after through sheer charm, and force of personality, you have talked Bubba into puking all over himself. If you get Bubba to spill his guts and he makes a mistake or you forget to ask an important salient detail, you may never get a second chance.
The second step should be to take place down at the local courthouse. This is where many of the state's or governments star witnesses have spent some quality time prior to this case. This is where Bubba will have record pertaining to the many nefarious prior acts he has committed. In addition, you will want to romp through the divorce and civil record division, so that you may be able to find out who or what is also upset or has been wronged by Bubba.
Now if Bubba has lived in more than one county during his adult life, you should also make arrangements to have somebody check those courthouses for Bubba related documents. You know, once a bum, always a bum. None of this is fun or exciting, but it sure is interesting reading about the state's star witness. It can also reflect upon how you are going to deal with Bubba. You may be thinking to yourself about now, that this sure seems like a lot of effort and work. It is but also necessary. Remember he who works harder in the close case will usually win.
I should also mention that while you are still at the courthouse closely examining Bubba's files, you might also want to check up on the principal police officers and prosecutors records as well. Hell, they already checked up on you. If you're feeling really ambitious, check the judges campaign contribution records. We wouldn't want any old the state witnesses to have a potential conflict of interest with the judge would we?
First and foremost, no matter how much experience you have, you had better understand the laws and local rules in the jurisdiction you are working in. Every county, every state, has different local rules and customs.
Because something is acceptable in Chicago , it may be strictly prohibited in Starkville , Mississippi . It is your job to find this out. Finding out about it after you have started interviewing witnesses is worthless.
Hopefully you are working with an attorney who is well versed in these matters. If they are not you had better find somebody who is. If the attorney is from another jurisdiction they may not know. In that case you had better find a public defender or a local investigator who is and buy them lunch. While you're enjoying this gourmet meal at Aunt Millie's barbeque stand, find out what the local customs are. Ask for an example of previous written statements that they have obtained and used successfully.
After you have familiarized yourself with Bubba's life history and all of his previous statements, it is time to proceed to the double wide. The timing of this little jaunt is critical. Who goes and who stays home is also important. For the sake of space, please consider the following:
- Never call for an appointment
- Always go very early or very late
- Never interview in the presence of law enforcement personnel
- Always be mindful of your physical surroundings
- Dress for the area
- If you can obtain the witnesses garbage undetected, do it
In addition, whenever possible bring a witness with you. This will prove to save you much grief later, when the prosecutor has contacted the defense lawyer and accused you of misrepresenting your office. The witness can be another investigator, paralegal, student or any other unbiased party. Relatives of the client, attorneys and other interested personnel should be left at home.
When you initially approach any witnesses there are a number of factors to consider. First and foremost, you must whenever possible pick the time and place. Sometimes, you will not be able to do this for a myriad of logistical or time issues. Nevertheless, always try and pick your moment, because any slight edge you can gain may be the one that will get you the statement that will enable your client to go free, or get a new trial or hearing.
If there are going to two of you going on this interview there will be a number of considerations prior to leaving for the field trip. The first consideration should be sex, race and geographical location of the witness. All of these factors play an important role in whom you chose to bring with you. Hopefully, your background investigation of the witness will have helped determine these factors.
In any event, if you were interviewing a young black male who lives in a housing project in an urban area, you would not want to bring a young Caucasian female journalism student from Alabama with you. Consequently, if you are interviewing a middle aged white farmer in Hobart , Indiana , you would not want to bring an African American female paralegal from Brooklyn with you. The idea of course is to bring someone who will not potentially offend, or put the witness on guard any more then they will be anyway because of your presence.
Your prover should be very familiar with what you are trying to accomplish. They should have read everything you did, and you should thoroughly brief them prior to contacting the witness. They are there for a number of reasons. They should take notes if notes are to be taken. They should be on the alert for any potential danger but most of all they should remain quiet and pay attention to what is being said. On occasion, you will ask them to take copious notes of the conversation. Hopefully, their presence will reassure the witness. The witness will hopefully have something in common with the prover such as race, background, or regional compatibility.
Psychological Factors & Recanting
Witnesses in general are a pain in the ass. If they aren't looking for something materialistic, they are looking for some sort of reward for being honest. They are seldom forthright and completely honest. By the time you have reached them they are usually so screwed up, they are almost worthless. 90% of the witnesses that I have dealt with over the past 25 years are reluctant to speak to you by the time you show up. The other 10% can't wait to talk to you, either because they want to bury your client, or they want to be appointed the head of the cheerleading committee for your client. Either way they are not much help.
In any event, this is not work for the meek or timid. Usually within the first twenty-five seconds of the conversation, I will hear “I don't want to be involved,” “I don't want to talk to you,” or my all-time favorite, “I don't know you, talk to my lawyer(s).” Now I don't want to get off on a rant here, but have you ever noticed that when the genius in bib overalls answers the door at his doublewide trailer, with the refrigerator on the front porch, and the electricity is being run from a neighbor's barn, via extension cord. And his car is up on blocks in the front yard, you have to think that maybe this clown wouldn't know a lawyer if one fell on top of him from a skyscraper.
But, yet, while I'm pondering how this brilliant yet humble individual is threatening to sic his 80lb pit bull on me for disturbing his afternoon high on Meth, I'm wondering how or what can I say, that will convince him to talk to me. So, I always do the right thing and I start lying, immediately.
Yes lie. It is legal, it is moral and it works. The Supreme Court says you can do it, and you can do it as often when speaking with witnesses or any other manner of bad guy. Now, I know the moral police folks are reading this and they are thinking, I could never do that and Jeez, if I can get Ciolino on the witness stand I will show the jury he lied to the witness. Well, go ahead, I will admit to it freely. No question about it, I will lie to a witness and lie often.
The first and the biggest lie I will tell them is that this will only take a minute. I will tell that lie 10 or 15 times during an interview. Because the single greatest excuse you will hear after the litany of the first few is, “I'm too busy to talk right now.” That's when the big lie of “it will only take a few minutes” will take place.
Documenting the Interview
If you don't get the interview formally documented, the entire process may be a waste of time. Different lawyers have different views on how to best accomplish this. As the attorney you are working with has to eventually introduce this documentation into court as evidence, you had better have a clear understanding as to how you are going to accomplish this.
In some states you can surreptitiously record the conversation. However, in most states you cannot. For example, in Wisconsin there is one party consent, in Illinois , it is two party consent. In other words, you can record a conversation in Wisconsin without a witness's knowledge, but in Illinois you have to get their permission prior to turning on any recording device.
Getting a witness to talk is only the beginning. The real skill lays in getting the witness to formalize his or her statement. I have had a great amount of luck or perhaps even skill in getting witnesses to talk to me. However, if you don't ease them into signing or agreeing to a taped interview, it will become a matter of their word against yours at a later date. Thus, this is why you should always have a legitimate prover present when conducting interviews, while it is not as good as a signed or recorded statement, it is better than nothing but your word.
Now prior to taking the statement you will always want to work in some standard disclaimer language. Below is a sample of a standard written statement, usually done in long hand.
My name is Earnest Banks and I am 62 years old. I live at 6767 W. 59 th Street in Chicago , Illinois . I am employed as a sheet metal worker in Robbins , Illinois . I understand that I am giving this statement to Paul Ciolino, who has identified himself as a private investigator working for Ferguson Jenkins, the defendant in a homicide that occurred across the street from where I live in October of 2001. I also understand that Mr. Ciolino is not a police officer and is in no way representing the police or prosecutors office.
I am giving this statement of my own free will. No promises, no rewards, or coercion has been used or made to me.
On October 2, 2001, at approximately 10:00p.m, my wife Louise and I were sitting on our front porch when we heard a number of gunshots. When we looked across the street, we saw approximately seven to ten black males running west down 59 th street. We did not recognize any of them. In fact, we only saw them running away from us, so their backs were to us. When I looked across the street, I saw Ron Santo, my neighbor, lying at the foot of his front porch. His wife was in the doorstep screaming, “They shot Ron, they shot Ron.” I told my wife to call 911 and I ran across the street to see if I could help Ron. When I got there he was obviously dead, as there was blood everywhere and he was not moving or breathing. Mrs. Santo was crying and screaming incoherently. I asked her who shot Ron. She stated that she didn't see them; she only heard the gunshots and came running to the front door.
Later that night, two violent crime detectives came to my house and asked me what I saw. I told them exactly what I am saying here, basically nothing. They became very angry with me and accused me of lying. They then took me to the Chicago Police Department were they put me in a small room for several hours. During this time, I was constantly getting yelled at and threatened with arrest if I didn't tell them who shot Ron. They also told me that if I didn't tell them who shot Ron, then maybe my son Ernie Jr. would be arrested for the shooting. They told me that another witness had said that they recognized Ernie as one of the guys running from the scene. I told them that was impossible that my son was with his sister at Jewel at the time of the shooting.
After several hours I was shown a picture of Tyrone Williams a neighbors son. The older detective told me that Tyrone was the one who did the shooting. He told me that if I didn't do exactly as he said that my son would also be arrested. I knew that Tyrone had been in a gang and that the police were always at his parent's house. So I told the Detective that yeah I seen Tyrone do the shooting. The detective told me that I would have to sign a statement with the states attorney saying that I seen Tyrone do the shooting. He told me that I could go home after I signed the statement.
When the states attorney came, she asked me what happened and I told her what the detective wanted me to say. I basically lied to her and told her that I saw Tyrone shoot Ron Santo. In fact I never saw anyone shoot Santo. I only heard gunshots and seen a bunch of people running away from me with their back to me.
Some time later maybe in November I was at work in Robbins when the detectives who had originally questioned me came to my work and took me out of there. They drove to the courthouse at 26 th & California where I was taken to the Grand Jury. When I got there a different states attorney met me. He had my written statement and he asked me if I had signed it? I told him I signed it but it was all bullshit. He said what do you mean? I said, I it didn't happen like that, I never seen the shooter. He said just a minute and walked out. A few minutes later the two detectives came in and I could tell that they were really mad. They told me that I had better get my shit together or I would get indicted for perjury. They gave me my statement and told me that if I didn't identify Tyrone, that my ass would get locked up.
The states attorney come back in and asked me if I had read the statement. I told him yes. He said, are we straight on this? I told him yeah, were straight. I then walked into the grand jury and told them folks that Tyrone was the shooter. I lied because I knew that is what everybody wanted me to say.
I have had no other contact with the police or prosecutors in this case since my trip to the grand jury. I have read this statement and made it of my own free will. No promises, threats, awards or coercion of any kind has been made to me. This statement is true and correct to the best of my knowledge.
Witnessed by: Paul J. Ciolino/Date/Time
Have the witness sign and initial each page, beginning and ending. After you get back to the office, make a copy and mail it to the witness. If you are a notary, leave a spot on the signature part where you will put the general “signed and sworn before me” language.
If you are videotaping the statement, a signed statement is generally unnecessary. If you are tape recording the statement, you will want to have the tape transcribed later, so that you will have written record of the statement.
In the event that you have a witness who is talking to you but is very hesitant about signing or giving a documented statement to you, I would suggest the following.
After the interview is complete and the witness has refused to write or sign anything that has been presented to him, pull out a small tape recorder and inform the witness that you are going to make some “oral notes” so that you don't make any mistakes when the report is typed up later. Start by saying the time, date, and place of interview. State your name and ask the witness his or her name. Also ask them for a date of birth, or ssn for further identification. Then start repeating what they have told you. Stop every few seconds and ask the witness “is this accurate so far?”
Engage the witness as much as possible so that it is clear that the witness is agreeing with everything you are stating into the tape recorder.
If nothing else, this message will show that the witness was interviewed and that he or she has indeed stated what you are reporting. It is not the most locked in statement that you will ever take, but it is better than the alternative of going back empty handed.
The Devil is in the Details
Overcoming the seemingly overwhelming evidence against your client is never easy. Getting one great statement does not make a great and believable defense. It is always an accumulation of facts the will overcome the odds against your client.
I always tell attorneys that I am but a mere gatherer of facts. I don't deal in fairy tales and “I wish” scenarios. I may be aggressive, I may be dedicated, but I'm not stupid. I am not going to jeopardize my reputation or character so that I can make a client look good. The facts are what they are. Our job is to gather usable and relevant facts. Occasionally, the facts will differ from what we have been led to believe. In those instances we have an obligation to be frank and honest with the client and the attorney.
The attorneys may want to shoot the messenger, but that is all part of your job. Our only obligation is to try our best and give an honest effort. We are not in a position to create facts, we merely report them. When those facts differ from our client's recollection of the events, we are obligated to repost them as discovered.
Whatever the facts mat reveal themselves to be there is always hope. If we aren't the eternal optimists of the world, I don't know who is.
It has been my experience that you just never know what will eventually help your clients cause. He may be guilty but there are always those extenuating circumstances. Your work may not spring him or her from the penitentiary, but it may wind up reducing his eventual sentence to something they can live with. It may also save his or her life so that they can fight another day.