Police & Prosecutorial Misconduct Can Equal Wrongful Conviction

By Paul J. Ciolino
PI Magazine, May/June 2003

After twenty-one years as a private investigator specializing in criminal defense, I wish I could report a decline in police and prosecutorial misconduct. Sadly, it is alive and well in America!

Clearly, the majority of criminal cases brought to trial are worthy, but there are a substantial number brought to trial with little or no evidence. Whether its states or district attorneys campaigning for re-election or the next higher office, or whether it's what's known in Chicago as a “heater case,” (high profile), the worst is brought out in police and prosecutors.

These are the cases where there is a rush to judgment, where police refuse to take a second look. These are the cases where political careers are made or lost, where television careers are launched, and where a defendant's civil rights are the last thing considered!

I have investigated cases involving defendants having been beaten and tortured into false confessions, witnesses harassed into making false identifications, the disappearance of physical evidence, and jailhouse snitches bolstering a weak case. I can't recall when a prosecutor or police officer was punished for participating in, or creating a government sanctioned conspiracy to convict an innocent person.

The vast majority of police officers and prosecutors are honest, hardworking, dedicated to playing by the rules. However, police and prosecutorial misconduct is no longer and isolated incident that occurs in large urban areas. It is happening everywhere.

More than one hundred persons have been released from our death rows. Most of them were released not because a police officer or prosecutor acknowledged that they had the wrong person, but because a team of professionals, usually working pro bono, and in concert with a major news organization, took up their case.

A review of news articles from Chicago, Illinois to Manatee County, Florida and from Hartford, Connecticut to Los Angeles, California shows the seriousness of the problem. Nearly every major police department has been affected.

The mentality that allows some police and prosecutors to present evidence that they know is false or misleading, but impossible for the defense team to counter, results from the mindset of “Hey, we're just removing another criminal from society.” Judges know it; juries know it, and defendants know it, yet we are powerless to stop it.

There is a silver bullet for the defense team!

Investigate your opponents!

Really, it's that simple. The criminal defense team has a professional and moral obligation to investigate the personnel on the other side. It is unpardonable to skip this step.

Where does one begin?

• At the courthouse! Provide the name of your subject to the clerk of the Circuit Court, and wait for the file.

• Review the file for pertinent information that may discredit, or cast doubt, on the person's testimony against the defendant.

• Independently verify the information through other documents, personal interviews, and other sources.

What kinds of information can be useful?

• Criminal records. Never overlook criminal records just because the subject is law enforcement affiliated. They have the potential to make statements from the witness stand the can launch the defendant into the bowels of the nearest penitentiary. If their statements are questionable, or outright fabrications, you may wish you had checked into their backgrounds prior to trial.

• Civil records. Check the domestic relations (divorce court) records. Who will know more about the subject's dirty laundry than an ex-spouse? Get the pertinent information from those records. Do a personal interview. These records are a depository of allegations ranging from child abuse, non support and orders of protection to accusations of drug and alcohol abuse. Remember, these are only allegations. Verify. Also, check the lawsuits filed by, and against, your target.

• Seek answers to the following questions:

  1. Has the subject been experiencing severe financial difficulties?

  2. Has the subject been living beyond his or her means?

  3. Is this person “moonlighting” in a business with a conflict, or potential conflict, or interest?

  4. Are close family members or associates involved in questionable or unethical schemes or illegal activities?

  5. Is the person in an insurance scam involving stolen property or vehicular accidents?

The possibilities are only limited by your ability to conduct thorough searches. This is not a simple matter of sending the defendant's wife to conduct the research! A professional investigation involving a host of endless jurisdictional possibilities: federal, state, county, city or township, is required. Every state is different. The nuances are sometimes so subtle an amateur will miss them.

Investigate the opposing counsel

Yes this means the prosecution. Prosecutors continue to investigate defense counsel, and we all know that they look for anything they can throw at investigators to discredit us!

• Check the court records, as listed previously.

• Visit the local and state attorney registration and disciplinary commissions' repository for complaints and disciplinary actions.

• Check pleadings, depositions, trial transcripts, and other records of prior trials. These might show predictable “trends” of behavior, or patterns of abuse and inappropriate conduct.

• Nobody loves great gossip more than cops, lawyers, inmates and court personnel. When all else fails, ask someone about your subject, or his or her family.

Don't forget the Internet!

The internet contains a wealth of information about most of us. We all know the rule, “Garbage in and garbage out,” but today's investigator is remiss if an Internet search is not utilized. Independently verify or disprove the information.

Conclusion