The Art of Investigation

Chelsea A. Binns, Bruce Sackman

• Publisher: CRC Press
• Year: 2019
• eBook ISBN: 9780429757389
• Edition: 1
• Topic: Business
• Subtopic: Management
• Index: Business

The Art of Investigation examines the qualities required to be a professional, thorough, and effective investigator. As the title suggests, it delves into more than the steps and procedures involved in managing an investigation, it also covers the "soft skills" necessary to effectively direct investigations and intuit along the way. The editors and contributing authors are the best in their field, and bring a wealth of real-world knowledge and experience to the subject. There are several publications available on the nuts-and-bolts of the process and stages of an investigation. That ground has been covered. However, little has been published on the investigative skills required, the traits necessary, and the qualities endemic to an inquisitive mind that can be cultivated to improve an investigator's professional skill-set.

Each chapter discusses the applicability of the traits to the contributor's own work and experience as an investigator. In doing so, the contributors provide a story—or set of stories—from their personal experience, which demonstrates a given trait and its importance in the course of their investigative work and career. This will be first-hand experience that will serve to help any investigative professional in the course of their work. The case examples included throughout are sometimes surprising, but always engaging and insightful. An investigator must keep an open mind above all else, and this book will "lift the veil" on the inner workings of an investigation, in addition to the thought processes and inner monologues of an investigator as part of that process.

Key Features

• Chapters highlight the qualities and traits—the "soft skills"—that are required, and which can be improved over time, to be a thorough investigator.

• A veritable "Who's Who" of renowned investigative experts lend their personal expertise and experience to this how-to manual for investigators.

• A unique approach is applied and provides self-help advice for both new and experienced investigative and security professionals.

• The book focuses on the learned, acquired, and intuitive skills of investigation—a nuanced but essential aspect of the investigative skill-set.

The Art of Investigation will be a welcome addition to any investigator's toolkit and will also be of interest to students in criminal justice, security, and Homeland Security programs, security consultants, corporate and private security professionals, and the legal community.

Chapter 1

Tenacity

Kim Anklin and Bob Rahn

Tenacity is a quality that all investigators must have in order to be successful. Tenacity in an investigator gives you the ability to work a case until all leads are exhausted and then go back and look at it again to figure out what you missed, to start from scratch and re-do every step of the investigation again. To some, this may sound tedious, but this skill is critical in investigations and separates the good investigators from the great ones. Tenacity is the ability not to take anything for granted, to examine every bit of evidence you have no matter how small and insignificant, and to keep going when you think you don’t have anywhere else to go. It means never giving up, like a dog chasing a ball. Yes, you will get discouraged. However, when you are rewarded with a great outcome in a case, you will soon realize the benefit.

Tenacity comes to people in different ways. Take the authors of this chapter, for instance. For Bob, it was learned over the years. Bob honed his tenacity while investigating hundreds of homicides during the 1980s in Brooklyn, while working with some of the most highly experienced and talented detectives in the world. For other investigators, such as Kim, tenacity is a trait they are born with. Kim is extremely persistent by nature. She is very committed to her casework, and remains engaged until she gets the answers to her questions. Her experience as an analyst studying and reviewing data and fact patterns makes her an outstanding investigator.

Case Study in Tenacity

We started conducting criminal defense investigations in 2008 after attending an Investigators’ Conference in Worcester, Massachusetts. The keynote speaker at this conference was renowned defense attorney F. Lee Bailey. During his speech, he said prosecutors not only had awesome power and authority, but also had unlimited resources to prosecute individuals. They had the full resources of the police department and the prosecutor’s office. This was a tremendous disadvantage for the defense who had none of these resources at their disposal. Mr. Bailey said this dynamic meant the scales of justice were tipped against the defense, meaning prosecutors had a distinct advantage. His statements inspired us to specialize in criminal defense investigations. We decided to do so on a case-by-case basis, so that we could be more selective in the investigations we conducted. After conducting a few pre-trial defense investigations, we found that we enjoyed working on them, and were good at it. The rest, as they say, is history.

It wasn’t until the spring of 2012 that we entered the world of post-trial convictions. More specifically, wrongful convictions. In that year, we worked on a case that really demonstrates our tenacity. In 2012 we received a telephone call from a family member of a man named Jonathan Fleming. In August 1989, Jonathan Fleming was arrested for killing Daryll Rush, aka Black near a Brooklyn housing project. At trial, the jury heard evidence that Fleming was at Disney World with family members at the time of the murder, but he was nevertheless convicted of homicide and sentenced to 25 years to life in prison. The family was looking for an investigator to help them prove that Fleming was wrongfully convicted. At the time, the family said they didn’t have the funds available to hire us.

We did not hear from them again until 2013. We were told that they now had the resources to hire us but were a bit hesitant about engaging another investigator. We learned that, prior to us, the family had hired four different private investigators and were dismayed about hiring another one because those PIs had been unable to help them. The family interviewed us over the phone and Jonathan Fleming interviewed us extensively from his prison cell. After answering all of their questions they decided to hire us. We had an agreement that we would never take a case unless we discussed it and both agreed on accepting it. One of us, Bob, made the initial decision to take the case and now had the daunting task of convincing the other, Kim. Bob knew it was a new and unknown challenge for them. He called Kim and said, “Hey listen remember that call we had in 2012 about the wrongful conviction investigation?” Well they called back and want to hire us, so I took the case”. After a brief pause, Kim said “Okay” and so we, Bob and Kim, were in the wrongful conviction business.

As wrongful conviction investigators, we learned that tenacity is a mandatory skill-set in this business. In the majority of wrongful conviction cases, the client or the incarcerated individual has been convicted for 10, 15, 20, or 25 years to life. In Fleming’s case he was serving 25 to life. When you are investigating cases like these you are up against two major obstacles. The first being that it involves a wrongful conviction, which is a challenge by nature. In these cases, the outcome had already been decided in a court of law and is very challenging to reverse. The second obstacle is that so much time has passed since the conviction, until the time an investigator gets involved, that it is also now a “cold case.” By definition, a cold case is one where all the leads have been exhausted.¹ Key witnesses in the case may have moved away and or died. Documents may have been lost or destroyed. There are often a host of obstacles and you don’t know what you are facing until you begin reviewing the case files.

On a sunny Sunday morning in April 2013, we commenced the Wrongful Conviction Investigation of Jonathan Fleming. We drove to Queens and met with Jonathan’s former attorney who had been handling his case pro-bono for several years. The attorney handed us a large box of police reports and transcripts and said, “I have done all I could. Good luck.”

We began with the three-step protocol for investigating wrongful convictions. This protocol was developed by Private Investigator Susan Carlson.² Susan has since passed away, but her written works continue to inspire professional investigators. Step one of her protocol is Preparation. This involves an extensive review of the documents. You must familiarize yourself with the entire case and know it just as well as the client does. This must be done prior to any interviews or field investigations. Investigators must be able to determine whether the witnesses are telling the truth during future interviews. The second step is Inquiry. This involves the field work. Visiting the crime scene, tracking down all known witnesses and attempting to get statements. You also want to look for potential unknown witnesses. That is, people who know something about the case, but never came forward and/or were never spoken to by the police or prosecutor. The final step is Documentation, which involves preparing your report so it can be presented to the prosecutor or the court.

The preparation phase for us involved pouring through the box of documents that Jonathan’s former lawyer gave us. Kim methodically read literally thousands of pages of pre-trial hearings, trial transcripts, post-trial hearings, as well as writs and motions which were submitted over the years. Here, tenacity was critical. Bob reviewed the police reports initially to determine their validity and accuracy, then Kim reviewed them again. Kim then conducted an analysis of all the documents to determine what we had and what was missing. During this time, we had numerous telephone conversations with Jonathan from his prison cell. We asked him questions and picked his brain about the case. The preparation process took almost a month, but when we had finished, we were both confident we knew the case better than anyone.

We learned there was no physical evidence linking Jonathan to the murder. No fingerprints, no DNA, and no ballistics. Jonathan was convicted solely on the testimony of an eye witness, who we will call witness A, that the police had picked up in a stolen car and who was in possession of crack cocaine. It was later determined that Witness A was given a deal by the prosecutor—if she testified against Jonathan, charges against her would be dropped. Witness A agreed to the deal. However, just before she testified, she told the police and prosecutor she changed her mind, because she would be lying, and she did not want to take the stand and lie under oath. At the time, Witness A was eight months pregnant. The police and prosecutor told her that unless she testified to what was stated in the original deal she had made, they would make sure she had her baby in jail. The witness reluctantly testified, which resulted in Jonathan being convicted. After the trial, the witness told Jonathan’s lawyer that she wanted to recant her testimony because she was coerced by the police and prosecutor. The lawyer petitioned the trial judge and a 330 hearing, or a post-trial hearing, was conducted in front of the same judge that presided over Jonathan’s trial. Witness A told the judge she wanted to recant her testimony because it was coerced and untrue. The judge ruled that the witness had “no credibility” and believed she was lying about the coercion. The judge decided that the conviction would stand.

During the second phase of the protocol, we went into the field to make inquiries as to what happened in the case. The first thing we did was visit the crime scene. Once there we photographed the scene, examined the location where the victim was shot and retraced his steps while he was running away, and examined and photographed the location where the victim collapsed and died. We also compared the location of the shooting to the location where witness A claimed to be when she witnessed the homicide. Bob stood at the location of the shooting while Kim went to where the eye witness claimed she was.

We found some problems with the original testimony. The homicide occurred at about two in the morning. Our crime scene examination was conducted at approximately ten in the morning in broad daylight. Once in place, Bob attempted to photograph Kim’s location, but could not see her. He called her on the phone and told her to wave her arms. He still could not see her. It wasn’t until he used a pair of binoculars that could he finally see where Kim was. They then measured the distance from where the shooting occurred to where the eyewitness stated she was. It turned out the eyewitness was 421 feet away from the location of the shooting. Again, the shooting took place at 2 am. The witness testified at trial that she was smoking crack most of the day and was not wearing her glasses, which she needs for distance. Yet, she testified that she could see Jonathan’s face as he shot the victim.

Let me put this into perspective. If anyone has ever been to Yankee Stadium, imagine standing at home plate and looking out into the center field seats, which are approximately 420 feet away, then imagine being able to pick out the face of someone sitting in one of those seats. This simple exercise of visiting, photographing and measuring the crime scene told us there was something very wrong with this case.

We also found issues with another witness’s statement to police. Another witness interviewed by the police, but who never got called to testify, was a women who lived in the building that directly faced the courtyard where Black was shot. We will call her CK. She knew Black and was friendly with him. CK told the police that prior to the homicide, three men came to her apartment looking for Black. She knew two of the men by name and gave a very detailed physical description of the third person to the police, who was carrying a gun in his waistband. One was Jonathan’s cousin, the other was a man named Joe (whom we learned was now deceased). CK provided this information to the police, yet they never brought these men in for questioning. It was at this point of the investigation that Kim looked at Bob and said, “I think Jonathan is really innocent.”

Three additional witnesses testified at Jonathan’s trial, although none of them were eyewitnesses. They were prosecution witnesses who were used to try and destroy Jonathan’s alibi about being in Florida, despite the fact he had plane tickets, hotel receipts, photos and a video of him and his family in Disneyworld. We located these witnesses; one was in living in Albany, NY, one in Puerto Rico and the third was in New York. We were able to interview two out of the three—the third kept running until he was eventually arrested for murder and kidnapping in Queens.

Next, we called the Kings County District Attorney’s Office, Conviction Review Unit, to determine what they would need from us to reopen the case. They said to consider a case to be re-investigated, we would have to show that we found “newly discovered evidence.” They informed us that a witness simply recanting their prior testimony was not sufficient.

This is when the tenacity really kicked in. We had to hit the streets again and find new evidence. Namely, people who knew something about the case, but never spoke to the police or prosecutors. It took a lot of work, but eventually, we did. We learned of a woman, “B”, who had never been spoken to by the police and never testified at the trial. We tried for a month to sit down with B and get a statement from her. She finally consented and she agreed to meet Bob in a park in the Brownsville section of Brooklyn. On the day of the meeting B showed up with a male friend and met Bob, while Kim and another investigator by the name of Scott Wagner watched in a nearby car.

This meeting was very informative. B stated that on the night of the homicide, she was at her mother’s house. All of a sudden Jonathan’s cousin, her brother Joe, who we mentioned earlier, and another male she knew as Rose (also known as ‘Lips’), came running into the house. B took her brother Joe to the side and asked him what happened. Joe told her that Rose “popped” (killed) Black (Darryl Rush). After telling Bob this story, B agreed to provide a written statement as to what she saw and heard. This statement also corroborated what CK had told the police about the three men who were in her house before the homicide. This was the newly discovered evidence that we needed.

Next, we set up a meeting with John O’Mara, the Chief of the Kings County DA’s Conviction Review Unit to present this new evidence to him and his investigators. Based upon the statement from B, Mr. O’Mara agreed to reopen Jonathan’s case and assigned it to the DA investigators. In an unprecedented move, Mr. O’Mara authorized us to work together with his investigators on the case. This was unique in that for the first time detectives from the DA’s Office were working hand in hand, sharing information with Defense Investigators, all with the same goal—to determine if Jonathan Fleming was in fact wrongfully convicted.

Then we got another break in the case. Prior to working with the DA investigators we learned the whereabouts of Jonathan’s cousin. He was living in a small town in South Carolina, about an hour and a half from Myrtle Beach. We really wanted to speak with him and to try to get a statement from him in order to clear Jonathan. We discussed this new information with the DA’s investigators and they all had a second meeting with Bureau Chief O’Mara. We told him we planned to go down to South Carolina to interview him. Mr. O’Mara jokingly said, “Do you really think he is going to confess to murder?” Kim looked at him and said, “If we can find him we will get him to talk to us.” Mr. O’Mara laughed and then told his detectives to go with us to South Carolina.

The trip to South Carolina would further demonstrate our tenacity. In November of 2013 we arrived in South Carolina and coordinated the plan to visit Jonathan’s cousin with the DA investigators and the local Sheriff’s Department. We went to the cousin’s house, but no one was home. The neighbor said we had just missed the cousin, who went to his aunt’s house a few miles away. Once at the aunt’s house, we learned that the cousin had been there, but had left about five minutes prior to our arrival. The aunt said the cousin was driving a teal colored Chrysler 200. We recalled passing a car matching that description on the way over to the aunt’s house. The car was headed in the opposite direction back toward the cousin’s home. Everyone jumped back into their cars and went rushing back to the cousin’s house. When they arrived the cousin was observed exiting the house and getting back in his car. The Sheriff’s Deputies stopped him and he was informed that investigators from New York wanted to speak with him.

Next, the lengthy interviews took place. At this point his mother and aunt showed up and they were told the purpose of the visit. Everyone went into the back yard and sat down at a picnic table under a big tree. The cousin was reluctant to talk at first and his mother did not want him to say anything. We, along with the DA investigators, took turns talking with the cousin. It was an unusually warm November day, the sun was shining and everyone at the table was sweating. The questioning went on for about four hours. We showed him multiple affidavits where witnesses had placed him at the scene of the homicide with two other people. They also placed him driving Jonathan’s car that night. At this point we told the cousin “Look we didn’t come all the way from New York on a hunch. All of these witnesses placed you at the scene driving the car. Tell us, are we at least headed in the right direction?” The cousin looked at his mother and his aunt, gave a big sigh and said, “Yes, you’re in the right direction.”

We finally ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword
• Acknowledgments
• About the Editors
• Contributors
• Introduction—Editors’ Note
• 1 Tenacity
• 2 Self-control
• 3 Curiosity
• 4 Patience
• 5 Energy
• 6 Initiative
• 7 Skepticism
• 8 Discretion
• 9 Adaptability
• 10 Confidence
• 11 Creativity
• 12 Integrity
• 13 Professionalism
• 14 Ingenuity
• 15 Empathy
• Index