The Criminal Defense Attorney’s Burden

Vol. 31 No. 5

By

Ion Meyn is Visiting Assistant Professor at the University of Wisconsin Law School, Madison.

All too often, criminal defense attorneys rest their case and await a favorable verdict—confident that they have rendered a critical state witness unbelievable—only to lose. Why? Unfortunately for these defense attorneys, undermining the credibility of a critical witness is not sufficient to prevail. True, the prosecutor has the burden of proof, but both parties have a more important burden: a good story. Parties must tear down, but they must also create. In the absence of an alternative explanation presented on behalf of the defendant, the jury gravitates toward the only story, the state’s. A persuasive counter-narrative has essential elements. It provides a compelling explanation for what happened. It has factual integrity. And it supports cognizable defenses: Someone else did it, the defendant has an alibi or an affirmative defense, the police conducted a flawed investigation, or no crime actually occurred. However innocent or wrongfully charged, a defendant without a counter-narrative will lose.

The Beginning Impacts the End

Trial is an endpoint but also part of a continuum. The quality of the trial is inseparable from the quality of the investigation. Facts take time to collect. They take more time to understand and shape into a counter-narrative. When defense counsel receives a case, she is already alarmingly behind. The state has already conducted an investigation using tools unavailable to any other litigant—the power to arrest, search, seize, and interrogate. It is a monumental head start. To the extent discovery statutes, local traditions, and open record laws allow, defense counsel must fight for access to facts the state knows (or does not know) it collected. Information begets information; the state’s initial disclosure should trigger successive, targeted, and written demands that are reiterated on the record, deepening accountability. Defense counsel’s categorization of discovery efforts ensures exhaustive coverage: witnesses, suspects, medical examination, forensics, experts, and affirmative defenses. Should defense counsel choose not to look under rocks, there must be a strategic reason to walk over them.

Deconstructing the State’s Investigation

There is more in police reports than the basis for the state’s story. Embedded within these reports is a road map of investigative choices. In what order were individuals interviewed? Was the first person interviewed a confidential informant? Was he protecting his interests? Bad information tends to propagate falsehoods that, presented in an official police report, will nevertheless appear credible. Did the state fail to clear alibis of suspects because it focused only on the defendant after an anonymous tip implicated him? Could that anonymous tip have come from the actual perpetrator? Did witnesses identify others before all coalescing on the defendant? A chronological analysis of police reports (a genesis analysis) may provide for a cross-examination that reveals what a detective did not investigate. Still, there must be something significant about any investigative failure. Mistakes are only meaningful if a detective missed a fact that matters. Defense counsel must capitalize on any missed investigative opportunity and show how any newly discovered fact supports an exculpatory counter-narrative. The state may have missed investigative opportunities, but only a counter-investigation will reveal that these failures mattered.

The Counter-Investigation

A counter-investigation is essential to checking the state’s work. To this point, no one else has done so. The state investigates a case in the shadows—in the absence of judicial oversight or the watchful eye of any opposing counsel. But most problematic is the state’s non-transparent method of collecting information—agents do not transcribe but summarize witness interviews. Agents may minimize and disregard facts inconsistent with the state’s theory of the case. The state in effect authors the factual record. Officers tend to stand by their account, however erroneous. Disrupting the state’s control of the factual record is impeded by the appalling lack of discovery tools afforded to defense counsel. Defense counsel may have only limited access to police reports. Open record requests may be denied when records are connected to an open investigation. Depositions are rarely authorized, and reluctant witnesses frequently refuse to speak to defense counsel. Unlike a civil litigator, a criminal defense attorney has no discretion to compel information before a trial—which has a deleterious effect on the quantity and quality of information that informs criminal disputes.

Conferring with your client may reveal potential sources of exculpatory information—including medical or mental health information that may reveal an affirmative defense or mitigating circumstances. But the meeting is also critical to preserving the integrity of the defendant’s case. The defendant should be counseled not to speak with anyone about his case. Any detained defendant should be notified that conversations can be recorded, construed in the worst light, and potentially used against him. Jailhouse snitches who manufacture evidence find markets for lies in thin cases. The defendant should make a note of any individual who approaches him about his case. If the individual is persistent, defense counsel should question the individual about how he learned of the defendant’s case, what he knows, and whether he spoke with an officer about the defendant’s case.

Requests for open records relating to a witness may reveal exculpatory information. In a Milwaukee homicide case, the state’s chief witness said that the defendant shot the victim in the street. Open record requests were filed in connection with the chief witness, as well as 15 others. Reports revealed that the chief witness had committed a shooting at the same location, six weeks before the shooting at issue. The prosecutor claimed to be unaware of this incident. A counter-narrative began to emerge: The chief witness was implicating the defendant to avoid culpability in a string of shootings that he, not the defendant, had committed.

An investigative file should be created for each potential witness. These files contain relevant reports, criminal history, associations, contact information, and a summary of the witness’s potential relevance. In interviewing witnesses, defense attorneys frequently rely on investigators. This tradition presents an inevitable risk of information loss. Although attorney-led depositions are generally not permitted in criminal law, they provide a blueprint for a comprehensive interview. How will the witness fare on cross? Does the substance of her testimony alter strategy and present new avenues of questioning? How does she fit holistically into the case and the counter-narrative? An investigator is not equipped to make these assessments. After visiting the crime scene, defense counsel should hit the phone and the streets in the company of a prover (someone such as a paralegal or office assistant, who can provide an affidavit, or someone such as a police officer, who can take the stand to describe the investigation or impeach a witness). In cases involving eyewitnesses or time lines, defense counsel should bring a map of the crime scene, or sketch of a home, to an in-person interview, so the witness can mark her location and the location of others.

A Methodology for the Counter-Investigation

Target intermediate facts that lead to the state’s ultimate conclusion. In the Milwaukee case, the state’s chief witness signed a statement that he saw the defendant shoot the victim. The statement contained intermediate facts—he went here and there with this and that guy. Law enforcement failed to verify these intermediate facts. For example, the witness stated that he went to Sam’s house, got a haircut on the porch, and headed to the rear garage where he saw the defendant with the gun used to kill the victim later that night. The defense investigation revealed that Sam did not live at that home (statement of the landlord), and the home in which Sam actually lived did not have a rear garage (statement of another landlord). As to the haircut, the weather that day was 23 degrees below freezing, and Sam denied cutting any white guy’s hair, let alone in the dead of winter on an open porch. Although the ultimate conclusion—that the witness saw the defendant shoot the victim—could not be challenged, attacking the intermediate facts leading to that conclusion undermined credibility.

Doing just that, however, was not sufficient. Story-centric jurors would cling to the ultimate conclusion, the foundation of the state’s narrative. An effective cross finds roots in a compelling counter-narrative—in the Milwaukee case, that the state’s witness was trying to save his skin and fool law enforcement. This counter-narrative is enhanced by a cross of the detectives, showing that law enforcement did not know about the witness’s prior shooting on the same block and did not talk to landlords, check the temperature that day, or interview other individuals mentioned in the statement. Undermining his credibility through other witnesses opens the opportunity for a theme-based cross of the state’s witness: “You will do and make up anything to get out of a homicide charge, right?” What the state’s witness says—yes, no, or “I take the Fifth”—will matter less than the content of the questions, all of which reinforce the counter-narrative.

Building an Infrastructure for the Best Outcome

An organized file provides the infrastructure for conducting an investigation and any plea negotiation, trial, sentencing hearing, or appeal. Create files at the case’s inception: correspondence, pleadings, discovery, investigation, and work product. Discovery is a historical record organized by source—documents should remain in the order produced, untouched and accompanied by correspondence that details the request and response. Only copy-sets of discovery documents may be organized by chronology, witness, or subject (e.g., forensics, key medical records). A file that looks carpet-bombed does atmospheric damage; the prosecutor, court, client, and successor counsel will all pass judgment.

As a counter-narrative begins to develop, conduct an admissibility analysis for critical documents or anticipated testimony. The counter-narrative gives a fact purpose and gives any technical argument for admissibility persuasive force. Assess whether alternative defenses permit avenues for admissibility. In the Milwaukee case, for example, a prosecutor might argue that reports of the witness’s prior shooting constitute inadmissible “other acts” evidence—that the prior act inappropriately suggests the witness’s propensity to engage in the crime at bar. But the same report may be admissible under a defense that the state’s investigation was flawed for failing to consider whether the shootings were related. Motions in limine should be employed defensively (to preclude the use of inadmissible evidence by the state) but also offensively (to ensure evidence proffered by the defense will be admissible). A successful set of such motions may lead to a new round of plea negotiations more favorable to the defendant.

Ramping Up for Trial

Any defense witness should have been interviewed before she is prepared for trial. The first interview is to explore her knowledge. Witness preparation occurs after the counter-narrative is established and a witness’s purpose is known. Although a witness cannot be coached, she can be educated. Show her what she can expect at trial. Bring in a colleague to play prosecutor. If a fellow actor is unavailable, be explicit about changing roles and explain that any attack is not personal. Help the witness understand how volunteering information or making any attempt to explain an answer is against her interest and only provides the prosecutor with fuel. Show her that such opportunities arise in the relative safety of re-direct, under the guidance of defense counsel.

Trial is theater. The script is written. There is some room for improvisation, not the other way around. Trial is not a forum for new discoveries. The failure to come prepared with a counter-narrative is most apparent when defense counsel follows the outline of the state’s direct. This means defense counsel did not approach cross with intentionality or with a counter-narrative. Rather, attacking the state’s direct is to use it as a guide, which inherently validates the state’s framing of the witness’s purpose and fails to fundamentally recast the significance of the witness.

“Technicalities” of Constitutional Importance

The exclusionary rule threatens to suppress inculpatory evidence—but it may also preclude fabricated evidence that falsely implicates the defendant. For example, police coercion and suggestive procedures potentially lead to false confessions and misidentifications. During suppression hearings, officers should be confronted with treatises and policy directives—non-compliance with best practices puts the prosecutor on the defensive. Use of an expert who finds fault with an interrogation or lineup procedure will help constrain the court’s discretion in finding officer conduct acceptable. Because rulings from the bench statistically disfavor defendants’ motions, before the hearing request that transcripts be prepared and parties have the opportunity to brief arguments. An appellate court will not look favorably on a lower court that passes on a deeper analysis. Ordering the transcript should occur regardless—an officer may testify to something that protects the state’s evidence at a suppression hearing but is damaging for the state at trial; this opportunity to secure testimony for possible impeachment should not be forfeited.

Most Everything Important at Trial Happened Before Trial

Minor criminal charges are becoming rare. The general forecast is longer bouts of incarceration. Law enforcement has become more sophisticated. Prosecutors wield sobering power. The criminal defense attorney enters the case late—the state has already conducted its investigation and has determined the defendant’s guilt by way of self-authored accounts. The obstacles are significant. The stakes are high. And the state can get it wrong. In this environment, there is little room for the archetypical attorney who still captures the imagination of law students—he walks into a trial and wings a brilliant cross that stuns jurors and leads to acquittal. Confidence in one’s ability to outmaneuver any adversary may be well founded, but in the absence of conducting an equally impressive counter-investigation, it is a reckless confidence. The gazes of admiration should be turned toward the attorney who obtains hard-to-get information and files fierce, legally cohesive, factually compelling pretrial motions that give form to a counter-narrative and position the defendant well for plea or trial.

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