Mimesis Law
25 May 2020

Investigation Matters: Let’s Not Depend On Luck

Mar. 7, 2016 (Mimesis Law) — Greg Doucette, an attorney in Durham, North Carolina, recently did a good piece of work. His client was charged with reckless driving, a Class 2 misdemeanor. In a 43 part tweet barrage, Doucette explained what happened:

8. My YBM [young black male] client is charged with reckless driving to endanger, a very serious. [sic] He’s terrified. Cried in my office explaining situation.

9. Insisted he was just trying to avoid an animal that darted into the road, and swerved to the right.

10. I pull the shuck, and read the officer’s narrative of what happened: “Neighbor saw driver doing donuts in street, nearly hit wife.”…

11. Cont’d: “Skid marks show clear 360° circles. Driver claimed he was trying to avoid hitting cat.”

A “swearing contest” is when two witnesses give irreconcilable versions of events, and there is no evidence other than testimony to support either. The case then turns on the judge or jury’s evaluation of each witness’ credibility. All things being equal, it’s generally better for the defense to avoid swearing contests. A he-said/she-said battle between two civilian witnesses is not good. A swearing contest between a police officer and a civilian witness is bad. A swearing contest between a police officer and a defendant is the worst of all.

The reasons for this aren’t particularly complicated. Even if a jury is instructed that “a police officer’s testimony is to be judged by the same standards as any other witness,” there’s a subconscious assumption among most people that the police officers are “the good guys” and that defendants are “the bad guys.” In the absence of other evidence, their testimony is treated accordingly. And while the police officer has no apparent motive to lie, the same can’t be said of the defendant, who presumably doesn’t want to be convicted and, presumption of innocence aside, might be inclined to fudge the truth for his own criminal benefit.

So, from the defense’s perspective, a big part of working up a case is finding that “other evidence,” whether it’s photographs, eyewitnesses, or securing a valid alibi.

Doucette lucked out in that respect:

  1. Thankfully (how f*cking sad is it that “thankfully” is the appropriate word here?) his mom didn’t trust the officer, and took pics
  2. Which she kept, and sent to me


Money shot, indeed. Now it’s not a swearing contest anymore. Things worked out in this case for Doucette and his client:

21. The DA was kind enough to dismiss the case without putting up a fight.

Which, in itself, is a form luck, that Doucette was dealing with a reasonable DA. The prosecutor could have played hardball and refused to dismiss. Doucette and his client would have either had to plead or go to trial, and I’ll bet dollars to non-existent donut-shaped skid marks that had it gone to trial, the officer would have shown up and testified that the donut circles were in a different part of the road that couldn’t be seen in the photograph. Assuming Doucette knows how to cross a police officer and pick a jury, he probably would have won, but no guarantees.

Zooming out to look at the larger picture: I’m not knocking Doucette or minimizing what his client went through, but as criminal cases go, this was a relatively minor one. And the good result was based on the fact that the defendant’s mother had the presence of mind to take photographs immediately after the accident. When defendants are facing more serious charges, they need a better option than depending on that sort of luck.

This is why one of the most important (and most frequently missing) arrows in a defense attorney’s quiver is unfettered access to auxiliary services. Far and away, the most important of these is the access to an investigator who works under the lawyer’s direction. Someone has to track down witnesses and interview them, take photographs of the crime scene, and locate people who need to be found.

The lawyer can attempt to do these things himself, but it’s a bad idea for two reasons: 1) things like photos and recording have to be authenticated by a witness, and a lawyer can’t be a witness in a case in which he’s serving as counsel, and 2) witnesses sometimes change their story between the time they’ve been interviewed, and someone other than the lawyer has to be available to testify to what they originally said.

In Doucette’s case, we’re talking about a traffic offense, and the defendant’s mom’s photography skills were enough to secure the key piece of evidence. When it’s something more serious or complicated, as more serious cases usually are, the difficulty of securing that evidence is squared and cubed. Often, the investigative function is not only critical, and exceptionally time consuming and complex. Imagine having to canvas a neighborhood, hundreds of people, to try to find a witness to an event, or to locate someone who observed something years earlier. The logistics alone can be overwhelming.

Yet, this can spell the different between conviction of an innocent defendant and acquittal. While the prosecution has police to do their legwork, the defense lawyer has, at best, an investigator, and at worst, no one but himself. If it has the ability to retain one. When defense lawyers have no opportunity to investigate cases on their own or (almost as bad) have to beg for funds from the judge, it just makes the uphill slope on the supposedly even playing field even steeper.

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