Transcription

3PA RTWorking with Investigators andForensic Specialists

CHAPTER 10Law Enforcement Investigations:Essential ConsiderationsStan CrowderNobody is going to take your views seriously if you cannot supportthem.Robert K. Miller (1992, p. 3)KEY TERMSAdministrative Investigations: Fact-finding inquiries conducted by anagency or government regarding its own management and performance.Assessment (of Intelligence): Determining the significance of information.Criminal Intelligence: Information compiled, analyzed, and/or disseminatedin an effort to anticipate, prevent, or monitor criminal activity.Criminal Investigations: Inquiries conducted when there is a suspectedviolation of criminal codes or statutes to determine whether a crime hasbeen committed, to gather evidence related to the identity of suspects, tolocate and facilitate arrest, to recover property, and to prepare a case forcriminal prosecution.Deduction (of Intelligence): Determining the useful conclusions whichmay be drawn from the assessment and integration of intelligence.Employment Tribunals: Independent judicial bodies who determinedisputes between employers and employees over employment rights,usually involving cases of discrimination and wrongful terminations(Dodd, 2009).Garrity Rule: A legal protection which provides that during anadministrative investigation, a police officer or other public employee maybe compelled to provide statements under threat of discipline or discharge,but those statements cannot be used to prosecute the officer criminally.High Intensity Drug Trafficking Area (HIDTA): A program thatdesignates areas within the United States that face drug traffickingthreats affecting other areas and develops and implements a strategyCONTENTSLocal, State,and Federal LawEnforcementin the UnitedStates . 355Types ofInvestigations . 357Jurisdiction andPolitics . 371InvestigatorQualifications . 373The “Outside”Expert . 376Ratiocination andLucubration . 377Summary . 377References . 378353Copyright 2010, Elsevier Inc. All rights reserved.

354CHAPTER 10Law Enforcement Investigations: Essential Considerationsto address the drug threat there through partnerships with local, state,and federal agencies.Information: Knowledge gathered from other people.Instrumentation: The application of instruments and the methods ofphysical sciences to the detection of crime.Integration (of Intelligence): Combining the elements of an analysis toproduce a picture of activities.Intelligence: The gathering and analyzing of information that does notinvolve complaints or events but is in anticipation of them.Interrogation: The skillful questioning of witnesses and suspects.Investigation: Any systematic inquiry to determine the facts surroundingan event or situation (Ortmeier, 2006).Law Enforcement (LE): Sworn officers or agents of government agencieschartered to enforce criminal laws within their jurisdiction and toinvestigate related infractions.Link Analysis Charting: Using a graphical visual design (e.g., flow charts)to show the relationships between individuals and organizations.Local Law Enforcement: Campus and city police departments, as well ascounty sheriffs’ offices.Lucubration: Long, hard study, often at night, sometimes resulting in awritten, scholarly work.Ratiocination: Clear thinking, putting forth a logical argument.Regional Information Sharing Systems (RISS): A U.S.-wide law enforcementinformation sharing program, offering secure communication, access tointelligence databases, and investigative resources and services.Vice Squads: Units or teams that are in charge of investigating crimeswhich involve someone profiting from another person’s pleasure(i.e., crimes relating to drugs, prostitution, gambling, alcohol, cigarettes,and so on).Dr. P. J. Ortmeier (2006, p. 320) explains that an investigation is “any systematic inquiry to determine the facts surrounding an event or situation.” Carefulreaders will note that this definition does not assume criminality, it does notassume victimity, and it does not assume a particular outcome. It suggests,rather, that the facts are not known. It is used to describe a situation in whichthe facts must be gathered, verified, and organized so that meaningful inferences may be drawn from them. On that same line of reasoning, the need foran investigation suggests that conclusions about persons or events are unwarranted until the necessary inquiry has been conducted.

Local, State, and Federal Law Enforcement in the United StatesLaw enforcement investigators of every kind are charged, within the scopeof their inquiries, to answer the time-honored questions of who, what, where,when, how, and why. The results of an investigation, once assembled, may beused as proofs—that someone did or did not do something, that somethingdid or did not happen, that patterns or motives are present or absent. The contexts for developing investigative proofs vary widely but tend to involve administrative or legal proceedings.Law enforcement agency policies and the criminal codes that law enforcementagents are meant to enforce vary from agency to agency, from city to city, fromstate to state, and from country to country. However, investigative goals andbest investigative practice standards are universal. It is fair to say that, in general terms, all investigators are after the same thing: the facts about what happened. In narrower terms, however, every investigator has different rules tofollow while getting there. Whether one is a homicide detective in Australia, asex crimes detective in New York City, an Inspector working for Scotland Yard,a vice detective in Los Angeles, or a detective/constable in Barbados—no onelaw enforcement agency is the same as any other, even within the same country. For the uninitiated, this can be disorienting and frustrating.The purpose of this chapter is to help orient forensic criminologists with ageneral but applied understanding of what law enforcement investigationsinvolve, who performs them, and to what end. It will discuss the two majortypes of investigations, the roles of agencies charged with performing them, theproblem of jurisdiction, and educational requirements and recommendations.It will conclude with a discussion regarding the use of outside experts, such asforensic criminologists, and some friendly advice.LOCAL, STATE, AND FEDERAL LAWENFORCEMENT IN THE UNITED STATESThe term law enforcement refers to sworn officers or agents of government agencies chartered to enforce criminal laws within their jurisdiction and to investigate related infractions.In the United States, local law enforcement refers to campus and city policedepartments, as well as county sheriffs’ offices. Most law enforcement occurs atthe local level (Ortmeier, 2006, p. 17) because just about every U.S. city has itsown police department of varying size and capability. Ortmeier further reveals,“the majority of police agencies employ less than ten full-time sworn policeofficers and approximately one-third employ less than five full-time officers”(p. 17). Most counties have an elected sheriff who leads his or her respective office, and a few have a police department as well. In the counties wherethere is both a sheriff’s office and police department, the duties of the sheriff355

356CHAPTER 10Law Enforcement Investigations: Essential Considerationsare somewhat limited, depending on which tasks of law enforcement are delegated to the police department by the elected officials. The bottom line is thatit is done a little differently everywhere, and broad generalizations about rolesand responsibilities will not always apply.State agencies that conduct criminal investigations are varied and encompass numerous enforcement tasks. Generally, state law enforcement agencieshave an investigative arm or subdivision (i.e., a State Bureau of Investigation).However, many other state agencies have investigators and agents who performcriminal investigations. They include, but are certainly not limited to, the StateMedical Board, the Department of Health, the Attorney General’s Office, Childand Family Welfare (a.k.a. Child Protective Services), Department of HumanServices, gaming commissions, the Department of Indian Affairs—the list goeson and on. With all these agencies, one can easily become confused.As a general example, it is a criminal violation to commit welfare fraud; yet,the investigation will often be conducted by investigators in the Department ofHuman Resources, not the “State Bureau of Investigations,” state law enforcement, or state police.In Georgia, as a more specific example, the Georgia Bureau of Investigations(GBI) has statewide jurisdiction and is independent of other criminal justiceagencies. The GBI provides assistance to local and state agencies through theInvestigations Division, the State Crime Laboratory, and the Georgia CrimeInformation Center. The largest division is the Investigations Division, andGBI Agents assist local agencies with violent crime investigations.Federal agencies (often called the “letter agencies” by street cops), on the otherhand, are organized and tasked with specific and limited enforcement challenges by law, executive order, or design. As noted by Ortmeier (2006, p. 15)“Federal law enforcement agencies do not have general police powers becausethe U.S. Constitution limits the authority of the national government.”Ortmeier (2006) further notes the existence of law enforcement and investigative duty within the following U.S. departments: Labor, Agriculture, Defense,Interior, Postal Service, Treasury, and Transportation. The smallest federal lawenforcement agency is the U.S. Fish and Wildlife Agency with approximately261 special agents and 122 wildlife inspectors. Additionally, each branch of themilitary has its own investigative division.The U.S. Department of Homeland Security (DHS) encompasses 22 federalagencies with varied law enforcement and intelligence-gathering tasks. Byexamining the Border and Transportation Security Directorate, one can findthe following agencies and tasks: Transportation Security Administration(TSA)—tasked to protect the transportation systems and security at airports;Customs and Border Protection (CBP)—tasked to manage, control, and protect

Types of Investigationsthe nation’s borders; Immigration and Customs Enforcement (ICE)—tasked toidentify and counter vulnerabilities in the nations border, economic, transportation, and infrastructure security; U.S. Secret Service (USSS)—tasked toprotect the president and national leaders and financial and critical infrastructure. Other agencies in DHS include United States Park Police, the law enforcement branch of the National Park Service—tasked to protect national parksand monuments and Food and Drug Administration (FDA)—tasked to protectfood, the blood supply, and drug tampering.Among the most well known federal agencies, the Federal Bureau of Investigationhas charter over 200 categories of federal law, including counterterrorism, counterintelligence, cybercrime, public corruption, civil rights, organized crime, whitecollar crime, and major thefts/violent crime (see http://www.fbi.gov for a complete list). It also has its own crime lab. However, it does not have charter over sexcrimes or homicides unless they occur on federal property. This is infrequent, tosay the least, and quite a contrast to their portrayal in film and television.TYPES OF INVESTIGATIONSGenerally speaking, two types of investigations are performed by government(a.k.a. public) and law enforcement agencies: administrative and criminal.Administrative InvestigationsAdministrative investigations are fact-finding inquiries conducted by an agencyor government regarding its own management and performance. Such investigations are authorized as a routine matter, by suspected infractions of policies,or by the concerns of a person in authority. They involve an investigation intoan event or circumstance involving one or more of the following (examplesonly): Employee background;Employee character and fitness;Promotions and pay raises;Employee or departmental performance reviews;Employee or departmental audits;Employee safety;Officer-involved shootings;Violations of agency policies, rules, or protocols;Professional misconduct;Harassment or discrimination;Property misuse/damage/theft;Threatening, intimidating, or violent behavior;Potential criminal activity involving agency personnel or resources.357

358CHAPTER 10Law Enforcement Investigations: Essential ConsiderationsThese circumstances and related violations are generally noncriminal andmay result in disciplinary action such as suspension, demotion, financialsanctions, and even dismissal. However, the circumstances can also be procedural—in relation to promotions, pay raises, transfers, or in response to aparticular yet general concern. In such cases, administrative investigations canresult in favorable outcomes, like changes to existing agency policies, rules,and protocols.Force of EffectAdministrative investigations have the weight of the investigating agencybehind them—but not necessarily the weight of the law. If those in the agencyare forward thinking and reform oriented, then the findings of these inquiries are given a priority and action is taken. If not, then there may be littleor no agency response at all, resulting in diminished internal accountability.Under these circumstances, it is possible that even when a clear violation hasoccurred, the penalties may be misunderstood, misapplied, or ignored altogether. Agency response is entirely up to those in charge of the agency.In Atlanta, Georgia, for example, police hiring policies related to pre-employmentbackground investigations are well-guarded secrets, but the results are not. Asexplained in Eberly (2008):Keovongsa Siharath was arrested in Henry County on charges hepunched his stepfather.Jeffrey Churchill was charged with assault in an altercation with awoman in a mall parking lot.Calvin Thomas was taken into custody in DeKalb County on aconcealed weapons charge.All three are now officers with the Atlanta Police Department.More than one-third of recent Atlanta Police Academy graduateshave been arrested or cited for a crime, according to a review of theirjob applications. The arrests ranged from minor offenses such asshoplifting to violent charges including assault. More than one-third ofthe officers had been rejected by other law enforcement agencies, andmore than half of the recruits admitted using marijuana.“On its face, it’s troubling and disturbing,” said Vincent Fort, a statesenator from Atlanta. “It would be very troubling that people mightbe hitting the streets to serve and protect and they have histories thathave made them unqualified to serve on other departments.”But Atlanta police say it’s not so simple. Officials have been tryingwithout success for more than a decade to grow the department

Types of Investigationsto 2,000 officers, an effort hurt by this year’s budget crisis. Withcompetition for recruits intense among law enforcement agencies,Atlanta has had to make concessions.“We would like, in an ideal world, to see every applicant with a cleanrecord, but obviously that’s not reality,” said Atlanta police Lt. ElderDancy, who runs the department’s recruitment unit. “I don’t think you’llfind any departments who hire only applicants with squeaky-cleanrecords.”Three decades ago, a police officer with a criminal record was muchless common than it is now, said Robert Friedmann, a criminal justiceprofessor at Georgia State University. But times have changed andmany agencies have had to relax their hiring policies, Friedmannsaid.Other local police agencies have hiring guidelines similar to Atlanta’s.Police departments for Cobb, DeKalb and Gwinnett counties don’t hirerecruits with felony convictions but do hire those with misdemeanorarrests, on a case-by-case basis.Dancy would not divulge all of Atlanta’s restrictions but said thedepartment won’t hire anyone with felony convictions, or those withconvictions for obstruction of justice, sex or domestic crimes.Even so, police documents show that many of their recruits haveblemishes on their records.The Atlanta Journal-Constitution, through an Open Records Actrequest, asked in mid-August for the job applications of the AtlantaPolice Department’s two most recent graduating classes. Thedepartment provided 36 applications for police recruits who graduatedJune 10 and Aug. 4. All the graduates are currently Atlanta policeofficers.Some departments have a zero tolerance policy for pre-employment criminalconduct; whereas, others do not. However, having a policy and following it aretwo different things.In the United Kingdom, guidelines provided by the Home Office and theAssociation of Chief Police Officers offer the following with regards to drivingunder the influence (Cobain, 2008):An officer convicted by a court of a drink driving offence can expect toface a formal misconduct hearing.The usual sanction to be applied or, in the case of a senior officer,recommended by the tribunal and applied by the police authority, is359

360CHAPTER 10Law Enforcement Investigations: Essential Considerationseither dismissal or a requirement to resign to reflect the serious viewwhich is taken both inside the service and by society generally.However, despite having faced internal administrative misconduct hearings,many officers have been allowed to stay on the job. Cobain (2008) describesthe following reality, not entirely dissimilar to the results in Atlanta, wherethose charged and convicted of a crime are allowed to continue serving in lawenforcement:Scores of police officers across the UK are avoiding dismissal afterbeing convicted of drink-driving, despite Home Office guidelines thatsay they should usually be sacked or forced to resign because of theseriousness of the offence. The Guardian has learned that at least 170officers have been allowed to remain serving—or to retire at taxpayers’expense—after being convicted of drunk-driving since the guidelineswere issued six years ago.A series of requests for information made under the Freedom ofInformation Act have revealed wide differences in the manner in whichforces deal with officers convicted of drink-driving, or related offencessuch as failing to provide a breath or blood specimen.Some, such as Nottinghamshire, Thames Valley and Essex, demandthe resignation of every officer convicted of the offence if they do notvolunteer their resignations, while others, such as West Midlands,demand the resignation of the overwhelming majority of those caughtdrink-driving.Within other forces, such as the Police Service of Northern Ireland andNorthumbria police, the majority of officers convicted of the offencehave been allowed to continue serving or to retire.This passage brings us back to the reality that many government and lawenforcement agencies perform administrative investigations but are essentiallyfree to decide what the results mean even when the law has been violated.Under these conditions, there are agencies that act with impunity until compelled by government intervention, public outcry, or civil litigation to enactreform.Who Performs Administrative Investigations?Administrative investigations may be conducted by a supervisor, by a particulardepartment or unit within the affected agency, or by an independent agency,investigator, or tribunal. Most procedural investigations or minor infractionsrelating to individual officers are conducted in house and kept relatively quiet.There may even be a unit dedicated to handling these kinds of inquiries, such

Types of Investigationsas an Internal Affairs Division or an Audit Department. The more severe, systemic, or public the administrative concern, the more there is a need for theappearance of action and objectivity, and the more likely an independentinquiry will be involved.Historically, independent investigations and audits of law enforcementagencies have been reactive—a response to highly publicized incidentsof failure or malfeasance. Quasi-independent investigations involve outside agencies, like bringing in the state or federal authorities to investigate a local department. Fully independent investigations have involvedvarious specialists and specialist panels drawn from forensic criminologydisciplines. Two major examples include New York City’s Commissionto Investigate Allegations of Police Corruption and the Anti-CorruptionProcedure of the Police Department headed by retired judge MiltonMollen (1994) and the independent investigation of the Houston PoliceDepartment Crime Lab from 2004–2007 headed by attorney MichaelBromwich, formerly of the United States Department of Justice, Office ofthe Inspector General.1It is common for law enforcement agencies to prefer independent investigators with some kind of prior law enforcement experience or connection. Thispreference is inherently problematic: while such investigators may have therequired knowledge and expertise to perform an investigation, past alignmentwith law enforcement may facilitate bias or its appearance. Consequently,bringing in an ex-commissioner of police or an ex-police detective to performan investigation or audit of any kind is ill advised unless his or her reputationoutside law enforcement is impeccable and his or her findings are made available for public scrutiny.Administrative investigations related to employment issues have theirown rules. As mentioned in the previous section, the United Kingdom hasEmployment Tribunals, which “are independent judicial bodies who determinedisputes between employers and employees over employment rights.”2 Theyhear cases involving discrimination and wrongful termination for all publicemployees, including police officers (Dodd, 2009). In Australia, there is a similar government agency called the Australian Industrial Relations Commission(AIRC).3In the United States, the only comparable national agency is the EqualEmployment Opportunity Commission (EEOC),4 which operates at the federal level. However, each individual state has its own peculiar employmentlaws and investigating agencies. When law enforcement officers are involved inadministrative investigations, especially those that might result in their termination, the Garrity Rule applies.1See http://www.hpdlabinvestigation.org2See http://www.employmenttribunals.gov.uk3See http://www.airc.gov.au4See http://www.eeoc.gov361

362CHAPTER 10Law Enforcement Investigations: Essential ConsiderationsThe Garrity RuleAs demonstrated in the previous sections, it is entirely foreseeable that noncriminal inquiries may uncover criminal activity. If an administrative investigation confirms the likelihood or the existence of criminal activity, then a separatecriminal investigation must be requested by the appropriate law enforcementagency. However, if this occurs within a law enforcement agency in the UnitedStates, a controversial protection is engaged, referred to as the Garrity Rule.The Garrity Rule refers to the U.S. Supreme Court’s decision in Garrity v.New Jersey (1967). It provides that during an administrative investigation, apolice officer or other public employee may be compelled to provide statements under threat of discipline or discharge, but those statements may notbe used to prosecute him or her criminally. As explained in Clymer (2001, pp.1314–1321):Police departments routinely conduct noncriminal, administrativeinvestigations into allegations of police misconduct to determinewhether discipline is warranted. As part of those investigations,investigators often interview the suspect officer or officers along withwitness officers. In cases in which alleged misconduct may resultin criminal charges, suspect officers have a valid basis for assertingtheir Fifth Amendment privilege and refusing to answer questionson the ground that their statements may incriminate them. Topromote thorough investigations, and perhaps to avoid the unseemlyspectacle of officers refusing to cooperate with their own departments,regulations, state statutes, and departmental policies often require thatpolice officers, whether suspects or witnesses, answer questions thatinvestigators pose. Refusal to do so can result in discipline, includingjob loss.In a series of cases decided from 1967 to 1977, the Supreme Courtconfronted states’ use of economic sanctions—job termination, lossof pension benefits or political office, disbarment from legal practice,and ineligibility for state contracts—to compel cooperation in criminaland noncriminal investigations. In all but one of these “so-called‘penalty’ cases,” public employees and officials, contractors, and othersrefused to waive immunity or answer questions and later contestedthe resulting economic sanctions. Garrity v. New Jersey arrived in theSupreme Court in a different posture. In Garrity, the employees, most ofwhom were police officers, answered the questions, thus avoiding thethreatened economic sanctions, and challenged the state’s subsequentuse of their answers in criminal prosecutions. Garrity, unlike the otherpenalty cases, presented the question whether compelled statementswere admissible in criminal prosecutions.

Types of InvestigationsEdward Garrity, the Chief of Police for the New Jersey Borough ofBellmawr, other police officers, and a court clerk were suspected offixing traffic tickets. The Supreme Court of New Jersey ordered thestate Attorney General to conduct an investigation into the allegedmisconduct and report his findings. A deputy attorney generalquestioned the suspects. A state statute required that they answerquestions or lose their jobs and pensions. Before conducting theinterrogation, the deputy attorney general told each interviewee thathis answers could be used in state criminal proceedings and that “ifhe refused to answer he would be subject to removal from office.”The interviewees answered the questions posed to them. Later, localprosecutors brought criminal charges and introduced into evidenceat trial the statements that the defendants had made to the deputyattorney general. After their convictions, the defendants appealed,claiming that the use of their compelled statements violated theirconstitutional rights. New Jersey courts rejected those claims. But,in a five-to-four decision, the United States Supreme Court reversed,holding the admission of the compelled statements unconstitutional.The Court offered two explanations: The statements were inadmissibleunder the Due Process Clause as coerced confessions, and the state’sthreat to fire the police officers unless they gave statements was anunconstitutional condition.In a later case, the Court offered a different rationale for the result inGarrity: The police officers’ compelled statements were analogousto immunized testimony and thus inadmissible under the FifthAmendment privilege. Many lower courts have followed suit,describing Garrity as a case involving the privilege and compelledstatements as “immunized.”The compelled statements in Garrity resembled formally immunizedtestimony. When a witness before a court or a grand jury asserts theprivilege against self-incrimination, the prosecution can compel hertestimony by securing an immunity grant. In Kastigar v. United States,the Court held that “use and derivative use” immunity (often simplycalled “use immunity”) is sufficient to require a witness to testifydespite an assertion of the privilege. If an immunized witness persistsin her refusal to testify, she can be held in contempt. The immunizedtestimony is thus compelled by the contempt threat.Use immunity does not foreclose later criminal charges against thewitness for matters described in the immunized testimony. Rather, itprevents the prosecution from making use of the testimony and anyevidence derived there from against the witness in a criminal trial. The363

364CHAPTER 10Law Enforcement Investigations: Essential ConsiderationsKastigar Court reasoned that a grant of such immunity is coextensivewith the Fifth Amendment because it leaves the witness-turneddefendant “in substantially the same position as if the witness hadclaimed the Fifth Amendment privilege” and remained silent.The Garrity protection operates in a similar manner—it enablesstates to compel statements from public employees by threateningjob termination but bars use of the statements in later criminalprosecutions. Accordingly, when the deputy attorney generalthreatened Garrity and the others with loss of their jobs, he grantedthem de facto use immunity in exchange for their answers. AlthoughGarrity and the others did not first assert the privilege, an actiontypically required to trigger its protection, the Court since hasconcluded that when assertion itself would be penalized, as was thecase in Garrity, the protection is self-executing.Opponents of the Garrity Rule argue that it essentially immunizes corrupt lawenforcement officers by operating “as a trap for investigators and prosecutorswho fail either to take steps to minimize exposure to compelled statements orto prepare to disprove taint.” Further, the rule “can serve as a tool for unscrupulous internal affairs investigators who seek to undermine criminal prosecutions by disseminating compelled statements and treacherous police witnesseswho allege that they are tainted in order to avoid giving prosecution testimony”(Clymer, 2001, p. 1382).Consider the recent case of Police Officer Sam Streater, 45, from New Haven,Connecticut. He was arrested in 2008 for soliciting a known prostitute, VanessaDiVerniero, by paying her 20 to have sex with him in his car. As explained inKaempffer (2009):A Superior Court judge last month approved an application fromOfficer Sam Streater, a 17-year veteran, for accelerated rehabilitation,a program reserved for first-time, nonviolent offenders. The probationwill last a

types of investigations, the roles of agencies charged with performing them, the problem of jurisdiction, and educational requirements and recommendations. It will conclude with a discussion regarding the use of outside experts, such as forensic criminologists, and some friendly advice. LOCAL, STATE, AND FEDERAL LAW ENFORCEMENT IN THE UNITED STATES