Post Road Magazine #27

How It's Done: a Criminal Defense Investigator at Work

Patrick Conway

It had been a long day of work. I had served two subpoenas, retrieved medical records from Washington Hospital Center, and taken photos of an impounded car at the Blue Plains Auto Lot on Shepherd Parkway. I wasn't done, though. The early evening is always the best time to catch up with witnesses, and so instead of heading home for the night, I fought my way through the traffic on Benning Road, crossed the Anacostia River, and drove down the narrow stretch of apartment buildings on Eastern Avenue.

The streetlights lit the road in a yellow glow and left everything else untouched and covered in darkness. Corner boys and prostitutes stole in and out of the light as they slinked along the sidewalks looking for customers. Such street-level illegal activity is the norm on Eastern, which serves as the border between Northeast DC and Maryland, and provides a decent cover for petty criminals. If a cop comes around from DC, the dealers and hookers shift over to the Maryland side of the road. If a Prince George's cop swings by, they migrate back into the District.

Pulling up to the curb, I parked my car in front of a brick duplex and reviewed some case notes before flicking off my lights. My mark for the evening was Franklin Garfield, a sixty-seven-year-old janitor at a local high-school. Franklin had been robbed at gunpoint at a nearby 7-Eleven. The man the police arrested for the robbery was found two blocks away with Mr. Garfield's wallet in his pocket and a gun tucked into his waistband. Dirt poor and deranged, our client's chances of a Not Guilty finding were slim, but it was still my job to interview Mr. Garfield and take a written statement that would lock him into a story. Locking witnesses into stories was one of my main functions as an investigator, and I was good at it.

If I wanted, I could describe my interview with Mr. Garfield by detailing the sad particulars of his account. I could detail how he went to buy a pack of smokes and some scratch-offs; how when he walked back to his truck, a man with brown boots, blue-jeans, and a dirty gray sweatshirt put a silver gun to his head; how Franklin's sweaty hands fumbled in his pocket for his wallet, and how the man ran away laughing once it was handed over. I could even make his story into a pleasurable read for you, one in which you would feel sorry for Franklin—who works every day at a job he dislikes; whose only son was killed years ago in a drug deal gone wrong; who, despite the hardships of his life, still retains a sly sense of humor that he employs to tease his wife of forty-two years.

But that's not the tale I intend to tell you. Truth be told, Mr. Garfield's story doesn't interest me much. People are robbed every day. People face difficulties and misery, but find ways to remain resilient. It's nothing new. No, my interest isn't in Franklin's story, but rather in how I got Franklin to tell me that story. How I got him to talk with me for over two and a half hours on a weeknight after a long day of mopping up spills and cleaning crumbs off countertops, how I got him to sign every page of a nineteen-page handwritten statement, how I even got him to thank me as I left his house.

First, though, I need to tell something about the rules of discovery in Washington, DC. Discovery is the pretrial legal procedure by which the prosecution discloses evidence to the defense. In theory, the rules are meant to create a more transparent justice system, one in which cases are decided by what facts reveal rather than what facts are concealed. These rules, however, vary greatly from state to state. Some states require judges to ensure that evidence is shared equitably. Others are more lenient. DC is lenient to the point of recklessness. Within the nation's capital, it is almost entirely at the discretion of the prosecution to determine what information is "relevant," and, if deemed relevant, when to reveal that information to the defense. As a result, DC prosecutors routinely conceal discovery until moments before trial. The defense is thus given no time to prepare, and justice devolves into a childish and crooked game of hide-and-seek.

While the District's rules of discovery seem unfair, I must admit that I have benefitted personally from them. If all information were shared openly, there would be little need for defense teams to investigate cases for themselves. In fact, without the District's peculiar discovery procedures, I would not have had a job, and therefore would not have been on Eastern Avenue that night attempting to gently cajole Franklin Garfield into accepting an interview.

To combat the inherent inequities within DC's system of discovery, defense investigators must develop their own unique methods for attaining information from witnesses. It is an intricate process, requiring forethought, patience, attention to detail, and the ability to adapt as circumstances change. It also requires an investigator to operate within the gray area between honesty and deceit. While the underlying principles remain honest—an inmate, no matter how poor or morally depraved, deserves to have access to evidence held against them—it is undeniable that obtaining an interview takes cunning and a bit of deception.

My technique was subtle, as if to seem like no technique at all. It started from the moment I stepped to the front door. Three light taps—nothing intrusive. I never banged on the door like some tactless cops. If there was no response, I would tap slightly harder until someone inside heard it. Such a tactic may seem silly, but the first knowledge a witness has of an investigator is through the knock on the door, and I always wanted my taps to imply a sense of consideration.

Gentle tapping alone, of course, rarely gets the door open. Whether afraid of cops or robbers, most residents tend to be cautious. The knocking gets the witness to approach the door, but he rarely opens it without asking a question or two. Mr. Garfield was no different, calling out, "Who is it?" The trick is to get past such questions without revealing too much information—just enough to get the door open. I always stated my name and job title, but never mentioned the name of my client at first. If I were to state my client's name from the get-go, it would be the same as saying I represent the man accused of sticking a gun in your face, now please talk to me. The door would remain shut. The interview would never happen.

So, instead, I told Mr. Garfield that I worked for the Public Defender Service. The average person may recognize the term Public Defender, but most lack the knowledge necessary to grasp what that term signifies. Many do not realize that a Public Defender represents the alleged criminal. My job wasn't to educate witnesses, it was to obtain interviews—if a witness didn't know the role of a Public Defender, I wasn't in a rush to explain. The simple statement of my name and job title was typically sufficient to get the door open a crack. It certainly was good enough for Mr. Garfield. And whenever that door was opened, I would always be seen standing with a soft, sympathetic smile on my face accompanied by a nice, warm Hello.

Mr. Garfield kept his body entirely out of view, only revealing the top-half of his face through the thin, exposed slit of the entryway. He thus first appeared to me as a set of squinting eyes behind large-rimmed glasses. Blinking slowly, he asked, "What do you want?" In responding to such a question, I was always careful with language. "I just need to talk to you about what happened at the 7-Eleven." The two crucial words in that response are just and need. Just makes it appear as though the interview will be informal and quick, no big deal. Need connotes a sense of obligation, as if there is no choice but to yield to the inevitable interview. Again, I never mentioned my client, nor did I explain whether I was with the defense or the prosecution. My singular intent was to get inside the house, putting off any burdensome explanations until later.

Although hesitant at first, Mr. Garfield opened the door and permitted me inside. Whether a witness is aware or not, this initial invitation is a major concession. By granting permission to enter, a witness tacitly acknowledges that the investigator has an important function to perform, and thus endows the investigator with a degree of authority. Once both parties are inside the home, the witness may still question the investigator's right to conduct the interview, but it becomes increasingly difficult to overthrow the authority that has already been granted. As a result, you can practically rate an investigator by how quickly they get into a comfortable position on the family sofa.

Now comes the most crucial moments of the interview. This is when the investigator must reveal the most information, explaining in clear and definite terms whom he represents and why the interview is necessary. To lessen the gravity of the situation, I always made an effort to make small talk beforehand. With Mr. Garfield, I commented on the burgundy and gold Redskins blanket that draped his couch and exchanged a few pleasantries with his wife who was watching a TV judge settle a civil case between two loud women having some silly dispute over rent money.

The transition from small talk into more serious subject matter is difficult. Most witnesses do not respect an investigator who attempts to surreptitiously switch between the two. It is best to be overt. "Mr. Garfield, I just want to make clear before we begin that I work for the attorney who represents the man accused of robbing you." Hit the witness with the most problematical information, and then work to alleviate anxieties. "I'm not here to defend anyone or excuse anyone's actions. I just want to hear your side of the story. Sometimes my clients aren't the most trustworthy of individuals, so it's important to talk to people like you who have no reason to lie and will tell me the truth."

After making my initial pitch, I usually paused to measure the witness' reaction and afford him the opportunity to speak. Mr. Garfield, however, sat silently nodding, his face neither in agreement nor in opposition to me. He rubbed his hands together and looked down. He then opened his mouth as if preparing to speak, but said nothing. Instead, he lifted his hand to scratch his temple, keeping his gaze fixed on the carpeting. Such silence made me nervous. I sat fidgeting for a moment. Silence from a witness is dangerous. It typically means the witness is imagining possible scenarios in which consenting to an interview could harm him. If a prolonged silence occurs, the investigator must resume speaking. "As you probably know, Mr. Garfield, most cases end up in plea deals and never go to trial." His eyes lifted from the carpet. I went on, "A major reason I need to speak with you is so that we can advise our client whether to take a plea or continue toward trial. Before we can advise him, though, we need to know what happened." A plea deal was always appealing to witnesses. It meant avoiding trial and the court dates that Mr. Garfield would be forced to attend.

I had hoped my comments would prompt Mr. Garfield to offer a response, but he remained quiet. He now looked directly at me, but with the same lost-in-thought gaze with which he had previously looked upon the carpeting. I had no choice but to take his silence as implying consent—if a witness does not deny the interview, then he accepts it. I immediately began launching into questions, not allowing him more time to deliberate.

Like most witnesses, Mr. Garfield did not mindlessly follow in every direction I tried to pull him. Different witnesses have different reactions, and so an investigator must be capable of improvising. After I asked the first question—"What time was it when you pulled into the 7-Eleven?"—Mr. Garfield shifted the conversation. He paused a moment, removing his glasses while gently rubbing his forehead. "If you represent the guy who robbed me," he said, "how do I know what I say won't be used against me in court? I've watched enough TV to know that lawyers have a way of twisting peoples' words."

Mr. Garfield's concern was the most common one I had to confront in witnesses. As a result, I had developed a response that was both forthright and convincing. I always started by validating the concern. "That's a legitimate question." I made sure to nod my head in agreement. "And I won't lie, if you say something in court that deviates from what you say now, the attorney will probably grill you. But that will only happen if you say something radically different." I then paused as if I were thinking of an example on the spot. "If you tell me that the guy who robbed you was 5'2, but in court you say he was 6 feet tall, the attorney will cross you on it. But if you tell me the mugger was 5'2, and then in court say 5'3 or 5'4, nothing will happen. The attorney would seem awfully petty quibbling over an inch or two in front of a jury." I again paused to add special emphasis to my final comments on the matter. "As long as you tell me the truth, there's no reason for concern." After a moment of consideration, Mr. Garfield nodded his head and sat back in the chair. The interview could now begin in earnest.

I always kept initial questions uncomplicated and easy to answer. What happened when you got to the store? Around what time was it when the incident took place? Was anyone else outside the store when you were robbed? The initial goal was to get the witness talking and make him comfortable answering questions, but my main objective was to get a written statement.

Trying to make the transition as seamless as possible, I would say, "I'm just going to write down what you've told me so that I don't forget anything." I knew, of course, that a written statement could take hours, but there was no reason to indicate as much.

During the written statement, an investigator must pin down as many details as possible. Every imaginable question must be asked. What hand was he holding the gun with? What color was the gun? What color were his clothes? What exactly did he say to you? Had you ever seen him before? In what direction did he run after robbing you? The investigator looks for any discrepancies between what the witness tells him and what the witness told to detectives as described in the police reports. The investigator has the advantage of having reviewed the reports before the interview, and should be able to identify from memory any inconsistencies to highlight in the written statement. For instance, Mr. Garfield mentioned that the robber was wearing a black winter cap that was cocked to the side of his head. There was no report of such a cap in the police reports, nor was my client found with a black cap when the police arrested him. Of course, such information doesn't mean that Mr. Garfield was lying—memory often makes slight adjustments over time. But I made sure to highlight the new information in the written statement. I clarified with Mr. Garfield several times before recording on paper, I am absolutely positive that the robber was wearing a black knit cap when the robber robbed me. Four months later, when the case finally went to trial, the defense attorney had a field-day with the black knit cap sentence. Poor Franklin seemed borderline senile in front of the jury.

My final duty was to get the witness to review and sign every page of the statement. This process was surprisingly easy. By this late point in the interview, the witness follows almost every given direction. Mr. Garfield didn't think twice. After putting the statement into my backpack, I thanked Mr. Garfield for his time and moved toward the door to leave. Mr. Garfield's response was typical for a witness in reacting to my thank you. Instead of saying you're welcome, he returned my thank you and shook my hand. I always took special pride in receiving a thank you as I exited the door. It meant I had done my job well.

* * *

Barry Farm is one of the oldest black settlements in Washington. The land, once part of a tobacco plantation owned by farmer James Barry, was purchased by the federal government after the Civil War. It was then parceled into separate plots and sold to freed slaves from the South as part of the Freedman's Bureau Initiative. For thirty years after its formation, Barry Farm served as an exemplary model of what black neighborhoods could become. With its close connection to the Anacostia River providing a dependable source of commerce, the community was self-sufficient—it had its own schools, governing body, and systems of food production.

As the nineteenth century gave way to the twentieth, however, the industrial age imposed itself. The Baltimore and Ohio Railroad Company began buying up land near the Anacostia. In so doing, it separated Barry Farm from the river and significantly diminished the community's capacity for economic survival. This was not done as part of some malignant plan, of course, but instead in the name of progress. Nearly forty years later, the federal government built military bases around the B&O tracks in order to facilitate the distribution of arms and goods during World War II. During the post-war economic boom, interstate 295 expanded into DC. The construction of the highway completed the process of severing Barry Farm from its original connection to the Anacostia, and effectively isolated the neighborhood between congested traffic arteries.

Today, Barry Farm is one of the most violent areas of the city. The neighborhood is no longer run by its own residents, but, instead, by the government and the police who monitor the area comprised almost entirely of public housing. In fairness, most of the inhabitants of the neighborhood are now so poorly educated that government interference is almost obligatory. Only a few worn-down houses remain from the original Freedman's Bureau Initiative. They stand deteriorating near a thicket of overgrown vegetation separating Barry Farm from the mental ward at St. Elizabeth's Hospital. In a few years, Barry Farm will likely be converted into condos and surrendered to young professionals under the auspices of a "community revitalization project."

But enough of history—it wasn't my job to care about history. For now, daily life still gets done in Barry Farm. All the customary traits of human existence persist—inequality, of course, and also happiness, pettiness, celebrations, disappointments, struggle, humor, pain. Despite the poverty, pain is the least evident of these traits, at least for those whose job doesn't place them smack in the middle of it. Suffering tends to hide itself. Real sorrow typically remains tongueless.

I exited my car, stepped over the lip of the curb, and walked along a short concrete pathway that led to the front door. Long, unlit strands of Christmas lights hung off the house. Still months from the holiday season, the hanging bulbs had been long-forgotten. There were no bushes or trees. The lines of lights were clipped to windows and suspended from gutters.

I stepped to the door and measured my knock. A small child, plump around the belly, answered. "Hi," I said, "is your mother home?" The child disappeared back into the house. I soon heard murmurings coming from some interior room.

A few minutes later, a thin woman wearing jeans and an oversize t-shirt that hung loosely around the neck stepped into the doorway. I smiled softly, attempting to relieve any potential trepidation with gentleness. "Ms. Safford?"

"Teri is fine." There was a certain lilt to her voice that seemed to ask, And who are you?

I introduced myself and explained my purpose, which was related to a murder that had occurred in Barry Farm more than five years prior. A seventeen-year-old boy had been shot and killed while leaning against a handrail outside a friend's house. The shooter was in the back seat of a black SUV. The only witness was the victim's mother, Teri Safford, who saw it happen from her kitchen window across the street. As she could make no positive ID of either the shooter or the driver, the case went cold for several years. Our client was only charged when the supposed driver was arrested for a separate rape charge, asked for immunity in relation to the drive-by-shooting, and then snitched on his friend. It was a weak case, one which I felt we would win at trial or get dismissed beforehand. My task was to interview Teri Safford to make sure we weren't in for any surprises.

After my initial introduction, Ms. Safford backed away from the doorway and permitted me to enter. We took seats in her living room at opposite ends of an old, worn-out couch. The television sat directly in front of us on a makeshift nightstand. Its volume was turned down, but the flickering screen was busy playing an old re-run of Three's Company.

Making myself comfortable, I did the usual routine. I explained my reasons for needing to talk to her and attempted to gently persuade her into accepting an interview. Teri put up little resistance. She had no idea, after all, whether the police had arrested the right person. She hadn't seen the shooter or driver, and she didn't recognize the vehicle. Her only clear memory of the incident was watching her son stumble forward slightly and then slump to the ground while clutching at his stomach.

As the interview developed, it was not the task of getting Ms. Safford to answer questions that was difficult. It was dealing with her grief that was the challenge, bearing witness to her exposed and still-raw wounds. "I remember the funeral," she said, "so many people showed up." She looked at a photo hanging on the wall of her son in a blue cap and gown graduating from middle school. "All his friends. The whole family. Everyone was there. There were all these young teenage girls, too." She smiled while nodding, "I always knew he was a little ladies' man, but I remember being surprised by just how many young women showed up. And they were all crying. Loud crying, you know, sobbing like the whole thing was a national tragedy. And it was a tragedy, I suppose." She looked down at her folded hands resting in her lap. "But I couldn't cry. I don't know why, I just couldn't. I watched everyone else moan and sob and weep, but my eyes kept dry. I don't know the reason—just numb, I guess."

I made sure to remain quiet. There would be time for questions after she was done. "I didn't cry that day," she went on, "but I've made up for it these past five years. And all those people from the funeral, I don't know where the half of them are anymore. I used to get cards and calls for his birthday." She looked toward me. "They'd all say he had a good soul and that I should remember that his spirit would always be with us." She shook her head as her chin began to show the crinkled marks of oncoming emotion. "But what's a soul or a spirit anyway? Can you see it, or touch it, or smell it, or hold it?" She shook her head once more to answer her own question, and then rubbed at the corner of her eye with the back of her hand. "Once someone or something is lost, it's just lost. It doesn't come back. If you wait long enough, it's eventually forgotten." She pulled lightly at the hem of her t-shirt. "Less and less of those cards come now. It's natural, I guess. I don't blame anyone. People have to move on. I just don't know how to do it myself. I don't know how it's done."

I looked toward the television as Ms. Safford raised herself from the couch to grab a tissue from the kitchen. Three's Company had given way to an infomercial for some household cleaning product. Ms. Safford sat back down and dabbed at her eyes with the tissue. "The most difficult thing is that sometimes I'm okay, you know. I sometimes find myself in a good mood. And that's the worst. Because it always comes back—like it's just sitting there waiting for you." She grimaced as if upset at her own grief. "It always hits at the strangest moments, too. A trip to the laundromat, or a drive to the supermarket, or sometimes while I'm watching TV." She let out a timid laugh. "I forget that he's gone, you know, like I think for a moment he's still here. And then, just like that," she silently motioned with her hand as if snapping her fingers, "all of a sudden—like a wave—I remember everything all at once. A memory of his smile, or his laugh, or the way he walked." She paused and shut her eyes. "Even a simple smell, just a certain—a certain hint of something. And it's like in that moment, I half-expect him to walk through the door, 'cause how can a presence that feels so strong not even exist?" She stopped to wipe at her face and apologize for the tears marking her cheeks. I shook my head to convey that an apology was unnecessary. Gathering herself, she went on, "Moments like that just make it worse, that's all. 'Cause eventually the moment ends, and I come back to realizing that it's not true. He doesn't exist. He won't come back. He's no longer with me. The smile, the laugh, the walk, the smell—it's all gone."

Ms. Safford paused long enough for me to assume she was done. I asked my few questions. I made certain that she hadn't seen the shooter and didn't recognize the vehicle. I even showed her a picture of our client to verify that she had never seen him before. I then put all the information into a written statement and had her sign it. It was all important and necessary, but also somehow trivial.

To do justice to reality, this account of my interview with Ms. Safford must by nature end abruptly. An investigator never resolves pain or gets to the bottom of any hurt. An investigator simply talks and listens and observes and takes note, stepping into the lives of others for a brief moment and then leaving as quickly as when they first came.

After placing the statement in my bag, I thanked Ms. Safford for her time, apologized for raising painful memories, and escorted myself out the house. As I left, she sat leaning back on the couch with the crumpled tissue in her lap. She seemed to gaze past the muted television, its light casting her in its colors. Closing the front door behind me, I was finished for the night. I got back in my car and drove home to my apartment, far from her house and far from Barry Farm.

* * *

You don't often see a Colt .357 Magnum with an eight-inch barrel in DC. Weighing almost three pounds, its brutal command can be felt in its firmness, yet its slender barrel lends it a grace and style unmatched by other revolvers. Not just its weight and shape are unique; it also has a distinctive color and polish. The smooth blackness of its frame extends up through the cylinder and down the long length of its barrel, catching every glimmer of light and reflecting it back outward.

It looks more like a weapon from the Wild West than it does an inner-city street gun. But it works the same as any gun. You cock it and pull the trigger; the trigger releases the hammer; the hammer hits the primer; the primer ignites the powder; the powder explodes and propels the slug out the barrel.

The gun, of course, isn't seen at first. It's hidden in the pouch of an oversized hooded sweatshirt. You don't even notice it.

Up four steps, the front door has a large padlock covering the handle. Knocking softly and then loudly doesn't bring a response. Wooden boards cover the windows, but that doesn't mean the person you're looking for isn't inside. Boarded windows don't always signify abandonment, especially on Knox Place SE. Back doors usually hang open on broken hinges. An investigator working a case always checks.

Back down the steps, you notice a man wearing a hooded sweatshirt standing alone under a solitary street light. The hood is pulled so tightly over his head, you can barely make out the whites of his eyes. Both of his hands are in the large pouch, which stays below his waist. Such a sight would cause alarm for most, but not for you. You've seen a similar scene night after night—a young man standing around in a hooded sweatshirt on a poorly lit street just isn't all that frightening anymore.

Two teenagers, no older than eighteen, pass by on the sidewalk. One is fat, tall, and dark. The other is light-skinned, short, and scrawny. You exchange silent nods as you enter the narrow cut that runs along the side of the building. Trampling the overgrown weeds, you hop over a rusted-out bike. Discarded chicken bones and an empty forty ounce bottle of malt liquor lie next to an open vent coming from the basement of the building. These are the things you later remember when you give your story—not facial descriptions or clothing, but chicken bones and a forty ounce.

Around the corner of the building, a faint yellow glow comes from a light overhanging the back door. The door has no padlock, but it doesn't open when you pull on the handle.

And then it happens.

The man with the hooded sweatshirt rounds the opposite corner. His arm is at full length and extended from his hand is the Colt .357. The gun points straight at you. You instinctively turn your head to the side—the sight of the round end of the barrel is too much to look at.

"Man, I'm not the guy you're looking for." What kind of a thing to say is that? Of course you're the guy he's looking for.

He lowers the gun and pushes you back into the cut. "Give me your shit, motherfucker! Give me your shit!" Your foot nudges the empty forty ounce. The bottle hits the side of the building, producing a loud bang that makes you wince.

The two teenagers you passed earlier suddenly appear. The scrawny one searches your pockets. He grabs your wallet, your phone, your keys. The fat one removes your backpack and rifles through it.

The gun again, this time inches from your head. "What's in the bag? What's in the bag?" He presses the muzzle up against your left temple so that you feel the awful weight of the weapon. "Nothing, Nothing. Just papers. Check it, I swear, check it." The fat man pushes around a few papers and throws the bag on the ground.

"What else you got? Look at the gun, motherfucker!" He cracks you over the head. "Look at the gun! This is it! What you got? Look at the gun!" You turn toward the gun and see the round hole through which the bullet would explode.

"Nothing. You already got it all." You are now staring wide-eyed at that perfect round hole at the end of the gun. That tiny, less-than-a-half-inch hole—the grave, and the eternity to which the grave adheres.

He suddenly backs away. The gun stays pointed. The fat one speaks, "Let's go, man. Before the cops come 'round."

"Grab the bag."

"Nothin' in the bag. Let him keep it."

He signals with the gun for you to grab the bag.

You bend over and reach for it, and you say, "Thank you." They're robbing you, yet your pathetic ass is thanking them.

The gun is lowered and placed back in the hoodie's front pouch. The three men walk back down the cut toward the street. You wait for a moment, sling your backpack over your shoulder, and slowly walk toward the street as well. They take a right. You take a left. They don't even run. They casually amble up the road like three guys out for an evening stroll. As they walk, you hear one of them say, "That's how it's done. Easy."

You walk in the opposite direction, aimless for a moment. Yup, that's how it's done. Easy.

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