by David Feige
“Knock, knock.”
We were doing simulations as part of an investigator training I had patterned on Eddie Mayr’s Friday-afternoon abuse sessions. I played a reluctant witness. Ben was behind the door, taking his very first crack at getting inside.
“Whatcho want?” I said, opening the door just a bit and channeling a witness I once met.
“Ahhh, um, I’m h-here to talk to you about a shooting?” Ben, stuttering, didn’t sound too sure of himself.
“I ain’t talkin’ to you about no shooting!” I said, starting to close the door on him.
“Wait,” Ben said urgently, putting his foot in the door. He didn’t want to be humiliated in front of the other new investigators looking on.
“I ain’t talkin’ to nobody about nothing!” I exclaimed through the sliver that remained.
“But . . .” Ben put just the slightest pressure on the door, trying to keep it open.
“What choo doing?” I said loudly, pushing back on the door. “Don’t you try to come pushin’ in MY HOUSE! I know my rights! Get the hell out of my house! GIT OUT! NOW!” I slammed the door in his face.
The other investigators looked on horrified as Ben sheepishly poked his head back into the room.
“I guess that didn’t go too well, huh?”
“Ah, no,” I chided. “Never, never block the door. It’ll always get you in trouble.”
With the awful timing, terrible judgment, and utter lack of convincing confidence, I feared that Ben was heading straight for uselessness. But within a year, Ben was wowing almost everyone he worked for, once turning in a handwritten witness statement that ran to an incredible forty-two pages, as opposed to the usual six to eight. The case involved terrible allegations --child sex abuse and assault --and our client, the victims’ father (who was in jail), insisted that the kids’ mother put them up to fabricating the charges. “She’s crazy, and she only made this up when I tried to get the kids away from her,” he claimed over and over.
“She made them say it” is the kind of defense we hear all the time in child sex abuse cases, and we rarely put too much stock in it --not because it isn’t true (it often is) but because we hear it constantly. Still, a good defense required that we investigate our client’s claims, and so Ben tracked down the mother and got her statement.
Mom was very clear: our client was a bad man, an evil man, and a child abuser. It all began, she explained, when he smashed her head against a wall and left her for dead, beginning what she described as her “zombie period.” The zombie period consisted of eight months spent lying comatose on a heap of dirty clothes inside a small closet while our client and his new girlfriend lived in the house. The girlfriend (who was, according to the mother, a Satan worshipper and child rapist) forbade the children to tend to their comatose mother. Despite this admonition, she told Ben, her heroic children would fish scraps of food out of the garbage to nourish her as she lay unmoving on the fetid clothes heap in the closet.
One day, at the end of the eight-month coma, Mom had a dream in which God, a white man, came to her and said that it wasn’t her time to die. With that she woke up from her coma with no recollection of who she was, where she was, or how to speak English. The children, she explained, gradually helped her to remember who she was, while Sesame Street helped her learn English again.
Shortly after waking and while relearning English, Mom was told by one of the kids that while she was in her zombie period, our client had sexually abused the children. The abuse occurred in a “haunted house,” where our client and his Satanist girlfriend injected all three children with a yellow liquid called “get sexy” and a blue liquid called “be cool” and then sexually assaulted them.
Mom took the children to the police.
The police took the children away.
Shortly after getting the statement from zombie mom, Ben talked to the kids.
“Did you remember what your daddy did to you the day after it happened?” Ben asked one of them gently.
“No,” said one of the kids.
“How about the day after that?” Ben tried again.
“No.”
“The week after that?”
“No.”
“Well, when did you first remember what happened?”
“Oh,” said the child brightly, “after I talked to Mommy.”
The jury acquitted. Our client had spent nearly eighteen months in jail waiting for his trial. As it turns out, the client was right. But without Ben, we might not have known any of it and certainly wouldn’t have had the statement to use at trial.
Not everyone was pleased with the verdict, of course. Back in her small South Bronx apartment, zombie mom still tells people our client is guilty, and she still has the withered rose she says our client (using voodoo) made with her head.
- - - -
Child sex abuse cases are some of the scariest to defend. Many of the cases allege acts that leave no physical evidence. As a result they are often swearing contests between kids and grownups, who seldom have a compelling explanation for why a child would make up a story like the one he or she is telling. Between malleable child witnesses and terrified adults, it often feels as if the facts in a child sex case have been reflected in a funhouse mirror of psychic distortion and familial weirdness.
Between zealous prosecutors, lengthy sentences, horrific conditions of confinement, and costly collateral consequences, a child sex abuse charge is pretty much a life-ending proposition. Moreover, given the overwhelming stigma attached to child sex abuse allegations, even the clients who should take pleas that might mitigate the damage will often utterly refuse to do so.
Fearlessness and relentlessness are probably the two most important skills an investigator can bring to the job. No matter how good investigators are, they are going to be spending almost all of their time finding people who don’t want to be found and talking to people who don’t want to talk. This takes more than a good smile, and it takes more than dedication. It requires a willingness to walk into crack houses and crime scenes and knock on every door in sight, day after day, until you have found and spoken to every single person in the building.
After Ben’s stellar work on the sex abuse case, I pretty much use him for everything --gang shootings, one-witness robberies, and almost every murder I have. He’s matured into the kind of investigator who can find almost anyone and get them to talk. Sometimes he is ushered inside by people who are terrified that if this goofy-looking white kid spends another minute in the projects he’ll be shot. Other times, people invite Ben in because he’s charming. Still others talk because he is utterly relentless --showing up at their jobs, tailing them when they leave for work, knocking on the door after supper, or waiting for them by the bus stop when it is time to pick up the kids.
It was Ben who got the dirt on the kid who was probably guilty of the crime Clarence was being charged with, and it was Ben who routinely tracked down cool forensic experts for me. Ben rejuvenated my stagnant subpoena practice (he thought of places to subpoena I’d never even heard of), and in Reginald’s case, Ben was the one who actually found a guy’s shoe size so that we could determine whether or not our guy was the one who left the bloody shoe print in a crime scene photo. My faith in Ben’s abilities was such that when I got a case that needed investigation, I’d pretty much just shoot him an e-mail, leave the file on my desk, and sit back for a week while he worked his magic.
Sadly, Ben was out of town when Jaron needed help.
There were three people in the room when Jaron stabbed his cousin. One had a knife, one a stab wound, and the third had a clear view of exactly what happened.
Aunt Gloria was having a nice family gathering when the stabbing started. With eyes aged by drink and a smile burnished by a bright gold tooth right in the front of her mouth, Gloria played den mother to Jaron’s extended family. She had equal affection for Jaron and his cousin, and no reason to cover for either.
So did Gloria watch as Jaron tried to murder
his cousin, as the state claimed, or did Jaron mistakenly stab his cousin while trying to disarm him? Someone had to talk to Gloria, and with Ben out of town and the office short on backup, that someone was going to be me.
It was around 7:30 in the evening when I got to the projects where Gloria lived. The sun had long since set, and though it wasn’t my usual practice, I’d decided to go poke around alone. Generally, an attorney who takes a statement can’t also be defending the case, since if the authenticity of the statement is challenged, the attorney also becomes a witness. But with no one around, I did what needed to be done. What the hell, I figured --if something great happened, I’d grab a colleague for the trial.
It was a cold night outside, and the lobby of the brick building in the McKinley housing projects smelled like the big blunt two teenagers were smoking in the corner. One --a big kid with wide, dark eyes and a menacing smile --looked up as I walked in. I nodded to him as I crossed the graffiti-covered lobby toward the elevators.
“Yo,” I heard behind me. And as I turned, “You know me.”
There was a quizzical tone to the statement, and as I tried to decide whether it was a threat or a question, I realized it was Sharief, one of my former clients.
“Wassup, Feige?” he said, nodding, remarkably nonchalant given the fat blunt smoking lazily between his fingers.
Gold Tooth Gloria was on the second floor, playing some strange hybrid of blackjack and five-card stud with three other women. Miller Lite was doled out into Dixie cups, most of which were almost empty. The game was nearly over, or not very interesting, because everyone seemed perfectly happy to stop playing when I explained why I was there and why I wanted Gloria to talk about the stabbing. Gloria was forthcoming and clear. The other women quickly departed, and I sat on the plasticwrapped sofa in her tiny living room while she talked, slurring her words just a little.
Most criminal defense investigators are former cops or guys who would be in law enforcement if they could. Most believe investigatory work depends on being a tough guy, relying on heavy footfalls and vague intimidation. Most are not great listeners.
This is not to suggest that cops don’t often get what they want --they do. But because they so often hear what they want to hear, what they get is a processed and stilted form of the truth. Often, especially when they’re talking to a younger generation reared on the aggressive policing of the last twenty years, it’s not the truth at all, but nonsense designed to avoid any further discussion.
At the Bronx Defenders we never hire former lawmen for just this reason; college kids, though, set out in the wilds of the Bronx without guns or badges or anything else, quickly learn to master a totally different set of investigative techniques than those that the police depend on --persistence, patience, and kindness. These are, in fact, the qualities on which a good investigation depends. It’s something I learned way back, during that formative summer on the streets of Washington, DC, when I was sent out to talk to a woman named Lavonda.
It was 1985, and Lavonda was an eyewitness to a shooting in northeast DC, just off East Capitol, where a little series of tumbledown houses used to sit in the shadow of the city’s majestic marble monuments.
Lavonda, a critical witness, wouldn’t speak to the previous investigator who swung by her house looking to talk about the case. “I ain’t talkin’ to nobody about nothin’,” she had reputedly declared (repeating the well-worn chorus of investigative work) before slamming the door in the investigator’s face.
It was 1:03 in the afternoon when I arrived. Trial was looming, and knowing what Lavonda was going to say could make the difference between taking a plea and picking a jury. The screen door to her building was little more than a hollow frame, and the door behind it swung listlessly open to reveal a dirty, barely carpeted hallway. Lavonda’s place was the first one on the left. I checked my watch (I still wore one in those days) to make sure I had my timing just right. Behind the door I could hear the noises of apartment life --the hum of a fan, the all-important murmur of the television.
“What?” Lavonda’s voice was deep, and the door was open just a crack. Inside, true to form, was a small, cluttered living room, with a TV in the corner and two fans parked on the floor, aiming the dead air at a pair of fraying chairs and a sofa arrayed around the TV.
Lavonda was as big as advertised, and she didn’t seem happy to see a long-haired white kid with darting eyes staring back at her from the hallway.
“Hi, uh, Lavonda?” I said, glancing over at the TV set. My timing was perfect --an ad for soap or some other household product winked back at me.
“Whatchuwant?” Lavonda demanded.
“Oh,” I said, smiling, “I’m an investigator for the Public Defender Service, and I wanted to talk to you about . . . OH MY GOD, is that All My Children?”
“Yeah,” she said suspiciously. I was already halfway home. “Okay, oh, I’m so sorry to bother you, then,” I said, just starting to lean back from the door, my eyes fixed on the TV inside. “But I missed it yesterday. Did Adam figure it out yet? I’m totally sorry to interrupt --I didn’t realize you watched.”
“She STILL ain’t told him,” she said, shaking her head in full-on disapproval of Adam’s serial deception.
“Oh my god . . . when he does . . . that is going to be soooo ugly!”
“Ummm-hmmm,” Lavonda said as she opened the door a little wider so I could see the TV.
“And Erica, she didn’t actually sleep with that guy, did she?” I had wasted an entire semester of college hours watching this dreck, and I’d found a way to make it pay.
“Nope,” Lavonda said. “He just thought she did.”
“Ooooooh, man.” I shook my head at the brilliance of the soap-opera plotters.
“Why’nt’cho come on in?” Lavonda said. “I ain’t got no one home; we can watch it together.”
“I’d be delighted,” I said, stepping gingerly into her living room and settling into one of the chairs, “if you’re sure you don’t mind.”
“Lemonade?” she asked.
“Next commercial break,” I replied, smiling as we settled in together.
Investing an hour of TV time in order to get a statement isn’t something that comes naturally to cops --they tend to do things on their schedule, expecting people to do what they say and what they want. Instead, I found some common ground with Lavonda --and as a result, I genuinely enjoyed my time with her. She was hilarious, and she had an encyclopedic knowledge of All My Children. And so we laughed and gossiped and sipped our lemonade through the whole show. And when it was over, as we sat back while the credits rolled, Lavonda turned and looked at me. “Now, what choo want me fo’ again?” she asked.
Once again I explained who I was, what I wanted, who I was working for, and why. And this time, Lavonda sat in her chair and told me everything --not because I had a gun or a badge or any legal authority, but because once she was convinced that I would listen to her and respect her, she was actually happy to talk.
Everyone will talk: you just have to know how to listen.
- - - -
I spent nearly three hours with Gloria. As it turned out, she saw the whole fight, and she wanted to help. Ninety minutes later, shifting uncomfortably on the sofa, my hand cramping from all of the writing, I had a twenty-page statement.
“It was self-defense,” Gloria declared. “Jaron only cut his cousin because he was getting beat senseless. He had no choice. That cousin was a troublemaker and a bully, and Jaron did the only thing he could do.”
Halfway down the last page, I scribbled down the final paragraph. “I have made this statement freely and voluntarily to David Feige, a lawyer from the Bronx Defenders. I know that Mr. Feige is Jaron’s lawyer, and I have had the opportunity to make any changes, additions, and corrections I desire. This statement is true, accurate, and complete, and signed freely by me.” After we read the statement over together, I had Gloria initial every page and sign and date the last page just under the certification.<
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Statements are valuable for one reason only: they lock a witness in. After a statement is taken, any deviation from it allows a lawyer to confront the witness with his or her prior statement. As a result, they function pretty much like testimony --convincing judges and DAs that a defense lawyer’s claims are substantive. After all, if you can produce a written statement made by the witness, the DAs and the judge know that a skilled defense lawyer will be able to keep the witness pretty much on that script.
Witnesses, of course, rarely believe themselves bound by prior statements, and being confronted with one at trial often produces hilarious (and occasionally convincing) explanations ranging from “I didn’t know he was an investigator” to “he made me sign it” to “that’s not my signature --I’ve never seen that piece of paper before in my life.” (It’s why in that last paragraph every investigator is trained to include his or her name, the client’s name, and the fact that we are representing the client. It helps later when people claim that they thought they were talking to the prosecutors.)
