photo by Arlington County

Can Only Ex-Cops Be Quality Criminal Defense Investigators?

A guest OpEd by @PDGumshoe, the alias of a criminal defense investigator who works with public defenders (and prefers to remain anonymous).

Public defense investigators are rarely discussed in the criminal law community. Even in literature geared toward indigent defense, investigators are often treated as an afterthought. For this reason, I was excited to see Heather Hall’s article on the National Association for Public Defense (NAPD) website. Ms. Hall’s article, “Can An Ex-Cop Be An Excellent Public Defense Investigator?” addresses the question in its title.

The impetus for this reflection is a story in Mother Jones about a group of ex-police officers who left the force and later became PD investigators in Broward County, Florida. The article shares a few war stories and discusses the officers’ transformation from police officers to defense investigators.

While I am happy for their successes and glad to hear some police officers can go to the “other side,” I was bothered by its  implications: To me, the article insinuates that the rest of the PD investigator community is sorely lacking. To a lesser extent, Ms. Hall takes up this tone, praising the idea of using ex-cops as PD investigators. She writes:

“I am not wholeheartedly endorsing ex-cops as the answer to public defense investigation, nor am I suggesting that non-police officer investigators can’t have similar results, but the article encouraged me to be open to a similar capacity for changing my own way of thinking…I was excited that what I once thought was a wound in the side of public defense delivery might instead be a secret weapon.”

On the contrary, I would argue that any investigator can be a secret weapon, if only provided with adequate support and ongoing training. Public defense investigators very rarely benefit from these things.

Jason Fagone, author of the Mother Jones article, is correct when he argues that investigators in the public defender’s office are often overworked and under-resourced. Anyone with a basic understanding of the financial state of most indigent defense programs knows that PD offices can rarely afford to provide the mentorship, advancement, or monetary incentives that might encourage able investigators to stay put.

Furthermore, wrapped up in the day-to-day stress of criminal defense work, many public defenders and senior investigators also lack the ability to provide thoughtful feedback or recognition to their staff. It’s a common joke among PD investigators that we’re the first to be blamed when something goes wrong and the last to be thanked when something goes right. This reflects an environment which destroys coworker trust and individual pride.

I would argue that any investigator can be a secret weapon, if only provided with adequate support and ongoing training.

Outside of the office, there’s a similar lack of support. Police officers have strong unions which stand up for them and rally around them, whereas public defense investigators have nothing of the sort. All in all, PD investigators have little incentive to stick around. And and even when they do, the atmosphere is rife with de-motivators which slowly erode the drive for professional excellence.

Additionally, many public defense investigators receive little or no regular training. While some public defense offices do have a training budget, they rarely prioritize learning for investigators, with so many staff attorneys who require regular CLE credits. Instead, we PD investigators have to make due with rare opportunities for training, or take on additional expense to obtain training on our own.

Meanwhile, police officers typically have access to free work-related training and are supported in developing a specialized knowledge base. This inequity can go straight to quality of representation, leaving defense teams poorly equipped to challenge the government’s evidence. It may also drive up the cost of representation, when the public defender is forced to request expert service funds. Of course, this also affects the morale of highly motivated public defense investigators—who may eventually seek a work environment with better opportunities for employee development.

I understand highlighting, and even praising, the transformation of a police officer into a committed public defense investigator. In some situations, hiring ex-cops as PD investigators can make sense, depending on the individual and his/her attitude toward public defense work.

However, rather than focusing on bringing more ex-cops over to the defense, I suggest that we look at the work conditions that have helped make many of these officers great investigators. If we provide similar conditions and resources to the public defense investigators we already have, we might not need to hire former officers as a panacea for under-resourced public defenders’ offices.

 We invite your comments! Former police officers, criminal defense investigators, and public defenders, what do you think? Please include your thoughts below.

About the Author:

PD Gumshoe is a criminal defense investigator who works with public defenders. (S)he writes about investigation, public defense news, and the occasional social issue. Follow his/her blog or Twitter feed: @PDGumshoe

Read the original Mother Jones article: “How a Squad of Ex-Cops Fights Police Abuses
Read Heather Hall’s article on the NAPD site: “Can an Ex-Cop be an Excellent Public Defender Investigator?”