Why should defense attorneys consider using a private investigator knowledgeable in fugitive investigations to surrender a client?
You’re a conscientious defense attorney who takes the defense of your client very seriously. Perhaps you’ve worked for months to prepare a proper defense for trial or you’ve carefully negotiated a plea deal that will save your client many years of incarceration and then, suddenly, your client is gone. You stand uncomfortably in court while the irate judge demands to know what is going on and when you last had contact with the defendant. The judge also wants to know when you expect your client to return. When you ask the client’s family, they claim no knowledge of your client’s whereabouts and look as dumbfounded about the situation as can be. Now what?
After two decades of conducting and supervising fugitive investigations, both domestically and internationally, for the U.S. Marshals Service I decided to enter the world of private investigations. A private investigator who is knowledgeable regarding fugitive investigations has the ability to alleviate potential repercussions for both the client and the defense attorney when a surrender is taking place. As a former fugitive investigator turned private investigator, I thought it might be of interest to criminal defense attorneys to offer some insight into the legal pitfalls I’ve observed over the years as someone surrenders to the authorities.
On quite a few occasions I’ve stood in a courtroom and watched as a judge proceeded to grill a defense attorney on the whereabouts of their client. Some judges take the matter of a defendant absconding as a routine part of the business. Other judges take a defendant disappearing as a personal affront to their court and seek to hold the defense attorney responsible, at least to some degree. Add to this situation aggravating factors such as media interest in the case or a child victim and you have the recipe for a very unpleasant court proceeding. Admittedly, a fleeing criminal defendant is almost without exception beyond the control of a defense attorney. But, alas, trying to explain these facts of life to an irate judge can be a very delicate situation for the defense attorney. It is my sincere hope that with the information in this article a defense attorney will be able to make a more educated decision on how to proceed prior to and after the flight of a client.
First, I would recommend that you try to be fully aware of your client’s true demeanor toward the pending charges and the possibility of incarceration. If your client starts asking questions regarding extradition laws, the statute of limitations, or any others questions regarding fleeing the jurisdiction of the court, be very cautious in how you answer. This cautionary note is especially relevant if you allow spouses or other family members to be present while conversing with your client. Consider the ease in which a conversation can be recorded in today’s technological world and you can begin to understand the potential repercussions.
While the sanctity of attorney client privilege is absolute, that absolute right does not extend to third party witnesses to the conversation. You don’t want to run the risk that as the search for the absconder is underway a family member who witnessed the conversation will claim that you the attorney advised your client on how to go on the run. This issue usually arises when the family member is facing charges of obstruction of justice or aiding the defendant in their flight. The family member will usually be heard saying something like “but his attorney told him he could leave the country to see his grandmother before he went to jail. I just drove him through the border crossing. His lawyer said it was okay”. Or consider what could happen if a client’s phone with an inappropriate recording were to be end up in the possession of the police or prosecutor. While the accusation from a third-party witness or a recorded conversation are highly unlikely to result in charges against the attorney, it can cast the attorney in a negative light in the eyes of the court. Remember, you the attorney have to continue to practice law in the same court system even after your client’s case has concluded. What’s your reputation worth?
Once a client has absconded what’s next?
After the client has fled, I would suggest you do an evaluation as to what your responsibilities are and who your client is from a fugitive perspective. Does your client have any financial resources? Are they a foreign national from a non-extraditable country? Have they ever been to jail before? Does your client have strong family ties in their home country? If your client has money, family abroad and has never been to jail before the chances of your client surrendering diminishes greatly. This is especially true if the alleged offense mandates jail time. Is your client someone who was born and raised in a local neighborhood, has few financial resources, and has been to jail multiple times? If this is your client’s situation then chances are reasonable that he or she will be caught sooner or later and will have to face the original charges in additional to any new charges that may arise from their subsequent arrest. Obviously, it is far better for the client if they can surrender without piling on additional charges. Engaging a private investigator with the correct skill set can help to make this happen.
Are you court appointed or privately retained? If you are privately retained are family members paying your fee? Does the family want you to continue to act on behalf of the defendant? If so, now may be the perfect time to bring a private investigator knowledgeable in fugitive investigations into your case. When it comes to a person who is on the run, building rapport with that person’s support network is critical. Negotiating a surrender often involves a lot of late-night phone calls and face to face meetings with the family. Exasperated family members can often harass an attorney with non-stop phone calls or even direct their anger and frustration toward the defense attorney because they incorrectly believe the attorney is not doing his or her job. An experienced investigator can act as a buffer and liaison with the family in order to allow the defense attorney to concentrate on building a great defense. The reality is that many people who go on the run regret their actions. With the proper intervention these same people can be convinced it is in their best interest to surrender.
The investigator will be an unbiased witness to the peaceful surrender of the client. The investigator will be able to create an atmosphere where a surrender can take place without any violence, additional charges, or, and this is very important, putting you the defense attorney in an awkward position with the court. I’ve known many an attorney who insisted on picking up their client and personally surrendering them. However, this can result in the attorney becoming a potential witness should the surrender not go as planned. You need to realize that when someone is surrendering to authorities it is always an extremely emotional event. As an attorney you want to represent your client in court. You do not want to be called as a witness by the prosecution because something went wrong during the surrender and you found yourself in the middle of the situation.
A fugitive surrender can sometimes be a very protracted and orchestrated ordeal. Or the event can be very fast paced, filled with unresolved issues, and fraught with legal pitfalls to the client. The problem with surrendering a client is how to handle the actual logistics of the surrender in a manner that will be of the most benefit to the client. Details such as court hours, jail booking procedures, and which arresting officer to present the client to all come into play.
Below are some of the more common issues I’ve observed when a person who is unsupervised surrenders to authorities.
That last party before going to jail.
It is not uncommon for family or friends to throw a going away party for a defendant before allowing him or her to surrender. I’ve observed countless defendants surrender while under the influence of alcohol or drugs. While the client’s rights under the fifth amendment may be strictly observed by authorities when the client surrenders, law enforcement does not have to disregard spontaneous unsolicited and incriminating statements put forth by an inebriated person. Nor do they have to disregard evidence such as illegal drugs, firearms, or other evidence of a crime that are found on the person of the client once he or she is placed into custody. What authorities observe in plain view inside a vehicle the defendant arrives in can potentially be used as evidence.
While this behavior may seem ridiculous, to a person facing significant jail time surrendering to authorities while intoxicated is often viewed as the last high for a long time to come. You would be surprised at how many people who are surrendering forget that they still have ammunition in their coat pocket and they are a convicted felon. Or perhaps they arrive wearing the jewelry they stole from a robbery victim which has the victim’s DNA on it. There is a significant difference between a client surrendering to defend themselves against criminal charges and adding evidence to the prosecutor’s case. Clients should not be walking evidence for the prosecution into the police station or courthouse at the time of surrender. And yet, rest assured, it happens.
Somebody wants their 15-minutes of fame.
It is not at all uncommon for family members or a local activist from the community to use the client’s surrender as a media event. If your client’s charges have come to the attention of the media, you the attorney are already tasked with the difficulty of drawing an unbiased jury. You don’t need your client’s significant other or the local activist, who may now possess more knowledge of the case facts than either you or the prosecutor have, spouting those potentially incriminating facts off in front of the news media.
You also do not want those same emotionally charged family members or the local activist openly debating the case with the police as the client is surrendering. This situation never ends well and once again there is a possibility that a member of the fugitive’s support group will spout off previously unknown information to anyone and everyone within listening distance. At a bare minimum, surrendering a client with a large support group identifies to the authorities a cadre of people to interview regarding your client.
Police misconduct at the time of surrender.
While police brutality is relatively rare these days thanks to the advent of video recorders being virtually everywhere, the media would have us believe otherwise. The sensationalism portrayed in the media can have your client more than a little nervous about surrendering. Having a private investigator on scene equipped with a recording device can keep the police on their best behavior. A private investigator can be recording when the authorities are advised that the client wishes to assert their right against self-incrimination and is represented by an attorney. This simple action by a private investigator can alleviate any doubt as to whether your client invoked their constitutional rights.
The person accompanying the defendant to the authorities convinces the defendant not to surrender.
I’ve witnessed countless negotiated surrenders fail because the person bringing the defendant to the surrender location was able to convince the person not to surrender. Good old Uncle Freddy volunteered to drive his nephew to the police station. Uncle Freddy even had the client’s mother’s blessing to bring her son in. However, on the way Uncle Freddy convinces the client to stay on the run. Why? Usually it is because Uncle Freddy is concerned that the client may inform the police about Uncle Freddy’s criminal activities in order to receive a reduced sentence. Or it can be as simple as Uncle Freddy does not like the police and views anyone who surrenders to them as weak. Additionally, you would be shocked at how many people fail to surrender due to a simple lack of transportation. Yet these same people will steadfastly refuse to allow law enforcement to pick them up. A private investigator experienced in surrendering a client can provide proper client control and reliable transportation.
For these and a plethora of other reasons, defense attorneys should consider using the services of a private investigator familiar with fugitive investigations when surrendering a client. In fact, I would offer that a defense attorney should always consider using the services of a private investigator as early as possible during any significant case. A competent private investigator can help to prevent any further repercussions against the client and can assist the attorney in building a strong and viable defense.
Mark Hebert spent two decades of his thirty-two-year law enforcement career conducting fugitive investigations for the U.S. Marshals Service. He is now the founder and owner of Hebert Investigations in Phoenix, Arizona. He is available to consult on a wide variety of investigations and is also available for speaking engagements regarding fugitive investigations and other investigative matters. You may reach Mr. Hebert at Mark@MyInvestigatorAZ.com