Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 PROSECUTING STAFF SEXUAL ABUSE Building Cases From Investigation To Indictment To Disposition The Prosecutors’ Perspective July 9 – July 14, 2006

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 TRAINING OBJECTIVES  To understand the prosecutor’s approach to investigations of staff sexual misconduct with offenders  To understand what prosecutors want before they will accept a case of staff sexual misconduct with an offender  To understand what prosecutors need to successfully prosecute someone of staff sexual misconduct with an offender

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 Rev. Dr. Martin Luther King, Jr ( ) Letter from the Birmingham Jail, April 16, 1963 Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 TRIAL I  Case Study: United States v. Michael Ellison  Indictment: Deprivation of Rights Under Color of Law  Surprisingly Unsympathetic Victim  No Corroborating Physical Evidence  Report of Rape Witnesses  Staff Witnesses

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 PROSECUTOR’S OVERVIEW  The Initial Report  Corroboration  Strength of the Initial Investigation  Crime Scene  DNA  Admissions  Witnesses

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 JURY HURDLES  Most Witnesses Have Criminal Records!  These Are Not Very Likable Folks  The Victim Has An Ax To Grind!  Could This Be A Set Up?  Is This Fabricated?  Was This Consensual?  Why Should I Care?

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 SEX CASES IN GENERAL  Comes down to he said, she said (no witnesses)  Lack of physical / biological evidence  What exactly is consent  Problematic Victims

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 AGENCY CASES IN GENERAL  Victim is a criminal  Gets what s/he deserves  Witnesses are criminals  Law enforcement benefit of the doubt  All About the Civil $$$$ Lawsuit

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 SEX CASES IN PRISON  Nature of sexual act itself oSame gender assault oSexual behaviors that seem out of the ordinary, so difficult for people to talk about  Gender issues oPerception that cases involving male staff and/or female inmates more attractive oRace and class Often victim is separated by defendant and community by race and class  Disability oMental health oDrug addiction

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 ANTICIPATE DEFENSES  Fabrication  Bias  Motive  Consent  Nullification  Poor Investigative Work  Identity  Reasonable Doubt

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 THE INITIAL REPORT  Timing of Report of Sexual Assault  Devil in the Details  Demeanor of Victim  Any Prior Reports of Rape  Victim’s Parole Status  Location  Any Prior Contact/Relationship with Suspect  Willingness to Go Forward

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 CORROBORATION  Sexual Assault Kit o Injuries o DNA  Reports of Rape  Eye or Ear Witnesses  Physical Evidence

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 STRENGTH OF INITIAL INVESTIGATION  The Rape Report  Rape Kit/Medical Forensic Examination  Document Visible Injuries with Photographs  Photograph / Diagram Scene  Determine All Sexual Contacts or Acts  Uncover All Potential Witnesses (Eye or Ear)  Determine Prior Contact with Target  Obtain Log Books  Obtain Inmate Locators  Obtain Shift Schedules  Obtain Internal Investigative Reports (watch out for Garrity )  Consider Defenses

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 CAREFULLY PROCESS CRIME SCENE  Determine Location of Assault (the place/person) o Prison Cell o Office  Immediately Photograph/Diagram  Recover All Physical Evidence o From the Person of the Victim o Bedding o Defendant’s Clothing o Condoms/Wrappers o Cups/Glasses

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 POWER OF DNA  Fabrication Defense - Gone  Misidentification - Gone  Powerful Corroboration  Consent No Defense  May Force Defendant To Testify  Look For Nuclear DNA oSwabbings from Victim oBedding or Sheets  Look For Mitochondrial DNA oHair Samples  Helpful Serological Results oSemen vs. Blood/Saliva

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 ADMISSIONS  Non Custodial Interview of Suspect oLet Suspect Provide Explanation for Report oLock Suspect Into Statements Re Any Contact with Victim During Time Frame of Assault oFully Flesh Out the Alibi with All Details oConfront them with Details and Evidence Recovered in Your Case  Written Statements  Statements to Co-Workers  Statements to Supervisors  Custodial - Miranda Waiver  Consensual Phone Calls  Impeaching Statements  Employment Files

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 QUALITY/ QUANTITIY OF WITNESSES  Taking Witness Statements  Witness Relationship to Victim oOther Inmate oCorrectional Employee  Criminal History of Witnesses  Keeping Track of Witnesses  Using Witnesses at Trial  Witness Security Issues  What’s in it for the Witnesses?  Lock out Future Contradictory Witnesses

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 PREPARING FOR TRIAL  Victim Trial Preparation  Locating and Securing Inmate Witnesses  Securing BOP Employee Witnesses  Witness Trial Preparation  Obtaining Custodians for Records  Updating Criminal History  Brady/Giglio/Lewis  Preparing Your Arguments

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 THEMES  8 th Amendment  A Nation of Laws  Duty to Follow the Law  No One Is Above The Law  Thin Blue Line / Code Of Silence  Whistleblower  This Is About Power, Not Consent  Lessons Learned On The Inside

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 TRIAL II  Case Study: United States v. Robert White  Indictment: Sexual Abuse of A Ward  DNA  Admissions  Corroborating Physical Evidence  Report of Rape Witnesses  Staff Witness

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 TRIAL III  Case Study: United States v. Darren Way  Indictment: Second Degree Sexual Abuse  Victim a Criminal  Corroborative Physical Evidence o Keys o Telephone Records  Report of Rape / Law Enforcement Witnesses  Expert-like Testimony

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 WHAT PROSECUTORS WANT  Staff v. Offender = waste of time  Tie it in a Bow - Quickly oEvidence – physical / biological oInterview every potential offender witness oInterview every potential staff witness oMedical records – psychological / physical oPhotographs / Diagrams of the scene oOffender records (disciplinary / program) oInternal policy manuals / training records

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 WHAT PROSECUTORS ADD the independent analyst – the director – the hammer  Independent Investigation  Cover (Internal and External)  Experts oMedical oSexual assault oDNA  Grand Jury Compulsion  Sentencing Options

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 HOW TO DEAL WITH THE RETICENT PROSECUTOR  Get Him/Her Involved Early  Complete A Comprehensive Report  Be Responsive  Personally Present Full Report  Follow-up Regularly  Document All Conversations  Supervisor to Supervisor

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 PRE-TRIAL DISPOSITION A Conviction = A Conviction  Guilty Pleas Are Good  Saves Victims From Testifying  Ensures Conviction in Weaker Cases  Avoid Issues of Recantation  Avoid Issues of Witness Relocation  Useful In Cases w/ No DNA or Weak Corroboration  Registered Sex Offender  Potential for Jail Time  Deterrent Effects  Encourages Reporting

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 OUR IMPACT Conviction v. Unemployment  Just Result – rapists should be incarcerated  Sends the Right Message – Inexcusable  Deterrence – Stop and Think  Safer environments – Rules are Rules

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 Justice Louis D. Brandeis ( ) US Supreme Court Olmstead v. United States, 1928 The government is the potent omnipresent teacher. For good or ill it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that the end justifies the means -- to declare that the government may commit crimes -- would bring terrible retribution.

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 NO MAN IS ABOVE THE LAW... AND NO MAN IS BELOW THE LAW - Theodore Roosevelt

Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1 QUESTIONS Deborah Connor Assistant U.S. Attorney District of Columbia Sex Offense Section th Street, N.W. Room Washington, D.C (202) Roy L. Austin, Jr. Assistant U.S. Attorney District of Columbia Fraud & Public Corruption th Street, N.W. Room 5239 Washington, D.C (202)