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Balancing the Financial and Resource Scales of Justice

3/31/2015

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Balancing the Financial and Resource Scales of Justice

A recent story, now several a day it seems, tells of a death row exonoree receiving a settlement for his wrongful conviction.  In a recent settlement this was $20 million.  Also recently is the story of a Texas prosecutor being charged with misconduct in a death penalty case.  However, that wrongfully convicted person was executed in 2004.  The levels of wrongful conviction span all – from misdemeanors to death penalty cases.  We should be concerned with all imbalances we face and their consequences.  The percentage of these wrongful convictions is low, and in reality not fully avoidable.  However, we can work to mitigate these as practicing legal investigators and through our state and national associations.

Let’s look at the recent example.  For a fraction of this $20 million could be an increase in the funding and resources for the defense would be a start.  Next, fix the budget and resources for the prosecution to the same as the defense, and fine the prosecution the $20 million.  In another case, the former prosecutor offers this, “Had I been more inquisitive, perhaps the evidence would have come to light years ago. But I wasn't, and my inaction contributed to the miscarriage of justice in this matter. Based on what we had, I was confident that the right man was being prosecuted and I was not going to commit resources to investigate what I considered to be bogus claims that we had the wrong man.”  In other words, this prosecutor shared only that evidence with the defense that is only guilty.  That is exactly the point of his, and so much, prosecutorial misconduct. A poor attempt at apologizing through justifying his actions.

In other words, this prosecutor shared only that evidence with the defense that is only guilty. That is exactly the point of his, and so much, prosecutorial misconduct. A poor attempt at apologizing through justifying his actions.

In another recent story, and a first, a prosecutor was jailed for misconduct – a Brady violation – for withholding evidence from the defense known to be exculpatory.  During the 25 years of incarceration for this wrongful conviction, the prosecutor had a distinguished career and eventually became a judge.  The former prosecutor pled to criminal contempt, surrendered his law license, and sentenced to perform 500 hours of community service with 10 days in jail.  Not much for his misdeeds – prosecutorial misconduct, which too often goes unchecked.

In my hometown was a notorious homicide about the time I started my agency.  A young man, a teenager, was the first and only suspect – hounded by the lead detective.  When this arrest was announced over 15 years later I was in a class by a well-known retired FBI Behavior Analysis Unit founder.  The defendant went on to be prosecuted, using evidence by the retired BAU consultant and a forensic psychiatrist using drawings depicting violence.  The prosecutors would each become judges and the detective went on to lead the detective bureau.  Years later the defendant was released on the first case of ‘touch DNA’.  After his release one of the judges made this statement to the local media, “Its not like we were hiding anything. A few things weren't provided. Lawyers ought to have known or asked about the evidence because it was referenced in multiple documents they were given.”  [NOTE:  the cite for this is unavailable, other than the local newspaper – I have kept the quote for reference]  Both judges were censured, regulators felt they should have pressed police harder to provide all of the information.  They would both later seek re-election, and for a first time in several decades a sitting judge – two actually, a first – was not retained in re-election in our county.  The detective also faced perjury charges and withholding evidence that was found to be at his home.  Experts consulted by the prosecution have variously expressed their opinions may have been different had they been presented all the evidence, and not only what the prosecution wanted them to see – which was limited by what the detective wanted the prosecution to see.

It was the tenacity of the new defense teams in all of these cases which won the rightful release of their clients.  Our profession is filled with many, many members that have been material in garnering the release of the wrongfully convicted.  Most of these cases are indigent – either through private appointed counsel or public defender offices (state and federal).  While sitting in the courtroom, have you looked around and estimated the cost of the prosecution for the hour, day or week? How about the defense?  We are all familiar with the OJ Simpson case – the first fully televised trial, which seemed to have more attorneys than jurors.  This is not what we usually see – both sides had funding and resources, essentially trying to outdo each other.  I have participated in the pro se defense as the only assistance to the defendant, denied funding for DNA tests and even my own fees.  However, the prosecution had three attorneys rotating for the week, a half-dozen experts, unlimited laboratory services, delayed disclosure, and – of course – funding and resources the defense cannot have.  I have been the only expert on a case in which the prosecution asked why; well, that was all the funding approved by the court.  If you are a criminal defense investigator, you have been involved in the imbalances of the scales of justice.

What benefits does the prosecution have?  The list varies, but the basics are funding and resources.  Funding is what it takes to bring the case to conviction at trial.  Resources range from local municipal and county law enforcement and crime lab resources, to the same state and federal resources.  While observing this in the courtroom, what we do not see is the foundation of those resources.  Taxpayers – all taxpayers – pay for the infrastructure and personnel of these resources, which includes training.  The average public servant does not pay for their training, but each of us in the private sector pays 100% of our infrastructure and training costs.  We are also denied the same or equivalent training and resources.  I do not believe the average taxpayer understands what takes place – many of us do not until we sit in the courtroom for a full hearing or trial.  If so, I doubt they would agree that funding only the prosecution so greatly, and indigent defense so minimally, is a fair and balanced justice system.

The first hurdle of the defense is a guilty as charged.  We know it is not guilty until proven beyond a reasonable doubt.  But, would prosecutors withhold exculpatory evidence if so?  The second hurdle of the defense is the evidence – withheld evidence, neglected evidence, spoliated evidence, and ignored evidence.  That is a pretty significant hurdle to overcome, and the first and second hurdles combined make for a very daunting series of tasks.  These hurdles become exponentially larger as the funding becomes less.  Recently I asked several colleagues who accept appointed cases what their compensated rate is.  The range was $30-$40 per hour, from which taxes and overhead come out and they often work more hours than they are approved to bill, and often eat up expenses that are refused.  Attorneys range from $60 to $80 per hour, and have the same obstacles.  Do law enforcement and the prosecution have such limited funds and only 1-2 attorneys and investigators per case.  No.  The cases are given priorities with the funding and resources to reach the goal those priorities set.

There are no easy answers.  I feel strongly that we have the best justice system in history and the world.  It has its flaws, but most of those flaws are at the human level.  It is difficult to present solutions.  At a recent association conference a retired federal judge was a keynote speaker and was pushing for reform that would give appointed attorneys and investigators the equivalent hourly fee of their counterparts.  However, it is also about resources – from laboratories and experts, to education and training – which all do require not only funding, but access.

Next have been suggestions that those withholding, spoliating or otherwise manipulating the evidence be held accountable – from fines to equal incarceration.  It is unlikely a prosecutor would be imprisoned for 25 years, or perhaps life for multiple acts of misconduct resulting in multiple wrongful convictions.  However, more than 10 days would send a message.  Perhaps an independent state level review panel comprised of professionals and citizens – similar to civil rights review panels.  The concept would be to disarm those who are left policing themselves.  Professional misconduct is not subject to immunity – it is simply treated with immunity. 

Perhaps we can begin to balances those scales.  What is the cost of one wrongful prosecution?  We simply cannot know – from the cost of trial to appeals and any settlement award – billions per year. These awards earned by decades of incarceration – many having faced execution – do not give them back what they have lost and doesn't put the person who should be in prison, there.  In closing, there is one example of taking judicial notice of funding and resources in the rights of the defendant.  On February 24, 2014, the United States Supreme Court issued a per curiam reversal in the case of Alabama death row inmate Anthony Ray Hinton. Applying “a straightforward application of [its] ineffective-assistance-of-counsel precedents,” the Court held that “it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire [a forensic] expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000.”  For now, we must continue to be truly impartial finders of fact while forging our own paths over the obstacles we face.
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Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI
Colorado Licensed Private Investigators PI2.050 and PI2.019
Cheyenne WY Licensed Private Investigators & Security (No. 31146)
Board Certified Legal Investigator / Expert Consultant (national)
Board Certified Criminal Defense Investigators
Certified in Medicolegal Death Investigations / former Deputy Coroners

Associates in Forensic Investigations, LLC
A Rocky Mountain West Agency
Expert Consultants and Legal Investigators
Personal Injury, Negligence & Death in Civil, Criminal and Probate Litigation

www.DeathCaseReview.com ~ beersda@DeathCaseReview.com
CO - (970) 480-7793 Office / TXT and (970) 480-7794 Fax
WY - (307) 222-0136 Office / TXT and (307) 222-0138 Fax
'Quaero Indicium' - To Find The Evidence

Keep informed - visit and 'Like' us on Facebook at www.Facebook.com/4N6Associates and our agency blog at www.MedicolegalPI.com
Listen to Facts & Forensics at www.GIMG.tv
On-Demand Distance Learning at www.InvestigativeCourses.com

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Investigator Ethics for the PI, Consumer and Client

3/26/2015

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Investigator Ethics for the PI, Consumer and Client
We are excited to announce the launch of our new on-demand distance learning website for investigators! www.InvestigativeCourses.com

We start with a FREE 1-hour course on "Investigator Ethics for the PI, Consumer and Client" based on our guide distributed free for several years. This course comes with a Certificate of Completion which may qualify for continuing education credit (check with your regulating agency or accrediting association). Join students worldwide - nearly 200 new students today!

This course is designed for any person interested in being a private investigator or hiring a private investigator - from new to veteran, attorney to consumer. It is designed to be an informative course on those ethics that are most often unknown, forgotten or misunderstood. This is also available by podcast and an included guide of all the lectures and visuals.

As the consumer or potential client of attorney and/or investigative services, it is important to understand the unique relationship that may exist between them, and how it may relate to your case.

Common ethical issues that arise include:
- Using a ruse and false identities
- Personal or other inappropriate contact with a represented opposing party
- Surreptitiously recording conversations
- Entering onto private property or other prohibited area
- Extending any contact (lawful or not) with a party into a relationship beyond the scope of the assignment.

View the introduction video at http://youtu.be/rLT-zh4Uglk

Together We're Better - Together We Make the Difference!
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Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI
Colorado Licensed Private Investigators PI2.0000050 and PI2.0000019
Cheyenne WY Licensed Private Investigators & Security (No. OL-15-31146)
Board Certified Legal Investigator / Expert Consultant (national)
Board Certified Criminal Defense Investigators
Certified in Medicolegal Death Investigations / former Deputy Coroners

Associates in Forensic Investigations, LLC
A Rocky Mountain West Agency
Expert Consultants and Legal Investigators
Personal Injury, Negligence & Death in Civil, Criminal and Probate Litigation

www.DeathCaseReview.com ~ beersda@DeathCaseReview.com
CO - (970) 480-7793 Office / TXT and (970) 480-7794 Fax
WY - (307) 222-0136 Office / TXT and (307) 222-0138 Fax
'Quaero Indicium' - To Find The Evidence

Keep informed - visit and 'Like' us on Facebook at www.Facebook.com/4N6Associates and our agency blog at www.MedicolegalPI.com
Listen to Facts & Forensics at www.GIMG.tv
On-Demand Distance Learning at www.InvestigativeCourses.com

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Life Insurance Fraud and Illegal Beneficiaries

3/11/2015

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Life Insurance Fraud and Illegal Beneficiaries

(07/14/2015 - This has now
has been published in PI Magazine. We encourage all professional investigators to subscribe to PI Magazine - www.PIMagazine.com)

In our world of Equivocal Death Investigations, we are often tasked with bringing closure to families in the loss of a loved one (see www.UnderstandingDeathInvestigations.com).  This may include the unasked question of life insurance benefits.  This is because many life insurance policies have double indemnity clause – or payment of twice the policy benefits if the death is ruled an accident.  Conversely, many life insurance policies have a clause that denies benefits if the death is ruled a suicide.  These may also have clauses that, in the event of benefits, the terms are limited – for example a suicide two or more years after a policy is written is payable.  Similarly, there are issues of survivor and workers’ compensation benefits in the event of accidents and death.  These are all very important, and often unrealized, issues when families may need the expertise of our services and legal counsel.

The insurance industry proactively fights fraud, including with specific clauses and pre-settlement investigations of benefits.  One area of fraud that has garnered limited attention is obtaining an insurance policy – life, accidental death and dismemberment, disability, etc. – without the consent and knowledge of the insured.  In all states the insured must have knowledge and give written consent to being insured.  This includes by a spouse, significant other, next of kin, next best friend, administrator of an estate, or other relative.  Even if a person is granted a power of attorney there are limitations.  In fact, this is a very common fraud.  It is very similar to identity theft in how it is perpetrated and caught.

The Law – Can You Purchase a Policy Covering Another Person?
What is the answer?  Yes, but only under specific ‘insurable interests’.  These conditions are predicated on the insurance having a financial value and the beneficiary having a legal interest – it is not intended to be a gamble on the death, or manner of death, of a person.  From the article, ‘Life Insurance – Can I Buy For Someone Else?’ (see Resources), following are some important key points.

To insure another person two conditions must be met:  1) Notice and consent with participation of the person whose life is being insured; and 2) Provide a reason why the beneficiary will be adversely affected financially by the insured’s death.  The only exception is when parents buy life insurance on their minor child/ren.  Unless you have a specific loss from the death of the other person, you do not have an insurable interest and cannot legally insure them.  This is a common area of insurance fraud, and also homicides staged as accidents or death under other unusual circumstances.

Persons having insured interests include the insured, husband and wife, and parents of minor children.  Adult children may have an insured interest in their parents if there is a financial relationship of the death (i.e. caring for parents, having an interest in a home mortgage, long-term care financial burden, etc.).  It is also common for businesses to insure principals of the business due to potential financial loss, which still requires notice and consent.
 
Insurance companies are making an investment against the premiums, a bet of sorts.  To hedge their bet and protect their interests they often require several things before issuing a life insurance policy.  In addition to the two conditions above, consent is usually given by a signed application with a notarized affidavit of the insured.  During the underwriting process a medical examination is often required. 

Admittedly, when we first learned of this we did not know it was illegal to purchase life insurance of another without their consent.  The explanation given to us, in one example, was the insured was the incarcerated father of an estranged adult child and the relationship made obtaining the life insurance policy.  Being legal investigators and with a focus on equivocal deaths and death benefits, we knew to check on this.

Detecting and Preventing Insurance Policy and Identity Theft
As a consumer, you are empowered to assure you are protected from being the deadly subject of insurance fraud and related identity theft.  Legal investigators may also be able to assist; however, for consumer protection there are limitations on who and how the access to insurance and related information is granted.  There is a medical information consumer reporting agency – MIB, formerly the Medical Information Bureau.  When you see a commercial for insurance in which no medical examination is required, the underwriter receives a report from MIB, similar to your consumer credit report – except it is about your health and how you are insured for health and life.

Like your consumer credit report, your medical information is subject to errors, omissions and identity theft.  You can request a copy of your MIB consumer file directly from them.  Legal investigators, attorneys and other persons with a permitted purpose must first contact MIB to begin their request.  This should be done annually, and also if you are denied coverage or have a sudden increase in premiums.

Your health and life are not all that is insured.  You may also have your automobile, home, business and other items of financial value and investment insured – even your legs if you wish and can demonstrate the requisite ‘insurable interest’ and potential financial loss.  A consumer may be the target of insurance fraud and identity theft via these types of policies.  To our knowledge there is not a repository, similar to the consumer credit reporting agencies or MIB, which provides this service for consumer protection.  There is a service that is used by legal investigators and attorneys to determine policies, policy limits and losses.

Insurance fraud may seem to be victimless – after all, the insured (future decedent) is not paying out any premiums or benefits – a large corporation is.  However, fraud is a crime and all consumers of insurance become victims through increased premiums.  Moreover, beneficiaries of fraudulent policies are benefitting by the death (or accident, dismemberment or other demise) of another, without their knowledge or consent.  No one can use the excuse they did not know – the process of insuring another is done with premeditated knowledge of the act.  Moreover, the excuse of paying the premiums is not sufficient – the contract of the policy is concluded with the payment of benefits, which will exceed the premiums.  As all persons will die, it is simply paying a premium for a known outcome for the sole purpose of financial gain.

Protecting Yourself and Your Family
Like your financial security and credit worthiness, your medical and health information is subject to identity theft.  It is recommended that you obtain and review your consumer credit reports, life and health insurance reports, and any other financial and insurance reports that are available to you.  This should be done annually, if you are denied any credit or insurance, and if you are assessed an unexpected increase in premiums.

Resources
  • When Can You Buy or Own Life Insurance on Someone Else’s Life? by Shane Flait ©2011
http://www.easyretirementknowhow.com/articlecategories/life%20insurance/sya111003lifeins-CanIbuyforsomeoneelse.htm
  • Consumers – Requesting a Policy Search
Health and Life:  http://www.mib.com/facts_about_mib.html
Auto, Business, Homeowner, Renter, Umbrella, Professional Malpractice, Premise, Product Liability, and E&O/D&O policies: http://mlresearchgroup.com/services/insurance-traces.aspx
  • Investigators – Requesting a Policy Search
Health and Life:  https://www.mib.com/lost_life_insurance.html
Auto, Business, Homeowner, Renter, Umbrella, Professional Malpractice, Premise, Product Liability, and E&O/D&O policies (see above)
  • Credit Reports (free annually by federal law; some states are two; all are free with denied credit)
All three (Equifax, TransUnion and Experian) – https://www.annualcreditreport.com/index.action
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Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI
Cheyenne WY Licensed Private Investigators (No. OL-15-31146)
Board Certified Legal Investigator / Expert Consultant (national)
Board Certified Criminal Defense Investigators
Certified in Medicolegal Death Investigations / former Deputy Coroners

Associates in Forensic Investigations, LLC
A Rocky Mountain West Agency
Expert Consultants and Legal Investigators
Personal Injury, Negligence & Death in Civil, Criminal and Probate Litigation

www.DeathCaseReview.com ~ associates@DeathCaseReview.com

CO - (970) 480-7793 Office / TXT and (970) 480-7794 Fax
WY - (307) 222-0136 Office / TXT and (307) 222-0138 Fax
'Quaero Indicium' - To Find The Evidence

Keep informed - visit and 'Like' us on Facebook at www.Facebook.com/4N6Associates and our agency blog at www.MedicolegalPI.com

Listen to Facts & Forensics at www.GIMG.tv


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