Facing a felony, would you want a private investigator? Some Wisconsin attorneys don't use them

Seneca Malone received a life sentence on the word of one man.

The prosecutor at Malone’s trial had no murder weapon, no physical evidence tying Malone to the case and no additional witnesses to the shooting. What he did have was the testimony of Mark Fossier.

Fossier told police he saw Malone shoot and kill Ricardo Mora, 28, during an argument in December 2005 on Milwaukee’s south side. At Malone's trial, Fossier recounted precise details of the hours leading up to the shooting and the moment he said Malone pulled the trigger.

In fact, Fossier’s story was riddled with holes. For example, he said he spent the day of the homicide hanging out with Malone, at one point getting a haircut on a friend’s porch. But records would later show Fossier’s friend hadn’t lived there for months and the windchill was single digits that day, making it unlikely anybody got a haircut outdoors.

Jurors at Malone’s trial didn’t hear about those inconsistencies. That’s because Malone’s appointed lawyer never hired a private investigator, who could have uncovered the information casting doubt on Fossier’s truthfulness.

Malone spent five years behind bars, until a legal team investigated Fossier’s account, discovered the inconsistencies and asked for a new trial. Milwaukee County Circuit Judge David Borowski granted the request, in part because Malone’s lawyer failed to hire a private investigator.

“I can’t even conceive how that could have occurred on a homicide case,” said Borowski, who didn’t preside over the murder trial.

Malone, once destined to die in prison, walked free seven months later under terms of a plea agreement.

Across Wisconsin, dozens of lawyers representing the state’s poorest defendants are routinely not using private investigators, potentially exposing their clients to greater risk of conviction and longer stints in prison, a Milwaukee Journal Sentinel investigation has found. Taken together, those lawyers have represented more than 5,000 court-appointed clients since the 2010 budget year, some charged with murder, sexual assault and armed robbery.

Veterans of the criminal justice system say investigators serve a vital role, safeguarding a defendant from bad or sloppy police work. Investigators interview witnesses, track down new evidence and search for holes in the state’s case. Their work can be the difference between a verdict of guilty or not guilty.

The Journal Sentinel’s investigation examined private lawyers who accept felony case appointments through the state to represent poor clients. Those lawyers were appointed to about 11,000 felony cases each year, or roughly one-third of all indigent defendants facing felony charges. Public defenders, who are state employees, represent the rest.

RELATED: Data shows some Wisconsin attorneys don't use investigators in serious cases

On appointed cases, the state pays private lawyers an hourly rate and foots the bill for investigators and defense expert services. To analyze how often private lawyers are using investigators, the Journal Sentinel obtained data that shows how many cases each lawyer was assigned and how much they billed for investigators between the 2010 and 2016 budget years.

The data shows about 100 lawyers accepted at least 50 felony case appointments without using a private investigator over that time. Several lawyers were assigned more than 200 felony appointments without billing for an investigator. One lawyer topped 300 cases.

In addition, a few dozen lawyers took 50-plus felony appointments and almost never billed for investigators. One lawyer, for example, accepted about 300 felony cases and billed for seven hours of investigator work.

Lawyers also have spurned investigators on the most serious types of cases, the analysis shows. The Journal Sentinel found at least 15 homicide cases, dozens of armed robbery cases and nearly 200 sexual assault cases in which indigent defendants were represented by lawyers who rarely or never billed for investigators.

A dozen prominent Wisconsin lawyers and investigators interviewed by the Journal Sentinel questioned whether a lawyer can adequately represent dozens, if not hundreds, of clients without ever using an investigator.

“I can see not hiring an investigator in some cases, but that’s not going to happen 100 out of 100 times,” said Keith Findley, co-director of the Wisconsin Innocence Project. “That’s why it’s a red flag.”

The findings come as some in the legal community argue that too many mediocre or incompetent lawyers are taking state-appointed cases. They say many of Wisconsin’s best criminal defense lawyers refuse to take appointed cases because the state’s reimbursement rate — $40 per hour, unchanged since 1995 — is too low. Of the 30 states that pay lawyers an hourly rate for work on appointed cases, Wisconsin’s is the lowest.

Unlike many states, Wisconsin's pay rate doesn't fluctuate based on the severity of the case or the type of legal work done. Arkansas, for example, pays $60 per hour for work on low-level felonies and up to $110 per hour for death-penalty cases. In South Carolina, lawyers get $40 per hour for case preparation, but the rate increases to $60 per hour when they're at trial or court hearings.

Need for investigators

American Bar Association standards say a defense lawyer should “conduct a prompt investigation” and explore all avenues relevant to a case. The association doesn’t set hard-and-fast rules for when an investigator should be used.

But the dozen lawyers interviewed generally agreed on when they are needed: if the case will go to trial; if the defendant proclaims innocence; if complicated legal issues are at play; or if there are multiple witnesses to the alleged crime.

“I think any case that has any real complexity is going to require an investigator for something,” said Ellen Henak, a Milwaukee-based appellate lawyer and treasurer of the Wisconsin Association of Criminal Defense Lawyers.

Several state-appointed lawyers who don’t use investigators defended their practice. Some said they prefer to do the investigation themselves and bill for their time. Others said investigators weren’t needed because their cases mostly involved low-level felonies, such as drug possession and theft. Some added that investigators don’t add value to a criminal defense.

“I found I haven’t needed investigators,” said Matthew Krische, an Eau Claire-based trial lawyer who has accepted 223 felony case appointments since 2010 without using an investigator once. “I think it depends on the case, and also the area of the state. Obviously we’re a different market than Milwaukee. There’s a lot more violent crime and a lot more need for investigators.”

The billing data, however, shows most lawyers deem investigators essential.

Each year, on average, the lawyers accepting state-appointed cases use investigators for about 21,700 hours of investigator work. Dozens of lawyers billed for several hours of investigator work per case, on average. Among those lawyers, most worked in markets other than Milwaukee, and the majority of their cases involved low- and mid-level felony charges.

“A minor felony is not a minor thing,” said Bill Mansell, a recently retired Wausau-based lawyer and past president of the Wisconsin Association of Criminal Defense Lawyers. “A felony is serious. People go to prison. Even if it’s only exposure for a year or more, that’s a person’s life.”

The state Public Defender's Office said in a statement it would "intercede to educate" a private attorney who had a blanket policy of not using investigators. The office assigns cases of indigent defendants to private lawyers when it has a conflict or can't take on the case for various reasons, but it can't supervise the attorneys' work or use of investigators due to confidentiality and conflict-of-interest rules.

Randy Kraft, a spokesman for the office, said staff has determined they need to better monitor lawyers' performance using data such as the billing records examined by the Journal Sentinel.

Overturned conviction

For two years, the murder of Mora went unsolved in Milwaukee.

Then, in February 2008, Milwaukee police got a break. They brought in Fossier, a suspect in the homicide, to question him. After several hours of interrogation, Fossier said his friend, Malone, killed Mora.

READ: Mark Fossier's statement on the Mora homicide

The state appointed Theodore Bryant-Nanz to defend Malone. According to testimony he gave at an appeal hearing, Bryant-Nanz thought he could win the case by discrediting Fossier, who gave differing accounts of the killing and waited two years to implicate Malone. Yet Bryant-Nanz didn't hire an investigator to help him do that or investigate the case on his own.

Jurors deliberated for 40 minutes before returning a guilty verdict. Four months later, Milwaukee County Circuit Judge John Franke sentenced Malone to life in prison.

Malone asked the Wisconsin Innocence Project to take up his cause. The organization's six-person team spent several months investigating the homicide and found several inconsistencies and new evidence:

• Fossier told police he spent the day of the homicide with Malone at the home of a man named Donovan Bellamy, but property and utility records showed Bellamy had moved months earlier.
• Explaining why it took him two years to give information on Mora's murder, Fossier cited the recent unsolved homicide of a friend as his motivation. But the timeline didn't match. Police had announced an arrest in the murder of Fossier's friend weeks earlier.
• Six weeks before Mora’s death, witnesses told police that Fossier had fired several shots at an unarmed person near the scene of Mora’s killing, raising the issue of whether he had a tendency toward violence, and lying.

“My whole case was based on a made-up statement, and (Bryant-Nanz) didn’t do anything to contradict that statement,” Malone said in an interview. “That would have been easy as hell to do.”

Faced with the Innocence Project’s findings, Borowski, the judge hearing Malone’s appeal, ordered a new trial. He said Bryant-Nanz’s representation was “completely, abjectly, totally incompetent.”

READ: Transcript of Judge David Borowski's ruling

Prosecutors offered Malone a deal: plead guilty to a lesser charge, and receive time served and two years of probation.

Fearful of a second conviction, Malone took the offer. He maintains his innocence to this day.

'A giant red flag'

Several prominent Wisconsin lawyers said the failure to hire an investigator could lead to injustices.

Michael Levine, a Milwaukee-based defense lawyer, estimated he hires investigators on 90% of his felony cases, calling them “absolutely critical.”

“That’s a giant red flag, and they cannot be working their cases if that’s what they’re doing,” Levine said of lawyers who aren’t using investigators.

Henak, the Milwaukee appeals lawyer, suggested some lawyers are forgoing the use of investigators because they want to resolve the case quickly with a plea agreement. In an average year, about 27,000 felony cases end with a plea agreement in Wisconsin, with 1,000 resolved at trial.

“I’ve seen lawyers say, ‘This is going to plea, so we don’t have to do anything. Let’s just get the offer,’ as though somehow they don’t have an opportunity to influence that offer,” Henak said.

The state’s salaried public defenders have a team of investigators at their disposal. For the appointed cases, lawyers say, it can be hard to find an investigator who will work at the state’s $20 per hour rate — but hundreds of lawyers have found investigators willing to take cases.

To some of the lawyers not using investigators, there are logical reasons for their decisions.

Several lawyers, such as Matthew Weil of West Bend, said they don’t need investigators because their clients are facing low-level felony charges that don’t necessitate one. Weil and his firm's co-founder, Bob Buckett, did not once bill for an investigator while accepting 200 felony cases since 2011.

“That differentiates us right off the top from lawyers who have a lot of sexual assaults or types of things, where you’d feel more compelled to use an investigator,” Weil said.

Mansell, the recently retired Wausau lawyer, said case details — not the severity of the charges — should dictate whether a lawyer hires an investigator.

“I don’t know what sort of felony cases you could have that wouldn’t require some sort of investigative work,” Mansell said. “That’s unimaginable to me.”

Other lawyers said they do investigations on their own, including Benjamin Peirce, a Milwaukee lawyer who has accepted 175 felony appointments without billing for an investigator.

“I would go to the scene. I would knock on doors. I would try to track down witnesses and neighbors,” Peirce said. “I just didn’t really see the need for investigators.”

Lawyers who conduct their own investigations could face problems at trial. If a witness tells an investigator one thing and says another at trial, the investigator can take the stand and testify about the inconsistency. A lawyer can’t.

Second chance at freedom

Jarrett Adams personally knows the importance of investigators.

In 2000, jurors in Jefferson County convicted Adams in a gang rape, resulting in a 28-year prison sentence. His lawyer never hired an investigator to track down a key independent witness, whose testimony could have contradicted the accuser's account.

Convicted at 19, Adams spent seven years in prison before a federal appellate court granted him a new trial. The court's judges found the witness' testimony could have swung a "very close case" that was "highly contingent" on the accuser's credibility. Prosecutors later dropped the charges and Adams went free.

READ: Appeals court opinion granting new trial to Jarrett Adams

It’s rare for defendants to get a conviction overturned due to a lawyer’s failure to investigate and find evidence. A Journal Sentinel review of available data dating to 2000 found an average of one such case per year.

One reason, appellate lawyers said, is that the defense must prove the trial lawyer provided ineffective counsel by failing to investigate and that there’s a “reasonable probability” any newly discovered evidence would have produced a different outcome at trial.

Yet another reason is that some lawyers won’t investigate a crime during the appeals process, regardless of whether that work was done at the trial level.

“A lot of appellate lawyers won’t push for an independent investigation because it’s not part of the culture," said Ion Meyn, a former Wisconsin Innocence Project lawyer. "It’s shocking how often that’s not done.”

Following his release from prison in 2007, Adams worked as an investigator in the Chicago federal defender's office, obtained his law degree and clerked for the 7th U.S. Circuit Court of Appeals — the same court that granted him a new trial. Today, he's a post-conviction litigation fellow with the Innocence Project, whose team helped free him from prison.

"That case cost me a huge portion of my life," Adams said. "And it could have cost me almost the rest of my life if people didn't go reinvestigate."

Kevin Crowe of the Journal Sentinel staff contributed to this report. Reporter Jacob Carpenter can be reached at (414) 224-2745 or jacob.carpenter@jrn.com. Follow him on Twitter at @MJS_JCarpenter.

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