PROSECUTING STAFF SEXUAL ABUSE

1. PROSECUTING STAFFSEXUAL 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

2. 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

3. Rev. Dr. Martin Luther King, Jr(1929-1968)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

4. 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

5. 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

6. 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

7. 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

8. 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

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

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

11. 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

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

13. 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

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

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

16. ADMISSIONS • Non Custodial Interview of Suspect • Let Suspect Provide Explanation for Report • Lock Suspect Into Statements Re Any Contact with Victim During Time Frame of Assault • Fully Flesh Out the Alibi with All Details • Confront 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

17. QUALITY/ QUANTITIY OF WITNESSES • Taking Witness Statements • Witness Relationship to Victim • Other Inmate • Correctional 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

18. 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

19. THEMES • 8th 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

20. 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

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

22. WHAT PROSECUTORS WANT • Staff v. Offender = waste of time • Tie it in a Bow - Quickly • Evidence – physical / biological • Interview every potential offender witness • Interview every potential staff witness • Medical records – psychological / physical • Photographs / Diagrams of the scene • Offender records (disciplinary / program) • Internal policy manuals / training records Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1

23. WHAT PROSECUTORS ADDthe independent analyst – the director – the hammer • Independent Investigation • Cover (Internal and External) • Experts • Medical • Sexual assault • DNA • Grand Jury Compulsion • Sentencing Options Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1

24. 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

25. PRE-TRIAL DISPOSITIONA 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

26. OUR IMPACTConviction 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

27. Justice Louis D. Brandeis(1856-1941) US Supreme CourtOlmstead 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

28. 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

29. Deborah Connor Assistant U.S. Attorney District of Columbia Sex Offense Section 555 4th Street, N.W. Room 10-919 Washington, D.C. 20530 (202) 353-7585 Deborah.Connor@usdoj.gov Roy L. Austin, Jr. Assistant U.S. Attorney District of Columbia Fraud & Public Corruption 555 4th Street, N.W. Room 5239 Washington, D.C. 20530 (202) 353-9458 Roy.Austin@usdoj.gov QUESTIONS Developed by D. Connor and R. Austin under NIC CA 06S20GJJ1