THE LEGAL INVESTIGATOR The Official Journal of The National Association of Legal Investigators August 2003 INVESTIGATION OF CRIMES IN THE BUREAU OF PRISONS Article By: H. Ellis Armistead, CLI THE GOVERNMENT INVESTIGATION ACCESS TO THE SCENE The investigation of violent crimes within a Unlike most other crime scenes, the defense Federal Institution is conducted jointly by investigator is severely restricted in access to agents of the Federal Bureau of Investigation the scene. Access to the scene must be (FBI) and the staff of the Bureau of Prisons secured through he BOP and may require a Special Investigative Service (SIS). While the court order. Photographs and measurements investigations are conducted concurrently, are taken under the supervision of BOP and their objectives often diverge. The FBI con- they will generally screen all documents and ducts a criminal investigation and if a suspect photographs produced by the investigator is identified the case is referred to the United prior to their release. States Attorney. The SIS investigation focuses primarily on infractions of rules and policy by ACCESS TO INMATE WITNESSES both inmate and staff. The defense investigator faces a particular challenge in interviewing inmate witnesses. The defense investigator must be aware that The first challenge is locating and gaining information on a particular crime is contained access to the witness. Ellis H. Armistead in both the files of the FBI and the SIS and should be part of the discovery process in a It is common for the BOP, after a serious A CRISIS IN THE PRISON SYSTEM criminal proceeding. Given that a violent crime, to transfer inmates to other institutions, Prisons in the United States are housing a crime within an institution indicates a failure often far from the institution where the inci- record number of inmates both at the local, on the part of the BOP, it is not uncommon for dent took place. The Defense investigator state and federal levels....Sentencing guide- the BOP to be less that forth coming with must be prepared to travel extensively inter- lines and, “three strikes” laws have increased investigative information that maybe critical in viewing inmates in institutions throughout the the length of sentences. The increase in sen- the defense of an accused inmate. country. tence lengths and the inability of the govern- ment to provide adequate facilities for the Specifically, the investigator should be looking There is a routine for arranging legal visits inmates has created a crisis in the the prison for the following information: with inmates. The routine may vary slightly systems. Nowhere is this crisis felt more from institution to institution, but it is generally acutely than in the Federal Bureau of Prisons • SIS interviews of staff and inmates the same through out the system. (BOP). • Photographs and other evidence seized by the SIS independent of the FBI • The investigator must identify the location of I will focus on the investigation for defense of • Cell rotation logs the inmate witness. (www.bop.gov). inmates charged with violent crimes while • Disciplinary records • The investigator must contact the inmate’s incarcerated in the BOP. Many of the tech- • Inmate medical records counselor. niques and problems that will be outlined are • Gang affiliation files • The investigator must submit a BOP form applicable to other prison systems, while • Razor logs (records of shaving equipment handed out) signed by the defense attorney. some are unique to the BOP. • Cell inventory logs • The visit must be approved by the warden • Correctional officer (CO) staffing schedule or assistant warden. In March 2003, the BOP was housing 137,000 • BOP Procedures for investigation of crimes • A date and time is set. inmates in facilities across the country1. These facilities are located throughout the United • After-action reports compiled by BOP • Internal memorandum specific to the case Often, when contact is first made with the States. The facilities include Maximum, United • Central Inmate Monitoring (CMI) files counselor, the counselor will inquire as to the States Penitentiaries, Federal Corrections • Inmate work assignments. nature and the subject of the inquiry to be Institutions, Federal Detention Centers, made of the inmate. The counselor will tell the Federal Prison Camps and Federal Medical The US Attorney’s office may not be forth investigator that he or she must “check” with Centers. A list of these facilities as well as an coming with this information, telling defense the inmate to determine if the inmate wishes inmate locator service is located at counsel that it is in the control of the BOP. to meet with the investigator. www.bop.gov. The BOP may even have one of its staff attor- neys enter an appearance in the case, as a The proper response to this question is to: Crimes of violence within the institutions can “special United States Attorney”. The BOP • explain the the nature of the inquiry is be generally classified in two categories; attorney will often attempt to block the release confidential inmate on inmate and inmate on staff. The of BOP information citing “security” concerns. • that the investigator understands that the cache of weapons available to inmates varies It is incumbent on the investigator to identify inmate is not required to talk with the from shanks to zip guns. Both produce very the items needed and on the defense attorney investigator. serious injuries and at times death to the victims. to aggressively pursue the release of those documents. THE LEGAL INVESTIGATOR The Official Journal of The National Association of Legal Investigators August 2003 Continued from page • that the investigator would like to meet per- Inmates are often concerned about losing The investigator should never promise any- sonally with th inmate and explain the nature privileges or even being transferred to another thing to the inmate. Ethical considerations of the inquiry and then let the inmate decide if institution as the result of cooperating with the aside, unlike government investigators the he or she wishes to talk. defense. By definition, a crime committed by defense investigator in reality has little or an inmate in custody of the BOP implies a nothing to offer the inmate. Broken promises This approach generally works, but there are failure by BOP to accomplish its mission. BOP inevitably result in non-cooperation. still times when the counselor will go to the staff are alert to the fact that a defense inves- inmate, tell the inmate that an investigator tigation may uncover misconduct and negli- Except in very unusual circumstances the wants to conduct an interview and then report gence by BOP staff that is embarrassing to tape recording of interviews inside of BOP back to the investigator that the inmate is the agency. institution is forbidden. Most inmates are refusing the interview and the visit is can- understandably reluctant to make written celled. On occasion, inmates may lie to get another statements out of fear for their safety. It is inmate in trouble, to cause the investigator most productive for the investigator to pro- Letters to inmates, with any detail of the case, problems, to make themselves seem impor- duce a written or verbal report of the the inter- should not be sent as the letters are read by tant or just for the fun of it. Inmates are very view to the attorney. Obviously there is some BOP personnel and often other prisoners. An good at lying and often have access to the risk that the inmate may change his story, but inappropriate letter may jeopardize the safety discovery on a certain case or may have the alternative may be getting no information of an inmate as well as compromise the obtained information via the prison grapevine. at all. Following up with periodic notes or let- investigation. The investigator must make special efforts to ters to the inmate, simply inquiring about their corroborate all statements. well being and showing concern will often THE INTERVIEW secure continued cooperation for an extended Once the investigator has been approved for In the actual interview the investigator should period. the interview, preparation for the interview be empathetic to the inmates plight, under- must begin. Beyond the normal interview the standing of the system and treat the inmate The defense investigation of crimes commit- investigator is familiar with, there are special ted in the Bureau of Prisons presents unique with respect. Initial resistance to being inter- considerations for inmate interviews. challenges to the investigator. Developing a viewed can often be over come by just talking routine or protocol for conducting these inves- about the inmate himself, his family, prison life First, inmates are primarily concerned about tigations results in a higher quality work prod- etc. An open and friendly approach by the their personal safety. They carefully assess uct and increases the chances of a successful investigator goes a long way in fostering the impact making a statement may have on investigation. communications. their personal safety and their treatment by BOP. An inmate who is considered a “snitch” 1 Lapin, Harly G. Bureau of Prisons, Weekly or “rat” not only risks physical harm, but may Population Report. March 2003 be placed in the Special Housing by prison staff.