Michael Tabman's Blog: Crime Scene, page 6

More Powers for the FBI?

This posting was based upon the article: http://www.nytimes.com/2011/06/13/us/...

If you have read my previous posts, you would realize that despite my career as an FBI Agent, I am concerned about far-reaching government powers. I believe that we can fight an effective and aggressive war on terrorism and crime without sacrificing the rights guaranteed to us by the Constitution. My favorite quote is from Abraham Lincoln: "America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."

Recently, the FBI announced that it is granting its agents new powers to investigate potential terrorism. The article’s verbiage: “…significant new powers to its roughly 14,000 agents…” is disconcerting.

However, as discussed in the referenced article, these are not really new powers. Laws are not being changed. Neither the President nor Congress is bestowing additional powers to the FBI. Instead, the FBI is tweaking its internal processes. So the issue is not the FBI’s investigative powers, but how they use those powers – and how they apply them before determining if criminal/terrorist activity is afoot.

The FBI must have the ability to “snoop around” a little bit when faced with the possibility of crime. To remain strictly in the reactive mode, responding only after an event, is asking for trouble, vis-à-vis 9/11.

However, the gathering of intelligence on groups and individuals not actively committing a crime, has always been a sensitive subject, and one that has gotten the FBI in to trouble in the past.
While I find some aspects of the new rules troubling, I do not see them as a true threat to our privacy and constitutional rights. Here is where I see potential problems:

Trash Covers – this is nothing new. Police have often searched the trash of individuals suspected of criminal activity. The law has always recognized that once you put your trash by the curb, you no longer have a reasonable expectation of privacy. But using this method to develop informants is not appropriate. The FBI is very reliant upon informants and there has always been pressure on agents to develop informants. Citizens do not like being pressured to become informants. What is the purpose of a trash cover to develop informants? Blackmail? There will be a backlash and I see this process eventually being discontinued.

Searching databases – this method is one that I never had many concerns with. Looking at information that is readily available seems to be a fairly innocuous investigative step. However, if agents are not required to document a reason for these searches and/or receive supervisory approval, I see problems more for the FBI than the public. The FBI has always had a strict hierarchy and system of approvals. While sometimes this was administratively burdensome, it was a good process. I suspect within a year or two, the FBI will find that a lack of internal controls has resulted in wasted time and resources and inappropriate uses of these databases. The FBI will probably return to a system of supervisory controls.

The changes outlined in the article should and will be monitored. The Department of Justice Inspector General’s Office will probably audit the FBI’s compliance with these new rules in a year or two. Instances of non-compliance will be noted. The FBI will promise to make changes. A year or two later, there will be another audit. If the problems still exist, then the FBI will be compelled to make changes.

Why do I predict these series of events? After 24 years in the FBI, I know that the more things change, the more they stay the same.

Where is the Casey Anthony Murder Trial heading?

There seems to be two big questions surrounding this trial.

The first is whether the defense will call Casey to testify in her own behalf. We all know that a criminal defendant cannot be compelled to testify; the burden to prove the case falls on the State – the State being the prosecutor. The accused does not have to “disprove” the allegations. Jurors are not supposed to draw any conclusion or presumption from the failure to testify. Of course we can never know what is really going on in any juror’s mind. A defense attorney must make an educated guess as to what is going on in the minds of the jurors.

If all is going well – from the defense perspective, the State has failed to live up to its obligation to present evidence beyond a reasonable doubt. Reasonable doubt is, of course, in the eye of the beholder. If only one juror does not believe that the burden has been met, the defendant will not be convicted of that charge. That does not mean an acquittal. It most likely means a hung jury and another trial. Not great for the defendant, but better than a conviction. At that point, silence is probably the best option.

However, if the defense believes that the State has presented a compelling argument, they may decide to let the defendant testify to explain away any troubling facts. This is risky. A less than compelling performance by the defendant can push an unsure juror towards a guilty verdict. Testifying under aggressive questioning by a zealous prosecutor is not easy and anybody can end up looking guilty or at least appear to be lying. Courtroom performance is just as important as the truth.

In Casey Anthony’s case, her testimony, if she decides to take the stand, will probably decide the outcome of the case. Without suggesting guilt or innocence, Casey Anthony will have to do a lot of explaining. Her “partying” while her daughter was missing, her inconsistent statements and recent allegations that her father abused her will all be subject to exhaustive examination.

The other big question surrounding this trial is whether the State has proven its case. Most analysis of this trial cites the case as circumstantial. A person can be convicted by circumstantial evidence. This, however, is where I go back to the CSI Effect. A specific cause of death has not been established. There is no direct evidence tying Casey to her daughter’s death. Jurors may be wondering why the advanced forensic sciences we have available today have not proved valuable to the prosecution.

The decision of the defense as to whether Casey will testify and the final decision of the jury will be two courtroom developments that will be discussed for years to come.

Freedom of the Press: A Dying Right?

This recent article prompted this post: http://www.huffingtonpost.com/2011/06...

There has been growing coverage of law enforcement officers harassing and arresting people for photographing or video-taping cops in the street or federal buildings. This is a very disturbing trend that is contrary to every principle I learned and adhered to during my 27 year career in law enforcement. I am not an attorney, and am not attempting to provide a legal opinion; these are just my thoughts based on many years of experience.

Freedom of the press has always been a cherished right of our nation. Obviously, our founding fathers were most concerned with the written word. Over the years, photography and video have become inextricably included as aspects of “the press.”

When I was a cop, there were no cell phone cameras. But we knew that when the press was present at the scene of any event, we could be taped without giving permission. The general concept was that once a person walks out in public, he/she has no reasonable expectation of privacy and they may be filmed. We are discussing being filmed in general terms – not stalking, using someone’s person or likeliness for commercial gain, perverted uses of cameras or other illegal or unethical acts.

Many investigations, especially when I worked organized crime and narcotics, involved the videotaping of people in public places without a warrant; this was legal. Now, police are prohibiting citizens from engaging in this otherwise legal and constitutionally protected action. After the Rodney King taping, all law enforcement was put on notice. In my first book, Walking the Corporate Beat, I discussed how all cops should act as if they were being taped – as they probably were.

I have read of instances of police seizing the recording device and deleting the pictures, although there was no law broken. This is inexcusable.

After 9/11, the federal government started prohibiting people from photographing federal buildings. When I was stationed at FBI Headquarters in 2003 and 2004, I remember the FBI uniformed police shooing away families taking pictures of the building. Even in the shadow of the 9/11 tragedy, that was ridiculous. There are many surreptitious methods for taking such photos. There are advanced tools, satellite photography and simple internet searches available to anybody plotting an attack upon a building. Intimidating innocent tourists will not deter such an event.

Recently a friend of mine called me, quite distressed that two FBI agents swooped down upon him as he taped his young child in a park. The problem – the park was across the street from an FBI office. This too is inexcusable. I am unaware of any law that prohibits such photography.

Today, many police vehicles, and even the officers themselves are equipped with video recorders and tape events and personal exchanges, whether there is an arrest or not. That is done without our consent. This seems out of balance. If anyone should consider their actions on the street as a matter of public record with no expectation to privacy, it is public officials, acting in their official capacities, in public, with the public.

This trend should be stopped at all levels.

The CSI Effect

When I was working narcotics in New York in the late 1980s - early 1990s, the television show, Miami Vice had left its impact. We called it the Miami Vice effect. By that, we meant that when we brought a case to court, juries were expecting to see drug agents dressed in pastel colors seizing race cars and speed boats with millions of dollars and hundreds of kilos of cocaine. Working in New York, we made some good cases and pretty big seizures, but nothing like television.

More recently, law enforcement would refer to the CSI effect. Here, judges and juries expect cops and especially the FBI to perform the same kind of forensics that they would see on CSI – and usually within the same one hour time frame. While forensic capabilities have come a long way, once again, it is nothing like television.

If you have been watching the Casey Anthony murder trial, you will see some interesting forensics. You will also see some good examples of legal strategies at work. This is an interesting case. If you are writing crime novels, you may want to pay attention to this case. I think you will pick up some interesting tidbits. Sometimes life imitates art and sometimes art must reflect life.

Book Signings

When I embarked on my first book signing last year with Walking the Corporate Beat: Police School for Business People, I was given a sobering warning: If you sell two books, that’s average, five books is a good day. Sitting there with a stack of 15-20 books, that did not sound encouraging. Now I was really concerned, as this was a non-fiction, lessons-learned book; I knew it did not have the wide appeal of a novel. However, things worked out much better than anticipated. At each of our six book signings, we either completely or nearly sold out. I would like to say that was because my book was so irresistible. While I was confident I wrote a good book, I also knew that sales did not correlate to the quality of my book. How could it? Nobody knew what was in the book. Unless you and your book are well known – and most of us are not - you are not selling your book. You are selling you.

My wife accompanies me on all my book signings. As native New Yorkers, we are both gregarious and starting conversations with strangers comes easy to us. And that is where it begins. You must engage the bookstore customers in conversation and get them interested, first in you and then your book. Just sitting there waiting for people to approach you, generally will not work. You may get a few curious people, but they are uncomfortable approaching you, especially if they feel they will be faced with “Wanna buy my book?” Be friendly and keep it light.

Also, use mob psychology to your favor. Invite groups of people over. If you engage people in conversation and share a few laughs, others will notice you. What happens when people see a crowd? They become curious and they want to see what’s going on. Now your audience has grown.

As with all sales, be ready for rejection. At our Midnight Sin book signing this weekend we sold 15 of our 20 books. With that, came a lot of “no thank you” or people deliberately avoiding eye contact and even some rudeness. That’s how it goes. Be confident in yourself and your book. The number of books you sell is contingent upon many factors out of your control; it does not define your success as an author. It is just one step in the process. You will meet new and interesting people. Most of all – have fun.