JTIP Supplemental Materials
Lesson 13 – Investigation
SAMPLE CASES WHERE INVESTIGATION WAS KEY
Failure to Investigate
Washington v. A.N.J., 168 Wash.2d 91 (2010)
The youth defendant pleaded guilty to first-degree child molestation and later filed a
motion to withdraw the plea. The client contended that his court-appointed counsel was
ineffective because he failed to adequately investigate the case, failed to consult experts,
failed to fully inform him of the consequences of his plea and failed to form a
confidential relationship with him separate from his parents. The court-appointed counsel
did little, if any, investigation or research into the case – despite being given the names of
potential witnesses that could have provided alternative explanations for the
complainant’s report and knowledge. Counsel called the witnesses just once and did not
follow up. He never spoke to the investigating officer, made no requests for discovery
and filed no motions. Counsel’s belief that his client’s admission of guilt would relieve
him of his duty to investigate was wrong. False confessions, mistaken identification and
fallibility of child witness testimony may occur. Therefore, counsel rendered ineffective
assistance by failing to conduct meaningful investigation of the defendant’s case before
proceeding to a guilty plea. For that reason, among others, the guilty plea was reversed
and the case was remanded.
In re E.S., 92 Cal.Reptr.3d 725 (Cal. Dist. Ct. App. 2009)
The youth was found guilty for attempting to commit a lewd or lascivious act with a child
under the age of 14 and annoying or molesting a minor. The case was transferred after the
youth moved for a new jurisdictional hearing on the grounds that he was denied effective
assistance of counsel. The Superior Court denied the motion, and the youth appealed. The
Court of Appeals reversed and remanded the case. The Supreme Court granted review
and transferred the case back to the Court of Appeals. The Court of Appeals then held
that defense counsel failed to investigate potentially exculpatory evidence, failed to seek
an adequate continuance to permit him to fully investigate and competently defend the
juvenile, and failed to move for a substitution of counsel when he knew that he would be
unable to devote time and resources necessary to properly defend the juvenile. The court
ruled that the defense counsel’s deficiencies prejudiced the juvenile, and therefore
reversed the convictions and remanded the case for a new trial.
Cosio v. United States, 927 A.2d 1106 (D.C. 2007)
The defendant was convicted of first- and second-degree child sexual abuse, carnal
knowledge and taking indecent liberties. The Court of Appeals affirmed, 853 A.2d 166.
On grant of the defendant’s petition for rehearing en banc, the Court of Appeals held that
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JTIP Supplemental Materials
Lesson 13 – Investigation
trial counsel for the defendant rendered ineffective assistance by failing to inquire about
the defendant’s relations with the victim. More specifically, counsel knew in advance of
trial that the victim’s alleged fear of the defendant would be an important issue. The
defense failed to ask the defendant’s co-workers, who had seen them interact on
numerous occasions over the years, about the defendant’s and victim’s interactions.
Therefore, the defense did not thoroughly investigate the relationship between the victim
and the defendant and did not offer any strategic explanation for failing to pursue these
avenues of investigation. The defendant’s convictions were reversed, and the case was
remanded for a new trial.
Examples of Powerful Defense Investigation

A juvenile defender in Massachusetts recalls an auto burglary case where the client was
accused of breaking into a co-worker’s truck at a factory parking lot and taking a generictype MP3 player. The youth was allegedly seen “sneaking around” the factory parking lot
near the truck in question. His vehicle was searched with his consent, and an MP3 player
similar to the missing one turned up. The client claimed that it was his own MP3 player.
Counsel and an investigator interviewed several witnesses who had seen what happened
in the parking lot that day. No one saw the client break into the truck. The witnesses
stated that other people were in and around the truck that day. The District Attorney
turned the MP3 player over to a local police officer who analyzed it and determined that
prior to the “burglary,” the MP3 player had actually been hooked up to the client’s own
computer, and it was indeed his own MP3 player. The case was dismissed. If defense
counsel had not pushed the issue and done witness interviews, the District Attorney
would not have gone to the trouble of having the MP3 player analyzed.

A juvenile defender in New Jersey recalls a second-degree robbery case where the client
was accused of being one of two passengers that robbed a taxi cab driver. The taxi cab
driver alleged that two of his passengers robbed him after exiting the car and punching
through the open windows on both sides of the vehicle. The clients insisted the cab
driver’s story was not true and impossible, because there was a woman in the front seat of
the car. This woman was not named anywhere in the police report. The defender had an
investigator speak with the victim. The investigator continued questioning the victim
until he admitted the existence of the passenger. The investigator then spoke with the
passenger who admitted that she and the taxi driver were having an affair, and he used to
pick her up and take her with him on drives. She sat at the police station with the victim
while he gave his statement. However, not a single officer asked her for her statement. At
trial, the female passenger testified that her window was closed, and no one punched
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Lesson 13 – Investigation
through the window. Both boys were found not guilty of the robbery. If not for the
dedication and persistence of the investigator, the woman would never have been found.

A defender in Colorado had an adult case where the complaining witness and client were
both quite young (under the age of 20). Her client was charged with misdemeanor assault.
The complaining witness alleged that the client (who the witness did not know) barged
into the client’s ex-boyfriend’s apartment with a gang of girls, pulled the complaining
witness from the futon by the hair and beat her with a bottle. She then alleged that the
gang of girls left. Previously, the complaining witness said that she did not know any of
the assailants, but then later identified the defender’s client. Part of the defender’s
investigation included looking at the complaining witness’ Myspace page, which was not
blocked to the public. On her page there were pictures of the witness taking alcohol shots,
drinking beers, etc. The page also had an animated banner that said, “If you’re not
wasted, the night is.” During trial, the question arose as to whether or not the complaining
witness had been drinking. She stated that she never drinks. The defender began to
introduce pictures from her Myspace page to impeach her. She then said that she only
drank on momentous occasions, and only wine. The defender was able to impeach her
with the banner and the photos of her taking shots and drinking beers. This was a huge
issue for her credibility at trial and the client was ultimately acquitted.

A juvenile defender in Connecticut represented a client (with no record) who was
accused of spitting on a local politician. The client claimed that he was not there and had
no idea what the accuser what talking about. The client was not arrested at the scene, but
was seen three days later playing basketball when the accuser drove by and called the
police. The client, along with two other young men playing basketball that day, was
arrested. The defender’s investigator had also measured the distance from where the
accuser spotted the client playing basketball (about 55 yards). The defender told the judge
to visualize being past the 50-yard line on a football field and seeing someone’s face in
the end zone. The judge acquitted the client of all charges. Other pieces helped this case,
for example: the attackers were on bikes, yet the client did not own one; and the client
had a solid alibi from a witness who the accuser said was “one of the greatest people on
earth” (his mother’s best friend).
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