Why Defense Investigations Matter

The Investigator

I ambled into the dimly lit office, my eyes adjusting from the bright sunlight outside. Scanning the room, I saw the lanky silhouette of the person I sought outlined against a window. “Hey Duffy, how’s it going?” He smiled. I sank into the dark mahogany chair across the desk from him and replied, “I was hoping you had time to tell me some stories.”

He was criminal defense investigator Gary Carmical. I hadn’t seen Carmical in weeks before I ran into him in the parking lot of the courthouse several days earlier. During our conversation, I mentioned the piece I was working on for Pursuit Magazine. Carmical was enthusiastic about the project and said he had cases to discuss with me.

As I sat looking across Carmical’s cluttered desk, he waved a hand at piles of papers and said, “Tuesday would be better. I have to get this all together this weekend so we can file an appeal.”

Waving again at the piles of paper, he briefly filled in some of the blanks, telling of a client who’d been accused of an assault, convicted and sentenced to prison. It should have been an open and shut case. The victim testified that the defendant wasn’t the guy who assaulted him. Not only did the victim say the wrong person was in custody, he gave the court the name of the assaulter. Despite this, the district attorney continued prosecuting the case and won a conviction.

The Backstory

My interest in criminal defense work began when I was just out of high school. Wanting to make a difference in the world, I interned with a local police department and attended college to major in

criminal justice. It was while working with the police department I grew to know the police chief, Kirt Vink.

One evening, I received a phone call from one of the officers. She told me that Vink had been suspended after a department employee claimed Vink had sexually assaulted her. The local sheriff’s department investigated. After seeing the report, the prosecutor found no evidence of criminal wrongdoing.

Despite all this, the city terminated Vink.

While this was happening, I had a chance to sit down with Vink. He told me, “If you really want to make a difference, don’t pursue law enforcement. Go to law school. Be a lawyer, or work in some kind of job

where you can investigate things like this and make them right. This is where the true injustices are.”

The Martins’ Story

Several years later, I encountered the case of Frank and Vanessa Martin. The Martins were two of the kindest, most generous people I knew. Having huge hearts, they provided foster care, and their home was a haven for many lost and forgotten children.

One sunny spring afternoon, their world was shattered. Law enforcement officials raided their home, and all of their children—both biological and foster children—were taken away. Someone had alleged

Frank was molesting some of the children. Prosecutors charged Frank with criminal sexual conduct and Vanessa with failing to protect the children in her care.

What should have been a search for truth turned into a witch hunt. Law enforcement and prosecutors had made up their minds regarding the Martins’ guilt. Now they just had to develop the evidence to prove it. Police interviewed people familiar with the Martins. Officers threatened and cajoled witnesses to tell the story law enforcement wanted to hear. After the Martins made numerous court appearances and spent huge amounts on legal fees, the state dismissed the charges and returned the children to the couple.

The case should have been over. It wasn’t.

I spent the weekend … pondering these things and realized: This is why criminal defense investigation matters.

More than three years later, the prosecutor refiled the molestation charges. This time, though, Frank was held in jail without bond. A series of trials ensued, with hung juries resulting initially. Through this, the state continued to oppose bail. Finally, the first not guilty verdict came back. The state continued to oppose bail. Another not guilty verdict was returned.

Frank was released from custody, but not before suffering a severe beating from fellow inmates. The beating caused a stroke, and Frank was denied access to his medications and medical care. Finally, the last case went to trial. Frank was once again found not guilty.

I spent the weekend before my appointment with Carmical pondering these things and realized: This is why criminal defense investigation matters.

The Defenders

On Tuesday, I followed the narrow sidewalk leading up to the small house-turned-office, and saw Carmical and defense attorney Lee Deschamps standing on the porch. As we strode into the office, I asked Deschamps how he viewed his role as a public defender. He replied, “My job is to ensure citizens can go to sleep at night under the delusion that only guilty people go to prison.”

“My job is to ensure citizens can go to sleep at night under the delusion that only guilty people go to prison.” —defense attorney Lee Deschamps

Carmical added, “Really, we try to ensure the system can work as effectively as it can. The police don’t seek to find the truth; they investigate to support the complaining witness’s accusation.”

Anxious to hear Carmical’s story, I slipped into the mahogany chair I had occupied on my last visit. He began to weave a tale so intriguing, it seemed like something ripped from the pages of a James Patterson thriller.

“First, you have to know about Larry,” Carmical began.

Larry’s Story

Larry is a cowboy who grew up on a large ranch in Nebraska. After moving to New Mexico, He met Cindy. What should have been an idyllic love story turned into something much more sinister.

Larry continued to cowboy and to paint, and Cindy managed a payday loan establishment. Larry suffered from a chronic illness, Generalized Conversion Disorder. The sickness didn’t affect Larry much except when he was under stress. Then he would sometimes suffer stroke-like symptoms. Despite Larry’s condition already being diagnosed, Cindy convinced a doctor to diagnose Larry with Parkinson’s disease.

Cindy began giving Larry all sorts of medications. Instead of dispensing the pills at the correct time, she would give Larry all of his pills at once. In fact, a defense psychiatrist offered his opinion that the medications Cindy gave Larry would have left Larry semi-comatose much of the time.

Larry’s father passed away, and Cindy believed a large inheritance would be coming from the Nebraska ranch. So she hatched a plan she thought would remove Larry from the picture and bring a financial

windfall her way.

Cindy believed a large inheritance would be coming from the Nebraska ranch. So she hatched a plan.

One afternoon, Elaine, a mayor in a neighboring village, returned home to find Cindy sitting on her front porch. Cindy was disheveled, with marks and scratches on her. Cindy told Elaine Larry had beaten

her. Elaine called the police, and deputies arrested Larry.

Charged with battery, false imprisonment and aggravated assault, Larry sat in jail. His family retained a little-known Albuquerque attorney to represent him. In the meantime, Cindy started selling

Larry’s things, including his horses.

Out on bail, word reached Larry that Cindy planned to sell his favorite horse the following day.

“You know how important a good horse is to a cowboy,” Carmical chuckled. “Well, Cindy knew it too, and she knew that would get Larry over to the house.”

Larry later told investigators he went to the house to get his horse. He took a lead rope, but the horse didn’t have a halter on. Larry managed to lead the horse out of the corral, and then knocked on the bedroom window to get Cindy’s attention and ask for a halter.

Between knocking on the window and walking to the front of the house, Larry encountered Cindy in the yard. Cindy pointed a gun at Larry and fired. One shot struck a snap on Larry’s shirt and did little damage. The next round struck Larry’s arm, shattering his humerus.

After he was released from the hospital, Larry found himself back in jail facing felony charges. Larry’s Albuquerque attorney convinced him to take a plea on his first case, and Larry was sentenced to three

years in prison.

The Investigation

While the first case was adjudicated, the second case remained. Larry asked for a court-appointed attorney, and Deschamps received the nod. “The first thing we did was start investigating exactly what happened,” Carmical explained. And that investigation turned up some interesting facts.

In the first case, Larry had been at a ranch 30 miles from town when Cindy said she’d been assaulted. Not only was Larry not in the area, he was accompanied by a friend who happened to be a deputy. “But he had already pled guilty on those charges,” Carmical told me. “What helped us, though, was that his attorney raised the question of competency in his first court proceedings. But then she still let him plead guilty. She let it happen, and the D.A. and the judge didn’t do anything to stop it.”

So Carmical focused on the second case and continued investigating. He reviewed photos and looked at the scene. Cindy told police Larry kicked the door in and threatened her. She claimed she shot him inside

the house in self-defense and he staggered back outside. Evidence at the scene told a different story.

Larry is a six-foot, five-inch lanky cowboy. Cindy is significantly shorter. Carmical examined boot prints on the door and found the prints to be much lower than where the tall cowboy would have kicked. Even more damning, Larry was wearing pointed-toe cowboy boots the night of the incident. The boot prints on the door were made by a rounded-toe “roper” boot, which happened to be the style of boot Cindy wore.

Even more interesting was the lack of a scene inside the house. No blood was inside, and the only bullet recovered from inside the house was in a wall behind a mirror. Cindy told police she fired a shot at

what she thought was Larry, but which turned out to be just his reflection in the mirror. The problem was, from her location in the hallway, the bullet would have traveled at an angle down the hallway. The evidence recovered and documented at the scene revealed the mirror had been shot straight on, and at a close range.

The scene was staged.

For the Win

“I called the DA,” recalled Carmical, “and told her about all the evidence and that they needed to dismiss the case.” Still, the DA wasn’t convinced. “She wanted to meet with our psychiatrist,” Carmical said. “The three of us sat down, and our psychiatrist started pulling up statistics and studies and power points about it all. After that, the DA decided not to pursue the case.”

Although the second case was off the table, Larry remained in prison. Because the question of competency had been raised but never addressed, the case was remanded back to Magistrate Court. Larry appeared for a new preliminary examination, and Deschamps represented him. After Dechamps presented Larry’s alibi and showed Cindy had perjured herself, the court ordered Larry released from custody.

“So we had a guy who was innocent but already sentenced to three years plus facing new charges,” said Carmical, “and we got both cases dismissed completely. That’s the purpose of defense investigation.”

Mismatched Resources

While Carmical and Deschamps work to ensure some justice in the system, they face an uphill battle. Deschamps notes the DA’s office continues to hire young, aggressive attorneys, but they frequently are

attorneys without experience who are willing to charge nearly anything without necessarily ensuring the charges are appropriate. Or that the person charged is truly guilty.

The unlimited resources of the state, coupled with a public defender system that pays Deschamps a flat rate of around $500 per felony case, makes competent legal representation for indigent defendants nearly impossible. “You wouldn’t believe the amount of money we spend to defend these cases,” Carmical notes. “The money they pay us doesn’t even come close to the time we spend.”

In fact, the $500 to handle a case from start to finish would pay for about two hours of Deschamps’ time at his normal hourly rate.

The Work that Remains

Our conversation finished, I headed to the door. Before I walked out, Carmical pointed to a bright yellow and black plastic sign. “Hey Duffy,” he told me, “would you take one of these and put it on your fence?” It was a campaign sign for Deschamps. Hoping to make changes from within the DA’s office, he is running for district attorney.

“Sure,” I told him. “I’ll find a place to put it.”

“Thanks,” Carmical replied. “We only have $12 in the campaign fund, but we haven’t really been campaigning or fundraising anyway. We’re too busy defending these cases.”

I stepped out into the bright New Mexico sunshine with a renewed sense of respect for defense investigators and the work they do protecting the rights of some of the most under-represented among us. As I stood for a moment reflecting, I thought about how much work still remains. But for now, Deschamps, Carmical, and other dedicated professionals across the country will keep doing whatever they can—without fanfare and with sub-par funding and resources. But rarely will you hear them complain. They’re too busy with other things. After all, they have cases to defend and appeals to write.

About the author:

Sean Duffy is a paramedic, medicolegal investigator, and advocate for justice. On any given day, Sean might be working to end the justice gap facing the nation, connecting with people, or just relaxing in his hammock in the New Mexico forest, enjoying the great outdoors. Sean believes strongly in the words of Martin Luther King Jr. that “Injustice anywhere is a threat to justice everywhere.” Connect with Sean by e-mail at seanduffy@legalshieldassociate.com.

Why we chose it:

We liked his approach to structure and storytelling. He wraps his own backstory and cases around interviews with a criminal defense investigator and public defender. We enjoyed the straightforward style and compelling quotes—overall, a good read. Most of all, he gets his point across well. The anecdotes highlight the role of public defenders as foil to aggressive young lawyers in the DA’s office who are hungry to win.

Best quote:

“I asked Deschamps how he viewed his role as a public defender. He replied, ‘My job is to ensure citizens can go to sleep at night under the delusion that only guilty people go to prison.’”

Takeaway:

Duffy sums up the problem perfectly: “The unlimited resources of the state, coupled with a public defender system that pays Deschamps a flat rate of around $500 per felony case, makes competent legal representation for indigent defendants nearly impossible.”

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