Steve,

I knew I could count on you for a thoughtful response, and I am proud that you managed to use the word "epiphenomenal" in a sentence. Perhaps you could enlighten the rest of the list as to the meaning of the word.

With respect to your question about a private investigator remaining silent when he knows that his client is guilty, I'm sure the question was just as rhetorical as mine were.

I frequently tell defense counsel that I cannot help them, or even that I believe the police have the right defendant. But if I told that to the prosecution or a public investigator, I would be violating my contract, attorney client privilege, attorney work product privilege, and the defendant's fifth and sixth amendment rights.And as Jim pointed out, I might be in violation of the State's PI statute.

A defendant, even a guilty one, has the right to challenge the evidence against him. He should be able to do that without any additional risk. An attorney, in order to provide effective assistance, must have the ability to carefully scrutinize the prosecution's case. Again, there should be no additional jeopardy attaching to that activity.

It is galling for me when I catch grief about always taking the dark side, because I really can't call you up after I examine your data and say: "Hey, Steve, You got the right guy" (as much as I'd like to).

I recently worked on a capital case and reached the conclusion that the defendant was lying about how the fire went down. I told his public defender who thanked me and asked me to submit a bill and no report. Just before the trial, two deputies showed up at my home with a subpoena, and wanted me to testify for the state to help them "avenge the death of two innocent children." I declined to appear as a witness despite several calls from the DA. The guy was convicted anyway. Had I been compelled to testify, the guilty SOB would have another ground to appeal his conviction.

I think we're all after the truth, but we have to follow the rules of the justice system. The concern of my original question was whether it's okay to bend the rules when you “truly believe” the defendant needs convicting.

John Lentini, CFI, D-ABC
Fire Investigation Consultant
Florida Keys
[www.firescientist.com]