It was a 15-minute conversation that resulted in an explosive accusation: A witness in a Dorchester murder trial said a private investigator tried to persuade her not to testify for the prosecution.
The investigator was called to the stand in Suffolk Superior Court to answer the allegations. After one heated proceeding, the prosecutor and defense attorney became so furious with each other that a court officer told them “to take it outside.”
Judge Elizabeth Fahey, who is presiding over the murder case, found that the investigator crossed a line, and said she may report him to the state’s public defender agency.
Her finding followed two days of testimony about the encounter between the witness and the investigator, a highly unusual preamble to a murder trial that is now before a jury. The testimony shed light on the behind-the-scenes tasks of private investigators, who are crucial to the defense, but often engender suspicion from law enforcement. And it underscored the tension between private investigators and homicide detectives who essentially do the same work — gather facts through witness interviews — but with conflicting agendas.
Still, some courtroom observers say private investigators are not subject to the same scrutiny as law enforcement.
‘Even if he was thoughtless in making those statements he had to know as soon as he said it, “that’s wrong.” ’
“I’m not aware that there is any professional code of ethics followed by investigators,” said R. Michael Cassidy, a Boston College law professor and former prosecutor.
Defense attorneys argue that suspicions of private investigators are usually groundless.
“The defendant has an absolute right to interview witnesses,” said John Amabile, a criminal defense attorney who is not involved with the case. “The exercise of this right makes both the police investigators and the prosecutors unnerved and upset.”
Complaints about private investigators rarely come to the Committee for Public Counsel Services, which oversees legal representation of defendants who cannot afford their own attorneys.
The agency determines which investigators are eligible to work on cases for poor defendants.
“In the last eight years, there may have been a couple of complaints,” said William Shay, director of audit and oversight for Committee for Public Counsel Services.
The investigator who was questioned in the Suffolk murder case, Scott Keller, is a 20-year veteran and has never received a complaint against him, Shay said.
The case in Suffolk was sparked by a witness, Darlene Vega, a 23-year-old mother who was scheduled to testify against Luis Pimentel.
Pimentel is accused of shooting 54-year-old Victor Brookens in December 2011. Prosecutors have alleged that Pimentel, who was 18 at the time, went after Brookens because he believed there was cash and marijuana in his Dorchester apartment.
Vega told homicide detectives that less than two weeks before the trial, Keller paid her a visit at her sister’s home in Rhode Island.
As she stood on the porch, Vega said Keller told her that the investigators could take away her children if she did not testify, a statement prosecutors later said was false. By living in Rhode Island, Keller said, she was making it harder for detectives to find her.
Prosecutors took this to mean that Keller was encouraging her to remain out of state.
“He stated that I shouldn’t be as open to the detectives in letting them know where I’m located because they’re not allowed to leave the state of Massachusetts to find me,” Vega said during a Nov. 13 hearing about the encounter. “He tried intimidating me . . . I believe [he] was trying to tell me not to come.”
Mark Lee, one of the prosecutors in the case, told the judge he believed Keller took advantage of a frightened witness.
“They played upon that reluctance and they played upon that fear,” Lee said.
He then suggested the court determine whether Keller may have frightened two other witnesses who suddenly were not returning calls from detectives.
Homicide detectives and prosecutors generally look askance at private investigators, who are licensed by State Police but are not heavily regulated by the state.
Russell Grant, a retired Boston police detective who left the department in 2011, said in the 11 years he worked on homicide cases, he sometimes heard disturbing complaints from witnesses about private investigators. Sometimes, they claimed to work for the government. Other times, they told witnesses the police could not keep them safe if they testified.
“It’s innuendo. It’s veiled suggestion,” Grant said. “They’ll say ‘please be careful.’ That statement is for one reason and one reason alone and that is to get the witness not to come in. That investigator could care less about that person’s safety.”
In the Suffolk case, the defense attorney, James Sultan, was livid at the suggestion that the investigator had done something wrong. He called Keller a “terrific investigator” who had worked for him for 10 years, a job that often entails being yelled at by government witnesses who are not beneath slamming the door in his face.
“When he gets a chance to talk to somebody, he does his best to get the information from them,” Sultan said during the hearing. “Maybe he says a word that’s wrong or a sentence that he shouldn’t have said in retrospect, but we are not here to micromanage these investigative interviews. My God, if we did that with the police, there wouldn’t be anymore investigative interviews.”
Keller declined to comment through his lawyer, David Meier, a former Suffolk County prosecutor who is advising him.
“Scott Keller has worked responsibly and professionally alongside some of the most respected trial attorneys in the criminal justice system for more than 20 years,” Meier said. “He is a conscientious and decent man. These can be challenging cases for everyone involved. Whatever the circumstances in this particular situation, I am confident that they can and will be resolved in a fair and reasonable manner.”
Despite law enforcement’s distrust of the investigators, Lawrence Lopez, a Cambridge-based private investigator who has worked on criminal cases, said most investigators behave ethically.
“Investigators are not supposed to go around pretending you are someone you’re not,” he said. “Every defense lawyer I’ve ever worked for has wanted me to be clear about who I am and who I’m working for.”
Lopez said an investigator who even suggests to a witness the dangers of testifying makes himself vulnerable to accusations of intimidating a witness, a criminal charge. That does not mean a witness will not misinterpret an investigator’s statement or make a false accusation out of fear or remorse, he said.
“Police officers make them feel guilty or fearful” for talking to defense investigators, Lopez said.
Fahey, the judge, has not decided whether to report Keller to the Committee for Public Counsel Services, but she said she believed that Keller made “improper, inaccurate, and misleading” statements.
“Even if he was thoughtless in making those statements,” Fahey said in court, “he had to know as soon as he said it, ‘that’s wrong, I shouldn’t have said it’ and he didn’t correct it.”
Shay, the Committee for Public Counsel Services audit director, said that once the agency receives a complaint, his office investigates it.
He said: “If we determine that the person is not working in the interest of our clients then we will remove them from eligibility to accept our cases.”