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"Nobody gives a shit"
Part one of a freewheeling interview with Andrew Sowards, a recently retired, longtime defense investigator who worked on death penalty cases
Andrew Sowards recently retired after more than 20 years as a defense investigator, first at a private investigations firm, then at the Federal Public Defender’s office in Arizona, where he primarily worked on death penalty cases for prisoners seeking federal review of their convictions — a phase of the appeals process known as federal habeas corpus.
As a federal investigator, Sowards uncovered evidence casting further doubt on the guilt of Barry Jones, a Pima County man convicted and sentenced to death for the murder of his girlfriend’s young daughter. Medical experts hired by Jones’ lawyers had already determined that the state’s medical examiner had given scientifically unsound testimony at Jones’ trial — testimony that critically undermined the state’s timeline of the crime. In May, the U.S. Supreme Court ruled that the evidence of Jones’ innocence was useless to Jones because under Arizona law, Jones was out of appeals. The ruling seemed to confirm a jaw-dropping claim the Arizona solicitor general made to the justices during oral arguments — that “innocence isn’t enough” for a federal court to halt a state execution. Jones’ case is still in litigation.
Sowards agreed to a long interview about what he has seen and learned over the course of his career. This is part one of out interview. I've edited the transcript of our call for length and clarity.
Can you tell me a little about your background — where you grew up, went to school, what influences and experiences led you to this line of work?
I was born in D.C. My parents were both government employees at the time. My dad was a cop, a Capitol Hill police officer. He had to retire on disability, I think just before or right after I was born. My mom worked at the FBI fingerprint warehouse. Given that background, I guess it makes sense where I ended up. We lived out east for the first eight years of my life — Northern Virginia, Maryland, Ohio, moving around all the time . . .
Hold on. Your mom worked in the FBI fingerprint lab?
Not the lab. It was the big warehouse where they kept all the index cards with the fingerprints. So they would get the fingerprint classification code and then they would have to physically go and pull the card to do the comparison. It was kind of like a Dewey decimal type of system. Anyway, I haven't talked to her about it in years, and I don’t know exactly what she did there, but that's what the place did.
But my grandfather was the real influence on me. He worked in OSI in the Air Force — Office of Special Investigations. After he retired, I remember seeing a letter on his wall from J. Edgar Hoover, though I never really asked him about it. But whatever investigative ability I have probably came from him.
Anyway, we moved here to Arizona in the late 1970s. And frankly, I've hated it ever since. My parents divorced shortly thereafter, and, uh, a few years after that, my dad died of a heart attack at 38. My life kind of went sideways at that point.
What do you mean?
I was a hoodlum. Somehow I never caught any charges, felony or misdemeanor. But I probably should have. I had a lot of luck. I had friends whose dads were cops and they’d let us skate. But I really screwed up my life in those years. Dropped out of school. Raised a lot of hell. I used to have a lot of shame and embarrassment about that part of my life. But as I’ve moved through my career, it became apparent to me that but for these next few years of my life, I wouldn’t be who I am today.
I eventually was able to kind of pull my head outta my ass with the help of my grandfather. I settled down in my early twenties and, um, ended up getting married and had a kid by 25. I had around 65 credits at a community college that I was able to turn into an associate's degree, so I could at least have something on a resume. Then I just started looking for work. I ended up working in some quasi-legal field where I was doing database entry for discovery in a big class action case. This was back in the nineties when they were just figuring out how to scan and process these huge amounts of discovery.
I always kind of had an interest in the law. But when I was 18 I got hit by a car, which ended up giving me some lifetime disabilities. That really limited any criminal justice options like becoming a cop, although I don't know that I ever would have done that. I had signed up to go into the Army but my entry got delayed to some stupid medical thing, and then in that time I got hit by the car. So I was a little bit aimless. But I knew I had an interest in law.
I also had a huge libertarian streak in me. I still do, I think. But this was the 1990s, when you had Ruby Ridge, Waco, and all of that. I was hanging out with some pretty weirdo libertarian guys in Arizona — it can get pretty weird out here — and I got introduced to this lawyer who was part of that Waco: Rules of Engagement documentary. So I was hanging out with people like that.
So how did you end up in defense investigation?
I was literally just looking for any job. I was looking in the newspaper classifieds —that's how old this is — and I saw an ad for this part-time gig at a small private investigators’ office. I figured, what the hell? I don't know why they interviewed me, but they did.
I didn't get the job. But for whatever reason the guy took a liking to me and he kind of kept in contact with me. He got me some side work with a buddy of his rehabbing houses and just told me to keep checking in with him. A while later the woman they hired got pregnant and decided she wanted to stay home and raise the kid. So the guy called me back and was like, “Hey, do you want this job?”
The original gig was mostly records collection. I’d run down to the courthouse, to the DMV, that kind of stuff. But that database stuff I had worked on before caught the interest of my boss. He was trying to build his own database at the time. So half my time I was running down to the courthouse gathering records, and the other half I was going through every file he had and entering all the relevant information from these cases into a database.
That gave me the opportunity to read through hundreds of investigative files — police reports, court motions, autopsy reports, photos, the whole thing. It was great exposure. I was pretty good at the database stuff and was able to get through the files pretty quick, and that left me a lot of free time to just kind of rummage through these files. I just latched onto it. I loved it. Within a few months I was a licensed PI.
What kind of cases where you working on?
Back then, this was around the 90s, the local public defender didn't do most of the serious cases. They’d find a reason to conflict out or find some other reason not to take big murder cases. And so a lot of the work for indigent murder cases went to private lawyers. And they would then hire our firm, also on a contract basis.
I think we made 20 bucks an hour or so back then. I would get piecemeal assignments on those cases. Often I wouldn't even necessarily know what the case was about. It would just be assignments like, go talk to this witness, go find this person, run a background on this person, go take pictures. I didn't have a whole lot of freedom to look into cases or to do big picture-type things. But that’s probably a good thing because at the time, I was way too stupid for the job. I had no idea what I was doing.
But it wasn’t long before I got tossed a couple murder cases, one guy facing a trial and another guy who had already been convicted. Which, looking back on it, I still had absolutely no business working at all. I still shudder at some of those cases. This person’s life on the line, and you’re handing over your defense investigation to a guy who was still trying to figure it out as he goes. It was crazy.
I did eventually start figuring things out. I went back to school, got a degree, went through a lot of training. After a while, I got good at the job, and I felt like I was outgrowing the outfit where I was working. I got very good at drug cases — suppression hearings, that sort of thing.
The first two cases I remember being all mine were this big drug case where a guy had been pulled over with an RV full of everything you can imagine — piles of pot and coke. Pills and meth — the whole gamut. Gets pulled over for a traffic violation, the cops search the thing and find it all.
It’s embarrassing to admit it now, but back then I really thought that these people hauling all these drugs really were committing minor traffic violations when they got pulled over. So I'm kind of looking at this case and I’m thinking, what the hell are they gonna do with this? I mean, the guy's literally caught red-handed, right?
That’s how green I was. I knew nothing about suppression or the Fourth Amendment. The defense lawyer was a guy named Walter Nash, a very, very good lawyer who is still a dear friend of mine. I was lucky enough to work with him for the next 15 years or so. He taught me a lot.
Anyway, on this case, the first clue that something was wrong is that Walter figured out that some off-duty city cop had called the traffic cop at home and said, “Hey, go pull over this RV on the freeway.” So that’s kind of weird, right?
The guy gets pulled over because his blinker isn't working. But it’s a rental RV. There's a contract. And before the rental, they did a walk around to make sure everything worked. So my job is to go talk to this mechanic at the RV shop and confirm with him that the turn signals did work. All the while, I still don't know why I'm doing this. I ended up finding the guy. He'd quit or been fired or something from the company a few weeks prior to all of this.
I find him at home, and he's grumpy. He says, yeah, a long time ago, some DEA agents came in and said if he started tipping them off every time someone paid for a one-way RV in cash, they’d pay him 200 to 300 bucks per tip.
I was just floored. I took it back to Walter, thinking he was going to be floored, too. But he’d been doing this stuff since the 70s. He knew exactly what I was gonna find. So that case goes away, and I'm like, wow. I had some pretty conventional notions of how the system worked, and that was part of a long education into just how wrong I was.
I spent the next few years primarily doing drug war stuff with Walter and some other other lawyers. I really liked doing that stuff. A lot of investigations for suppression hearings. We’d do this thing where we’d go out and rent the sort of vehicle that was often profiled, drive completely normally and legally, and the cops would pull us over and lie about the stop.
So you were baiting these cops into illegal stops?
Oh yeah. It was easy. You get enough clients telling you, “Hey, I wasn't speeding, or “Hey, I didn't touch the fog line, or “Hey, I definitely used my turn signal, I guarantee it,” or “Hey, I know I didn't change lanes, uh, too fast,” and you start to think, well, there’s something going on here. So Walter and his partner at the time, a guy named Bill Kirchner — another dear friend of mine — said, why don't we do this? I’m going to put you in a car, and you’re going to drive completely legally, and we’ll just see what happens, you know.
The first time we did it, it was in Pinal County. I rented a big Cadillac. DPS [the Arizona Department of Public Safety] seemed to like to pull over big rental cars. We had some of their training materials, which said that drug runners like to rent huge rental cars with only one person so they’d have all this extra space to haul dope. The materials also said to look for out-of-state plates.
They had to stop legally profiling people — at least blatantly — because they had gotten themselves sued up in Northern Arizona, so they just started profiling the vehicles themselves. That made it easy. So I just rented a Cadillac with a Nevada plate. There was a notorious cop with the drug interdiction unit who patrolled this particular stretch of road, and I swear to God, the very first time I drove by that cop he yanked me over.
This is 20 years ago, so we had really shitty equipment. I had an old-fashioned tape recorder that I had jammed it in between the console and the seat. And my plan, my genius plan, was to hit play and record at the same time. I hit the pause button instead.
So none of the stop was recorded. We later found out that the cop was wearing a body mic that did record it, but that — uh— mysteriously got deleted. I can't remember exactly what happened to the case. I'm sure it pled out or it just went away. But the state was very upset with us.
I was scandalized by it. I wanted to file a class action. I mean, what are they doing? You know? But no defense attorney wanted to push that kind of stuff beyond just helping out their client in that particular case.
When I suggested the idea to my boss at the PI firm, he said, “You know DPS is the agency that license us, right?” So he wasn’t going to put his business at risk over it.
But I continued to do that stuff for the next few years. I really enjoyed it.
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So that was it — no follow-up on the bad cop?
He was promoted.
Later we had a client who had been stopped by this officer in Yavapai County. Again, the client says, “I didn't commit that traffic violation. He's full of shit.”
So we did the whole thing again. This time it took a lot of planning. I didn't want them to be able to say I lied to the cop, so I had to have a plan for why I was traveling where I was traveling. We were even doing the math on how long I had to have my turn signal on to comply with the law, how many lines I had to pass, that sort of thing.
We also got better equipment this time. I had a digital tape recorder — what a fucking James Bond I am — and I taped into my armpit. Those things could run for hours, so I could just turn it on and I didn't have to worry about accidentally hitting pause. I might have even been stupid enough to have like a microphone plugged into it, kind of bunched up in there. I can't remember. Anyway, my client in that case had been driving a truck, a pickup truck with like a big horse trailer on the back, which he had filled with something like 500 pounds of grass.
This client had resources so we decided that this time we were going to do it right. I had a trail car behind me. Two people in the trail car, one driving, one filming everything. Our client even provided a truck and a similar trailer.
The funny part is that just to be a dick, he loaded the trailer with all this really heavy stuff. He figured that if I got stopped and searched, the cops would've to pull all this really cumbersome stuff out. So we had some rolled up rugs in there. A desk. An air compressor, an air filter, a bunch of big stones. It’s just a big mess.
I didn't bother looking through all that stuff because I just figured my client couldn't have been stupid enough to put anything illegal in there. That was my mistake.
The DPS cop we wanted to nab again was in Yavapai County up in Prescott Valley, somewhere near there. We decided to stay in Phoenix, the three of us, and then do runs over a couple of days between Phoenix and Flagstaff. That was the plan. But we got to Phoenix a little early, so I suggested we do a quick test run.
Luckily I had turned on the camera, because as soon as we got to that spot where that cop hung out, he was there. He pulls me right over and immediately lied about the reason for the stop.
Then he pulls me out of the car and starts patting me down. I start panicking. I’m thinking, shit, he's gonna find his recorder and realize he’s been caught, and then the report is going to read, “the suspect went for my gun, so I had to shoot him in the head”
Somehow, this cop misses the recorder! Instead, he pulls out my wallet, starts illegally going through it, and finds my PI card. He's not real bright, so even then, he hasn’t figured out what’s going on.
He says, “Oh, you're a PI, huh? Okay.” He puts my wallet down and says, “I got a dog with me. I'm gonna run my dog around the free air over your vehicle.”
I say okay, yeah. He says, “If you make a move towards me, I'm gonna release my dog. ‘Cause he's also trained to attack.”
I say, “Dude, you're the only one here with guns. I'm not doing anything, man.”
He pulls out the dog and I swear to God, that dog just ran straight to the trailer and started scratching the hell of it. He didn’t do the walk around, didn't do any of the stuff they were supposed to do. I mean, that dog just ran to the trailer and started scratching. I just started cursing my client out in my head, thinking, what the hell did you put in this trailer?
The cop puts the dog back and says, “Okay, I got an alert, I'm gonna search.” I tell him to do what he’s got to do. He calls about three other cops and a sergeant. The sergeant's standing with me, and for like the next hour, I'm watching him and his buddies pull out all this random heavy shit out of a 12-foot long trailer. By then, I'm just kind of giggling. But I'm also thinking my client might be kind of stupid. I don't know this guy. What did he put in there? Well, they come out with a 22 rifle.
The cop had asked me if I was carrying weapons and I said no. So I guess maybe I'm kind of fucked. But it's a .22, and this Arizona, so who cares?
Then the cop that pulled me over starts going through the desk. He's going through all the drawers, then he pulls out an envelope and gets this real inquisitive look on his face. He and the sergeant then have an animated conversation, then he walks over to me. The envelope has client's name on it. My client's had a pretty uncommon name. And this is the cop who had pulled him over six weeks earlier with 500 pounds. I'm sure he remembered.
He shows me this envelope and he says, “What the hell are you doing out here?” I say I've answered enough of your questions today, I just want to go. He's like, all right, And that was it.
They loaded up my shit, he handed me my keys, and I got on the road. I immediately called the lawyer, and the cop and his sergeant had already called the local prosecutor thinking they had a huge bust, completely lied about why they pulled me over, completely lied about my conduct during the stop. So the lawyer was already on the phone with the prosecutor. He tells him,“Well, we have it all on tape, so we’ll find out soon enough what happened.” And that’s when it all went away.
I ended up looking into 18 months of stops by that cop, and it was always the same thing — everyone swore up and down they didn’t commit the infraction he pulled them over for. They eventually transferred him to the bomb squad. As far as I know he’s still a cop.
Two weeks later we did it all again. We got a Hispanic investigator to rent a Cadillac. Same thing — trailer behind the car, recorder, the whole thing. This time, a cop — a different one — wedges between the Cadillac and us in the trailer car and tailgates the investigator for about 20 miles. Turns out this cop worked for Maricopa County, so he was waiting for the car to cross into his jurisdiction. As soon as he does, the cop lights him up. We’re watching and video recording the whole thing. We’re thinking after 15 minutes, the cop’s going to find the recorder and let him go. It takes over two hours.
We pull off and park at a spot with a good vantage point. At some point, we see the cop drop what looks like a package in the trunk. Now we’re worried. Then he brings in the drug dog and it alerts on the trunk. They search the car and find the recorder, and now the cop is really confused. So he decides he’s just going to arrest the investigator. He finds some guy who has a vaguely similar name with an outstanding warrant and arrests our guy, even though the guy named in the warrant is a foot taller and a hundred pounds heavier.
They take our guy to the police station. We’re frantically calling the lawyers. One of them gets the cop’s supervisor on the line. We had two two recorders set up — one hidden in the car and one on the investigator. The lawyer tells the supervisor he assumes they found the recorder, thinking they found the one on the investigator. But they hadn’t — they’d found the one in the car. The supervisor figures out there must be another one. He has them bring the investigator to him, finds the recorder on his body, and rips it off. He tells us he’s going to delete the entire recording right. Then they just drop our investigator off on the side of the road.
They spent the next week whining to the county attorney to charge us with something — some bullshit obstruction of justice charge. I wanted to sue them. Go to the media. Write a letter to the governor. Something. I was naive.
A few years later I was at a defense conference and I’m telling this story and the lawyer says, “Oh, you were that guy! You gotta’ meet somebody.” He takes me over and introduces me to the judge in that case, who's how retired. The judge says, “I always knew they were doing that. I just, until you documented it, I couldn't do anything about it. But I always knew they were doing that.”
I went to high school with a guy who's now a bigwig at DPS. Every reunion we have an interesting conversation. How can these cops get away with lying to grand juries about why he was pulling people over? Nothing ever happens to these guys.
So when did you leave the private PI firm?
At some point I realized I had kind of outgrown the work they were giving me at the firm. I had gotten good at my job. I had started my master’s degree in criminal justice. So I went out on my own, started my own agency, and took some clients with me. It was horrible. And by that I mean that I was a horrible businessman.
At this point I'm really starting to realize just how fucked up the system is. And I just couldn’t detach myself emotionally from the work I was doing. And that’s a terrible way to run a business. I just couldn’t handle it. I just couldn’t not give a shit about what the government was doing to some of these people. So I would get these cases where some poor sap was getting charged for something he didn’t do. And we’d get the charges dropped, but there was no way I could just take all their money. Or take some guy’s mom’s money. So I was under-billing everyone, or not billing at all. I had an administrative assistant working for me and she hated me because I’d never bill enough.
I was losing a lot of money. Luckily for me, the FPD (federal public defender) had put out a job listing about a year earlier. I had applied for it when I was still at the private firm. I didn’t get it, but the guy who did was now leaving. So I applied again. So I joined the FPD in 2008, with the capital unit. I had worked plenty of capital cases by that point. Hell, I had seen one of my clients executed. But again, I found myself out of my depth. The capital habeas unit at the FPD did things much differently than we did in private work. They were just much better at it.
The people in private work just don't have the same resources or the same skill level. With the capital investigations I did at the private firm, we did facts investigation and some mitigation for sentencing, which I now know I didn’t completely understand. On my second day on the job, with the FPD they sent me to Philadelphia for training. And it just completely whacked me upside ahead. And I'm just thinking, wow. I’m right back where I was 10 years prior. I had no idea how much I didn’t know.
The FPD didn't have all the constraints of a private firm, like worrying about billing clients, having to take some poor guy's mom's last 2000 bucks to make sure he stays out of jail. You know? I mean, there was so much stuff I just could not do.
So I was very nervous going in to the new job and I didn't think I was gonna last at all, but once I got settled, it became very apparent that I had found my home. This is what I was supposed to be doing. I love that job. I really do. And I was sad to have to leave. But those 11 years were also really rough. You see so much bullshit. I saw another client executed in 2012. We lost a number of clients to execution in that time. I think 11 or 12, 13. I can't even remember.
How many executions have you personally witnessed?
I've witnessed two, but I’ve lost several other clients — guys that I'd worked for for a while or guys that I got to know. I just didn’t personally witness the executions.
But in some ways, those weren’t even the worst ones. The worst ones were the cases that we literally got the week before an execution. Some of those guys had innocence claims. We just had to try to do whatever we could, to figure out what we could before the execution. You’re just getting started, just finding things, and they’re executed.
I just have so much respect for the people that do that work now. You have this short time to save a life, and you probably don’t succeed, and then you just do it all again. So just a ton of respect. It was a life-changing experience working at the FPD. It really was.
There’s some mythos associated with private investigators — a lot of it driven by how they’re depicted in TV and movies. What’s the biggest misconception about the job?
One of my cases was once featured on America's Most Wanted. So we get approached by the TV producer. He came down to visit us, and after a couple days, he was like, “Man, you guys are boring. I can't do anything with any of this.”
About 90% of the job was looking through phone books or reading stuff on the internet, reading disclosure, reading discovery, talking to witnesses. It’s just not that exciting. But you have to do all of that. It’s just the nature of the job. You have to kind of go through all that stuff so that you can find those little nuggets. And frankly, that was the part of the job I really enjoyed. I would spend way too many hours researching cases and, and looking for stuff on Google. I’d be a thousand results deep on Google looking for one stupid thing. And then every now and then I would find something that was a thousand to one shot. I personally enjoyed the boredom, but it wasn’t TV material at all.
We keep hearing about how little privacy we have. What sort of personal information can you get on someone as a PI?
Legally, I have no more rights or powers than an individual citizen. I guess maybe before I started it was more of the Wild West, and PIs could get all sorts of dirt on you. They could get your bank account information, your cell phone records, that sort of thing. But now there are a lot of regulations.
Now, that isn’t to say getting that sort of information isn’t possible. I wasn’t comfortable doing it, but other PIs were fine with it. If I absolutely needed something like that to help a client, could hire other PIs who were willing to do what was necessary to get it.
But you’re right that the idea of privacy in this country is kind of screwy. You don't have any. Anyone can run a database report on anyone else for about 12 bucks and get every address you've had for the last 10 years, the names of your relatives and your neighbors, places that you've worked, your email addresses, phone numbers.
Not legally, at least from the defense side, although there too there are always ways around it. I used to know a PI who set up some financial company — like a collections company or something — so he could get access to credit reports.
I didn't like about 90 percent of the other PIs out there. I worked with some folks who were very good and taught me a lot. But most of them — and a lot of them were ex-cops — were willing to do a lot of illegal, borderline illegal, or at least ethically shady stuff. I was always too nervous to do any of that. I never wanted to, uh, get into that kind of stuff. But at the same time, sometimes you need that information to help your client, and the people on the other side could access all of that whenever they wanted.
You mentioned that many PIs are former cops. Who else goes into this work?
Arizona was weird for a while there because there was no PI licensing. So you had a lot of like, wealthy Scottsdale housewives doing PI work because they had nothing else to do. But not just housewives. Nosy people.
But it’s really mostly ex-cops. I was pretty unique in not having any law enforcement experience. I had to work with a lot those guys, and then when I was president of the PI Association for a couple of years I met a lot more of them. They didn't take criminal defense seriously at all. It was a business for them. They didn’t really give a shit about the clients. So much of this job is going back and finding what the cops missed, where they fucked up, the witnesses they didn’t talk to. A lot of what I was able to find over the years that helped my clients, I never would have found most of it if I had been a former cop.
As flawed as the justice system is now, every now and then I’ll get a tip on a case form the 1980s or 1990s, and I’m just awestruck at how bad things used to be. I recently wrote about a murder case in Arkansas from the early 1990s. The courts gave capital defendants $100 for investigations.The private attorneys who were appointed for indigent defendants got a total of $350 compensation for death penalty cases. And the entire defense budget couldn’t exceed $1,000.
I imagine you saw a lot of this sort of thing doing habeas work for the federal public defender.
Oh yeah. Working at the FPD put me in a time warp. I ended up going back and doing all these really old cases, and it was a fucking disaster back then. My oldest case at the FPD was from ‘79, and I think my newest case when I left in 2019 was from around 2002. So like you, I saw just how bad and under-funded defense work was back then — and not just here in Arizona. I also ended up working in cases in California, Nevada, Oklahoma, Texas, Ohio. And the odd federal case.
The quality of representation really varied. There were some good lawyers doing contract murder cases then, and they’d win cases. But on the other end of the spectrum, when it was bad, it was really bad. You had people doing capital cases who I wouldn't have hired to fight a parking ticket.
It was really the luck of the draw. I had a client at the FPD who, when I got to looking at his case, I remembered it because it was local and some of my friends had gone to school with the victim. This guy was initially assigned one of the really good lawyers, but the lawyer had to conflict out because already represented somebody else involved in the case. And so by the luck of the draw, the guy gets a bad lawyer who doesn’t put in the energy. I have this case because I’m in the federal capital habeas unit, so this guy is on Death Row. And I’m thinking man, if that first lawyer didn’t have a conflict, I’d never have seen this case. This guy wouldn’t be my client.
That frustrates the hell out of me. It really does. Because that's just not the way the system's supposed to work, you know? The facts of the case should matter a lot more than the luck of which attorney the court assigns. But when you bring these issues up to these eggheads on the appellate courts, they see nothing wrong.
No offense to the eggheads, but some of them have never tried a case, certainly not a criminal case. A lot of them haven't even really lived a life. They go to prep school, then an Ivy League college, straight to law school, right into some judicial clerkship, right into some fancy gig, and right onto the bench. They don't collect a whole lot of life experience.
And so they have this assumption that the system works as intended on paper. Because that’s all they’ve ever seen — paper. So it’s just like, we don’t really know how it works, or even if it works, so we’re just going to assume that it does.
I go back to the fact that when I started this job, I really thought people didn't use their turn signal when they had 500 pounds of contraband in the trunk. I thought those stops were legitimate. But it seems so clear now. If anyone is going to use his turn signal properly, it’s the guy with 500 pounds of drugs in the trunk.
Without that exposure, without any experience with how the process really works day to day, on the back end of these things — if you never see the stuff that doesn’t show up in transcripts or in the four corners of the appeal — you’re missing a good chunk of context. You don’t know how these cases really unfold.
People think appellate decisions are these careful review of the facts of a case. Appellate decisions are just rubber stamps. I mean, maybe I'm a nerd about this, but the system is supposed to work a certain way. And if you want people to follow the law and have respect for the system, the system has to be respectable. And it just isn’t.
I’m grateful that as a PI, I got to work with some really great lawyers, probably because good lawyers know it’s important to hire investigators. But I’m furious about how much hinges on which lawyer gets assigned your case. I’d get hired by a bad one every now and then, too. And it would be so frustrating. I’d get angry at them. Because I had seen how trials should be done.
A decent lawyer can find evidence that will turn a case. A bad lawyer won’t. But when someone like me finds that evidence later, the appellate judges don’t see that. They don’t see how differently this trial would have gone if the lawyer had just cared a bit more. They just reflexively defer to the idea that the system works. To overturn a conviction, everything has to be just right. You really have to hand it to them on a silver platter. And even then.
By the time I got to the FPD, I knew how to win a trial, and how trials were lost. And I look at these cases with some of these lawyers, and I just get angry. I had a client who was intellectually disabled, and his fucking lawyer stands up at trial and says, “I have nothing to offer in mitigation.”
Nothing to offer! It just infuriates me. I don’t understand why are you even doing this job if you're not going to take it seriously. Your clients deserve every ounce of what you can give them. If you’re not willing to give it to them, find another line of work.
I tend to say stuff like this out loud, and maybe people don't like me for it. But it just infuriates me. I wish I didn’t get so emotional about it. But I just don't know how else to be. I mean, you can have 300-page habeas brief that is a completely rational and documented explanation how the client was screwed over, and the an appeals court will blow it off with one sentence. Nobody gives a shit.
Your comment about appellate judges and their lack of life experience is interesting. It’s fascinating to me that the courts almost always assume good faith on the part of police and prosecutors. There’s just no acknowledgment of the perverse incentives. They seem incapable of considering the possibility that some parts of the system might be corrupted.
Every time. Every time! In doing the suppression work I did, I can't tell you how many cops we caught lying right there on the stand. And the judges believed us. They suppressed the evidence, right? So they obviously knew the cops were lying. And then nothing happened. The cops were back testifying again.
Now contrast that to someone like me. If I fucking so much as gave the wrong time of day under oath, my career would've been over. I decided early on that I wasn’t going to get pinched like that. I was just going to telling the truth no matter what, even if it hurt the client.
For me, that made testifying a little bit easier. But cops — they don’t testify under the same stress. They don't give a shit. They can say whatever the hell they want to say up there. No one's ever going to come back and pinch them for getting something wrong.
In this county, they caught a cop lying to put people on death row. He ends up getting indicted, which is rare, but then the case goes away. Just goes away. Meanwhile, I know of a defense investigator in San Francisco who got 5 years. She fucked up. She filed statements from jurors who didn't exist. She made them up. She absolutely fucked up. But she went to prison for five years. Five years, when cops lie like that every day.
Were you ever subjected to retaliation for exposing police or prosecutor misconduct in a case?
There were threats sometimes, but I didn't really take that seriously. Sometimes they threatened to charge me with something. I welcomed that. Most of the time, I had to keep things to myself and let the attorney decide how to use what I found. But if you retaliate and charge me, I’m not going to shut up about what you're doing. But they never did.
Before I joined the PI firm, I know there was a prosecutor who tried to take a restraining order out against my boss because he was trying to interview witnesses in a case. I mean, it was just ridiculous. But it didn’t work.
Mostly, I just tried to stay invisible. I tried to stay a fly on the wall as best I could. Part of that was not having much confidence early in my career and not wanting to say something incredibly stupid to the wrong person.
But to answer your question, I've certainly had police officers not be happy with me. But I’ve never feared any type of retaliation, and I don’t remember anyone coming after me. I will say that there were times when my wife was scared shitless. I remember after one of those stings she had a cop behind her for like a mile and she was convinced that she was being followed. But it wasn’t the same agency. I tried to tell her — that cop doesn’t even care. But I understand why she was worried.
What are some of the most rewarding cases of your career — the cases where you you made a big difference?
God, I wish I had more of those. Certainly for the few guys on the cases that I was able to work to get people off of death row, those are some of my proudest moments. Ha’im Sharif got off death row in Nevada back in 2017. He had spent 28 years on, on death row for something that wasn't even a crime. We concluded that the child had died of a disease. And we got him released. You can't beat that, right? I mean, you just can't beat that.
But I'm also proud of cases where we've just gotten someone off the Row and into a life sentence. It’s gotten better for guys on the Row here. But for a long time they were locked down 23 hours a day. Death Row was awful. You didn't have access to the store or programs. Your medical care sucked. So getting someone a life sentence and into a better prison, as bad as that sounds to the rest of us, sometimes was a good thing. I mean, a lot of these guys know they're not getting out. So, you know, just being able to go to a decent recreation yard and have a little more freedom inside was a really good thing.
But now that I think about it, there was another case during that year that started to change how I saw this job. I didn't do a lot of sex assault type cases. I don't know why. I don't know if it just wasn't my thing or if I just didn't end up catching a lot of those cases. But I got a call from a lawyer, a good friend of mine. He said I’ve got this kid client. It looks like they're getting ready to charge him with sexual assault, and I need you to look into it. I said all right. Then he ways, “The problem is that we have no information.” The cops literally showed up at his door, served a search warrant, and took his samples. The woman had stolen his cell phone. He didn't even know her name.
The cops certainly weren't going to give us her name. All he remembered was a nickname or a name that she had given him. Anyway, with that, just with that nickname — and I couldn't repeat it today if you asked me to — but somehow with that nickname, I was able to identify this woman. Again, I didn't do these cases that often, and frankly, I was a little uncomfortable even doing then. But my client was this young kid, and this sexual assault had supposedly taken place in his house with his mom in the next room. It was a situation where they had met at a bar and gone home to his place. And, and then he wakes up in the morning, she's gone, and his cell phone is gone. The cops show up six hour later.
So once I had a name, I started looking into the woman. And within a couple of days, I had talked to her best friend, who told me she does this all the time. She said, “I can tell you at least a half a dozen guys that she's accused of rape. She's got some mental health issues. I'll give you a statement.” Then she told me to contact this other guy, a military guy. She had done something similar to him, but she had told him that she was pregnant and had lost the baby. That guy was stationed overseas. The military sent this guy all the way back to the U.S. because they thought his baby had died. But she had made it all up.
So within a couple of days we turn all this over to the police and they don't say anything. They don't say, "Oh, we're wrong,” or “We're sorry.” They just call you the next day and say they’re closing the case.
That’s a pretty run in the mill type of thing. But that was the first time I helped a guy beat a false charge like that. I mean, the guy's mom called me in tears. Up until that point, like I said, I had tried my best to emotionally detach, especially after watching a client’s execution — and then sitting between another client’s mom and the victim's mom in the courtroom while my client is sentenced to death.
But this guy's mom calls me and man, she's just in tears. And so I'd cut my bill. I probably could have charged her a million dollars for that. I mean, she's trying to throw money at me. But I can’t charge her much, because I know she doesn’t have much money.
It’s a case like when I start to realize — I hate to even say it like this — but I realize I can’t avoid that this job means dealing with people. Like, real human people. These are people with lives and family and people who love them. We read the news about these people, and of course we see it on Twitter all the day, all the judgment that we cast people accused of crimes.
I look back and there was a time there when I too really sat in judgment of people like that. But Christ, I had ignored my own fuck-ups. You know, I had lived like that for several years. I was a hoodlum. I hung out with criminals. We did some stupid shit. I think we have this amazing capacity as humans to kind of disregard all of our own mistakes and think, “Well, I worked through all of that without ending up in prison — so why didn’t these other people?”
But you know what? I didn't work through all of that on my own. I was ignoring all the help I got along the way. All the people who helped me straighten my shit out. Those people are why I’m on one side of the glass and my clients are on the other. And not everyone has those people.
I guess that realization is how I went from “this is my work” to “this is my calling.” At first I got a job. Then I got a career. And then I got like an identity. It just became my life. That case was one of the first pushes in that direction.
The other was a trip I took to the Mississippi Delta right after I joined the FPD. I had never been before. And it just completely educated me on what the hell people are going through. It made me throw aside a lot of my own judgements and preconceived notions.
I just wish there was more of that in the system. I get it. We want a system that is cold and analytical and reasoned, because we think that that's the only way to achieve fairness. We think removing all the context, taking out all the shit this person had to battle, it creates this objective playing field where everybody gets the same shot. But, you know, in reality, it just doesn’t work like that.
What are the cases that still haunt you?
Barry's case will haunt me forever. That’s the really obvious answer.
But there’s Don Miller, the guy I watched get executed. He had already been convicted and sentenced to death when I was assigned to the case. Don was in the midst of his state appeal, his last state appeal. He was representing himself — badly. But he was able to get the county to pay for an investigator. My boss, I guess, had worked for Don at trial. So they had some prior relationship. My boss was paying me something like seven bucks an hour.
I had no business working on Don Miller's case. I had no idea what to do, you know? So I was bad at it. A few months later, Don loses his state appeal, and he volunteers for execution. He foregoes his federal habeas, and he's going to be executed. And I'm sitting there with him in the jail one day, I think I'm not even a year into the work, and the guy's like, “Hey, man, I'm gonna go ahead and take the pill, and I want you to be there.” And I say okay, thinking this is never going to happen. I didn't think in a million years it was ever gonna happen.
I don't even know why I said yes. Just stupid, I guess. But it started getting real in November of 2000. So I stood next to Don’s mom and watched them execute him.
At the same time, I'm watching Don get executed, I was working for this kid who was 17 years old at the time of this horrible triple homicide. They're trying to put him on death row, too. So right at about the same time I’m watching this guy die, I had to go to the sentencing hearing where my 17-year-old client gets sentenced to death. And the only seat left in the courtroom when I get there is between my client’s mom and the victim's mom.
It was a lot. I was still relatively young. I just was out of my league.
In the second part of our interview, coming in a few days, Sowards discusses other cases from his career, the mitigation process, the need for better-trained defense investigators, and the agony of the Barry Jones case.