Case study No. 247: Employee Prosecuted for Crime She Did Not Commit
I am a security expert witness. I am retained by plaintiff and defense attorneys related to negligent security, inadequate security, physical security measures and a host of others. My job is to assist the attorney with a highly specialized area in an effort to eventually provide testimony about my opinions of the incident at hand. My experience in Retail Loss Prevention/Security spans nearly three decades which was very helpful to understanding this case.
The Basic Facts
A major retailer experienced a loss of $5,000 cash. The security department investigated immediately and determined that the shortage came from a customer service department where money orders can be purchased and several types of bills can be paid. It was a high cash-transaction department.
The high security risk of cash required the registers and counter area be covered by high definition color cameras that provided excellent recorded video. This video was reviewed by security staff and no unusual activity was observed until late the evening before.
There was only one employee there that evening and she was a relatively new part-time associate. She had absolutely no supervision but, as it was learned later, she was performing her job very well and always called a supervisor if she had a question. The associate was 52 years old.
The following is a description of the actions of Ms. Jones (not her real name) during her shift.
At the beginning of her shift, Ms. Jones verified the amount of cash in the register and notated it on a required form. Much of the cash was still in the bank straps and filled both the cash slots and a large space that was below the drawer. The register held several thousand dollars. The customer traffic varied over her 6 hour shift and, as usual, the transactions all involved cash. Money order sales were frequent and the transactions sometimes involved over a thousand dollars. With the amount of cash in the drawer at the beginning of the shift and the added money from transactions, the register was running out of space to the point the drawer was difficult to close. The retailer failed to have the forethought to provide some type of drop to allow better management of the physical space available so Ms. Jones had to do something.
Although Jones was relatively new, she had worked in various positions in retailers and restaurants her entire adult life. Handling money was not new and she didn’t want to bother a supervisor with her dilemma. In an attempt to create space, she removed a handful of cash ($20’s) from the register and placed it on the counter. Subsequently she counted out the money into stacks of 100 bills ($2,000), rubber banded them, and wrote the amount on the stack. One hundred $20s is the correct/standard number of bills for banking and retail. There was so much loose cash that she had to repeat this process several times. Having compressed the stacks of bills into less space, she made room in the register for the drawer to close properly. All of this was recorded with an unobstructed view with the high definition cameras.
While counting and banding the money, Jones picked up two stacks of bills in her left hand and bent under the register to a shelf. When she stood up she made some movement with her left hand under the till and closed the drawer. The money was not seen again. Two hours later her shift ended and the department closed for the evening. A supervisor assisted her in closing out the register and picked up the cash. Ms. Jones never left her area except for a brief moment for a restroom break.
Again the video was exceptionally clear.
The following day the store’s central cashier department discovered the shortage and immediately called security. Because the shortage was for a specific register, they began reviewing the video from the prior day. Nothing suspicious was observed until they saw Jones “playing” with the money. When she began counting money on the counter they felt that was extremely odd but when she bent under the register, they took a closer examination.
When Jones came in at the beginning of her shift, she was carrying her purse and a large over-the-shoulder tote. It looked like a smaller version of a beach bag. She put both under the counter on a shelf that was well right of the register. That was a policy violation but was not atypical.
Security reviewed the video numerous times and came to the conclusion that at the moment she bent over she placed the money in one of her bags. They further concluded that she intentionally took a position with her back to the ceiling camera so as to block the register drawer and her hands from view. Based on that evidence they contacted their supervisor. The supervisor, located in another city, agreed with their conclusions despite not having seen the video. He then authorized the interview of Ms. Jones and also, regardless if she confessed, authorized her prosecution for felony theft. Human Resources met with security and agreed to move forward with the interview and, regardless of confession, agreed to terminate her. With the pieces in place on the retailer side, it was now time to contact the police.
The city had about a 20,000 population and the detective division of the police department was not very large. Security spoke with the day shift Detective and discussed their findings and the evidence. The Detective said to “Call ‘em when you’re done with her. We’ll come get her.” Now all of the pieces were in place and the only thing left was to interview Jones.
Ms. Jones is a middle aged woman, who was about 5’2”, and probably needed to carry extra weight during breezy weather to keep from being blown away. She had earned her head of silver hair from years of raising kids and working multiple simultaneous jobs over her life time. The day I met her she looked almost frail but she managed a smile occasionally as we spoke. Obviously, this had taken a toll as what money she did have was nearly gone and she couldn’t find another job. She looked lost.
The following afternoon, Ms. Jones came to work as she always did and virtually went through the same motions as two days prior. She put her purse and tote on the same shelf and set about the day’s work.
A person from HR went to her and told her that some paperwork was overlooked when she was hired and they needed her to come back to the office to sign them. When she entered the HR Manager’s office, two security personnel were there as well as the HR Manger and an HR assistant. The lead security person was seated at the HR Manager’s desk and she was place in a chair in front of the desk. She was basically surrounded. The lead security person was a female with about one year’s experience and had no training in interview techniques. Her boss, however, thought the case was clearly open and shut and decided to allow her to conduct the interview.
The lead security person, I’ll call Debra, was seated in the manger’s chair wearing a polo shirt and jeans. She had her hand cupped on top of the desk with arms extended with this very serious look. “Why did you do it?” Debra asked. Ms. Jones started looking at everyone and asked: “Do what?”
I’ll divert from the story to discuss investigations and interviews as part of this case study.
Investigations require patience and professionalism. You are a fact gatherer and you should be very thorough. This process begins to create a picture of the crime itself as well as the potential suspects involved. While this case pointed directly to a single person, it would be very unusual for an employee to steal $5,000 and then return to work. It’s unlikely that the shortage would be overlooked. Despite what you think you see, it pays to be patient and work the process. You have already identified a probable suspect, you know where they live, and given her age she was not likely to be a flight risk. An investigation may take several days but the suspect’s activities are being monitored in the event another shortage occurred.
Now, back to the interview. There is a company, Wicklander and Zulawski (w-z.com), that is the preeminent interview and interrogation trainer in the country. They provide an approach that is conversational and non-confrontational, allowing the two people a chance to calm down to get to a confession. Asking Why did you do it, is not a non-confrontational/conversational start. If Debra had received the least amount of training she would have known this but she would have also known to never expect a full confession after the first question. Furthermore, training would have taught her to listen to the answers from questions and to not simply toss them away as lies. A professional interviewer will get this sense in their stomach that something is wrong. The “suspect” seems clueless to the questions and seems truthful in their answers. A nonprofessional interviewer keeps beating the dead horse because they are failing in front of other employees (who were told this was a slam dunk) and they become frustrated. Debra’s frustration culminated in the final question: “Do you want to go to jail?” By now Ms. Jones was crying and simply said no. Debra then called the Detective who arrived some 10 minutes later. Ms. Jones was handcuffed and walked through the store in front of customers and other employees. She was place in a police unit and transported to the Detective’s office.
The Police Investigation
The best description of their investigation: none. The Detective did not interview Jones or ask her if she had committed a crime. She did not offer any explanation or ask any questions as she was frightened. She’d never been issued a ticket much less be seated in front of a police officer in handcuffs.
The Incarceration: Sometimes all things work out.
Ms. Jones was photographed, fingerprinted and given an orange jump suit. She was booked for felony theft and placed in a cell by herself. Her bond was set but she did not have enough money to post bond nor would they allow her to be released on personal recognizance.
After two days a new inmate was placed in her cell. This could only be seen as a miracle. As the two got to know each other the conversation eventually turned to why they were incarcerated. When Ms.Jones finished her story, her cellmate said she had been in another part of the jail where her cellmate had been charged with felony theft from the same retailer! As the story unfolded, the other “former employee” was busted for stealing cash…a large amount of cash. She refurnished her apartment. She paid off her truck. She bought a new wardrobe. She was also concerned that once her boyfriend found out she was in jail that he would find the rest of the cash in her apartment.
This new information was a godsend and she immediately called a friend to try to get her out of jail. Through the appointment of a public defender, Jones was released on a personal recognizance bond. Her appointed attorney then began to investigate further.
The retailer had been investigating large cash shortages for some time. The shortages had been happening at various departments and with no distinct pattern. When Ms. Jones was “caught” the store thought that was the end of their problems but the shortages continued. Two days after having Ms. Jones arrested, they caught the real thief. The new inmate at the City jail had been a supervisor whose job it was to help employees at the end of their shift close out their register. She was in charge of taking their money to the main cash office and, this time, security had clear video of the theft. The subsequent confession was astonishing: $25,000 that she could remember. As for Ms. Jones’ register, she probably took that money but just couldn’t remember.
With the “new” culprit now in jail, the retailer went back to work as usual. As for Ms. Jones: they did not notify the police that they had wrongfully prosecuted her and she sat in jail for four days.
After months of work, she finally had the charge dismissed and her record was expunged. The paper trail of her misadventure was erased. The mental and emotional trauma was not. The retailer offered her job back but she declined. She decided, instead, to contact an attorney.
The Civil Investigation and Mediation
As a security expert witness, I am retained by lawyers for law suits that allege inadequate security or negligent security. In this case I reviewed all of the training, supervision, policies and procedures of the defendant’s security staff and reviewed hours of video of the alleged theft. My review allows me to provide an opinion as to whether the actions of the defendant were reasonable. There clearly were anything but reasonable.
Civil cases rarely go to trial as they are settled through mediation. In essence, both sides meet with a mediator, who is usually a retired judge, and through the presentation of the case, a settlement value is agreed upon. If the offer of the defendant is unacceptable, the case moves forward. A case can settle at any time afterwards.
It is important to understand that the actual company rarely pays anything. They are covered under insurance policies that cover attorney costs and settlement. Many times, however, they are self-insured up to a certain amount.
The initial offer when the civil case was filed was $25,000. The settlement (to keep it from going to trial) was $600,000.00. The mediator was so outraged at the conduct of the retailer, he suggested substantially more but that was rejected.
Conclusion and Take-aways
Companies of any type provide a hiring basis, policy and procedure, training regarding those policies and supervision of its employees. I call these the four legs of the chair. Without all four firmly in place, the failure is foreseeable. Chairs don’t usually break the first time you sit on one. The actions of the security personnel and management over the years prior to this showed a continuing escalation of failing to follow procedures and lax supervision. Lax supervision results in people not following procedures.
The security staff simply were told to “get this wrapped up right away”. The pressure of their marching orders and their supervisor’s approval to move forward set in motion a train wreck. What also happened in this case is the thinking that if the police pursued a criminal case it certainly must be “okay”. Reality check: If you are the complaining witness, the liability rests with you. Your actions, investigation, and subsequent confrontation of the employee ultimately resulted in your identification of a specific person committing a specific criminal act.
If you are in a position within a business to conduct investigations, especially criminal investigations, I offer the following:
- Never, never, never hurry through an investigation! It is better to fully understand the specific facts over time than to feel compelled to hurry to confront an employee.
- Company managers “always” believe they know how to interview an employee. It’s their chance to prove they took notes during the last rerun of Colombo or they’ve watched 100 YouTube videos (or read Pat Murphy’s investigation guide). Consider an interview as if you’ve been called to diffuse a bomb. Is it the green wire or the red wire?
- Most employers do not have a security department to investigate crimes. In this case, that didn’t matter anyway. They were foolish across the board. Calling the police is a great option. What I mean by that is to call the police headquarters and talk to an investigator or detective. Cover the facts and see if they have any input. At this point, you, as the employer, are still in control of what happens next.
- The alternative is to not even consider prosecution. Termination cannot be taken lightly if it is brought about by a hurried, thrown-together, investigation. My recommended approach is to have sufficient grounds under current company to terminate before ever talking to the employee. There is absolutely no ground to be gained by hoping for some sort of admission of a serious policy violation and thus basing their termination on that. There is also no ground to be gained by trying for get a confession from them for past acts. Caution and professionalism is critical.
- Lastly, the more important question is how the employee was able to commit the act(s). If a thorough post-incident review is not conducted, nothing has been accomplished. Generally, the cause was lax or lack of supervision. The direct supervisor was probably already identified as a poor performer so the end result should not be a surprise.
Litigation is very costly and can ruin a business both financially and their reputation in the community. Seek professional guidance before conducting a criminal investigation