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ForensicTeacher Magazine

Winter 2011 $5.952 US/$6.95 Can www.theforensicteacher.com the MindAlso, Hunter we interview

3 www.theforensicteacher.com The Forensic Teacher • Winter 2011 The Volume 6, Number 18, Winter 2011 The Forensic Teacher Magazine is published quarterly, and is owned by Wide Open Minds Educational Services, LLC. Our mailing address is P.O. Box 5263, Wilmington, DE 19808. Please see inside for more information. ForensicTeacher Magazine Articles 8 Teaching Moments By Ted Yeshion, Ph.D. What happens when good people meet bad science?

10 Interview By Mark Feil, Ed.D. John Douglas was the inspiration for one of the main characters in Silence of the Lambs, he started the FBI’s Behavioral Science Unit, and he’s made a career out of getting inside criminals’ heads. He talked to us about a lot of things, including how forensics teachers can make lessons more real. 44 Trial by Fire By David Grann. 24 Setting the stage Todd Willingham claimed he didn’t set the fire that Do you decorate your classroom to put students in a killed his family. Even before his execution experts forensic frame of mind? We’ll show you how some folks were pointing out the junk science at his trial. do it. 58 The Dark Side of the DA 26 The Work of an Innocence By Maurice Kirkwood. An activity that lets your students play good guy and bad guy as they explore Project the world of high-pressure convictions. By Michael F. Cromett and Susan M. Thurston Myster, Ph.D. How many wrongful convictions take place every year, and why? This insightful piece will open your eyes to the horrible power of justice gone bad. Features 2 Editorial 30 Using Details to Teach 3 Forensic News Forensics By Ricky Pelazzo. We give you the low-down on a class activity that will 4 Mini-Mystery have your students talking and talking and talking. 5 Hot Web Sites 37 Mini-Lab 32 Voir Dire By Gil I. Sapir, JD, MSC. We take you behind the scenes of our legal system to 68 A Day In The Life Of... examine how one does or does not qualify as an expert witness. Can anyone make it or fake it? 73 Bloomin’ Easy 74 Morgue Guy 38 Is Handwriting Really 74 What’s Going On? Brainwriting? By J.D. Corleone. This activity lets your students determine for themselves 75 Just For Fun if graphology is a valid science. Hint: It’s not coming to 76 Stoopid Crooks TruTV any time soon.

1 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Editorial The ForensicTeacher Magazine

Editor-in-Chief Mark R. Feil, Ed.D. Good Things Come in Assistant Editor Threes Tammy Feil, Ed.D. Book Editor Enrico Pelazzo Welcome back. By now you’re well into your school year, the holidays are around the corner, and I hope your year is shaping up as well as, or better than Science Editor you’d hoped. T. Ann Kosloski There are two things we want to bring to your attention. The first is that because Copy Editor of reasons beyond our control we are now going to publish three times a year Tammy Feil instead of four, which explains why this issue is so late. This is our third and final issue for 2011. We plan to publish in March, July, and November in 2012. And we Contributing Editor need your help. Jeanette Hencken We depend on our readers for article ideas, lessons, and labs. If something Layout/Graphic Design works well in your classroom and your forensics curriculum please drop us an email Mark Feil and describe it at [email protected]. We pay for original materials, and if you’re unsure about if we’d be interested in something please don’t hesitate Circulation to ask. Don Penglioni The other thing you’ll notice as you read through this issue is a theme. We chose junk science and the related topic of wrongful conviction because of how the CSI effect now stretches from jury boxes to the classroom. Television has numbed our minds to the idea that forensic science isn’t always right, nor are experts Editorial Advisory Board infallible. We’ve teamed with some excellent publications to reprint a few articles about this topic. And we’ve also included exercises to demonstrate to your students Lt. John R. Evans how egos and sloppy or junk science can get in the way of the truth. Better yet, Section Chief of the Delaware State Police Homicide Unit they’ll demonstrate it to themselves. We’ve also included information about voir Head, DSP Crime Lab and Forensic dire, the process of screening a witness for the stand in a courtroom. Services Unit Finally, we’ve included references for some of the reprinted articles for further Jeanette Hencken reading. Forensic Science Teacher Junk science and wrongful conviction are topics long overdue for this Webster Grove High School, Webster magazine. We hope you like what we’ve put together. Groves, MO Richard Saferstein, Ph.D. Enjoy. Chief Forensic Scientist of the New Jersey State Police Laboratory (Ret.) Consultant and textbook author Cheri Stephens Dr. Mark Feil Forensic Science Teacher Washington High School, Washington, MO Volume 6, Number 18, Winter 2011 Adjuct faculty at St. Louis U. The Forensic Teacher Magazine is published quarterly and is owned now by Wide Open Hugh E. Berryman, PhD, D-ABFA Minds Educational Services, LLC. Our mailing address is P.O. Box 5263, Wilmington, Forensic Anthropologist DE 19808. Letters to the editors are welcome and should be sent to letters@ wideopenminds.com. Submissions are welcome and guidelines are available, as is a rate Director, Forensic Institute for Research sheet for advertisers at our website www.theforensicteacher.com. At this time subscriptions and Education are not available outside North America, otherwise they are free; sign up at our website. Middle Tennessee State University Back issues are available for $6.00 USD each including shipping or on CD priced as per the website. The Forensic Teacher is copyrighted 2011 Wide Open Minds Educational Services, Ted Yeshion, Ph.D. LLC, all rights reserved. All opinions expressed by contributors represent their own views, and Associate Professor of Forensic Science not necessarily the views of the staff or editorial board. Edinboro University of Pennsylvania POSTMASTER: Send address changes to The Forensic Teacher, P.O. Box 5263, Wilmington, DE 19808. 2 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Congrats! Forensic

Criminals Use 3D Printers to NEWSGoogle Maps Help Crooks Can Cops Lie to Grand Juries? Create Illegal Objects Case Homes In January 2012 the US Supreme Court will hear oral arguments on a case Printers that use ink or toner are Samuel Watson of Chicago con- to determine whether or not a govern- commonplace to everyone with a com- fessed to police after he was arrested for ment employee is immune from prosecu- puter. However, 3D printers are able to breaking into as many as eight homes that tion after lying to a grand jury about an take a three dimensional sketch of an he’d used Google Maps to find properties innocent person. object with measurement and carve the to burglarize. He used the satellite view In 2003 a group of doctors wanted object out of a variety of materials, from where one can see 360 degrees around to open a surgery practice in Albany, foam to plastic to metal. Criminals have the home to decide if their owners were GA. The venture was strongly opposed used these machines to print everything likely to own enough valuables to make by Pheobe Putney, a local hospital with from keys to automatic weapon ammo his crimes lucrative. Police believe about vast financial and political connections. clips to ATM scammers that steal cus- $100,000 of goods were taken over a six Charles Rehberg, the doctors’ business tomers’ bank card information. Some month period. manager, did some digging and discov- technology watchdogs are calling for ered the nonprofit hospital’s CEO made legislation to regulate the devices, but over $700,000 a year, it had bank ac- the law has been slow to move on the John Wayne Gacy’s Victims counts in the Cayman islands, and it issue, as often happens with rapidly ad- Exhumed. charged poor patients more than patients vancing technology. with insurance. Further, it was very ag- gressive in pursuing those patients in When one of the strangest serial kill- court to collect on debts. iPhone Doubles as 350x ers in American history was arrested in The trouble started when Rehberg Microscope 1978, investigators found the remains of and one of the doctors started sending 33 young men buried in the crawlspace faxes to local business and community beneath Gacy’s home. All but eight of leaders with information about Putney’s Researchers at UC Davis placed a 1 the victims were identified. However, financial practices. The hospital filed a mm ball lens on an iPhone camera with a police saved teeth and jawbones from the lawsuit against the faxers and, when the rubber sheet. The shape of the additional unknown victims in case better scientific faxes didn’t stop, Rehberg and the doctor lens makes 350x microscopy possible, method of identification were developed. found themselves indicted for telephone though a small amount of photo retouch- Fast forward 30 years. When cold case harassment, aggravated assault, and bur- ing is necessary to achieve optimum re- detectives wanted to build a DNA profile glary. The evidence for the indictments sults. The team speculates applications from the remains, they found the teeth was provided by a private investigator might include situations where money had been buried in four different cem- who worked for the DA, a man named and materials for traditional photo-mi- eteries by lab managers who had given James Paulk. croscopes are hard to come by such as up hope. In October 2011 officials dug However, it later came out there was in underdeveloped areas or with under- up the teeth, plus bones from two vic- no assault or burglary. Paulk claimed funded investigators. To view images tims whose dental DNA was insufficient he was told what to say to the grand taken with a modified iPhone go to http:// to generate a DNA profile. An entire jury by Ken Hodges, the DA. After the www.pcworld.com/article/241621/re- generation has passed since the victims indictment was dropped Hodges man- searchers_turn_iphone_into_350x_mi- were characterized as drug addicts or aged to secure two more, both of which croscope_on_the_cheap.html. gay men, and detectives hope the stigma were thrown out. Eventually, the hos- of either label has lessened to the point pital dropped its lawsuit, but one legal where family members might be willing issue remained: a suit brought by Reh- to come forward. berg against the DA’s office and Paulk for abuse of power. Unfortunately for Rehberg, the court threw it out. It was appealed to the federal bench in Atlanta Corretshun and thrown out again. Now it stands before the US Supreme Court. The court ruled 25 years ago that Correction prosecutors and police are immune from damages for actions, regardless of if the The article in the Summer 2011 issue, “Evidence Evidence Everywhere,” found actions are illegal or not, if such actions on pages 22–28, is generously based on a lab activity entitled “Can This Evidence trial-related. However, investigators en- Be Individualized?” from Kendall Hunt Publishing Company’s Forensic Science joy no such protection if their actions for High School, by Barbara Ball-Deslich and John Funkhouser. We regret that this are illegal and investigation-related. The information was not provided with the original article. For more information about Supreme Court must now decide if what this textbook please see their ad elsewhere in this issue. Paulk did was investigative or trial related. Obviously, each side claims the other is wrong. Does testimony before a grand jury count as trial-related or not? Forensic News (continued on p. 23) 3 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Mini-Mystery The Case of the Wells Fargo Money

The daring theft of half a million dollars from a Wells Barrington: I don’t use the lying code. Fargo armored truck captured the imagination of the entire Acker: Either I was in town at the time of the robbery or Royston area. As the Royston Gazette excitedly summarized Crowley does not use the lying code. it, the truck had just been loaded with cash from the First Crowley: Not all of us use the lying code. I don’t know National Bank on the afternoon of June 4 when two or three where the money is. men appeared, overpowered the guards, piled the money into “As you can see, it’s a bit of a tangle,” Walker concluded. a pickup truck, and disappeared-all in less than five minutes. Stanwick took and studied the notebook for a few minutes, The investigation was placed in the hands of Inspector and then handed it back. Matthew Walker. His skillful inquiries led the police to three “My dinner’s almost ready,” he said, standing up. men who often worked together and were suspected of several “Pot roast, potatoes, and peas. Since you’ll be working late lesser robberies. anyway, I hope you can stay long enough to join me. In the Some 10 miles from the city, in the little town of meantime, I’ll be glad to tell you who is lying, and at least one Baskerville, Thomas P. Stanwick, the amateur logician, man who knows where the money is.” pushed aside a postal chess analysis and admitted the inspector to his Who is lying? Who knows where the money is? bungalow. “I’m delighted to see you, Matt,” said Stanwick as they seated themselves in the living room. “I hear you’ve been doing fine work on this Answer on page 9. Wells Fargo case.” ‘’Thanks, Tom.” Walker smiled wearily. “All the public attention has put a lot of pressure on us to solve it and, if possible, recover the money.” “I’ve also heard you have some suspects under surveillance.” “That’s right. This is strictly confidential, of course.” Walker leaned forward in his armchair. “We have conclusive evidence that Charles Acker, Bull Barrington, and Adam Crowley organized the job, and at least two of them actually carried it out. We’ve been monitoring their communications, hoping to get more information. The money has been hidden, and not all three of them know where it is. It would aid us enormously to find out who knows its location. “To complicate matters, at least one of them communicates by a ‘lying code’, in which everything he says is false. The others speak truthfully. We don’t know which, or how many of them, are using the lying code.” Stanwick idly twisted the tip of his mustache and chuckled. “Quite a problem. Can I help?” “I hope so.” Walker flipped open his notebook. “These are the only helpful statements we’ve been able to intercept that might tell us who’s lying and who knows where the money is: Acker: Barrington is using the lying code, and I know where the money is. Barrington: Acker was out of town at the time of the robbery. Stan Smith is the author of three books of Stanwick mini- Crowley: Acker was in town at the time of the robbery if mysteries that have been published in nine languages and sold over 120,000 copies. Learn more at www.stanwick-mini- and only if he knows where the money is. mysteries.com. 4 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Hot Sites

Everything you’ve always wanted to know about fingerprints. http://onin.com/fp/index.htm

Everything you’ve always wanted to know about materials engineering for forensics http://www.istl.org/02-spring/internet.html

The National Institute of Justice’s forensic website. Need we say more? http://www.nij.gov/topics/forensics/welcome.htm

Don’t be fooled by the title. Great site. Worth a visit. http://www.all-about-forensic-science.com/science- for-kids.html

A great site to investigate how justice went wrong and innocent people went to prison, death row, or heaven. http://www.innocenceproject.org/

A great collection of forensic resources. Neat. http://www.istl.org/03-spring/internet.html

A good list of forensic lesson plans if you run out of ideas. http://sciencespot.net/Pages/classforscilsn.html

If you or your students are budding forensic psychiatrists, this is the place for info. http://www.write-brain.com/research_mystery_ psych.html

A great place to bone up on your knowledge of forensic law. Lots of stuff http://faculty.ncwc.edu/ mstevens/425/425researchlinks.htm

5 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Wards_FSTad 7/11/11 4:24 PM Page 2

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www.theforensicteacher.com www.theforensicteacher.com 7 W Serious About Science Since 1862! W | wardsci.com |The800-962-2660 Forensic Teacher • Winter 2011 Teaching Moments: Forensic Testimony and Wrongful Convictions

By Ted Yeshion, Ph.D.

ver the last decade the media has inundated our culture the prosecution to show that a hair recovered from the trunk of with everything forensic. Although students enjoy the defendant’s vehicle was consistent with having originated Owatching CSI and the resulting spin-off shows, these from a decomposing body, which was demonstrated through programs typically offer a greater entertainment value than an mitochondrial DNA analysis to be congruous with the maternal educational one for the viewer. Many teachers responsible for lineage of the Anthony family. Equally important were the instructing students about the forensic sciences are challenged microscopic findings that the hair in question was consistent by their limited knowledge of what actually happens in crime with known hairs from the victim, Caylee and inconsistent scene investigations and with evidence after it is submitted to a with reference samples from the defendant, Casey. Another forensic laboratory. In fact, even experienced forensic analysts type of unique evidence was the analysis of air samples may not have a very detailed understanding of what goes on in recovered from the trunk of the defendant’s vehicle. These air the crime laboratory in disciplines outside their own expertise. samples were tested to identify chemical components of odors Thus, it can be difficult at times to point out to students the consistent with human decomposition. The defense refuted problems of Hollywood forensics versus real-life forensics. this evidence through their specialists, which resulted in a Viewing specific episodes of these television shows in class battle of experts equivalent to the trial of the previous century, to critique various aspects of forensic investigations, however, People of California v. OJ Simpson. In addition, testimony can serve as an enjoyable and valuable opportunity for teachers from crime scene investigators, forensic anthropologists, to correct misconceptions students may have about the fields of medical examiners, forensic entomologists, K9 handlers, and forensic science and criminal justice. a forensic botanist to name a representative sample of forensic Last summer, the cable networks TruTV and HLN (Headline investigators, made the proceedings of this case a huge resource News) aired live the high-profile criminal trial of Florida v. for forensic teachers to elicit and stimulate student discussions Casey Anthony for the murder of the defendant’s two-year-old about a wide variety of evidence. daughter, Caylee. The prosecutors and defense attorneys in Issues regarding the chain of custody and admissibility this death penalty case methodically explored the crime scene of evidence (Frye v. U.S. and Daubert v. Merrell Dow investigation and the analysis of a wide variety of physical and Pharmaceuticals), evidence protocols, basic concepts of class biological evidence. Some of the evidence presented in this and individual characteristics, proficiency testing, error rates, dramatic trial involved new or cutting edge science like post and discussions about the 2009 National Academy of Sciences mortem root banding (PMRB). Such evidence was critical to (NAS) report Strengthening ForensicBy Science Mark R. in Feil, the Ed.D. United 8 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com States: A Path Forward made it difficult for me to turn my eyes away from the television during these fascinating proceedings. The testimony of experts and the commentaries of the In Session panelists throughout the trial provided viewers, Congrats! and particularly forensic teachers with little or no forensic experience, many significant concepts about real-life forensics to bring back to the classroom for enriched discussions. Forensic Science teachers should make it a priority to become familiar with the NAS report (www.ncjrs.gov/pdffiles1/nij/ grants/228091.pdf) and other associated perspectives about the capabilities and limitations of forensic evidence. Assigning specific readings from this document about topics related to your course material would enrich student understanding and assist in identifying and correcting misconceptions. If you recorded any of the testimony in this trial, I encourage you to share it with your students and engage them in discussions about the application of science to the forensic issues in question, and also to the differences between expert witness and lay witness testimony. If you did not record testimony from this trial, there To Sally Kruschke of Racine are unlimited opportunities by checking in on the current cases Lutheran High School in Racine, shown on TruTV. Students must understand that no matter WI. She was randomly selected from how good forensic investigators are at their jobs, they are only as good as their ability to enable a jury to understand what they those who took the time to offer did, how they did it, and what the results mean, so the jurors feedback on our magazine She’s won can deliberate effectively about the innocence or guilt of the a digital microscope to help in her defendant. classroom. Another fertile area worthy of exploration in the classroom is the role forensic science has in wrongful convictions. Clearly, We’ll have more raffles in the coming forensic science, particularly DNA analysis, is a double edged months. Keep an eye on our website sword in that it may be used successfully to prosecute criminals for more information. To be entered as well as to exonerate those individuals who are innocent of all you have to do is click on the the crimes for which they were convicted. What is less well raffle link on our homepage and let realized is that forensic science has played a significant role us know how we’re doing, how can in contributing to wrongful convictions. Unvalidated or we improve, and what you’d like to improper forensic science has been identified as the second see more of. Before each issue we’ll leading cause of wrongful convictions immediately after select one name at random. You’ll be eyewitness misidentification (http://www.innocenceproject. able to start signing up again in late org/understand/Unreliable-Limited-Science.php). It is for this January. very reason that the prosecuting and defense attorneys in the FL v. Anthony case had to keep testimony about questionable scientific protocols in check. Other causes of wrongful Mini Mystery (continued from p. 4) convictions deserving time for classroom discussion are false or contaminated confessions, snitch testimony and government The Case of the Wells Fargo Money misconduct. Using these topics to stimulate classroom discussions not Suppose Acker is lying. Then, from his second only meets the primary goal of teaching about forensic science, statement, he was out of town at the time of the robbery but also builds critical thinking skills, exposes students to and Crowley is lying. If Crowley is lying, they are all important issues about ethical practices and expert witness using the lying code, including Barrington. If Barrington is testimony, and allows them to understand the role of forensic lying, however, then Acker was in town at the time of the science in the overall criminal justice system. robbery. Thus, if Acker is lying, he was both in and out of town at the time of the robbery. This is impossible. Acker is Dr. Yeshion is a professor of forensic science and criminal justice therefore telling the truth. at Edinboro University of Pennsylvania. Prior to teaching, he Since Acker is telling the truth, he knows where the worked 25 years as a forensic serologist, DNA analyst, crime money is, and Barrington is using the lying code. Not scene reconstructionist, crime laboratory director and Special everyone is using the lying code, so Crowley is telling the Agent. Dr. Yeshion also serves as the Chairman of the Science truth and doesn’t know where the money is. Barrington Subcommittee for the Pennsylvania Joint State Government may or may not know the location of the money. Commission on Wrongful Convictions.

9 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 10 Photo courtesy Larry Stone Photography The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com MindAn interview Overwith FBI Profiler Pioneer Matter John Douglas By Mark R. Feil, Ed.D.

John Douglas: Hello, Mark? “Are you kidding me? I’m staying at La Cucaracha” I said, “I can’t afford this place. The government won’t allow me to stay Forensic Teacher: Yes, John. Thank you for calling me. here.” But they had really built things up on television and it’s just – it’s just so unrealistic. JD: I’m working on an A&E pilot and with another retired FBI agent. In fact, he does some of the consulting and writing for FT: Right. the TV show Criminal Minds. I was thinking the public thinks that Criminal Minds is really the way that my unit operated JD: Because you’re going in on a case. In fact, I was just tell- when I was still in the Bureau. ing the guy on the phone. I said, “As far as wanting the solu- tion, you go out on a case and get an idea that it’s an unknown FT: Oh, yes they do. subject case. Of course, you get the materials you need to do the analysis, the crime scene photographs, and the autopsy re- JD: And so now, for TV, I’d be doing a real case, and they ports and information on the victim and the overall crime in want it to look like Criminal Minds. [chuckles] There are cer- the neighborhood, all of those things. And then you do your tain things that are true about how we operate and the types of analysis. Now the analysis may end up hitting a suspect they people in the unit, but you know we don’t make an arrest or have and then if you’ve been doing assessment of the suspect, kick down doors and things like that. And you can’t solve the you tell them, ‘Hey, you’re on the right track and stay focused case in an hour or so either. That’s just kind of crazy. They want here.” me to go on a case, so we’d be going down on a double homicide, and they expect you can solve it, like Name That Tune FT: Okay. [ed.note: this was a popular game show in the 1970s). JD: And more times than not, you may get on a case and they FT: Oh, that’s just unrealistic. Come on, it’s two days. go off in a different direction and you do the analysis and you say, “Hey, I can’t reinforce you here in your investigation yet. JD: Yeah, that’s right. Yeah, I mean, we’ve got a tight sched- You have to refocus.” And they might say, “Yeah, but the guy ule. You know, they want a couple of days, it’s just goofy. were looking at you know, he’s really bad, he’s bad ass.” That’s true, but that person you’re talking about after doing an assess- FT: So, when you were profiling and working with the FBI, did ment of him would not have perpetrated this particular crime you guys have your own Gulfstream jet? in this particular way.

JD: No we didn’t, no we didn’t [chuckles]. We flew coach, FT: Ooooh. [laughs]. We were in the Bureau and on per diem. In fact, sometimes I have been invited to give a presentation at a ma- JD: Yeah. For example, a bombing case. He can make a bomb, jor conference at a beautiful hotel. And then after, they see me but he doesn’t have the skills necessary to make this particular leaving, they said, “Where are you going, John?” I said, “Back bomb. to my hotel.” They said, “You’re not staying here?” I said, 11 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 FT: I see. about five years more now.

JD: He can make a pipe bomb, but he can’t make the kind of FT: Right. bombs that Ted Kaczynski, the Unabomber was making. JD: Then, if they’re interested in the field of profiling, they FT: Right. can’t come directly in. They think like your students. They’re thinking coming right out of college and come in “Boom!” JD: I don’t even like to watch Criminal Minds. It just aggra- right, into the Criminal Profile Behavioral Analysis Unit. vates the heck out of me. FT: That’s right. FT: [laughs] JD: We pick from the field, it’s tough, and it’s just few posi- JD: They used all of my books without paying me a nickel. tions. Now, since I retired it’s increased and it’s like a couple And so, I just get aggravated every time – in fact, my wife may of dozen positions. So then, you bring a person in the field in look at it or my son and other children, and they say, “Dad, they as a profile coordinator. And that means like in Richmond, Vir- did a case of yours, they changed the name of it. You know, it’s ginia, there’s one or two or maybe three agents who are profile such and such a case.” And yeah, they can do that, so why pay coordinators. We give them some training like a week or two when you can just take something and just of training in behavioral science and foren- kind of twist a few little things? sics and different types with different guest speakers and legal aspects of the investiga- FT: Sure. tions. And then, they go back to the field and are only our seeing eye dogs to work JD: Make the victim older, or younger, of with police, see cases that the police reg- different gender, and it’s not mine. It’s not istered, and then bring the case or send the my case. So, it’s not John Douglas’s case. case back to Quantico.

FT: Oh man. FT: Oh.

JD: Hollywood stuff. JD: But, some of those people now have gotten off in calling themselves profilers FT: Are there any TV crime-related shows who never actually came back to Quantico you do enjoy? where we put them through an assessment. We do an inspection of their strengths and JD: I like the ones that are like a reenact- weaknesses. And for example Mark, if you ment. I like those, which are actually real came back and said, “I’ve got forensic cases and you have real detectives talking. science, instructed 10 years, these are my And there’s been a bunch of profiling shows good years of specialties in forensics sci- and here I’m doing a profiling show. But ence”, I’d say man, “That’s great. It’s real- what really disturbed me has been that you ly good. Now, how about your background can call yourself anything, you can be an like in death investigation, have you done expert in, let’s say, criminal profiling, and anything like that?” “No, I never had it.” you see these people on these shows on television like Nancy “Well, I’m going to make arrangements and have you ride with Grace, and others – and all of sudden here comes the expert the New York City Police Department for a while.” So we’re profiler shooting her mouth off, and they have no information going to make arrangements to go up to New York City or may- at all about the case. They have no credentials. be Baltimore PD and ride with them. Someone else may come in, they may not have all the academics that we want them to, FT: Yes. so we’ll send them off to UVA, or Virginia Commonwealth down in Richmond. JD: Playing the profilers – and unfortunately, producers look for women, they want women. In fact, I’ve had certain net- FT: Right, we’re in Delaware. works call up, and say, “John, we need a woman around 30 years of age who has, you know, a couple of graduate degrees JD: You’re in Delaware? and she’s blonde and that would be really good. But we’ll take a brunette and we want to use her as profiler.” I said, “What are FT: Uh-huh. you talking about?” First, the average age of new FBI agent coming into the Bureau office is around 28 years of age. By the JD: Yeah. In fact, Delaware was my – I did the first serial mur- time, they know what they’re doing as a street agent, they need der case in Delaware. The first, what the hecks the guy there – 12 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com around older people. I liked to listen and learn from older peo- FT: Steven Pennell. ple which is just kind of weird. But you could learn so much.

JD: Steven Penell, I testified in that case. FT: Oh, yes.

FT: You’re kidding. JD: By being around them and their stories, and what they would say kind of stayed with me as I grew older and eventu- JD: I testified in that case as an expert witness and relative to ally, when I did end up in the Bureau, I saw that, “Well, anyone the signature versus modus operandi. It was interesting to see. can make an arrest.” I mean, it’s working in violent crimes, The attorneys are saying, “How can you say Mr. Douglas that bank robberies, and we call them USAF, unlawful flight to these cases are related, when over here, this woman was hit avoid prosecution, like the guy wanted for murder. But upon with a hammer and over here the women’s breast was squeezed the arrest, we’d turn them over now to U.S. Marshals or the with a pair of pliers and other part of her body were squeezed local police, whatever the case may be. with pliers and all together these are different cases” I said, “Well, actually, it’s pretty easy for me to say, because it’s not FT: Right so much what weapons was used, as much as the common de- nominator, the common theme here is torture. JD: But I always want to know the “why’s?” The why’s of their behavior and that’s what fascinated me FT: Oh yes. about you know, what really motivates you? Why this particular bank over an- JD: The common theme. If it’s torture other bank and what precipitated you to and these victims were tortured prior to do this? being killed. And then the other thing, they were killed in a small tight area and FT: This is great. there was no effort on the part of the killer to conceal the victim. JD: Okay, so what precipitated this? I came into Bureau at the age of 25. I just FT: That’s true. came out of the Air Force. And I was an enlisted guy when I went in, I was al- JD: Pretty much found out in the open, most 21, in 1966. And by the time I get open view. out, I was maybe 25. And I think, ‘I’ve got to accelerate myself.’ I immediately FT: Right. got involved in educational programs that really made me grow up quickly. I JD: But that was the first case in Dela- was 21, but was in the mind of 16 year- ware and I’ll never forget it. They came old, probably. over to pick me up in Fredericksburg, So, I have to grow up, and grow up I Virginia, a little local airport and they did. By the time I put my four years in flew me over there. I had already done the military, I also earned an undergrad- the analysis and my people at Quantico uate degree in behavioral science and helped me. The police were very good then got a masters degree. But while in and the prosecutors were excellent, I can’t remember their the Air Force, I was in graduate school and staying in New names, woman and the male. They did a great job. And he’s Mexico, Eastern New Mexico University where the base was. been executed, right? And it was there that an agent recruited me. I always liked people that were nice and polite. I don’t believe in luck, you FT: Oh, yes. know, someone is in the right place at the right time. You can put yourself in the right place at the right time. JD: I believe some years ago now. In the gym where I worked out, it was a crappy old gym, di- lapidated but they were very good people, professional people FT: He’s gone. And wow, it’s small world. there and, they would get to know you and be respectful. But there’s one individual who came up to me one day and it turns JD: Yeah. Almost every state. I’ve done so many cases over the out he’s an FBI agent. I kidded people that I didn’t even how to years along with my colleagues, I have 5000 cases or so. And spell FBI. He gets me under his wing and talks to me. Within I’ve interviewed hundreds of violent offenders and I continue 90 days I took this test and I was afraid. I was not ready for to do that and I’m really – that’s what I really enjoy. I really college. I was raised on Long Island and I wanted to be a vet. I learn. I mean, I could have been going to high school or col- worked on farms sponsored by Cornell University. lege or whatever, but even as a young kid I always liked to be 13 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 FT: Now, when you say college, do you mean in the Air Force the country. And we had a huge family, an active family of Ma- or do you mean after the Air Force? fia there. We promised a third of those arrest, a third. So we’re going to arrest like 300 people. JD: Even before the Air Force. FT: Right. FT: Okay. JD: We brought in agents from all over the country and we JD: I went to high school as an athlete. But I wanted to be a vet, all hit the doors at the same time. The point is, how I got into I love animals. And Cornell, it was a big vet school. understanding and liking the behavior and trying to figure it out is that, just one fellow I arrested kind of looked like Paul New- FT: Oh yes, still is. man, a young Paul Newman. And I was 26, 27 years old and he was in his early 30s. JD: But then I needed to work on these farms. But when it came time, I did it – all through my summers in high school, FT: Okay. while the other kids were at the beach. I was ready for the big, fat envelope that would be an acceptance to Cornell, but it JD: He had a long rap history for narcotics and gambling and turned out that they said, “No John, your grade point average he was a brilliantly bright guy. So I’m in the backseat with him, is you know – if you would have had a have him handcuffed, his handcuffs are in really strong B, B plus, you could have front, on his lap. There are two agents in made it. But we’d like to recommend you the front seat, so, I’m sitting in the back to another school.” And, “What’s that?” and I said, “Frank, what are you doing? “It was Montana State.” I said, “Mon- Why did you do this?” I mean, it’s just like tana, where in the hell was that, Montana every year you’re getting in, you’re getting State?” Then it was Montana State Col- yourself busted I mean you’re a smart guy lege. Now it’s Montana State University. you went to school, you did pretty good in high school, went to couple of years in col- FT: No kidding. lege.”

JD: So, I went off and, while there, I was FT: Yeah. very immature. I wasn’t ready. I was a late bloomer. I was not ready for that. I JD: “Kid,” he said, “you don’t get it.” And got caught up; I was in a fraternity, I got I said, “What do you mean I don’t get it?” caught up with alcohol, drinking as a mi- It was raining that day and he looks over nor. to the window and he says, “You see those 2 raindrops over here?” And I said, “Yeah, FT: Right. what about them? And he says, “I bet you that the rain drop on the right gets down to JD: And I was working in bars. I was do- the bottom of the glass before the one on ing bouncing work and stuff, so I said, the left. I said, “Okay, okay I’ll bet you.” “Oh, my gosh. My parents are disappointed in me, and that’s So we’re watching those raindrops and Frank’s raindrop beats when I was drafted. And then, I had a choice to go into the mine, he wins and he says, “You get it? You get it now?” And military and that’s why I picked the Air Force and I said, ‘I’ve I said, “So what? You just beat me on a raindrop race what’s got to grow up. I’ve got to get with the program.’ That’s why I the big deal?” ended up getting educational awards from the Air Force. And then I was recruited by this FBI agent and I went back to Quan- FT: Go on. tico, 1970, the youngest agent at 25. JD: And he says, “No man, you don’t get it. John,” he said. FT: Right. “We don’t need a Super Bowl, got it man? We don’t need a super bowl, all we need are two raindrops. We are who we are JD: But, what’s interesting, going back to learning from peo- and you’re not going to change that.” Yeah, and that was just ple, is that when I got to Detroit as my first office, it had over so enlightening, and that’s what I enjoyed—asking questions 800 homicides a year. It was a violent jurisdiction; we couldn’t and learning, and like your young students, just ask questions even drive because the violent snipers and even the firefighters, of people who have expertise in areas. That’s just how you they couldn’t go into certain areas to put out fires. But one of learn. Like what you’re doing here, what made you end up be- the biggest cases occurred on Super Bowl Sunday, I think it coming who you are, and why did you do it? So by listening was 1972. J. Edgar Hoover was alive then, and he wanted us to to him, when I finally got transferred out of Detroit I went to make a thousand arrests of organized crime figures throughout Milwaukee while I continued graduate school at the University 14 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com of Wisconsin in Milwaukee. I picked up a couple of graduate about the crime, the crime scene, some of the behavior, prob- degrees there, but in my spare time I would hang around the ably in my opinion what maybe led up to the individual perpe- medical examiner’s office. Then I wondered about the world trating the crime. So it was like, let me tell you about yourself, of the violent offender. I wondered if it’s the same thing, that and then they look at you like, ‘How does he know all of this that’s who they are and you can’t change them. You hear a lot stuff?’ I had this one guy who was a fugitive and he says you about rehabilitation, probation, and parole. There was no de- can never catch me. You know this guy was an airplane sky- gree program there for this sort of thing so the closest I could jacker, one that got shot, lived, went to prison, a woman sky- come was to become a hostage negotiator. Then after I got my jacked a helicopter trying to get him out of the prison. It was graduate degrees, I was recruited by the behavioral department in Ohio. This guy had been walking as the biggest BS’er in the and they would deliberately call us the Behavioral Science Unit world. He’s a conman, good looking guy, and women would like in the movie Silence of the Lambs, and they didn’t have the fall in love with this guy. So now he’s trying to tell me, “You program. But what I decided to do when I got back there, I was never could catch me, you’ve got to be really good. I know you the youngest instructor at the FBI academy. There were 110 guys, you watch at Christmas time and see if we made contact instructors in all the different areas. I was the youngest of all of with our family, and cards and things like that and gifts.” His those. I was now 32,; although I was good at speaking, I needed name was Garrett Trapnell and he wrote a book, The Fox Is more depth. I was placed in criminal psychology classes. The Crazy Too. So I told him, “You were on a crime spree when problem was the instructors there were telling war stories to you were in your early 20s.” Then he told me, “Yeah.” I said, people I was supposed to be mentoring “And it was right around the time your and they were telling war stories with- dad died,” and he’s looking at me now. out having experiences. So what happens I said, “You’re telling me I can’t, I can’t is some agent would be in class talking catch you, you’re a fugitive. Now, what if about Charles Manson and the next thing I would tell my agents here to go to Ar- you know someone raises their hand and lington Cemetery?” and he looks at me. I’ll be in the back of the room watching. I said, “Your dad is buried in Arlington I’m supposed to be learning from this Cemetery. I’ve been to his grave. So I tell instructor and a hand pops up and say, you Garrett, that if I had agents staking “Hey”, it says, “You’re wrong about your out your dad’s gravesite area in Arlington facts on Manson”, “No, No” the instruc- around Christmas, holidays, on his birth- tor would say, “I’m not wrong.” day, around the day of his death,” and he “I worked the case,” the officer would starts looking at me, he starts shaking his say. “Yeah, your facts are all wrong.” head back and forth. Then he said, “You got me. You got me,” and that was all of FT: In front of classroom students. it. So I laugh and say, “You know Garrett maybe you’re as not smart as you think JD: Oh man this was embarrassing. you are.” But for someone who is just interviewing and doing all those interviews, FT: Oh yeah. that really worked and I developed the expertise by doing the stuff myself. JD: You’re supposed to go up now in front of cops, I know I’m getting the wrong in- FT: Sure. formation. I got to learn it myself. What I would do is we used to go out on two weeks road schools we JD: When I was in Quantico we were affiliated with the Uni- call them. And then after teaching let’s say to about 4 o’clock versity of Virginia and a sociology professor there invited us in the afternoon there’s really not much to do after a while. On down to speak. It was me and another agent, but I pretty much weekends in between the trips we’d say let’s go in to the prison. took over the presentation. It was a 101 sociology class and he Let’s go in there and see and talk to the experts themselves. had about 150-200 students in his class. He introduced us and he sat in the front row, and it was obvious that we were being FT: You had no trouble getting access? set up, that he had his students wanting to ask us questions about an investigation back then called the ABSCAM Scandal JD: No. Because you’ve got the badge, you’ve got the creden- that was an undercover operation down in Louisiana. There was tials. But you know, going back to your students, they could do some mistakes made by the Bureau. But it really, had nothing that. This could be something where bringing someone into a to do with me, I’m a totally different area. So I started talking room and you have a class that goes to where they are, like the about my job, and I say you know how you learn is you learn person that perpetrated the crime. But the kind of questions I by going out, you talk to people, you do individual research, would ask would be like the ones I asked with Manson. I in- you critique other people’s research not like some professors terviewed Manson a couple of times, but I would go interview- who sit back and all they do is write books, but they have no ing knowing everything about the person, knowing everything life experience. They never experience any life experiences at 15 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 all. [chuckles] Meanwhile this guy, this professor, he ends up 16, the guy is in his early 20s. It’s either drug activities, promis- slipping out of the classroom. The class is out to be like a career cuous sex, everyone and all their friends drink heavily, heavy day where the students are loving it and then they’re asking in the drugs scene, the risk level, they’re such high risk all of questions about investigations, what we do, how do you get them to be the victim of a violent crime and it’s hard. I just into the bureau, what’s attributes you think you should have. tell them that I think it’s really hard because there so many Totally, the audience gave us a standing ovation. different things. This could have been a drug deal gone bad, it could’ve been this girl who is only 15 years of age just play- FT: That’s funny. ing around with different guys getting other guys jealous. It’s really difficult to pinpoint and forensically there’s not a whole JD: And I told my partner we had to find this professor, we’re lot. I mean shot at close range, the gun powder residue, I mean not going to let him get away. We hunted him down and we had trace and the hand was trying to block the weapon. It’s really to climb up at some tower at the University of Virginia. We had more, there’s some staging of the crime scene. They did a little to climb these stairs and we trapped him up there and didn’t staging there trying to make it kind of look drug related. really stop because he was embarrassed. I did a book one time, the Crime Classification Manual. A lot of forensic students liked that book too by the way and they FT: Oh, yeah. used it, University of Penn uses it, Boston College uses it.

JD: I told him, “You kind of left sud- FT: Okay denly. We just want to thank you for inviting us here to speak with your stu- JD: It includes forensic stuff in there, dents. I think your students, you will and it breaks it down to four major types find, got a lot out of our presentation. of crimes by motive: personal cause ho- Too bad you had to leave.” [Laughs] micide, criminal enterprise, group cause sexual homicide. And then I do the same FT: Well that’s funny. That’s funny thing on arson cases, the same thing on a and you talked a couple of times about rape case, and so on. the why, the why fueled your curiosity, the why fueled your drive to learn FT: Very interesting

JD: Right. JD: They like it cause it mixes in the forensics, and is based upon some of the fo- FT: I think with most people the why rensic findings to help you in the analysis is very important. Many forensics stu- so you know some of the whys of behavior. dents at the high school or even the For example, we have a case of a woman college level, the why really goes back I use in the presentation. She’s going to be to why it matters to them. You know found in the crawl space under the house. what I mean? The husband comes home, he’s separated from his current wife, but the ex-wife still JD: Why what matters to them? comes over to clean the house and he takes their boy out to the park. He comes home FT: I mean, well, you wanted to know one day and can’t find his wife. The bed- why somebody did something. ding is off the bed; the kitchen drawer where they keep the knives is pulled out. JD: Oh, I get it yeah, because the formula when you look at a The current wife calls the police hysterical, cops come, search case is basically WHY plus HOW equals WHO. And so why all around. Didn’t find anything, they find some drops of blood are those blood splatter wounds in the area, where they are? on the first floor. They looked around outside and they open the What happened? What was the position of the body? crawl space and there she is wrapped in a blanket. Her pants had pulled down to her knees, her panties are still on , and FT: Exactly. she has been stabbed multiple times in the neck. This evidence leads them to find marks that could cause manual strangulation JD: How is it done? Was a knife used or was it a blunt force as well. So when I got the case, I usually get instructions. I did trauma instrument and then and also why this victim? Why? the case. Yeah I knew right away what it was here. So if I was What’s going on, what happens is, like this case I’m doing right talking to your forensic science students, I would say, “Who now for this A&E thing, I mean, it is such a difficult crime, do you think did that kind of thing?” I’ll say the geographical difficult in the standpoint of figuring out motive and really the profile is prioritized in the area: we have some fire setting arson whys of behavior. Because, you have one victim shot in the cases. There’s been burglaries in the area, these are all things eye, a female, and the other one is shot in the neck. The girl is you have to consider in your analysis, and it may throw you off. 16 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com And these are usually things that are going on there. So they seem to miss the obvious and the questions is why? Why plus JD: The kid never saw any of it How equals Who. What’s the big why here? I would tell them and if by the time you don’t get why was the victim moved? FT: Ahhh. Okay. Why was she moved down into the crawl space? JD: I don’t know if you heard about the West Memphis Three. FT: To hide her? FT: Yes. JD: Yes. Hide her and that’s the reason why and it’s kind of from who, he wants to hide her from. JD: In the news?

FT: The husband? FT: Three kids were killed?

JD: The husband did the killing. The husband takes the child JD: Are you familiar with that? to the park. On this day he had to come back into that house for some reason. And he killed her; he can’t leave her there FT: A little bit. because he’s got his son out in his vehicle and he’s got to come back with the son so he’s got to hide the JD: Oh, it’s a great forensic case, let me ex-wife from the son. But he also knows tell you. You can Google it. Three little that she’s going to be found by the po- boys on May 5th 1993 were found in a lice. So he’s going to make this thing bayou, they were naked, and tied with look like a sex crime. their shoe laces from their tennis shoes; So he pulled her jeans down to her they couldn’t even find all the clothing. knees and just leaves the panties up Three teens were targeted by the police, around to the groin, and her head is cov- a 16, 17, and 18 year old. The long and ered, covered over and the cops are right short of it is that the 17 year old by the on top of it. They are too emotional. name of Jessie Misskelley gave a confes- They couldn’t see it, they couldn’t see sion after about a 14 hour interrogation. it. I said this is a personal cause homi- It turns out that they turned the tape re- cide. This is a domestic homicide which corder on for about only 45 minutes. Jes- means the husband did it. The husband sie Misskelley has an IQ of 72. is distraught and the husband did it because why? Why is it necessary to put FT: Really? the victim in the crawl space? Of course he thinks he wants you to believe that JD: So he gives a confession, you can tell it’s a sex crime. It’s not sex crime. He they’re putting words in his mouth even in did this after she was dead, pulled the those 45 minutes. A great video you might pants down. Plus, the evidence is stran- want to see—it’s called Paradise Lost, it’s gulation and some blunt force trauma, with HBO. And it’s great for forensics for which is usually the way these things your students, it would be excellent be- start. Yeah, it turned out to be the hus- cause what will happen here is prosecu- band. It’s just so simple, but you have to kind of look at things tors and the police will say that this was a satanic murder, they from a distance. will bring a so-called expert in from Ohio who got a mail order degree from California Coast University, making him an expert FT: Now how did the guys know that he went back to the on satanic murder. And the judge allows his testimony. house? Was it the son who spilled it? FT: Really? JD: No. Dad came back into the house, he had to bring back his son to the house. Because the ex-wife was cleaning his house; JD: In the courtroom. You would think a forensic pathologist she has custody of the child so he had to bring the child back would know his business when testifying that a knife was used it’s his own house and pass the son off to his ex-wife. to remove skin from the penis of one of the boys named Chris Byers. He said that under the best of conditions he didn’t think FT: Oh, so the kid stayed in the car while he went inside and he could have done it this cleanly, this well. I was brought in killed mom? on the case and that became public just last week, who brought JD: Yeah, that’s right. me into the case and a lot of entertainers are involved. Johnny Depp was involved, Eddie Vedder, Natalie Maines. But I was FT: Oh, okay. brought in with Dr. Baden and Dr. Werners Spitz. Yeah I did 17 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 the behavioral analysis, I can’t think of his name; you would FT: Oh man. Oh yeah. know that the forensics odontologist who did Ted Bundy down in Florida. JD: What they did to these guys 3 weeks ago is they let them out—one was on death row 18 years, and the other two in pris- FT: Dr. Lowell Levine. on serving life sentences. They let them plea an Alford plea, which is weird [Ed, note: JD: Yes, he was brought into this. So I do an analysis, my anal- an Alford plea is where the defendant does not admit guilt, but ysis says that it’s not satanic murder and I did a group analysis agrees to sentencing by a judge to avoid a potentially worse and it’s not satanic, this is a personal cause, homicide, go on sentence if found guilty by a jury. This is sometimes used if and on and on, all are the same. Who’s funding this defense sufficient evidence exists to convince a jury of guilt and the group by the way, that’s what came out, was Peter Jackson of defense is weak.] What the defense was trying to do was to Lord of the Rings. present all this evidence, so you can’t blame them. But you just don’t know, because if you see Paradise Lost you’ll see what FT: Wait, wait, wait. The movie director? a mockery the justice system is down there. There was another one that HBO did they called Paradise Lost Revelations, and JD: He took an interest in this case, and knowing what he knew the third one is out right now, it’s being played in Canada. But and his wife Fran Walsh was a forensic buff herself. They were rather than go through the trial, they were afraid, and that’s behind it. They went and got all the oth- what makes them convicted felons, it still ers. makes them like child killers serving 18 years. And they don’t have any of the free- FT: I see. doms; they can’t get any money from the state for reparations for serving their time. JD: What the doctor said about the But I’m doing a book, which is going to be knife, the serrated knife was used that looking at a lot of cases where they have he couldn’t have done this under the best faulty science used. And the experts. conditions. They sent the materials out, the defense did, and these kids were just FT: Right. I’ve heard that called junk sci- released like three weeks ago. They’re ence. men now. They were convicted; the one got death and the others got life sen- JD: Yes right. Faulty sciences has been tences. It’s forensics. They were trying to used. I’m going to use a case in Texas, a link forensics and a BS defense of satanic guy named Willingham was convicted murder into these kids because they wore of murder, and Perry, the guy running for black and they liked gothic music and all President, he was the governor at that time that. [Ed. note: Willingham’s story was written by David Grann, published in The New FT: Oh my. Yorker, and is reprinted in this issue beginning on page 42]. Right up to the point of JD: So, independently, Mark, different execution he refused to look at the different experts looked at the bite mark and they reports that came in from independent sci- all came to the same conclusion indepen- entists. They said there was faulty science dently: that there were no knifes wounds at all. A knife was not used in analyzing this fire, this arson. And this was an acciden- used in this crime. The cause of death was force trauma and tal file, it was not arson. They went ahead and executed this drowning, and that so called serrated knifework identified by guy. It really worries when you see cases like that or, the West Dr. Peretti was from animal predation, and probably snapping Memphis Three case. We have a case in Virginia, the Norfolk turtles. Four. Four guys were interrogated independently and each of them confessed to a crime that they didn’t do. The detective, FT: No kidding. just this year, was convicted of strong arm tactics which he used in other cases as well. And so I’ll be writing about that JD: In the bayou where these kids were thrown into the water, too and the false confessions. It will be very interesting. If you Dr. Spitz told me that this Dr. Peretti down there, the forensic could show your class Paradise Lost if you haven’t seen it, it’s pathologist, even to this day has still not passed this board ex- there in the movie. I showed it to my younger son and it just aminations. He didn’t pass them in ‘93 when he took it, and frustrating to see what a mockery it was. They allowed cameras he hasn’t passed it yet. Dr. Spitz said you know you could fail in the courtroom. the first time, that’s common because you don’t know what to The second movie, the one with the appeal five years later, expect. but to fail three times or more, that’s bad. which they lost, and they didn’t allow cameras in the courtroom, but everyone is going after one particular father. And my 18 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com analysis said no, it’s not this father; it’s not Chris Byers’s father. But the experts got my analysis in the area of crime or destruc- JD: And a writer, Douglas Preston, wrote about that, and he tion and all this. They said that what John Douglas is talking feared for his life. He thought he was going to be arrested; they about here is, he’s saying it’s personal cause. That means he’s were looking at him as a suspect in the case. That’s a writer. saying to this family this is not a stranger. They went back and they looked at me, “Oh my gosh, the police never interviewed FT: Oh my. a guy by the name of Terry Hobbes, one of the other boys, one of the victim’s father never interviewed him. JD: So, they had nothing to do with it, but she ended up giving a false confession. It’s hard arm tactics, but they knew their FT: Seriously? prosecutor. The prosecutors over there get heavily involved with the investigations. They put teams of interrogators togeth- JD: And it turned out, that Terry Hobbes had a criminal history, er that would interrogate her for days without a break at all. a violent criminal history, and DNA that was never analyzed after all these years. The defense analyzed it and they find his FT: Now, over there, can she ask for a lawyer? head hair that you could say is transference to his own stepson who was murdered. Hobbes’s head hair was found under a liga- JD: No, no, and just like in these other cases too they just break ture of one of the other boys. them down, they break them down. You think that they’re going to be helpful, and then they turned. FT: No kidding. In her case she hardly can speak Italian. They broke her down where she ended JD: After all these years, yeah. I mean up confessing that she was in there and at the very least when I went down there there was this black guy because the and spoke to Little Rock Law School cops knew there had to be a black guy with these defense people. At the very because they saw a Negroid hair. Where least, the cops should have focused on does the black guy came in? So okay, this individual back there, but the case we got Amanda we have Rafael the boy- was highly biased by the media just like friend, and she works for a black guy the Amanda Knox case. in this restaurant. It was probably him. Through interrogation tactics, they led FT: Oh yes, right. her to confess that it’s her boss. And the boss, her, and her boyfriend are doing JD: I’m involved with that case. Amanda some crazy demonic sex exercise crime Knox; she’s innocent. She had nothing there, and so now she’s a liar. So even to do with it. I said that a year ago. I’d though she recants her testimony to use be addressing that one in the book too, it in court, people don’t understand how but its just overzealous prosecutors and people can break down. faulty handling of forensic evidence. FT: Wow. FT: Can you comment on what you think happened in the Amanda Knox case? JD: That’s two crimes that the defen- dants had nothing to do with it. Pencil JD: Yeah. The victim, Meredith Kercher, was murdered and Park jogging case some years ago. The cops in New York City tortured. She was murdered by Rudy Guede, this black guy; his broke down a bunch of teens. African-American teens broken DNA was all over the place. He sat on the toilet, went to the down in the interrogation, all confessing to the rape. And the bathroom, he didn’t flush it, we have bloody prints, we have woman was beaten into a coma so she couldn’t remember any- footprints, we have semen, she was raped. Even though Aman- thing, and when she came out in the coma these guys are in jail da lived in that same house with the victim and another girl, for a couple of years. Finally, lo and behold, DNA identifies none of it was forensically there of hers or her boyfriend, this a guy who actually did the rape and he was serving time in Rafael Socelito. There’s nothing at all, there’s nothing forensi- prison. cally, and the prosecutor was under indictment during the trial for misuse of his office, misuse of wire taps on another case. FT: Oh geez. Well let me ask you, I mean along these lines, what do you think of the CSI effect? FT: Oh good. JD: On the influence of jurors or everything? JD: It was, the Monster of Florence case over in Italy. FT: Yes, the jurors want more evidence because what they’ve FT: I remember, in Perugia. seen in TV. 19 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 JD: Everyone is expecting a magic bullet. Everyone is think- you got out of the Air Force and said, ‘Geez, I’ve got to get my ing, where’s the DNA? So what happens is it’s really hurt pros- butt in gear’ and you’re very inquisitive and you want to know ecutors because prosecutors now have to run the screening. why things happen, put things together, so I’m guessing you ‘Anybody here watch CSI or Criminal Minds?’ or whatever, like puzzles. and what do you think of the shows? And you have to explain to them that in not every case will you find DNA evidence, JD: Yeah. Right, I like that kind of stuff. or blood evidence, or whatever. It could be circumstantial evidence. FT: What advice do you have for teachers, current forensic teachers who have high school kids, maybe taking it as a sci- FT: Right. ence class, maybe taking it as an elective, to keep their kids interest or make it something extra special that they’re students JD: Eye witness testimonies, different things. It does have an would really look forward to? effect, like I said when we first started, it has such an effect that I’m getting ready to do a pilot, and the cable television thing JD: They have to bring in reality, they have to bring in real kind said it’s just like it is on television, trying to make reality like of experiences. Teachers are the ones who have to get the expe- a fictional show. rience. They have to broaden their experiences too. Rather than just be, you know, taught at some Universi- FT: Right. ty like I said earlier, publishing a bunch of books, they have to share their experienc- JD: But it’s not the way it works. es, they have whether its through traveling, through their work. You know we’ve all FT: Have you ever seen the TV show taken classes, where, oh, my gosh, teachers The First 48? are so dull. Then all of a sudden you bring in somebody and, oh my gosh this person JD: Oh yeah. I was doing an interview has actually done the things he’s talking in prison. I was interviewing Doug about here, whether it’s history, he or she Hardy in Ohio; he killed over 70 hos- has traveled to these different areas. Or pital patients. And when I was finished science: he’s experimented; he’s trying to with him. They said the Cincinatti po- get it patented. It’s just to try to bring some lice wanted me to take a look at the case reality, some hands on, and if they don’t and they got The First 48 working with have it bring in people who do. If you’re them. Okay it’s a long way to go but I talking forensic science every one of your don’t know if I can help them or any- subscribers of your magazine should look thing. inside the telephone book under the FBI. And every FBI office has someone there, a FT: Okay. spokesperson, who can come to classes and talk about the bureau, talk about not just JD: So I go there, this is the case, and what it is that makes people a FBI agent, then I sat down and I could actually but all different areas, the forensic sciences help them out on the case. But what’s or justice areas. Just whatever specialties kind of funny to me was that the camera crews, there are differ- that the class will be interested in because I did that when I was ent cities throughout the country, and they give the impression a street agent, out in the field. like a ticking clock 48 hours. I told these guys, “What’s the First 48? We’re talking, months here?” And they laughed and FT: Cool. said that’s about it, because they had all these cameras there and they had these ticking clocks. It doesn’t all happen in 48 JD: You know there are tons of different speakers from Quan- hours, but you know some say in law enforcement that they tico to Washington DC or a field office. Even in Delaware, you havetil 48 hours until the case gets cold and you really have to go into Delaware and Wilmington, there are people in that of- develop it. And those first two days you know first 48 hours. fice that have expertise in various areas; we have evidence re- The impression is like you can get these things signed, sealed, sponse teams now. and delivered in 48 hours. [chuckles] It’s ridiculous. I mean I like to watch the show, but as far as the time, I don’t get it. FT: Nice.

FT: Oh that is funny. Well listen, let me just turn this a little bit JD: And every one of our FBI field offices can talk to the kids more towards the classroom and what you said about learning. about how they work their jobs, how they go out, how they col- You sound like someone who is very self motivated because lect evidence, how they preserve evidence. 20 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com FT: Oh that’s great. At the beginning of every year I put out a little survey to my students and ask why they were taking the FT: Absolutely. course, what most interested them, and if they were, in any way, connected with anyone in law enforcement that we could use as JD: Federal. I mean, geez. If they, teachers, could take a case a possible guest speaker. And I was very fortunate because we in the local newspapers, and you have a prosecutor to prosecute hosted a arson investigator, a judge, and a crime scene techni- the case and, and with the forensics we use to implicate and cian among, other people. I hear what you’re saying and it was convict the subject, contact them. You know, maybe what they great because it was a break from me, and the kids loved when should do is pick some of the students in class and see where an expert walked into the room. their daddies and mommies are, and tap in. “You know Mrs. So-and-so, your son Tommy here in our class he talked about JD: Yeah. I mean, I was doing some research to get some cred- your job, you know. Would you mind coming in and talking ibility, really. In the research it was Dr. Anne Burgess who co- about your position within—.” I mean they have like career authored the crime classification with me and another book, day but we want to live more scientific. We want to be more Special Homicide Patterns. And she had a class in personal educational. violence up at Boston College and University of Penn. What she does is she just brings in a line-up of guess speakers in FT: Right. That was my approach. different areas. I mean, just look at arson. Go to the fire department. The fire marshal, the people on a JD: Or how do you become whatever. state level who investigate arson. FT: Sure. FT: Absolutely. JD: You can do it. You can really learn JD: You can get them to talk about in- from these kids. I know because I vestigations, collection of evidence, what got suckered into a lot of these things they look for, how they detect arson ver- [Laughs], but every time I do it I enjoy it. sus an accidental fire. They’ll do it’s great If I go out now people ask me about the community relations. It’s great for them. career of profiling. We all like to do it and it’s there so, I mean, you can go for about like 2 hours. FT: Oh yeah. I mean, you could beat Billy Graham up there. That’s allowed. People didn’t nod JD: It’s in every major office so— off. We used to go out in teams and we’d take turns teaching so they can hear a dif- FT: Right. ferent voice, different personality. JD: Delaware would certainly have one. FT: Yeah. FT: Now, do people often kid you about JD: But what really changed me as an that since you’re a profiler, and you’ve instructor is when I was motivating, self- spent many, many years studying indi- generating. I had to accelerate my learn- viduals and— ing. The only way I could do that was to dive into this field. And I would be the guy now who’d be JD: I know what you’re going to say. Am I profiling you or saying, “Did anyone here work the Manson case?” And they’d some of them? raise hands as well. And I’d say, “Let me tell you something about Manson. This is what I learned from Manson.” They’re FT: No. Do you have trouble getting into a poker game? all ears. It’s so hard to gain respect from law enforcement officers because they were very, you know, dubious, typically for JD: Oh no. I never even play cards. I like to watch, I like the FBI and they’re police. But the kids, I know me as a kid. to watch people, you know, playing and trying to, figure out If you can have someone in a college class, if you can bring through body language what’s going on. in speakers with specialties in certain areas… And they’re out there. Like for example, I found even hazmat workers with the FT: Yeah. fire department, you know. JD: I thought you’re going to ask, “Are you profiling me right FT: Yeah. now?”

JD: And then they have arson experts in the department, even FT: [Laughs] in a local level, or at state level. 21 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 JD: No, no, don’t flatter yourself. I’m not profiling you. I said, FT: Oh yes. “Criminals are profilers and they can pick up weaknesses and they can see a vulnerable child or person in a vulnerable situa- JD: She gets after those other teachers who, who don’t see the tion, in a family situation. These predators can see what needs full picture of why this child is doing the things they are doing of that child are not being fulfilled. or behaving, and she can end up seeing the life where this child is coming from. FT: Right. FT: Yes. JD: Or a woman who just broke up with a boyfriend, or her husband divorced her. I had these guys tell me they could walk JD: Where these kids maybe don’t want to go home if the best into a bar and they could spot her and see by just her body part of the day is going to school. language and her posture, how they hold their drink and their head, like they’re down, like they’ve been broken. FT: I had some of those kids.

FT: Yeah. JD: That’s their life.

JD: They move in like the charming white knight on the white FT: Yup. horse. JD: And they have to go back home where FT: Do you know who else are excellent there’s the domestic violence, even having profilers? two parents they’re lucky.

JD: Who’s that? FT: Yes.

FT: Students. High School students have JD: And these kids they’ve always loved done nothing for the past 18 years but fig- her and she’s been around some tough, ure out how to make life easy for them- tough kids too, and they really respect her. selves. But she knows, because she was raised in Detroit, a tough city, and she goes places JD: Yeah. You’re, you’re right. like Fredricksburg, Virginia and some of these teachers, they just have no patience FT: So the first time they see – with these kids. They are not taking time to really do a personal assessment. JD: And profiling teachers. Yeah, for sure. You’re right. I was one of them. You pro- FT: Oh yeah. file, you find out about Mr. So-and-so. JD: And I was doing, you know, just like FT: Right. I mean if you, as a teacher, the programs that the state makes you do, stand up in front of the class for the first you know. They have that certain scores time, they’re eyeing you up. If you don’t and, and it’s like everyone has to be taught believe 100% that this classroom is yours, the same way and be on the same page at and this is where you belong, they smell that. And they can the same time and – sense even 1% uncertainty. FT: Oh yes. I hate that. JD: Yeah. That’s why substitutes go in there with their head down not even looking forward to that yet. My wife’s a school JD: And that’s what really screwed me up because I was be- teacher. She got her 30 year pin the other day. hind maturity-wise or certainly brain washed. It took a while for me to get going. I end up getting a Doctorate degree, but FT: Wow. when I applied to Cornell University I was rejected. What was so fascinating was that four years ago they invited me to speak JD: And she has 8 more years from when she was in Detroit there. that they didn’t count. So, she runs a reading program and she’s working in a State school from Detroit and Milwaukee. FT: Really?

FT: Cool. JD: At a thousand people in the audience and I told them they didn’t have any idea that they rejected me in the 1960s because JD: But she’s pretty darn good in profiling the children. 22 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com I wasn’t good enough. Forensic News (continued from p. 3)

FT: Oh yeah. Texas Nixes Last Meal Requests

JD: And I said, “I would have done this presentation for free, After a condemned man ordered a massive last meal and but you sent me off to Montana State because I wasn’t good then refused to eat any of it, Texas senator John Whitmire called enough.” for, and obtained, a ban on last meal requests for any more prisoners. He called the practice, “a privilege which the perpetrator FT: did not provide to their victim.” Instead, all last meals will now [Laughs] consist of exactly what the rest of the prison is eating that day. Ironically, Jim Harrington of the Texas Civil Rights Project, and JD: I was not good enough for this place and I published a Brian Evans of Amnesty International agreed with the decision, dozen books. I mean, I have a doctorate degree now and I bust- noting that on the eve of taking a man’s life, the state pretends ed their chops. But they were right in a way. I really wasn’t compassion for the condemned and makes a pre-consolatory gesture of food before it murders the inmate. ready for Cornell; I would have bombed. And I wasn’t ready for Montana. I wasn’t ready until it hit me in the face: ‘My God, I’m going to be going down in the service for four years. When I get out I’ll have nothing. I got to accelerate my educa- How Reliable Are Eyewitnesses? tion. I got to get that foundation under me which I did. When Troy Davis was executed in September, 2011, his FT: Good. death reignited a debate over how much credibility courts should give to eye witness testimony. Davis was convicted JD: I want to subscribe to your magazine. I got and I saw your because bystanders said they saw him shoot a police officer. website. This is really interesting. I know Dr. Henry Lee. You Dorothy Ferrell identified Davis as the shooter during the interviewed him. And you did Kathy Reichs? 1991 trial, but nine years later signed an affidavit saying she didn’t actually see the murder of off-duty cop Mark MacPhail. FT: Yes. She said police wanted her to point at someone and she did. In August, 2011, New Jersey made it easier for a JD: Yes, she was, she was with the same publisher that I was defendant to challenge an eyewitness’s claims in pre-trial with one time, Scribners. She has great practical experience. motions. It also requires judges to speak to juries about some of the problems with eyewitnesses’ credibility. FT: Oh my, yes. “Eyewitness testimony is horribly inaccurate,” said Rob Warden, director of the Chicago-based Center on Wrongful JD: And she writes well too because she can relate it. Convictions at Northwestern University. His group analyzed death penalty convictions of people who were later exonerated FT: Oh yeah. by other evidence and found the wrongful conviction rate to be about 23%. JD: Also, I belong to American College of Forensic Examin- Researchers have found erroneous eyewitness picks ers. I think even undergraduate students can join it. They have of suspects declined when police didn’t pressure a witness, a very good glossy magazine they put out 3 or 4 times a year. when witnesses viewed photos one at a time rather than in a It’s really a chock full of good forensic articles. group, and when the officer working the case doesn’t know which man is the suspect to avoid accidentally influencing the FT: Cool. Well, listen John; it’s been a real pleasure talking to witness. you.

JD: Likewise Mark. Yeah. I enjoyed it.

FT: And I want to say thanks again.

JD: Oh. Thank you.

23 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Setting the Stage Welcoming students to your classroom is important. How you do so, especially with a subject as graphic as forensics, can really set the tone for what’s to come. Some our readers were kind enough to show us how they’ve decorated their rooms.

Elizabeth Beks

I wanted to greet students with a bulletin board outside my classroom. Being not very artistically inclined, I struggled with it. I had the idea that stick figures would be interesting and not too graphic. Sadly, my stick figures weren’t very impressive, but our physics teacher is a stick figure genius and came to my rescue in creating this stick figure crime scene! The labels are evidence types that we will be processing during the course. They also redid the lighting in our school this year and suddenly my formerly dimly lit, cave of a door needed decoration! A former Forensics student came up with this. The tape is hazard tape (so it peels off without messing up the paint) and the footprints are all prints lifted off our shoes during a footprint lifting lab. They go completely around the door and down the other side.

24 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Brian Bollone As students arrive on the first day of class I have a T-shirt up at the front of the classroom overhanging the marker board with the phrase “Locard’s Exchange Principle” written next to it. Most students just ignore the shirt as they make their way to a desk talking to classmates. However, as soon as class starts, I begin with a discussion of Locard’s Exchange Principle. Using the T-shirt and other examples (pictures of crime scenes) students quickly identify evidence which may be of value to a criminal investigation that was left and/or carried away. At the end of class I ask the following: I need five or six students to volunteer to wear a (new) T-shirt and be willing to wear it for 2-hours prior to our NEXT class. As payment for helping in this laboratory, the student will earn 10 points extra credit. In addition, any student who volunteers to wear the T-shirt must record their movements during the day on a 3 x 5 index card, and describe the location and the people, animals, and activities they encounter. At the end of the 2-hours, the T-shirt needs to be sealed in a zip-top bag and brought to class. At the end of class, student volunteers pick up a T-shirt prepackaged in a zip lock bag with the activity directions above. The following day, after reviewing Locard’s Exchange Principle, students are given the following directions: 1. Cover the laboratory bench top with paper to inhibit contamination. 2. Lay the T-shirt flat on the bench top. 3. Using a hand lens and forceps, scan the shirt for Mark Feil any hairs or fibers and remove using the forceps. Place the hairs and fibers you find inside a small I used an overhead projector and tempera paint to place envelop. Take special care around the collar a six-foot fingerprint on one of my cabinets. It’s huge and the area. first thing students see when they walk into the room. 4. Turn the shirt over and repeat this process. I also bought two pairs of shoes from Goodwill, sneakers 5. Examine the fibers and hairs and hypothesis for a young girl and workboots for a man. I made footprints what source they came from based on the coming in from the window for the girl on the wall, and movements provided on the note card. (Hint: the man’s started on the wall on the other side of the room. Look by the neck of the shirt.) Looking at the prints one can see the man start running 6. Share your finding with another group next to toward the girl, the girl trying to flee, and then red paint you. Try to identify which hairs/fibers came where they meet. Finally, after much scuffling, an observer from specific sources during the individual’s can see the workboots, now tracking red, go to the window movements and/or contacts. and escape. The workboots are left on top of the cabinet in case I’ve attached a picture of the shirt, which hangs at the someone wonders what made the matching prints. The girls’s front of my classroom for the entire school year...a constant shoes hang from a tack in the laces where she was attacked. reminder of Locard’s Exchange Principle. The scenario sounds straight-forward, but it’s interesting to listen to students try to make their theories fit the evidence.

25 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 The Work of an Innocence Project

By Michael F. Cromett, J.D., Susan M. Thurston Myster, Ph.D.

nnocence projects identify people who, despite being Almost everyone would agree that it is wrong to put a found guilty in court and having their convictions person to death or in prison for something they actually didn’t Iaffirmed on appeal, may be actually innocent of the do, something for which they are “actually innocent.” That crimes for which they were convicted. Innocence projects has been an accepted tenet of our criminal justice system try to exonerate these actually innocent people. Innocence since time immemorial, exemplified by the familiar adage projects have also examined the trials of people who have “it is better to let ten guilty men go free than to convict one been exonerated to understand how the conviction of actually innocent man.” Early in the twentieth century, however, innocent people resulted. Armed with that knowledge, scholars and authors began to question whether innocent innocence projects seek to prevent further wrongful persons were being convicted in American courts and convictions through education about the factors which published a number of landmark books arguing that they contribute to the conviction of actually innocent persons and were: Convicting the Innocent (1932), edited by Yale Law through proposals to improve systemic safeguards against School Professor Edwin M. Borchard; The Court of Last wrongful conviction. Resort (1952), by Erle Stanley Gardner; The Death Penalty This article attempts to open—or hopefully expand—a in America (1964), by Hugo Adam Bedau; and, In Spite of dialogue between innocence projects and the forensic science Innocence: Erroneous Convictions in Capital Cases (1992), community; an important, though often neglected, participant by Michael L. Radelet, Hugo Adam Bedau, and Constance E. in the criminal justice system. Two members of the Board of Putnam. Directors of the Innocence Project of Minnesota, a lawyer Despite such scholarly studies, there were few cases in and a forensic anthropologist, will provide an overview which everyone agreed that the person convicted was actually of the background of innocence projects, general factors innocent of the crime. Traditional investigation techniques identified as contributing most significantly to the conviction had occasionally resulted in exoneration of a wrongfully of innocent persons, and the initiatives for systemic change— convicted person, but still left questions about whether focusing on the role science played in wrongful conviction. the person’s innocence was really established. Cases of It is hoped that through this article, forensic scientists and agreement, where the convicted person had been in a prison or others will be encouraged to become involved in the effort to a jail when the murder was committed, or where the “murder prevent wrongful convictions by contributing their ideas to victim” turned up alive after conviction and sentencing, were the discussion and assisting in developing and implementing written off by some as isolated mistakes that were bound to the necessary changes. 26 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com happen occasionally. On the broader question, there remained non-forensic initiatives undertaken to change criminal justice sharp disagreement and little definitive evidence to convince processes, which are already in place in some jurisdictions, skeptics that actually innocent people had been convicted in involve police interrogations and eyewitness identification courts in the United States on a larger scale. procedures. In the 1980s, science delivered the prosecution a Despite the difficulty in understanding why an innocent powerful new tool, DNA testing, which could link a specific person would confess to something they didn’t do, especially person to a crime by analyzing bodily materials or fluids something as serious as rape or murder, the post mortem from a victim or a suspect. By the late 1980s, DNA testing showed it happened in 22% (Scheck et al. 2000; 26.92% began to be used by defense attorneys as a means of proving in the first 130 exonerations in Scheck et al. 2003) of that a person convicted of a rape or murder did not commit exoneration cases. An innocence project initiative to require that crime. This post-conviction use of DNA analysis altered recording police interrogations and “confessions” is being the wrongful conviction debate forever by providing proof pursued in an effort to decrease false confessions. positive that actually innocent people had been convicted in Eyewitness identification, often thought of as the gold American criminal courts. In the years 1989, 1990, and 1991, standard of a criminal prosecution requiring proof beyond a there were a total of five exonerations. reasonable doubt, played a role in convicting the innocent in In the early 1990s, Barry Scheck and Peter Neufeld, two 81% of the first 72 exonerations (Scheck et al. 2000; 77.69% lawyers already familiar with DNA analysis, believed that in the first 130 exonerations in Scheck et al. 2003), with five there were many actually innocent persons who had been cases involving three or more mistaken eyewitnesses! (For wrongly convicted and realized that a coordinated effort, an more information on psychological studies of eyewitness “innocence project,” was necessary to address the depth and identification, see, e.g., Gary Wells, Ph.D., Iowa State national scope of the problem they perceived. They founded University, www.psychology.iastate.edu/faculty/gwells/ the first “innocence project” in conjunction with Cardozo homepage.htm.) Wells and his associates have established Law School in New York, and began reviewing cases and that an innocence project initiative to make relatively minor assisting inmates from across the country who claimed they changes to the common police procedure of displaying were actually innocent. The story of the “Innocence Project,” photographs to witnesses—to use a double blind, sequential and the stories of some of the innocent people whose lives display process and to control the information given to the had been tragically affected by wrongful conviction, are witness—could dramatically reduce the number of mistaken recounted in Actual Innocence: Five Days to Execution and identifications, without a reduction in accurate identifications. Other Dispatches from the Wrongly Convicted (2000) by Jim Dwyer, Peter Neufeld, and Barry Scheck and in an updated Wrongful Conviction and Forensic Science edition, entitled When Justice Goes Wrong and How To Make It Right (2003). As of September 17, 2005, the Innocence Documenting and understanding the role scientific Project has documented that 162 actually innocent people, evidence and forensic scientists have played in cases convicted and sentenced to death or long prison terms for of wrongful conviction is currently ongoing. To date, a crimes they did not commit, had been exonerated since 1989 systematic review by individuals with scientific expertise of (http://www.innocenceproject.org/). all cases of wrongful conviction and exoneration to clarify and identify the forensic science-based factors has not been Factors Responsible for Wrongful Conviction done. General overviews have been published, however, that provide insight into the role forensic science evidence and Through a “post mortem” of individual cases in the testimony have played in smaller subsets of cases of wrongful first 74 exonerations, Dwyer, Neufeld, and Scheck (2000) conviction (Conners et al. 1996; Gross et al. 2005; http:// identified many factors that contributed to the wrongful www.innocenceproject.org/, and Saks and Koehler 2005). convictions of actually innocent persons (Table 1). Mistaken Conners et al. provide the most detail when summarizing eyewitness identifications, police misconduct, prosecutorial common attributes of evidence presented during and after misconduct, bad lawyering by defense counsel, false trial for 28 cases. Several case examples are presented testimony of jailhouse snitches and informants, false when discussing the use of forensic evidence and alleged confessions, and bad science are some of the factors that have misconduct and malfeasance by the government (1996:15– been identified as central to wrongful conviction. Because the 18). Behaviors significant to the wrongful conviction include same techniques and types of evidence that had resulted in the perjured testimony (i.e., about qualifications), exaggerating conviction of the innocent people were being used to obtain results, misrepresenting results as conclusive when they were convictions every day in courtrooms across the country, the inconclusive, changing laboratory records, and manufacturing implications of their findings were clear: actually innocent evidence. To be sure, the focus of these studies is not the role people were being wrongfully convicted on a large scale. of forensic science in wrongful conviction. Criteria used to With this knowledge, the Innocence Project, and other classify types of forensic science error or misconduct are not similar organizations like the Innocence Project of Minnesota, defined in most of these studies, however, and it is clear that a has been pursuing initiatives to bring about systemic changes to the criminal justice process to decrease the chance of wrongful conviction of an actually innocent person. Two 27 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 theory, and calculation of error rates. A review of the case summaries of exonerees featured on the Innocence Project, New York website (http://www. innocenceproject.org), identifies several cases that illustrate misinterpretation of results and presentation of inaccurate statistics. Josiah Sutton was convicted in 1999 for a rape that occurred in Texas. Among other errors, an analyst from the Houston Police Department Crime Laboratory testified that Sutton’s DNA was an exact match with the DNA found on the victim and that only one person in 694,000 could have been the donor of the semen. Re-examination of the evidence concluded that Table 1: Factors Leading to Wrongful Sutton could not have deposited the sperm and, statistically, 1 in 16 black men share Convictions in 74 U.S. Cases. (Schecket the reported DNA profile. Mr. Sutton, a teenager at the time al. 2000) of his conviction and incarceration, was released in 2004 after more systematic and thorough review to better understand and serving 4.5 years in prison. An investigation of the Houston ultimately remedy undeniable problems in forensic science as crime lab identified serious problems, including insufficiently it is practiced in the United States is needed. trained and poorly educated staff, and laboratory conditions Personnel from the Innocence Project (based in that resulted in contamination of evidence. New York) identified 25 cases in which forensic science Suppression of Evidence and/or Exculpatory Results and scientists played a contributing role in the wrongful occurred in 7 of the 25 cases and refers to instances where conviction of the first 82 exonerees. Frequency data for examiners failed to report or make available to legal counsel, each of the forensic science-based factors identified and test results that are inconclusive or exclude the defendant. The categorized for the 25 cases (of the first 82 exonerations) are re-investigation of the Gilbert Alejandro case that led to his presented in Table 2. Key forensic science factors in wrongful release in 1999, illustrates this factor. Alejandro was convicted conviction include, in order of frequency of occurrence, in 1990 of aggravated sexual assault in Ulvade County, Texas. Misinterpretation (11/25 cases, 44%), Statistical Exaggeration During the trial, the analyst who conducted the DNA testing (10/25 cases, 40%), Suppression of Evidence and/or testified that Alejandro, and no one else, was identified as the Exculpatory Results (7/ 25 cases, 28%), Falsified Results source of the semen on the victim’s clothing. Upon review, (7/25 cases, 28%), Falsified Credentials (5/25 cases, 20 %), a DNA analyst from Bexar County reported that the test the Contamination (5/25 cases, 20 %), Testified to Tests Never original analyst, the notorious Fred Zain, testified about was Conducted (4/25 cases, 16 %), and Other (2/25 cases, 8 %) actually inconclusive and that two previous DNA tests had (http://www.innocenceproject.org). yielded results that excluded Alejandro. It was reported that Misinterpretation and Statistical Exaggeration are the two Zain knew of these results and failed to inform the defense most significant forensic science-based factors contributing to that Mr. Alejandro had been excluded as the donor. wrongful conviction in the 25 cases and are both frequently There are numerous other examples that clearly present in identified cases. Examples of misinterpretation illustrate the significant and devastating role forensic include analyst misinterpretation of test results, science and forensic scientists have played in wrongfully misrepresentation or lack of understanding of the limitations convicting innocent people (see Connors et al. 1996, www. and scope of a particular forensic science discipline, and innocenceproject.org). The question becomes, given what we confusion over the validity of the result, i.e., indicating know about what went wrong in cases of wrongful conviction contamination or accuracy. Statistical Exaggeration includes and recognizing that there is more to learn, how do we move and reflects a lack of understanding of statistics, probability 28 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com forward? How do we as members of the forensic sciences education programs and develop criteria and procedures for community remedy these errors and reduce/prevent wrongful accreditation; FEPAC is into their third year as an accrediting conviction from occurring in the future? Within the forensic commission. Accreditation cannot ensure that individuals science community, areas highlighted for reform are identified will not make mistakes in the future but it goes a long way on three levels: the individual scientist, the crime laboratory, to building consensus about what is the best course of and the various forensic science disciplines themselves. study to prepare for a career in the forensic sciences. Also important, on the individual scientist level, is the role of board Recommended Remedies certification in development and maintenance of professional credentials. Most forensic science disciplines offer the On the individual level, attention must be directed to how opportunity for certification. The certification process for students are prepared for a career in the forensic sciences. each, however, is different. As a community we must consider What should the educational and experiential requirements what the significance of board certification is. Should it be be for future forensic scientists? How many courses in the a pre-requisite to expert testimony, the end of a training natural sciences, the social sciences, statistics, and law, period? Again, achieving board certification does not ensure for example should be required? In response to a National that mistakes won’t be made in the future, but it does require Institute of Justice sponsored assessment of current needs the applicant to be current inthe literature and methods and and conditions of forensic science in the United States, a techniques practiced. Technical Working Group on Forensic Science Education On the agency level, Scheck et al. (2003:351-362) present (TWGED) was formed and presented recommended several recommendations to reduce the frequency of wrongful standards for undergraduate and graduate forensic science convictions. Many of the recommendations center on education programs, including curriculum, faculty, graduation reducing misconduct by the agency and individual examiners. requirements, as well as a mechanism by which existing and Required laboratory accreditation is high on the list of new programs could be evaluated. The Forensic Science recommendations. Achieving and maintaining accreditation Education Program Accreditation Commission (FEPAC) addresses such issues as the existence of standard operating was formed to evaluate the quality of forensic science procedures, protocols, and laboratory procedures to ensure high quality performance of instrumentation and personnel and accuracy of results and conclusions through proficiency testing (including blind), validation studies, hiring practices, and other quality control and quality assurance processes. Additionally, it is recommended that crime laboratories be subjected to regulatory oversight via independent panels that are empowered with actual regulatory authority. At the discipline level, forensic scientists must work toward establishing the scientific validity of each discipline and the techniques utilized under the standards defined by Supreme Court rulings to reduce the admissibility of junk or fraudulent science. Recent challenges to the Table 2: Forensic Science Factors validity of, for example, fingerprint examination, document Contributing to Wrongful Convictions examination, and other forensic sciences have encouraged in 25 of the first 82 cases of exoneration and resulted in a flurry of research directed at assessing (modified from www.innocenceproject.org; the evidentiary potential of various categories of physical September 2005) evidence, determining error rates, and evaluating reliability. Innocence Project (Continued on p. 66) 29 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Forensics Using in Details to Another Teach Light Forensics

By Ricky Pelazzo

n any endeavor, the devil is in the details. Taking a trip to students might wonder what a cheque (check) is in this age of the beach? Going to a conference? Hosting a yard sale? electronic payments and MAC cards, but the beauty about this All start out with the best of intentions, but if you forget activity is the deeper one looks at the details, the deeper one oneI tiny component you’ve got a basket of hassle on your can sink into the story. hands. Ask anyone in the above scenarios who’s forgotten We wanted to reprint “Ordeal by Cheque” by Wurther suntan lotion, a pen, or small bills for change respectively Crue in this issue of The Forensic Teacher Magazine, how important one little thing can be and you’ll get an earful. but the licensing fee was prohibitively high. However, And details are one of the best things about forensics. U. S. copyright law allows you to make reproductions of Every discipline looks for things left untouched by every copyrighted materials for educational uses. We came across other. Bullet striations, hair donor species or race, scarring at the piece by accident after a Google search for the article the ends of long bones, blood droplet impact angles, instar revealed it is widely available as a PDF. stages, and many other tiny things make our deductive juices However, it was cited in Content area reading: Literacy flow, especially in a classroom where students are learning and learning across the curriculum (6th ed.), 1999 by Vacca, about multiple specialties. And one area where details are R. T., & Vacca J. L. (1999). If you have a copy in your school everything especially is questioned documents. please see the above note about making copies for your Wurther Crue wrote a short story in 1932 called, “Ordeal classroom. by Cheque,” in which he told the story of a man’s life, but “Ordeal by Cheque” a great way for students to work in he didn’t use a narrative. Instead, he used cancelled checks, small groups and create lively discussions, especially if the 33 in all, sorted chronologically. Starting in the year 1903 groups are allowed to share and challenge others’ narrative. and continuing through 1931, a number of details become You’ll be glad you did. evident about Lawrence Exeter, the man signing the checks. By paying close attention to the date, amount, and recipient of each check a narrative emerges about Mr. Exeter’s life. In addition, the signature bears keeping in mind as Mr. Exeter ages and events cause him to alter what he signs. The reader may ask themselves if Mr. Exeter really did all the signing. It’s a neat exercise with many interpretations. The end of the story is tied up neatly if the reader pays attention to the details mentioned above, but it is the diversions, twists, and a few mysterious payments that make this a great addition to the questioned documents unit of any forensics course. Your 30 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Using Details to Teach Forensics

31 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Qualifying the Expert Witness: A Practical Voir Dire

By Gil VOIRI. Sapir, JD, MSC DIRE

awyers rarely do more than minimally review the Categories Of Expert Witness qualifications of the expert and verify the facts on Lwhich the expert conclusions are based.1 The voir dire An expert may be used in basically two different examination is typically based upon perfunctory questioning capacities —consultation or for testimony. Consulting and about institutional affiliation and publications. The reason testimonial witnesses are the basis for expert witnesses. They for this limited inquiry is simple: most lawyers and judges are derived from five general categories of expertise. lack the adequate scientific background to argue or decide the admissibility of expert testimony.1 1. Lay people: common sense and life long This article will briefly discuss the basic practical experience. principles of qualifying a witness for expert testimony. An 2. Technician/examiner: limited and understandable, realistic theory and utilitarian method for concentrated training, applies known techniques, expert witness voir dire is provided. The sample voir dire works in a system and taught with the system questionnaire constructed to obtain that objective2,3— get the [e.g., investigator and supervisors (observers and witness qualified. viewers)]. The technician is generally taught to use complex instruments (gas chromatographer, infrared Basis And Function Of Expert Witness spectrophotometer, mass spectrophotometer) or even “simple” breath alcohol testing equipment The expert witness’ existence is created and perpetuated as “bench operators,” who have only a superficial by the legal system. But for the Rules of Evidence, consulting understanding of what the instrument really and testimonial evidence would not exist. A simplified does, and how the readout is generated. “Bench restatement of Federal Rules 701–706 (Figure 1) is that operators,” who qualify as expert witnesses, are a qualified expert may give his opinion to help the court not competent to explain the instrumentation used understand evidence, or to establish a fact in issue. States that unless it is established that they received the training have not adopted the Federal Rules of Evidence generally and education necessary to impart a thorough have similar rules or statutes governing expert witness understanding of the underlying theories.4 qualifications and testimony. 3. Practitioner: material and information The expert witness performs two primary functions: 1) analysis and interpretation. the scientific function — collecting, testing, and evaluating 4. Specialist: devoted to one kind of study or evidence and forming an opinion as to that evidence; and work with individual characteristics. 2) the forensic function—communicating that opinion and 5. Scientist: conducts original empirical its basis to the judge and jury. A general rule of evidence is research, then experiments to verify the validity of that witnesses may only testify to what they have personally the theory; designs and creates instrumentation and observed or encountered through their five senses. applied techniques; is published in own field with peers; and advances his field of knowledge.

A consulting expert is a person who has been retained or specifically employed in anticipation 32 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com of litigation or preparation of trial, but who will SIMPLIFIED RESTATEMENT OF FEDERAL RULES not be called at trial. The identity, theories, mental 701–706 VOIR DIREimpressions, litigation plans, and opinions of a consultant are work product and protected by the Rule Explanation attorney-client privilege.5 A testimonial expert is retained for purposes 701 Lay Opinion: If the witness is not an expert, opinion of testifying at trial. The confidentiality privilege is is admissible only when it is 1) rationally based on waived and all materials, notes, reports, and opinions perceptions, and 2) helpful to the trier of fact. must be produced through applicable discovery proceedings. If an expert relies on work product or 702 Testimony by Experts: Expert opinions may be hearsay as a basis for their opinion, that material admissible if 1) the testimony assists the trier of fact, and 2) must be disclosed and produced through discovery. the witness is qualified as an expert.

Standard Of Review: “Daubert Trilogy” 703 Bases of Opinion Testimony by Experts: Expert opinion may be based on facts or data 1) actually seen Whether a witness is qualified as an expert can or heard by the expert or 2) communicated to him at or before the hearing. Admissibility of the facts or data is not only be determined by comparing the area in which essential if typically relied on in this field. the witness has expertise with the subject matter of the witness’s testimony. The standard of review 704 Opinion on Ultimate Issue: An expert may express an and criteria for expert witness testimony has been opinion which 1) addresses an ultimate issue of fact, but codified by three cases, commonly known as the opinions or inferences regarding the mental state of the “Daubert Trilogy.” These cases consist of Daubert v. accused are reserved for the trier of fact, and 2) when that Merrell Dow Pharmaceuticals Inc.,6 General Electric mental state is an element of the crime charged or a defense v.Joiner,7 and Kumho Tire Co., Ltd. v. Carmichael.8 to that crime. The Daubert standard of for evaluating scientific evidence is based on reliability and the Daubert test 705 Disclosure of Facts or Data Underlying Expert is relevance for “good science.” The reliability prong Opinion: An expert need not provide facts supporting the reason for his opinion unless 1) the court so requires, or 2) of scientific evidence is: 1) whether the scientific asked on cross examination. theory can be (and has been) tested; 2) whether the scientific theory has been subjected to peer review 706 Court Appointed Experts: The court 1) may issue and publication; 3) the known or potential rate of an order to show cause as to why an expert should not error of the scientific technique; and 4) whether be appointed, 2) may request nominations of an expert the theory has received “general acceptance” in the by parties, 3) may appoint an expert whether or not the scientific community.9 In evaluating the second prong parties agree to that expert, if the expert consents. The (relevance), trial courts must consider whether the witness shall be informed of his duties 1) in writing, 2) a copy of which is filed with the court. The witness shall particular reasoning or methodology offered can be communicate his findings to the parties, and 1) may be properly applied to the facts in issue, as determined deposed, 2) may be called to testify, 3) may be cross by “fit.” There must be a valid scientific connection examined, and 3) shall be paid as the court directs. The and basis to the pertinent inquiry.10 jury’s knowledge of the court appointment is left to the General Electric v. Joiner7 upheld the trial discretion of the court. This rule does not limit parties from calling other experts. court’s “gatekeeping” function, annunciated in

33 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Daubert, to determine the admissibility of expert bring out the person’s qualifications, the opposing witness testimony absent an abuse of judicial attorney is allowed to voir dire the witness to bring discretion. out matters that might prevent his qualification as an Kumho Tire Co., Ltd. v. Carmichael18 held expert. A witness is not deemed an expert until so Daubert applies to all expert evidence and testimony qualified as such by the court. regardless if it is “scientific” in nature. One of The importance of a proffered expert’s testimony the underlying assumptions is that juries tend to cannot be understated, which is a reason proper believe almost anything the professed expert says, implementation of the voir dire process is paramount. therefore, judges “should protect impressionable Voir dire creates the standard for an expert witness’ jurors from experts who lack objective credibility.”11 testimony and credibility. It is the first and foremost Accordingly, a judicial “gatekeeping” function under part of any examination process. It is the judge and Daubert is to limit abuses of FRE 702. jury’s first impression of the witness. Neither the movant nor witness must take voir dire for granted or Qualifications And Competency Requirements the proffered witness will not be properly qualified. Whether a witness is qualified as an expert can only The witness must be competent in the subject be determined by comparing the area in which the matter. They may be qualified through knowledge, witness has expertise with the subject matter of the skill, practical experience, training, education, witness’ testimony. or a combination of these factors. Minimally, the Neither party should stipulate to the witness’ expert witness must know underlying methodology credentials. An offer of stipulation to the expert’s and procedures employed and relied upon as a credentials is because the expert is marginally basis for the opinion. The background knowledge qualified — not to save time. The voir dire can be includes state of art technology, literature review, made to sound impressive, but without substance and experience culminating in an opinion based to support qualifications and credentials. A proper upon a reasonable degree of scientific certainty. qualifying voir dire should be able to survive a However, there is no absolute rule as to the degree meticulous cross-examination of the proffered expert of knowledge required to qualify a witness as an witness. expert in a given field. Once competency is satisfied, If there should be a stipulation regarding the a witness’ knowledge of the subject matter affects the expert’s credentials, the judge should be requested to weight and credibility of their testimony. recite the stipulation using the witness’ biographical Reliance on the person’s resume or curriculum statement. The movant should still have the vitae for an appropriate voir dire is problematic. curriculum vitae or resume placed into evidence to Resumes and curriculum vitaes too frequently consist avoid any confusion or misunderstanding about the of superficial self-serving historical embellishments expert’s credentials and qualifications. and highlights of professional achievements, Nothing is exempt from securitization or accolades, and accomplishments. They are designed comment regarding the expert witness. Expert and intended to appear impressive through a well- witness discovery relating to scientific evidence written linguistical and promotional presentation. and associated testimony is controlled in part by the Unfortunately, some expert witnesses prevaricate Federal Rule of Civil Procedure 26 (a)(2)(A), (B), on their qualifications. Some experts blatantly (C), Daubert v. Merrell Dow Pharmaceuticals Inc.,6 misstate and exaggerate their qualifications, to the state statutes, and local court rules. The Supreme point of perjury — this is true of state and federal Court’s decision in Daubert sought to reconcile government, as well as defense witnesses. The vast the differences and confusion in the Federal Rules majority of witnesses testify truthfully. However, of Evidence (FRE 702, 703) pertaining to the the “mountebanks” are too numerous to suggest that foundation of an expert’s proffered opinion for it is a remote occurrence. The moving party must scientific validity based upon the “Frye Test.”12 establish the expert’s competency and knowledge in According to Federal Rule 26(2-b), before the profession and field not( experience, education, an expert witness can offer testimony, that person or specialized training) subject to judicial approval, must provide a written summary opinion discussing through an examination of the expert’s credentials. the testimonial subject matter, substance of facts The review process is conducted through a voir dire and opinion, basis for opinion, reports, a list of all examination. Voir dire is from the French language publications authored by the witness in the preceding meaning, “to speak the truth.” The term is used in ten years, a record of all previous testimony two contexts relating to trials: first, the prospective including depositions for the last four years, jury is voir dired by the attorneys to determine their disclosure statement, report signed by the expert, qualifications, and second, after the proponent of and disclosing attorney. The disclosure statement an expert witness asks questions of the witness to generally includes the following information 34 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com regarding the expert: qualifications; scope of engagement; information relied upon in formulating QUALIFYING QUESTIONS FOR THE EXPERT WITNESS (SAMPLE EXPERT opinion; summary of opinion; qualifications and WITNESS VOIR DIRE) publications; compensation; and signature of both expert and disclosing attorney. Even though many 1. Name. states have adopted the Federal Rules of Civil 2. Occupation. Procedure, including Rule 26, parties should consult 3. Place of employment. 4. Present title. their own jurisdiction regarding rules of discovery 5. Position currently held. and corresponding requirements. 6. Describe briefly the subject matter of your specialty. Once disclosure of the expert witness is made, 7. Specializations within that field. under FRCP 26(e)(1), a continuing duty exists to 8. What academic degrees are held and from where and provide additional and corrective information. The when obtained. 9. Specialized degrees and training. movant must provide complete current information 10. Licensing in field, and in which state(s). on the expert witness. If there is noncompliance, 11. Length of time licensed. opposing counsel will undoubtedly ask what the 12. Length of time practicing in this field. witness is trying to hide. 13. Board certified as a specialist in this field. Salaries, fees, and compensation affect 14. Length of time certified as a specialist. 15. Positions held since completion of formal education, the weight and credibility of an expert witness’ and length of time in each position. testimony – not qualifications or admissibility of the 16. Duties and function of current position. subject matter. 17. Length of time at current position. In Daubert II the court wrote, “That an expert 18. Specific employment, duties, and experiences testifies for money does not necessarily cast doubt on (optional). 19. Whether conducted personal examination or testing of the reliability of his testimony, as few experts appear (subject matter/ person/instrumentality). in court merely as an eleemosynary gesture. But 20. Number of these tests or examinations conducted by in determining whether proposed expert testimony you and when and where were they conducted. amounts to good science, we may not ignore the fact 21. Teaching or lecturing by you in your field. that a scientist’s normal work place is the laboratory 22. When and where your lecture or teach. 13,14 23. Publications by you in this field and titles. or field, not the courtroom or the lawyer’s office.” 24. Membership in professional societies/associations/ Therefore, compensation is a relevant area of cross- organizations, and special positions in them. examination after the person is permitted to testify. 25. Requirements for membership and advancement within Although prior judicial recognition of an each of these organizations. expert’s qualifications is normally a significant 26. Honors, acknowledgments, and awards received by you in your field. factor in the court’s evaluation of finding the witness 27. Number of times testimony has been given in court as qualified as an expert, it is not the determining factor. an expert witness in this field. Assumptions of this nature based upon presumptions 28. Availability for consulting to any party, state agencies, are not reliable. Furthermore, deposition testimony law enforcement agencies, defense attorneys. is not the equivalent to judicial recognition of 29. Put curriculum vitae or resume into evidence. 30. Your Honor, pursuant to (applicable rule on expert qualifications or previous court testimony. A witness), I am tendering (name) as a qualified deposition is a statement made orally by a person expert witness in the field of______. under oath before an examiner, commissioner, or officer of the court, but not in open court, and Other Cases, April, 1997. The principle findings reduced to writing by the examiner or under his and recommendations of the Justice Department’s direction. Depositions are used as a discovery device report addressed “significant instances of testimonial and not generally subject to the same trial evidentiary errors, substandard analytical work, and deficient standards. practices” including policies by the Federal Bureau The imprimatur of a governmental agency, of Investigation Laboratory.”15 laboratory, office, or title does not automatically The (517 page Inspector General’s) report make either the results or witness’ testimony provided plentiful evidence of pro prosecution inherently trustworthy, credible, and reliable. A bias, false testimony and inadequate forensic work shocking and explosive example of inadequacies, ... No defense lawyer in the country is going to misrepresentations, flawed science, doctored take what the FBI lab says at face value anymore. laboratory reports, posed evidence, woeful For years they were trusted on the basis of glossy investigative work, and false testimony was the advertising.”16 Similar revelations were exposed in epitomized by U.S. Department of Justice, Office 2003 concerning the Houston Police Department of the Inspector General, The FBI Laboratory: Crime Laboratory17 and are probably applicable to An Investigation into Laboratory Practices and other crime laboratories throughout the country. A Alleged Misconduct in Explosives-Related and witness is not an expert merely because the term 35 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 is part of their title or job description for example, be legally and factually relevant. There must also be Special Agent (FBI), Drug Recognition Expert a nexus between the scientific theory being proffered or Scientist. The name “special” or “expert” or and the evidence at trial. Failure to meet these “inspector” itself gives an instantaneous indicia threshold criteria will preclude or bar the expert’s and aura of authority and respect which implies a proffered testimony. Next, there must be a finding specific expertise beyond normal employment (law the proposed testimony will affect the validity of the enforcement/ police) qualifications to the trier of fact. evidence. Police officers who are trained to “identify drug impaired drivers” determined an authoritative, Conclusion descriptive title was necessary. According to The DRE (Newsletter), police officers engaged in this Parties should not rely upon or use the law enforcement activity may call themselves person’s resume or curriculum vitae as the voir dire drug recognition specialists, technicians, and questionnaire for reasons presented in this article. evaluators.18 The International Association of This article’s simple, thorough voir dire questions Chiefs of Police (IACP) decided to use the term can be very effective. The suggested subject order “technician.” However, on March 25, 1992, the and format of core questions must be tailored to Technical Advisory panel to the IACP Highway each case. However, discretion should be exercised Safety Advisory Committee voted to change and to keep the voir dire simple. The voir dire is not use the self-proclaimed term “Drug Recognition perfected until the last question is asked. The Expert.” 19 The term “expert” is currently used in the examination can be developed in a clear and concise latest training materials.20 If DREs call themselves manner, using simple, short, single fact questions. experts; it is problematic. Also, fraudulent claims The movant and witness must keep their objective in of professional status and association with an mind. Qualify the person as an expert witness. organization that owns a federal registered trademark subjects the infringer to injunctive relief and Disclaimer This article is intended to provide damages.21 general information; it does not provide legal advice A debilitating invitation to blatant accusations applicable to any specific matter and should not and findings of motive, interest, and bias exists if the be relied upon for that purpose. Interested parties proffered witness is required to testify based upon should review the laws with their legal counsel to their job description and employment duties. This is determine how they will be affected by the laws. a common problem with government employees.22 Claims of intellectual dishonesty and inherent prejudice may be insurmountable. An expert witness References cannot have an interest in the outcome of the trial. * Article adapted in part from, Gil I. Sapir, Legal An expert may be qualified, but not competent to Aspects of Forensic Science, ch. 1, in Forensic render a credible opinion. Science Handbook, vol. I, 2nd ed, R. Saferstein, ed., In trial, harm to litigants results from improper Prentice-Hall, c.2002. qualifications of an incompetent expert or failure to qualify a competent expert... The incompetent 1. Peter J. Neufeld and Neville Coleman, When Science expert is a vehicle for unreliable proof, while the Takes The Witness Stand, Scientific American, later denies the opportunity to present credible vol.262, p.46, 49 (May, 1990). evidence.”23 “In bolstering the credibility of an expert 2. Gil I. Sapir, Legal Aspects of Forensic Science, Ch. witness, attorneys will select, as circumstances allow, 1, in Forensic Science Handbook, vol. I, 2nd ed, witnesses with significant trial experience. Absent R. Saferstein, ed., Prentice- Hall, c.2002 such a source, attorneys select from the community 3. Gil Sapir, Proper Voir Dire: Qualifying the Expert rather than classified advertisements. Trial tactics Witness, DWI Journal: Science & Law, vol.13, rather than reliability become the impetus for the no.12, Dec. 1998, p.5. selection of experts. Such tactics may influence 4. Andre A. Moenssens, Novel Scientific Evidence selection of the less reliable witness.”24 in Criminal Cases: Some Words of Caution, Once competency is satisfied, a witness’ Journal of Criminal Law and Criminology. Vol. knowledge of the subject matter affects the weight 1, p.1, 5-6 (Spring 1993). and credibility of their testimony. Simply ask, 5. People v. Adam, 51 Ill.2d 46, 280 N.E.2d 205, cert. is the proffered witness qualified? Is the witness denied 409 U.S. 948 (1972). competent? If the judicial determination is yes, only 6. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 then may the witness provide opinion evidence. U.S. 579, 113 S.Ct. 2786 (1993). In addition to credentials and competency, the 7. General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. subject matter of an expert witness’ testimony must 512 (1997). 36 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com 8. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 20. Roderick T. Kennedy, Someone’s On Drugs Here ... 119 S.Ct. 1167, 1174 (1999). Drugs, Driving Experts and Evidence, NACDL/ 9. Daubert, 113 S.Ct. at 2796-2797. ABA Seminar, Defending DUI Cases: Insights 10. Daubert, 113 S.Ct. at 2795-2796. from the Masters, p.285 (June 13, 1997). 11. Joseph F. Madonia, Kumho Tire Steers New Course 21. ABPN v. Johnson-Powell, 123 F.3d 1 (1997). on Expert-Witness Testimony, Chicago Daily 22. Legal Aspects of Forensic Science, Ch. 1, p.5 in Law Bulletin, July 2, 1999, p.5. “Forensic Science Handbook,” Vol. I, 2nd Ed, R. 12. Frye v. U.S., 293 F.1013 (D.C. Cir. 1923). Saferstein, ed., Prentice-Hall, c.2002. 13. Daubert v. Merrell Dow Pharmaceuticals, Inc, 43 23. Christopher F. Murphy, Experts, Liars, and Guns F.3d 1311, 1317, (9th Cir. 1995). for Hire: A Different Perspective on the 14. Paul C. Giannelli, “Junk Science”: The Criminal Qualification of Technical Expert Witnesses, 69 Cases, Journal of Criminal Law and Indiana L.J. 637, 649 (1993). Criminology. Vol. 1, p.105, 117 (Spring 1993). 24. Christopher F. Murphy, Experts, Liars, and Guns 15. Justice Department Investigation of FBI Laboratory: for Hire: A Different Perspective on the Executive Summary, 61 Crim. L. (BNA) 2017 Qualification of Technical Expert Witnesses, 69 (April 16, 1997). Indiana L.J. 637, 650-651 (1993). 16. John F. Kelly and Phillip K. Wearne, Tainting Evidence: Inside the Scandals at the FBI Lab, Gil I. Sapir, Forensic Science Consultant and Attorney; p.3-4, The Free Press, NY, NY, c.1998. B.Sc., Microbiology and Biology, Colorado State University 17. Adam Liptak, Worst Crime Lab in the Country: Or (1976); J.D., IIT/Chicago-Kent College of Law (1980); M.Sc., is Houston Typical?, New York Times, (on the Criminalistics, University of Illinois-Chicago (1987). He Web) March 11, 2003. has lectured, testified, and written extensively on scientific 18. Vanell, What’s in a Name?, The DRE (Newsletter), evidence. Mr. Sapir maintains his office in Chicago, Illinois. p.2, (Sept/Oct 1990). 19. The DRE (Newsletter), p.10, (March/April 1992) . This article reprinted with permission of Forensic Magazine®. www.forensicmag.com.

Mini-Lab: By a Hair Courtesy of Dr. Richard Saferstein air is one of the most valuable, yet tricky, pieces of evidence an investigator can come across on a crime scene.H For some, a strand of hair can speak volumes about its former owner. For others, a hair is like a feather at the start of a wild goose chase. If you have students who place a near-religious belief in the infallability of forensic evidence, this is the lab for you. If you have students who are leary of forensic testimony being used to convict the wrong person, you’ll love this activity. And if you have students who sit in both groups, this mini-lab is a must-do. 1. When students aren’t around, pluck 24 hairs from various locations on the head of an individual. 2. Make permanent slides of each hair and number them. You might want to make more than one set. 3. Give the slides and microscopes to your students and ask them to determine how many individuals contributed hairs to the collection. Making drawings is optional. 4. Try not to give the answer away as they convince themselves the hairs came from numerous individuals. 5. Following the lab, after clean-up, ask them to defend their thinking before you reveal the answer and segue into a discussion of how hair can be used to convict an innocent person.

37 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Activity

Is Handwriting Really Brainwriting?

Making Up Our Minds About Graphology

By J.D. Corleone

ike fingerprints, no two individuals’ handwriting, is Graphologists are also particular in the types of perfectly identical. No matter how many handwriting samples they analyze. Most prefer spontaneous handwriting Ltraits two people share, upon close inspection, an samples, i.e. samples not written for the express purpose of analyst will discover certain differences. The reason each analysis. They favor longer samples that were written with individual’s writing style is personal and unique is that an instrument sensitive to speed and pressure. Of course, handwriting is the result of unconscious and automatic graphologists would also elect to have as much information movements—actions that stem from the brain. Given the fact about the writer as possible, including age, sex, education and that the act of handwriting is unconscious, many believe an other biographical material. individual’s handwriting reveals his personality traits, and The claims graphologists make about handwriting therefore, handwriting analysis might be used as a tool for analysis vary widely. Some claim they can predict what the determining a person’s personality. writer will do and how he will react in specific situations. The study of handwriting to determine the writer’s Others claim they can forecast the writer’s future actions and personality type is called graphology. Graphology, in some intellectual performance. Still others suggest that by altering form, has been around for nearly four centuries, though the one’s handwriting, one can alter his own personality. term itself wasn’t coined until 1875, when Jean Hippolyte The validity of graphology is questionable. Some Michon first systemized handwriting analysis by associating graphologists offer their services over the Web, while hundreds of graphic signs with specific personality traits. others market expensive handwriting-analysis software. Today no single method or theory governs graphology. Is handwriting analysis an effective tool for determining Indeed, many graphologists have developed their own personality traits? system to determine personality traits from an individual’s It is vital to examine both sides of the issue. handwriting. There are, however, some common elements Today graphology is sometimes used to screen candidates found in differing systems. Graphologists tend to seek for employment. Despite studies demonstrating graphology’s particular features, such as the size and slant of individual apparent ineffectiveness in reflecting future job performance, letters, the curvature and angularity of certain characters, many large businesses continue to use handwriting analysis and the amount of pressure likely applied to upward and during the evaluation process. Businesses utilizing graphology downward strokes. 38 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Activity

generally seek candidates with personality traits consistent Under the ruling in Daubert v. Merrell Dow Pharmaceuticals, with honesty, reliability, and productivity. For instance, many Inc., 509 U.S. 579 (1993), the trial judge is required to graphologists agree that small handwriting indicates an ability ensure that an expert’s testimony is “relevant to the task at to focus attention and avoid distractions, while missing t-bars hand” and that it is based “on a reliable foundation.” In other demonstrate forgetfulness and absentmindedness—in other words, scientific evidence must be the product of sound words, someone who lacks attention to detail, who literarily, scientific methodology derived from the scientific method. fails to dot his i’s and cross his t’s. The scientific method requires, among other things, empirical Some large corporations and local governments refuse testing that is subject to peer review and publication. The to use graphology because Title VII of the Civil Rights Act concept dealt with in Daubert was that a new scientific test of 1964 prohibits employment discrimination. An invalidated can be considered reliable before it reaches the level of pre-employment test could be deemed unlawful – and subject general acceptance if it meets the requirements for scientific an employer to legal liabilities – if the test is determined to method. have a discriminatory impact. Title VII bars discrimination Although there have been no reported cases of on the basis of race, color, religion, sex, national origin, graphological evidence decided under the Daubert test, it is or reprisal. Given the fact most studies show graphology likely that such evidence would be deemed inadmissible for is ineffective at predicting future job performance, many purposes of assessing personality. employers decide that employing the test is not worth the Outside the courtroom, however, intriguing questions legal risk. remain. Is a writer with wide e-loops broadminded and free No certification is required to become a graphologist, as of bigotry? Do tell d and t stems indicate a writer is vain? no certification is recognized. Up until the turn of the century, Does heavy average stroke pressure demonstrate emotional Felician College in Lodi, New Jersey, offered an associate intensity? arts degree in graphology. However, since 2000, no accredited Some law enforcement agencies believe the answer academic institution in the United States offers a graphology is yes; personality traits can be ascertained by examining degree. Training, however, remains available through a suspect’s handwriting. In determining the identity of a correspondence courses. perpetrator, it is often vital for law enforcement to learn The lack of formal training is one argument set forth by as much as possible about the criminal’s personality by detractors of graphology. Opponents of handwriting analysis gathering and analyzing evidence left at the crime scene. as a way of determining the writer’s personality traits contend Personality traits may be determined by the perpetrator’s graphology is a pseudoscience and no clear and consistent actions, choice of weapon, choice of victims, and possibly correlation exists between handwriting and basic personality by his handwriting. As such, regardless of whether or not traits. While some detractors concede that handwriting graphological evidence will ultimately be ruled admissible analysis should be studied further, the research currently in court, handwriting analysis has become an interesting available is generally inconclusive at best. distraction to objective, scientifically verified, forensic In 1992, neuroscientist Barry Beyerstein authored a book methodologies. Plus, it’s fun to do at parties, and to watch titled The Write Stuff: Evaluations of Graphology – The Study your students make up their own minds while doing the of Handwriting Analysis, which provided a summary of the exercises on the following pages. research literature available on the subject. In an interview on PBS’s award-winning science series Scientific American Frontiers, hosted by Alan Alda, Beyerstein called graphology a “pseudoscientific ‘character reading’ method,” and suggested that its use “to make decisions that can seriously affect people’s reputations and life prospects” is “scandalous.” In addition, several courts in the United States have weighed in on the issue of handwriting analysis and its validity. Courts have routinely ruled that a handwriting analyst could not offer expert testimony regarding a person’s physical or mental condition. In order for graphological evidence to be deemed admissible in court, most jurisdictions require (at a minimum) that it pass the test set forth in the case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test requires that when scientific evidence is offered, there must be a general consensus in the appropriate scientific field that the theory behind the technique is sound, and that it has been reliably reduced to practice. In addition, seventy years after the ruling in Frye, the U.S. Supreme Court set forth an even more rigid approach to determining whether expert scientific testimony is admissible.

39 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Putative Graphology Lab

By jeanette hencken The principle of graphology is based on determining specific personality traits based on a person’s writing style. This includes spacing between words and sentences, the amount of pressure applied in upward and downward strokes, and how certain letters are formed.

Purpose: To experiment with handwriting and the determination of personality traits based on writing style. Materials Needed: unlined paper, 1 piece per student; pens, one per student List of attributes only (doesn’t include clues), one per student See the following pages List of clues that are used to determine the attributes, one per student: See the following pages

Part One:

1. Give each student a pen, piece of paper and the list of clues. 2. Ask the students to look over the list of attributes (e.g., comfortable or uncomfortable in a social setting) and write on their piece of paper which attributes they believe describe themselves. Label this paper “Known Attributes.” 3. Have the student put their name on the paper and turn it in along with the list of attributes.

Part Two:

1. Give each student a pen, and a second piece of paper. 2. Ask each student to write the phrase “The black fox jumped over the log in the forest. A squirrel gazed suspiciously at the fox and ran up the nearest tree,” on at least two lines of their piece of paper. 3. Have the student label this piece of paper “Control Handwriting Sample” and place on their piece of paper an assumed name you have chosen for them (you will need a key that lists the correct name for each student and the assumed name you give them), and turn it in. Alternatively, you could also use the last four digits of their Social Security number which most teachers have on their class rosters.

Part Three:

1. Shuffle the papers and give each student a paper with someone else’s “Control Handwriting Sample.” 2. Give each student a copy of the clues that are used to determine someone’s attributes from their writing. 3. After looking over the “Control Handwriting Sample,” ask the student to use the clues to write an analysis of the handwriting. (What can you tell about this person from their handwriting based on the list of clues?) 4. Have the student turn in the paper containing their analysis after placing their real name on this piece of paper.

Part Four:

1. Hand each person a “Control Handwriting Sample” that has been analyzed. 2. With a projection device, show the class the list of assumed names in order for them to identify the original writer. 3. Give each person the “Known Attributes” paper that corresponds with their person’s “Control Handwriting Sample.” 4. Ask the students to compare the information on those two pieces of paper.

Questions:

How well did the “analyst” do at determining the characteristics of the unknown person from their handwriting sample? A. Did all of their analysis match the “Known?”

B. Ask students how accurate the characteristics described them, and if they think graphology should be admissible in court or to determine whether or not they get a job.

40 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com List of Known Attributes Name______

Circle those attributes you think apply to you Positive Attributes 1. Social 2. Perceptive 3. Meticulous 4. Logical 5. Emotional 6. Empathetic 7. Caring 8. Attention to detail 9. Positive 10. Cautious 11. Analytical 12. Broadminded 13. Sense of humor 14. Honest 15. Religious 16. Driven to succeed 17. Directness 18. Quick thinking

Negative Attributes

1. Prone to lying 2. Stubborn 3. Likes to gossip 4. Forgetful 5. Often loses temper 6. Uptight 7. Has trouble focusing 8. Has difficulty expressing emotion 9. Uncomfortable in social situations 10. Confused 11. Jumbled thoughts 12. Dishonest 13. Lazy 14. Greedy 15. Looks down on others 16. Self centered 17. Selfish 18. Slow thinking

41 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Graphology Clues Spacing Spacing Between Words: Having very little spacing in between words suggests you are a social person, large spacing in between words means you are uncomfortable in social situations. Spacing between sentences in paragraphs: Sentences that are close together in paragraphs indicate a person with jumbled thoughts and confusion. Large spaces in between sentences indicate perception and meticulousness. Slant of Writing Left Slant: Indicates a person who has difficulty expressing emotion. Vertical Slant: Indicates a person who is more logical than emotional. Right Slant: Indicates a person who is more empathetic and caring. Size of Writing Small: Indicates a person with a high level of concentration and attention to detail. Average: A person who concentrates enough to perform a task, but not too much that they get caught up in the details. Large: Large handwriting indicates a person who has trouble focusing on one task for too long. Heavy stroke: uptight Stroke gets heavier towards the end of a word: often loses temper Long, drawn out words: positive, cautious

42 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Letters V wedges in the middle of the letter M: Analytical thinker Wide e loop: Broadminded Missing t bar: Forgetful Initial wavy upper area down stroke on T: Sense of humor

Lettes with a loop are open when they would normally be closed: petty, prone to gossip Downward slanting t-cross: stubborn Making two loops inside an O: prone to lying Lower case letter A: if closed, honest; if not, dishonest Lower case B: if the stem is tall and narrow it indicates religious beliefs Lower case C: if the letter looks like a breaking wave the writer has a drive to succeed Lower case E: no loop means the writer is a quick thinker, a wide loop indicates directness Second hump of lower case M is lower than first mark: dishonest The two legs of a lower case N are close together: lazy Lower case S: if closed the writer is greedy Lower case S: if top is sharply peaked the writer looks down on others Lower case J: if loop is wide, the writer is selfish, if only a downward line, self centered Lower case T: if upward stroke has a wide loop writer is a slow thinker

43 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Trial by Fire

By David Grann photo©Ken Light

he fire moved quickly through the house, a one-story Diane Barbee, returning to the scene, could feel intense wood- frame structure in a working- class neighborhood heat radiating off the house. Moments later, the five windows of Corsicana, in northeast Texas. Flames spread along of the children’s room exploded and flames “blew out,” as Bar- Tthe walls, bursting through doorways, blistering paint and tiles bee put it. Within minutes, the first firemen had arrived, and and furniture. Smoke pressed against the ceiling, then banked Willingham approached them, shouting that his children were downward, seeping into each room and through crevices in the in their bedroom, where the flames were thickest. A fireman windows, staining the morning sky. sent word over his radio for rescue teams to “step on it.” Buffie Barbee, who was eleven years old and lived two More men showed up, uncoiling hoses and aiming water houses down, was playing in her back yard when she smelled at the blaze. One fireman, who had an air tank strapped to his the smoke. She ran inside and told her mother, Diane, and back and a mask covering his face, slipped through a window they hurried up the street; that’s when they saw the smolder- but was hit by water from a hose and had to retreat. He then ing house and Cameron Todd Willingham standing on the front charged through the front door, into a swirl of smoke and fire. porch, wearing only a pair of jeans, his chest blackened with Heading down the main corridor, he reached the kitchen, where soot, his hair and eyelids singed. He was screaming, “My ba- he saw a refrigerator blocking the back door. bies are burning up!” His children—Karmon and Kameron, Todd Willingham, looking on, appeared to grow more who were one- year- old twin girls, and two- year- old Am- hysterical, and a police chaplain named George Monaghan led ber—were trapped inside. him to the back of a fire truck and tried to calm him down. Willingham told the Barbees to call the Fire Department, Willingham explained that his wife, Stacy, had gone out earlier and while Diane raced down the street to get help he found a that morning, and that he had been jolted from sleep by Amber stick and broke the children’s bedroom window. Fire lashed screaming, “Daddy! Daddy!” through the hole. He broke another window; flames burst “My little girl was trying to wake me up and tell me about through it, too, and he retreated into the yard, kneeling in front the fire,” he said, adding, “I couldn’t get my babies out.” of the house. A neighbor later told police that Willingham in- While he was talking, a fireman emerged from the house, termittently cried, “My babies!” then fell silent, as if he had cradling Amber. As she was given C.P.R., Willingham, who “blocked the fire out of his mind.” was twenty- three years old and powerfully built, ran to see her, 44 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com then suddenly headed toward the babies’ room. Monaghan and responded. “It’s never been pointed out.” another man restrained him. “We had to wrestle with him and Vasquez and Fogg visited the Willinghams’ house four then handcuff him, for his and our protection,” Monaghan later days after the blaze. Following protocol, they moved from the told police. “I received a black eye.” One of the first firemen at least burned areas toward the most damaged ones. “It is a sys- the scene told investigators that, at an earlier point, he had also tematic method,” Vasquez later testified, adding, “I’m just col- held Willingham back. “Based on what I saw on how the fire lecting information. . . . I have not made any determination. I was burning, it would have been crazy for anyone to try and go don’t have any preconceived idea.” into the house,” he said. The men slowly toured the perimeter of the house, tak- Willingham was taken to a hospital, where he was told ing notes and photographs, like archeologists mapping out a that Amber— who had actually been found in the master bed- ruin. Upon opening the back door, Vasquez observed that there room—had died of smoke inhalation. Kameron and Karmon was just enough space to squeeze past the refrigerator blocking had been lying on the floor of the children’s bedroom, their the exit. The air smelled of burned rubber and melted wires; bodies severely burned. According to the medical examiner, a damp ash covered the ground, sticking to their boots. In the they, too, died from smoke inhalation. kitchen, Vasquez and Fogg discerned only smoke and heat News of the tragedy, which took place on December 23, damage— a sign that the fire had not originated there—and 1991, spread through Corsicana. A small city fifty- five miles so they pushed deeper into the nine- hundred- and- seventy- northeast of Waco, it had once been the center of Texas’s first five- square- foot building. A central corridor led past a utility oil boom, but many of the wells had since dried up, and more room and the master bedroom, then past a small living room, than a quarter of the city’s twenty thousand inhabitants had on the left, and the children’s bedroom, on the right, ending fallen into poverty. Several stores along the main street were at the front door, which opened onto the porch. Vasquez tried shuttered, giving the place the feel of an abandoned outpost. to take in everything, a process that he compared to entering Willingham and his wife, who was twenty- two years old, one’s motherin- law’s house for the first time: “I have the same had virtually no money. Stacy worked in her brother’s bar, curiosity.” called Some Other Place, In the utility room, he and Willingham, an unem- noticed on the wall pictures ployed auto mechanic, had of skulls and what he later been caring for the kids. described as an image of The community took up a “the Grim Reaper.” Then he collection to help the Will- turned into the master bed- inghams pay for funeral ar- room, where Amber’s body rangements. had been found. Most of the Fire investigators, damage there was also from meanwhile, tried to deter- smoke and heat, suggesting mine the cause of the blaze. that the fire had started far- (Willingham gave authori- ther down the hallway, and ties permission to search he headed that way, step- the house: “I know we ping over debris and duck- might not ever know all the ing under insulation and answers, but I’d just like to wiring that hung down from know why my babies were the exposed ceiling. taken from me.”) Douglas As he and Fogg re- Fogg, who was then the as- moved some of the clutter, sistant fire chief in Corsi- they noticed deep charring cana, conducted the initial inspection. He was tall, with a crew along the base of the walls. Because gases become buoyant cut, and his voice was raspy from years of inhaling smoke from when heated, flames ordinarily burn upward. But Vasquez and fires and cigarettes. He had grown up in Corsicana and, after Fogg observed that the fire had burned extremely low down, graduating from high school, in 1963, he had joined the Navy, and that there were peculiar char patterns on the floor, shaped serving as a medic in Vietnam, where he was wounded on four like puddles. occasions. He was awarded a Purple Heart each time. After he Vasquez’s mood darkened. He followed the “burn trail- returned from Vietnam, he became a firefighter, and by the time er”—the path etched by the fire—which led from the hallway of the Willingham blaze he had been battling fire—or what he into the children’s bedroom. Sunlight filtering through the bro- calls “the beast”—for more than twenty years, and had become ken windows illuminated more of the irregularly shaped char a certified arson investigator. “You learn that fire talks to you,” patterns. A flammable or combustible liquid doused on a floor he told me. will cause a fire to concentrate in these kinds of pockets, which He was soon joined on the case by one of the state’s is why investigators refer to them as “pour patterns” or “puddle leading arson sleuths, a deputy fire marshal named Manuel configurations.” Vasquez, who has since died. Short, with a paunch, Vasquez The fire had burned through layers of carpeting and tile had investigated more than twelve hundred fires. Arson inves- and plywood flooring. Moreover, the metal springs under the tigators have always been considered a special breed of detec- children’s beds had turned white—a sign that intense heat had tive. In the 1991 movie “Backdraft,” a heroic arson investigator radiated beneath them. Seeing that the floor had some of the says of fire, “It breathes, it eats, and it hates. The only way to deepest burns, Vasquez deduced that it had been hotter than beat it is to think like it. To know that this flame will spread this the ceiling, which, given that heat rises, was, in his words, “not way across the door and up across the ceiling.” Vasquez, who normal.” had previously worked in Army intelligence, had several max- Fogg examined a piece of glass from one of the broken ims of his own. One was “Fire does not destroy evidence— windows. It contained a spiderweb- like pattern—what fire it creates it.” Another was “The fire tells the story. I am just investigators call “crazed glass.” Forensic textbooks had long the interpreter.” He cultivated a Sherlock Holmes- like aura of described the effect as a key indicator that a fire had burned invincibility. Once, he was asked under oath whether he had “fast and hot,” meaning that it had been fuelled by a liquid ac- ever been mistaken in a case. “If I have, sir, I don’t know,” he celerant, causing the glass to fracture. 45 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 The men looked again at what appeared to be a distinct in a salvage yard, and the family lived in a cramped house; at burn trailer through the house: it went from the children’s bed- night, they could hear freight trains rattling past on a nearby room into the corridor, then turned sharply to the right and pro- track. Willingham, who had what the family called the “clas- ceeded out the front door. To the investigators’ surprise, even sic Willingham look”—a handsome face, thick black hair, and the wood under the door’s aluminum threshold was charred. dark eyes— struggled in school, and as a teenager began to On the concrete floor of the porch, just outside the front door, sniff paint. When he was seventeen, Oklahoma’s Department Vasquez and Fogg noticed another unusual thing: brown stains, of Human Services evaluated him, and reported, “He likes which, they reported, were consistent with the presence of an ‘girls,’ music, fast cars, sharp trucks, swimming, and hunting, accelerant. in that order.” Willingham dropped out of high school, and over The men scanned the walls for soot marks that resembled time was arrested for, among other things, driving under the a “V.” When an object catches on fire, it creates such a pattern, influence, stealing a bicycle, and shoplifting. as heat and smoke radiate outward; the bottom of the “V” can In 1988, he met Stacy, a senior in high school, who also therefore point to where a fire began. In the Willingham house, came from a troubled background: when she was four years there was a distinct “V” in the main corridor. Examining it and old, her stepfather had strangled her mother to death during a other burn patterns, Vasquez identified three places where fire fight. Stacy and Willingham had a turbulent relationship. Will- had originated: in the hallway, in the children’s bedroom, and ingham, who was unfaithful, drank too much Jack Daniel’s, at the front door. Vasquez later testified that multiple origins and sometimes hit Stacy—even when she was pregnant. A pointed to one conclusion: the fire was “intentionally set by neighbor said that he once heard Willingham yell at her, “Get human hands.” up, bitch, and I’ll hit you again.” By now, both investigators had a clear vision of what On December 31st, the authorities brought Willingham had happened. Someone in for questioning. Fogg and had poured liquid acceler- Vasquez were present for the in- ant throughout the children’s terrogation, along with Jimmie room, even under their beds, Hensley, a police officer who then poured some more along was working his first arson case. the adjoining hallway and out Willingham said that Stacy had the front door, creating a “fire left the house around 9 A.M. to barrier” that prevented any- pick up a Christmas present for one from escaping; similarly, the kids, at the Salvation Army. a prosecutor later suggested, “After she got out of the drive- the refrigerator in the kitchen way, I heard the twins cry, so I had been moved to block the got up and gave them a bottle,” back- door exit. The house, in he said. The children’s room short, had been deliberately had a safety gate across the transformed into a death trap. doorway, which Amber could The investigators col- climb over but not the twins, lected samples of burned and he and Stacy often let the materials from the house and twins nap on the floor after they sent them to a laboratory that drank their bottles. Amber was could detect the presence of still in bed, Willingham said, so a liquid accelerant. The lab’s chemist reported that one of the he went back into his room to sleep. “The next thing I remem- samples contained evidence of “mineral spirits,” a substance ber is hearing ‘Daddy, Daddy,’” he recalled. “The house was that is often found in charcoal- lighter fluid. The sample had already full of smoke.” He said that he got up, felt around the been taken by the threshold of the front door. floor for a pair of pants, and put them on. He could no longer The fire was now considered a triple homicide, and Todd hear his daughter’s voice (“I heard that last ‘Daddy, Daddy’ Willingham— the only person, besides the victims, known to and never heard her again”), and he hollered, “Oh God—Am- have been in the house at the time of the blaze—became the ber, get out of the house! Get out of the house!’ ” prime suspect. He never sensed that Amber was in his room, he said. Per- haps she had already passed out by the time he stood up, or perhaps she came in after he left, through a second doorway, from Police and fire investigators canvassed the neighborhood, the living room. He said that he went down the corridor and interviewing witnesses. Several, like Father Monaghan, ini- tried to reach the children’s bedroom. In the hallway, he said, tially portrayed Willingham as devastated by the fire. Yet, over “you couldn’t see nothing but black.” The air smelled the way time, an increasing number of witnesses offered damning state- it had when their microwave had blown up, three weeks ear- ments. Diane Barbee said that she had not seen Willingham try lier—like “wire and stuff like that.” He could hear sockets and to enter the house until after the authorities arrived, as if he light switches popping, and he crouched down, almost crawl- were putting on a show. And when the children’s room exploding. When he made it to the children’s bedroom, he said, he ed with flames, she added, he seemed more preoccupied with stood and his hair caught on fire. “Oh God, I never felt anything his car, which he moved down the driveway. Another neighbor that hot before,” he said of the heat radiating out of the room. reported that when Willingham cried out for his babies he “did After he patted out the fire on his hair, he said, he got down not appear to be excited or concerned.” Even Father Monaghan on the ground and groped in the dark. “I thought I found one of wrote in a statement that, upon further reflection, “things were them once,” he said, “but it was a doll.” He couldn’t bear the not as they seemed. I had the feeling that [Willingham] was in heat any longer. “I felt myself passing out,” he said. Finally, he complete control.” stumbled down the corridor and out the front door, trying to The police began to piece together a disturbing profile catch his breath. He saw Diane Barbee and yelled for her to call of Willingham. Born in Ardmore, Oklahoma, in 1968, he had the Fire Department. After she left, he insisted, he tried without been abandoned by his mother when he was a baby. His father, success to get back inside. Gene, who had divorced his mother, eventually raised him with The investigators asked him if he had any idea how the his stepmother, Eugenia. Gene, a former U.S. marine, worked fire had started. He said that he wasn’t sure, though itmust 46 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com have originated in the children’s room, since that was where he that he considered Willingham to be “an utterly sociopathic first saw flames; they were glowing like “bright lights.” He and individual” who deemed his children “an impediment to his Stacy used three space heaters to keep the house warm, and one lifestyle.” Or, as the local district attorney, Pat Batchelor, put it, of them was in the children’s room. “I taught Amber not to play “The children were interfering with his beer drinking and dart with it,” he said, adding that she got “whuppings every once in throwing.” a while for messing with it.” He said that he didn’t know if the On the night of January 8, 1992, two weeks after the fire, heater, which had an internal flame, was turned on. (Vasquez Willingham was riding in a car with Stacy when SWAT teams later testified that when he had checked the heater, four days surrounded them, forcing them to the side of the road. “They after the fire, it was in the “Off ” position.) Willingham specu- pulled guns out like we had just robbed ten banks,” Stacy later lated that the fire might have been started by something electri- recalled. “All we heard was ‘click, click.’ . . . Then they ar- cal: he had heard all that popping and crackling. rested him.” When pressed whether someone might have a motive to Willingham was charged with murder. Because there were hurt his family, he said that he couldn’t think of anyone that multiple victims, he was eligible for the death penalty, under “cold- blooded.” He said of his children, “I just don’t under- Texas law. Unlike many other prosecutors in the state, Jack- stand why anybody would take them, you know? We had three son, who had ambitions of becoming a judge, was personally of the most pretty babies anybody could have ever asked for.” opposed to capital punishment. “I don’t think it’s effective in He went on, “Me and Stacy’s been together for four years, but deterring criminals,” he told me. “I just don’t think it works.” off and on we get into a fight and split up for a while and I think He also considered it wasteful: because of the expense of liti- those babies is what brought us so close together . . . neither gation and the appeals process, it costs, on average, $2.3 mil- one of us . . . could live without them kids.” Thinking of Am- lion to execute a prisoner in Texas—about three times the cost ber, he said, “To tell you of incarcerating someone for the honest- to- God’s forty years. Plus, Jackson said, truth, I wish she hadn’t “What’s the recourse if you woke me up.” make a mistake?” Yet his boss, During the inter- Batchelor, believed that, as he rogation, Vasquez let once put it, “certain people who Fogg take the lead. Fi- commit bad enough crimes give nally, Vasquez turned to up the right to live,” and Jack- Willingham and asked a son came to agree that the hei- seemingly random ques- nous nature of the crime in the tion: had he put on shoes Willingham case—“one of the before he fled the house? worst in terms of body count” “No, sir,” Willing- that he had ever tried— man- ham replied. dated death. A map of the house Willingham couldn’t af- was on a table between ford to hire lawyers, and was the men, and Vasquez assigned two by the state: pointed to it. “You David Martin, a former state walked out this way?” trooper, and Robert Dunn, a lo- he said. cal defense attorney who repre- Willingham said sented everyone from alleged yes. murderers to spouses in divorce Vasquez was now convinced that Willingham had killed cases—a “Jack- of- all- trades,” as he calls himself. (“In a small his children. If the floor had been soaked with a liquid accel- town, you can’t say ‘I’m a so- and- so lawyer,’ because you’ll erant and the fire had burned low, as the evidence suggested, starve to death,” he told me.) Willingham could not have run out of the house the way he Not long after Willingham’s arrest, authorities received a had described without badly burning his feet. A medical report message from a prison inmate named Johnny Webb, who was indicated that his feet had been unscathed. in the same jail as Willingham. Webb alleged that Willingham Willingham insisted that, when he left the house, the fire had confessed to him that he took “some kind of lighter fluid, was still around the top of the walls and not on the floor. “I squirting [it] around the walls and the floor, and set a fire.” The didn’t have to jump through any flames,” he said. Vasquez be- case against Willingham was considered airtight. lieved that this was impossible, and that Willingham had lit the Even so, several of Stacy’s relatives—who, unlike her, fire as he was retreating—first, torching the children’s room, believed that Willingham was guilty—told Jackson that they then the hallway, and then, from the porch, the front door. preferred to avoid the anguish of a trial. And so, shortly before Vasquez later said of Willingham, “He told me a story of pure jury selection, Jackson approached Willingham’s attorneys fabrication. . . . He just talked and he talked and all he did was with an extraordinary offer: if their client pleaded guilty, the lie.” state would give him a life sentence. “I was really happy when Still, there was no clear motive. The children had life- in- I thought we might have a deal to avoid the death penalty,” surance policies, but they amounted to only fifteen thousand Jackson recalls. dollars, and Stacy’s grandfather, who had paid for them, was Willingham’s lawyers were equally pleased. They had listed as the primary beneficiary. Stacy told investigators that little doubt that he had committed the murders and that, if the even though Willingham hit her he had never abused the chil- case went before a jury, he would be found guilty, and, subse- dren—“Our kids were spoiled rotten,” she said—and she did quently, executed. “Everyone thinks defense lawyers must be- not believe that Willingham could have killed them. lieve their clients are innocent, but that’s seldom true,” Martin Ultimately, the authorities concluded that Willingham was told me. “Most of the time, they’re guilty as sin.” He added of a man without a conscience whose serial crimes had climaxed, Willingham, “All the evidence showed that he was one hun- almost inexorably, in murder. John Jackson, who was then the dred per cent guilty. He poured accelerant all over the house assistant district attorney in Corsicana, was assigned to prose- and put lighter fluid under the kids’ beds.” It was, he said, “a cute Willingham’s case. He later told the Dallas Morning News classic arson case”: there were “puddle patterns all over the 47 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 place—no disputing those.” aged her to volunteer as a pen pal for an inmate on death row, Martin and Dunn advised Willingham that he should ac- and Gilbert had offered her name and address. Not long after, cept the offer, but he refused. The lawyers asked his father a short letter, written with unsteady penmanship, arrived from and stepmother to speak to him. According to Eugenia, Mar- Willingham. “If you wish to write back, I would be honored to tin showed them photographs of the burned children and said, correspond with you,” he said. He also asked if she might visit “Look what your son did. You got to talk him into pleading, or him. Perhaps out of a writer’s curiosity, or perhaps because she he’s going to be executed.” didn’t feel quite herself (she had just been upset by news that His parents went to see their son in jail. Though his father her exhusband was dying of cancer), she agreed. Now she was did not believe that he should plead guilty if he were innocent, standing in front of the decrepit penitentiary in Huntsville, Tex- his stepmother beseeched him to take the deal. “I just wanted as—a place that inmates referred to as “the death pit.” to keep my boy alive,” she told me. She filed past a razor- wire fence, a series of floodlights, Willingham was implacable. “I ain’t gonna plead to some- and a checkpoint, where she was patted down, until she entered thing I didn’t do, especially killing my own kids,” he said. It a small chamber. Only a few feet in front of her was a man con- was his final decision. Martin says, “I thought it was nuts at the victed of multiple infanticide. He was wearing a white jump- time—and I think it’s nuts now.” suit with “DR”—for death row—printed on the back, in large Willingham’s refusal to accept the deal confirmed the view black letters. He had a tattoo of a serpent and a skull on his left of the prosecution, and even that of his defense lawyers, that he biceps. He stood nearly six feet tall and was muscular, though was an unrepentant killer. his legs had atrophied after years of confinement. In August, 1992, the trial commenced in the old stone A Plexiglas window separated Willingham from her; still, courthouse in downtown Cor- Gilbert, who had short sicana. Jackson and a team of brown hair and a book- prosecutors summoned a pro- ish manner, stared at him cession of witnesses, includ- uneasily. Willingham had ing Johnny Webb and the Bar- once fought another pris- bees. The crux of the state’s oner who called him a case, though, remained the “baby killer,” and since scientific evidence gathered he had been incarcerated, by Vasquez and Fogg. On the seven years earlier, he had stand, Vasquez detailed what committed a series of dis- he called more than “twenty ciplinary infractions that indicators” of arson. had periodically landed “Do you have an opinion him in the segregation as to who started the fire?” unit, which was known as one of the prosecutors asked. “the dungeon.” “Yes, sir,” Vasquez said. Willingham greeted “Mr. Willingham.” her politely. He seemed The prosecutor asked grateful that she had Vasquez what he thought come. After his convic- Willingham’s intent was in tion, Stacy had cam- lighting the fire. “To kill the little girls,” he said. paigned for his release. She wrote to Ann Richards, then the The defense had tried to find a fire expert to counter governor of Texas, saying, “I know him in ways that no one Vasquez and Fogg’s testimony, but the one they contacted con- else does when it comes to our children. Therefore, I believe curred with the prosecution. Ultimately, the defense presented that there is no way he could have possibly committed this only one witness to the jury: the Willinghams’ babysitter, who crime.” But within a year Stacy had filed for divorce, and Will- said she could not believe that Willingham could have killed ingham had few visitors except for his parents, who drove from his children. (Dunn told me that Willingham had wanted to tes- Oklahoma to see him once a month. “I really have no one out- tify, but Martin and Dunn thought that he would make a bad side my parents to remind me that I am a human being, not the witness.) The trial ended after two days. animal the state professes I am,” he told Gilbert at one point. During his closing arguments, Jackson said that the pud- He didn’t want to talk about death row. “Hell, I live here,” dle configurations and pour patterns were Willingham’s inad- he later wrote her. “When I have a visit, I want to escape from vertent “confession,” burned into the floor. Showing a Bible here.” He asked her questions about her teaching and art. He that had been salvaged from the fire, Jackson paraphrased the expressed fear that, as a playwright, she might find him a “one- words of Jesus from the Gospel of Matthew: dimensional character,” and apologized for lacking social grac- “Whomsoever shall harm one of my children, it’s better es; he now had trouble separating the mores in prison from for a millstone to be hung around his neck and for him to be those of the outside world. cast in the sea.” When Gilbert asked him if he wanted something to eat or The jury was out for barely an hour before returning with drink from the vending machines, he declined. “I hope I did not a unanimous guilty verdict. As Vasquez put it, “The fire does offend you by not accepting any snacks,” he later wrote her. “I not lie.” didn’t want you to feel I was there just for something like that.” She had been warned that prisoners often tried to con visi- II tors. He appeared to realize this, subsequently telling her, “I am just a simple man. Nothing else. And to most other people a When Elizabeth Gilbert approached the prison guard, on convicted killer looking for someone to manipulate.” a spring day in 1999, and said Cameron Todd Willingham’s Their visit lasted for two hours, and afterward they contin- name, she was uncertain about what she was doing. A forty- ued to correspond. She was struck by his letters, which seemed seven- year- old French teacher and playwright from Houston, introspective, and were not at all what she had expected. “I am Gilbert was divorced with two children. She had never visited a very honest person with my feelings,” he wrote her. “I will a prison before. Several weeks earlier, a friend, who worked not bullshit you on how I feel or what I think.” He said that he at an organization that opposed the death penalty, had encour- used to be stoic, like his father. But, he added, “losing my three 48 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com daughters . . . my home, wife and my life, you tend to wake up ing about Willingham’s motive, and she pressed him on the a little. I have learned to open myself.” matter. In response, he wrote, of the death of his children, “I She agreed to visit him again, and when she returned, sev- do not talk about it much anymore and it is still a very power- eral weeks later, he was visibly moved. “Here I am this person fully emotional pain inside my being.” He admitted that he had who nobody on the outside is ever going to know as a human, been a “sorry- ass husband” who had hit Stacy—something he who has lost so much, but still trying to hold on,” he wrote her deeply regretted. But he said that he had loved his children and afterward. “But you came back! I don’t think you will ever would never have hurt them. Fatherhood, he said, had changed know of what importance that visit was in my existence.” him; he stopped being a hoodlum and “settled down” and “be- They kept exchanging letters, and she began asking him came a man.” Nearly three months before the fire, he and Stacy, about the fire. He insisted that he was innocent and that, if who had never married, wed at a small ceremony in his home someone had poured accelerant through the house and lit it, town of Ardmore. He said that the prosecution had seized upon then the killer remained free. Gilbert wasn’t naïve—she as- incidents from his past and from the day of the fire to create a sumed that he was guilty. She did not mind giving him solace, portrait of a “demon,” as Jackson, the prosecutor, referred to but she was not there to absolve him. him. For instance, Willingham said, he had moved the car dur- Still, she had become curious about the case, and one ing the fire simply because he didn’t want it to explode by the day that fall she drove down to the courthouse in Corsicana house, further threatening the children. to review the trial records. Many people in the community re- Gilbert was unsure what to make of his story, and she be- membered the tragedy, and a clerk expressed bewilderment gan to approach people who were involved in the case, asking that anyone would be interested in a man who had burned his them questions. “My friends thought I was crazy,” Gilbert re- children alive. calls. “I’d never done anything like this in my life.” Gilbert took the files One morning, when Will- and sat down at a small ingham’s parents came to visit table. As she examined him, Gilbert arranged to see the eyewitness accounts, them first, at a coffee shop she noticed several con- near the prison. Gene, who tradictions. Diane Barbee was in his seventies, had the had reported that, before Willingham look, though his the authorities arrived at black hair had gray streaks the fire, Willingham nev- and his dark eyes were magni- er tried to get back into fied by glasses. Eugenia, who the house—yet she had was in her fifties, with silvery been absent for some time hair, was as sweet and talk- while calling the Fire De- ative as her husband was stern partment. Meanwhile, her and reserved. The drive from daughter Buffie had re- Oklahoma to Texas took six ported witnessing Willing- hours, and they had woken at ham on the porch breaking three in the morning; because a window, in an apparent they could not afford a mo- effort to reach his chil- tel, they would have to return dren. And the firemen and police on the scene had described home later that day. “I feel like a real burden to them,” Willing- Willingham frantically trying to get into the house. ham had written Gilbert. The witnesses’ testimony also grew more damning after As Gene and Eugenia sipped coffee, they told Gilbert how authorities had concluded, in the beginning of January, 1992, grateful they were that someone had finally taken an interest in that Willingham was likely guilty of murder. In Diane Barbee’s Todd’s case. Gene said that his son, though he had flaws, was initial statement to authorities, she had portrayed Willingham no killer. as “hysterical,” and described the front of the house exploding. The evening before the fire, Eugenia said, she had spoken But on January 4th, after arson investigators began suspecting on the phone with Todd. She and Gene were planning on visit- Willingham of murder, Barbee suggested that he could have ing two days later, on Christmas Eve, and Todd told her that he gone back inside to rescue his children, for at the outset she had and Stacy and the kids had just picked up family photographs. seen only “smoke coming from out of the front of the house”— “He said, ‘We got your pictures for Christmas,’ ” she recalled. smoke that was not “real thick.” “He put Amber on the phone, and she was tattling on one of An even starker shift occurred with Father Monaghan’s the twins. Todd didn’t seem upset. If something was bothering testimony. In his first statement, he had depicted Willingham him, I would have known.” as a devastated father who had to be repeatedly restrained from Gene and Eugenia got up to go: they didn’t want to miss risking his life. Yet, as investigators were preparing to arrest any of the four hours that were allotted for the visit with their Willingham, he concluded that Willingham had been too emo- son. Before they left, Gene said, “You’ll let us know if you find tional (“He seemed to have the type of distress that a wom- anything, won’t you?” an who had given birth would have upon seeing her children Over the next fewweeks,Gilbert continued to track down die”); and he expressed a “gut feeling” that Willingham had sources.Many of them, including the Barbees, remained con- “something to do with the setting of the fire.” vinced that Willingham was guilty, but several of his friends Dozens of studies have shown that witnesses’ memories of and relatives had doubts. So did some people in law enforce- events often change when they are supplied with new contex- ment. Willingham’s former probation officer in Oklahoma, tual information. Itiel Dror, a cognitive psychologist who has Polly Goodin, recently told me that Willingham had never done extensive research on eyewitness and expert testimony demonstrated bizarre or sociopathic behavior. “He was prob- in criminal investigations, told me, “The mind is not a passive ably one of my favorite kids,” she said. Even a former judge machine. Once you believe in something—once you expect named Bebe Bridges—who had often stood, as she put it, on something—it changes the way you perceive information and the “opposite side” ofWillingham in the legal system, and the way your memory recalls it.” who had sent him to jail for stealing—told me that she could After Gilbert’s visit to the courthouse, she kept wonder- not imagine him killing his children.“Hewas polite,and he 49 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 seemed to care,”she said.“His convictions had been for dumb- psychiatrist. He testified so often for the prosecution in capital- kid stuff. Even the things stolen weren’t significant.” Several punishment cases that he had become known as Dr. Death. (A months before the fire,Willingham tracked Goodin down at Texas appellate judge once wrote that when Grigson appeared her office, and proudly showed her photographs of Stacy and on the stand the defendant might as well “commence writing the kids. “He wantedBebe and me to knowhe’d been doing out his last will and testament.”) Grigson suggested that Will- good,”Goodin recalled. ingham was an “extremely severe sociopath,” and that “no pill” Eventually, Gilbert returned to Corsicana to interview Sta- or treatment could help him. Grigson had previously used near- cy, who had agreed to meet at the bed- and- breakfast where ly the same words in helping to secure a death sentence against Gilbert was staying. Stacy was slightly plump, with pale, round Randall Dale Adams, who had been convicted of murdering a cheeks and feathered dark- blond hair; her bangs were held in police officer, in 1977. After Adams, who had no prior crimi- place by gel, and her face was heavily made up. According nal record, spent a dozen years on death row—and once came to a tape recording of the conversation, Stacy said that noth- within seventy- two hours of being executed—new evidence ing unusual had happened in the days before the fire. She and emerged that absolved him, and he was released. In 1995, three Willingham had not fought, and were preparing for the holi- years after Willingham’s trial, Grigson was expelled from the day. Though Vasquez, the arson expert, had recalled finding the American Psychiatric Association for violating ethics. The as- space heater off, Stacy was sure that, at least on the day of the sociation stated that Grigson had repeatedly arrived at a “psy- incident—a cool winter morning—it had been on. “I remember chiatric diagnosis without first having examined the individu- turning it down,” she recalled. “I always thought, Gosh, could als in question, and for indicating, while testifying in court as Amber have put something in there?” Stacy added that, more an expert witness, that he could predict with 100- per- cent cer- than once, she had caught Amber “putting things too close to tainty that the individuals would engage in future violent acts.” it.” Willingham had often not treated her well, she recalled, and after his incarceration After speaking to Stacy, she had left him for a man Gilbert had one more person who did. But she didn’t she wanted to interview: the think that her former hus- jailhouse informant Johnny band should be on death Webb, who was incarcerated row. “I don’t think he did in Iowa Park, Texas. She wrote it,” she said, crying. to Webb, who said that she Though only the bab- could see him, and they met ysitter had appeared as a in the prison visiting room. A witness for the defense man in his late twenties, he during the main trial, had pallid skin and a closely several family members, shaved head; his eyes were including Stacy, testified jumpy, and his entire body during the penalty phase, seemed to tremble. A reporter asking the jury to spare who once met him described Willingham’s life. When him to me as “nervous as a cat Stacy was on the stand, around rocking chairs.” Webb Jackson grilled her about had begun taking drugs when the “significance” of he was nine years old, and had Willingham’s “very large tattoo of a skull, encircled by some been convicted of, among other things, car theft, selling mari- kind of a serpent.” juana, forgery, and robbery. “It’s just a tattoo,” Stacy responded. As Gilbert chatted with him, she thought that he seemed “He just likes skulls and snakes. Is that what you’re say- paranoid. During Willingham’s trial, Webb disclosed that he ing?” had been given a diagnosis of “post- traumatic stress disorder” “No. He just had—he got a tattoo on him.” after he was sexually assaulted in prison, in 1988, and that he The prosecution cited such evidence in asserting that Will- often suffered from “mental impairment.” Under cross- exami- ingham fit the profile of a sociopath, and brought forth two nation, Webb testified that he had no recollection of a robbery medical experts to confirm the theory. Neither had met Will- that he had pleaded guilty to only months earlier. ingham. One of them was Tim Gregory, a psychologist with a Webb repeated for her what he had said in court: he had master’s degree in marriage and family issues, who had previ- passed by Willingham’s cell, and as they spoke through a food ously gone goose hunting with Jackson, and had not published slot Willingham broke down and told him that he intention- any research in the field of sociopathic behavior. His practice ally set the house on fire. Gilbert was dubious. It was hard to was devoted to family counseling. believe that Willingham, who had otherwise insisted on his in- At one point, Jackson showed Gregory Exhibit No. 60—a nocence, had suddenly confessed to an inmate he barely knew. photograph of an Iron Maiden poster that had hung in Willing- The conversation had purportedly taken place by a speaker ham’s house—and asked the psychologist to interpret it. “This system that allowed any of the guards to listen—an unlikely one is a picture of a skull, with a fist being punched through spot for an inmate to reveal a secret. What’s more, Webb al- the skull,” Gregory said; the image displayed “violence” and leged that Willingham had told him that Stacy had hurt one of “death.” Gregory looked at photographs of other music posters the kids, and that the fire was set to cover up the crime. The owned by Willingham. “There’s a hooded skull, with wings autopsies, however, had revealed no bruises or signs of trauma and a hatchet,” Gregory continued. “And all of these are in fire, on the children’s bodies. depicting—it reminds me of something like Hell. And there’s Jailhouse informants, many of whom are seeking reduced a picture—a Led Zeppelin picture of a falling angel. . . . I see time or special privileges, are notoriously unreliable. Accord- there’s an association many times with cultive- type of activi- ing to a 2004 study by the Center on Wrongful Convictions, ties. A focus on death, dying. Many times individuals that have at Northwestern University Law School, lying police and jail- a lot of this type of art have interest in satanic- type activities.” house informants are the leading cause of wrongful convictions The other medical expert was James P. Grigson, a forensic in capital cases in the United States. At the time that Webb 50 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com came forward against Willingham, he was facing charges of fully, that he had been abducted by a band of criminals and sold robbery and forgery. DuringWillingham’s trial, another inmate into slavery. Whatever happened, one thing was indisputable: planned to testify that he had overheardWebb saying to another he had not been murdered by the Perrys. prisoner that he was hoping to “get time cut,” but the testimony The fear that an innocent person might be executed has was ruled inadmissible, because it was hearsay. Webb, who long haunted jurors and lawyers and judges. During America’s pleaded guilty to the robbery and forgery charges, received a Colonial period, dozens of crimes were punishable by death, sentence of fifteen years. Jackson, the prosecutor, told me that including horse thievery, blasphemy, “man- stealing,” and he generally considered Webb “an unreliable kind of guy,” but highway robbery. After independence, the number of crimes added, “I saw no real motive for him to make a statement like eligible for the death penalty was gradually reduced, but doubts this if it wasn’t true. We didn’t cut him any slack.” In 1997, five persisted over whether legal procedures were sufficient to pre- years after Willingham’s trial, Jackson urged the Texas Board vent an innocent person from being executed. In 1868, John of Pardons and Paroles to grant Webb parole. “I asked them Stuart Mill made one of the most eloquent defenses of capital to cut him loose early,” Jackson told me. The reason, Jackson punishment, arguing that executing a murderer did not display said, was that Webb had been targeted by the Aryan Brother- a wanton disregard for life but, rather, proof of its value. “We hood. The board granted Webb parole, but within months of show, on the contrary, most emphatically our regard for it by his release he was caught with cocaine and returned to prison. the adoption of a rule that he who violates that right in another In March, 2000, several months after Gilbert’s visit, Webb forfeits it for himself,” he said. For Mill, there was one coun- unexpectedly sent Jackson a Motion to Recant Testimony, de- terargument that carried weight—“that if by an error of justice claring, “Mr. Willingham is innocent of all charges.” But Will- an innocent person is put to death, the mistake can never be ingham’s lawyer was not informed of this development, and corrected.” soon afterward Webb, without explanation, recanted his recan- The modern legal system, with its lengthy appeals process tation. When I recently asked Webb, and clemency boards, was widely who was released from prison two assumed to protect the kind of “er- years ago, about the turnabout and ror of justice” that Mill feared. why Willingham would have con- In 2000, while George W. Bush fessed to a virtual stranger, he said was governor of Texas, he said, “I that he knew only what “the dude know there are some in the coun- told me.” After I pressed him, he try who don’t care for the death said, “It’s very possible I misunder- penalty, but . . . we’ve adequately stood what he said.” Since the trial, answered innocence or guilt.” Webb has been given an additional His top policy adviser on issues diagnosis, bipolar disorder. “Being of criminal justice emphasized locked up in that little cell makes that there is “super due process to you kind of crazy,” he said. “My make sure that no innocent defen- memory is in bits and pieces. I was dants are executed.” on a lot Gran_9780385517928_1p_ In recent years, though, ques- all_r1.f.qxp 11/16/09 3:25 PM Page tions have mounted over whether 56 Tr i a l b y Fi r e 57 of medication the system is fail- safe. Since at the time. Everyone knew that.” 1976, more than a hundred and He paused, then said, “The statute thirty people on death row have of limitations has run out on perjury, been exonerated. DNA testing, hasn’t it?” which was developed in the eight- Aside from the scientific evi- ies, saved seventeen of them, but dence of arson, the case against the technique can be used only in Willingham did not stand up to scrutiny. Jackson, the prosecu- rare instances. Barry Scheck, a co- founder of the Innocence tor, said of Webb’s testimony, “You can take it or leave it.” Project, which has used DNA testing to exonerate prisoners, Even the refrigerator’s placement by the back door of the house estimates that about eighty per cent of felonies do not involve turned out to be innocuous; there were two refrigerators in the biological evidence. cramped kitchen, and one of them was by the back door. Jim- In 2000, after thirteen people on death row in Illinois were mie Hensley, the police detective, and Douglas Fogg, the as- exonerated, George Ryan, who was then governor of the state, sistant fire chief, both of whom investigated the fire, told me suspended the death penalty. Though he had been a longtime recently that they had never believed that the fridge was part advocate of capital punishment, he declared that he could no of the arson plot. “It didn’t have nothing to do with the fire,” longer support a system that has “come so close to the ulti- Fogg said. mate nightmare—the state’s taking of innocent life.” Former After months of investigating the case, Gilbert found that Supreme Court Justice Sandra Day O’Connor has said that the her faith in the prosecution was shaken. As she told me, “What “execution of a legally and factually innocent person would be if Todd really was innocent?” a constitutionally intolerable event.” Such a case has become a kind of grisly Holy Grail among opponents of capital punishment. In his 2002 book “The Death III Penalty,” Stuart Banner observes, “The prospect of killing an innocent person seemed to be the one thing that could cause In the summer of 1660, an Englishman named William people to rethink their support for capital punishment. Some Harrison vanished on a walk, near the village of Charingworth, who were not troubled by statistical arguments against the in Gloucestershire. His bloodstained hat was soon discovered death penalty—claims about deterrence or racial disparities— on the side of a local road. Police interrogated Harrison’s ser- were deeply troubled that such an extreme injustice might oc- vant, John Perry, and eventually Perry gave a statement that his cur in an individual case.” Opponents of the death penalty have mother and his brother had killed Harrison for money. Perry, pointed to several questionable cases. In 1993, Ruben Cantu his mother, and his brother were hanged. was executed in Texas for fatally shooting a man during a rob- Two years later, Harrison reappeared. He insisted, fanci- bery. Years later, a second victim, who survived the shooting, 51 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 told the Houston Chronicle that he had been pressured by po- Willingham told a friend that if he hadn’t stood up for himself lice to identify Cantu as the gunman, even though he believed several inmates would have “beaten me up or raped or”—his Cantu to be innocent. Sam Millsap, the district attorney in the thought trailed off. case, who had once supported capital punishment (“I’m no Over the years, Willingham’s letters home became increas- wild- eyed, pointy- headed liberal”), said that he was disturbed ingly despairing. “This is a hard place, and it makes a person by the thought that he had made a mistake. hard inside,” he wrote. “I told myself that was one thing I did In 1995, Larry Griffin was put to death in Missouri, for a not want and that was for this place to make me bitter, but it is drive- by shooting of a drug dealer. The case rested largely on hard.” He went on, “They have [executed] at least one person the eyewitness testimony of a career criminal named Robert every month I have been here. It is senseless and brutal. . . . You Fitzgerald, who had been an informant for prosecutors before see, we are not living in here, we are only existing.” In 1996, he and was in the witness- protection program. Fitzgerald main- wrote, “I just been trying to figure out why after having a wife tained that he happened to be at the scene because his car had and 3 beautiful children that I loved my life has to end like this. broken down. After Griffin’s execution, a probe sponsored by And sometimes it just seems like it is not worth it all. . . . In the NAACP’s Legal Defense and Educational Fund revealed the 31⁄2 years I been here I have never felt that my life was as that a man who had been wounded during the incident insisted worthless and desolate as it is now.” Since the fire, he wrote, he that Griffin was not the shooter. Moreover, the first police of- had the sense that his life was slowly being erased. He obses- ficer at the scene disputed that Fitzgerald had witnessed the sively looked at photographs of his children and Stacy, which crime. he stored in his cell. “So long ago, so far away,” he wrote in a These cases, however, stopped short of offering irrefutable poem. “Was everything truly there?” proof that a “legally and factually innocent person” was exe- Inmates on death row are housed in a prison within a cuted. In 2005, a St. Louis prosecutor, Jennifer Joyce, launched prison, where there are no attempts at rehabilitation, and no an investigation of the Griffin case, upon being presented with educational or training programs. In 1999, after seven prison- what she called “compelling” evidence of Griffin’s potential ers tried to escape from Huntsville, Willingham and four hun- innocence. After two years of re- dred and fifty- nine other viewing the evidence, and inter- inmates on death row were viewing a new eyewitness, Joyce moved to a more secure fa- said that she and her team were cility, in Livingston, Texas. convinced that the “right person Willingham was held in was convicted.” isolation in a sixty- square- Supreme Court Justice An- foot cell, twenty- three tonin Scalia, in 2006, voted with hours a day. He tried to dis- a majority to uphold the death tract himself by drawing— penalty in a Kansas case. In his “amateur stuff,” as he put opinion, Scalia declared that, in it—and writing poems. In the modern judicial system, there a poem about his children, has not been “a single case—not he wrote, “There is nothing one—in which it is clear that a more beautiful than you on person was executed for a crime this earth.” When Gilbert he did not commit. If such an once suggested some pos- event had occurred in recent sible revisions to his poems, years, we would not have to hunt he explained that he wrote for it; the innocent’s name would them simply as expressions, be shouted from the rooftops.” however crude, of his feelings. “So to me to cut them up and try to improve on them just for creative- writing purposes would be to destroy what I was “My problems are simple,” Willingham wrote Gilbert in doing to start with,” he said. September, 1999. “Try to keep them from killing me at all Despite his efforts to occupy his thoughts, he wrote in his costs. End of story.” diary that his mind “deteriorates each passing day.” He stopped During his first years on death row, Willingham had plead- working out and gained weight. He questioned his faith: “No ed with his lawyer, David Martin, to rescue him. “You can’t God who cared about his creation would abandon the inno- imagine what it’s like to be here, with people I have no busi- cent.” He seemed not to care if another inmate attacked him. ness even being around,” he wrote. “A person who is already dead inside does not fear” death, he For a while, Willingham shared a cell with Ricky Lee wrote. Green, a serial killer, who castrated and fatally stabbed his vic- One by one, the people he knew in prison were escorted tims, including a sixteenyear- old boy. (Green was executed in into the execution chamber. There was Clifton Russell, Jr., 1997.) Another of Willingham’s cellmates, who had an I.Q. be- who, at the age of eighteen, stabbed and beat a man to death, low seventy and the emotional development of an eight- year- and who said, in his last statement, “I thank my Father, God in old, was raped by an inmate. “You remember me telling you I Heaven, for the grace he has granted me—I am ready.” There had a new celly?” Willingham wrote in a letter to his parents. was Jeffery Dean Motley, who kidnapped and fatally shot a “The little retarded boy. . . . There was this guy here on the woman, and who declared, in his final words, “I love you, wing who is a shit sorry coward (who is the same one I got into Mom. Goodbye.” And there was John Fearance, who murdered it with a little over a month ago). Well, he raped [my cellmate] his neighbor, and who turned to God in his last moments and in the 3 row shower week before last.” Willingham said that he said, “I hope He will forgive me for what I done.” couldn’t believe that someone would “rape a boy who cannot Willingham had grown close to some of his prison mates, even defend himself. Pretty damn low.” even though he knew that they were guilty of brutal crimes. Because Willingham was known as a “baby killer,” he was In March, 2000, Willingham’s friend Ponchai Wilkerson—a a target of attacks. “Prison is a rough place, and with a case like twenty- eight- year- old who had shot and killed a clerk during mine they never give you the benefit of a doubt,” he wrote his a jewelry heist—was executed. Afterward, Willingham wrote parents. After he tried to fight one prisoner who threatened him, in his diary that he felt “an emptiness that has not been touched 52 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com since my children were taken from me.” A year later, another irresponsible, or overburdened,” as a study by the Texas De- friend who was about to be executed—“one of the few real fender Service, a nonprofit organization, put it. In 2000, a Dal- people I have met here not caught up in the bravado of pris- las Morning News investigation revealed that roughly a quarter on”—asked Willingham to make him a final drawing. “Man, I of the inmates condemned to death in Texas were represented never thought drawing a simple Rose could be so emotionally by court- appointed attorneys who had, at some point in their hard,” Willingham wrote. “The hard part is knowing that this careers, been “reprimanded, placed on probation, suspended or will be the last thing I can do for him.” banned from practicing law by the State Bar.” Although Reaves Another inmate, Ernest Ray Willis, had a case that was was more competent, he had few resources to reinvestigate the freakishly similar to Willingham’s. In 1987, Willis had been case, and his writ introduced no new exculpatory evidence: convicted of setting a fire, in West Texas, that killed two nothing further about Webb, or the reliability of the eyewitness women. Willis told investigators that he had been sleeping on testimony, or the credibility of the medical experts. It focussed a friend’s living- room couch and woke up to a house full of primarily on procedural questions, such as whether the trial smoke. He said that he tried to rouse one of the women, who court erred in its instructions to the jury. was sleeping in another room, but the flames and smoke drove The Texas Court of Criminal Appeals was known for up- him back, and he ran out the front door before the house ex- holding convictions even when overwhelming exculpatory evi- ploded with flames. Witnesses maintained that Willis had acted dence came to light. In 1997, DNA testing proved that sperm suspiciously; he moved his car out of the yard, and didn’t show collected from a rape victim did not match Roy Criner, who “any emotion,” as one volunteer firefighter put it. Authorities had been sentenced to ninety- nine years for the crime. Two also wondered how Willis could have escaped the house with- lower courts recommended that the verdict be overturned, but out burning his bare feet. Fire investigators found pour patterns, the Court of Criminal Appeals upheld it, arguing that Criner puddle configurations, and other signs of arson. The authorities might have worn a condom or might not have ejaculated. Sha- could discern no motive for the crime, but concluded that Wil- ron Keller, who is now the presiding judge on the court, stated lis, who had no previous record of violence, was a sociopath— in a majority opinion, “The new evidence does not establish a “demon,” as the prosecutor put it. Willis was charged with innocence.” In 2000, George W. Bush pardoned Criner. (Keller capital murder and sentenced was recently charged with to death. judicial misconduct, for re- Willis had eventually fusing to keep open past five obtained what Willingham o’clock a clerk’s office in called, enviously, a “bad- ass order to allow a last- minute lawyer.” James Blank, a noted petition from a man who was patent attorney in New York, executed later that night.) was assigned Willis’s case as On October 31, 1997, part of his firm’s pro- bono the Court of Criminal Ap- work. Convinced that Willis peals denied Willingham’s was innocent, Blank devoted writ. After Willingham filed more than a dozen years to another writ of habeas cor- the case, and his firm spent pus, this time in federal millions, on fire consultants, court, he was granted a tem- private investigators, forensic porary stay. In a poem, Will- experts, and the like. Willing- ingham wrote, “One more ham, meanwhile, relied on chance, one more strike / David Martin, his court- ap- Another bullet dodged, an- pointed lawyer, and one of other date escaped.” Martin’s colleagues to handle his appeals. Willingham often Willingham was entering his final stage of appeals. As his told his parents, “You don’t know what it’s like to have lawyers anxieties mounted, he increasingly relied upon Gilbert to in- who won’t even believe you’re innocent.” Like many inmates vestigate his case and for emotional support. “She may never on death row, Willingham eventually filed a claim of inadequate know what a change she brought into my life,” he wrote in his legal representation. (When I recently asked Martin about his diary. “For the first time in many years she gave me a purpose, representation of Willingham, he said, “There were no grounds something to look forward to.” for reversal, and the verdict was absolutely the right one.” He As their friendship deepened, he asked her to promise him said of the case, “Shit, it’s incredible that anyone’s even think- that she would never disappear without explanation. “I already ing about it.”) have that in my life,” he told her. Willingham tried to study the law himself, reading books Together, they pored over clues and testimony. Gilbert says such as “Tact in Court, or How Lawyers Win: Containing that she would send Reaves leads to follow up, but although he Sketches of Cases Won by Skill, Wit, Art, Tact, Courage and was sympathetic, nothing seemed to come of them. In 2002, a Eloquence.” Still, he confessed to a friend, “The law is so com- federal district court of appeals denied Willingham’s writ with- plicated it is hard for me to understand.” In 1996, he obtained out even a hearing. “Now I start the last leg of my journey,” a new court- appointed lawyer, Walter Reaves, who told me Willingham wrote to Gilbert. “Got to get things in order.” that he was appalled by the quality of Willingham’s defense He appealed to the U.S. Supreme Court, but in December, at trial and on appeal. Reaves prepared for him a state writ of 2003, he was notified that it had declined to hear his case. He habeas corpus, known as a Great Writ. In the byzantine appeals soon received a court order announcing that “the Director of process of death- penalty cases, which frequently takes more the Department of Criminal Justice at Huntsville, Texas, acting than ten years, the writ is the most critical stage: a prisoner can by and through the executioner designated by said Director . . introduce new evidence detailing such things as perjured testi- . is hereby directed and commanded, at some hour after 6:00 mony, unreliable medical experts, and bogus scientific findings. p.m. on the 17th day of February, 2004, at the Department of Yet most indigent inmates, like Willingham, who constitute the Criminal Justice in Huntsville, Texas, to carry out this sentence bulk of those on death row, lack the resources to track down of death by intravenous injection of a substance or substances new witnesses or dig up fresh evidence. They must depend in a lethal quantity sufficient to cause the death of said Cam- on court- appointed lawyers, many of whom are “unqualified, eron Todd Willingham.” 53 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Willingham wrote a letter to his parents. “Are you sitting was shocked by what he saw. down?” he asked, before breaking the news. “I love you both Many arson investigators, it turned out, had only a high- so much,” he said. school education. In most states, in order to be certified, inves- His only remaining recourse was to appeal to the governor tigators had to take a forty- hour course on fire investigation, of Texas, Rick Perry, a Republican, for clemency. The process, and pass a written exam. Often, the bulk of an investigator’s considered the last gatekeeper to the executioner, has been training came on the job, learning from “oldtimers” in the field, called by the U.S. Supreme Court “the ‘fail safe’ in our crimi- who passed down a body of wisdom about the telltale signs of nal justice system.” arson, even though a study in 1977 warned that there was nothing in “the scientific literature to substantiate their validity.” In 1992, the National Fire Protection Association, which IV promotes fire prevention and safety, published its first scientifically based guidelines to arson investigation. Still, many arson One day in January, 2004, Dr. Gerald Hurst, an acclaimed investigators believed that what they did was more an art than scientist and fire investigator, received a file describing all the a science—a blend of experience and intuition. In 1997, the evidence of arson gathered in Willingham’s case. Gilbert had International Association of Arson Investigators filed a legal come across Hurst’s name and, along with one of Willingham’s brief arguing that arson sleuths should not be bound by a 1993 relatives, had contacted him, seeking his help. After their pleas, Supreme Court decision requiring experts who testified at trials Hurst had agreed to look at the case pro bono, and Reaves, to adhere to the scientific method. What arson sleuths did, the Willingham’s lawyer, had sent him the relevant documents, in brief claimed, was “less scientific.” By 2000, after the courts the hope that there were grounds for clemency. had rejected such claims, arson investigators increasingly rec- Hurst opened the file in the basement of his house in ognized the scientific method, but there remained great vari- Austin, which served as a laboratory and an office, and was ance in the field, with many practitioners still relying on the un- cluttered with microscopes and diagrams of half- finished ex- verified techniques that had been used for generations. “People periments. Hurst was nearly six and half feet tall, though his investigated fire largely with a flat- earth approach,” Hurst told stooped shoulders made him seem considerably shorter, and me. “It looks like arson—therefore, it’s arson.” He went on, he had a gaunt face that was part- “My view is you have to have a ly shrouded by long gray hair. He scientific basis. Otherwise, it’s was wearing his customary outfit: no different than witch- hunt- black shoes, black socks, a black ing.” T- shirt, and loose- fitting black In 1998, Hurst investigat- pants supported by black sus- ed the case of a woman from penders. In his mouth was a wad North Carolina named Terri of chewing tobacco. Hinson, who was charged with A child prodigy who was setting a fire that killed her sev- raised by a sharecropper during enteen- month- old son, and the Great Depression, Hurst used faced the death penalty. Hurst to prowl junk yards, collecting ran a series of experiments re- magnets and copper wires in order creating the conditions of the to build radios and other contrap- fire, which suggested that it tions. In the early sixties, he re- had not been arson, as the in- ceived a Ph.D. in chemistry from vestigators had claimed; rather, Cambridge University, where he it had started accidentally, from started to experiment with fluorine and other explosive chemi- a faulty electrical wire in the attic. Because of this research, cals, and once detonated his lab. Later, he worked as the chief Hinson was freed. John Lentini, a fire expert and the author of scientist on secret weapons programs for several American a leading scientific textbook on arson, describes Hurst as “bril- companies, designing rockets and deadly fire bombs—or what liant.” A Texas prosecutor once told the Chicago Tribune, of he calls “god- awful things.” He helped patent what has been Hurst, “If he says it was an arson fire, then it was. If he says it described, with only slight exaggeration, as “the world’s most wasn’t, then it wasn’t.” powerful nonnuclear explosive”: an Astrolite bomb. He experi- Hurst’s patents yielded considerable royalties, and he mented with toxins so lethal that a fraction of a drop would could afford to work pro bono on an arson case for months, rot human flesh, and in his laboratory he often had to wear a even years. But he received the files on Willingham’s case only pressurized moon suit; despite such precautions, exposure to a few weeks before Willingham was scheduled to be execut- chemicals likely caused his liver to fail, and in 1994 he re- ed. As Hurst looked through the case records, a statement by quired a transplant. Working on what he calls “the dark side of Manuel Vasquez, the state deputy fire marshal, jumped out at arson,” he retrofitted napalm bombs with Astrolite, and devel- him. Vasquez had testified that, of the roughly twelve hundred oped ways for covert operatives in Vietnam to create bombs to fifteen hundred fires he had investigated, “most all of them” from local materials, such as chicken manure and sugar. He were arson. This was an oddly high estimate; the Texas State also perfected a method for making an exploding T- shirt by Fire Marshals Office typically found arson in only fifty per cent nitrating its fibres. of its cases. His conscience eventually began pricking him. “One day, Hurst was also struck by Vasquez’s claim that the Will- you wonder, What the hell am I doing?” he recalls. He left the ingham blaze had “burned fast and hot” because of a liquid defense industry, and went on to invent the Mylar balloon, an accelerant. The notion that a flammable or combustible liquid improved version of Liquid Paper, and Kinepak, a kind of ex- caused flames to reach higher temperatures had been repeated plosive that reduces the risk of accidental detonation. Because in court by arson sleuths for decades. Yet the theory was non- of his extraordinary knowledge of fire and explosives, compa- sense: experiments have proved that wood and gasoline- fu- nies in civil litigation frequently sought his help in determining elled fires burn at essentially the same temperature. the cause of a blaze. By the nineties, Hurst had begun devot- Vasquez and Fogg had cited as proof of arson the fact that ing significant time to criminal- arson cases, and, as he was the front door’s aluminum threshold had melted. “The only exposed to the methods of local and state fire investigators, he thing that can cause that to react is an accelerant,” Vasquez 54 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com said. Hurst was incredulous. A natural- wood fire can reach temperatures as high as two thousand degrees Fahrenheit—far hotter than the melting point for aluminum alloys, which rang- On the evening of October 15, 1990, a thirty- five- year- es from a thousand to twelve hundred degrees. And, like many old man named Gerald Wayne Lewis was found standing in other investigators, Vasquez and Fogg mistakenly assumed that front of his house on Lime Street, in Jacksonville, Florida, wood charring beneath the aluminum threshold was evidence holding his three- year- old son. His two- story wood- frame that, as Vasquez put it, “a liquid accelerant flowed underneath home was engulfed in flames. By the time the fire had been and burned.” Hurst had conducted myriad experiments show- extinguished, six people were dead, including Lewis’s wife. ing that such charring was caused simply by the aluminum con- Lewis said that he had rescued his son but was unable to get to ducting so much heat. In fact, when liquid accelerant is poured the others, who were upstairs. under a threshold a fire will extinguish, because of a lack of ox- When fire investigators examined the scene, they found ygen. (Other scientists had reached the same conclusion.) “Liq- the classic signs of arson: low burns along the walls and floors, uid accelerants can no more burn under an aluminum threshold pour patterns and puddle configurations, and a burn trailer run- than can grease burn in a skillet even with a loose- fitting lid,” ning from the living room into the hallway. Lewis claimed Hurst declared in his report on the Willingham case. that the fire had started accidentally, on a couch in the living Hurst then examined Fogg and Vasquez’s claim that the room—his son had been playing with matches. But a V- shaped “brown stains” on Willingham’s front porch were evidence of pattern by one of the doors suggested that the fire had origi- “liquid accelerant,” which had not had time to soak into the nated elsewhere. Some witnesses told authorities that Lewis concrete. Hurst had previously performed a test in his garage, seemed too calm during the fire and had never tried to get in which he poured charcoal- lighter fluid on the concrete floor, help. According to the Los Angeles Times, Lewis had previ- and lit it. When the fire went out, there were no brown stains, ously been arrested for abusing his wife, who had taken out only smudges of soot. Hurst had run the same experiment a restraining order against him. After a chemist said that he many times, with different kinds of liquid accelerants, and the had detected the presence of gasoline on Lewis’s clothing and result was always the same. Brown stains shoes, a report by the sheriff ’s office con- were common in fires; they were usually cluded, “The fire was started as a result of a composed of rust or gunk from charred petroleum product being poured on the front debris that had mixed with water from porch, foyer, living room, stairwell and sec- fire hoses. ond floor bedroom.” Lewis was arrested and Another crucial piece of evidence charged with six counts of murder. He faced implicating Willingham was the “crazed the death penalty. glass” that Vasquez had attributed to the Subsequent tests, however, revealed rapid heating from a fire fuelled with liq- that the laboratory identification of gasoline uid accelerant. Yet, in November of 1991, was wrong. Moreover, a local news televi- a team of fire investigators had inspected sion camera had captured Lewis in a clearly fifty houses in the hills of Oakland, Cali- agitated state at the scene of the fire, and in- fornia, which had been ravaged by brush vestigators discovered that at one point he fires. In a dozen houses, the investigators had jumped in front of a moving car, asking discovered crazed glass, even though a the driver to call the Fire Department. liquid accelerant had not been used. Most Seeking to bolster their theory of the of these houses were on the outskirts of crime, prosecutors turned to John Lentini, the blaze, where firefighters had shot the fire expert, and John DeHaan, another streams of water; as the investigators lat- leading investigator and textbook author. er wrote in a published study, they theo- Despite some of the weaknesses of the case, rized that the fracturing had been induced Lentini told me that, given the classic burn by rapid cooling, rather than by sudden patterns and puddle configurations in the heating—thermal shock had caused the house, he was sure that Lewis had set the glass to contract so quickly that it settled fire: “I was prepared to testify and send this disjointedly. The investigators then tested guy to Old Sparky”—the electric chair. this hypothesis in a laboratory. When they heated glass, noth- To discover the truth, the investigators, with the backing ing happened. But each time they applied water to the heated of the prosecution, decided to conduct an elaborate experiment glass the intricate patterns appeared. Hurst had seen the same and re- create the fire scene. Local officials gave the investi- phenomenon when he had blowtorched and cooled glass dur- gators permission to use a condemned house next to Lewis’s ing his research at Cambridge. In his report, Hurst wrote that home, which was about to be torn down. The two houses were Vasquez and Fogg’s notion of crazed glass was no more than virtually identical, and the investigators refurbished the con- an “old wives’ tale.” demned one with the same kind of carpeting, curtains, and fur- Hurst then confronted some of the most devastating arson niture that had been in Lewis’s home. The scientists also wired evidence against Willingham: the burn trailer, the pour patterns the building with heat and gas sensors that could withstand fire. and puddle configurations, the V- shape and other burn marks The cost of the experiment came to twenty thousand dollars. indicating that the fire had multiple points of origin, the burn- Without using liquid accelerant, Lentini and DeHaan set the ing underneath the children’s beds. There was also the posi- couch in the living room on fire, expecting that the experiment tive test for mineral spirits by the front door, and Willingham’s would demonstrate that Lewis’s version of events was implau- seemingly implausible story that he had run out of the house sible. without burning his bare feet. The investigators watched as the fire quickly consumed As Hurst read through more of the files, he noticed that the couch, sending upward a plume of smoke that hit the ceil- Willingham and his neighbors had described the windows in ing and spread outward, creating a thick layer of hot gases the front of the house suddenly exploding and flames roaring overhead—an efficient radiator of heat. Within three minutes, forth. It was then that Hurst thought of the legendary Lime this cloud, absorbing more gases from the fire below, was bank- Street Fire, one of the most pivotal in the history of arson in- ing down the walls and filling the living room. As the cloud vestigation. approached the floor, its temperature rose, in some areas, to 55 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 more than eleven hundred degrees Fahrenheit. Suddenly, the impossible for Willingham to have run down the burning hall- entire room exploded in flames, as the radiant heat ignited ev- way without scorching his bare feet. But if the pour patterns ery piece of furniture, every curtain, every possible fuel source, and puddle configurations were a result of a flashover, Hurst even the carpeting. The windows shattered. reasoned, then they were consonant with Willingham’s expla- The fire had reached what is called “flashover”—the point nation of events. When Willingham exited his bedroom, the at which radiant heat causes a fire in a room to become a room hallway was not yet on fire; the flames were contained within on fire. Arson investigators knew about the concept of flash- the children’s bedroom, where, along the ceiling, he saw the over, but it was widely believed to take much longer to oc- “bright lights.” Just as the investigator safely stood by the door cur, especially without a liquid accelerant. From a single fuel in the Lime Street experiment seconds before flashover, Will- source—a couch—the room had reached flashover in four and ingham could have stood close to the children’s room without a half minutes. being harmed. (Prior to the Lime Street case, fire investigators Because all the furniture in the living room had ignited, had generally assumed that carbon monoxide diffuses quickly the blaze went from a fuel- controlled fire to a ventilation- con- through a house during a fire. In fact, up until flashover, levels trolled fire—or what scientists call “post- flashover.” During of carbon monoxide can be remarkably low beneath and outpost- flashover, the path of the fire depends on new sources of side the thermal cloud.) By the time the Corsicana fire achieved oxygen, from an open door or window. One of the fire inves- flashover,Willingham had already fled outside and was in the tigators, who had been standing by an open door in the living front yard. room, escaped moments before the oxygen- starved fire roared Vasquez had made a videotape of the fire scene, and Hurst out of the room into the hallway—a fireball that caused the cor- looked at the footage of the burn trailer. Even after repeated ridor to go quickly into flashover as well, propelling the fire out viewings, he could not detect three points of origin, as Vasquez the front door and onto the porch. had. (Fogg recently told me that he also saw a continuous trail- After the fire was extinguished, the investigators inspect- er and disagreed with Vasquez, but added that nobody from the ed the hallway and living room. On the floor were irregularly prosecution or the defense ever asked him on the stand about shaped burn patterns that perfectly resembled pour patterns and his opinion on the subject.) puddle configurations. It turned out that these classic signs of After Hurst had reviewed Fogg and Vasquez’s list of more arson can also appear on their own, after flashover. With the than twenty arson indicators, he believed that only one had any naked eye, it is impossible to distinguish between the pour pat- potential validity: the positive test for mineral spirits by the terns and puddle configurations caused by an accelerant and threshold of the front door. But why had the fire investigators those caused naturally by post- flashover. The only reliable obtained a positive reading only in that location? According way to tell the difference is to take samples from the burn to Fogg and Vasquez’s theory of the crime, Willingham had patterns and test them in a laboratory for the presence of flam- poured accelerant throughout the children’s bedroom and down mable or combustible liquids. the hallway. Officials had tested extensively in these areas—in- During the Lime Street experiment, other things happened cluding where all the pour patterns and puddle configurations that were supposed to occur only in a fire fuelled by liquid ac- were—and turned up nothing. Jackson told me that he “never celerant: charring along the base of the walls and doorways, did understand why they weren’t able to recover” positive tests and burning under furniture. There was also a V- shaped pat- in these parts. tern by the living- room doorway, far from where the fire had Hurst found it hard to imagine Willingham pouring ac- started on the couch. In a small fire, a V- shaped burn mark may celerant on the front porch, where neighbors could have seen pinpoint where a fire began, but during post- flashover these him. Scanning the files for clues, Hurst noticed a photograph patterns can occur repeatedly, when various objects ignite. of the porch taken before the fire, which had been entered into One of the investigators muttered that they had just helped evidence. Sitting on the tiny porch was a charcoal grill. The prove the defense’s case. Given the reasonable doubt raised by porch was where the family barbecued. Court testimony from the experiment, the charges against Lewis were soon dropped. witnesses confirmed that there had been a grill, along with a The Lime Street experiment had demolished prevailing notions container of lighter fluid, and that both had burned when the about fire behavior. Subsequent tests by scientists showed that, fire roared onto the porch during post- flashover. By the time during post- flashover, burning under beds and furniture was Vasquez inspected the house, the grill had been removed from common, entire doors were consumed, and aluminum thresh- the porch, during cleanup. Though he cited the container of olds melted. lighter fluid in his report, he made no mention of the grill. At John Lentini says of the Lime Street Fire, “This was my the trial, he insisted that he had never been told of the grill’s epiphany. I almost sent a man to die based on theories that were earlier placement. Other authorities were aware of the grill but a load of crap.” did not see its relevance. Hurst, however, was convinced that he had solved the mystery: when firefighters had blasted the porch with water, they had likely spread charcoal- lighter fluid Hurst next examined a floor plan of Willingham’s house from the melted container. that Vasquez had drawn, which delineated all the purported Without having visited the fire scene, Hurst says, it was pour patterns and puddle configurations. Because the windows impossible to pinpoint the cause of the blaze. But, based on had blown out of the children’s room, Hurst knew that the the evidence, he had little doubt that it was an accidental fire— fire had reached flashover. With his finger, Hurst traced along one caused most likely by the space heater or faulty electri- Vasquez’s diagram the burn trailer that had gone from the chil- cal wiring. It explained why there had never been a motive dren’s room, turned right in the hallway, and headed out the for the crime. Hurst concluded that there was no evidence of front door. John Jackson, the prosecutor, had told me that the arson, and that a man who had already lost his three children path was so “bizarre” that it had to have been caused by a liquid and spent twelve years in jail was about to be executed based accelerant. But Hurst concluded that it was a natural product on “junk science.” Hurst wrote his report in such a rush that he of the dynamics of fire during post- flashover. Willingham had didn’t pause to fix the typos. fled out the front door, and the fire simply followed the ventilation path, toward the opening. Similarly, when Willingham had V broken the windows in the children’s room, flames had shot outward. “I am a realist and I will not live a fantasy,” Willingham Hurst recalled that Vasquez and Fogg had considered it once told Gilbert about the prospect of proving his innocence. 56 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com But in February, 2004, he began to have hope. Hurst’s find- The Innocence Project obtained, through the Freedom of ings had helped to exonerate more than ten people. Hurst even Information Act, all the records from the governor’s office and reviewed the scientific evidence against Willingham’s friend the board pertaining to Hurst’s report. “The documents show Ernest Willis, who had been on death row for the strikingly that they received the report, but neither office has any record similar arson charge. Hurst says, “It was like I was looking of anyone acknowledging it, taking note of its significance, re- at the same case. Just change the names.” In his report on the sponding to it, or calling any attention to it within the govern- Willis case, Hurst concluded that not “a single item of physical ment,” Barry Scheck said. “The only reasonable conclusion is evidence . . . supports a finding of arson.” A second fire expert that the governor’s office and the Board of Pardons and Paroles hired by Ori White, the new district attorney in Willis’s district, ignored scientific evidence.” concurred. After seventeen years on death row, Willis was set LaFayette Collins, who was a member of the board at the free. “I don’t turn killers loose,” White said at the time. “If time, told me of the process, “You don’t vote guilt or inno- Willis was guilty, I’d be retrying him right now. And I’d use cence. You don’t retry the trial. You just make sure everything Hurst as my witness. He’s a brilliant scientist.” White noted is in order and there are no glaring errors.” He noted that al- how close the system had come to murdering an innocent man. though the rules allowed for a hearing to consider important “He did not get executed, and I thank God for that,” he said. new evidence, “in my time there had never been one called.” On February 13th, four days before Willingham was When I asked him why Hurst’s report didn’t constitute evi- scheduled to be executed, he got a call from Reaves, his at- dence of “glaring errors,” he said, “We get all kinds of reports, torney. Reaves told him that the fifteen members of the Board but we don’t have the mechanisms to vet them.” Alvin Shaw, of Pardons and Paroles, which reviews an application for clem- another board member at the time, said that the case didn’t ency and had been sent Hurst’s report, had made their decision. “ring a bell,” adding, angrily, “Why would I want to talk about “What is it?” Willingham asked. it?” Hurst calls the board’s actions “unconscionable.” “I’m sorry,” Reaves said. “They denied your petition.” Though Reaves told Willingham that there was still a The vote was unanimous. Reaves could not offer an ex- chance that Governor Perry might grant a thirty- day stay, Will- planation: the board deliberates in secret, and its members are ingham began to prepare his last will and testament. He had not bound by any specific criteria. The board members did not earlier written Stacy a letter apologizing for not being a better even have to review Willingham’s materials, and usually don’t husband and thanking her for everything she had given him, debate a case in person; rather, they cast their votes by fax—a especially their three daughters. “I still know Amber’s voice, process that has become known as “death by fax.” Between her smile, her cool Dude saying and how she said: I wanna hold 1976 and 2004, when Willingham filed his petition, the State you! Still feel the touch of Karmon and Kameron’s hands on of Texas had approved only one application for clemency from my face.” He said that he hoped that “some day, somehow the a prisoner on death row. A Texas appellate judge has called the truth will be known and my name cleared.” clemency system “a legal fiction.” Reaves said of the board He asked Stacy if his tombstone could be erected next to members, “They never asked me to attend a hearing or answer their children’s graves. Stacy, who had for so long expressed any questions.” belief in Willingham’s innocence, had recently taken her first Trial by Fire (Continued on p. 65) 57 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Activity

The Dark Side Of the District Attorney The DA is one of the good guys. He or she fights for the community, city, or state they work for, and their job is to win convictions. The cops catch the crooks, the district attorney puts them away. The DA’s office has many tools in its belt. Among them are evidence, prior convictions, eye witnesses, and plea deals for cases where guilt is assured, but the defendant doesn’t want to take their chances with a jury. But the stress on a DA can be enormous. Part of it comes from their bosses, part of it comes from pressure to convict everyone who comes in front of them, and part of it comes from within. To be a DA you have to be driven, you have to believe in your job, and you have to be able to cope with political demands for a high conviction rate while balancing an insanely huge workload. Anyone who can make a career of this job is something of a superhero. But once in a while, about as often as the Philadelphia Eagles win a Superbowl, a DA’s ego gets in the way and they’ll stack the deck against a defendant they just know is guilty, even if it means withholding evidence. If your students think that’s impossible, wait until they try this activity.

By Maurice Kirkwood 58 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Activity

The Dark Side TEACHER DIRECTIONS

The purpose of this exercise is to show class members the importance of including all evidence found in a criminal case and what happens when egos get in the way of justice. Some prosecutors become convinced of guilt to the exclusion of reason, and powerful individuals deem their careers worthy of what they feel are insignificant lapses in the law. The evidence collected in this case would cast reasonable doubt on the guilt of the accused if it were all analyzed. However, some of it has not been. The DA’s office has not bothered to perform tests on some evidence because it is sure it would point to the defendant. It’s also possible they think testing the evidence could hurt their case. If the defense team insists on going to trial, and performing the tests, the defendant would be set free. Further, a stray hair and semen stain would point to another individual thought beyond reproach. The goal is to watch your students wrestle with the issue of guilt vs. convenience, and, assuming at least one of them takes the bait, to help them understand how innocent people can be convicted.

Teacher directions:

1. Assign students to defense and prosecution teams. Each team should have from two to four individuals on it. Each prosecution team will have a matching defense team. Appoint one student district attorney and one student lead defense attorney on each respective team. The rest of each team works for their leader.

2. Hand out each team’s respective instructions. Allow the leader of each team time to read the directions to themselves before sharing with their team. While leaders are reading team members should familiarize themselves with the facts of the case.

3. Give the teams a chance to talk amongst themselves (5-15 minutes) before consulting with the opposing team. Give the teams time to talk with each other.

4. No one will play Joseph, the defendant. He is still in jail, but will do what his attorneys recommend.

5. Ask all teams to decide the course of action they’d like to take, and to write and indicate their consensus on the agreement paper provided later in this exercise.

6. Collect the papers and start a discussion of the case, giving each pair of teams time to reveal their final decision, and the reasoning that led to it.

7. Quickly look through the papers you collected. If anyone withheld evidence ask that person why he or she did it after you reassure them they’re not going to fail (in fact, you can elect to give all students a healthy participation grade). Mention the instructions threatened a failing grade for the marking period because you wanted to give an accurate feeling of how high the stakes are for withholding evidence in real life. Point out the following:

• Some prosecutors have large egos, don’t want to lose, and even ignore new evidence if it means the accused will go free. As one student put it, “I don’t need the facts, I know the truth!”

• If students doubt this happens, take them to a computer lab, or give them homework, to find a case where an innocent has been jailed, or worse, executed. One excellent source for this kind of information is www. innocenceproject.org.

SECRET FINAL NOTE: Joseph is innocent. If all evidence is analyzed. Simon killed Sharon.

59 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 DISTRICT ATTORNEY DIRECTIONS:

This paper is for your eyes only. Read ALL of it before sharing any of it. You are the district attorney of the city of Smithville, population 1,240,000. You have been elected to this position and have one more year of a five-year term, with aspirations to run again or to seek a higher political position. This is a very prestigious job, and you feel everyone looks up to you. You are proud of your 98% conviction rate, and feel your team is top notch. This team of one to four individuals has been with you for three years.

Facts about the case:

1. Joseph Rabid called 911 on May 1 at 6 pm, , upon returning to the apartment he shared with Sharon Sharalike and finding her dead. The ME would later report the cause of death as strangulation.

2. Joseph had once been arrested for assault, but it was on an old girlfriend six years ago, and she dropped the charges, saying she provoked him.

3. A neighbor, Tom Collins, reported hearing a man and woman shouting about 15-25 minutes before the 911 call was placed, according to his statement and the 911 log.

4. Joseph’s hair, fibers, and semen were found on the body, which was discovered in the couple’s bedroom.

5. Joseph admits to having a fight with Sharon earlier that afternoon because she wanted to invite an old high school boyfriend over to catch up. Joseph says he was so upset about this he went for a long walk. When he returned he found her dead.

6. Joseph said he and Sharon had sex that morning.

7. Joseph said the old boyfriend is Simon Brown, a doctor, who claims he was doing rounds at the hospital the hour before and after the murder.

8. Joseph was interrogated for four hours at police headquarters, but still claims to be innocent. He does admit his previous arrest was because he had rage issues. He says he went to counseling and does not have anger issues anymore. No one can corroborate his walking route, and he finally admits to driving around, but not stopping anywhere before he returned home.

9. A cop mentions that while Joseph was waiting to be interrogated and before his release, Frank Snitch, Joseph’s cellmate, told the police that Joseph admitted to him he raped and killed Sharon. Later it is shown that Frank recanted his statement and was simply seeking leniency for his own case.

Evidence:

1. Semen from the victim matched Joseph’s DNA. 2. Nearly all of the fingerprints found at the scene matched either Joseph or Sharon.An unrecognizable thumbprint was recovered from the night stand next to the body, but it was smudged. 3. Hairs were recovered from the bed, but they were presumed to belong to Joseph. 4. Semen recovered from the bedclothes was presumed to belong to Joseph and wasn’t tested for DNA, although it was recovered.

Procedure:

1. You are obligated by law to turn over all evidence and interview tapes and transcripts to the defense team. 2. However, if you withhold any evidence from the defense team, no one will know about it unless you tell them or let them see this paper. Your grade in this exercise will not depend on your conduct, only if Joseph agrees to plead guilty. If you are discovered withholding evidence you can receive an F for the marking period.

60 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com DISTRICT ATTORNEY DIRECTIONS (Continued)

Obstacles to conviction:

1. A quick look by a CSI revealed the hairs on the bed were human. If need be, you have Dr. Infallible, a college professor who sometimes consults on forensics for the city for a fee, to testify the hairs match Joseph’s based only on the CSI’s report. 2. The smudged fingerprint is mostly unusable, but what little detail there is could make it different from any of Sharon’s or Joseph’s. You have a photograph of it. You’ve informed Dr. Infallible the print is trashed and, although he’s only glanced at it, he’s ready to testify to this. 3. There are no internal cameras at the hospital due to federal privacy laws, so Dr. Brown is not on tape during the time he claims he was doing rounds. Nurses don’t remember seeing him, but a plane crash accident kept everyone at the hospital swamped for hours. 4. Joseph claims he’s innocent.

Grading: • You either get a conviction or get the defense team to plead guilty. Grade = A. • If the prosecution and defense teams can’t reach an agreement, you will go to trial for the same grades, except now if Joseph is acquitted your grade will be an F. • This grade counts as a major test.

Your move: (read all points before acting)

1. Make sure you share your trial strategy with the defense. Let them know what you have and how you’re going to use it in the courtroom. Tell the other team Joseph will get 30 years if he’s convicted. Or, he can plead guilty for a manslaughter charge and receive 10-15 years (out in six with good behavior).

2. What evidence are you going to share with the defense team?

3. Your grade will depend on what the defense team agrees to. What grade will you get?

If, and after, Joseph agrees to plead, please fill out the legal agreement form with the other team. Joseph will do whatever his lawyers think best. Turn in all papers together.

61 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 DEFENSE ATTORNEY DIRECTIONS:

You and your team have the job of defending Joseph Rabid. Your opponent is the district attorney of the city of Smithville, population 1,240,000. He has a 98% conviction rate. And 95% of all cases that are brought before his office are settled with plea deals.

Facts about the case:

1. Joseph Rabid called 911 on May 1 at 6 pm, , upon returning to the apartment he shared with Sharon Sharalike and finding her dead. The ME would later report the cause of death as strangulation. 2. Joseph had once been arrested for assault, but it was on an old girlfriend six years ago, and she dropped the charges, saying she provoked him. 3. A neighbor, Tom Collins, reported hearing a man and woman shouting about 15-25 minutes before the 911 call was placed, according to his statement and the 911 log. 4. Joseph’s hair, fibers, and semen were found on the body, which was discovered in the couple’s bedroom. 5. Joseph admits to having a fight with Sharon earlier that afternoon because she wanted to invite an old high school boyfriend over to catch up. Joseph says he was so upset about this he went for a long walk. When he returned he found her dead. 6. Joseph said he and Sharon had sex that morning. 7. Joseph said the old boyfriend is Simon Brown, a doctor, who claims he was doing rounds at the hospital the hour before and after the murder. 8. Joseph was interrogated for four hours at police headquarters, but still claims to be innocent. He does admit his previous arrest was because he had rage issues. He says he went to counseling and does not have anger issues anymore. No one can corroborate his walking route, and he finally admits to driving around, but not stopping anywhere before he returned home. 9. A cop mentions that while Joseph was waiting to be interrogated and before his release, Frank Snitch, Joseph’s cellmate, told the police that Joseph admitted to him he raped and killed Sharon. Later it is shown that Frank recanted his statement and was simply seeking leniency for his own case.

Your move:

You will ask the district attorney to turn over all their evidence during the discovery phase of trial preparation (which is when you’re done reading these directions). The district attorney, or one of his staff, will verbally give you all evidence as required by law. They will not show you their papers. If they withhold any evidence they will fail the marking period, so they have a good reason to be forthcoming.

They will also tell you how they think the trial will go, based on their evidence. Take a minute to think about the case and how you want to defend Joseph. You will be able to get your own experts to testify, but that’s going to take time and money (another class period). You don’t have to take it, but ask if a plea bargain is on the table.

If the evidence sounds airtight, and a plea is offered, think about it. If you like it based on the terms and the evidence, recommend it to your client. If not, don’t. Joseph will do whatever you suggest.

In order for this exercise to end you must sign off on what you’re going to do: go to trial or take a plea.

Grading: You go to trial and Joseph is acquitted. Grade = A. Joseph takes a plea bargain. Grade = B. You go to trial and Joseph is found guilty. Grade = D.

62 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com PROSECUTOR AND DEFENSE TEAM MEMBERS quick facts sheet.

(All members of both teams should look over these facts while team leaders examine their own materials:

Facts about the case:

1. Joseph Rabid called 911 on May 1 at 6 pm, , upon returning to the apartment he shared with Sharon Sharalike and finding her dead. The ME would later report the cause of death as strangulation.

2. Joseph had once been arrested for assault, but it was on an old girlfriend six years ago, and she dropped the charges, saying she provoked him.

3. A neighbor, Tom Collins, reported hearing a man and woman shouting about 15-25 minutes before the 911 call was placed, according to his statement and the 911 log.

4. Joseph’s hair, fibers, and semen were found on the body, which was discovered in the couple’s bedroom.

6. Joseph said he and Sharon had sex that morning.

7. Joseph said the old boyfriend is Simon Brown, a doctor, who claims he was doing rounds at the hospital the hour before and after the murder.

63 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 LEGAL AGREEMENT FORM FOR THE CASE OF STATE VS. JOSEPH RABID

We the defense team for Joseph Rabid, after consultation with the district attorney’s office for the city of Smithville, agree to the following course of action:

Signed on this ______day of ______(month) ______(year).

Defense Team members (print & sign name below) DA Team Members (print & sign name below)

Lead Defense: DA:

Team members Team members

64 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Trial by Fire (Continued from p. 57) don’t understand why those who survive often can’t rescue the look at the original court records and arson findings. Unaware victims. They have no concept of what a fire is like.” of Hurst’s report, she had determined that Willingham was The warden told Willingham that it was time. Willingham, guilty. She denied him his wish, later telling a reporter, “He refusing to assist the process, lay down; he was carried into took my kids away from me.” a chamber eight feet wide and ten feet long. The walls were Gilbert felt as if she had failed Willingham. Even before painted green, and in the center of the room, where an electric his pleas for clemency were denied, she told him that all she chair used to be, was a sheeted gurney. Several guards strapped could give him was her friendship. He told her that it was Willingham down with leather belts, snapping buckles across enough “to be a part of your life in some small way so that in his arms and legs and chest. A medical team then inserted in- my passing I can know I was at last able to have felt the heart of travenous tubes into his arms. Each official had a separate role another who might remember me when I’m gone.” He added, in the process, so that no one person felt responsible for taking “There is nothing to forgive you for.” He told her that he would a life. need her to be present at his execution, to help him cope with Willingham had asked that his parents and family not be “my fears, thoughts, and feelings.” present in the gallery during this process, but as he looked out On February 17th, the day he was set to die, Willingham’s he could see Stacy watching. The warden pushed a remote parents and several relatives gathered in the prison visiting control, and sodium thiopental, a barbiturate, was pumped into room. Plexiglas still separated Willingham from them. “I wish Willingham’s body. Then came a second drug, pancuronium I could touch and hold both of you,” Willingham had written Trial by Fire (Continued on p. 70) to them earlier. “I always hugged Mom but I never hugged Pop much.” As Willingham looked at the group, he kept asking where Gilbert was. Gilbert had recently been driving home from a store when another car ran a red light and smashed into her. Willingham used to tell her to stay in her kitchen for a day, without leaving, to comprehend what it was like to be confined in prison, but she had always found an excuse not to do it. Now she was ST paralyzed from the neck down. 21 CENTURY While she was in an intensive-care unit, CLUE GATHERING she had tried to get a message to Willing- ham, but apparently failed. Gilbert’s daughter later read her a letter that Willingham had sent her, telling her how much he had grown to love her. He had written a poem: “Do you want to see beauty—like you have never seen? / Then close your eyes, and open your mind, and come along with me.” Gilbert, who spent years in physical rehabilitation, gradually regaining motion in her arms and upper body, says, “All that time, I thought I was saving Willingham, and I realized then that he was saving me, giving me the strength to get through this. I know I will one day walk again, and I know it is because Willingham showed me the kind of courage it takes to survive.” Willingham had requested a final meal, and at 4 P.M. on the seventeenth he was served it: three barbecued pork ribs, two orders of onion rings, fried okra, three beef enchiladas with cheese, and two slices of lemon cream pie. He received word that Governor Perry had refused to grant him a stay. (A spokesperson for Perry says, “The Build Your Case with Celestron’s line Governor made his decision based on the of digital MiCrosCopes facts of the case.”) Willingham’s mother Turn your standard optical microscope into a digital imager with our Digital LCD & Camera and father began to cry. “Don’t be sad, Microscope Accessory. (LEFT) Momma,” Willingham said. “In fifty-five Our Deluxe Handheld Digital Microscope (CENTER) allows you to view specimens and solid objects minutes, I’m a free man. I’m going home on a computer or laptop, with a detachable body to examine unorthodox objects. With a 2MP digital to see my kids.” Earlier, he had confessed camera take snap shots and video for easy record keeping. to his parents that there was one thing about The award-winning Deluxe Digital LCD Microscope, (RIGHT) with 3.5” rotatable touch screen and the day of the fire he had lied about. He said built-in 5MP digital camera, allows you to capture, save and share snapshots or video of all your findings. that he had never actually crawled into the children’s room. “I just didn’t want people DISCOVER MORE AT to think I was a coward,” he said. Hurst told me, “People who have never been in a fire 65 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Innocence Project (Continued from p. 29) Such research can only strengthen and enhance the role of science in the courtroom. Technical working groups (TWGs) References are engaged in the development of professional standards and guidelines to ensure the best practice of various disciplines in 1. Bedau, Hugo Adam (editor). The Death Penalty in the areas of analysis, reporting, and expert testimony. America: An Anthology. Chicago:Aldine Publishing Company, 1964. National and Local Reform Initiatives 2. Borchard, Edwin M. Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice. In addition to the initiatives mentioned above, the Garden City, New York: Garden City Innocence Project formerly associated with Cardozo Law Publishing Company, 1932. School, is spearheading and pushing several initiatives they 3. Conners, Edward, Thomas Lundregan, Neal Miller, would like to see occur on a national level, including state- and Tom McEwen. Convicted by Juries, by-state formation of Innocence Commissions (IC), Audit Exonerated by Science: Case Studies in the Oversight Committees (AOC), and the severance of crime Use of DNA Evidence to Establish Innocence labs from law enforcement agencies. Innocence Commissions After Trial. Research Report, National would be comprised of stakeholders from many different Institute of Justice, 1996. agencies and organizations including defense attorneys, 4. Gardner, Erle Stanley. The Court of Last Resort. prosecutors, victim advocates, judges, law enforcement New York: William Sloane Associates, 1952. personnel, forensic scientists, and legislators. The ICs could 5. Gross, Samuel R., Kristen Jacoby, Daniel J. evaluate wrongful convictions and assist in determining Matheson, Nicholas Montgomery, and Sujata what went wrong and propose ways of improving the Patil. Exonerations in the United States, 1989 practice of forensic science. The formation of AOCs is Through 2003. The Journal of Criminal Law explored in a position paper written by Peter Neufeld and and Criminology 95(2):523-560, 2005. available for viewing on http://www.innocenceproject.org. 6. Radelet, Michael L., Hugo Adam Bedau, and These committees would ideally function to investigate Constance E. Putnam. In Spite of Innocence: individual scientists that are implicated or accused of serious Erroneous Convictions in Capital Cases. misconduct. More information on ICs and AOCs is availableat Boston: Northeastern University Press, 1992. http://www.innocenceproject.org. 7. Saks, Michael J. and Jonathan J. Koehler. “The On the local level, the Innocence Project of Minnesota Coming Paradigm Shift in Forensic has undertaken a number of initiatives in order to address Identification Science.” Science 309:892- the role of forensic sciences in wrongful conviction. First, as 895, 2005. an organization, we feel very strongly that a diverse board 8. Scheck, Barry, Peter Neufeld, and Jim Dwyer, of directors and advisory board comprised of professionals 1st Edition. Actual Innocence and Other in the areas of criminal defense, criminal prosecution, Dispatches from the Wrongly Convicted. forensic science, and law enforcement will facilitate a more New York: Doubleday, 2000. holistic multidisciplinary approach to understanding the 9. Scheck, Barry, Peter Neufeld, and Jim Dwyer, 3rd factors involved in wrongful conviction and developing Edition. Actual Innocence: When Justice remedies to decrease the occurrence of wrongful conviction. Goes Wrong and How to make It Right. New Our organization currently consists of forensic scientists York: New American Library, 2003. from crime labs (state, city, county), medical examiner/ We would like to thank everybody at the Innocence coroner’s offices, private consultants, law enforcement Project in New York, especially Maddy personnel, educators, and attorneys. Together we have deLone, Peter Neufeld, Huy D. Dao, and organized educational workshops and seminars designed Sarah Tofte for graciously providingus with to bring law enforcement, forensic science, and attorneys unpublished information in such a timely together to discuss issues of wrongful conviction, disseminate fashion. information about various forensic sciences, and discuss and begin to implement possible remedies. We have also entered Michael Cromett, J.D., is Assistant State Public Defender with the Minnesota State Public Defender’s Office into discussions with representatives of local law schools in Minneapolis, MN. Michael can be reachedat michael. in regard to teaching courses about forensic science and [email protected]. eventually making such courses a permanent component of Susan M. Thurston Myster, Ph.D. is a forensic the law school curriculum. In conclusion, in-depth, detailed anthropologist and Associate Professor and Director of the analyses of known exonerations, both those accomplished Forensic Sciences Program at Hamline University in St. Paul, MN. Susan can be reached at [email protected]. through DNA analysis and by other means, are needed to better understand the role of forensic science in wrongful Reprinted with permission of Forensic Magazine®. www. conviction and to formulate strategies to develop and initiate forensicmag.com reform in order to decrease, and perhaps one day, eliminate our role in wrongful conviction. 66 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com www.theforensicteacher.com www.theforensicteacher.com 6731 www.theforensicteacher.com www.theforensicteacher.com TheThe Forensic Forensic Teacher Teacher • •Winter Fall 2010 2011 A Day in the life Of...

A Criminal Profiler By John Douglas

What I Do Profiling: Fact vs. Fiction

Before I begin going into current cases, which I will do in like copies of handwritten notes and descriptions of probable future articles, I thought it might be useful for visitors to this post-offense behavior, about the criminals we’re looking site to have an overview of what profiling is, and what it’s not. for out to the public. Somebody out there knows something Some of you may be very familiar with my work, but for those about our UNSUB or about a suspect, but they may not fully of you who aren’t, I hope this brings you up to speed. realize it. They may need us to connect the dots, to present During my first years with the FBI’s Behavioral Science some information that will help them understand what may to Unit (later called the Investigative Support Unit) in the late that point have been no more than a funny feeling or vague 1970’s, the word “profiling” hardly existed, not in the sense suspicion they’ve had about their brother, boyfriend, aunt, co- that it does now. I think it’s become a familiar concept to most worker, and so on. people these days, thanks to my books those by my former In one instance, at the suggestion of Jana Monroe, an associates, television shows, movies, and other media. But a extraordinary agent in my unit, we publicized an UNSUB’s lot of people have misconceptions about profiling—either an handwriting by mounting a billboard campaign in Tampa overblown sense that we close our eyes and magically “see” the Bay, Florida, the location of the 1989 murders of Joan Rogers crime we’re investigating as it occurred, or a restricted notion and her two daughters, who were vacationing in the area. We that all we do is create profiles of subjects who are unknown posted an excerpt from directions we knew the UNSUB had and at large. written by hand on a brochure and given to the victims, and First, the world of entertainment. While I served as a which was found in their car. Within three days, witnesses had technical consultant on The Silence of the Lambs, and my work come forward to identify the person whose handwriting they has been used as a reference for other movies and TV shows, recognized from the publicized excerpt, and they all named I have to say that none of it represents what profiling is really the same man—Oba Chandler, who was convicted of the three like. It’s highly unglamorous, and never easy. Our work includes murders in 1994 and is now sitting on Florida’s death row. long, lonely hours poring over paperwork, photographs, and the like. Profilers have to examine a lot of information: crime scene Tightening the Noose photographs, eyewitness accounts, autopsy reports, police reports, and, whenever possible, victims’ statements. In a case e also support law enforcement in “tightening the noose” where the identity of the assailant is unknown, we find patterns around a suspect. A good example of that is in the case of Robert in the evidence based on the behavior either demonstrated or Hansen. Hansen was the suspect local and state authorities indicated, and we form a “profile” of the UNknown SUBject felt was their man in the murders of four women, all either (or UNSUB). This profile can be used to narrow the search prostitutes or topless dancers, and all of whom had been shot conducted by law enforcement, helping them zero in on their with a high-powered hunting rifle and found in remote areas man. of the Alaskan wilderness. One had been shot naked. But there was no evidence; all the authorities had was the testimony of a Proactive Techniques: Reaching out to the Public prostitute who said she was nearly Hansen’s next victim—and he had an alibi (which later proved to be fabricated) for the This is just one function we perform. As I mentioned, to night she said he tried to abduct her. see that as all we do is a limited view. In fact, toward the end of The authorities were at an impasse. They knew there was my career in the FBI, I was doing fewer and fewer of those sorts evidence out there, and if Hansen was the killer it stood to reason of profiles. We were doing a lot more crime scene analyses, that some of it would be on his property. But they couldn’t crime reconstructions, and spending more time developing and get to it without a search warrant. So instead of just preparing incorporating proactive techniques for ongoing investigations. a behavioral profile of an UNSUB in order for authorities to These proactive techniques are among the most exciting know who they were looking for, it was our job to come up advances we’ve made. Sometimes we’ll use the amazing with a set of behavioral indicators from the four murders and power of the media to get potentially identifying information, 68 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com The Arson Lab

the alleged attempted abduction to support a request for the So, You Want to Become a Profiler... search warrant. As the Bureau will tell you, there is no job specifically referred to The Starting Point: A Behavioral Profile as a “profiler.” It’s a term that everyone uses, but it’s not written on anyone’s business card or posted on someone’s office door. First, before we were given Hansen’s name or any Supervisory special agents (SSAs) at the National Center for information about him, I came up with a behavioral profile the Analysis of Violent Crime (NCAVC) are assigned to the FBI of the killer. When this matched what the police knew about Academy in Quantico, Virginia, where they perform behavioral Hansen, they began to give me information that would help me investigative functions. This includes examining evidence expand my profile to include specifics about the sort of killer and information from preliminary police reports, crime scene he might be and what sort of evidence might be found on his photographs, witness accounts, medical examiner’s reports, property. victimology, etc. All of this information is carefully reviewed They said he had pockmarked skin and a stutter, so I and analyzed in an effort to potentially develop a criminal deduced that he’d probably had a difficult time with women profile or possibly provide some other investigative technique during his teen and young adult years, potentially causing him and/or strategy. Criminal profiles are used by investigators to to have a great deal of anger at women. Selecting prostitutes help them narrow the search for violent criminals of unsolved and topless dancers indicated that he wanted victims no one cases and to assist both police and prosecutors in determining would miss and whom he could see as less than human because motive—a critical element in most prosecutions. of their occupations. Neither of these deductions was much of As a new special agent, you cannot immediately become a a leap from those in my original profile. profiler. You must first serve at least five years as a special agent More importantly, they told me Hansen was a hunter, and, in addition, be assigned as a profile coordinator in an FBI and a respected one, so I surmised that he would have held on field office. The job of the profile coordinator is to work closely to “trophies” from these murders, and maybe even a list or a with local and state law enforcement agencies in identifying journal of his kills. I also knew, from the account given by the cases with which the NCAVC may be able to provide assistance. witness, that Hansen had a cabin in the woods; it was where he As a general rule, profile coordinators do not have the overall was trying to take her when she escaped. And I knew Hansen’s training and authority to provide their own profiles. However, family was away in Europe, giving him complete freedom to whenever there is a profiler position opening at the NCAVC, the do what he liked best—to hunt. profile coordinators are the first candidates that are considered for the position. These criminal profiling positions are very Hunting the Hunter competitive, and it may take several years before you are even considered as a viable candidate. I began to get an idea of how Hansen operated, and it gave The selection process is complicated. An education me a cold, sick feeling in my stomach. It seemed clear to me in Behavioral Science or Forensic Science is preferred. that he was definitely the killer, but he wasn’t simply killing Investigative experience in violent crime is a real must, so a these women. I believed he was releasing them into the woods special agent’s experience with the Bureau should include and then hunting them down like animals—and this proved to homicide, rape, and other crimes of interpersonal violence. This be the case. experience may have also been obtained from employment We gave our assessment to the authorities, and they were prior to working for the FBI. This is a very subjective and able to get a search warrant. Hansen’s rifle, which matched highly competitive process. If your goal is to become a criminal the bullets that killed the four women, was found at his home, profiler, you should be certain that being a special agent serving along with some cheap jewelry, ID cards, and other items taken in some other capacity would be just as satisfying to you. from them. There was also a sort of “journal,” an aviation map I don’t mean to discourage anyone. The field needs good marked with the locations of his victims’ bodies. people. If you understand the requirements and believe you Confronted with the evidence, Hansen confessed. have what it takes to work in this investigative field, please work towards that goal. There’s nothing like hard work to get We’re Only as Good as our Information you where you want to go, no matter what the odds tell you. We did our work well in that instance. But what if we Do You Need a Particular College Major to Become a hadn’t? Or what if a different group had been assigned to the Profiler? case? Not all profilers are equal; we’re just like doctors in that respect. We have equivalent training, but not equivalent The answer to that is “no.” In regards to education, it is certainly personalities, amounts of experience, and so on. And we’re necessary to have a bachelor’s degree as a foundation, as well human. We have bad days, even weeks, when there’s so much as good verbal and writing skills, but there is no specific degree work that it’s inevitable that something somewhere will fall that would make someone much more or less qualified for this between the cracks. position than someone else. I might recommend a degree in the That’s what keeps us up nights. It’s also why it’s so area of forensic psychology, but the people who have worked important to realize that, while it has been proven to be a for me have had an assortment of different degrees from groundbreaking tool, profiling is just one part of the process business management to psychology to even music. Therefore, that leads from investigation to conviction. The other you should choose whatever interests you the most. elements, including forensic evidence, like weapons and DNA, At some point in your career you will have to get an eyewitness accounts, autopsy reports, and police reports, are advanced degree. However, when you are working towards your vitally important. I don’t think we should ever elevate one undergraduate or graduate degree, the most important factor element of the process above another. Each element is critical, that will separate you from everyone else is actually gaining especially for profilers—even at our very best, we’re only as hands-on experience in delving into the minds of criminals. To good as the information that’s provided to us. do that, you’re going to have to work or do research where you will personally come into contact with a variety of incarcerated felons. Remember, “In order to understand an artist, you must look at the art work.” The crime is a reflection of the offender. A Day in the Life (Continued on p. 70) 69 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 A Day in the Life (Continued from p. 69) Trial by Fire (Continued from p. 63) bromide, which paralyzes the diaphragm, making it im- As the Bureau will tell you, there is no job specifically referred to possible to breathe. Finally, a third drug, potassium chloride, as a “profiler.” It’s a term that everyone uses, but it’s not written filled his veins, until his heart stopped, at 6:20 P.M. Onhis on anyone’s business card or posted on someone’s office door. death certificate, the cause was listed as “Homicide.” Supervisory special agents (SSAs) at the National Center for After his death, his parents were allowed to touch his face the Analysis of Violent Crime (NCAVC) are assigned to the FBI for the first time in more than a decade. Later, at Willingham’s Academy in Quantico, Virginia, where they perform behavioral request, they cremated his body and secretly spread some of investigative functions. This includes examining evidence his ashes over his children’s graves. He had told his parents, and information from preliminary police reports, crime scene “Please don’t ever stop fighting to vindicate me.” photographs, witness accounts, medical examiner’s reports, In December, 2004, questions about the scientific evidence victimology, etc. All of this information is carefully reviewed in the Willingham case began to surface. Maurice Possley and and analyzed in an effort to potentially develop a criminal Steve Mills, of the Chicago Tribune, had published an inves- profile or possibly provide some other investigative technique tigative series on flaws in forensic science; upon learning of and/or strategy. Criminal profiles are used by investigators to Hurst’s report, Possley and Mills asked three fire experts, in- help them narrow the search for violent criminals of unsolved cluding John Lentini, to examine the original investigation. cases and to assist both police and prosecutors in determining The experts concurred with Hurst’s report. Nearly two years motive—a critical element in most prosecutions. later, the Innocence Project commissioned Lentini and three As a new special agent, you cannot immediately become a other top fire investigators to conduct an independent review profiler. You must first serve at least five years as a special agent of the arson evidence in the Willingham case. The panel con- and, in addition, be assigned as a profile coordinator in an FBI cluded that “each and every one” of the indicators of arson had field office. The job of the profile coordinator is to work closely been “scientifically proven to be invalid.” with local and state law enforcement agencies in identifying In 2005, Texas established a government commission to cases with which the NCAVC may be able to provide assistance. investigate allegations of error and misconduct by forensic sci- As a general rule, profile coordinators do not have the overall entists. The first cases that are being reviewed by the commis- training and authority to provide their own profiles. However, sion are those of Willingham and Willis. In mid- August, the whenever there is a profiler position opening at the NCAVC, the noted fire scientist Craig Beyler, who was hired by the com- profile coordinators are the first candidates that are considered mission, completed his investigation. In a scathing report, he for the position. These criminal profiling positions are very concluded that investigators in the Willingham case had no sci- competitive, and it may take several years before you are even entific basis for claiming that the fire was arson, ignored evi- considered as a viable candidate. dence that contradicted their theory, had no comprehension of The selection process is complicated. An education flashover and fire dynamics, relied on discredited folklore, and in Behavioral Science or Forensic Science is preferred. failed to eliminate potential accidental or alternative causes of Investigative experience in violent crime is a real must, so a the fire. He said that Vasquez’s approach seemed to deny “ra- special agent’s experience with the Bureau should include tional reasoning” and was more “characteristic of mystics or homicide, rape, and other crimes of interpersonal violence. This psychics.” What’s more, Beyler determined that the investiga- experience may have also been obtained from employment tion violated, as he put it to me, “not only the standards of to- prior to working for the FBI. This is a very subjective and day but even of the time period.” The commission is reviewing highly competitive process. If your goal is to become a criminal his findings, and plans to release its own report next year. Some profiler, you should be certain that being a special agent serving legal scholars believe that the commission may narrowly as- in some other capacity would be just as satisfying to you. sess the reliability of the scientific evidence. There is a chance, I don’t mean to discourage anyone. The field needs good however, that Texas could become the first state to acknowl- people. If you understand the requirements and believe you edge officially that, since the advent of the modern judicial sys- have what it takes to work in this investigative field, please tem, it had carried out the “execution of a legally and factually work towards that goal. There’s nothing like hard work to get innocent person.” you where you want to go, no matter what the odds tell you. Just before Willingham received the lethal injection, he was asked if he had any last words. He said, “The only state- Do You Need a Particular College Major to Become a ment I want to make is that I am an innocent man convicted of a Profiler? crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust The answer to that is “no.” In regards to education, it is certainly I will return, so the Earth shall become my throne.” necessary to have a bachelor’s degree as a foundation, as well as good verbal and writing skills, but there is no specific degree In September, 2009, just days before the government com- that would make someone much more or less qualified for this mission on forensic science was scheduled to hear testimony position than someone else. I might recommend a degree in the from Dr. Craig Beyler about his findings, Governor Rick Perry area of forensic psychology, but the people who have worked removed the body’s longstanding chairman and two of its mem- for me have had an assortment of different degrees from bers. Perry insisted that the three commissioners’ terms had business management to psychology to even music. Therefore, expired and the changeover was “business as usual.” But the you should choose whatever interests you the most. chairman, Sam Bassett, who had previously been reappointed At some point in your career you will have to get an and had asked to remain, told the Houston Chronicle that he advanced degree. However, when you are working towards your had heard from Perry’s staffers that they were “concerned undergraduate or graduate degree, the most important factor about the investigations we were conducting.” that will separate you from everyone else is actually gaining hands-on experience in delving into the minds of criminals. To do that, you’re going to have to work or do research where you “Trial by Fire” © 2002 by David Grann. This article origi- will personally come into contact with a variety of incarcerated nally appeared in the New Yorker. This updated version of “Tri- felons. Remember, “In order to understand an artist, you must al by Fire” appears in David Grann’s collection, THE DEVIL look at the art work.” The crime is a reflection of the offender. AND SHERLOCK HOLMES. Reprinted by permission of the author. 70 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com • The high-interest, inquiry- rich curriculum emphasizes critical thinking and problem solving through the use of real-world methodologies

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72 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Bloomin’ Easy! One of the best things about teaching forensics is watching your students mature intellectually. Benjamin Bloom first published his taxonomy of thinking skills in 1956. As teachers we have an obligation to help students learn to use their minds in more powerful ways. The chart below lists suggestions for you to push your students mentally to higher places. Give them a try; often the difference between an easy forensic assignment and a challenging one is what you ask of your students.

Chart courtesy of Dr. Alicia T. Wyatt, McMurry University, Abilene, TX

Next issue will be about the body. How it lives, dies, decomposes, and remains. And the clues it leaves behind. Please send your ideas, labs, and articles!

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73 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Below are only some of the great training offered by the American Academy of Forensic Science’sWhat’s website (www.aafs.org). Please note: all email and Going On? website links are active.

DECEMBER 2011

4-9 Ask the Alcohol & Highway Safety: Testing, Research & Litigation To be held at Indiana University in Bloomington, IN. CONTACT: www.borkensteincourse.org Morgue Guy 5-9 Basic Bloodstain Pattern Analysis Workshop Presented by the Specialized Training Unit at the Miami-Dade Public Safety Training Institute in Doral, Q. Over the summer we got a FL. CONTACT: Toby L. Wolson, MS Miami-Dade Police Department Forensic Services Bureau 9105 Northwest 25th Street Doral, FL (305) 471-3041 Fax: (305) 471- new principal, an older woman 2052 [email protected] who had a career in a religious district. We’re required to submit 19-21 our curriculum to her. When I Latent Fingerprint Processing Class To be held at the Great Bay Community got it back it was covered with College in Portsmouth, NH. CONTACT: www.focossforensics.com (603) 337-5536 red marks. She doesn’t want me to use the words “semen,” JANUARY 2012 “rape,” “pubic,” or “breast.” 9 These are words that arise in a Animal or Human? Forensic Determination of Animal and Human Bone To forensics class, especially when be held at the School of Forensic and Investigative Sciences at the University of the subject of violent crime Central Lancashire, UK. CONTACT: Peter Cross [email protected] comes up. I suppose I can use alternative words for some of 9-13 these, but semen is a biological Medicolegal Death Investigator Training Course To be held at Saint Louis University in St. Louis, MO. CONTACT: Julie Howe (314) 977-5970 howej@slu. fluid whose importance edu www.medschool.slu.edu/mldi springs up throughout modern criminalistics history. What am I 12-17 supposed to do? Alan Pushcar, Certified Evidence Photographer Training To be held in New Orleans, Elkton, VA. LA. CONTACT: Professional Photographic Certification Commission 229 Peachtree Street, NE Suite 2200 Atlanta, GA 30303 (888) 772-2780 Fax: (404) 614- A. Get your ducks in a row. Set 6404 www.evidencephotographers.com up a meeting and take down 13 the textbooks, case studies, Melendez-Diaz, Bullcoming, and Williams: Scientific Evidence and the Right and videos you use in class. to Confrontation To be held at Arcadia University King of Prussia Campus in King Be sympathetic as you listen to of Prussia, PA. CONTACT: http://forensicscienceeducation.org/melendez-diaz- her. Then, calmly explain what bullcoming-and-williams-constitutional-challenges-and-solutions-to-the-right-to- the word means to the criminal confrontation/ justice system. Show her your 15 materials that mention this fluid, Animal or Human? Forensic Determination of Animal and Human Bone To and explain it doesn’t have the be held at the School of Forensic and Investigative Sciences at the University of cultural meaning it did 20 years Central Lancashire, UK. CONTACT: Peter Cross [email protected] ago. Point out also that students today know all about it, and 23-27 they have many other words Math and Physics of Bloodstain Pattern Analysis Workshop Presented by the Specialized Training Unit at the Miami-Dade Public Safety Training Institute, Doral, for it that are much worse. If Florida. CONTACT: Officer Rosa Holtz Miami-Dade Police Department Miami-Dade you taught forensics without Public Safety Training Institute Specialized Training Unit 9601 N.W. 58th St. Doral, mentioning semen it would FL 33178-1619 (305) 715-5022 Fax: (305) 715-5107 [email protected] be like not mentioning bullets: you’re cheating your students 30- Feb. 3 out of the whole picture. Then, Outdoor Recovery Courses To be held at the Forensic Anthropology Center at reassure her your class will be Texas State (FACTS) in San Marcos, TX. CONTACT: www.txstate.edu/anthropology/ respectful while on the subject. facts If all else fails, swear the kids to secrecy. 74 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com What’s Going On?

FEBRUARY 2012 3-5 3rd International Conference on Current Trends in Forensic Sciences, Forensic Medicine & Toxicology Organized by Indian Association of Medico- Legal Experts (Regd). To be held at the Ramada Hotel Jaipur in Jaipur, Rajasthan, INDIA. CONTACT: www.iamleconf.in Just

MARCH 2012 for Fun 5-9 Celebrate Holidays Basic Bloodstain Pattern Analysis Workshop Presented by the Specialized Training Unit at the Miami-Dade Public Safety Training Institute in Doral, FL. CONTACT: Toby L. Wolson, MS Miami-Dade Police Department Forensic Services The school year has many Bureau 9105 Northwest 25th Street Doral, FL (305) 471-3041 Fax: (305) 471- 2052 [email protected] opportunities for the celebration of holidays. Unfortunately, most 5-9 students stop celebrating after Detection, Recovery and Examination of Footwear Impression Evidence To they leave elementary school. be held at the Ramada Inn in Jacksonville, FL. CONTACT: wbodziak@earthlink. But you have a chance to tie net (386) 986-6494 your curriculum to the calendar. 12-14 The 1st Saudi International Conference of Forensic Medical Sciences To be If you read case studies try to held in Riyadh, Saudi Arabia. CONTACT: www.scfms.org find some where the crime took place the same month or week 12-16 your class goes over them. Medicolegal Death Investigator Training Course To be held at Saint Louis You can even indulge in bad University in St. Louis, MO. CONTACT: Julie Howe (314) 977-5970 howej@slu. puns, something expected of edu www.medschool.slu.edu/mldi everyone over the age of 25. 19-23 For instance, an innocent intro Basic Facial Reconstruction Sculpture Workshop To be held at the University about carving a turkey can lead of Oklahoma in Norman, OK. CONTACT: Betty Pat. Gatliff SKULLpture Lab 1026 to the topic of dismemberment Leslie Lane Norman, OK 73069-4501 (405) 321-8706 www.sculpture.outreach. and forensic anthropology. Hal- ou.edu loween is great for discuss- 26-30 ing long-dead people and cold Advance Facial Reconstruction Sculpture Workshop To be held at the University of Oklahoma in Norman, OK. CONTACT: Betty Pat. Gatliff SKULLpture cases. Ireland has had its share Lab 1026 Leslie Lane Norman, OK 73069-4501 (405) 321-8706 www.sculpture. of criminals and St. Patrick’s outreach.ou.edu Day would be a good time to highlight some. And who could APRIL 2012 forget the St. Valentine’s Day Massacre? Forensics played a 3-5 role in solving that case. International Marine Forensics Symposium To be held at the Gaylord National Hotel in Washington, D.C. CONTACT: www.sname.org The Lindbergh baby was 15-20 snatched on March 1, 1932. The Borkenstein Drug Course To be held at Indiana University in Bloomington, The case was a gold mine of IN. CONTACT: Suz Frederickson (812) 855-1783 info@borkensteincourse. forensic evidence, and the trial org www.borkensteincourse.org highlighted police efforts. Ask your students to look into it. 23- 27 Outdoor Recovery Courses To be held at the Forensic Anthropology Center at Texas State (FACTS) in San Marcos, TX. CONTACT: www.txstate.edu/anthropology/ A quick Google search for crime facts and timeline will reveal a wealth of dates to work with. Set your Do you have an event or workshop coming up you’d like to get word out students loose, and tie history about? Send information about the event, dates, and contact information to your classroom. Decorations and how to register, as well as a website to [email protected]. are practically required! Please send information at lease 3-6 months in advance of the event. 75 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011 Stoopid

CrooksThe police just dream about geniuses like these guys...

A 19-year old man in Fort Walton Beach, FL arrived home one day and found police executing a search warrant on his house to look for drugs. When he asked why he was being detained, deputies said it was because he smelled like marijuana. He replied, “That’s cool. I smoke weed, a lot of weed.” After police found pot in his house he was arrested. A 22-year old Bradenton, FL woman was asked for her receipt as she attempted to leave a Walmart store with a cart of household times. She apparently took offense to the request and went psycho, trashing a number of displays, hitting a manager with a stool, punching and spitting on employees, and causing over $1000 of damage. As if her rampage wasn’t enough, police found pot in her purse and she was booked for a laundry list of charges. In a case of applied forensics that would make Gil Grissom proud, an 82-year old woman and her friend exited a pizza shop where they’d just enjoyed lunch. That was when 21-year old Tatiana Vargas of New Castle, PA snatched the octogenarian’s purse. The older woman was so incensed she whacked Ms. Vargas’s car hard with her cane. Police were able to find the car because of a description the woman gave to the authorities, and then match the cane exactly to the imprint on the car’s hood. Police in South Greensburg, PA chased a car thief into an office building about a block away from where he was spotted trying to put gas into a stolen car. Unfortu- nately, the police lost the man in the building. One employee on the fourth floor later thought it strange to smell cigarette smoke at her desk. She thought it even stranger that the smoke seemed to be coming from the crawlspace above the ceiling tiles over her desk. Police were recalled to the building and the thief surrendered peacefully. Lukas Peterson, Charles Iliffe, and Nicholas Mercurio used knives and a hatchet to demand what they thought was the day’s receipts from the 21-year old clerk at a Dunkin’ Donuts in Hyannis, MA. Unfortunately for them, the store’s cameras captured them on camera well enough that police were able to track them down. One of the robbers explained they demanded the bag containing the money because they glimpsed it sticking out of the clerk’s purse. Unfortunately, it wasn’t until the men ran from the eatery that they realized the bag only held donuts. They were charged with armed robbery among other things. The Body A 90-year old West Harrison, IN man was arrested for public indecency after expos- ing his private parts to an undercover police officer at a county park. The gentle- man’s name was Leonard Dickman. Douglas Martin, 38, of Riverside, IL wanted his ex-girlfriend to feel something for him again, and decided the best way to do this was to post on his Facebook page that he was holding a Korean woman against her will at his home. An acquaintance saw the post and called police who went to Martin’s house where Martin denied the kidnapping. In fact, he said, they were welcome to enter and search. Authorities did not find anyone else in the residence, but did come across a room strewn with pot, cocaine, and heroin. Rebekah Michal Tracht-Kader of Holiday, FL was pulled over for driving through a stop sign. Sheriff’s deputies noticed the car reeked of alcohol and marijuana, as did its driver. Officers were able to pinpoint the problem when they spotted a box labeled, “Rebekah’s pot.” She was charged on multiple counts. Next Issue

76 The Forensic Teacher • Winter 2011 www.theforensicteacher.com www.theforensicteacher.com Stoopid Movies More stoopid criminals; these guys are priceless. Click on the cameras below to see the movies (internet connection required).

77 www.theforensicteacher.com www.theforensicteacher.com The Forensic Teacher • Winter 2011