The Forensic Examiner (Sample) - Fall 2009

A Memorable Day in the Life of Forensic Examiner Dr. John Brick Derivatives:

When a Financial Tool Becomes a Risk

Negotiation Risks in Somalia:

Challenges and Psychological Dynamics in Failed States

Principles and Approaches to Criminal Investigative Analysis Part 2 of Dr. Gregory M. Vecchi’s Crime Scene Exploration $7.50 U.S./$9.50 CAN

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THE

FORENSIC

EXAMINER

®

VOLUME 18 • NUMBER 3 • Fall 2009

The Official Peer-Reviewed Journal of The American College of Forensic Examiners

COVER STORY

39

A Memorable Day in the Life of Forensic Examiner Dr. John Brick

24

FEATURES 08

Principles and Approaches to Criminal Investigative Analysis: Part 2 of 4

By Gregory M.Vecchi, PhD, CFC, CHS-V, DABCIP, DABLEE

14

Derivatives: A Cautionary Tale

By Barbara Apostolou, PhD, CPA and Nicholas G. Apostolou, DBA, CPA

and Psychological 24 Challenges Dynamics of Negotiating Risks in Failed States: The Somali Case

By Barry Austin Goodfield, PhD, FACFEI, DABFE, DABFM and Andre LeGallo, BA

4 THE FORENSIC EXAMINER® Fall 2009

www.acfei.com

ALSO IN THIS ISSUE 70

ACFEI News

72

Conference Preview

80 Book Review

CASE STUDIES/OTHER FEATURES Vans, and Automobiles: Medical Escort of 58 Planes, the Forensic Patient

By Heidi Bale, RN, CFN

61

New Opportunities in a Growing Field: ACFEI’s Forensic Nursing Field Including an Exclusive Interview with Dianne Ditmer, RN, PhD, CFN, DABFN, CMI-III, CHS-III, SANE, FACFEI

Detective’s Corner: A Jewel of a Case 66 The

By Shirley McCann

72

a Sex Offense: When 46 Masking a Non-Sex Crime Really Is a Sex Crime

77

Observe Carefully, Deduce Shrewdly: Dr. Joseph Bell

By Katherine Ramsland, PhD, CMI-V

81

Falsely Accused: Wrongly Convicted Teen Set Free

46

66

14

By Scott A. Johnson, MA, LP, DABPS

52

Police Criminalistics: Learning Modalities and Evaluation

By Thomas E. Baker, MS, MEd, CAGS

08

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PUBLISHER: Robert L. O’Block, MDiv, PhD, PsyD, DMin, DD (Hon) (rloblock@aol.com)

2009 EDITORIAL ADVISORY BOARD Louay Al-Alousi, MB, ChB, PhD, FRCPath, FRCP(Glasg), FACFEI, DMJPath, DABFM, FFFFLM Nicholas G. Apostolou, DBA, DABFA, CPA, Cr.FA Larry Barksdale, BS, MA E. Robert Bertolli, OD, FACFEI, CHS-V, CMI-V Kenneth E. Blackstone, BA, MS, CFC, DABFE David T. Boyd, DBA, CPA, CMA, CFM, Cr.FA Jules Brayman, CPA, CVA, CFD, DABFA, FACFEI John Brick, PhD, MA, DABFE, DABFM, FACFEI Richard C. Brooks, PhD, CGFM, DABFE Steve Cain, MFS, DABFE, DABRE, FACFEI, MF-SQD, DABLEE Dennis L. Caputo, MS, DABFET, REM, CEP, CHMM, QEP, FACFEI Donald Geoffrey Carter, PE, DABFET David F. Ciampi, PhD, FACFEI, DABPS Leanne Courtney, BSN, DABFN, DABFE Larry Crumbley, PhD, CPA, DABFE, Cr.FA Jean L. Curtit, BS, DC Andrew Neal Dentino, MD, FACFEI, DABFE, DABFM Francisco J. Diaz, MD James A. DiGabriele, DPS, CPA, CFSA, DABFA, Cr.FA, CVA, FACFEI John Shelby DuPont Jr., DDS, DABFD Scott Fairgrieve, Hons. BSc, MPhil, PhD, FAAFS Edmund D. Fenton, DBA, CPA, CMA, Cr.FA Per Freitag, PhD, MD, FACFEI, DABFE, DABFM Nicholas Giardino, ScD, FACFEI, DABFE David H. Glusman, CPA, DABFA, CFS, Cr.FA, FACFEI Karen L. Gold, PysD, FACFEI, DABPS Ron Grassi, DC, MS, FACFEI, DABFM, DABFE James Greenstone, EdD, JD, FACFEI, DABFE, DABFM, DABECI, CMI-I, CHS-III Roy C. Grzesiak, PhD, PC Richard C. W. Hall, FACFEI, DABFM, DABFE, MD, FAPA, FAPM, FACPsych Raymond F. Hanbury, PhD, ABPP, FACFEI, DABFE, DABPS, CHS-III James Hanley III, MD, DABFM, FACFEI Nelson Hendler, MD, DABFM David L. Holmes, EdD, FACFEI, DABFE, DABPS Leo L. Holzenthal Jr., PE, DABFET, FACFEI Linda Hopkins, PhD, CFC, DABPS, DABRE Edward J. Hyman, PhD, FACFEI, DABFE, DABFM, DABPS Zafar M. Iqbal, PhD, FACFEI, DABFE, DABFM Nursine S. Jackson, MSN, RN, DABFN Paul Jerry, MA, DAPA, DABFC

®

Scott A. Johnson, MA, DABPS, DAACCE Philip Kaushall, PhD, DABFE, DABPS, FACFEI Eric Kreuter, PhD, CPA, CMA, CFM, DABFA, FACFEI Ronald G. Lanfranchi, DC, PhD, DABFE, DABFM, DABLEE, CMI-IV, FACFEI Richard Levenson, Jr., PsyD, DABFE, DABPS, FACFEI Monique Levermore, PhD, FACFEI, DABPS Jonathon Lipman, PhD, FACFEI, DABFE, DABPS, DABFM Judith Logue, PhD, FACFEI, DABFSW, DABPS, DABFE, DABFM Jennie Martin-Gall, CMI-I Mike Meacham, PhD, LCSW, DABFSW, FACFEI David Miller, DDS, FACFEI, DABFE, DABFM, DABFD John V. Nyfeler, CHS-III Jacques Ama Okonji, PhD, FACFEI, DABFE, DABPS Norva Elaine Osborne, OD, CMI-III Terrence O’Shaughnessy, DDS, FACFEI, DABFD, DABFE, DABFM George Palermo, MD, FACFEI, DABFE, DABFM Ronald J. Panunto, PE, CFC, CFEI, DABFET Larry H. Pastor, MD, FACFEI, DABFE, DABFM Theodore G. Phelps, CPA, DABFA Marc Rabinoff, EdD, FACFEI, DABFE, CFC Harold F. Risk, PhD, DABPS, FACFEI Susan P. Robbins, PhD, LCSW, DABFSW Jane R. Rosen-Grandon, PhD, DABFC, FACFEI Douglas Ruben, PhD, FACFEI, DABFE, DABFM, DABPS J. Bradley Sargent, CPA, CFS, Cr.FA, DABFA, FACFEI William Sawyer, PhD, FACFEI, DABFE, DABFM Victoria Schiffler, RN, DABFN, FACFEI Howard A. Shaw, MD, DABFM, FACFEI Henry A. Spiller, MS, DABFE, FACFEI Marilyn Stagno, PsyD, DABFE, DABFM, DABPS Richard I. Sternberg, PhD, DABPS James R. Stone, MD, MBA, CHS-III, DABFE, DABFM, FACFEI, CMI-IV Johann F. Szautner, PE, PLS, FACFEI, DABFET William A.Tobin, MA, DABFET, DABLEE, FACFEI Robert Tovar, BS, MA, DABFE, DABPS, CHS-III Brett C.Trowbirdge, PhD, JD, DABPS, FACFEI Jeff Victoroff, MD, DABFE, DABFM Patricia Ann Wallace, PhD, FACFEI, DABFE, DABFM, CFC Raymond Webster, PhD, FACFEI, DABFE, DABFM Dean A. Wideman, MSc, MBA, CFC, CMI-III, DABFE

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ACFEI EXECUTIVE ADVISORY BOARDS American Board of Critical Incident Professionals Chair of the Executive Board of Critical Incident Professionals: Gregory M.Vecchi, PhD, CFC, CHS-V, DABLEE, DABCIP Vice Chair: Kent A. Rensin, PhD, DABCIP Monica J. Beer, PhD Sam D. Bernard, PhD, DABCIP, CHS-III Marie Leeds Geron, PhD, CHS-V, DABCIP Raymond H. Hamden, PhD, FACFEI, DABPS, DABCIP, DABCHS, DAPA, CFC, CMI-V, CHS-V Tina Jaeckle, CFC Marshall A. Jones, MS, DABCIP Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Rev. Roger Rickman, ThD, MBA, ACC, CFC, CHS-V, CMI-I, SSI, CRS, DABCHS, DABCIP, DAPA, FABI, PI, SCS, FAAIM Debra Russell, PhD, CMI-V, CHS-III, CRC, CISM, DABCIP Dorriss “Ed” Smith, Col. US Army, CHS-V, DABCIP Vincent B.Van Hasselt, PhD, DABCIP Alan E. Williams, MS, CHS-V, DABCIP American Board of Forensic AccountING Chair of the Executive Board of Accounting Advisors: Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE Chair Emeritus: J. Bradley Sargent, CPA, CFS, Cr.FA, DABFA, FACFEI Stewart L. Appelrouth, CPA, CFLM, CVA, DABFA, Cr.FA, ABV, FACFEI Gary Bloome, CPA, Cr.FA Alexander Lamar Casparis, CPA, CVA, MBA,Cr.FA D. Larry Crumbley, PhD, CPA, DABFA, Cr.FA, CFFA, FCPA June M. Dively, CPA, DABFA, Cr.FA Michael W. Feinberg, CPA, Cr.FA David Firestone, CPA, Cr.FA Mark S. Gottlieb, CPA/ABV/CFF, CVA, CBA, DABFA, MST David H. Glusman, CPA, FACFEI, DABFA, Cr.FA Eric A. Kreuter, PhD, CPA, CMA, CFM, FACFEI, DABFA, SPHR, CFD, CFFA, BCFT Robert K. Minniti, CPA, MBA, Cr.FA Dennis S. Neier, CPA, DABFA Kim J. Onisko, CPA, Cr.FA Joseph F. Wheeler, CPA, Cr.FA, CHS-III, CFF, CAMS American Board of Forensic Counselors Chair of the Executive Board of Forensic Counselors: Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Vice Chair: Steven M. Crimando, MA, CHS-III Chair Emeritus: Dow R. Pursley, EdD, DABFC Irene Abrego Nicolet, PhD, DABFC, MA George Bishop, LPC, LAT, LAC, FACFEI, DABFE Laura W. Kelley, PhD, LPC, DABFC, FACFEI Robert E. Longo, FACFEI, DABFC Kathleen Joy Walsh Moore, DABFC, CHS-III DeeAnna Merz Nagel, MEd, LPC, CRC, DCC, CFC Hirsch L. Silverman, PhD, FACFEI, DABFC, DABFE, DABFM, DABPS William M. Sloane, JD, LLM, PhD, FACFEI, DABFC, CHS-III, CMI-I, DACC, DCPC, FAAIM, FACC, MTAPA Gary Smith, MEd, FACFEI, DABFE Ava Gay Taylor, MS, LPC, DABFC, FACFEI American Board of Forensic Dentistry Chair of the Executive Board of Forensic Dentistry: Brian L. Karasic, DMD, MBA, MScFin, FACFEI, DABFD, DABFM, DABFE Members of the Executive Board of Dental Advisors: Ira J. Adler, DDS, DABFD Bill B. Akpinar, DDS, CMI-V, FACFEI, DABFD, DABFE, DABFM Stephanie L. Anton-Bettey, DDS, CMI-V Jeff D. Aronsohn, DDS, FACFEI, DABFD, CMI-V Susan Bollinger, DDS, CMI-IV, CHS-III Michael H. Chema, DDS, FACFEI, DABFD, DABFE James H. Hutson, DDS, CMI-V, DABFD, FACFEI John P. Irey, DDS, CMI-V, LLC Chester B. Kulak, DMD, CMI-V, CHS-III, CFC, DABFE, DABFD Morley M. Lem, DDS, FACFEI, DABFD, DABFM, DABFE, DABPS John P. LeMaster, DMD, DABFD, CMI-V, CHS-III, DABFM, FACFEI Jeannine L. Weiss, DDS American Board of Forensic Examiners Chair of the Executive Board of Forensic Examiners: Michael Fitting Karagiozis, DO, MBA, CMI-V, CFP Members of the Executive Board of Forensic Examiners:

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Jess P. Armine, DC, FACFEI, DABFE, DABFM Phillip F. Asencio-Lane, FACFEI, DABFE John H. Bridges III, CHS-V, CHMM, CSHM, DABCHS, DABCIP, FACFEI Ronna F. Dillon, PhD, DABFE, DABPS, CMI-V, CHS-III Nicholas J. Giardino, ScD, FACFEI, DABFE, RPIH, MAC, CIH Bruce H. Gross, PhD, JD, MBA, FACFEI, DABFE, DABFM, DABPS, DAPA Kenneth M. Gross, DC, FACFEI, DABFE, CMI-I Darrell C. Hawkins, MS, JD, FACFEI, DABFE, DABLEE, CMI-V, CHS-III, F-ABMDII, IAI-SCSA, IAAI-CFI Michael W. Homick, PhD, DABCHS, CHS-V John L. Laseter, PhD, FACFEI, DABFE, DABFM, CMI-IV, CHS-III Jonathan J. Lipman, PhD, FACFEI, DABFE, DABFM, DABPS Leonard K. Lucenko, PhD, FACFEI, DABFE, CPSI Edward M. Perreault, PhD, DABFE, FACFEI Marc A. Rabinoff, EdD, FACFEI, DABFE, CFC David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, CMI-V, CHS-V, DABFE, DABFM, DABECI, FACA, FAPA, MTAPA, FAAIM Janet M. Schwartz, PhD, FACFEI, DABFE, DABFM, DABPS, DABCHS, CHS-V, DAPA, NCC, NCP, CDP-I Larry F. Stewart, MSFS, CFC American Board of Forensic Engineering and Technology Chair of the Executive Board of Engineering and Technology Advisors: Cam Cope, BS, DABFET, DABFE Vice Chair: George C. Frank, CFC, DABFE Second Vice Chair: Ronald G. Schenk, MSc, MInstP, Peng (UK), CHS-III, CMI-I, SSI Chair Emeritus: Ben Venktash, DABFET, DABFE, CHSP, REA, FRSH (UK), FIET (UK) David Albert Hoeltzel, PhD Robert K. Kochan, BS, FACFEI, DABFET, DABFE J.W. “Bill” Petrelli Jr., AIA, NCARB, TAID, FACFEI, DABFET, CFC Max L. Porter, PhD, DABFET, DABFE, PE, HonMASCE, Parl, Dipl ASFE, FTMS, FACI, CFC, FACFEI James A. St.Ville, MD, MS, FACFEI, DABFET, DABFM Kandiah Sivakumaran, MS, PE, DABFET Malcolm H. Skolnick, PhD, JD, FACFEI, DABFET, DABFE American Board of Forensic Medicine Chair of the Executive Board of Medical Advisors: David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, CMI-V, CHS-V, DABFE, DABFM, DABECI, FACA, FAPA, MTAPA, FAAIM Vice Chair: Michael Fitting Karagiozis, DO, MBA, CMI-V, CFP Members of the Executive Board of Medical Advisors: Terrance L. Baker, MD, MS, FACFEI, DABFM, CMI-V, CFP, DABFE Douglas Wayne Beal, MD, MSHA, CMI-V, CFP, DABFE, DABFM John Steve Bohannon, MD, CMI-IV, CFP, FACEP Zhaoming Chen, MD, PhD, MS, FAAIM, CFP John A. Consalvo, MD Edgar L. Cortes, MD, DABFM, DABFE, FAAP, FACFEI, CMI-V, CFP Albert Basil DeFranco, MD, FACFEI, DABFM, DABPS, CMI-V, CFP, CHS-III James B. Falterman Sr., MD, DABFM, DABFE, DABPS, FACFEI, CMI-IV, CFP Malcolm N. Goodwin Jr., MD, MS, FACFEI, DABFM, DABFE, FCAP, Col USAF MCFS (Ret), CFP Vijay P. Gupta, PhD, DABFM Richard C.W. Hall, MD, FACFEI, DABFM, DABFE, CFP Louis W. Irmisch III, MD, FACFEI, DABFM, DABFE, CMI-V, CFP E. Rackley Ivey, MD, FACFEI, DABFM, DABFE, DABMCM, DAAPM, CMI-V, CFP Kenneth A. Levin, MD, FACFEI, DABFM, DABFE, CFP E. Franklin Livingstone, MD, FACFEI, DABFM, DABFE, DAAPM, FAAPM&R, CFP John C. Lyons, MD, FACS, MSME, BSE, FACFEI, DABFM, DABFET, DABFE, CMI-IV, CFP Manijeh K. Nikakhtar, MD, MPH, DABFE, DABPS, CMI-V, CHS-V, CFP John R. Parker, MD, FACFEI, DABFM, FCAP, CFP Jerald H. Ratner, MD Anna Vertkin, MD, CMI-V, DABFM, CFP Maryann M. Walthier, MD, FACFEI, DABFM, DABFE, CFP Cyril Wecht, MD, JD, FACFEI, CMI-V, CFP

American Board of Forensic Nursing Chair of the Executive Board of Nursing Advisors: Dianne T. Ditmer, MS, RN, CFN, CMI-III, CHS-III, FACFEI, DABFN, CMI-III; Chair,American Board of Forensic Nursing Heidi H. Bale, RN, CFN, CCHP Marilyn A. Bello, RNC, MS, CMI-IV, CFC, CFN, SAFE, DABFN, DABFE Wanda S. Broner, MSN, RN, FNE, CEN Cynthia J. Curtsinger, RN, CFN Linda J. Doyle, RN, CLNC, CFN, CMI-III L. Sue Gabriel, EdD, MSN, MFS, RN, Diane L. Reboy, MS, RN, CFN, LNCC, FACFEI, DABFN, CNLCP Elizabeth N. Russell, RN, BSN, CCM, BC, DABFN, FACFEI LeAnn Schlamb, MSN, RN-BC, CFN, DABFN Sharon L. Walker, MPH, PhD, RN, CFN Carol A. Wood, RN, CFN, BS, NHA American Board of Forensic Social Workers Chair of the Executive Board of Social Work Advisors: Douglas E. Fountain, PhD, LCSW, FACFEI, DABFE, DABFSW Chair Emeritus: Karen M. Zimmerman, MSW, DABFSW, DABFE Susan L. Burton, MA, MSW, LMSW, DABFSW, DABLEE Judith V. Caprez, MSW, ACS, LCSW, DABFSW Peter W. Choate, BA, MSW, DABFSW, DABFE Judith Felton Logue, PhD, FACFEI, DABFE, DABFSW, DABPS, DABFM Michael G. Meacham, PhD, LCSW, DCSW, FACFEI, DABFSW Kathleen Monahan, DSW, MSW, CFC, DABFE Susan P. Robbins, PhD, LCSW, DCSW, BCD, LDC, DABFSW Steven J. Sprengelmeyer, MSW, MA, FACFEI, DABFSW, DABFE, LISW American Board of Psychological Specialties Chair of the Executive Board of Psychological Advisors: Raymond F. Hanbury, PhD, FACFEI, DABPS, DABFE, CHS-III, ABPP Vice Chair: Raymond H. Hamden, PhD, FACFEI, DABPS, DABCIP, DABCHS, DAPA, CFC, CMI-V, CHS-V Chair Emeritus: Carl N. Edwards, PhD, JD, FAAFS, FICPP, FACFEI, DABPS, DABFE Carol J. Armstrong, PhD, LPC, DABPS Robert J. Barth, PhD, DABPS Monica J. Beer, PhD John Brick III, PhD, MA, FAPA, FACFEI, DABFE, DABPS Alan E. Brooker, PhD, FACFEI, DABPS, DABFM, DABFE, CMI-III, ABPP-Cn Brian R. Costello, PhD, FACFEI, DABPS, DABFE Ronna F. Dillon, PhD, DABPS, DABFE, CMI-V, CHS-III Brent Van Dorsten, PhD, FACFEI, DABFE, DABFM, DABPS Douglas P. Gibson, PsyD, MPH, DABPS, CMI-V, CHS-III Mark Goldstein, PhD, DABFE, DABPS, FACFEI Thomas L. Hustak, PhD, FACFEI, DABPS, DABFE Richard Lewis Levenson Jr., PsyD, FACFEI, DABPS, DABFE, CTS, FAAETS Stephen P. McCary, PhD, JD, FACFEI, DABFE, DABFM, DABPS, FAACP, DAPA Helen D. Pratt, PhD, FACFEI, DABPS Douglas H. Ruben, PhD, FACFEI, DABPS, DABFE, DABFM Richard M. Skaff, PsyD, DABPS Charles R. Stern, PhD, DABPS, DABFE, DABFM, FACFEI, CMI-V Joseph C.Yeager, PhD, DABFE, DABLEE, DABPS, FACFEI Donna M. Zook, PhD, DABPS, CFC American Board of Recorded Evidence Chair of the Executive Board of Recorded Evidence Advisors: Thomas J. Owen, BA, FACFEI, DABRE, DABFE, CHS-V Ernst F.W. (Rick) Alexanderson, BA, MBA, FACFEI, DABRE, DABFE Eddy B. Brixen, DABFET Charles K. Deak, BS, CPC, DABFE, FACFEI Ryan O. Johnson, BA, DABFE, DABRE Michael C. McDermott, JD, DABRE, DABFE, FACFEI Jennifer E. Owen, BA, DABRE, DABFE Lonnie L. Smrkovski, BS, DABRE, DABFE, FACFEI

Fall 2009 THE FORENSIC EXAMINER® 7

CASE STUDY

For the purpose of this series of articles, the term “investigative processes” will be used to describe both criminal investigation and crime scene processing. Any distinctions between criminal investigation and crime scene processing will be designated as such. Although crime scene processing is part of criminal investigation, it is distinct; crime scene processing requires rigorous scientific methodologies (i.e., collection procedures, testing protocols, etc.), whereas criminal investigation has less of a “hard science” character and relies more on the experience and skills of the investigator rather than rigid scientific protocols and procedures. In this light, crime scene processing can be viewed as the “science” of investigative processes, whereas criminal investigation can be viewed as the “art.”

The purpose of this article series is to provide information on the entire spectrum of investigative processes that is useful for all individuals involved in the investigations: the responding officer, detectives/investigators, police supervisors, lawyers, judges, and other criminal justice professionals.

By Gregory M. Vecchi, PhD, CFC, CHS-V, DABCIP, DABLEE

Principles and Approaches to Criminal Investigation,

Part 2

The views expressed in this article do not necessarily represent the views of the FBI. 8 THE FORENSIC EXAMINER® Fall 2009

Introduction This article examines testimonial evidence and the documentation of investigations and crime scenes. At the heart of testimonial evidence lies the interview and interrogation, which can be described as “conversations with a purpose.” In both interviews and interrogations, the investigator obtains information from or about persons connected with a particular incident. Documentation (i.e., writing reports, drawing sketches and diagrams, photographing, etc.) is oftentimes the most tedious part of investigative work; however, it is probably the single most important activity the investigator will accomplish. Documentation memorializes every activity accomplished during the investigation and preserves it for subsequent investigation and court. It is because of documentation that the entirety of the crime scene can be brought into court—photographs, sketches, video and audio tapes, notes, observations, and reports, which allow the prosecutor to reconstruct the scene and argue theories before a jury.

Interviews Interviews are conducted with people the investigator believes are willing to give information about a case. Interviews can be conducted with victims, witnesses, and complainants/accusers www.acfei.com

and are accomplished to develop the facts of the case. Investigators should show concern for the victim. Witnesses should be separated as soon as possible and questioned one at a time.

Complainant and accuser information should be carefully scrutinized by the investigator in order to discern false or misleading information. With all interviews, it is possible that the victim, witness, or complainant/accuser may lie on purpose to “get at” someone else or to hide their own criminal involvement. They may also be too eager to please and unintentionally distort the facts or tell the investigator what he or she “wants to hear.” In these situations, it might be necessary to interrogate a victim, witness, or complainant/ accuser (Gordon & Fleisher, 2002; Hess, 1997; Holmes, 2002; Milne & Bull, 1999).

Interrogations Interrogations are conducted with people whom the investigator believes are not willing to give information about a case, as well as people whom the investigator believes have committed or helped commit a particular criminal offense. Interrogations should be avoided on anyone who can be successfully interviewed.

Suspects are interrogated to learn whether or not they have committed an offense or to obtain admissions of guilt or a confession. An admission of guilt does not amount to a complete acknowledgement of guilt, whereas a confession is a complete acknowledgement of guilt of all elements of the offense.

Since interrogations oftentimes produce incriminating statements that may be used in court, it is important for the investigator to understand when it is necessary to inform the suspect of his rights against self-incrimination and his right to have counsel present. Generally speaking, a waiver of rights is only necessary when the suspect is in custody (or about to be taken into custody) AND the questioning pertains to the culpability of the suspect with regard to the offense(s) under investigation. If either of these two elements is missing, then a waiver of rights is not required by law. For example, if an investigator speaks with a suspect at a restaurant and obtains criminal admissions from that suspect, the admissions are usually admissible in court without a signed rights waiver. In this example, the investigator would make an effort to ensure that the suspect verbally acknowledges his or her understanding that he or she is not under arrest (or going to be arrested fol(800) 592-1399

lowing the interview) and that the interview or any portion of it is voluntary (meaning that the suspect could decline the interview altogether or stop the interview at any time without penalty). It is very important for the investigator to document that the suspect fully understood his or her rights (Gordon & Fleisher, 2002; Hess, 1997; Holmes, 2002; Milne & Bull, 1999).

The following are some strategies for interrogations (Department of the Army, 1985):

• Always identify yourself as a law enforcement officer.

• Have at least one law enforcement officer as a witness.

• In a custodial situation, obtain a waiver of rights from the suspect. In a non-custodial situation, ensure it is clearly documented that the suspect fully acknowledged the situation and fully understood his or her rights.

• If the investigator believes that legal counsel has been appointed for or retained by the suspect for the specific offense under investigation, the counsel should be notified immediately before beginning any interrogations.

• For extended interrogations, offer the suspect food and liberal restroom breaks and document these efforts.

• If possible, avoid conducting the interrogation on the suspect’s “turf ” (e.g., home or business). It is preferable to conduct interrogations on the investigator’s “turf ” (e.g., office or station) or at least on public or neutral ground.

Polygraph Examinations In some instances, the polygraph can aid the investigator in obtaining the truth, whether it be obtaining admissions of guilt or clearing a person of a crime. It is important to note that a polygraph cannot detect truth or deception, as

Gregory M.Vecchi, PhD, CFC, CHS-V, DABCIP, DABLEE is the Unit Chief of the Behavioral Science Unit (BSU), Federal Bureau of Investigation (FBI). Dr.Vecchi was assigned to the BSU in January 2006, where he conducts research, training, and consultation activities in behavioral-based conflict analysis and resolution, crisis management, conflict and crisis communication, and global hostage-taking.

Fall 2009 THE FORENSIC EXAMINER® 9

“The investigator cannot rely on a chance that a suspect will make incriminating statements against themselves during a polygraph. . . . The investigation must already be thorough and as complete as possible before employing a polygraph.”

10 THE FORENSIC EXAMINER® Fall 2009

it only measures bodily reactions to questions.

It does this through measuring blood pressure, galvanic skin response (electric skin impulses), and upper and lower chest respiration (Kleiner, 2002; Milne & Bull, 1999; National Research Council, 2002).

It is important to remember that the polygraph is only an aid to the investigation. The investigator cannot rely on a chance that a suspect will make incriminating statements against themselves during a polygraph. The suspect should have already been interviewed, and there must be more information needed to complete the investigation. In addition, there must be reasonable cause to believe the suspect has knowledge of, or was involved in, the matter under investigation. In other words, the investigation must already be thorough and as complete as possible before employing a polygraph (Kleiner, 2002; Milne & Bull, 1999; National Research Council, 2002).

Prior to administering the polygraph, the investigator has the responsibility to provide the examiner with all the facts of the investigation to include connections between the suspect and other persons and things, peculiarities of the crime scene, what is known about the suspect’s actions and behavior, the results of laboratory examinations and crimes scene processing, and anything not publicly known about the offense (especially things only the victim or offender would know). It is the examiner’s responsibility to take into account all the facts of the investigation and develop a battery of questions in collaboration with the investigator. The examiner also must ensure that the suspect is not mentally or physically fatigued, overly emotional, mentally disordered, physically disabled, or under the influence of alcohol or drugs, as these issues will preclude the polygraph examination (Kleiner, 2002; Milne & Bull, 1999; National Research Council, 2002).

For a polygraph examination to be accurate, the examiner must determine a “base line” of bodily measurements through question construction and delivery. Certain questions are asked of the subject that are non-threatening, such as “Are you sitting down” or “Is your name Monica?”

These questions allow the examiner to adjust the machine for nervousness. There are also questions that are meant to be failed (although the subject is not informed of this) such as “Have you ever lied to anyone?” or “Have you ever sto-

len anything no matter how small?” The final set of questions deals with the pertinent issues of the case such as “Did you steal money from the bank vault on September 7, 2008?” or “Did you know about the death of John Smith before today?” If, for example, the subject shows the most reaction to the question regarding the bank vault, then he or she would most likely be scored as “deceptive.” Contrarily, if the subject showed the most reaction to having ever stolen anything, then the test would be most likely scored as “no deception indicated.” Sometimes, the subject is “inconclusive,” indicating that the examiner was unable to determine whether or not the subject was deceptive. Inconclusive results usually require that the examiner redefine some of the questions or determine other causes, such as the subject fidgeting during the test (Kleiner, 2002; Milne & Bull, 1999; National Research Council, 2002).

Notes Notes are the most readily available record of any investigation. Although there are no official rules pertaining to note taking, they should be detailed sufficiently enough to remain meaningful even months or years after the event. Poor note taking is often the root of poor testimony during cross-examination, and it forces the investigator to rely on his or her memory or gross approximations. For example, forgetting to note the date or time of day of an event and then guessing it wrong becomes not only embarrassing for the investigator and prosecution, but a point of contention for the defense attorney.

Notes are the basis for both reports of investigation and testimony. Reports of investigation are detailed summaries of the notes, whereas testimony requires the recall of more detail.

Therefore, it is important for the investigator to anticipate the requirements of both written reports and questions that may be asked during testimony when writing notes. For consistency purposes, it is best to have as few investigators as possible taking notes on the same event or portion thereof (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Notes should be taken on a loose-leaf notebook, as they can be better organized than bound notebooks. This reduces the likelihood that other notes not relating to the instant case will end up being inadvertently disclosed to others or in www.acfei.com

court. Also, missing pages from a bound notebook that were used for purposes other than the instant investigation tend to raise integrity questions by the defense in court (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Notes should be numbered and include the date, agency, case number, name of investigator, and the initials of the investigator to ensure clarity as to what case they belong, who wrote them, and who to return to if the notes are lost or misplaced. Notes should be written in black or blue ink that doesn’t smudge. Any mistakes should not be erased or torn out, but should be lined out and initialed by the investigator.

Finally, notes should be archived and locked in a secure place even after a successful prosecution, as future appeals or inquiries may require their retrieval (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007, Osterburg, 2007).

Photographs Photographs supplement notes and sketches or clarify points relative to a case. Photographs are also used to identify individuals, and they form a permanent record of fragile or perishable evidence such as fingerprints or blood splatter.

Photographs are admissible in court only if they accurately depict the area observed. It is important that entry photographs be taken before any evidence is touched or before the crime scene search commences. These are area shots of the entire crime scene that overlap. Individual close-up photographs should be taken of each item of evidence from several angles in order to preserve its condition at the time it was discovered. It is usually a good idea to include a ruler or other standard item such as a coin to provide scale. Exit photographs should be taken after the crime scene has been processed to demonstrate that the scene was properly processed and that no unnecessary damage occurred. Like entry photographs, exit photographs should document the entire crime scene, and these photographs should show overlapping areas (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

The most important aspect of photography is maintaining perspective. Perspective is the ability of the investigator to reproduce the scene as it would appear to someone standing in the photographer’s shoes. Any significant distor(800) 592-1399

tion will reduce or destroy the evidentiary value of the photograph. As such, it is important that the investigator use lenses, lighting, and angles that reproduce the same colors, hues, textures, and positioning as observed with the naked eye (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

The photo log is the equivalent of notes for photographs. The photo log should include the name of the photographer, date, time, agency, case number, type of camera and serial number, type of film, number of exposures, lens focal length and serial number, filtration, f/stop, shutter speed, and flash attachment. For digital cameras, include the number of megapixels, format (jpeg, bitmap, etc.), and storage media.

Every photograph taken should include time, photograph number, type of photo (outside entrance, evidence, inside entrance), depiction (door, pistol), distance from object, and remarks (shutter speed, f/stop) (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Sketches Sketches can be used when questioning people, preparing reports of investigation, and in presenting evidence in court. They assist in acquainting the court with crime scenes, and they assist witnesses in orientating themselves before they testify. Sketches complement notes and photographs; however, they concentrate attention on the most essential elements of a crime scene and their relationships.

Sketches are classified as either rough or smooth. Rough sketches are drawn at the crime scene and their purpose is to accurately portray information. These sketches are usually not drawn to scale but they do show accurate distances, dimensions, and relative proportions.

For clarity purposes, it is sometimes necessary to draw several sketches, such as one sketch per room or a sketch dedicated to a murder victim.

A smooth sketch can be made from a rough sketch and is usually to scale and prepared by an experienced draftsman (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Each sketch should include the critical features of the scene and the major, discernable items of physical evidence. Sketches must show accurate measurements of the crime scene and the location of each piece of evidence, via the Fall 2009 THE FORENSIC EXAMINER® 11

triangulation method. Format requirements include a caption, title block, direction of magnetic north, scale designation (if none, indicate “not to scale”), and a legend. The title block should include the agency and case number, offense, scene portrayed, location, victim (if applicable), time and date began/ended, sketched by, and verified by.

The legend explains symbols, numbers, and letters used to identify objects in the sketch (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Accurate measurement is a critical requirement of sketches, as errors can introduce doubt as to the validity of the entire sketch. Measurements should be uniformly made and recorded using the same scale (feet, inches, centimeters, millimeters, etc.).

The triangulation method is used for indoor and outdoor sketches that have fixed reference points. Objects are located by creating a triangle of measurements from a single, specific, identifiable point on an object to two fixed points at the scene (all on the same plane). It is important not to triangulate evidence to evidence or triangulate under or through evidence (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Observations and Descriptions Observations assist in building descriptions of persons, objects, places, and events so that whom or what was seen can later be identified and described. The accuracy of observations can be affected by lack of sleep, illness, or other outside influences. Weather, distractions, psychological, physiological, experiential factors, perception, bias, culture, and emotion all have the potential to diminish the accuracy of observation.

Trained observers are aware of these factors and make allowances for these outside influences when they interpret what they observe by using a systematic approach to observations and descriptions.

Accuracy in observation is most assured if the investigator follows a set pattern. It is similar to checklists used by pilots, which systemize preflight safety requirements. Patterns used for observation begin with general features and move to 12 THE FORENSIC EXAMINER® Fall 2009

specific features. For example, when developing a description of a person, start with sex, height, weight, race, and then move on to hair and eye color, scars, and mannerisms. For objects, the investigator should note the type, size, and color and then move on to more specific features that set the item apart from other items (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Observing and describing events require a systematic and quick observation of time, place, persons, objects, and actions involved, as well as the immediate results of the event. The observation of connected actions after the event may provide major clues to what took place (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

When observing and describing places, the investigator should cite the elements observed in a way that provides an easily understood “word picture.” For outdoor scenes, the investigator should look for natural or man-made landmarks and note the general scene in relation to roadways, railways, or shorelines. Efforts should be made to identify fixed or semi-fixed structures such as buildings, bridges, or power line poles and any high interest items. For indoor scenes, the investigator should identify obvious and definite boundaries such as walls, hallways, and basements and any objects of interest (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg, 2007).

Conclusion Interviews and interrogations require extensive preparation by the investigator. Some of the steps include 1) fixing in the mind what is known of the who, what, when, where, how, and why details of the case, 2) obtaining background knowledge of the subject of the interview or interrogation to include biographical information, criminal history, level of education, status in the community, associations, and personal activities, 3) planning a systematic questioning protocol that involves mostly open-ended questions that require elaboration, and 4) determining the effectiveness of a direct versus an indirect approach to questioning.

Documentation is a critical skill that all investigators need to master. Accurate and thorough documentation of crime scenes and other investigative activities preserves and packages the facts of the investigation into a usable format for court and in furthering the investigation. Notes, photographs, sketches, and observations are made of the crime scene, the crime scene search, and other processes throughout the investigation. These activities are essential, as they assist in accurately recalling events and identifying evidence in court. Moreover, these activities form a detailed record attesting to the thoroughness and detail of the process.

References Department of the Army. (1985). Law enforcement investigations. Washington, DC: Author.

Fisher, B.A.J. (2004). Techniques of crime scene investigation (7th ed.). Boca Raton, FL: CRC Press.

Gordon, N.J., & Fleisher, W.L. (2002). Effective interviewing and interrogation techniques. San Diego, CA: Academic Press.

Hess, J.E. (1997). Interviewing and interrogation for law enforcement. Cincinnati, OH: Anderson Publishing.

Holmes, W.D. (2002). Criminal interrogation: A modern format for interrogating criminal suspects based on the intellectual approach. Springfield, IL: Charles C. Thomas Publishers.

Kleiner, M. (Ed.). (2002). Handbook of polygraph testing. San Diego, CA: Academic Press.

Lyman, M. D. (2008). Criminal investigation: The art and science (5th ed.). Upper Saddle River, NJ: Prentice Hall.

Milne, R., & Bull, R. (1999). Investigative interviewing: Psychology and practice. West Sussex, England: John Wiley & Sons.

National Research Council. (2002). The polygraph and lie detection. Washington, DC: The National Academic Press.

Ogle, R. R. (2007). Crime scene investigation and reconstruction (2nd ed.). Upper Saddle River, NJ: Pearson Prentice Hall.

Osterburg, J. W., & Ward, R. H. (2007). Criminal investigation: A method for reconstructing the past (5th ed.). Newark, NJ: Lexis-Nexis. n n

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Fall 2009 THE FORENSIC EXAMINER® 13

CE ARTICLE: 1 CE CREDIT

By Barbara Apostolou, PhD, CPA and Nicholas G. Apostolou, DBA, CPA, Cr.FA, DABFA

DERIVATIVE$:

A Cautionary Tale

Derivatives are financial instruments that were designed to mitigate financial risk. A fairly simple idea evolved over the past two decades into an enormous unregulated global market activity that has been at the center of financial statement frauds and mismanagement. Thus, the very instrument that was intended to reduce risk has yielded its own peril. The complexity of the transactions can mislead financial statement users, thus creating a much greater risk than that conceived to be managed by the derivatives themselves. This article describes derivatives, discusses some of the fraudulent activities that relied on their use, and presents new guidance from the Financial Accounting Standards Board intended to make derivatives transactions more transparent to the public. A forensic examiner specializing in financial statements must

14 THE FORENSIC EXAMINER速 Fall 2009

be cognizant of the evolving developments with derivatives.

Introduction Derivatives were originally created to reduce risk.

However, as they evolved and became more prevalent and complex, rather than protecting investments, their use produced peril. The traditional cautionary tale consists of three elements: (1) warning of danger, (2) the warning is disregarded, and (3) the violator meets an unpleasant fate. What is missing from the formula is the presence of a guardian to ensure that the warnings are not disregarded.

In the case of the flow of financial information in the marketplace regarding the complexity of derivatives transactions, the forensic expert has a special role to (1) issue warnings, (2) identify violations, and (3) provide assistance when violations occur.

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This article is approved by the following for continuing education credit: (ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

After studying this article, participants should be better able to do the following: 1. Understand how derivatives can be used to hedge against financial risk.

2. Identify the risk that is assumed by using derivatives.

3. Understand how derivative instruments and related hedged items are accounted for by the accounting profession.

KEY WORDS: derivatives, swaps, options, futures, hedge TARGET AUDIENCE: Accounting professionals PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose.

PREREQUISITES: None

Derivatives have played a significant role in the recent meltdown of the world’s financial system. As of June 2008, the derivatives market was a staggering $684 trillion (notional amount)—up from $106 trillion in 2002, and less than $1 trillion 20 years previously (see Table 1). Derivatives can no longer be ignored or regarded as a transaction reserved for analysis by a sophisticated few. The use of derivatives by the great majority of our largest companies will require forensic experts involved in preventing and detecting financial statement fraud to fully comprehend these instruments and the risks associated with their use.

Evidence of how insidious these instruments could be has been apparent since the 1990s. But the financial industry lobbied against federal oversight to protect the financial system and was supported by important government figures, including Alan Greenspan, chairman of the Federal Reserve from 1987 to 2006.

While the regulators battle over missteps regarding how to manage the fallout of the unregulated derivatives market, forensic experts should waste no time at becoming fully informed about issues involving how derivatives expose companies to the risk of financial loss due to intentional acts or poor management. The purpose of this paper is to describe (a) the nature of derivatives, (b) the benefits and risks of these instruments, (c) the extant accounting rules and regulations that govern derivatives, and (d) recent regulatory changes requiring enhanced disclosures.

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TABLE 1. Amounts Outstanding of Over-the-Counter (OTC) Derivatives By Risk Category and Instrument in Billions of U.S. Dollars Notional Amounts Outstanding Risk Category/Instrument

Jun 2006

Dec 2006

Jun 2007

Dec 2007

Jun 2008

370,178

414,845

516,407

595,341

683,725

38,127 19,407 9,696 9,024

40,271 19,882 10,792 9,597

48,645 24,530 12,312 11,804

56,238 29,144 14,347 12,748

62,983 31,966 16,307 14,710

262,526 18,117 207,588 36,821

291,582 18,668 229,693 43,221

347,312 22,809 272,216 52,288

393,138 26,599 309,588 56,951

458,304 39,370 356,772 62,162

Equity-linked contracts Forwards and swaps Options

6,782 1,430 5,351

7,488 1,767 5,720

8,590 2,470 6,119

8,469 2,233 6,276

10,177 2,657 7,520

Commodity contracts Gold Other commodities Forwards and swaps Options

6,394 456 5,938 2,188 3,750

7,115 640 6,475 2,813 3,663

7,567 426 7,141 3,447 3,694

9,000 595 7,861 5,085 2,776

13,229 649 12,580 7,561 5,019

Credit default swaps Single-name instruments Multi-name instruments

20,352 13,873 6,479

28,650 17,879 10,771

42,580 24,239 18,341

57,894 32,246 25,648

57,325 33,334 23,991

Unallocated

35,997

39,740

61,713

71,146

81,708

Total contracts Foreign exchange contracts Forwards and forex swaps Currency swaps Options Interest-rate contracts Forward rate agreements Interest-rate swaps Options

Source: BIS Quarterly Review, December 2008, Bank for International Settlements, p. A103.

Background Although derivative terminology can be daunting (see Table 2 for an explanation of some basic terms), a broad definition is relatively simple. Derivatives are financial instruments with a value derived from fluctuations in an asset or index (known as the underlying) such as share price, interest rate, or currency exchange rate.

The face value of a derivative is referred to as the notional amount. The notional amount can be the number of currency units, shares, bushels, pounds, or other units specified in a derivative contract. The Financial Accounting Standards Board (FASB), the primary rule-making body in accounting, has described a derivative as having three key characteristics: 1. It has (a) one or more underlyings and (b) one or more notional amounts or payment provisions or both. Those terms determine the amount of the settlement or settlements and, in some cases, whether or not a settlement is reached.

2. It requires no initial net investment or an initial net investment that is smaller than would be required for other types of contracts that would be expected to have a similar response to market factors.

3. Its terms require or permit net settlement, it can readily be settled net by a means outside Fall 2009 THE FORENSIC EXAMINERÂŽ 15

TABLE 2. Common Derivatives Trading Language Call

An option that gives the buyer the right to purchase a specified quantity of an asset at a fixed price at any time during the life of the option.

Cap

A contract that protects the holder from a rise in interest rates beyond a certain period.

Counterparty

The other party or participant in a financial transaction.

Credit Default Swap

A credit derivative contract where the buyer makes periodic payments to the seller and in return receives protection if an underlying financial instrument defaults.

Floor

A contract that protects the holder against a decline in prices below a certain point.

Forwards

A contract obligating one party to buy, and the other party to sell, a specific asset for a fixed price at a future date.

Futures

A contract between a buyer and seller specifying a commodity or financial instrument to be delivered and paid for at a future date.

Unlike forward contracts, futures contracts are managed through an organized futures exchange.

Notional value

The full value of the obligations owed by all parties involved in a derivatives contract.

Put

An option that gives the buyer the right to sell a specified quantity of the underlying interest at a fixed price at any time during the life of the option.

Swap

An agreement by two parties to exchange a series of cash flows in the future.

Swaption

An option giving the holder the right to enter into or cancel a swap at a future date.

Underlying

The asset, index, or benchmark that determines the value of the derivative by its price movement.

the contract, or it provides for delivery of an asset that puts the recipient in a position not substantially different from net settlement (1998, p. 8, para. 6).

Derivatives can be based upon currencies, commodities, government or corporate debt, home mortgages, stocks, interest rates, or any combination of these. Although there are hundreds of different types of derivatives, they can be classified into three main classes: 1. Futures/forwards: contracts to buy or sell an asset at a specified future date at a price specified today.

2. Options: contracts giving the holder the right, but not the obligation, to buy or sell an asset at a specified price on or before a given date.

3. Swaps: contracts where two parties agree to exchange cash flows on or before a specified future date based upon the underlying value of currency exchange rates, bond interest rates, commodities, or stocks.

Derivatives are one of the cheapest and most effective tools a company has to protect itself against shocks in currency values, commodity prices, and interest rates. For example, compa16 THE FORENSIC EXAMINERÂŽ Fall 2009

nies often use forward and exchange-listed futures to protect against fluctuations in currency or commodity prices. A survey conducted by the International Swaps and Derivatives Association (ISDA) of the world’s five hundred largest companies found that 92 percent of these companies used derivative instruments to manage and hedge their risks more effectively (ISDA, 2003). The companies using derivatives were located in 26 countries around the world and represented a broad variety of industries ranging from aerospace to wholesalers of office equipment. Of the companies using derivatives, 85 percent used them to manage currency risk, 25 percent to reduce commodity price risk, and 12 percent to curtail equity price risk. Of the 500 companies surveyed, 196 were US companies, and 94 percent of these US companies used derivatives.

Forwards represent the largest component of the derivatives market due to the need by businesses to reduce the uncertainty of variable costs, such as fluctuation in foreign currency rates. For example, a US importer might promise to buy machinery at a future date for a price quoted in euros. This importer can use a forward contract (or a futures contract, if one is available that meets the firm’s needs) to fix the dollar cost of converting the euros at that future date. Thus, the importer avoids a loss if the dollar cost of euros increases between the purchase and delivery dates. When derivatives are used to protect against the risk of economic loss arising from changes in the value of the underlying, the activity is known as hedging.

Derivatives also can be used to assume risk, rather than to insure or hedge against risk. Thus, some companies will enter into a derivatives contract to speculate on the value of the underlying asset or index, gambling that the party seeking insurance will be wrong about the underlying value of the asset or index. When derivatives serve as investments rather than as hedges, they can be extremely speculative. The riskiness of speculating in derivatives is inherent in the high leverage assumed. The investment outlay (also called initial margin) is typically a small proportion of the face or notional value that magnifies the potential gain or loss on the investment. For example, a deposit of only $2,000 might enable a company to buy a futures contract representing $35,000 worth of cotton.

The initial margin in trading futures is typically 5 to 15 percent of the value of the underlying contract, although in some cases it is even less.

The smaller the margin compared to the value of the derivatives contract, the greater the leverage and risk. High leverage can produce large profits when compared to the initial margin if www.acfei.com

the speculator correctly anticipates the future price change. Alternatively, if the price moves in the opposite direction from what was anticipated, a large loss can result. Thus leverage is a double-edged sword.

Derivatives can be traded over-the-counter (OTC) or on an exchange. OTC derivatives are traded directly between two parties without using an exchange to facilitate the trade. The OTC derivatives market is huge and continues to grow. Interest rate swaps are the largest segment of the derivatives market with over half the total; credit default swaps until recently were the fastest growing OTC derivative with their total jumping over 400 percent in the period from 2005-2007.

A credit default swap (CDS) is a contract between two counterparties where one party agrees to make a specific payment to the other party if a particular event, such as a bond default, occurs. In a CDS, the buyer pays the seller periodic premiums to receive credit protection while the seller guarantees the creditworthiness of the swap. Because these contracts can be sold and resold, the original buyer likely does not know who the guarantor is or the financial condition of that guarantor.

CDS contracts can be used to hedge risk if the buyer actually owns the debt; however, investors also can buy CDS contracts for speculative purposes. Because CDS spreads will increase as creditworthiness declines (and decrease as creditworthiness increases), an investor might actually purchase a CDS speculating on the increased probability that a company will default on its debt.

The Perils of Derivatives The risk of trading in derivatives became a worldwide concern in the summer and fall of 1998 because of huge losses sustained by hedge funds. U.S. hedge funds are unregulated private investment partnerships available only to qualified investors. A minimum investment of $1 million is often required of hedge fund investors.

Because managers generally receive about 20 percent of the profits but do not suffer losses, there is a tendency to assume increasing risks. Consequently, many hedge funds leverage their assets by buying derivatives that give them an exposure far greater than their capital.

The most publicized hedge fund failure in the decade of the 1990s was that of LongTerm Capital Management (LTCM).

(800) 592-1399

LTCM’s principals included several prominent mathematicians and two Nobel prizewinning economists. Its strategy was to exploit small valuation anomalies between various classes of bonds, dealing in bond derivatives called “total return swaps.” In September 1998, LTCM revealed that it had lost about $2 billion in the previous month owing to the financial crisis in Russia (i.e., default on government bonds), which had led to unexpected changes in bond prices. It also disclosed that its capital base had shrunk to less than $1 billion while its liabilities had ballooned to about $200 billion. Concerned about its possible collapse and the impact on other financial organizations, the Federal Reserve Bank of New York arranged for a consortium of leading investment banks to inject $3.4 billion into LTCM in exchange for a 90-percent stake in the fund.

The 1998 LTCM debacle had little effect, if any, on the use and regulation of derivatives in the succeeding years. Several prominent individuals had expressed concern about the stunning growth, complexity, and lack of transparency in this market.

In 1997, the Commodity Futures Trading Commission (CFTC), a federal agency that regulates options and futures trading, invited comments about how best to regulate certain derivatives. The chairperson of the commission was Brooksley Born, a graduate of Stanford Law School where she received the “Outstanding Senior” award. Ms. Born was a partner in the international law firm of Arnold & Porter and head of the firm’s derivatives practice. Ms. Born stated in Congressional testimony that the unregulated, opaque nature of the derivatives market could “threaten our regulated markets or, indeed, our economy without any federal agency knowing about it” (Goodman, 2008). She recommended bringing derivatives under the oversight of the CFTC. Furthermore, she recommended increased disclosure of the trading in derivatives and a formal procedure for establishing reserves in case of losses. Her modest proposals were disregarded because of the combined fierce opposition of the Federal Reserve chairman, Alan Greenspan, and the Treasury Secretary, Robert Rubin. Both asserted that imposing new rules would damage Wall Street and encourage derivatives trading to take place overseas; they convinced Congress to freeze the CFTC’s regulatory authority for six months. Ms. Born resigned as of June 1, 1999.

Warren Buffett, the legendary investor and CEO of Berkshire Hathaway, warned about the systemic risk of abusing derivatives contracts. In the 2002 Berkshire Hathaway annual report, Buffett sounded an alarm: . . . derivatives as time bombs, both for the parties that deal in them and the economic system. . . . In my view, derivatives are financial weapons of mass destruction, carrying dangers that, while now latent, are potentially lethal. . . . that the macro picture is dangerous and getting more so. Large amounts of risk, particularly credit risk, have become concentrated in the hands of relatively few derivatives dealers. The derivatives genie is now well out of the bottle, and these instruments will almost certainly multiply in variety and number until some event makes their toxicity clear. (pp. 13-15) Unfortunately, Buffett’s warnings proved prescient and the consequences became apparent with the global crisis in worldwide financial markets in 2008.

The damage a single individual could do to an organization by trading derivatives was highlighted by the example of Société Générale reported in January 2008. Société Générale is a major French bank, operating in 77 countries with 120,000 employees. On January 25, 2008, Société Générale disclosed that a rogue employee executed a series of “elaborate, fictitious” transactions that cost the bank $7.2 billion (€4.9 billion at that time), the largest loss ever perpetrated by a single trader (Clark & Jolly, 2008). Kerviel started work at the bank as a back-office employee where he gained an intimate knowledge of the bank’s processing and control procedures. Eventually, Kerviel was promoted to the trading desk where he engaged in arbitrage transactions intending to profit from small differences between a futures index and the equity futures upon which the index is based. Kerviel began creating fictitious trades in late 2006 but, initially, the transactions were relatively small.

Within a year, the unauthorized trading had dramatically increased in size and frequency. Kerviel masked his trades by placing fake orders along with genuine orders.

Thousands of hedged trades were hidden behind offsetting fake trades. Instead of taking hedged positions as authorized, he took massive unhedged positions in European stock index futures. A suspicious e-mail from a large bank confirming unauthorized Fall 2009 THE FORENSIC EXAMINER® 17

trades precipitated the investigation into Kerviel’s trading activities. On January 19, 2008, Société Générale uncovered the unauthorized trading and began closing out the positions on January 21. The closing of the unauthorized positions (more than $70 billion notional amount) in a three-day period of declining equity prices resulted in the $7.2 billion loss. Kerviel has been charged with “breach of trust, fabricating documents and illegally accessing computers” and is currently awaiting trial.

Derivatives played a key role in the 2008 meltdown of American International Group (AIG), the largest American insurance company in terms of insured assets.

AIG had written credit default swaps that covered bonds of more than $440 billion.

Firms with high credit ratings could initiate swaps with limited margin. On September 16, 2008, AIG faced a liquidity crisis following the downgrade of its credit rating below “AA” levels. The buyers of the CDS issued by AIG were concerned if AIG had enough money to meet the commitments it made in issuing the CDS contracts. The downgrading of its credit rating forced the company to post collateral with its trading counterparties. AIG did not have the liquid resources to meet its collateral and other cash obligations and faced bankruptcy without an infusion of new capital. Deeming the consequences of the demise of AIG unacceptable, the Fed created an $85 billion credit facility to enable the company to meet its collateral obligations. The government exacted a stiff price. AIG issued a

18 THE FORENSIC EXAMINER® Fall 2009

stock warrant for 79.9 percent of AIG shares to the Board of Governors of the Federal Reserve. Shortly thereafter, the federal government increased the aid package to about $150 billion that includes about $50 billion to buy assets either insured or held by AIG in an attempt to reduce losses at firms conducting business with AIG. AIG has committed to paying back the loans within five years by selling assets. On December 31, 2008, AIG’s stock price was $1.55; its previous 52-week high was $60.04.

Accounting for Derivatives: Avoiding the Unpleasant Fate The previous section documented actual instances of cases in which warnings were made and not heeded, and the resultant unpleasant fate to the marketplace. The rules governing derivatives not used in hedging activities are straightforward and can be easily summarized: • All derivatives must be carried on the balance sheet at fair value. The FASB defines fair value as the amount at which an asset (liability) could be bought (incurred) or sold (settled) in a current transaction between willing parties.

Typically, the best evidence of fair value would be quoted market prices.

• The amount shown for the derivative must be adjusted to fair value on each balance sheet date.

• The change in the fair value of the derivative from the previous balance sheet date is reflected as a holding gain or loss in the income statement.

• The only exception to the recognition of a holding gain or loss is for derivatives that qualify as hedges under the rules established by the FASB. The FASB has specified exacting criteria for classifying a derivative as a hedge.

Management must provide sufficient documentation at the beginning of the hedge term to identify (1) the objective and strategy of the hedge, (2) the hedged instrument and the hedged item, and (3) how effective the hedge is in eliminating specific market risk for a specific hedged item. Effectiveness is the ability of the hedged instrument to offset any change in the fair value or cash flows of the hedged item. Effectiveness is tested when the hedge is initiated, every three months thereafter, and each time financial statements are prepared. If a hedge is completely effective, the change in the derivative’s fair value will equal the change in the hedged item’s fair value. As a result, earnings are not affected. However, if the hedge is not completely effective, the difference between the changes in the fair value of the derivative and the hedged item will increase or decrease earnings. The change in earnings is the ineffective portion of the hedge.

Derivatives that qualify as hedges can be classified in one of three ways: (1) fairvalue hedges, (2) cash-flow hedges, and (3) foreign-currency hedges. Fair-value hedges are designated to hedge the exposure to changes in the fair market value of an existing asset or liability, or a firm commitment (e.g., buying or selling inventory).

The gains or losses on the hedged asset or liability and the hedging instrument are currently in the income statement.

Cash-flow hedges are designated to hedge the exposure to changes in cash flows of an existing asset or liability (e.g., future interest payments on variable-interest debt) or an anticipated transaction (a futures contract that a processor will pay in two months for corn). The distinction between highly effective and ineffective hedges determines how gains and losses on cash flow hedges are recognized in income. The gain or loss on the ineffective portion of the hedge is reported in current income. The gain or loss on the effective portion of the hedge flows should be reported in other comprehensive income (not included in determining net income).

Foreign-currency hedges are designated to hedge the exposure to changes in currency exchange rates of an existing aswww.acfei.com

TABLE 3. Tabular Disclosure of (a) Fair Values of Derivative Instruments in a Statement of Financial Position and (b) the Effect of Derivative Instruments on the Statement of Financial Performance Fair Values of Derivative Instruments In millions of dollars As of December 31

Derivatives designated as hedging instruments under Statement 133 Interest rate contracts Foreign exchange contracts Equity contracts Commodity contracts Credit contracts Other contracts

Asset Derivatives 2010 Balance Sheet Location

Other assets Other assets Other assets Other assets Other assets Other assets

Total derivatives designated as hedging instruments under Statement 133 Derivatives not designated as hedging instruments under Statement 133 Interest rate contracts Foreign exchange contracts Equity contracts Commodity contracts Credit contracts Other contracts Total derivatives not designated as hedging instruments under Statement 133 Total derivatives

Liability Derivatives 2009

2009

Fair Value

Balance Sheet Location

Fair Value

Balance Sheet Location

Fair Value

Balance Sheet Location

Fair Value

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

Other assets Other assets Other assets Other assets Other assets Other assets

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

$XX,XXX

Other assets Other assets Other assets Other assets Other assets Other assets

2010

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

$XX,XXX

Other assets Other assets Other assets Other assets Other assets Other assets

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

$XX,XXX

Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

$XX,XXX

Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities Other liabilities

$XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX $XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

Source: SFAS No. 161, p. 12.

set or liability, a firm commitment, a forecasted transaction, or a multinational company’s net investment in a foreign operation. In general, the FASB applies the fair value and cash flow hedge accounting rules to foreign currency exchange exposure. However, a derivative designated as hedging a net investment in a foreign operation has its gain or loss reported in other comprehensive income (i.e., not included in determining net income).

The rules governing the reporting of derivative instruments were established by the Financial Accounting Standards Board (FASB) when FASB issued Statement of Financial Standards No. 133 (SFAS No. 133) entitled Accounting for Derivative Instruments and Hedging Activities, which became effective for all publicly held companies for fiscal periods starting after December 2000. This 233-page document included some of the most complex, arcane standards ever es(800) 592-1399

tablished by the accounting profession. Although extensively revised since its introduction, SFAS 133 has been severely criticized by financial analysts for its inadequate disclosures (Hamlen & Largay, 2005). As a relevant example, a table of notional amounts is not required, making it difficult to assess financial risk. Furthermore, derivatives and hedging activities are combined with other items in the financial statements obscuring analysis of their impact on risk. Finally, note disclosures regarding derivative performance are incomplete and generally inadequate.

As a result, the FASB amended SFAS No. 133 by issuing SFAS No. 161, Accounting for Derivative Instruments and Hedging Activities, which became effective for financial statements issued after November 15, 2008. This Statement significantly expands the disclosure of information and presents such information in a format most useful to the user in evaluating the risk of Fall 2009 THE FORENSIC EXAMINERÂŽ 19

TABLE 4. The Effect of Derivative Instruments on the Statement of Financial Performance for the Years Ended December 31, 2010 and 2009 Derivatives in Statement 133 Fair Value Hedging Relationships

Location of Gain or (Loss) Recognized in Income on Derivative

Amount of Gain or (Loss) Recognized in Income on Derivative 2010

2009

Interest rate contracts

Interest income/(expense)

$XX,XXX

$XX,XXX

Foreign exchange contracts

Foreign currency gain/(loss)

$XX,XXX

$XX,XXX

Equity contracts

Other income/(expense)

$XX,XXX

$XX,XXX

Commodity contracts

Other income/(expense)

$XX,XXX

$XX,XXX

Credit derivatives

Other income/(expense)

$XX,XXX

$XX,XXX

Other contracts

Other income/(expense)

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

Total

Derivatives in Statement 133 Cash Flow Hedging Relationships

Amount of Gain or (Loss) Recognized in Other Comprehensive Income [OCI] on Derivative (Effective Portion) 2010

Location of Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

Amount of Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

2009

Location of Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion and Amount Excluded from Effectiveness Testing)

Amount of Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion and Amount Excluded from Effectiveness Testing)

2010

2009

Interest rate contracts

$XX,XXX

$XX,XXX

Interest income/(expense)

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

2010

$XX,XXX

2009

Foreign exchange contracts

$XX,XXX

$XX,XXX

Sales/Revenue

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Equity contracts

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Commodity contracts

$XX,XXX

$XX,XXX

Cost of sales

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Credit derivatives

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Other contracts

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Other income/(expense)

$XX,XXX

$XX,XXX

Total

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

$XX,XXX

Source: SFAS No. 161, p. 14.

these instruments. SFAS No. 161 (p. 2) indicates its intent to improve disclosure by amending Statement No. 133 to provide users with a better understanding of the following issues: • How and why an entity uses derivative instruments.

• How derivative instruments and related hedged items are accounted for under this Statement and related interpretations.

• How derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows.

The Statement requires the disclosure of the objectives and strategies for using derivative instruments for every annual and interim reporting period for which a balance sheet and income statement are presented.

Information about these instruments should reference their underlying risk exposures (e.g., interest rate, credit, foreign-exchange rate, combination of interest rate and foreign-exchange rate, or overall price). The description should distinguish between fair-value hedges, cash-flow 20 THE FORENSIC EXAMINER® Fall 2009

hedges, or hedges of the foreign-currency exposure of a net investment in a foreign operation.

Information should be provided that would enable users to understand the volume of derivative activity undertaken by the company (e.g., total number of interest-rate swaps). SFAS No. 161 requires two tables to disclose the risks that an entity intends to manage with derivatives: (1) balance sheet disclosures, and (2) income statement disclosures.

Balance Sheet Disclosures An entity must disclose in a table the location in the balance sheet of the derivative instrument and its corresponding fair value. The fair value amounts should be presented as separate asset and liability values and divided into those derivatives that qualify as hedging instruments and those that do not (see the FASB’s example disclosure reproduced in Table 3). Within these two broad categories, fair value amounts should be presented for each major type of derivative contract (e.g., interest rate, foreign exchange, equity, commodity, credit, or both). www.acfei.com

Income Statement Disclosures SFAS No. 161 requires the separate disclosure of gains for the following: • Derivative instruments that are designated and qualify as hedging instruments in fair-value hedges and related hedged items • The effective portion of gains and losses on derivative instruments designated and qualifying in cash-flow hedges and net investment hedges that was recognized in other comprehensive income during the current period • The effective portion of gains and losses on derivative instruments designated as qualifying in cash-flow hedges and net investment hedges that are recognized in other comprehensive income during the period and reclassified into earnings during the current period • The effective portion of gains and losses on derivative instruments designated and qualifying in cash-flow hedges and net investment hedges representing the amount of the hedges’ ineffectiveness and any amount excluded from the assessment of hedge effectiveness • Gains and losses from derivative instruments not designated or qualifying as hedging instruments under SFAS No. 161 (pp. 4-5) The foregoing information should be separately reported by type of derivative contract (e.g., interest rate, foreign exchange, equity, commodity, credit, other). The disclosure should identify the line item in the balance sheet where the gains and losses for each category of derivative instruments are included (see the FASB’s example disclosure reproduced in Table 4). Information about hedged items may be presented in a tabular or nontabular format.

Discussion The global economic crisis in 2008 includes several cataclysmic features: a mortgage meltdown followed by a credit crisis; precipitate declines in world stock markets ranging from 40 percent to over 70 percent; the collapse or buyout of major financial institutions; government rescue packages to bail out their financial systems; and economies worldwide struggling with the onset of recession. The absence of lending standards by banks and other financial institutions led to a bubble in housing prices (800) 592-1399

and the creation of near-worthless mortgage paper. Bad lending and easy credit eventually produced the mortgage crisis and the housing debacle that continues.

Most notably, the global credit crisis was magnified throughout the financial system by derivatives, particularly credit default swaps. Derivative instruments have become a defining aspect of this crisis.

The importance of ensuring oversight over derivatives was emphasized in the actions suggested on November 15, 2008, by the leaders of the G-20 developing and emerging-market nations (including the United States) meeting in Washington, DC. The statement released by the G-20 listed as one of the “immediate actions by March 31, 2009” the following steps: Supervisors and regulators, building on the imminent launch of central counterparty services for credit default swaps (CDS) in some countries, should: speed efforts to reduce the systemic risks of CDS and over-the-counter (OTC) derivatives transactions; insist that market participants support exchange traded or electronic trading platforms for CDS contracts; expand OTC derivatives market transparency; and ensure that the infrastructure for OTC derivatives can support growing volumes.

In issuing SFAS No. 161, the accounting profession has made a significant step in improving the disclosure of the objectives and strategies of using derivative instruments.

Forensic specialists can work with companies to ensure that derivatives are used ap-

propriately and that disclosures are reflective of the substance of the transaction.

Knowledge of the complexities of derivatives transactions can improve the processes of prevention and detection of financial statement misstatements and managerial misuse of what was originally deemed a tool to reduce risk.

References Financial Accounting Standards Board (FASB).

(1998, June). Statement No. 133: Accounting for derivative instruments and hedging activities.

International Swaps and Derivatives Association (ISDA). (2003, April 9). Over 90% of the world’s 500 largest companies use derivatives. Retrieved from http://www.isda.org/statistics/surveynewsrelease030903v2.html Goodman, P. S. (2008, October 9). Taking a hard new look at a Greenspan legacy. The New York Times Retrieved from http://www.nytimes.com/2008/10/09/ business/economy/09greenspan.html Clark, N., & Jolly, D. (2008, January 25). French bank says rogue trader lost $7 billion. The New York Times Retrieved from http://www.nytimes. com/2008/01/25/business/worldbusiness/25bank. html Hamlen, S. S., & Largay, J. A. (2005). Has SFAS 133 made derivatives reporting more transparent? A look at the Dow-Jones 30. Journal of Derivatives Accounting 2(2), 215-230. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 22 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHORS

Dr. Barbara Apostolou, PhD, CPA is professor of accounting and a faculty member in the Institute for Fraud Prevention in the College of Business and Economics at West Virginia University, where she teaches undergraduate and graduate auditing courses. She is the author or coauthor of numerous professional and academic articles on fraud research and financial accounting and is also the author of several Internet-based fraud detection technique courses.

Dr. Nicholas Apostolou, DBA, CPA, Cr.FA, DABFA is professor of accounting at West Virginia University and teaches MBA courses in financial and managerial accounting. He is a Fellow of the American College of Forensic Examiners. Dr. Apostolou has authored or coauthored extensively in the academic and professional literature on financial and forensic accounting topics. He has coauthored several books for Barron’s Educational Series on a range of investing topics.

Fall 2009 THE FORENSIC EXAMINER® 21

Law CEEnforcement ARTICLE 1: Derivatives: A Cautionary Tale (Pages 14-21) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com.

TO RECEIVE CE CREDIT FOR THIS ARTICLE

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This article is approved by the following for continuing education credit:

1. Read the continuing education article.

2. Complete the exam by circling the chosen answer for each question. Complete the evaluation form.

3. Mail or fax the completed form, along with the $15 payment for each CE exam taken to: ACFEI, 2750 East Sunshine, Springfield, MO 65804. Or Fax to: 417-881-4702. Or go online to www.acfei.com and take the test for FREE.

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

For each exam passed with a grade of 70% or above, a certificate of completion for 1.0 continuing education credit will be mailed. Please allow at least 2 weeks to receive your certificate. The participants who do not pass the exam are notified and will have a second opportunity to complete the exam. Any questions, grievances or comments can be directed to the CE Department at (800) 592-1399, fax (417) 881-4702, or e-mail: cedept@acfei.com. Continuing education credits for participation in this activity may not apply toward license renewal in all states. It is the responsibility of each participant to verify the requirements of his/her state licensing board(s). Continuing education activities printed in the journals will not be issued any refund.

LEARNING OBJECTIVES

KEYWORDS: derivatives, swaps, options, futures, hedge

After studying this article, participants should be better able to do the following:

TARGET AUDIENCE: Accounting professionals

1. Understand how derivatives can be used to hedge against financial risk.

2. Identify the risk that is assumed by using derivatives.

3. Understand how derivative instruments and related hedged items are accounted for by the accounting profession.

PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose.

PREREQUISITES: None

ABSTRACT Derivatives are financial instruments that were designed to mitigate financial risk. A fairly simple idea evolved over the past two decades into an enormous unregulated global market activity that has been at the center of financial statement frauds and mismanagement. Thus the very instrument that was intended to reduce risk has yielded its own peril. The complexity of the transactions can mislead financial statement users, thus creating a much greater risk than that conceived to be managed by the derivatives themselves. This paper describes derivatives, discusses some of the fraudulent activities that relied on their use, and presents new guidance from the Financial Accounting Standards Board intended to make derivatives transactions more transparent to the public. A forensic examiner specializing in financial statements must be cognizant of the evolving developments with derivatives.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 A business transaction designed to insulate companies from interest or exchange risk is a. speculating. b. slamming. c. hedging. d. stacking.

4 A derivative that gives the holder the right, but not the obligation, to do something is a/an a. swap contract. b. futures contract. c. fair value hedge. d. options contract.

2 When two parties agree to the sale of some asset or commodity on some specified future date at a price specified today, it is a/an a. swap contract. b. options contract. c. futures contract. d. cash flow hedge.

5 Hedging transactions can be used as follows: a. To speculate in foreign currency markets. b. To manage risk associated with changes in commodity prices. c. To offset a gain or loss on a hedged item with a loss or gain on the hedging instrument. d. All of the above

3 A type of forward contract that is traded daily on financial exchanges with many buyers and sellers is a/an a. swap contract. b. options contract. c. futures contract. d. performance contract.

6 A hedge of the exposure to changes in the fair market value of an existing asset or liability or a firm commitment is a/an a. mark-to-market hedge. b. fair value hedge. c. cash flow hedge. d. foreign currency exposure hedge.

EVALUATION: Circle one (1=Poor 2=Below Average 3=Average 4=Above Average 5=Excellent)

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If you require special accommodations to participate in accordance with the Americans with Disabilities Act, please contact the CE Department at (800) 592-1399.

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3. Learning objective 2 was met.

4. Learning objective 3 was met.

5. You were satisfied with the article.

6. ADA instructions were adequate.

7. The author’s knowledge, expertise, and clarity were appropriate.

8. Article was fair, balanced, and free of commercial bias.

9. The article was appropriate to your education, experience, and

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licensure level.

22 THE FORENSIC EXAMINERÂŽ Fall 2009

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Statement of completion: I attest to having completed the CE activity. Please send the completed form, along with your payment of $15 for each test taken. Fax: (417) 881-4702, or mail the forms to ACFEI Continuing Education, 2750 E. Sunshine, Springfield, MO 65804. If you have questions, please call (417) 881-3818 or toll free at (800) 592-1399.

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Fall 2009 THE FORENSIC EXAMINER® 23

CE ARTICLE: 2 CE CREDITS

Challenges and Psychological Dynamics of Negotiating Risks in Failed States:

The Somali Case

By Barry Austin Goodfield, PhD, FACFEI, DABFE, DABFM, DABPS and Andre LeGallo, BA

Pictured here: A member of the Nigerian contingent of UNOSOM II surveying the city of Mogadishu from his post at Police Headquarters.

24 THE FORENSIC EXAMINERÂŽ Fall 2009

ollowing a civil war and a drought, 350,000 Somalis had died by 1992. In response to a United Nations request for help, the United States sent Marines to secure the environment (UNOSOM—Operation Restore Hope). This initial effort was followed by UNOSOM II, a more ambitious UN mandate to disarm militias and reconcile political factions. This paper examines the decision-making, the effect of Conflicting Personalities, and the role of the unconscious as seen in the Non-Verbal Leak. The personality of former President Mohammed Farah Aideed is analyzed in the context of the aforementioned conflict. An explanation of the relevance (or lack of one) of the interlocutors, the negotiating styles and venues, and the negotiating objectives is discussed.

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This article is approved by the following for continuing education credit: (ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

After studying this article, participants should be better able to do the following: 1. Better understand the key role that personality plays in international crisis.

2. Understand the dilemma faced by international organizations attempting to bring aid to this region.

3. Understand the role of the unconscious process in world affairs.

4. Understand this historical development of the regional conflict.

5. Gain insight into methods of “reading” Non-Verbal Leaks.

KEY WORDS: terrorism, warlord, civil war, non-state actor, Aideed, Sahnoun, Mahdi, Oakley, Clarke, NGO, UNITAF, UNOSOM, Restore Hope, Usama bin Laden, Boutros Boutros Ghali, Siad Barre, United Nations, Clinton, Jonah, NVL, Non-Verbal Leak, unconscious TARGET AUDIENCE: Psychological professionals PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose.

PREREQUISITES: None

Introduction As the world tried to deal with international crises following the end of the Cold War, the humanitarian intervention in Somalia has become all the more relevant as the war on terrorism brings countries with weak or no central governments to the forefront of international attention. In this article we will attempt to identify the unique challenges to negotiating risks, together with their underlying psychological dynamics, when dealing with states that lack central authority.

(800) 592-1399

From the initial negotiations between local warlords and officers of the American Central Intelligence Agency over safe landing for planes carrying food aid to the negotiations for the safe release of hostages following a watershed battle on October 3, 1993, the United Nations as well as Somali authorities tried to reach their objectives and manage their risks through a combination of force and negotiations. However, without the Cold War to structure UN and individual states’ actions, without clear and committed Somali interlocutors, with a multiplicity of diverse state and non-state actors, and without clear precedents, humanitarian intervention in Somalia proceeded in a disjointed manner. There were tactical successes, but Somalia continues to be a lawless state.

There were few “negotiations” in the formal sense. Most issues were discussed and bargained over, sometimes on a daily basis.

However, these meetings-negotiations were essential to the United Nations’ limited success.

Throughout, this case exemplifies the “behavior” theory of risk assessment rather than the statistical approach. Therefore, some focus will be given to the actors involved. This part of the article will first provide a historical setting, then focus on several specific issues where negotiations played a significant role, and provide this writer’s conclusions.

Historical Overview Somalia became a nation in 1960, after ten years as a UN Trust Territory. The United Somali Congress (USC) emerged as the strongest armed faction from a civil war that erupted in 1991. The country became a quagmire of competing armed militias.

The most politically relevant were those that emerged from the civil war with the most weapons, followers, and territory. By the end of 1992, the war and a drought had killed about 350,000 Somalis; another 1.5 million were in danger of starvation.

International relief groups tried to mitigate the human suffering but were largely unsuccessful because of the uncontrolled security situation.

In 1992, the Security Council approved the deployment of 50 unarmed observers to monitor a tenuous cease-fire and established the United Nations Operations in Somalia (UNOSOM I) to begin the UN’s humanitarian effort. However, the security situation again kept the UN from delivering food and supplies. Responding to the UN’s appeals, U.S. President Bush proposed sending combat troops to lead an international UN force to secure the environment for relief operations.

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The UN agreed, and the first of 25,000 U.S. Marines (UNITAF, also called Operation Restore Hope) landed on the beaches in December. Its purpose was to open supply routes, get food moving, and prepare the way for a UN peacekeeping force. UNITAF eventually included forces from 24 countries.

UNOSOM II took over from the U.S.-led UNITAF in May of 1992, with troops from 30 nations. UNOSOM II’s mandate included disarmament and nation-building. But UN troops lost their reputation for impartiality acquired earlier by UNITAF and, to the local players, became a foreign presence taking sides in the conflict.

The catalyst for the transformation of the UN/U.S. presence into hostile player status was an attack on Pakistani peacekeepers inspecting a weapons warehouse in June of 1993, by the Aideed faction. The UN then put a bounty on Aideed’s head, and a unit of U.S. commandos became the point of the spear to capture Aideed. A battle erupted on October 3 between U.S. commandos and Aideed’s militia, with the recently claimed assistance of Usama bin Laden.

U.S. President Clinton sent more troops as short-term reinforcements but declared that U.S. troops would be withdrawn by March 31, 1994. Aideed died from bullet wounds in Mogadishu on August 1, 1994.

In 2002, Somalia still did not have a central government. The military factions are now too busy with internal fighting among sub-clan militias to fight each other. A Transitional National Government (TNG) was established in 2001, as the result of a conference of clan representatives, intellectuals, former civil servants, and several warlords. Other warlords, including the son of Mohamed Aideed, Hussein Aideed, oppose the TNG through the Somali Reconciliation and Reconstruction Council (SRRC) backed by Ethiopia. A main Western focus on Somalia is whether its permissive environment is being used by Al Qaeda.

Operational Challenges to Negotiating Risks Among the challenges to negotiating risks in the context of humanitarian aid to failed states are the large number of actors and the resulting complexities of the decisionmaking process, the difficulty in identifying the relevant interlocutors, the incompatible negotiating styles, the significance of the negotiating venues, and the divergent 26 THE FORENSIC EXAMINER® Fall 2009

s A Somali mother nurses her baby while waiting for food at a UNICEF/Swede Relief feeding centre in Mogadishu.

objectives of the two sides. The risks being negotiated ranged from stopping the loss of life, to assuring the safety of the aid workers, and to losing the political constituencies for the effort. On the Somali side, the risks involved famine for the population at large and political power for the leaders.

Numerous State and Non-State Actors—Most of the major international donor Non-Government Organizations were present in Somalia even before UN involvement. And while the United States was the major state actor, it was not alone.

The Security Council members were active decision-makers and 30 countries eventually provided troops.

Paradoxically, involving more member states spread the risk among them but also

increased the need for effective communication and actually decreased coordination and project coherence.

Decision-Making, Coordination, and Communication—One of the constant problems on the UN side was the difficulty in communicating to the various chains of command and coordinating the military, political, and humanitarian efforts.

For example, once U.S., part of UNITAF, forces landed, the major military force was no longer under direct UN command.

Furthermore, the U.S. commando unit brought at UN request to implement a UN resolution, the capture of Aideed, answered to both its Central Command headquarters in the United States and to the U.S. military commander in Somalia who also www.acfei.com

served as the deputy UN commander. But U.S. support units—engineers, communications, and logistics—were under a U.S. general who answered directly to a Turkish general in charge of UNOSOM II. And UN representatives in charge of political reconciliation efforts were separate from the military chain of command, thus marginalizing them.

The resignation of Ambassador Sahnoun, UN special representative to Somalia in 1992, serves to illustrate the communications problem. An experienced and able diplomat, Sahnoun had obtained Aideed’s agreement after intense negotiations for 500 peacekeepers in August. Later that month, however, both Sahnoun and Aideed learned by way of the BBC that the UN, Boutros Boutros-Ghali, and the SC, had increased the number from 500 to 3,500. Aideed was enraged, feeling that he had been duped, and Sahnoun was astonished. His credibility was damaged, to say the least. Sahnoun later resigned his position, as he did not believe the policies imposed by New York headquarters made sense with the situation on the ground; he also disagreed with these policies because of the lack of coherent communications between his mission, the SC, the Somalis, the UN relief agencies, and the NGOs that he had nevertheless worked hard to improve.

On the other hand, Aideed was always in personal control of negotiations on all issues.

Conflicting Personalities—The end of the civil war did not bring a national government into power. Instead, several warlords were pretenders to the throne.

Two were stronger than others: Ali Mahdi Mohammed and Mohammed Farah Aideed.

Both belonged to the Hawiye clan but to different sub-clans. Mahdi, a businessman and gentleman farmer, was a spokesman for the trades’ people of the Hawiye Abgal, the majority population in the pre-civil war Mogadishu area. Aideed, a former general in Siad Barre’s army who also spent seven years in jail and then served as ambassador to India, had led his mostly Hawiye Habr Gidr irregular forces successfully during the civil war. In short, both aspired to the presidency—especially Aideed, who thought of himself as Somalia’s savior and was far stronger militarily than Mahdi.

The personality factor came into play almost immediately to affect negotiations. Immediately prior to handing over his responsibilities to Boutros Boutros(800) 592-1399

Ghali, Secretary-General Javier Perez de Cuellar sent his Under-Secretary-General James Jonah to visit Somalia in January 1992. As a result, the SC received a letter from Somalia’s UN mission in New York transmitting a request from Somali’s “interim Prime Minister,” Ali Mahdi, that the topic of Somalia be included on the SC agenda. What the letter did not ask was significant and an augury of things to come. Jonah had met with both Aideed and Mahdi but was unable to convince Aideed to request the UN to involve itself in establishing a cease-fire between his and Mahdi’s militias.

The new UN Secretary General Boutros Boutros-Ghali then invited the two leaders to New York. While they did not speak to each other, they agreed through BoutrosGhali’s good offices to a cease-fire, although Aideed declined to support the deployment of foreign troops. Because Aideed did not believe he was treated with the proper impartiality during the negotiations, the ceasefire did not actually take place until March 1992, two months later.

Aideed’s actions were affected not only by his political ambitions and his negative perceptions of Jonah, but also by a deep seated animosity toward Boutros-Ghali.

The latter had served as Egyptian head of diplomacy and had been in the forefront of Egyptian financial support to the previous Somali government led by Siad Barre.

Aideed therefore always considered him hostile.

Questionable Interlocutors—There were two groups of potentially relevant negotiating partners: the traditional village and regional councils of elders, and the armed militias. The UN side actually dealt with both, depending on the issue. However, there was no question that the warlords were the final arbiters on the Somali side.

In the absence of a legally-sanctioned local authority, the actions of the international force could be governed exclusively by the UN. However, success dictated a certain level of coordination in order to co-opt local de facto leaders. Although the UN tried to pursue a policy of impartiality, it was necessary to negotiate with certain groups and choosing those interlocutors tended to immediately confer international legitimacy on them. For example, going back to the beginning of UN involvement, Jonah’s initial task had been to decide with whom to consult regarding the UN’s possible role.

Since he didn’t stray far from Mogadishu, he ended up talking only with the Mahdi and Aideed factions, thus exacerbating their mutual hostilities. And at the end of the day, Aideed did not give Jonah high marks for impartiality when Jonah announced Mahdi’s agreement to the deployment of UN military observers to monitor a ceasefire and indicated UN support for Mahdi’s request for foreign troops in Mogadishu.

Aideed’s subsequent cooperation with the UN was seriously affected by his perception of Jonah’s performance.

Negotiating Styles and Venues—The negotiating methods of the UN participants came from the traditions of European diplomacy consisting of scheduled conferences, more or less well-established agendas, and binding decisions even on those who are not totally onboard. Somali political culture had a history of conflict management through “ongoing consultations, assemblies, and negotiations” where negotiations were a process rather than a single event. These grassroots meetings drew on the circle of traditional leaders and methods. These negotiations normally took place near the area of conflict. On the other hand, the militia leaders preferred their conflict management to take place in the hotels of Nairobi and Addis Ababa, where no one had a home court advantage. Other social leaders either were not present or were there as observers. In the end it is not clear that one method was more successful.

The UN also provided financial support to each of the participating Somalis for these international conferences, a not unimportant motivator to convince Somalians that another conference was needed. “With so much money to be made from staging peace conferences, peace building soon degenerated into a cynical cottage industry dominated by entrepreneurial Somali politicians” (Menkhouse, 1997, p. 46).

Political reconciliation (a UNOSOM II objective) touched the perceived vital interests of the armed militias and was difficult to negotiate. In fact, whether the UN method was incremental or more encompassing, failure seemed to be the norm, even if there were short-term agreements. For example, the Addis Ababa Conference on National reconciliation of March 1993, brought together the fifteen militia factions under the sponsorship of UNOSOM. Agreement was eventually reached on the creation of district councils.

However, the agreement didn’t last and the Fall 2009 THE FORENSIC EXAMINER® 27

councils never were created. Another peace effort was the Jubbaland peace accord. It focused on community leaders to resolve fighting over control of the Lower Jubba Valley and the important port of Kismayu.

Militias from outside the region engaged the fighting. An accord was reached in August 1993, after two months of meetings in Kismayu attended by 154 communal leaders. However, the conflict erupted again in February 1994; the elders were unable to force the two militias to adhere to the accord. UNOSOM then tried to simply broker a comprehensive deal between the most powerful militias in the country to solve the Kismayu conflict and use it as a template for national reconciliation. In May 1994, the then UN Special Representative Lansana Kouyate sealed the accord in Nairobi by saying, “The warlords are now peacelords,” an optimistic conclusion not borne out by subsequent events (as cited in Menkhouse, 1997, p. 53); the national reconciliation conference pledged in Nairobi never took place.

Objectives—From the outset there were objectives that were not always entirely compatible, thus emphasizing the need for, and presenting serious challenges to, the concept of negotiating. As far as U.S. participation was concerned, pressure on Bush from the media, from Congress, from the NGOs, and from the Clinton camp during the presidential electoral campaign was significant and he decided to involve the U.S. President-elect Clinton, who agreed immediately with Bush’s decision. Clinton was inaugurated about a month later in January 1992. As his political goals were often determined by opinion surveys, he was undoubtedly aware of the media impact caused by reports of the 300,000 dead, either killed by the civil war or by starvation. Following the disastrous loss of life in the October 3 firefight (18 American commandos killed, one dragged through the streets of Mogadishu on worldwide TV, and hundreds of Somali casualties), the Clinton administration’s goals changed. Following Congressional hearings and considerable criticism for letting this mission get away from him, it was time to cut political losses and Clinton decided to get out.

The international participants had a variety of motivations and objectives. Bruno Delaye, a Parisian National Center for Scientific Research professor and head of the African unit in the French president’s office, states: 28 THE FORENSIC EXAMINER® Fall 2009

You see, it is soon going to be Christmas and it would be unthinkable to have the French public eat its Christmas dinner while seeing on TV all those starving kids. It would be politically disastrous. Then I phoned several of our African friends, such as Houphouet Boigny, Diouf, Bongo, and Biya. They all agreed; as Francophone Heads of State, they would look ridiculous in Africa if the Americans went and we stayed home. (as cited in Prunier, 1997, p. 135) In truth, there might have been as many specific sets of motivations as there were UN participants ranging from the politically self-serving to the truly humanitarian. Prunier states his own conclusion on European motives: Their participation could be qualified as a sort of NATO-cum Desert Storm syndrome: Each involved European country had a prudent desire for “solidarity” with the U.S. giant, a need to appear “caring” in the eyes of domestic public opinion saturated with horrifying TV picture, a preoccupation—especially following the coalition war against Iraq the year before—with displaying its armed forces in an attractively humanitarian role, and a feeling that its rank as a “power” (even secondary) was linked with membership in the Restore Hope club. (1997, p. 136) Once engaged, the initial objective was obvious: feed the hungry. However, it was necessary to negotiate with the Somali power brokers to begin since they considered food an instrument of power. However, political reconciliation (essentially asking the militias to play nice) turned out to be the “show-stopper.”

The objectives of the Somali warlords were less complicated: use international aid to capture the leadership of the country and the acceptance of the international community. However, negotiations were necessary even among the Somali actors. In June 1991, the USC named Mahdi as interim president of Somalia and Mahdi recognized Aideed as chairman of the USC, a careful balance of titles and power that worked in the short term. Another outcome of the USC conference was that Mahdi would form an interim government and that Aideed would form a national army.

In October, Aideed changed his mind about cooperating with Mahdi, and the two fought over control of Mogadishu. By

December, a “green line” divided what remained of the city.

In his review of UN actions in Somalia, Walter Clarke (1997), former deputy chief of mission at the U.S. Embassy in Mogadishu in 1993, and now adjunct professor of peace operations at the U.S. Army’s Peace-Keeping Institute, identifies other Somali objectives, which complicated the UN’s role and its ability to negotiate successful outcomes: Gaining legitimacy from the intervening force—Describing the frequent meetings between a U.S. diplomat, Special Presidential Envoy Robert Oakley, and Aideed, Clarke states “these gestures were permitted to develop into a one-sided relationship favorable only to a communal leader whose crimes against his own people were less known.”

Maintenance of local power bases— Frequent meetings with U.S. diplomats allowed Aideed to claim that he was the chosen next leader of Somalia.

Neutralization of enemies—Aideed successfully convinced UNITAF to drive a hostile clan out of Kismayu in March 1993.

Enhanced credibility through special relationships—Aideed managed to have cameras on hand to record the frequent visits of U.S. and UN officials to his headquarters and replay them in the media to underline and publicize his essential role.

International standing and recognition—UN-sponsored conferences in Nairobi and Addis Ababa allowed the participating warlords to demonstrate international standing. (Clarke & Herbst, 1997, pp. 3-19) Conclusions The role and significance of negotiating risks in the Somali situation were affected by both the operational aspects discussed above, as well as by larger issues that the negotiators could not control.

The UN underestimated the size of the problem and the level of commitment that would be necessary to success. While NGOs had been active in Somalia for at least 18 months trying to mitigate the starvation and disease, and while there was interest at the UN level in “doing something,” principal UN members approached their own involvement with hesitation and reluctance.

There were few, if any, compelling stratewww.acfei.com

gic imperatives; Somalia did not fall in any country’s “vital interest” zone, nor could the Cold War template be applied. Because the outside world was pushed into trying to help—by political pressures rather than pulled by traditional reasons of self interest, motivations were brittle and short-term.

There was no interest in staying in Somalia for the long haul, and the estimate of the required time horizon on the part of the UN (800) 592-1399

and its members was much too short. This factor had a significant effect on the effectiveness of negotiations; Aideed knew that his best strategy was to use the international interest in his favor, as much as he could and to wait until the United States and the UN pulled out in frustration or because of diminished interest.

With UNOSOM II, the UN slid almost without notice from a relatively low-risk re-

gime during the initial, humanitarian effort to a high-risk level as its goals changed to peacekeeping and political reconciliation.

The UN’s estimate and assumptions preceding UNOSOM II were badly flawed.

Where Aideed and other warlords were willing to negotiate/discuss how and when food and medical aid would be dispensed, they were less willing to engage in a process that could rob them of their power.

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The ideals reflected in the UN Charter should not be assumed to be embraced by the Somalias of the world. It was clear throughout this experience that, to Aideed and others, the hundreds of thousand killed by famine and fighting were of little importance compared with achieving political power. Because the UN’s level of commitment was insufficient, so were its tools and methods when the warlords perceived the risks to their vital interests to have increased measurably. Negotiations had helped to save lives under a humanitarian mission, but proved inadequate to deal with peacekeeping and nation building.

The vital risk to be mitigated in part through negotiation was the cost in lives if the problem was ignored. The global community clearly is not ready to take full responsibility for failed or weak states.

The perception of eventual failure was a risk in that it could, and did, have profound impact on the future of humanitarian and peacekeeping operations. While certain parts of the overall operation were successful, the U.S. withdrawal following the battle of October 3, 1993, certainly shaped U.S. thinking against peacekeeping as a valid foreign policy goal. Because of its experience in Somalia, the United States was not willing, until recently in its military operations against Al Qaeda in Afghanistan, to engage in an operation that might result in U.S. casualties. This led to air-only operations in Kosovo and its reluctance to commit in similar ventures in Africa. “A new and debilitating doctrine was born. Ever since Mogadishu the view has been that the United States won’t tolerate casualties in humanitarian operation” (Crocker, 1999). And the claim by Usama bin Laden that the U.S. failure was his victory (because he allegedly helped to train and equip Somali militias) has significant resonance in the Muslim world, giving strength to the radical Islamist movement and encouraging its members to believe that history is on its side in its fight against the non-Muslim world.

The impact of the political process’ eventual failure is evident today in that Somalia still lacks a central government. The area’s lawlessness has attracted terrorists and pirates. Summarizing, when vital interests are opaque, political will is weak. When one side is dominant but diffuses its power, a more focused but weaker opponent has the upper hand. The Somali case was the United Sates’ re-introduction to asymmetrical warfare.

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The Somalia Case: High Risk Negotiating With High Risk People A failed state means a breakdown of the structures of legitimate governmental power on all levels. Warlords on land fight each other for power and position while pirates plunder shipping lanes with virtual impunity. The successful intervention by the United States Navy of the Maersk Alabama was a notable exception, as is that of other country’s navies.

A Retrospective Analysis Using The Non-Verbal Leak Negotiations broke down, and people died.

This story overshadowed the evolutionary development of mankind’s endeavors to grow and develop. In hindsight, we can deduce individual psychopathology at the heart of many of the worlds recent conflicts.

Hitler, Idi Amin, Bin Laden, Milosevic, and Saddam Hussein all had troubled backgrounds as youths.

This fact in itself does not guarantee psychopathology or even an unwillingness to negotiate. It does suggest, however, that psychological factors are important variables to consider when attempting to understand and negotiate conflicts from personal to international levels.

In the negotiation process, people bring expectations based upon past experiences, future prospects, and their conscious and unconscious realities that constitute their basic truth. Negotiation processes reflect the person’s basic efforts to win a point or position. Often there is an attempt to manipulate the situation to one’s advantage by masking a hidden agenda with a “poker face” or controlled gestures and responses.

Conversely, a person may overreact, reflecting an attempt to cover or divert attention away from another aspect of other dynamics within the negotiation.

The UN/U.S. forces tried to maintain objectivity in a sea of powerful provocation.

Eventually the natural human tendency to infer meaning and observe with judgment resulted not in negotiation or communication, but in escalation with disastrous results.

Noted psychologist and semantics expert, Dr. William H. Pemberton (1989), observed: There seems little need to search for examples of provocative diplomatic exchange. Read any newsprint. Listen to and watch any newscast. Someone does

something, says something, in some kind of way that insults the receiver and the predictable response escalates the insult. (p. 162) In any high-risk negotiation, there is both internal and external pressure to reach a solution to the differences dividing the parties. When the person leading one side of delegation is psychologically disturbed or systematically sabotaging the attempts to resolve the differences, the ability to detect this behavior quickly is of critical importance. This individual may sit, silently building roadblocks to obstruct a resolution to the disagreement. A negotiator has no problem, of course, saying little or nothing. It is more difficult, however, to block the non-verbal unconscious responses that we all have. These reactions, or “leaks” as I call them, are rapid observable distinct bits of behavior that show the true unconscious feelings of the person involved in a negotiation process. These leaks can be decoded to surface the true feelings of a person with whom an individual is negotiating.

In most of the negotiation situations, we have little or no influence in choosing who will be the person or delegation on the other side of the table, let alone their mental stability. Regardless of this fact, we improve the chances of events not spiraling out of control as they did in Somalia if we can detect the signs of hidden agendas, insincerity, outright lies, or even hidden psychopathology.

Before we consider the specific NonVerbal Leak of one of the former key players, Mohammed Farah Aideed, let us first examine the notion of the Non-Verbal Leak in general.

The Non-Verbal Leak (NVL) as a Tool in High Risk Negotiations How do those involved in critical high-risk negotiations observe the unconscious process in such a way that its driving forces can be utilized in the negotiation process?

The answer is to learn to read the non-verbal messages shown that reflect the unconscious, the Non-Verbal Leak.

The key to understanding the unconscious is in knowing that in most cases we are ambivalent about everything. We enjoy rich food but we know it’s not good for our cholesterol level and waistline. We love a person but sometimes dislike aspects of his behavior. We believe in our system of government but dislike paying for it with our taxes. To live is to be ambivalent. We www.acfei.com

are ambivalent about our decisions on many levels. We show that ambivalence on both verbal and non-verbal levels. When we try to deny it, we usually end up showing it even more. On a verbal level, Freud called it a slip. On the non-verbal level, I call it a Non-Verbal Leak. It is a double message; moreover, it is the key to understanding our unconscious.

At various times in life, events happen that are perceived as traumatic; we reacted with decisions designed to avoid such events in the future. For example, a child gets burned on the stove and decides to be cautious around stoves in the future.

On an unconscious level he may pair that event with other factors relating to that trauma. He might decide it is dangerous to be around mother when she is cooking.

Later that Perceived Primary Event (PPE) could become generalized to include anxieties involving cooking or even women.

This is certainly not a new idea. However, to have the ability to “read” those anxieties as they exist in the here and now can often provide invaluable information at the negotiation table or in any crisis situation. The Non-Verbal Leak (NVL) that reflects the PPE is an extraordinarily rapid, repetitive, patterned series of movements recorded from the shoulders up, reflecting an unresolved primary perception and manifesting itself in a decision and a strategy from the past.

The decision and strategy were believed appropriate at the time, but the strategy, which can be thought of as the old decision with wheels influencing future actions and directions, is often maladaptive in the present. The primary factor—any event that is life threatening or perceived to be life threatening—creates a state of imbalance within the individual and reflects retention, a holding in of the tension.

The NVL is the silent language of the unconscious—another part of our communications repertoire—and it can be read just as any other language can be read. In fact, many people without any training at all but especially skilled and experienced negotiators seem to have a natural talent for reading NVLs. Negotiators are often keenly aware of these incongruent messages but, because they have not raised them to a conscious level of awareness, may just call them a “gut feeling.” Others have learned the so-called body language principles.

They believe that a person who crosses his arms while he talks is hiding something; a (800) 592-1399

leg moving up and down, he believes, indicates aggression.

Just as our own language has patterns unique to each of us, so it is with regard to non-verbal language. A Manhattan matron may have different non-verbal gestures from a Masai matriarch; however, she may have similar Non-Verbal Leaks when it comes to reactions to fear, anger, sadness, or other basic human emotions. The critical factor to decode is the NVL relating to a basic reaction to a basic feeling.

Ekman & Rosenberg (1997), in their book, What the Face Reveals, offer a detailed study of reading non-verbals and the Facial Action Coding System. Their research provides significant emphasis to this Somali study: It may be suggested that the coherence demonstrated in this study was a particular to the stimulus situation; i.e., the viewing of disgust- and fear-eliciting films, and that it might not generalize to other emotional situations. It seems unlikely that humans would have evolved with emotional response systems that behave in one way to films but differently to other emotion elicitors. This possibility seems especially remote in the light of the fact that moderate levels of coherence among behavioral, physiological, and subjective measures have been demonstrated in the very different context of marital interaction research (Levenson & Gottman, 1983; Levenson & Gottman, 1985).

We demonstrated that measurement of facial expression and self-report of specific emotions on momentary basis provides solid evidence of a coherent emotional response, especially for more intense emotional events. The source of this coherence remains unclear. It is possible that the observed coherence was internally driven, externally driven, or both. Our findings are consistent with Tomkins’s (1962) notion of emotions as correlated responses, and provide the strongest evidence to date that this is true for facial and subjective measures. (pp. 82-83) How does a person react when he is attempting to deceive, misrepresent, or outright lie? The ability to spot a lie in a face that is a sea of stimuli is not an easy task but, with proper, adequate training, it can be done.

Ekman also references his previous research with Friesen to further emphasize the import of expressions:

Although the fact would mislead the untrained eye, “involuntary expression of emotions might leak despite a liar’s effort at disguise. The easy-to-see macro-expressions often would signal the liar’s deliberately intended false information, and the more subtle aspects of facial activity, such as micro-expressions, would nevertheless reveal true feeling. In a sense the face is equipped to lie the most and leak the most, and thus can be a very confusing source of information during deception” (Ekman & Friesen, 1969, p. 98, as cited in Ekman & Rosenberg, 1997) A skilled negotiator could ask a few questions that he knows will cause the person with whom he is in negotiation to distort or falsify his response. For example, “Are you concerned about the outcome of this negotiation?” “Do you always win?” “Is there a hidden agenda in your position?” A few “yes” or “no” questions, custom fit to a specific negotiation situation, should surface the desired baseline of truth; and with that data the NVL can be deduced.

When the NVL is read correctly, it can unlock many mysteries in the underlying motivations in the negotiating process.

Being able to more accurately read these messages from the unconscious does not mean that one will magically find success and happiness or, in Somalia’s case, that former warlord Mohammad Farah Aideed would acknowledge his hidden agenda(s).

It does mean that those across the table could have seen clearly what others may have felt. They might have been able to use that information to redirect the negotiation process at the exact time it began to go wrong.

The human body, striving for balance by lying or trying to deceive, creates imbalance. This imbalance is both visible to the trained eye and something a negotiator can learn to see and factor into critical high-risk negotiations.

Ursula Hess and Robert E. Kleck (1997) wrote: The literature on psycho-physiological markers of lying (e.g., Lykken, 1979) shows that deception is usually associated with increases in arousal. Nonverbal indicators of arousal, such as blinking, pupil dilation, pitch, speech errors, and speech hesitation might therefore occur in increased frequency when a sender is lying. Another source of deceptive markers are indicators of affective states such as guilt or shame (Kraut, 1980) or Fall 2009 THE FORENSIC EXAMINER® 31

s A UNOSOM soldier from Turkey manning a lookout post near UNOSOM II military headquarters in Mogadishu.

‘duping delight’ (Ekman, 1980). Ekman continued saying, “One might assume that most subjects do not like to deceive and might therefore show some signs of anxiety such as less eye contact, less direct body orientation, and more distance from communication partner (Mehrabian, 1971), as well as a decrease in the use of illustrators (Ekman,1980).

Lastly, it is generally assumed that producing a deceptive message is cognitively more demanding than telling a simple truth. Senders of deceptive messages should therefore show indicators of cognitive effort such as speech pauses, longer response latencies, pupil dilation, and fewer illustrators (Goldman-Eisler, 1968; Kahneman, 1973; Ekman & Friesen, 1972). (pp. 272) This is important information for any person to have at his or her disposal. This knowledge is simply another life-viewing tool, albeit an extraordinarily powerful one that provides a deeper understanding of one’s self and those around. That knowledge tends to change life for the better because when we can literally see and understand the messages from the unconscious, we can truly become the masters of our own destinies and ultimately more skilled in high-risk negotiations that ultimately save lives.

Human beings need and strive for balance. This notion is basic to the Goodfield 32 THE FORENSIC EXAMINER® Fall 2009

Method. When a person communicates about a subject that has personal meaning or consequences regarding his or her response, there is pressure to express the whole truth. By expressing the total feeling, especially when he or she is ambivalent about an issue, he or she retains or restores balance within. A double message or incongruent message is, in fact, an example of the system trying to express a more complete or congruent message of what he or she really feels.

An old experience in his life has served as a learning point on a conscious level or a Perceived Primary Pvent (PPE) when on an unconscious level. When an event in the present triggers an old decision from the past, that old decision will be reflected in the form of a Non-Verbal Leak if the unconscious message is not congruent with the old decision.

When we perceive incongruence in an individual, it stands out as something that influences our memory of him. Somehow, the behavior we see does not fit into our recollection of our experience of this person. The Non-Verbal Leak is, by definition, a double message; and often we remember or are struck by the inconsistency between what an individual says and how he reflects that on a non-verbal level. As we look at the incongruence, it can create an imbalance within ourselves because the behavior does not fit.

The advantages of being able to decode these unconscious messages are obvious.

Imagine how the outcomes might have been different if the negotiators, in trying to evaluate negotiated risk factors, could have had a clear picture of the NVL of those who sat across from them. It would have provided a glimpse into the real agenda and desire to resolve the crisis. The outcome might have been different or more quickly found, perhaps saving lives as a result. For example, if your old experiences taught you on an unconscious level (PPE) that it is not safe to speak about what you feel and you, on a conscious level, find yourself wanting to talk about your distrust or disapproval, an inconsistency exists within the system.

The system, in an effort to reduce the inconsistency, sends both messages—one on a conscious level and the other on an unconscious level. The messages are presented as incongruence between verbal and non-verbal levels, the non-verbal reflecting the unconscious aspect of what we feel. This is the origin of the Non-Verbal Leak, which originates from a Perceived Primary Event.

The Non-Verbal Leak can be broken down into three basic components: (1) what I initially felt, (2) what I initially wanted to do, and (3) what I actually did. Taken to the symbolic level for further analysis, we use the concept of Impact, Primary Emotion, and Primary Coping Strategy.

The Non-Verbal Leak is the referential level of behavior. The SL-1, SL-2, or SL-3 is the symbolic level.

The actual non-verbal responses are decoded into their unconscious symbolic meaning, or SL-1, SL-2, SL-3. We may consider again the previous example. You verbally say, “I trust you.” Your Non-Verbal Leak, as you say those words, shows, I (eyes open) trust (eyes closed) you (eyes closed, top lip tightened, and swallowing down).

The complete message, then, is: “I trust you, but I am anxious about telling you that because in the past I had bad experiences giving my trust to others. I have subsequently learned to avoid these areas, and I close up when they arise in my life.” This message, while a true and complete one, is not necessarily the best opening line when trying to make friends or entering into a negotiation. Both messages come out, one heard and the other felt on some level.

There may be various explanations for this behavior but, once again, the issue is to see and hear the communication from both levels of consciousness. Here lies the www.acfei.com

basis for successful communication, mediation and negotiations, and human contact.

In crisis and negotiated risk situations, the pressure is higher than in normal circumstances. One can expect the NVL to be more apparent, as both halves of the message seek expression. As adversaries seek compromises or total victory, other NVLs will become more apparent and, therefore, better tools to probe deeper into real agendas.

In order to gain the benefits of this important information, the reader of the NVL must perform one more step, to raise the hard data that has been gathered from the non-verbal level to the symbolic level. Here the raw data is interpreted into clear and usable symbolic meaning.

The raw data is the observed repetitive responses noted as the person speaks. The interpretation begins when that information becomes the basis for what is referred to as the symbolic level. When the NVL is being used as a means of gathering deeper underlying motivations of an action, a tactical plan of attack will emerge. The hard referential data of the NVL can be used tactically or clinically, depending on the need and/ or objective. The person having the NVL data should consider the moral judgments and their impact on the emotions.

Lennart Sjoberg (1998), of the Center for Risk Research, Stockholm School of Economics, Sweden, makes the following observation: Although it can be debated whether moral judgment is entirely cognitive, it is certainly closely related to emotional processes.

Indignation involves anger, and hence emotional reactions should not be neglected in any discussion of risk perception. They may even be of major importance and a more important source of the societal problems connected with varying risk perception than cognitive.

If negotiations are to be successful, and crisis is to be avoided, understanding is critical.

Observations of referential data need to be translated into useable information. That is what the symbolic level of the NVL is. When we decode the total conscious and unconscious messages of the person, real crisis management can take place with the greater possibility of achieving lasting, successful results. The impact (SL-1) is rooted in any PPE. It is real in the eyes of the person who experienced it.

This shock to the system can be recorded on both levels of consciousness. Moreover, it impacts upon the person on intra-psychic, psycho-physiological, or interpersonal levels.

The primary emotion (SL-2) to the impact is the first impulse that the person has to the traumatic event. It is what he really wants to do. If his response to the situation is anger in (800) 592-1399

the SL-2 stage, he wants to express it clearly and directly with no holding back. The primary coping strategy (SL-3) is what the person really does. It is not what he wants to do. He may feel rage but he realizes that, if he gives in to these feelings, he could make the situation even worse. This is where the person finds a compromise that works for him at that moment.

In psychoanalytic theory the concept of the id, ego, and superego seek to explain the decisionmaking process. Freud’s ideas are hypothetical constructs that add understanding to the decision-making process. Impact, primary emotion, and primary coping strategy also help to decode the decision-making process; however, the SL1, SL-2, and SL-3 are observable, testable realities. With time and similar perceptions of what his world is like, the person develops repetitive strategies for similar situations. It could be said that the SL-3 is his basic strategy in dealing with those feelings in his life.

But the NVL is reflected not just in the upper part of the person; it is shown throughout the person’s body in his movements. This more complete expression of these unconscious messages is referred to as the BNVL or the Body Non-Verbal Leak.

We are a psycho-physiological system and, therefore, we must consider the total body.

In crisis management, conflict resolution, and high-risk negotiations, as you attempt to resolve conflicts it is critical to observe the principals as they express their feelings. The observation of specific behaviors, such as arm and leg movements and breathing patterns, reflect some of the body’s movements that must be considered. Reading the total system’s reactions is what is meant when we decode the Body Non-Verbal Leak. The observed behavior, when seen in repetitive patterned form, provides the basis for the subsequent interpretation observation.

As a result of close observation and analysis, we can see the physical responses of the system throughout the total body. The BNVL reflects the total recorded factors of a perceived trauma within the system. This observable unconscious movement forms the basis for part of the negotiation strategy and tactics.

Primary or traumatic events are a state of imbalance within the individual, and reflect retention, which is a matter of holding tension inside. Our attempts to achieve balance often generate more imbalances. Often our attempt to regain balance results in more imbalances, and we may trip even more and fall. Balance and imbalance are daily factors in our lives and our attempts at resolving conflict. They are reflected in our bodies’ actions and functions.

Table 84-1. DSM-IV diagnostic criteria for antisocial personality disorder A. There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following: 1. Failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest.

2. Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure.

3. Impulsivity or failure to plan ahead.

4. Irritability and aggressiveness, as indicated by physical fights or assaults.

5. Reckless disregard for the safety of self or others.

6. Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or to honor financial obligations.

7. Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.

B. The individual is at least age 18 years.

C. There is evidence of conduct disorder (see American Psychiatric Association 1994, p.90) with onset before age 15 years.

D. The occurrence of antisocial behavior is not exclusively during the course of schizophrenia or a manic episode.

Fall 2009 THE FORENSIC EXAMINER® 33

s Belgian and U.S. members of the Unified Task Force (UNITAF) in a military convoy.

There are three key concepts in life: insight, action, and risk taking. By taking risks, an individual places himself in a position where something might go wrong; however, something also might go right.

Risk taking is a matter of self-concept.

How you see yourself will affect what you do with regard to the opportunities with which you are presented on a daily basis.

Sins of the Father When a stone hits a pond, a series of concentric circles radiate outward. The radiation reflects the intensity of the stone’s impact. So it is with PPEs. Imagine a few small boats positioned at various points on a pond, one of the boats exactly positioned at the epicenter, another at the first concentric circle, and still another at the second, and so on. Of course, at the fifth or sixth concentric circle, the small boat will experience less distortion and impact than the boat at the center. If there were people on these imaginary boats, they would have sketchier primary information about the causality, origin, and implication as a result of their differing distances from ground zero. The consequence would be an increased speculation on the part of 34 THE FORENSIC EXAMINER® Fall 2009

those at greater distances. So it is with the Historical Interactive Non-Verbal Leak (HINVL). As the HINVL’s definition suggests, past PPEs impact individuals from one generation to the next. “The attempt to find a peaceful settlement to the difficulties facing the Middle East seems bogged down because of two fundamental issues, the HINVL, and the inability to be open to difference” (Goodfield, 1999).

When an individual has a major PPE that is not resolved in some satisfactory way, it will be passed along to the children in the family and their children and theirs until resolution is found in the perception of that individual. The primary mode of transmission is through non-verbal messages that reflect the old strategies that resulted from the old decisions in relationship to the event that was initially perceived as a traumatic event.

Actions, when reflecting an HINVL, are often taken but are usually not questioned.

When they are questioned, the remarks made about them are usually vague, reflecting more of a feeling tone that says, “I don’t know why I do this or feel this way. We (fill in a family, clan, or tribal name) have done this in this way for generations. We have been always stoic and held our deeper

feelings inside.” These remarks reflect values and traditions. When they don’t result in repetitive pathological responses to the environment, these actions usually go on unchallenged by the unconscious mind.

When, however, a vague feeling of uneasiness or discomfort impacts the person daily, the HINVL may be pushing an unresolved issue from someone else’s past. In that sense, we are in the presence of the past, the boat at the epicenter.

Ultimately, the person here and now has an NVL that shows his unconscious signal of an emotional need. We need contact and affection but, if we have been taught that we of this family are unable to be successful at achieving real contact and intimacy, then we either don’t try or, when we do, we somehow unconsciously sabotage our efforts. The HINVL is an unconscious self-fulfilling prophecy that shapes our lives and influences the directions we take.

Deep-seated distrust based on old historical unresolved traumas, sabotages peace negotiations on a regular basis, and the lives of those who suffer from the absence of that peace. If there is a solution to this situation, it will come about when people, as negotiators, put the idea of peace before unconscious needs.

Violent history, violent role models, and a profound sense of hopelessness create a dilemma. There are two basic paths from which to choose. Withdraw into despair and hopelessness, and find solace in what religious belief might offer. The second path is to give vent to the repressed rage that can accompany the daily injustice found in daily existence. This becomes the breeding ground for Mohammed Farah Aideed that infests the streets and waters off of Somalia.

Let us look at a former Somali leader, Mohammed Farah Aideed, as he is illustrative of many of those struggling to find balance in the unbalanced world in which they live.

As Walter Clarke, Deputy Special Envoy, said of former warlord Aideed, ”If you are a warlord, I guess you need a war.”

Aideed saw himself not as a warlord but as the top warlord fighting his own battle for power over historical enemies and forces from the past.

Let us now consider the NVL of Mohammed Farah Aideed and the psychological dynamics that drove his behavior in the Somalia situation. www.acfei.com

Mohammed Farah Aideed’s Psychological Dynamics and the Negotiation Process The NVL of Mohammed Farah Aideed

1. Eyes open 2. Deepening lines between eyes 3. Top lip tightens, masseter muscles pulse 4. Lines next to nose tighten and deepen 5. Eyes open wider in anger SL-1, SL-2, SL-3 of Mohammed Farah Aideed SL-1 = Shock, shown in large eyes SL-2 = Anger out, shown in strong lines near mouth and tight top lip SL-3 = Controlled pressure, then impulsive and often explosive action, then a swallow down.

When looking at General Aideed, one is immediately struck by the two deep lines between his eyes. A few conclusions can be drawn from these lines. When looking at his masseter muscles, the blockage of aggressive impulses can be inferred. This blocked aggression was later given full vent. He was a person under a lot of pressure and who internalized even more. He could be seen as a Type A personality as well as an antisocial personality or psychopath.

How did pressure in the negotiation process affect his behavior? As has been pointed out in the general discussion of the NVL, pressure can and often does reinforce old decisions and strategies made as a child.

What would those decisions and strategies as a child likely be?

1. Hang on in the face of intolerable hardship.

2. Pressure will justify the violence hidden just below the surface.

3. The views of others are irrelevant obstacles to gaining more power.

4. Violence and revenge are justified, appropriate, and necessary.

A post hoc psychological diagnosis and evaluation of the deceased General Aideed could increase the understanding of the negotiation difficulties that took place in Somalia and the challenges it faces today.

(800) 592-1399

Mohammed Farah Aideed was a charismatic character who, based upon his known behavior and actions, fits the clinical criteria of a psychopath as defined by the American Psychiatric Association diagnostic criteria.

What are the critera of a psychopath?

J. Reid Meloy (1995) discloses important details on antisocial personality disorders for our studies: “Antisocial personality disorder is the most reliably diagnosed condition among the personality disorders, yet treatment efforts are notoriously difficult.”

He goes on to present two tables, one describing the criteria for antisocial personality disorder (Table 84-1.) and, in a second table, the revised psychopathy checklist (Table 84-2.).

What is clear with 20/20 hindsight is that the behavior of General Aideed fits the clinical features that distinguish the psychopath from other forms of narcissistic personality disorder. He was characterized by aggression and power in his interactions.

He manifested sadistic and cruel behavior toward others. He had no interest in showing, rationalizing, or morally trying to justify his behavior. There was no adherence to any value system other than the exploitative aggressive use of power. He showed no conscience and no ego, allowing famine to devastate his people. He appeared to know what others thought, but he did not care what they felt.

This information in the hands of General Anthony Zinni, Director of Operations 1992–1993, might have built a tactical plan that would have incorporated this critical information into his negotiation strategies.

The situation was not helped when General Aideed’s behavior was labeled by the United Nations as criminal. This would make any psychopath become defensive, less responsive, and ultimately more dangerous and unpredictable at the negotiation table.

General Zinni in the 2002 Frontline TV program Ambush in Mogadishu, commented on the UN action saying: “I think that the resolution (UN) to declare Aideed a criminal was ridiculous first of all, and secondly, we were now in some kind of counter-insurgency operation or war” (Cran, 2002). This prophetic observation was to foreshadow the continued deterioration of the events in Somalia.

What were General Zinni, Robert Oakley, Walter Clarke, and a host of others up against in attempting to negotiate with Mohammed Farah Aideed? Two factors come to mind. First, as an antisocial

personality, Aideed developed with certain characteristics. Meloy (1988) states: In the child’s subsequent development, two separate processes coexist.

One is characterized by a profound detachment from all relationships and from affective experience, while the other is a more object–related path characterized by sadistic attempts to bond with others through the exercise of power and destructiveness.

The psychopathic patient never becomes aware of other people as separate individuals with feelings of their own.

Hence these patients do not develop a capacity for depressive anxieties or for guilt stemming from concern that their actions can hurt others.

The second unknown factor at that time was that the Al Qaeda terror network lead by Usama Bin Laden was hastily providing arms to fight and not negotiators to find solutions to apparent differences.

What then would have been the best strategies the United States and the United Nations could have taken when attempting to negotiate with Mohammed Farah Aideed?

Any negotiation approach that fed his ambitious need for power at the same time searching for others with more of a true commitment to peace and redevelopment in that war-torn region. This is easy to suggest and much harder to accomplish, given the players then and even now in 2009. Somalia’s new leader, President Sheikh Sharif Sheikh Ahmed, faces the same uphill struggle as was faced by others caught in the brier patch called Somalia.

Concluding Thoughts The United States Navy’s attempted negotiation for the release of Captain Richard Phillips of the Maersk Alabama in April 2009, is emblematic of the difficulty faced by the West. Be it on sea or land, negotiating the non-negotiable is never easy. A failed state means a breakdown of the structures of legitimate governmental power on all levels. Warlords on land fight each other for power and position while pirates plunder shipping lanes with virtual impunity.

Those involved in high-risk international negotiations face in two directions at the same time. Direction one is toward their capitals or the headquarters of their negotiation agencies. They must also face the persons across the tables that are also confronted with similar tasks. To suggest Fall 2009 THE FORENSIC EXAMINER® 35

“A man with much to think about and much more to do.

Sheik Sharif was a former schoolteacher, who stood up to the warlords who fought for control of Mogadishu. He faces not only the problems of a failed state, he also faces Usama Bin Laden who reportedly called for him to be ‘dethroned, fought, and removed with armed force.’”

—CNN, March 19, 2009 Table 84-2.

Psychopathy Checklist-Revised

1. Glibness/superficial charm 2. Grandiose sense of self-worth 3. Need for stimulation/ proneness to boredom 4. Pathological lying 5. Conning/manipulating 6. Lack of remorse or guilt 7. Shallow affect 8. Callous/lack of empathy 9. Parasitic life-style 10. Poor behavioral controls 11. Promiscuous sexual behavior 12. Early behavioral problems 13. Lack of realistic long-term goals 14. Impulsivity 15. Irresponsibility 16. Failure to accept responsibility for own actions 17. Many short-term marital relationships 18. Juvenile delinquency 19. Revocation of conditional release 20. Criminal versatility Source. Hare.R: The Hare psychopathy ChecklistRevised Manual. Toronto, Multi-Health Systems, 1991.

36 THE FORENSIC EXAMINER® Fall 2009

sSecretary-General Ban Ki-moon (right) meets with Sheikh Sharif Sheikh Ahmed, the new and different type of “President” of Somalia

that those involved with such colossal tasks puts more demands upon themselves and on their colleagues may seem unfair or unrealistic. It is not.

In the long run, this effort will save time, energy, and perhaps even lives if the true agendas of all parties present are surfaced, discussed in candor, and incorporate both the conscious and unconscious realities that bring them together and divide them at the same time. The events in Mogadishu, with its drought and starvation and problematic leadership, points to the futility of the situation in general. Mohammed Farah Aideed is gone.

A clinically proven psychopath is no longer in control. The “government” (mostly in name only) still is struggling with other clans and desperate individuals. Those people are seeking power and position in an internal political struggle against other self-serving warlords that produces little hope for successful change. Sometimes the most successful thing a negotiator can do is to push away from the table when those across from him are showing in their actions, both verbally and non verbally, that it is a game no one can win.

The Non-Verbal Leak can provide that clear data and direction. Perhaps a small hope comes from America’s war with Al Qaeda, which still has representation in that area. As long as there is a perceived threat of an Al Qaeda presence, there will be an interest on the part of the United States and the United Nations. Hope for these desperate people will only come when others see selfinterest in the region.

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s Maersk Alabama Capt. Richard Phillips, right, stands alongside Cmdr. Frank Castellano, commanding officer of USS Bainbridge (DDG 96) on Sunday, April 12, 2009, after U.S. Naval Forces rescued Phillips off the coast of Somalia. (U.S. Navy/MCT)

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Earn CE Credit To earn CE credit, complete the exam for this article on page 38 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHORS

Barry Austin Goodfield, PhD, FACFEI, DABFE, DABFM, DABPS, is senior professor at Henley-Putnam University, instructing doctoral-level students from the intelligence and counterterrorism community. He holds a PhD in Psychology and Human Behavior. He is an international lecturer, author, and noted radio and television personality. He is founding director of the Goodfield Institute in Glendale, Arizona and the Netherlands. He is chairman of The Goodfield Foundation for the Study of Conflict Communication and Peace Building, an NGO in The Hague. He is partner at Goodfield Ilgen Expert Consultancy in Europe. He has lectured at University of California Berkley and Oxford University as well as many other universities throughout the world. He holds two U.S. patents on his psychotherapeutic process relating to analyzing Non-Verbal Leaks. For more information, go to www.goodfieldinstitute.com.

Andre Le Gallo, BA, a retired senior Central Intelligence Agency officer, ran clandestine operations in 5 continents for three decades experiencing several coups, a revolution, and a war. He was the CIA chief of station in 4 countries and also served as the National Intelligence Officer for Counterterrorism.

Following his CIA career, he was a vice president in an international energy company, a Visiting Fellow at the Hoover Institution, and President of the San Francisco chapter of the Association of Former Intelligence Officers.

He has been a consultant for both private business and government. His forthcoming The Caliphate (Dorchester Publishing, Feb. 2010) is a whirlwind adventure that will change the politics of the Middle East and springs from today’s headlines. Mr. Le Gallo is currently writing his second novel, Satan’s Spy.

Fall 2009 THE FORENSIC EXAMINER® 37

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KEYWORDS:

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1.

2.

3.

4.

5.

Better understand the key role that personality plays in international crisis.

Understand the dilemma faced by international organizations attempting to bring aid to this region.

Understand the role of the unconscious process in world affairs.

Understand this historical development of the regional conflict.

Gain insight into methods of “reading” Non-Verbal Leaks.

terrorism, warlord, civil war, non-state actor, Aideed, Sahnoun, Mahdi, Oakley, Clarke, NGO, UNITAF, UNOSOM, Restore Hope, Usama bin Laden, Boutros Boutros Ghali, Siad Barre, United Nations, Clinton, Jonah, NVL, Non-Verbal Leak, unconscious

TARGET AUDIENCE: Psychological professionals PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose.

PREREQUISITES: None

ABSTRACT Following a civil war and a drought, 350,000 Somalis had died by 1992. In response to a United Nations request for help, the United States sent Marines to secure the environment (UNOSOM—Operation Restore Hope). This initial effort was followed by UNOSOM II, a more ambitious UN mandate to disarm militias and reconcile political factions. This paper examines the decision-making, the effect of conflicting personalities, and the role of the unconscious as seen in the Non-Verbal Leak. The personality of former President Mohammed Farah Aideed is analyzed in the context of the aforementioned conflict. An explanation of the relevance (or lack of one) of the interlocutors, the negotiating styles and venues, and the negotiating objectives is discussed.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 The implementation of policy (or working toward goals) cannot assume either cooperation or understanding from the other involved parties, even if “it’s good for them.” In this case, the U.S. goal was to provide humanitarian assistance. However, this was deemed NOT threatening by those who wanted to control the country. a. True b. False

4 The head emphasis movements, muscle tension in the eyes, and eyebrow lifts are significant predictors of recurrent CHD in univariate analyses. However, when the nonverbal indices were examined in multivariate analyses with other behavioral variables, the nonverbal behaviors were no longer significant. a. True b. False

2 Success will depend on understanding the others’ own objectives in the venture. To reach an adequate level of understanding, it is necessary to know the influences at work. Some will have originated from historical events, family and tribal (or associative) ties, and obligations. Traditional tribal ties and obligations are more important than loyalty to the idea of a nation, as loyalty is too abstract when day-to-day survival is at stake. a. True b. False

5 NVL pressure does not reinforce old decisions and strategies made as a child. a. True b. False

3 Accommodating the other party’s desires into a final solution is the only path to a sustainable situation. Political reconciliation based on power rather than the self-interests of the negotiating parties will last only through force of arms. a. True b. False

6 Mohammed Farah Aideed was a charismatic character who, based upon his known behavior and actions, fits the clinical criteria of a psychopath as defined by the American Psychiatric Association diagnostic criteria. a. True b. False

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licensure level.

Instructional materials were useful.

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38 THE FORENSIC EXAMINER® Fall 2009

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A Memorable Day In the Life of Forensic Examiner Dr. John Brick

As a Forensic Examiner, I am involved primarily in the examination and evaluation of evidence related to alcohol and drug related crimes or accidents and answering the question how, if at all, was intoxication a factor in an event. My knowledge, training, and experience in neuropharmacology, anatomy and physiology, neuroscience, and, of course, psychology (coupled with extensive experience in testing human subjects) has served me well in my private practice. Like many forensic examiners, I spent years in academia before developing a unique specialty in forensic psychopharmacology.

The summer of 2001 was like most summers: Busy. There were files of cases awaiting forensic evaluations of fatal or serious motor vehicle crashes, homicides, and other potential criminal activities or various accidents in civil cases.

At the same time, I was also reviewing articles in my capacity as an expert for various scientific journals, conducting my own research, and writing. As busy as it was, it was a good time to catch up on these things because for several months I had been involved almost exclusively in writing a comprehensive training curriculum on biological warfare for a company in New York City. Biological warfare was not my chosen field of study, but my multi-discplinary training and teaching experience were needed to review and synthesize this complex field and develop a training program. It was interesting work, but I did not realize how acutely important it would become in the near future.

Like most people, I remember exactly where I was the morning of September 11, 2001, when terrorists hijacked three jetliners, crashing two into the World Trade Center. The third was brought down in Shanksville, PA. I was at work when my friend Joe Birkbeck, a retired nuclear medicine specialist, called and told me to turn on the television. When I asked what channel, he simply said, “Any channel. I have to go now.”

Writers more eloquent than I have captured the sentiment of the nation and how we all came together, at least for a while. For me, there was an urgency to “do something” in response to the terrorist attacks, but what? The answer came only a week later when letters containing anthrax spores were mailed to several news media offices and two U.S. Senators, killing five people and infecting 17 others. It was obvious that my recent work on biological warfare was

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Fall 2009 THE FORENSIC EXAMINER® 39

s Dr. Brick explaining the finer points of biological sample dilution as a function of a sample matrix. Visual explanations, whether used in the classroom, in the field, or in the courtroom, are helpful in understanding and remembering information.

“It was, and continues to be, impossible to precisely predict when and how future terrorist attacks will come. But it is possible to be prepared for and respond to such an event.”

40 THE FORENSIC EXAMINER® Fall 2009

no longer an academic exercise, but that I was in a unique position of knowing exactly what was needed and what to do. I put all forensic cases, lectures, and other day-to-day projects on hold and, for all practical purposes, closed my forensic practice. Everything, everyone, all efforts and resources of my office focused on one thing: Biological Warfare. The ten-hour workdays became fifteen-hour days when the Post Office in Hamilton Township, New Jersey, located twenty minutes from my office, was identified as the origination point for the anthrax attack. The importance of this work literally struck close to home.

The result of my efforts was the Biological Warfare Matrix or, as Dr. O’Block calls it, “Brick’s Matrix” to bio-warfare. The Matrix identifies agents by the signs or symptoms they produce and explains how they are spread and how to minimize contagion. At the time it was first written, there was no single source where all of this information was available. The CDC “was working on one” but it was not yet completed. It was, and continues to be, impossible to precisely predict when and how future terrorist attacks will come. But it is possible to be prepared for and respond to such an event. The

purpose of the Matrix is to provide information to identify and treat exposure to weaponized biologicals and understand how they are spread, avoid panic from misinformation, and empower with knowledge. The Matrix is now available for broad distribution through the American College of Forensic Examiners.

Who Will Benefit from the Matrix?

Preparedness has multiple levels and expertise.

Obviously, first responders who primarily work to identify casualties and provide Emergency Medical Care will use the Matrix. These include police, fire, EMTs, and physicians. At the time of the anthrax attacks, the Matrix was immediately disseminated to local and state law enforcement agencies and organizations, including the hospital where Hamilton Township postal workers were treated for anthrax exposure. The Matrix is easy enough to read that it can be used by laypersons with basic medical training. Panic, fear, and hopelessness are likely to follow any mass attack, and probably more so when the enemy is a microbe that you cannot see. The Matrix can help eliminate some fear by identifying the threat and explaining prevention and treatment options.

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BIOLOGICAL WARFARE IDT MATRIX v9.24.01m.4 © 2009 DR. JOHN BRICK Yardley, PA 19067 (Intoxikon@intoxikon.com)

ANTHRAX (Bacterial) Pulmonary (p) Cutaneous (c) G.I. (gi)

BOTULISM (Bacterial)

BRUCELLOSIS (Bacterial)

JOHN BRICK, PhD, MA, FAPA CHOLERA (Bacterial)

GLANDERS (Bacterial)

PLAGUE (Bacterial) Pneumonic plague=pp Bubonic plague=bp

INTOXIKON INTERNATIONAL Q-FEVER (Bacterial) Q-fever, Rickettsia

TULAREMIA (Bacterial) Ulceroglandular=ut Typhoidal=tt

HEMORRHAGIC FEVERS

(Viral) Ebola, Marburg, Lassa, Argentine, Bolivian, CongoCrimean, Rift Valley, Yellow Fever, Dengue (Viral)

SYMPTOMS CARDIOVASCULAR CV Compromise Cyanosis Edema

X Collapse (pp) X (pp)

X (p) X 2nd Stage X (p)

PULMONARY Chest discomfort Cough Dyspnea Hemoptysis Respiratory distress Respiratory failure Stridor Substernal discomfort

X 2nd Stage

X X Bleeding (pp)

IMMUNE

X Moderate 1st Stage

X Pleuritic pain in 20% of cases

X 1st Stage Nonproductive X 2nd Stage

X 20% of cases

X 1st Stage X > 2-4 d X 2nd Stage

G.I.

SKIN

X Pleuritic chest pain

X (tt) Nonproductive

X (pp) X (tt) X X

X X

X

X

X X X 1st Stage X

X Chills (pp)

X

X Chills (ut)

X (pp) X (bp)

X Severe X X Confusion

X (ut,tt) X (ut,tt)

X 1st Stage X 1st Stage X 1st Stage X 1st Stage

X Severe X 2nd Stage X

X

X

X 1st Stage X Depression

X X

X (tt) X 1st Stage X 1st Stage

X Severe X

Fever

X 1st Stage

X Irregular

X 1st Stage

X

Lesions, depressed eschars

X Pain X Nonproductive

X Paralysis X 2nd Stage

Flu-like symptoms Splenomegaly Colic Diarrhea Dysphagia Nausea/Vomiting Ulcer Weight Loss Dry mouth/throat Flushed face & chest

X Pain

X (pp) X (pp) X Failure (pp)

Cervical adenopathy

Lymph nodes

X X

X (p) X 2nd Stage

MUSCULAR-SKELETAL Arthralgias Myalgias Rigors Sacroilitis Vertebral osteomyelitis NEURO Blurred vision Chills/sweating Dizziness Diplopia Dysarthria Fatigue Flaccid paralysis Headache Malaise Mental Status Change Prostration Ptosis Weakness

X X Easy bleeding

X (pp or bp)

Hemorrhage Diaphoresis Diathesis Shock Tachycardia

X Hypotense

X Minimal

X

X

X High (pp,bp)

X 104-105°

X Regional adenopathy (ut)

X Tender (bp)

X Bloody diarrhea (gi) X

X

X, “rice water” stool X

X (ut, tt)

X X X

X 1st Stage X (gi)

X

X

X X Local (ut) X (tt)

X Anorexia X 1st Stage

X Sore X

X (c ) Lesions → black eschars

Papular/pustular eruptions HEMOLYTIC Petechae Toxemia RENAL Renal insufficiency

X X X (pp) X

Decontamination solution: Hypochlorite is available as Clorox­ (5.25% sodium hypochlorite). To make 0.5% solution, mix 1 part Clorox and 9 parts water (1:9). Mix daily.

The purpose of this chart is to provide concise guidance in the general identification and management of biological casualties. It is not a definitive text, but is designed to be a quick reference of the most common symptoms and treatments. This chart does not list all potential biological weapons. For some agents (e.g., T2 and other mycotoxins) and many hemorrhagic fever viruses, no specific therapies are available. Therefore, they were not included in this chart. Vaccines against some biological weapons are available (see reverse side). For more information, consult the references listed below and contact the CDC (770) 488-7100, or your state health agency. 



References: Medical Management of Biological Casualties Handbook, US Army Medical Research Institute of Infectious Diseases, Operational Medicine Division (1998); Jane’s Chem-Bio Handbook, Jane’s Information Group (1998); Biological Warfare and Terrorism: The Military and Public Health Response, Satellite Broadcast: US Army, Centers for Disease Control, Federal Drug Administration, Public Health Network (1999). * © COPYRIGHT 2009 ALL RIGHTS RESERVED. This document may not be sold, but it may be reproduced in its entirety without permission.

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Fall 2009 THE FORENSIC EXAMINER® 41

BIOLOGICAL WARFARE IDT MATRIX v9.24.01m.4 © 2009

ANTHRAX

© Document may be reproduced in its entirety without permission** THERAPY

BOTULISM

BRUCELLOSIS

Supportive therapy may be required

Electrolyte replacement therapy mix 3.5 g NaCl (Salt), 2.5 g NaHCO3 (sodium bicarbonate), 1.5 g KCl (potassium chloride); 20 g of glucose/liter water

400 mg IV, q 8-12 h No Cipro in pregnant women or children unless life threatening 200 mg IV x 1 plus 100 mg IV q 8-12 h

500 mg q 12 h x 3 d

Chloramphenicol Ciprofloxcin Doxycycline Erythromycin

200 mg/d PO plus Rifampin 600-900 mg/d PO x 6 w

No Doxy in pregnant women or children unless life threatening

Ofloxacin Penicillin

Ribavirin

30 mg/kg IM qid 2,000,000 U IV q 2 h plus Streptomycin 30 mg/kg IM qid; Cutaneous-Procaine Penicillin 2,000.000 U qd until edema subsides then PO x 7-10 d

Ventilatory support critical. Trach or endotrach intubation will decrease fatalities

Rifampin Streptomycin

400 mg/d PO x 6 w

600 mg/d PO x 6 w

Sulfadiazene

Pediatric: 40 mg/kg/d divided into 2 doses x 3 d 500 mg q 6 h x 3 d Pediatric: 50 mg/kg/d divided into 4 doses x 3 d Pediatric: 8 mg/kg/d divided into 2 doses x 3 d

Tetracycline Trimethorprin

Vaccine

PROPHYLAXIS

IND Vaccine

No vaccine Avoid unpasturized milk and cheese

Ciprofloxacin Doxycycline

300 mg once or 100 mg q 12 hr x 3 d Adult: 500 mg q 6 hr x 3 d Pediatric: 40 mg/kg/d divided into 4 doses x 3 d Pediatric: 5 mg/kg/d divided into 4 doses x 3 d or 7 mg/ kg/d x 1

Furazolidone Gentamicin

CHOLERA

Vaccine, but limited (50%) protection. Limited data on effectiveness against aerosol

500 mg PO bid x 4 w 100 mg PO bid x 4 w plus vaccine

200 mg/d PO plus Rifampin 600-900 mg/d PO x 6w

Tetracycline

Human-to-Human Transmission?

No, except when skin broken

No

No

Transmission from Animals?

Yes, from infected animals

No

Delivery

Aerosol weapon; Contaminated, undercooked meat Fly bites

Aerosol weapon; Food/ vegetables

Tissue, urine, milk, raw milk, cheese Aerosol or food supply Contact with infected animals

Precautions

SP

SP

Decontamination

Clorox®

0.5% Clorox®for 10 min; and/or soap and water

Incubation period

1-6 d

Inhalation – 24-36 h Ingestion – several days

5-60 d; Avg: 1-2 m

4 h – 5 d; Avg: ~2-3 d

Fatal

24-36 h, 80-90% of cases

Respiratory -60% mortality Death in 24-72 h Most lethal of all toxins

Not usually, if treated with antibiotics

50% in untreated cases- Severe dehydration.

Standard Precautions for healthcare workers = SP

42 THE FORENSIC EXAMINER® Fall 2009

SP Avoid unprotected contact with skin or mucous membranes Avoid unpasturized milk/cheese

Rare

Aerosol weapon Food, contaminated water SP Avoid contaminated biologicals, substances, objects 0.5% Clorox®

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JOHN BRICK, PhD, MA, FAPA

GLANDERS Avoid contaminated biologicals, substances, objects (fomites)

INTOXIKON INTERNATIONAL TECHNICAL DOCUMENT NO.4

PLAGUE

Q-FEVER

Pneumonic plague=pp Bubonic plague=bp

Supportive therapy required

Self-limiting

VIRAL HEMORRHAGIC FEVER

TULAREMIA Ulceroglandular=ut Typhoidal-tt

Early therapy very effective

Intensive support may be required

Meningitis: 1 g IV qid x 10-14 d

200 mg IV then 100 mg IV bid x 10-14 d

100 mg q 12 h x 5-7 d

30 mg/kg/d (IM) in 2 doses x 10 d

3-5 mg/kg/d IV x 10-14 d

Rift Valley & poss. other HFVs: 30 mg/kg/IV then 15 mg/kg IV q 6 h x 4 d, then 7.5 mg/kg IV q 8 h x 6 d

100 mg/kg/d in divided doses x 3 w

30 mg/kg/d (IM) in 2 doses x 10 d

1 gm IM q 12 h x 10-14 d

500 mg PO q 6 h x 5-7 d

No vaccine

Vaccine

Vaccine

IND Vaccine

Yellow Fever vaccine is licensed.

Prophylactic ribavirin may be effective for other VHF.

500 mg PO bid x 7 d 100 mg PO bid x 7 d

100 mg PO start 8-12 d post exposure x 5 d

100 mg PO bid x 14 d

500 mg PO qid x 7 d

500 mg PO start 8-12 d post exposure x 5 d

500 mg PO qid x 14 d

Low

High

Rare except in pneumonia cases

No

Moderate

Aerosol

Inhalation of bacterialaden droplets. Infected fleas, direct contact with contaminated tissue.

Airborne dust Aerosol Placental tissues, milk, urine, feces

Skin, mucous membranes Insect bites Aerosol, fomites, mosquitoes

SP

SP

SP

SP

0.5% Clorox®

2-5% Clorox® or Heat (162°F)

Soap and water or 70% ethyl alcohol

Heat (131° F)

Aerosol, respiratory system Fomites, direct contact with body fluids (except Dengue) Yellow Fever, Dengue: Mosquitoes Contact Precautions for healthcare workers. Isolation and barrier nursing procedures apply.

Avoid IM injections, aspirin, anticoagulant drugs Clorox®, phenolic decontaminants

10-14 d > 14 d if from aerosol attack

Pneumonic – 2-3 d Bubonic plague – 2-10 d

1-21 d Illness lasts for > 2 w

2-7 d to 2-3 w

If untreated–fatal within 3-4 w In septicemic form – 7-10 d.

Pneumonic – 100% fatal if not treated within 24 h of onset.

Bubonic – untreated – 50% fatality rate.

Pneumonia in 30-50% 10-40 d incubation period Highly infectious as inhalable cloud <1% fatality

Moderately lethal if untreated

Virus 5-20%+ Ebola – fatal in 50-90%

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Fall 2009 THE FORENSIC EXAMINER® 43

What is the Focus of the MATRIX? The Matrix focuses on the most likely biological agents that can be easily weaponized by terrorists and those which possess the greatest threat to national security. The U.S. Center for Disease Control has identified three categories (A, B, and C) of critical biological agents: A (easily dissesminated or transmitted person to person, causes high mortality and potential for major public health impact, requires special action); B (moderately easy to disseminate, requires specific diagnostic and surveillance capacities such as Q Fever, Brucellosis, Glanders, Venezuelan Equine Encephalitmyopies, Ricin toxin, and Staphococus Entero toxin B); and C (pathogens that can be engineered for mass dissemination and a high potential for morbidity and mortality, such as hanta viruses, tick borne hemorrhagic encephalitis viruses and Yellow Fever). The Matrix focuses on the major classifications of biological weapons based on these categories.

Use of the MATRIX The Matrix is self-explanatory. You can check the columns for signs or symptoms that match what you are observing, identify likely biological agents, and see what treatment (if one exists) should be started.

You can also see how different agents are transmitted and decontaminated, as well as the incubation period (before symptoms start) and the time course for fatality. I am pleased that Dr. O’Block has taken interest in this project and that it will now have broader distribution through the American College of Forensic Examiners.

ABOUT THE AUTHOR

John Brick, PhD, FACFEI, DABFM, CMI-V, FAPA, completed a joint-degree graduate program in psychobiology where he completed both a Master’s in psychology and his Doctorate in biopsychology at Binghamton University, The State University of New York. He is the Executive Director of Intoxikon International, which provides education and training in alcohol and drug studies primarily to law enforcement agencies and corporations, and he maintains a private practice in forensic psychopharmacology. Dr. Brick is the author of over 100 scientific publications, including the President’s Commission on Model State Drug Laws, and was a member of the graduate faculty at Rutgers University and a research scientist at the Rutgers Center of Alcohol Studies for fourteen years. During that time, he was also Chairman of the Graduate Curriculum on Biology of Alcohol and Associate Director of the Advanced School of Alcohol and Drug Studies. For several years, Dr. Brick was Chairman of Continuing Education for ACFEI and has worked as an expert consultant to the Executive Office of the President (The White House), the National Institute on Alcohol Abuse and Alcoholism, most scientific journals in his field, and to various county and state agencies in NY, PA, and NJ. His latest publication, Handbook of the Medical Consequences of Alcohol and Other Drugs, is now in its second edition. Dr. Brick has been a member of ACFEI since 1996.

44 THE FORENSIC EXAMINER® Fall 2009

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Discover the Benefits of Becoming a certified forensic physician

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LIMITED GRANDFATHERING PERIOD The Certified Forensic Physician速, CFP program is an advanced credential that recognizes additional training and expertise for forensic physicians.

The term forensic physician no longer applies to only pathologists, and as a physician it is likely you may be called upon to assist in a case by giving an opinion or testifying in court. The CFP designation will provide a mechanism for measuring scientific standards and procedures required to perform thorough forensic medical investigations and proper consultations. Applicants must meet the minimum requirements and submit a portfolio of relevant documentation.

Four Easy Ways to Apply 1. Apply online at www.acfei.com 2. Call and apply by phone: (800) 423-9737 3. Complete and return application by fax: (417) 881-4702 4. Complete and return application by mail: ACFEI 2750 E. Sunshine St. Springfield, MO 65804

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Fall 2009 THE FORENSIC EXAMINER速 45

CE ARTICLE: 1 CE CREDIT

By Scott A. Johnson, MA, LP, DABPS

Masking a Sex Offense:

When a Non-Sex Crime Really Is a Sex Crime

Many times plea agreements create a misleading picture of the true essence of an offenderâ&#x20AC;&#x2122;s spectra of criminal behavior. Criminal history checks result in a summarized list of pleas and convictions, but generally offer very little about what the offenses involved. The pleas of disorderly conduct and burglary often result from numerous charges, including assault and sex-related offenses. To further complicate the situation, at times crimes may appear to be non-sexual in nature when in fact they are sex-related.

When sex-related crimes are not charged as sex crimes, then an offender escapes attention as a sexual predator. This article was written to highlight this problem.

46 THE FORENSIC EXAMINERÂŽ Fall 2009

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This article is approved by the following for continuing education credit: (ASWB) This organization, American College of Forensic Examiners, Approval Number 1052, is approved as a provider for continuing education by the Association of Social Work Boards, 400 South Ridge Parkway, Suite B, Culpeper,VA 22701 (www.aswb. org). ASWB: Approval Period: 9/13/2004 to 9/13/2010. Social workers should contact their regulatory board to determine course approval. Social workers will receive 1 credit continuing education clock hour for participating in this course.

(CBBS) The American College of Forensic Examiners International is an approved provider of the California Board of Behavioral Sciences, approval PCE 1896.

Course meets the qualifications for 1 hour of continuing education credit for MFTs and/or LCSWs as required by the California Board of Behavioral Sciences.

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

After studying this article, participants should be better able to do the following: 1. Illustrate the importance of obtaining and utilizing official criminal records and police reports.

2. Explain the benefits and outcome of labeling and charging sex and sex-related offenses.

3. Identify how sex offenders slip through the radar.

KEY WORDS: sex offense, investigation of sex crimes, sex-related offenses, burglary sex crime, robbery sex crime TARGET AUDIENCE: Social workers and therapists PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose.

PREREQUISITES: None

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Problem Cases arise when a crime was committed along with a sexual offense, but the primary motive was not sexual. Imagine a crime that involved some type of sexual act, but was not directly sexual in nature, a crime when the offender denies any sexual intent or sexual behavior. It can be difficult to determine whether the sexual behavior was incidental, accidental, or in fact deliberate. The ramification is serious: If the offender engaged in a sex or sex-related crime and is not convicted of a sex offense, then the offender slips through the legal system and may continue to sexually offend without being detected. The result: The sex offender is not convicted as a sexual offender.

Several case examples will help to illustrate the complexities involved in making such a determination.

Robbery, Assault, and Rape Example A young offender was incarcerated for his only known sex offense. His criminal history included numerous convictions and plea agreements involving burglary and other general offenses. His criminal conviction history began at age 14. His most recent offense involved breaking into a home and raping the female resident. After reviewing his lengthy juvenile and adult criminal history, I obtained copies of the criminal complaints of his prior convictions, most of which involved burglaries. No one expected to hear what I had found.

Ten years prior he had received his first juvenile conviction for burglary (age 14), which involved breaking into the home of an elderly couple with three accomplices.

After he and his accomplices severely beat the male victim, he took the elderly female victim upstairs and attempted to rape her.

He was stopped by his accomplices after he began digital penetration. No one suspected that this “burglary” conviction was sex-related, nor did anyone have any idea of the severity of the assaultive behavior exhibited upon the victims. Records then indicated that several more burglary convictions involved rape or attempted rape as well.

This is an excellent case to illustrate the importance and necessity of obtaining detailed information concerning all significant offenses any sex offender has (see Johnson, 2005; Johnson, 2007). After interviews and a careful review of this offender’s criminal records, this offender was deemed not a primary sexual offender, but an impulsive criminal. He was a predator when it

came to selecting his victims and engaging in violent crime. But he offended sexually simply when the opportunity presented itself. The sexual offenses occurred as part of and after completing the primary crimes of robbery and burglary. He was a generally violent criminal. It would be imperative to charge and convict him with sex offenses in addition to the other crimes he commits, so as not to allow his sexual behavior to go unnoticed.

Robbery Example A middle-aged man was convicted of several counts of robbery. The offenses involved the same general theme and pattern of behavior.

He entered a business and robbed several female employees and customers at gunpoint. When the robbery was finished, he forced the victims to remove their clothes.

He bound at least two of the female victims with their own clothing and underwear. All of the victim-employees were female, and only a couple of the customers were male.

The offender denies that he had any sexual intent. Was this a sex offense? If so, was the sexual component of having the victims remove their clothing a primary or secondary function of the offense?

Admittedly, the offense was primarily robbery, not a sex offense. The offender wanted the money. On the other hand, the offense involved sexual dynamics and therefore was a sex-related offense. He may have forced the victims to remove their clothing to prevent them from escaping until he was gone. Certainly the offender’s thinking has some possible merit. The victims would not likely attempt to escape as quickly if they are naked. Or would they? If someone fears for his or her safety or fears for his or her life, whether he/she is naked or clothed may play little if any role in an attempt to escape and to find help. However, even in the midst of a life and death crisis, pride and embarrassment can be powerful emotions and need to be factored into the victim’s judgment and decision. To flee immediately or to wait and re-dress may be a struggle for the victim. In general, the offender’s decision to have the victims remove their clothing appears to have been an effective and integral part of the modus operandi, allowing the offender to successfully escape.

Sorting Through the Details How should one go about determining the truth? Many offenders provide detailed conFall 2009 THE FORENSIC EXAMINER® 47

The Gray Area: What Constitutes a Sex Offense?

A sex offense is ambiguous by definition.

Though specifics can vary from state to state, the term itself can refer to anyone convicted of crimes involving sex, including rape, molestation, sexual harassment, and pornography production or distribution (Peterson, 2009). But what should constitute a sex offense?

A new addition to the file of questionable or controversial sex offenses is the issue of “sexting,” or sending nude or semi-nude pictures or videos. Text messages are now a common method of communication among teens, but the ease of such new technology also opens teens up to potentially devastating ramifications of impulsive behavior. Suggestive text messages expose youths to psychological and legal repercussions.

The seriousness of sexting was most recently illustrated by Cincinnati teen Jessica Logan’s suicide after the accidental forward of sexually explicit photos she sent to her boyfriend (Bassett, 2009). With this case forefront in the news, Philip Alpert, an 18-year-old Florida resident, was labeled a sex offender for forwarding a text message containing a nude photo of his then 16-year-old girlfriend. His girlfriend sent him the provacative photo, and Alpert forwarded it after the couple had a fight.

Alpert is now a registered sex offender for distributing child pornography; he has since been expelled from college, has been unable to find a job, and will have this record until he is 43 (Bassett, 2009). While some assert that sexting is not serious enough to warrant the same punishments as other sexual predators, others argue that sexting is just as damaging and could be a stepping stone to other sexual offenses.

Many states are tightening up holes in sex offense laws, hoping to deter these “gray area” sexual deviants before their offenses become more serious. But where is the line drawn? A Tennessee man, then 19, was charged with statutory rape when the parents of his 15-year-old girlfriend reported him. The man was added to Tennessee’s list of registered sex offenders. Nine years later, this man is an upstanding citizen, happily married to his girlfriend, and the couple has two children (Peterson, 2009).

Despite their family’s—including the girl’s parents who originally filed the report— efforts, he is still a registered sex offender. Public urination and streaking are also sexual offenses in some states, but these offenses may not come from an intent to do harm. Intent cannot be reliably documented, however, and such actions could still offend or frighten those around.

But do such intermediary offenses warrant the same label as child molestation or rape, when an individual’s reputation and record might never recover from such a black mark? “When we lump the technicalities in with the dangerous and predatory, it takes away from the seriousness of many crimes. It is also responsible for making members of the registry a target for scorn and ridicule. Some may say the offenders should have known better . . . but hindsight is 20/20” (Peterson, 2008). The question remains, however—what truly constitutes a harmless technicality from an innocent individual and what is a warning sign from an emerging sexual predator?

References Bassett, K. (2009, June 28). ‘Sexting’ can be sex offense. The Telegraph. Retrieved June 29, 2009, from http://www.thetelegraph.com/news/sex-28428-sexting-teens.html Peterson, S. (2009, Feb. 3). Definition of a sex offender. The All State. Retrieved June 29, 2009, from http://www.theallstate.com/2.10101/definition-of-a-sex-offender-1.1341319 n

48 THE FORENSIC EXAMINER® Fall 2009

fessions, and with proper and consistent questioning will admit that they had some degree of sexual intent in their offense. However, there are offenders who refuse to cooperate with questioning, or who provide only those details that allow them to save face. For our robbery example, the offender has little to lose to admit that he robbed the victims. He pled guilty, and the behavior involved in the robbery was not horrific in and of itself. The offender’s ego sustained little insult admitting to his robbery behavior. But the ramifications of admitting that he was sexually attracted to or aroused by any of the victims, or that his motives for having the victims remove their clothing was in any way sexually gratifying, carries more severe consequences. It is not as settling on one’s ego to admit that he had sexual intent, that he was sexually aroused, or that he may have committed a sexual offense. The offender may fear that he would be charged with a sexual offense if he admitted the sexual interest or intent. In addition, in many states, he would have been labeled a sex offender, undergone a sex offender assessment (which he indeed was ordered to do), face possible recommendations of having to participate in sex offender treatment, and be assigned a risk level to warn the community of his impending release and face other community notification procedures. So as you can see, the offender has little to gain by admitting any sexual intent or sexual behavior in his offense.

But how could he force the victims to remove their clothing and not have at least a small degree of sexual intent? That would be highly unlikely.

An important fact here is that after examining several of the robber’s previous crimes, the pattern of having the victims remove their clothing escalated to using the clothing to bind the victims. All of the primary victims (store clerks) were female. The escalation involved having the females bound with their own underwear.

Clearly the offender’s behavior is escalating into direct sexual intent and sexual behavior.

The other side of this dilemma is the victim’s perception. In fact, the victim’s perception is an important factor determining what type of crime was committed. For example, consider sexual and nonsexual harassment, or even exposing one’s genitals in public. It does not matter what the offender’s intentions were. What the victim perceived to have occurred and how the victim was impacted or harmed is significant when determining if the crime was sex-related. Other crimes, including domestic abuse and sexual offenses, rely heavily on the victim’s perception rather than on the accused ofwww.acfei.com

fender’s explanation. One of the reasons the offender’s explanation is less credible than the victim’s is that at times the accused has little to gain by being honest. The accused would certainly be prosecuted much easier if he or she confessed, and if he or she does not cooperate by providing a confession, the offender hopes to make a plea that lessens the punishment or perhaps even results in pleading guilty to a much less serious crime.

Consider the victim’s perception and experience of the offense. If the victim believes that he or she is being harassed or abused, it is likely that in some way he or she is. For the man who was accused of exposing, he may claim that he was simply urinating in public. But what is the difference? Whether he intended for anyone to see his penis may be an important question to determine whether the offense was primarily sexual in nature or simply a functional component to urinating. The bottom line is that regardless of whether he intended to expose to anyone, he was aware that someone might see him. And it is no accident if someone does see him. If he urinates outdoors, there is a high likelihood that someone may see him. If he chooses to urinate outdoors in the city, the chances of being seen are greatly increased.

Regardless of his motives, however, anyone seeing him may have been victimized, and the scope of the victimization varies widely depending on numerous factors including the victim’s perceptions, personalities, experiences, and general psychological well being. The victims have no way to know whether the man will rape or assault them, whether he is simply exposing himself, or whether he was in fact simply urinating in public. Regardless, the victims were affected; they saw the man’s penis, and therefore the offense was sexual in nature. The bottom line is that the offender chose to expose his penis regardless of his intent to be seen, and he was seen. In this case he should be charged with a sex offense in addition to the public urination.

Also, many offenders do not consider their criminal behavior to be criminal or wrong. Many justify their actions and blame the victim or circumstance, such as being under the influence of drugs or alcohol, for “causing” them to behave as they did. But the reality is that they engaged in behavior that caused someone to feel victimized and/or to have experienced psychological, physical, or sexual harm. I (800) 592-1399

do not believe that anyone would disagree that if someone forced you to remove your clothes, that you may experience at least some sense of having been sexually violated. Even worse, you also may fear being raped in that situation. In the robbery case example, at least one of the female victims believed that she was, in fact, going to be raped. Given she was forced to remove her clothing and was bound, why would she not think that she might be raped? Imagine the impact the victims experienced of not knowing if they were about to be raped.

It appears highly likely that the robbery example involved sex offense intent and behavior. The next question is identifying the role that the sexual behavior played in the offense and for the offender. Was the sexual behavior secondary to the crime of robbery or was it functional for a separate sex crime?

The secondary role of the sexual behavior (having the victims remove their clothing and being bound) does, in fact, appear to play a functional role for the modus operandi to facilitate successful escape. The offender’s selection of only female victims (all of the employees robbed were female) increases the likelihood that the offense involved at least some degree of sexual fantasy or sexual intent. Although the apparent primary offense was robbery, the offense behavior still had sexual intent.

Opportunistic or Predatory Professionals tend to agree on the basic definitions of “predatory” and “opportunistic” when applying the terms to sex offenders.

However, even when examining what appears to be a clear case of opportunistic or predatory behavior, questions can remain about what degree of premeditation occurred as part of the offense.

Opportunistic sex offenders select their victims more as a lucky find than as a preplanned selection process. While these offenders may have been on the lookout for a place to offend, or waiting for the “right time,” it is merely chance that they selected the particular victim or situation. They may be out in the community shopping, with no intention of offending, and then see a particular victim type and decide to offend. Their offense is not premeditated; they did not set out that day to rape, but circumstances occurred that this offender type chose to act upon.

“Opportunistic” does not in any way mean the offender is not dangerous, but

rather the offender may act more on impulse and react to situations rather than plan the offense. These offenders are still fully responsible for their offense behavior.

The following example best illustrates this point. A burglar who enters a home with the intention of only stealing, but finds a victim sleeping and then decides to sexually assault the victim, is likely an opportunistic offender. However, if the offender was aware that the victim was home, and if he or she was in any way sexually interested or aroused by the victim, a decision to sexually assault the victim may have come before the offender entered the house. In this case, it would not be opportunistic because the offense situation already included the forethought of rape.

The offender may have intended only to steal, but was aware that he or she was sexually interested in the victim. The line becomes gray here as to whether the intent was to commit a predatory sex offense or whether the primary goal involved theft, and that the sexual behavior occurred as an afterthought. The offender found that his or her situation allowed an easy opportunity to sexually offend. However, one must be careful not to base a decision on whether a crime was predatory or opportunistic solely based on the offender’s statements. As mentioned earlier, the offender may have personal and legal reasons not to be honest. Regardless of whether the crime was primarily motivated by robbery or by sex, the crime is both a non-sex and sex-related offense, and the offender should be charged with both the robbery and sex offense.

A predatory sexual offense involves planning on the part of the offender. They plan the offense, select their victim, and perpetrate the crime. This can be much more clear and easy to determine.

Confusion Other examples of cases that are difficult to determine whether an offender is opportunistic or predatory in nature involve incest and intra-familial sexual offending.

Some offenders are both predatory and opportunistic sexual offenders, even when the same victims are molested over a period of time.

Consider a case where a young male sexually abused his younger sister over at least a ten-year period. The sexual abuse involved psychological coercion and at times violent force. He would even have others sexually Fall 2009 THE FORENSIC EXAMINER® 49

molest the victim at the same time he was molesting or raping her. He appears to be an opportunistic sexual offender in that the initial selection of his sister as a victim was likely out of the ease of access he had to her. On the other hand, he reported he was angry with her because she was spared most of the physical and emotional abuse from their mother, while he and his other siblings would get physically and emotionally beaten regularly. With anger and revenge entering the clinical picture, his offense also becomes one of a predatory nature. This offender is both an opportunistic and predatory offender.

Consider another example. The offender breaks into a home and, while stealing items, sees the homeowner naked in the tub or in bed. If the offense occurred when the offender did not believe anyone was home or believed the owners were sleeping and not likely to have contact with them, then sexual offense was not likely the motive; if sexual contact occurs, it would more likely be opportunistic in nature. On the other hand, it is difficult to prove that the offender was not considering raping the homeowner from the beginning of the offense, knowing that the offense occurred when the offender was aware the owner was present. Most burglars case the home before entering it to ensure no one is home. At the point the offender deliberately engaged the victim, then the intent becomes more deliberately sexual in nature, even if upon entering the home no thought of rape occurred. Consider again that the robber who forces the victims to remove their clothes may not have intended to sexually assault them, and it is certainly possible that he had no sexual motivation. He may simply have wanted to slow the victims down to increase his chance to escape. However, it does not imply that the offender should not be charged with a sexual offense.

He should be. His case is no different than when a drunk driver causes an accident— the drunk driver may not have intended to cause an accident, but chose to drive while under the influence, knowingly taking significant risks with the safety of others, and therefore should also be charged with assault or manslaughter.

Conclusion Many offenses appear to be primarily nonsexual in intent when, in fact, they are highly sexually motivated. Did the robber experience any sexual interest or arousal towards 50 THE FORENSIC EXAMINER® Fall 2009

the victims that he bound naked? The victims were clearly sexually violated. One even feared that she would be raped. The offender has nothing to gain by being honest. On the other hand, the veracity of anything that the offender claims has to remain suspect. His behavior in the current offense, as well as his criminal history, suggests that he is not an honest, trustworthy person.

His word has to be carefully scrutinized.

Criminals take what they want when they want to. Not all are psychopaths; in fact some are capable of rehabilitation and of change. But the criminal who lacks remorse, who is cunning and conning, who appears to be able to talk his way out of anything, and especially those who have psychopathic traits, are extremely challenging to work with. They may successfully con even the most experienced police officer or psychologist. They are masters of deception. At times it is even difficult to determine which offenders are psychopaths, or regardless of whether they are psychopaths, to determine when they are being truthful. Numerous authors have written about the complex difficulties experienced when attempting to determine the veracity of an offender’s claims. The victim’s statements, the police description of the offense, and the offense situation often provide the most reliable information concerning the offender’s behavior and motive. The offender’s version of the offense should never be taken as being totally truthful.

It is imperative to examine the offender’s behavior, motives, victim statements, circumstances, and situation to determine the true motive behind a crime involving any incidental or direct sexual conduct. The sexual behavior may have the appearance of happenstance, or appear that the sexual

conduct occurred only to facilitate escape.

But the real meaning lies within the offender. Careful examination of the evidence and careful interviewing strategies help discern the offender’s true motives. It has been this author’s experience that any sexual contact or sexual behavior has sexual meaning to the offender, and therefore justifies labeling the behavior as sex-related and labeling the offender as a sex offender.

Many sexual offenders can be both predatory and opportunistic, depending on the circumstances and offense situation. Both the opportunistic and predatory sexual offender are equally dangerous. The predatory offender is more organized and premeditated. The opportunistic offender is more impulsive and responsive to circumstances.

However, both make a conscious decision to offend.

It is important to charge offenders with all relevant charges based on the offender’s behavior and statements. If any sexual behavior or statements are made, then the appropriate sexual charges should be applied.

Whether the sexual behavior occurred as a primary or incidental behavior, it still occurred.

References Johnson, S.A. (2005). Forensic considerations for assessing violence. The Forensic Examiner, 14(3), 7-12.

Johnson, S.A. (2007). Physical abusers and sexual offenders: Forensic and clinical strategies. New York: CRC/Taylor & Francis. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 51 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHOR

Scott A. Johnson, MA, LP, DABPS has a Master’s degree in counseling and psychological services from St. Mary’s College. He is a Licensed Psychologist (MN), a Diplomate of the American Board of Psychological Specialties in Forensic Psychology, and a member of the Society for Police and Criminal Psychology. He is an adjunct instructor at several colleges and has taught at both the graduate and undergraduate levels.

He has over 24 years of experience in the forensic field addressing abusers and sexual predators. He teaches nationwide to law enforcement, attorneys, judges, and mental health professionals. Two of his books include Physical Abusers and Sexual Offenders: Forensic Considerations & Strategies (2007) and When “I Love You” Turns Violent (1993/2005). The National Judicial Education Program for Legal Momentum is using Mr. Johnson’s textbook Physical Abusers and Sexual Offenders: Forensic Considerations & Strategies (2007) to educate judges about sexual offenders and abusers (www.njep-ipsacourse.org). Contact Scott A. Johnson at www.forensicconsultation.org.

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Law Enforcement CE ARTICLE 3: Masking a Sex Offense: When a Non-Sex Crime Really Is a Sex Crime (Pages 44-48) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com.

TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

In order to receive one CE credit, each participant is required to

This article is approved by the following for continuing education credit:

1. Read the continuing education article.

2. Complete the exam by circling the chosen answer for each question. Complete the evaluation form.

3. Mail or fax the completed form, along with the $15 payment for each CE exam taken to: ACFEI, 2750 East Sunshine, Springfield, MO 65804. Or Fax to: 417-881-4702. Or go online to www.acfei.com and take the test for FREE. For each exam passed with a grade of 70% or above, a certificate of completion for 1.0 continuing education credit will be mailed. Please allow at least 2 weeks to receive your certificate. The participants who do not pass the exam are notified and will have a second opportunity to complete the exam. Any questions, grievances or comments can be directed to the CE Department at (800) 592-1399, fax (417) 881-4702, or e-mail: cedept@acfei.com. Continuing education credits for participation in this activity may not apply toward license renewal in all states. It is the responsibility of each participant to verify the requirements of his/her state licensing board(s). Continuing education activities printed in the journals will not be issued any refund.

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1. Illustrate the importance of obtaining and utilizing official criminal records and police reports.

2. Explain the benefits and outcome of labeling and charging sex and sex-related offenses.

3. Identify how sex offenders slip through the radar.

(ASWB) This organization, American College of Forensic Examiners, Approval Number 1052, is approved as a provider for continuing education by the Association of Social Work Boards, 400 South Ridge Parkway, Suite B, Culpeper, VA 22701 (www.aswb.org). ASWB: Approval Period: 9/13/2004 to 9/13/2010. Social workers should contact their regulatory board to determine course approval. Social workers will receive 1 credit continuing education clock hour for participating in this course.

(CBBS) The American College of Forensic Examiners International is an approved provider of the California Board of Behavioral Sciences, approval PCE 1896. Course meets the qualifications for 1 hour of continuing education redit for MFTs and/or LCSWs as required by the California Board of Behavioral Sciences.

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

KEYWORDS: sex offense, investigation of sex crimes, sex-related offenses, burglary sex crime, robbery sex crime TARGET AUDIENCE: Social workers and therapists PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose.

PREREQUISITES: None

ABSTRACT Many times plea agreements create a misleading picture of the true essence of an offender’s spectra of criminal behavior. Criminal history checks result in a summarized list of pleas and convictions, but generally offer very little about what the offenses involved. The pleas of disorderly conduct and burglary often result from numerous charges, including assault and sex-related offenses. To further complicate the situation, at times crimes may appear to be non-sexual in nature when in fact they are sex-related. When sex-related crimes are not charged as sex crimes, then an offender escapes attention as a sexual predator. This article was written to highlight this problem.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 The criminal history check a. always provides an accurate picture of the offender’s criminal history. b. often underestimates the offender’s violent criminal history. c. may disguise an offender’s violent history as a result of plea agreements. d. should never be challenged. e. Answers b & c 2 The benefits of charging an offender with all apparently relevant sex-related charges include which of the following: a. The offender slips under the radar. b. The offender’s criminal history more accurately reflects the offender’s sex and non-sexrelated behavior and motives. c. Offenses that do not appear as sex-related but in fact are sex-related will be identified. d. Answers b & c. e. Answers a & c.

3 A burglar who fondled the victim during the course of the burglary is not a true sex offender and should not be charged with a separate sex offense. a. True b. False

4 Sex offenders slip through the radar by a. concealing their sexual behavior or motives. b. blaming alcohol or the victim’s perceptions. c. denying any sexual arousal to their victims. d. offering explanations to justify non-sexual intent for forcing their victim to remove clothing. e. Answers b & c. f. Answers a, b, c, & d. g. Answers b & d.

5 Having the victims remove their clothing to allow the perpetrator to escape has no sexual component. a. True b. False 6 Charging offenders with all of the crimes involved in their offense (e.g., assault, DWI, sex assault) helps ensure that the offender’s span of criminal interest and activity are documented. a. True b. False

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1. Information was relevant and applicable.

2. Learning objective 1 was met.

3. Learning objective 2 was met.

4. Learning objective 3 was met.

5. You were satisfied with the article.

6. ADA instructions were adequate.

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8. Article was fair, balanced, and free of commercial bias.

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Statement of completion: I attest to having completed the CE activity. Please send the completed form, along with your payment of $15 for each test taken. Fax: (417) 881-4702, or mail the forms to ACFEI Continuing Education, 2750 E. Sunshine, Springfield, MO 65804. If you have questions, please call (417) 881-3818 or toll free at (800) 592-1399.

Fall 2009 THE FORENSIC EXAMINER® 51

an inience has inal sc c si n re crim of fo impact on The field gnificant alistics si in m ly ri g c n si e crea . Polic m lu u s unite ic e rr rs u on cou ti justice c a ig st e v s. Active inal in and crim curriculum micide th o b ge ho and brid s (i.e., simulation and moot court g in rn a le n excavatio multiple learning gravesite l to a e p p a s) ing expesimulation ingful active learn l envin a ucationa styles. Me e the ed dent survey c n a h n e riences dded stu aAn imbe vesite exc ronment. ing a gra rn la e u c n m o si c t g n learnin e assessme n e sc is h e T ns. d crim perceptio vation an s student te gned to a si lu e a d v s e tion tion wa a lu a v arning e e avation le s. c x summativ e te si e gie grav onal strate assess the d instructi n a n o ti la simu

52 THE FORENSIC EXAMINER速 Fall 2009

Police Criminalistics:

Learning Modalities and Evaluation

By Thomas E. Baker, MS, MEd, CAGS

www.acfei.com

By Thomas E. Baker, MS, MEd, CAGS

CASE STUDY

This article is approved by the following for continuing education credit: (ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

After studying this article, participants should be better able to do the following: 1. Identify the concept of a learning simulation.

2. Define an organizing center.

3. Describe the elements of a learning objective.

4. List the elements of kinesthetic learning modality.

5. Cite the various learning modalities.

6. Distinguish the role of formative evaluation.

7. Illustrate the role of summative evaluation.

8. Describe the role of the case study supporting method.

9. List the principles of the visual inspection and walk-through preliminary search.

KEY WORDS: criminalistics, forensic science, active learning, learning simulations, case studies TARGET AUDIENCE: Criminal investigators and educators PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose.

PREREQUISITES: None

INTRODUCTION & OVERVIEW Criminal justice and forensic science programs have overlapping and related curriculum requirements. The former concentrates on the investigative process and crime scene coordination, while the latter is primarily concerned with scientific analysis. Innovative scientific technologies have altered approaches police investigators employ to perform their investigative mission.

Forensic advances require classroom lectures and the application of academic concepts to facilitate active learning simulations.

Active learning simulations are widely applied in aviation and emergency medical services, but to a less significant degree in higher education. Three essential components promote successful active learning simulations: (1) active, rather than passive, learner participation, (2) learning scenarios and simulations that approximate investigator field experiences, and (3) performanceoriented behaviors.

Excellent field performance requires competent investigators equipped with multitasking, critical thinking, and problem-solving skills. Classroom lectures/instruction and content-related learning objectives help participants succeed and offer opportunities to apply knowledge in practical field simulations. Coordinated learning simulations, based on realistic scenarios, provide (800) 592-1399

opportunities to participate in superior field experiences. Instructors place emphasis on substantial team interaction and coordination with appropriate forensic specialists.

Many science courses include laboratory requirements where learners apply related theories, concepts, and knowledge; however, criminal justice instructors often demonstrate a less interactive lecture approach.

A learning simulation requires the total integration and application of concepts to related hypothetical case studies and relevant field scenarios.

The investigative process course considers appropriate investigative procedures concerning major criminal investigations.

The classroom homicide investigation and Federal Courthouse simulations focus on the preservation and admission of evidence.

An analysis of specific investigative theories, courtroom applications, and critical thinking skills serve as the foundation for the learning simulations.

The police criminalistics course requires participation in a gravesite excavation simulation where emphasis is on the coordination of physical evidence with scientific laboratories. This article focuses on a criminalistics gravesite learning simulation, its learning outcomes, and course summative evaluation.

GRAVESITE EXCAVATION CASE SCENARIO The primary purpose of this learning simulation is to assist in developing investigative expertise concerning gravesite excavation procedures. One major goal of the field scenario is to follow appropriate protocols for protecting the crime scene. Learners also complete preliminary investigative and follow-up reports and coordinate with appropriate scientific laboratories and forensic experts.

Gravesite Excavation: Learning Simulation A jogger finds several bones near a remote park area. Numerous investigative questions quickly emerge: (1) Are they human bones? (2) Can the personâ&#x20AC;&#x2122;s identity be established? (3) What was the cause of death? and (4) What other details will the crime scene reveal? At this point, the learners require basic knowledge concerning crime scene processing, and they understand the

need to coordinate with scientific experts (i.e., forensic archeologists, forensic anthropologists, forensic entomologists, and forensic odontology specialists).

The responding officer preserves the scene and notifies police headquarters. The learning coordinator dispatches the investigative and evidence teams to the site.

Twenty-six learners are assigned to one of five investigation teams and rotate through five learning stations: (1) main gravesite, (2) scattered bones, (3) dried bloodstains, (4) evidence collection and chain of custody, and (5) entomology. Each station requires evidence collection, note taking, photographing, and sketching.

Initially, the teams conduct a walkthrough preliminary search. This involves finding all associated evidence, such as missing body segments, clothing, weapons, shell casings, hair, blood, and other related items.

The search focuses on the skeletal remains and surrounding gravesite. Visual inspection involves moving outward from the center to related sites until all body parts are recovered.

Thus, the search starts at the site, moving away in the cardinal directions and fanning out away from the body (Byers, 2002).

A few samples of torn clothing are recovered nearby that appear to have been in contact with carnivores. In addition, the material appears to be cut, possibly by a sharp instrument. Student investigators respond to the scene, along with the medical examiner and forensic anthropologist.

The entire scene is initially photographed, and the skeletal remains are excavated and photographed before being transported to an imaginary city morgue.

The instructor evaluates stations 1â&#x20AC;&#x201C;5 for the successful completion of all requirements. Particular attention is devoted to appropriate evidence collection and chain of custody procedures. The primary assessment tools include the preliminary, supplemental, and related laboratory reports submitted by participants.

Designated students assume command, supervise students, and coordinate the learning stations. In addition, they arrive early and rotate through the learning stations before the simulation begins. Ultimately, everyone plays the role of evidence technician when collecting evidence samples and taking crime scene photographs.

Fall 2009 THE FORENSIC EXAMINERÂŽ 53

Table 1: Samples of Student Learning Objectives

Organizing Center

GRAVESITE EXCAVATION SIMULATION •

Describe four steps in the excavation of human remains.

•

Organize a walking ground search.

•

Describe the need to follow proper protocols once human remains have been located.

•

Describe the use of flags and wooden posts to protect the crime scene.

•

List requirements of the marked remains and their relationship to grid square and datum point.

•

List suitable containers for transporting human remains and biologically associated materials to the proper facility.

•

List the elements of chain of custody that are maintained throughout the recovery process.

Computer Applications Students play expert forensic science roles, and forensic Web sites support the excavation simulation. The gravesite excavation scenario, description of potential suspects, and related trace evidence clues provide the pathway to solving the case. Investigative leads are posted on a Web site that provides additional information for solving the mystery of the unidentified human remains. Active learning computer applications continue to expand, limited only by the participant’s imagination.

Web sites diversify the active learning process, extend the influence of the lecturer into another dimension, and build technology skills in the classroom (Smith & Benscoter, 2000). Computer technology offers opportunities for criminal justice learners to think critically and enhances the learning environment when synchronized with excellent lecture and active learning simulations.

tion and concepts around which instruction and learning are centered).

The second question, “How will you get there?” is answered by developing goals and the derived learning objectives for the gravesite learning simulation. Organizing centers enhance the learning design through the articulation and sequencing of the related goals and learning objectives. Learning objectives originate from specific goals and inform students of the standards and learning progressions.

Learning objectives, occasionally referred to as behavioral objectives, serve as learner-centered guidance. In addition, they measure specific criteria or learning competencies. Learning objectives have three parts: (1) an action verb, (2) content area, and (3) measurable criteria. Refer to Table 1 (above) and Figure 1 (next page) for related goals and learning objectives concerning gravesite procedures.

Organizing Center, Goals, Learning Objectives The police criminalistics educator poses the first basic question: “Where are we going?”

The answer determines the goals and organizing center and also defines appropriate criminalistics learning objectives related to the gravesite excavation simulation. The organizing center (gravesite learning simulation) is a goal frame of reference. The emphasis is on the focal point of instruction (i.e., the gravesite excavation simula-

Educational Foundation When students have opportunities to respond to varied instructional methods, they can assess and select their preferred instructional style. In addition, considerable research demonstrates that the use of multiple senses (including hearing, seeing, and application) increases learner retention (Emerson & Mosteller, 1998). Building a bridge from theory to practical application stimulates an effective learning response that creates student curiosity.

54 THE FORENSIC EXAMINER® Fall 2009

Students should explore theories and concepts before integrating them into their own individual learning styles (Wilkens, 1996).

Learning Styles: Learning Simulations Connection How does cognitive learning style influence learning and retention? Some learn best by listening (auditory learners), meaning they rely on hearing information from others, while other learners depend on visual presentations, such as educational videos and PowerPoint. A third type of learner depends on his/her psychomotor awareness and learns best by physical activity. Research evidence suggests that learners retain more information when all senses are involved.

The combination of auditory, visual, and kinesthetic experiences reinforces the learning process even when there is a preference for one learning modality. Researchers report that criminal justice majors respond best to a variety of teaching methods (Greek, 1995). Teaching methods that involve students in active learning (i.e., roleplaying and the application of factual and conceptual material) prove most engaging (Wilkins, 1996; Wells, 1997).

Case Study Method: Learning Simulation Connection The case study, combined with learning simulations, permits learners to apply theories to real or hypothetical scenarios and allows maximum use of the senses. Superior presentations are interactive case studies that require student participation and active learning. Students read the case, present solutions on the blackboard, then compare and contrast their decisions.

Approximately ten lead-up case studies form the foundation for the gravesite learning simulation. The learning progressions specifically relate to skills required for successful completion of the weekend gravesite excavation simulation.

Case studies and scenarios encourage learner activities that enhance the learning process. Group dynamics and active learning simulations offer opportunities for involvement, expression, and development. The emphasis is on the integration of concepts, analysis, and problem-solving related to addressing the presented scenario.

Examples of learner preparation case studies include (1) chain of custody, (2) marking and measuring the gravesite, and (3) victim identification. www.acfei.com

For example, Holkeboer (1993) suggests that when learners work as a team with case studies, a three-step critical thinking process develops where students (1) identify the core problem, (2) brainstorm possible solutions, and (3) agree on the best solution. In addition, case studies make critical thinking possible by requiring students to identify theories and concepts in authentic situations, thereby building analytical skills.

CURRICULUM ASSESSMENT/ METHODS Assessment is necessary to redirect the curriculum process and help reorient the planning process. It answers three crucial questions: (1) Has the criminalistics educator arrived? (2) Where is the criminalistics curriculum now? (3) Where does the criminalistics educator go from there? It provides the future roadmap for developing strategic goals and objectives; furthermore, it provides plans for directing learners to future behavioral objectives.

The police criminalistics course meets

the elective requirement for the criminal justice program and free area for other ma jors. Learner demographics were diverse and included majors in communication (1), criminal justice (22), political science (1), forensic chemistry (1), sociology (1), and undeclared (1). Twenty-six learners took the survey in the fall of 2006. Survey instrument questions addressed twelve general items concerning the students’ learning experiences. The Likert Scale choices were collapsed because of the small population. The overwhelming majority were not freshmen, but sophomores, juniors, and seniors, which is not surprising since this is designated as an upper-level course.

Furthermore, most respondents were male (19) and the remaining (7) female.

Survey participants responded to the items by indicating one of the following: (1) agree, (2) undecided, or (3) disagree.

The survey results indicated that 100% of the respondents agreed that they improved their knowledge of forensic evidence coordination. In addition, 88% agreed they improved their understanding of the investigative process, team investigative process, and coordination with scientific laboratories.

Moreover, 85% of the respondents agreed they improved their crime scene reconstruction skills, and 96% of the learners agreed their ability to coordinate the investigative process improved.

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Goals & Ob8ec4ves Cri4cal Thinking

Case Solving

Organizing Crime Beconstruc4on

Problem Solving

Center: Gravesite Simula4on

Evidence Collec4on

Decision Making Evalua4on Procedures

Figure 1: Gravesite Organizing Center and Goals Seventy-three percent of the respondents agreed that preliminary and supplemental investigative report assignments improved their understanding. Respondents were offered classroom lectures, hard copy models, and Web site links that supported the writing assignments. Instructors may encounter resistance to in-depth writing assignments.

Moreover, considerable support should be available concerning the completion of investigative and laboratory reports.

The survey items on learning styles revealed that approximately 12% of the respondents indicated they were primarily auditory learners, while 3l% described themselves as visual, and 50% tactile learners. Several respondents cited two categories, and the scores do not reflect their choices in the calculations of the percentages. Auditory learners appeared to have more undecided or disagree responses.

The survey question that measured preferences of the gravesite field simulation indicated that 85% agreed the experience offered insight into the scientific community.

Some contradiction to that premise is noted concerning active learning and the handson component of the course, with 92% of the respondents agreeing with the tactile (hands-on) component.

The gravesite excavation survey provided

preliminary data regarding the effectiveness of the learning process and the learning simulation approach to teaching police criminalistics. The responses measured only the opinions of the students enrolled in one section, and results generalized beyond this target audience would be inappropriate.

The purpose of the classroom survey was to illustrate how teachers might experiment in their own classrooms. The intent was not to generalize beyond these students.

DISCUSSION AND CONCLUSION This philosophy of education is based on the premise that participants learn best when they are directly involved with their own active learning. The crime problem and moot court simulations are designed to offer opportunities for realistic role applications that support critical thinking and active learning. Key critical thinking instructor responsibilities include leadership, coaching, and guidance during the case study and gravesite simulation process.

The ideal time for coaching is during the suppression hearing, before trial at the Federal Court House. Participants present evidence and the defense team challenges admissibility. The suppression hearing presents a non-threatening rehearsal opportuniFall 2009 THE FORENSIC EXAMINER® 55

Table 2: Focus Points (Concepts of Investigation and Critical Thinking) Basic Investigation Concepts Mathematical probability Class characteristics and similarity Comparison Individuality Rarity Theory of exchange and transfer Preserving the scene Photographing the scene Chain of custody Evidence control

Sources of Information Neighborhood canvas Witnesses and suspects Crime scene Gravesite excavation Autopsy second scene Suppression hearing Moot court ty to develop witness skills and teach learners how to play the various investigator and expert witness roles.

Critical thinking, active learning, and role-playing are mutually reinforcing.

Learners have diverse cognitive learning styles; varied learning strategies expand opportunities to reach the learner population.

Active instructional methods that address the learners’ affective, social, and cognitive domains have the potential to influence learning outcomes. Refer to Table 2 for an illustration of critical thinking, basic concept of investigation, and curriculum evaluation coordination.

The instructor assumes responsibility for leadership and demonstrates enthusiasm for accomplishing the learning objectives. Instructor feedback reinforces the learning outcomes. Evaluations should be diagnostic, rather than punitive, providing ongoing feedback concerning the instructor/learner process. The emphasis is not on grading, but rather on learner formative evaluation. This form of learner evaluation concerns coaching the learning responses. Quizzes, peer assessment, laboratory exercises, and case studies focus on the mastery of the learning content.

Why should educators experiment in the classroom and attempt to apply di56 THE FORENSIC EXAMINER® Fall 2009

Critical Thinking Concepts Critical thinking Analyzing evidence Defining terms Judging definitions Judging source credibility Observing and judging Observation and reports Deducing and judging deductions Inducing and judging deductions Identifying assumptions Deciding on an action

Curriculum and Assessment Curriculum goals and objectives Organizing centers Case study support Role playing Formative evaluation Summative evaluation Future and global learner changes verse instructional methods and learning simulations? Experimentation and analysis improves the quality of instruction.

Summative evaluation fosters new and improved instructional ideas and innovative learning modalities. The summative evaluation concerns the success of the course and learning simulation, not the individual learner. The assessment provides essential feedback on how to improve the curriculum and leads to final judgments concerning global effectiveness of the course and learning gravesite-learning simulation.

This course and learning simulation represents a small component of what actually occurs at a gravesite excavation. However, the learning process encourages insight into scientific community collaboration and team coordination. Coordination with

scientists and securing exceptional forensic evidence can mean the difference between a closed or cold case file.

References Byers, S. (2002). Introduction to forensic anthropology: A textbook. Boston, MA: Allyn and Bacon.

Emerson, J.D., & Mosteller, F. (1998). An interactive multimedia in college teaching. Part II: Lessons from research in the sciences. Educational Media and Technology Yearbook 23, 59–75.

Greek, C. (1995). Using active learning strategies in teaching criminology: A personal account. Journal of Criminal Justice Education 6, 152–62.

Holkeboer, R. (1993). Right from the start: Managing your way to college success (p. 4). Belmont, CA: Wadsworth, Inc. Smith, S., & Benscoter, A. (2000). Student technology skills and attitudes toward Internet based courses: The potential benefits of an internet tutorial. Journal of Criminal Justice, 22(1), 97–109.

Wells, J., & McKinney, M. (1997). Assessing criminal justice student learning styles for multimedia instruction. Journal of Criminal Justice Education 8(1), 1–18.

Wilkins, D. (1996). Are we using the wrong teaching method in our criminal justice classes? Journal of Criminal Justice Education 7(1), 23–34. n Additional photos on page 50 provided by Meagan Moran.

Earn CE Credit To earn CE credit, complete the exam for this article on page 57 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHOR

Thomas E. Baker, MS, MEd, CAGS is an associate professor of criminal justice at the University of Scranton. In addition, Tom served as a Lt. Col. (Ret.) United States Army Reserve Military Police Corps, Special Agent, and Commander with United States Army Criminal Investigation Command. His civilian experience includes having been a former police officer for Henrico County Police, Richmond, Virginia, and Montgomery County, Maryland. His research focus includes criminal investigative analysis, criminal investigation, and police criminalistics. He is the author of three books and over 125 articles.

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CE ARTICLE 4: Police Criminalistics: Learning Modalities and Evaluation (pages 50–54) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com.

TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

In order to receive two CE credits, each participant is required to

This article is approved by the following for 3 continuing education credits:

1. Read the continuing education article.

2. Complete the exam by circling the chosen answer for each question. Complete the evaluation form.

3. Mail or fax the completed form, along with the $15 payment for each CE exam taken to: ACFEI, 2750 East Sunshine, Springfield, MO 65804. Or Fax to: 417-881-4702. Or go online to www.acfei.com and take the test for FREE.

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

For each exam passed with a grade of 70% or above, a certificate of completion for 1.0 continuing education credit will be mailed. Please allow at least 2 weeks to receive your certificate. The participants who do not pass the exam are notified and will have a second opportunity to complete the exam. Any questions, grievances or comments can be directed to the CE Department at (800) 592-1399, fax (417) 881-4702, or e-mail: cedept@acfei.com. Continuing education credits for participation in this activity may not apply toward license renewal in all states. It is the responsibility of each participant to verify the requirements of his/her state licensing board(s). Continuing education activities printed in the journals will not be issued any refund.

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1.

2.

3.

4.

5.

6.

7.

8.

9.

Identify the concept of a learning simulation.

Define an organizing center.

Describe the elements of a learning objective.

List the elements of kinesthetic learning modality.

Cite the various learning modalities.

Illustrate the role of formative evaluation.

Illustrate the role of summative evaluation.

Describe the role of the case study spporting method.

List the principles of the visual inspection and walk-through preliminary search.

KEY WORDS: criminalistics, forensic science, active learning, learning simulations, case studies TARGET AUDIENCE: Criminal investigators and educators PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose.

PREREQUISITES: None

ABSTRACT The field of forensic science has an increasingly significant impact on criminal justice curriculum. Police criminalistics and criminal investigation courses unite and bridge both curriculums. Active learning simulations, i.e., homicide gravesite excavation and moot court simulations appeal to multiple learning styles. Meaningful active learning experiences enhance the educational environment.

An imbedded student survey assessment concerning a gravesite excavation and crime scene learning simulation evaluates student perceptions. This summative evaluation was expressly designed to assess the gravesite excavation learning simulation and instructional strategies.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 Which of the following describe(s) the learning simulation? a. Active learning b. Passive learning c. Field oriented d. a & c e. None of the above

4 Which of the following illustrate(s) the kinesthetic learning modality? a. Auditory b. Psychomotor c. Visual d. None of the above 5 Which of the following illustrate(s) the various learning modalities? a. Auditory b. Visual c. Physical d. All of the above e. None of the above

2 Which of the following illustrate(s) an organizing center? a. Learning objectives b. Curriculum goals c. a & b d. None of the above

6 Which of the following illustrate(s) the principles of the visual inspection and walk-through preliminary search? a. Moving outward b. From the center c. Moving away from cardinal directions d. All of the above

3 Which of the following illustrate(s) the learning objective? a. Action verb b. Content area c. Measurable criteria d. All of the above

EVALUATION: Circle one (1=Poor 2=Below Average 3=Average 4=Above Average 5=Excellent)

PAYMENT INFORMATION: $15 per test (FREE ONLINE)

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Name:

State License #:

Phone Number:

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1. Information was relevant and applicable.

2. Learning objectives were met.

3. You were satisfied with the article.

4. ADA instructions were adequate.

5. The author’s knowledge, expertise, and clarity were appropriate.

6. Article was fair, balanced, and free of commercial bias.

7. The article was appropriate to your education, experience, and 8.

licensure level.

Instructional materials were useful.

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Statement of completion: I attest to having completed the CE activity. Please send the completed form, along with your payment of $15 for each test taken. Fax: (417) 881-4702, or mail the forms to ACFEI Continuing Education, 2750 E. Sunshine, Springfield, MO 65804. If you have questions, please call (417) 881-3818 or toll free at (800) 592-1399.

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Fall 2009 THE FORENSIC EXAMINER® 57

By Heidi Bale, RN, CFN

CASE STUDY

Planes, Vans, and Automobiles: Medical Escort of the Forensic Patient At some point in your correctional healthcare career, you may be asked to accompany a forensic patient. The definition of forensic, in this context, refers to the patient who is in the custody of law enforcement or a correctional system.

It may be from your institution to another facility, or a return to your institution from another location. For those correctional medical staff that have not practiced outside the clinic or treatment area, this can produce anxiety. The stable, secure environment of the clinic or infirmary becomes an unpredictable and mobile one, and help is not always readily at hand.

This article will discuss pre-transport planning, potential interventions during transport, and delivery of the patient. This information will equip staff to confidently develop the skills needed to safely escort the forensic patient, whether they are based in a jail facility or prison institution. These tech-

58 THE FORENSIC EXAMINER® Fall 2009

niques can apply to intra-system transports as well.

Your Mission, Should You Choose To Accept It Patient transfers begin with a request for patient movement. This contact may be initiated by transportation staff or a facility. Data to gather immediately includes the name of the patient, nature of the illness or injury, why the need for medical escort staff, the location of the patient and intended destination, date to be moved, current treatment plan, and any follow up care needed. If the patient is incarcerated in your correctional system, print out a “snap shot” of his or her care while incarcerated, and note the demographics. If the medical record is stored at your location, it is helpful to mail it to the receiving facility prior to the patient’s arrival.

Patient Placement Placement is determined after reviewing data submitted by the sending facility (hospital, prison, jail, or mental health facility), and in speaking with the appropriate correctional transportation staff. A good rule of thumb is to routinely request a copy of the booking sheet (if moving from jail to jail or jail to prison), a copy of the medical records, and medication administration record (MAR). A decision is made based on the patient’s needs: inpatient or infirmary care, outpatient care, mental health services, or acute offsite care. These necessities can include services as diverse as dialysis, obstetric care, cardiac surgery, and physical therapy. The need for a major medical center to be nearby will also factor into the equation. Keeping these factors in mind will assist you in placing the patient in the appropriate facility for continued care.

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Plane, Van, or Automobile?

If the transportation will be within your region, a car or van will generally suffice. You may need a van that is wheelchair accessible instead of the usual passenger van. The patient must be able to sit up and wear a safety restraint. Also keep in mind the terrain to be covered (such as desert, mountain, or the possibility of inclement weather), route to be followed (EMS accessibility, rural roads versus interstate highways), and any planned stops for a restroom break or care interventions.

Out-of-state transportation generally involves air transport, either commercial or small plane. Air transport involves both altitude and space constraint considerations. Despite cabin pressurization, the aircraft cabin environment is different from that at ground level. Commercial aircraft cabins are pressurized for 6,500 to 8,000 feet depending on the aircraft; smaller aircraft can alter their cabin pressure with a bit more leeway as needed. (Keep in mind that flying lower will generate more fuel stops, which increases barotraumas from more take offs and landings.)

Due to the flight environment, there is virtually no water vapor or moisture in the air, and the partial pressure of oxygen is reduced, which can cause relative hypoxia. The reduced barometric pressure can exacerbate or create acute complications for those patients with respiratory or cardiac ailments, head injuries, and orthopedic conditions.

Contraindications for Flight The patient must always have a physicianâ&#x20AC;&#x2122;s approval to travel, especially by air. Escorting a forensic patient is not comparable to an aero medical transport by a professional service.

There are medical contraindications to flight, especially for those not traveling by a professional air medical transport. These contraindications include recent myocardial infarction; significant surgical procedures; cerebral vascular events; head injury, including cranial and facial fractures; blood clots; being acutely ill or non ambulatory; fractures, including compartment syndrome; having a contagious illness; and anemia. Medical staff would be wise to also consider acute mental health illness and dental conditions that can be affected by barotraumas. If these conditions are present, the options are to refer them to a professional transport company, or wait until the patient is recovered sufficiently to fly or travel by ground.

Keep in mind that the elevation of limbs for casts and splints is prohibitive in commercial aircraft and challenging in smaller aircraft.

Drainage bags, catheters (both should be emptied before flight), and complicated dressings (800) 592-1399

are challenging in small spaces or tiny restrooms (private aircraft may not have a restroom). Decreased oxygen saturation at higher altitudes creates more cardiac workload on a patient who may already be stressed from a medical condition.

Bridging the Gap Ensuring continuity of care is a primary concern. Gathering data from the sending facility and relaying it to the receiving facility can be challenging. Document all contact persons, dates, fax and phone numbers, and information received. After gathering a snapshot of the patient to be transferred, contact the facility that is the most appropriate for receiving the patient.

If your healthcare or correctional system has an Fall 2009 THE FORENSIC EXAMINERÂŽ 59

electronic health record, this makes sharing information easier. Make sure that medical records are exchanged according to HIPAA standards. Whenever possible, speak with the healthcare manager, onsite physician or psychiatrist, and nurse manager for direct patient information. A staff to staff report is encouraged, and the numbers and contact information are shared with both institutions. Upon acceptance of the patient, the planning for transport moves forward.

During this entire process, communication is ongoing with transportation staff regarding the destination, patient’s needs, and information related to their safety. It is a good idea to document who accepted the patient at the facility and any reference numbers for contact during transport.

Whether by Land, Sea, or Air… The patient’s medical issues will dictate the equipment carried, but there are some basic items that should be carried during each trip. A rescue mask, gloves, antiseptic wipes, etc, are carried in a fanny pack or small bag. A larger, more inclusive bag may include a stethoscope, blood pressure kit, penlight, duct tape, scissors, pen/paper work, cell phone with contact numbers, and a bottle of water. Other items may be added depending on the patient’s needs. These can include a glucometer and supplies for a diabetic, with a sugar source like a tube of frosting or honey; a urinal (for small aircraft), zip ties, plastic baggies; moisture proof pads; and a pulse oximeter (borrowed from a facility). An oxygen cylinder, nasal cannula, and facemask can be borrowed for special transports as back up, making sure that the oxygen cylinder is flight certified.

An example of a patient-designed transport bag includes items needed for a patient with a fractured, wired jaw: wire cutters (sent through airport screening with transportation staff ), biohazard bags, gloves, airway maintenance supplies, airsickness bags, straws, and plastic spoons. Small packets of wipes are also a good idea. These supplies can easily be incorporated into an existing transport bag.

“The Bird Is in the Air.” When transporting a patient, a few small details should be kept in mind. How is the patient going to get from the facility or hospital bed to the plane? How are they going to get from the curb, through the terminal, to the gate, and on to the plane? You may 60 THE FORENSIC EXAMINER® Fall 2009

need to rent a vehicle on arrival in order to travel to the patient’s location, and transport you and your patient from the facility to the plane, when you are traveling on commercial flights. For smaller aircraft, arrangements should be made to have transportation available at the airfield (perhaps through a local service), or have the patient delivered to the aircraft. (These arrangements are made by transportation staff with input from medical staff.) Consider requesting a van or small sports utility vehicle, as they are easier to transfer a patient into and out of, especially for a patient with restraints and in a wheelchair.

After check-in at the terminal, you will accompany your transportation staff and patient to the screening area. It is a good idea to have a small blanket to drape over the patient’s lap in order to shield the restraints from the public. Due to their law enforcement status, your group will be screened in a different area. At the gate, transportation staff will generally speak to the gate agent to explain their status, and you will board first. At the completion of the flight, you may deplane last.

“De Plane! De Plane!”

Now that your patient is settled in his seat, it is a good time to look around and see where the emergency equipment is stored and introduce yourself to the flight crew.

When necessary, advise the flight attendants of any possible medical issues that may arise during the flight. On a smaller aircraft, talk with the pilots about any concerns; they are more than happy to assist. An oxygen cylinder, AED, and medical supplies are usually located in First Class and near the rear galley on commercial aircraft. The pilots on a small aircraft will show you how to exit in an emergency and where emergency equipment is located. Depending on the needs of your patient, have a plan in mind for emergencies before you leave for the airport. Do you need a snack for

a diabetic patient? Medication, oxygen, or wire cutters for that wired jaw? Play with a few scenarios in your head before the day arrives to make sure you are ready to handle an event during transport. The patient will be seated next to security staff, but you will generally have line of sight.

“The Eagle Has Landed.”

After the plane has landed, contact the receiving institution with an update on the patient’s status, and an updated ETA. Upon arrival at the destination, deliver any medical records you have transported, give onsite medical staff a report, and provide contact information for the sending facility in case they have questions.

Many physicians and hospital staff are unwilling to discharge patients to a correctional environment, feeling that the patient will be returning to a cell, without medical care or medical supervision. It is up to you, the liaison, to communicate the level of care and quality of correctional healthcare given at the receiving facility. This information should include details regarding inpatient care, outpatient clinics, visiting specialists, and services provided, such as physical therapy or dialysis. As a rule, encourage a physician to physician communication prior to transport.

Thoughts for the Road Be prepared. Communicate. Remember that you are a team member with the correctional transportation and security staff; work with them hand in hand. Have fun.

Be safe.

Special thanks to: Transportation Unit, Washington State Department of Corrections; Aviation Section, Washington State Patrol; Executive Flight, Inc. n

ABOUT THE AUTHOR

Heidi Bale, RN, CFN, is currently employed by Harbors Home Health and Hospice in Hoquiam, Washington. She has held certifications in Emergency Nursing and Correctional Healthcare, and she currently serves on ACFEI’s Board of Forensic Nursing.

Ms. Bale has a 26-year career in Nursing, with practice in critical care transports, forensic patient transports, emergency nursing, and correctional healthcare. Ms. Bale will be presenting at ACFEI’s 2009 National Conference in Las Vegas. She can be reached at junglenurse@comcast.net www.acfei.com

CERTIFIED FORENSIC NURSE, CFN

®

New Opportunities in a Growing Field: ACFEI’s Forensic Nursing Program The term “forensic nursing” was first used in the early 1990s and originally focused on sexual assault nurses. Since then, the term has taken a broader meaning and now refers to nurses with specialized training that includes forensic evidence collection, criminal procedures, legal testimony expertise and medicolegal death investigations, and providing care for victims of violence. Forensic nursing is an exciting and rapidly growing specialty field that offers great opportunities and rewarding career options for nursing professionals. However, it can be challenging to set yourself apart from your peers to get the recognition and respect you deserve, both in the medical community and the legal arena.

Though this highly specialized designation of nursing is an emerging specialty not yet mainstream in most hospitals, this only increases the vitality of a quality forensic nursing program. ACFEI’s Certified Forensic Nurse, CFN® program was established in 2004, and the program has now expanded to include a new Introduction to Forensic Nursing course. This new course will count toward one of the prerequisites for the certification and helps ACFEI continue to provide the highest quality training for the forensic nursing profession.

The Certified Forensic Nurse, CFN® program provides the resources necessary for nurses to care for the health and legal needs of vulnerable populations and victims of violence. The Introduction to Forensic Nursing course covers a variety of specialty areas.

The course addresses the history and processes of forensic nursing, specifically looking at violence and victimology; injury identification, interpretation, and documentation; criminalistics, evidence, and forensic science; and nursing and the legal interface. The certification exam further provides nurses with the knowledge and training necessary for this growing and competitive field of nursing. Earning the CFN designation demonstrates to a nursing professional’s colleagues, patients, clients, employers, and the health care community that he or she has an extensive base of knowledge and education, direct professional experience, and a commitment to continuing education and excellence within the forensic nursing profession. The CFN designation can also help contribute to the weight and relevance of the Certified Forensic Nurse’s testimony and the applicability of the evidence that the nurse presents in a court of law.

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“It was my distinct pleasure to have taken part in the Introduction to Forensic Nursing Course. Working my way through it, I found that I needed to call upon my many years of nursing study and practice, as well as my Master’s studies in criminology to tie in these two important areas toward forensic nursing.

The course itself was well organized into pertinent topics that made the study very clear and easy to follow and understand. In these times when factual evidence is so crucial to the lives of the people that we serve, this course is a well-spring of knowledge and resource. Not only do I now feel confident in the course matter, but I have ready references to details that I may be called upon to use at some time in the future. I now look forward to becoming a Certified Forensic Nurse. Thank you for making this possible.”

—Dana Galloway, MS, RN, CDP-I

Fall 2009 THE FORENSIC EXAMINER® 61

INTERVIEW

CFN in Context: An Interview with Dr. Dianne Ditmer Dianne Ditmer, RN, PhD, CFN, DABFN, CMI-III, CHSIII, SANE, FACFEI, is a certified forensic nurse and clinical educator at Kettering Medical Center in Dayton, Ohio, with a background in emergency nursing, risk management, and medical error investigation.

Dr. Ditmer is committed to improving the quality of care provided to vulnerable populations and victims of violence through education of multi-disciplinary professionals. Dr. Ditmer was appointed to the Governor’s Taskforce on Child Abuse and Childhood Trauma. She collaborates with educators, law enforcement, and legislative members to develop evidence-based educational programs for school systems, healthcare providers, and foster families. In addition to her role as an educator, Dr. Ditmer provides direct care for living victims of abuse, neglect, and sexual assault.

With 30 years of experience as an RN, Dr. Ditmer has worked as a Nurse Resident in a Trauma Center for one year and has also been an Emergency Department Nurse manager for 7 years and a Sexual Assualt Nurse Examiner for 8 years. As a credentialed Fellow of the American College of Forensic Examiners Institute (ACFEI) and Diplomate of the American Board of Forensic Nursing (DABFN), she serves as chairman of the American Board of Forensic Nursing and board member of the Ohio Healthcare Taskforce on Family Violence. As a member of the Montgomery County Sexual Assault Response Team and contributing author of the Montgomery County Sexual Assault Protocol Manual, Dr. Ditmer collaborates with members of law enforcement, coroner’s office, and the prosecutor’s office. She has been an integral part of the forensic nursing program as author of ACFEI’s Intro to Forensic Nursing course, and has seen the benefits of the certification firsthand.

62 THE FORENSIC EXAMINER® Fall 2009

What is the importance of forensic nursing and how did you first become involved with the this program?

Six thousand acts of violence are committed every day across the United States. Victims of rape, abuse, neglect, and trauma occupy beds in our medical centers, clinics, and private practices. Victims are much more than faceless numbers; they are our patients. They come to us with acute injuries exacerbated by chronic illness and social issues. They are physically fragile, emotionally devastated, and experience extreme humiliation and denial. Nurses, by training and a commitment to excellence, apply the foundations of physical, biological, psychosocial, and spiritual aspects of man to the evidence-based investigation and treatment of vulnerable populations. Forensic nurses are in a unique position to make a difference in the lives of our patients through prevention, community and family education, and early identification and universal screenings.

Multidisciplinary collaboration and intervention through comprehensive utilization of community resources are foundational to the health of our patients and the safety of our society.

Awareness of the prevalence of violence and the opportunity to care for victims launched my personal interest in developing focused curriculum that would provide a broad-based introduction to forensic nursing. Developing a program that allows nurses to investigate the application of forensic principles and standards of care while integrating this contemporary science into the nursing process will result in better patient care and evidence-based practice.

How does forensic nursing as a specialty fit into the medical world today?

Forensic nursing is the application of the nursing process to medical and legal investigations. Nurses apply forensic aspects of healthcare to the scientific investigation of trauma, abuse, violence, death, and criminal activities related to medical-legal issues.

We care for vulnerable populations, both living and deceased, and apply the foundations of physical, biological, psychosocial, and spiritual aspects of academic training to the scientific investigation and treatment of physical or emotional injuries. Based on the nursing process, forensic nurses perform a thorough assessment, identify injuries or wounds, and document our findings. The forensic nurse’s unique ability to obtain and document information ensures that evidence is secured for further forensic analysis.

As advocates for our patients and advocates for the truth, forensic nurses are healthcare’s response to violence based on specialized knowledge and clinical training to do the following: • examine and care for individuals through the lifespan, including victims and perpetrators.

• collaborate with multidisciplinary colleagues.

• offer consultative services to physicians and law enforcement agencies.

• identify, collect, and preserve evidence.

• interface with the Judicial System by providing expert testimony.

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CERTIFIED FORENSIC NURSE, CFN® How would you describe the role of the forensic nurse in the major types of medical/legal forensic cases and engagements?

Forensic nursing combines the traditional nursing process with the principles of forensic science and criminal justice when caring for the most vulnerable—victims of violence; investigating legal matters; evaluating product tampering and liability; leading death investigations; and investigating child and elder abuse, custody matters, and domestic violence and trauma.

There are many sub-specialities within forensic nursing, which allow for a multi-disciplinary approach and collaborative practice in which knowledge and responsibility are shared in order to reach common goals.

Specialities include: Sexual Assault Nurse Examiner (SANE) Domestic Violence Forensic Nurse Forensic Pediatric Nurse Forensic Nurse Examiner Nurse Death Investigator Forensic Psychiatric Nurse Forensic Clinical Nurse Specialist Forensic Nurse Educator/Researcher

Nurse Attorney Police Nurse Forensic Geriatric Nurse Legal Nurse Consultant Nurse Coroner Forensic Nurse Consultant Correctional Nurse Disaster Response

The common thread for all forensic nursing sub-specialities includes specialized education and experience, conducting research in their area of expertise to substantiate evidence-based care, testifying in legal matters, identifying and evaluating injuries for all types of crimes and all patient populations, and taking care of legal and healthcare needs.

Forensic nurses, based on expertise and specialized knowledge, benefit the patient populations they serve in the following ways: • recognizing and caring for vulnerable populations, including those who are incarcerated or mentally ill, abused or neglected children, the elderly, or victims of intimate partner violence • providing specialized nursing care for living and deceased.

• determining unsafe conditions and products resulting in injuries or death.

• investigating product tampering or toy-related injuries and deaths.

• dealing with hazards in the workplace including equipment, toxins, and violence.

Supporting the community is also an essential role of forensic nurses. They educate other healthcare professionals based on identified community health needs, risks, or crime data. Forensic nurses also benefit the legal community by serving as liaison between healthcare and the justice system. They bridge the gap between nursing and law enforcement with their ability to collect and preserve evidence in the following ways: • gather critical information and evidence based on clinical assessment.

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• identify injuries from weapons or human abuse.

• interview patients to evaluate method and mode of injury.

• determine whether injury or death can have forensic implications.

• testify to the medical findings and evidence collected.

What are some of the focal points of the Introduction to Forensic Nursing course?

Introduction to Forensic Nursing allows nurses to investigate the application of forensic principles and standards of care while integrating this contemporary science into traditional healthcare.

Meeting the healthcare and legal needs of vulnerable populations and victims of violence through the lifespan is explored with prevention and intervention as the focus. Topics include assessment and interview strategies with consideration of physical and cognitive limitations, age specific needs, gender-related concerns, and ethnic- and cultural-specific risk factors. Red flags and warning signs of school violence as well as individual and community strategies to prevent youth violence are evaluated. Physical, emotional, and psycho-social implications of children witnessing acts of domestic violence are explored. Wound and injury identification is included to provide an in-depth comparative focus on traumatic wounds indicative of abuse, self-inflicted injuries, and anticipated, age-specific injuries. Cause, manner, and mechanism of death are examined in relationship to working with the coroner’s office. Documentation skills and evidence collection techniques are enhanced while learning about individualized examination techniques, forensic terminology, body maps, and photographic techniques that are the best practice.

This course evaluates the role of the forensically trained nurse in the courtroom and with law enforcement as supported by ethical, legal, and moral principles that guide daily practice and lifelong commitment to our patients, the victims of violence.

What is the significance of a CFN designation and how will earning this designation set someone apart from other nursing professionals?

The Certified Forensic Nurse certification credential is an important indicator to patients, employers, the public, and other professional colleagues that the certified nurse is qualified, competent, and current in this nursing specialty. Certified Forensic Nurses have met rigorous requirements to achieve this expert credential. n

To become a Certified Forensic Nurse, CFN®, a candidate must meet all eligibility criteria as established by the ABFN and ACFEI. CFN candidates must submit the completed CFN application form and payment, then successfully pass the certification examination. For more information, call us at (800) 423-9737 or check out www.acfei.com.

Fall 2009 THE FORENSIC EXAMINER® 63

The Certified Forensic Nurse, CFN Program ®

Suporting patients while protecting their rights Forensic nurses are often the bridge that spans medicine and justice. They tend to the needs of victims and help gather and protect the evidence that can lead to a conviction and ultimate justice.

The Certified Forensic Nurse, CFN® program helps forensic nurses get the respect they deserve and unites them in a supportive community of fellow professionals who are dedicated to their field.

“Forensic Nursing is a newly recognized specialty in the fields of Nursing and Forensic Sciences. The ACFEI Forensic Nursing Certification is an important credential that indicates advanced expertise and distinguishes those nurses who possess the special skills and knowledge base required in Forensic Nursing”

Call (800) 592-1399 for more information.

–Mary K. Sullivan, RN, BSN, Phoenix, AZ

Philip R. Cohen, MD

LETTER TO THE EDITOR

Forensic Dermatology and Forensic Dermatopathology: The New Frontiers in Forensic Science From the desk of Dr. Philip R. Cohen, The University of Houston Health Center, University of Houston, Houston, Texas; the Department of Dermatology, The University of Texas M.D. Anderson Cancer Center, Houston, Texas; and the Department of Dermatology, University of Texas-Houston Medical School, Houston, Texas

An 82-year-old man resides in a nursing home while he receives antineoplastic therapy for his metastatic and progressing colon cancer. He has continued to lose weight and now requires assistance with routine activities of daily living. One night, he unexpectedly dies. His family, who had visited him one week earlier, is concerned when they see that his right cheek is red with blisters; they did not receive notification that he had experienced a burn to his face and accuse the nursing home staff of neglect and possible abuse. The management of the nursing home denies the accusations.

The family concerns result in an autopsy, which confirms the man’s diagnosis of metastatic adenocarcinoma of the colon; evaluation of the right coronary artery and heart show occlusion and tis64 THE FORENSIC EXAMINER® Fall 2009

sue necrosis, respectively, consistent with acute myocardial infarction. Skin biopsies from the edge of the facial blisters for routine pathology evaluation, special stains, and cultures are performed.

Multinucleated keratinocyte giant cells are observed in the epidermis; the cells are positively stained with an antivaricella zoster antibody by the immunoperoxidase method. Subsequently, the viral tissue culture grows varicella zoster virus. The findings established herpes zoster as the cause of the man’s right cheek erythematousbased blisters and excluded the possibility of a burn, neglect, or abuse by the nursing home staff.

Forensic dermatology and forensic dermatopathology are a natural, yet currently undeveloped, extension of dermatology and dermatopathology awaiting further definition, categorization, and investigation. The tools for discovery already exist. Within the next decade, it is likely that the implementation of currently available and new techniques for the diagnosis and relevance of skin and mucosal conditions will continue to provide significant scientific advances in this promising area of forensics. n www.acfei.com

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THE DETECTIVE’S CORNER

By Shirley McCann

A Jewel of a Case The Forensic Examiner is proud to announce its new fiction mystery feature, The Detective’s Corner. Read the mystery and make your predictions.

Then go online to www.acfei.com to find the solution.

66 THE FORENSIC EXAMINER® Fall 2009

Officers Don Craig and Jack Alberts were on patrol when they received the call about a robbery at Gorman’s Fine Jewelry. Hal Tinker, the skinny, nail-biting sales clerk, was beside himself with worry when he unlocked the front door and allowed them entry.

“I didn’t know what else to do,” he told the officers, while trying to block the mass departure of the customers he’d locked in. I’ve only been on the job for a week, and the owner is gonna go ballistic when he finds out I’ve lost a valuable emerald pendant. I’ll probably lose my job over this!”

Once the officers were inside, Tinker quickly locked the door behind them.

“Have any other customers been here and left since you opened up this morning?” Craig asked.

“Not a chance,” Tinker answered defiantly.

“As soon as I noticed the necklace missing, I rushed over and locked the doors. No one got out, which means that one of these people had to have taken it.”

“This is insane!” barked an older gentleman with a wooden cane. “Surely you don’t suspect us? My wife and I have been loyal patrons of this store for years.”

“And you are?” asked Officer Alberts.

The man huffed and wrapped an arm around his wife. “We are Mr. and Mrs. John Trimble.”

He pointed a bony finger at the clerk. “And let me assure you, young man, once Mr. Gorman hears about how my wife and I have been treated like common criminals, this will be your last day on the job.”

Alberts put both hands in the air and made a suggestion. “Why don’t we just start off by having everyone tell us what they were doing here.”

A tall, leggy blonde with a large shoulder purse offered her explanation. “I’m Claire Winters,” she spat out. “I work part-time at the insurance office two doors down. I had planned to just run in here and find something nice for my boss’s birthday. But I doubt my boss is going to be too pleased with me now, since I’m already thirty minutes late.”

“Under the circumstances, I’m sure your boss will understand,” Alberts insisted.

Next on the list of suspects was a nervous young blonde mother with a baby stroller.

“I’m Sara Bealls,” she offered, with a tremble in her voice. “Little Jimmy and I just came in to use this $10 coupon I received in the mail. I

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thought I might find a good bargain, but I never dreamed we’d be accused of theft!”

Officer Craig turned to the Trimbles.

“Oh very well,” Mr. Trimble huffed, nodding toward his wife. “We might as well cooperate so we can get this over with quickly.

But I can assure you that your boss is gonna hear all about this, Mr. Tinker.”

Mrs. Trimble wiped a tear from her eye.

“Our niece is graduating in a few weeks.

We thought we might find something special for her in here. Mr. Gorman always has some unique selections on hand.”

The two officers exchanged glances. “Mr. Tinker, are you positive no one could have left before you locked the door?” Craig asked again.

“Absolutely not. These people were the only customers in the store when I brought out the locket. And no one came in after that.”

“What about a security camera,” Detective Craig suggested. “Maybe we could view that and see if the theft was caught on camera.”

Hal Tinker laughed. “Are you kidding?

Mr. Thomas is so cheap he didn’t even bother to change the name on the door when he bought it two years ago. There’s no way he’d spring for any kind of a security system.”

“Well, this obviously isn’t helping anything,” Mr. Trimble said. “I’ve never been so insulted in all my life. It wouldn’t surprise me if Mrs. Bealls pulls this kind of stunt all the time. After all, it would have been easy for her to slip the necklace from the counter into the stroller. No one would be the wiser.”

“You’ve got a lot of nerve!” Mrs. Bealls screamed. “I’ve never stolen anything in my life!”

She spun around and pointed an accusing finger at Claire. “Why don’t you show everyone what’s in your bag?” she suggested.

“You could have easily stashed the pendant in that huge purse of yours.”

“You’ve gotta be kidding, lady,” Claire said. “I would never want anything that gaudy. I prefer diamonds.”

Officer Craig turned to his partner. “It appears that everyone here had the opportunity to steal the necklace,” he said. “We could settle this quickly if everyone would just submit to a search of their belongings.”

“You go right ahead,” Mr. Trimble shouted, leaning his cane against the counter and putting his arms out. “I have nothing to hide.”

“Well, neither do I,” Mrs. Bealls exclaimed.

“Neither do I,” Claire stated firmly.

“Although I can assure you that if you lay one hand on me, you’ll be hearing from my attorney.”

“There’s no need to call your attorney,” Alberts said. “Although a search would make things a lot easier, I think we can narrow down the list of suspects by starting at the beginning.”

Officer Craig scratched his head. “You’ve got a suspect?”

“I do,” Alberts said. “And if you’d been paying attention, you’d know who the thief is too.”

The suspects exchanged worried glances.

Claire started for the door. “I’m not staying around here for this witch hunt,” she exclaimed.

“Me neither,” shouted Mr. Trimble. “I demand you open that door right now.”

Alberts caught Mr. Trimble’s arm and removed his cane. “Not so fast,” he said. He unscrewed the tip, turned it upside down and watched the necklace fall to the floor.

How did Detective Alberts know that Mr. Trimble was the thief? n Go online to read the solution! www.acfei.com

ABOUT THE AUTHOR

Shirley McCann’s fiction has appeared in Woman’s World Magazine, Orchard Press Mysteries, and Alfred Hitchcock Mystery Magazine, as well as many of the confession magazines. She is the co-founder of Sleuths’ Ink, a mystery writers group in Springfield, Missouri, where she lives with her husband of 28 years. She also has two children and one granddaughter. Shirley maintains a blog at http://cleverchronicles.blogspot.com, as well as a Web site at http:// shirleymccann.com

The Forensic Examiner’s Call for Submissions

Share your expertise—submit an article on a forensic topic for potential publication in future issues of The Forensic Examiner®!

No matter what your specialty or interest in the forensic science arena, we’re sure you have important insight and information to share with fellow forensic professionals. The Forensic Examiner® includes scientific articles, case studies, new research in the areas of forensic information, and interviews with forensic professionals, and we will accept article submissions on any topic of interest to our diverse membership base. Share your knowledge and experience with our readers!

Submit your articles to The Forensic Examiner® editorial department by e-mailing them to editor@acfei.com.

Visit www.theforensicexaminer.com or call (800) 423-9737 for more information. Any suggestions on improvements to The Forensic Examiner® publication? Please let us know; we are always open to suggestions!

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Fall 2009 THE FORENSIC EXAMINER® 67

NEW MEMBERS

Welcome New ACFEI Members!

New Members April L. Breniser Joseph J. De Natale Michael A. Groff Lawrence A. London Smita Patel Danah L. Richards Thomas W. Walters Patrick Linnenbank Abdallah Amiri Zenaida T. Asuncion Rebecca Clegg John D. Dolan Nigel A. R. Graham Akeem A. Lasisi Christine R. McDonald Zubaida Zain Glenn W. Ahava Brad Apitz James Bearup Christa V. Billeaud Dale T. Bowen Virginia E. Braden Ric L. Braun Douglas A. Brush Davina K. Burns Mrutyunjaya Chittavajhula Christopher D. Coigne Joseph T. Czaja

Terry L. Donat Robert Donegan Susan M. Downs Marilee T. Elliott Timothy M. Etheridge Paul D. Friedman Curtis L. Funke Katherine A. Gilbert Thomas Gillmore Ildefonso Gonzalez Steven R. Graboff David L. Gray Shayna T. Guidry Linda A. Huber Lisa M. Johnson Leslie J. Kallus Dennis B. Keenan Jerri Kissel Cindy L. Knight Linda E. Lewis Evonne L. Lopez Wendy E. Lyttle Manuel Mendoza Jose J. Nava Robert Peck Gary M. Poole Leon Y. Que Lisa Routh Gregory H. Salerian

David T. Schultz Larry Settles William A. Seymour Charles D. Shamburger, Jr. Lisa D. Smith Andrew M. Smullen James R. Spear Gerald A. Strag Robert J. Telfer, Jr. Moises Toledo Caridad Vasallo Cheryl Ward James L. Warner Dana M. Way Ellen C. Weld Vadon M. Willis David A. Withrow Lori K. Woodbury Nichol K. Zimmermann Earlene M. O’Brien Arthur Peoples Jermaine T. Price Avrianna Bacchiocchi Scott N. Core Mark A. Dietrich Louise L. Greene Georg Grosse-Hohl Keisha S. Harris Jose A. Nieves Romero

Karina D. Parker Robert L. Robey Soheyla Zarandi New Diplomates Stanley Friedman Alex Kwechansky Ray W. London Emil Moldovan Carl Patrasso Douglas J. Taber Mark Withrow New Fellows Margaret M. Bailey Paul L. Bailey Richard H. Bloomer Sharon J. McNair Henry Rinder Kandiah Sivakumaran Deborah A. Stone Paul Tanners New Life Members Gary M. Klein Debra M. Russell Stephen M. Russell Ray T. Weeks

THE COMMISSION ON FORENSIC EDUCATION

SM

Attention Forensic Educators The Commission on Forensic Education, developed by The American College of Forensic Examiners, emphasizes the importance of forensic science programs in education and is committed to their expansion. The Commission offers guidance on instruction, provides help to those who teach or study forensic science, and reviews professional certification programs. The Commission is an effective and essential network that helps educators and students stay informed of the latest innovations, breakthroughs, and important research in the field. Commissioner membership is open to college and university administrators and full-time, part-time, and adjunct professors; Associate Commissioner membership is SM open to high school science teachers. The Commission helps educators advance the field and inspire future forensic professionals through providing supportive services: • Helping educators network with fellow teaching professionals and top experts in the field.

• Teaching potential students about the importance and the benefits of studying forensic science.

To join the commission, apply • Giving members a highly visible forum to publish and distribute their research. online at www.forensiccommission.com • Helping members stay current in a constantly evolving field by providing quality or call Anna at (800) 592-1399 continuing education.

• Providing certification programs that recognize achievement.

68 THE FORENSIC EXAMINER® Fall 2009

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Fall 2009 THE FORENSIC EXAMINER® 69

ACFEI News

Zhaoming Chen, MD, PhD, MS Named Chair and Chief Spokesperson of The American Association of Integrative Medicine (Baltimore, MD)— The American Association of Integrative Medicine (AAIM) announced today that Dr. Zhaoming Chen, a physician from Saint Agnes Hospital, has been appointed Chair of the Executive Advisory Board and Chief Spokesperson for the organization.

Dr. Chen was selected to serve as Chair and Chief Spokesperson by the AAIM Executive Advisory Board because of his knowledge in both neurology and complementary alternative medicine, and because of his unique ability to link Eastern and Western medicine in both realms of the medical field. In his new roles, Dr. Chen will be responsible for maintaining the integrity of the organization while also assisting in the development of the national conference, developing and maintaining existing and new certification programs and online courses, and participating in continuing education activities.

“Dr. Chen is a qualified individual who exemplifies the professionalism so deeply valued in the AAIM organization,” said Dr. Robert O’Block, President, CEO and co-founder of the AAIM. “Dr. Chen’s extensive experience in both Western and complementary medicine offers him a unique perspective on health care in the United States. The American Association of Integrative Medicine is honored to have him as both the Chair and Chief Spokesperson of our organization.”

Dr. Chen received his medical degree from Shanghai JiaoTong University College of Medicine and his Ph.D. in Neuroscience from Drexel University College of Medicine. He completed his neurology residency at Georgetown University Hospital and held three fellowships that include a Neuroscience Fellowship at Thomas Jefferson University,

Senior Neuroscience Fellowship at the University of Pennsylvania, and a Clinical Neurophysiology Fellowship at Georgetown University Hospital. Additionally, Dr. Chen received two acupuncture certificates, one from Harvard University and the other from Shanghai University of Traditional Chinese Medicine. Dr. Chen is a resident of Rockville, Maryland and has been playing Tai Chi and Qigong for decades. He is part of Saint Agnes Integrative Neurology Specialists.

The American Association of Integrative Medicine (AAIM) was established in 2000 and was created as a place where professionals from Western medicine and other complementary medicine models could come together as peers to bring effective, safe, and affordable health care to their patients and clients.

Saint Agnes Hospital is a 307-bed hospital founded by the Daughters of Charity in 1862. Saint Agnes is a full service teaching hospital with residency programs in a number of medical and surgical specialties. Key services include: The Saint Agnes Cancer Center and Center for Blood Disorders, The Chest Pain Emergency Center, The Bariatric Center of Excellence, Joint and Spine Care, Cardiovascular Services, Women’s Health Services, and Seton Medical Group. Saint Agnes is a member of Ascension Health, the largest non-profit health care organization in the nation. Ascension Health is dedicated to reaching new heights in health care and service to communities, as well as serving as a model for faith-based health care throughout the world. For more information on Saint Agnes, visit www.stagnes.org. n

The American Association of Integrative Medicine (AAIM) recognizes that a multidisciplinary approach to medicine provides the maximum therapeutic benefit. AAIM’s advocacy for broader treatment options facilitates a bond between integrative and Western medicine, and the end result is a gathering place for healers, educators and researchers from all specialties to compare notes and combine forces, benefiting both the patient and the health care provider.

Join AAIM today as Board Certified in Integrative medicine, BCIMSM

70 THE FORENSIC EXAMINER® Fall 2009

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ACFEI News

Staff Represent ACFEI in DC This April, Anna Pry and Evan Clarke represented the American College of Forensic Examiners Institute (ACFEI) at the 2009 Computer Forensics Show in Washington DC. Some of the other organizations represented at the conference included groups specializing in high-tech forensic devices and computer security.

The two-day conference coincided with other topical conferences, giving Ms. Pry and Mr. Clarke an expanded opportunity to network with many individuals from around the world. Attendees from all of the conferences were able to benefit from the information that ACFEI had to offer.

From the conference, Ms. Pry and Mr. Clarke traveled to Quantico, Virginia, to visit Dr. Greg Vecchi, the head of the Behavioral Science Unit at the FBI and dedicated member of ACFEI. In order to get in to the building, the two ACFEI representatives had to be admitted through two guarded check-points, were fingerprinted, and underwent background checks. Even then, a personal escort led them to Dr. Vecchi’s office, which is located in the basement of a bomb shelter.

Dr. Vecchi graciously greeted the ACFEI representatives and explained the kind of training, research, and consultations that take place in the Behavioral Science Unit (BSU). The BSU trains new FBI agents in such subjects as applied behavioral science, juvenile crime, death investigation, and many others. The academy was full of high-tech classrooms, a full-size auditorium, an impressive library center, and a large gymnasium and swimming pool for physical fitness and training.

However, possibly the most notable section of Quantico is Hogan’s Alley, a realistic training ground built by Hollywood to give new agents a place to practice their acquired skills. The training ground was built to resemble a real small town, though its bank is robbed about twice a week for simulation purposes; Hogan’s Alley gives agents a real world view of what to expect when working in the field.

Dr. Vecchi works to build a community of new and highly skilled agents in order to advance their efficiency, and he also continues to volunteer his skills to the ACFEI. ACFEI staff ’s DC visit was a valuable opportunity to illustrate this shared devotion to excellence with the forensic community and the FBI. n

s Anna Pry and Dr. Vecchi, next to a Hannibal Lector mannequin at the Behavioral Science Unit in Quantico

YOUR SECURITY IS AT STAKE! An Essential Certification for All Who Handle Sensitive Information

Information theft, corporate espionage, and trade secret compromises are at all-time highs.

Are you armed with the training to protect your sensitive personal and business documents? ®

The Sensitive Security Information, Certified program, developed by the American Board for Certification in Homeland SecuritySM, will train you to be an effective guardian of sensitive information in all its forms. Certification shows your present and future employers that you are well-trained and dedicated to protecting information security—a sought-after skill in today’s public and private sectors.

Become Sensitive Security ® Information, Certified Today!

Call Toll-free (800) 592-1399 or visit www.acfei.com/forensic_certifications/ssi to register!

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Fall 2009 THE FORENSIC EXAMINER® 71

NATIONAL CONFERENCE / FEATURED SPEAKERS

BRIGITTE GABRIEL: ACFEI FEATURED SPEAKER IN LAS VEGAS The American College of Forensic Examiners Institute welcomes Brigitte Gabriel as a keynote speaker at the 2009 national conference in Las Vegas.

Ms. Gabriel’s authority on terrorism comes from the tragedy of personal experience. Raised as a Christian, she lived through the Islamic occupation of Lebanon as a child, narrowly surviving a bombing that destroyed her family’s home. She and her family were forced to live in a one-room bomb shelter for years as the religious attacks raged around them.

She escaped to Israel as a teenager, eventually becoming the news anchor for an Arabic evening news broadcast. In 1989, she immigrated to America and began her own television production and advertising company. Fluent in four languages, Ms. Gabriel has since become a prominent speaker, writer, and activist. After the tragedy of September 11, 2001, Ms. Gabriel turned her experiences as a persecuted Lebanese Christian into an emotional, emphatic testimony to raise awareness on the threat of radical Islam to world peace and national security.

A member of the board of Advisors of the Intelligence Summit, her New York Times best-selling books include Because They Hate: A Survivor of Islamic Terror Warns America and They Must Be Stopped: Why We Must Defeat Radical Islam and How We Can Do It. Ms. Gabriel is a prominent speaker, regular guest on worldwide news and radio stations, and the founder of American Congress for Truth. She admonishes our politically correct tolerance and lack of knowledge of Islam, asserting that their cultural invasion can do as much damage as bombs and head-on attacks. Though she regularly receives death threats from terrorists for speaking out about her experiences, Ms. Gabriel has devoted her life to educate and inspire Americans to stand up against radical, militant Islam.

“In the afternoon of September 11th, 2001, I was like all Americans, glued to my TV screen in the family room, tears in my eyes, feeling utter pain, sorrow, and helplessness over what transpired that morning . . . I knew that the same cancer that was confined to the Middle East had now spread throughout the world’s body.

That’s when I knew I had to speak up because my past is America’s future unless Americans wake up in time to see what is coming our way.” –Brigitte Gabriel

“A compelling and captivating personal story with a powerful lesson about threats to freedom in our time.”

—R. James Woolsey, Director of Central Intelligence, 1993-95

From Ms. Gabriel: This Is The New Reality (Information retrieved from www.americancongressfortruth.com) We are in for the fight of our lives. That we have not yet had another terrorist attack in the United States is remarkable, but it will happen. Al Queda keeps its promises.

How do I know this? I was born in Lebanon and raised as a Christian.

When the Lebanese Civil War broke out, our family, and our Maronite community came under vicious attack by Islamic extremists. They promised to destroy us, and as you know from the recent war in Lebanon, the country is now nearly Islamic.

I was nearly killed by a mortar. Our home was destroyed. We lived in a bomb shelter for seven years. Most of my childhood friends were killed.

That’s how I know.

We must make the connection between individual safety and a strong national defense, increase civic preparation and political responsibility, and train all Americans to become defenders of our community safety and national security.

72 THE FORENSIC EXAMINER® Fall 2009

Anguish struck the citizens of the United States of America on 9/11 as a handful of hateful men murdered nearly 3,000 innocent people. A heavy pall of grief covered our nation. Many of us wondered if we’d ever laugh again.

But 9/11 wasn’t the only act of terrorism. Bali, London, Madrid, Jerusalem... the list goes on and on. Yet the West does not fully realize the bloodthirsty intentions of the menace of fundamental Islam. This enemy—is relentless.

It is determined.

Why Does Our Struggle Matter? It Matters Because . . .

If we don’t win the war against Islamofascism, other issues won’t matter at all. We won’t have an economy to worry about. We won’t have equal rights for all. We won’t have our cherished freedom. And we will live under Sharia Law.

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FRANK ABAGNALE: ACFEI FEATURED SPEAKER IN LAS VEGAS The American College of Forensic Examiners is proud to announce that Frank Abagnale will be the keynote speaker at this year’s National Conference in Las Vegas, Nevada.

Frank W. Abagnale is one of the world’s most respected authorities on forgery, embezzlement, and secure documents. For over 30 years he has worked with, advised, and consulted with hundreds of financial institutions, corporations, and government agencies around the world.

Mr. Abagnale’s rare blend of knowledge and expertise began more than 40 years ago when he was known as one of the world’s most famous confidence men. This was depicted most graphically in his best-selling book, Catch Me If You Can, a film of which was also made, directed by Steven Spielberg and starring Leonardo DiCaprio and Tom Hanks. Between the ages of 16 and 21, he successfully posed as an airline pilot, an attorney, a college professor, and a pediatrician. Additionally, he cashed $2.5 million in fraudulent checks in every state and 26 foreign countries. Apprehended by the French police when he was 21 years old, he served time in the French, Swedish, and U.S. prison systems. After 5 years he was released on the condition that he would help the federal government, without remuneration, by teaching and assisting federal law enforcement agencies.

Mr. Abagnale has now been associated with the FBI for over 30 years. More than 14,000 financial institutions, corporations, and law enforcement agencies use his fraud prevention programs. In 1998, he was selected as a distinguished member of “Pinnacle 400” by CNN Financial News—a select group of 400 people chosen on the basis of great accomplishment and success in their fields.

In 2004, Mr. Abagnale was selected as the spokesperson for the National Association of Insurance Commissioners (NAIC) and the National Cyber Security Alliance (NCSA). He has also written numerous articles and books including The Art of the Steal, The Real U Guide to Identity Theft, and Stealing Your Life.

For more information on ACFEI’s National Conference or to register, please contact ACFEI Member Services at (800) 592-1399.

“Abagnale’s lecture may be the best one-man show you will ever see.”

—Tom Hanks

Accomplishments (Information retrieved from www.abagnale.com)

• Standard Register Company—since the early 1980s worked with and developed security features used on car titles, birth certificates, doctors’ prescription pads, negotiable instruments, packaging, and luxury items.

• Audemars Piguet—designed the anti-counterfeiting technology incorporated in one of the world’s most luxurious watches.

• Leigh-Mardon (Australia)—one of the world’s most sophisticated secure document printers and manufacturer of credit cards and smart cards.

• Novell—helped

develop identity management software used by thou-

sands of corporations, governments, and financial institutions.

Helped design the Australian passport, Australian postal money order, and numerous official international bank checks.

• Affinion Group—helped develop PrivacyGuard, a credit monitoring ser-

• The 41st Parameter—partnered with and helped develop ImageMask—

vice now used by over 6 million Americans, as well as in Canada and

software that digitally blocks information on checks and documents from

the United Kingdom.

being seen online. This technology is used by some of the nation’s larg-

• ADP—designed their current payroll check issued more than 800 million times a year for the payrolls of thousands of corporations.

• First Data Corp (FDC)—designed the Integrated Payment Systems (IPS) Check, which is currently the official bank check of over 3,000 financial institutions.

• Safechecks, Inc.—designed the SuperCheck and SuperBusiness Check considered to be the most secure checks in the world and used by thousands of municipalities, mortgage companies, title and escrow offices, and corporations.

• Appleton

Papers—designed the Frank W. Abagnale signature water-

mark paper, one of the most secure papers in the world with numerous

est banks.

• Staples, Inc.—partnered with the world’s largest office supply store bringing security products and solutions to their consumer and business customers.

• Sanford

uni-ball—helped develop the uni-ball 207 writing instrument.

The only pen in the world that cannot be altered by chemicals or solvents. Over 20 million are sold annually in the United States alone.

• In the past 31 years Mr. Abagnale has worked with 65% of the Fortune 500 Companies in America.

• Author of three books on white collar crime and identity theft—The Art of the Steal, The Real U Guide to Identity Theft, and Stealing Your Life.

• Designed

SequrZ secure number font used by thousands of corpora-

security features built into the paper stock and distributed exclusively by

tions, government agencies, and financial institutions to secure the writ-

Standard Register Company, USA.

ten and dollar amounts on negotiable instruments.

(800) 592-1399

Fall 2009 THE FORENSIC EXAMINER® 73

2009 NATIONAL CONFERENCE

SCHEDULE-AT-A-GLANCE

Wednesday, October 14 Registration and Exhibitors...............................................................12:00pm-8:00pm ABCHS Pre-Conference Session........................................................3:00pm-5:00pm Keynote Speakers: John Bridges, III, FACFEI, DABCHS, CHS-V, and LTC DE Smith, CHS-V Welcome Reception..............................................................................5:00pm-7:00pm Thursday, October 15 Exhibit Hall Opens/Continental Breakfast.......................................................7:00am General Session.......................................................................................8:00am-9:00am Catch Me if You Can, Presenter: Frank Abagnale Morning Break.........................................................................................9:00am-9:30am Breakout Session..................................................................................9:30am-11:30am The Art of the Steal, Presenter: Frank Abagnale Lunch on Own......................................................................................11:30am-1:00pm Breakout Sessions..................................................................................1:00pm-4:45pm Annual Banquet......................................................................................5:30pm-7:30pm Keynote Speaker: Peter S. Probst Friday, October 16 Exhibit Hall Opens/Continental Breakfast.......................................................7:00am General Session.......................................................................................8:00am-9:00am They Must Be Stopped, Presenter: Brigitte Gabriel Morning Break.........................................................................................9:00am-9:30am Breakout Sessions.................................................................................9:30am-11:00am Lunch on Own....................................................................................11:00am-12:30pm ABCHS Working Luncheon (Additional Registration Required)....12:00pm-1:30pm Keynote Speaker: Steven G. King, Deputy Director, Infrastructure Collection Division, US Department of Homeland Security Breakout Sessions..................................................................................12:30pm-5:30pm

Hotel Information The 2009 National Conference will be held at the Rio All-Suite Hotel. If any casino hotel embodies the rhythm and spirit of Las Vegas, it is the Rio All-Suite Hotel & Casino, where the atmosphere pulses with activity, color, and uninhibited excitement. Get swept up in the Rio’s vibrant backdrop: every room a suite, every turn a new adventure, every need fulfilled.

A special discounted group rate has been established for conference attendees. For room reservations, call (888) 746-6955, choose option #1 to connect to Suite Reservations, and reference the group code SRACFE9. Rooms are limited, so call today. The cut-off date to receive the group rate is Friday, September 11, 2009.

74 THE FORENSIC EXAMINER® Fall 2009

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THE AMERICAN BOARD OF PROFESSIONAL COUNSELORS Become a Board Certified Professional Counselor The mission of the American Board of Professional Counselors (ABPC) is to be the nation’s leading advocate for counselors. We will work with you to protect your right to practice, increase parity for your profession, and provide you with the recognition, validation, and fairness that you so richly deserve. ABPC will champion counselors’ right to practice.

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ABPC will provide you with resources, low or no cost continuing education opportunities, and a forum to network with your fellow professional counselors.

(800) 592-1125

•

www.americanpsychotherapy.com AV A

IL

Combine your expertise with knowledge of the judicial system by becoming a Certified Forensic Consultant, CFC®.

You are most comfortable and efficient in familiar surroundings: your primary field of expertise.Yet, it can be difficult to put your expertise to work if you are unfamiliar with and uncomfortable in a courtroom setting. The Certified Forensic Consultant, CFC®, program will educate you in the complexity of the American judicial system.

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(800) 423-9737 • www.acfei.com

Certified Forensic Consultant, CFC® 76 THE FORENSIC EXAMINER® Fall 2009

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By Katherine Ramsland, PhD, CMI-V

CASE STUDY

Observe Carefully, Deduce Shrewdly: Dr. Joseph Bell

s Dr. Joseph Bell

In 1877, a young Arthur Conan Doyle went to study medicine in the progressive atmosphere of Scotland’s University of Edinburgh. During his second year, he clerked at the Royal Infirmary for Dr. Joseph Bell, a lean, fortyish professor with an aquiline nose, decisive manner, and piercing eyes. Bell, a noted pathologist, was Queen Victoria’s personal physician whenever she was in Scotland, because she liked what she observed in his wards. This in itself gave him an air of authority, but he also taught “The Method”—a disciplined approach to deducing subtle facts about patients from swift, keen observation.

Conan Doyle interviewed new patients before Bell saw them, but Bell hardly seemed to need the assistance. Without asking a single question, Bell could state many facts that matched his clerk’s notes about these virtual strangers. He relied on such things as tattoos, skin disorders, accents, scars, and even the color of soil on their shoes. He seemed a virtual wizard, and Conan Doyle was sufficiently impressed to later transform Bell into a fictional character—Sherlock Holmes.

In Conan Doyle’s only filmed interview he firmly attested to his mentor’s influence, and in a letter to Bell he once wrote, “It is most certainly to you that I owe Sherlock Holmes.” Bell even wore a cloaked coat and deerstalker cap.

Yet in many ways, Bell was not Sherlock Holmes. He cared about people, had a wry sense of humor, and was highly compassionate. To colleagues he wondered if Conan Doyle had seen his better side.

While Bell is not as famous as British pathologists like Bernard Spilsbury or Francis Camps, who drew a great deal of media attention and published popular books about crimes, Bell’s influence is just as enduring. Given his indirect inspiration to several leading lights in the field of crime investigation, he is rightfully credited as a forensic forefather.

The Method Bell grew up during the mid-1800s in a medical family and became protégé

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to a renowned Scottish physician, Dr. James Syme. He married and had three children, although his wife died young.

An amateur poet, birdwatcher, and avid shooter when not at work, Bell drove a pair of bay horses he’d named Major and Minor. Far-sighted and aware of the needs of patients, he organized systematic lectures for nurses and agreed to teach the first female medical students, against whom there was substantial prejudice. For twenty-three years, Bell edited the Edinburgh Medical Journal as a firm proponent of science, and he authored several important medical texts. He also devoted considerable time to handwriting analysis and dialectology—the identification of accents, linguistic oddities, and speech patterns—which he added to his Method.

Bell’s classes were always crowded as he demonstrated how to sort out important material from the “lumber room of the mind.” The successful diagnosis, he told students, rested on three things: “Observe carefully, deduce shrewdly, and confirm with evidence.” For him, the Method—the “accurate and rapid appreciation of small points in which the diseased differs from the healthy state”— was one of the most important things he could impart to young medical minds.

Among the reasons was that impressing patients with such intimate knowledge inspired their cooperation in the healing process. It was paramount, then, to make a study of people.

“Nearly every handicraft writes its signmanual on the hands,” Bell once wrote.

“The scars of the miner differ from those of the quarryman. The carpenter’s callosities are not those of the mason. The soldier and sailor are different in gait.”

Ornaments, tattoos, and clothing added more dimension, as did posture and demeanor. But “mere acuteness of the senses” was not enough. One also had to study in minute detail subjects that would aid in making distinctions: the diverse odors of poison, for example, or of different perfumes.

As Bell walked energetically around the lecture room, he impressed upon his Fall 2009 THE FORENSIC EXAMINER® 77

students the importance of performing a close and critical study before diagnosis.

To demonstrate, he would bring in one of his waiting out-patients—someone he did not know—and from subtle clues he’d describe details about that person’s occupation, health, and recent activities. In one case, an elderly woman dressed in black entered, and Bell asked, “Where is your cutty pipe?” Startled, she produced it from her purse. Bell then told his students that from a small ulcer on her lower lip and a glossy scar on her cheek, he knew she used a short-stemmed pipe that lay close to her cheek when smoking.

Convinced that nuances mattered, Bell asserted that nothing was more useful to medical work than finely honed sensory observation, guided toward a specific purpose. Whenever he called on students to try the Method, he’d urge them not to touch a patient, but to “use your eyes, sir, use your ears, use your brain, your bump of perception…” and “never neglect to ratify your deductions.” That is, once they’d deduced information, they had to check each notion with the patient. (There were times when a patient contradicted Bell, and while he admitted to sometimes being wrong, he might also be vindicated by proving a lie.)

Among Bell’s training tricks was to pass around an amber-colored fluid, which he described to students as a potent drug that tasted quite bitter. Still, because they must learn how different substances tasted and smelled, they’d have to follow his example.

He would dip his own finger, taste it, and make a face, and then pass it to a student.

The concoction did taste quite bad, but each aspiring physician obediently tasted. Bell would then tell them that they’d missed the most important part of the experiment: he’d used one finger to dip into the liquid, but placed a different finger into his mouth. He hadn’t tasted the bitter brew at all. Thus, they’d seen but not “truly observed” him.

Among his lessons, Bell also described the problem with tunnel vision. “The fatal mistake which the ordinary policeman makes is this,” he said, “that he gets his theory first and then makes the facts fit it, instead of getting his facts first and then making all his little observations and deductions until he is driven irresistibly by them into an elucidation in a direction he may never have originally contemplated.” That is, hypothesize for guidance, but remain flexible and observant.

78 THE FORENSIC EXAMINER® Fall 2009

Forensic Applications In 1892, Bell told a reporter that he’d been engaged for two decades in the practice of medical jurisprudence for the Crown, but since he considered the details to be private, he refused to reveal anything more.

However, he seems to have been at work in the sensational case of Elizabeth Chantrelle.

Elizabeth Dyer was a fifteen-year-old student of the charismatic Eugene Marie Chantrelle, a French immigrant. He seduced her and then had to marry her. For the next ten years, he degraded and abused her, bragging that he could kill her in any number of ways. In 1877, Chantrelle insured his wife against her wishes for a considerable sum. Three months later, Elizabeth fell seriously ill. Her maid found her unconscious in her room and fetched the doctor. When they returned, the maid noticed odd changes: a half-full glass of lemonade on the bed table was now empty and some orange segments and grapes were gone, yet Elizabeth was still unconscious. Chantrelle was at the window, from where he quickly moved, as if to keep from drawing attention to that area. Also, there was now a smell of coal gas in the air.

The doctor thought Elizabeth had suffered from accidental coal gas poisoning; he removed her to a clinic, but she soon died.

He called in a noted toxicologist from the university, Sir Henry Littlejohn, who enlisted Bell as a consultant. They examined the deceased woman, but contrary to the physician’s impression, they thought her symptoms were consistent with narcotic poisoning. They informed the police, and Chantrelle was arrested.

To acquire more evidence, Littlejohn and Bell collected vomit from the pillow and nightgown. Under analysis, it proved to contain a solid form of opium. Then an investigation turned up Chantrelle’s recent purchase of thirty doses. Although he protested his innocence and claimed he’d smelled gas in the room, the maid affirmed that she’d noticed this odor only after retrieving the doctor. The gas company found a broken gas pipe just outside the victim’s bedroom window, and Bell located a gasfitter who had once repaired this very pipe under Chantrelle’s watchful eye—and attested to Chantrelle’s keen interest in how it worked. The circumstances seemed clear: Chantrelle had poisoned his wife with opium and staged her room to resemble an accidental death from a burst gas pipe.

The murder trial lasted four days, and deliberations took just over an hour. With Littlejohn’s powerful testimony, Chantrelle was convicted. On May 31, 1878, just before the noose was put around his neck, he puffed on his cigar, removed his hat, and said, “Bye, bye, Littlejohn. Don’t forget to give my compliments to Joe Bell. You both did a good job in bringing me to the scaffold.”

Ten years later, Bell became involved in another case—Jack the Ripper. After five murders of prostitutes in London’s Whitechapel slums went unsolved during the fall of 1888, Scotland Yard sought help from specialists around Britain. Among them was Dr. Littlejohn. When he received the full report of the investigation and autopsies, along with a suspect list and some of the “Ripper” letters, he gave a copy to Bell for handwriting analysis. Separately, Bell and Littlejohn studied the murders and derived a conclusion. They then exchanged their work, and each was gratified to see that they’d picked the same suspect.

To a journalist, Bell said, “When two men set out to investigate a crime mystery, it is where their researches intersect that we have a result.” They sent their reports to Scotland Yard, but unfortunately, no such reports are in the archives and there was no recorded comment, so it remains speculative as to which suspect they picked.

Yet Ripper expert Donald Rumbalow believes that, from among the suspects that Scotland Yard had considered seriously at the time, Bell would most likely have selected Montague Druit, a young unsettled physician who feared his mother’s schizophrenia and who committed suicide after the last official murder.

Bell also participated in what Scottish newspapers called “the biggest crime of the decade,” a case of fraud and murder. In 1890, Alfred Monson became the private tutor for a young man named Cecil, heir to a considerable fortune. Monson was apparently a patient man, for it was three years before he took out a substantial insurance policy on his young charge, with himself as benefactor. He told the agent that he’d loaned Cecil a lot of money against his inheritance and the policy was to protect his own stake. It was granted.

Monson then took Cecil out in a boat, which sprang an “unexpected” leak, and sank. But they were close enough to land for the boy to get ashore. Stymied, Monson took the boy shooting the next www.acfei.com

day, and this time a tragic “accident” claimed his life. Monson quickly filed for the insurance payout, but then learned that the policy was invalid. The company alerted police about the circumstances, and Cecil’s body was exhumed for detailed examination.

Littlejohn and Bell performed the autopsy and wound analysis. They determined the fatal shot could not have come from Cecil’s weapon and teamed up with a ballistics expert, Dr. Patrick Heron Watson (the inspiration for Holmes’s sidekick), to support a charge of murder. All three said the boy had been killed by an assailant who stood about 8 to 10 feet away. Newspapers made much of the fact that Watson and Bell were on the same team, and even dubbed Bell “the original Sherlock Holmes.” Using human skulls, these experts demonstrated how the triangular wound could not have come from Cecil’s gun, not unless he had abnormally long arms. With more than 100 witnesses, the Crown made a case that Monson was a conman who had insured and then murdered his charge. However, the judge warned the jury against using Monson’s questionable character as a factor in deliberations. They acquitted, based on insufficient evidence. Monson nevertheless got himself arrested again on another charge of insurance fraud and landed in prison anyway.

Lasting Legacy Bell insisted that a physician’s duty was to consider minutia that most people would view as a trifle and to utilize the wealth of information it provides. Apparently Conan Doyle absorbed this lesson well. In 1886, he completed a story about the “consulting detective” Sherlock Holmes, who relied on observation and logical deduction to help solve crimes. The first of what would become a series of tales was A Study in Scarlet.

Ward, Lock & Co. published it in 1887 as part of a Christmas annual. It found success the following year as a book. (For a later edition, Bell even penned a foreword.) Due to its popularity, the series about the immortal detective ran until 1927, and among the reasons Holmes endured was the technical expertise that Conan Doyle added, as well as the clear explanation of how he deduced facts from clues. As forensic science merged with crime investigation, Holmes became the prototype of the brilliant detective who has an intellectual edge over the ordinary “copper.”

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No doubt, this is why so many investigators sought to emulate him. Sydney Smith, an assistant to Littlejohn before he came into his own as a renowned forensic expert, was impressed by Holmes’s three directives: the power of observation, the power of deduction, and a wide range of exact knowledge. Using these guidelines as his touchstone reminded him to always look beyond the obvious. In France, Edmond Locard wanted to develop a crime laboratory just like his hero, Sherlock Holmes; when he failed to persuade the police in Lyon to support it, he paid for the world’s first private crime lab himself. It opened for business in 1911, the year that Joseph Bell died. The list of other crime analysts and investigators who followed in Holmes’s footsteps is long, with one after another labeled “the real life Sherlock Holmes.” But Joseph Bell was truly the prototype.

The Joseph Bell Centre for Forensic Statistics and Legal Reasoning (JBC) in Edinburgh still honors the late pathologist and promotes his ideas by applying academic research to the field of criminal justice.

It offers training, both on-site and online, to expand the skills of lawyers, forensic scientists, law enforcement officials, law students, IT security staff, and the judiciary.

In 2006, the Royal College of Surgeons opened an exhibit in Surgeon’s Hall, “Conan Doyle and Joseph Bell, the Real Sherlock Holmes,” to recognize the link between Bell, Edinburgh, and Conan Doyle’s tales. In a letter now owned by Bell’s descendants, Conan Doyle noted the similarity of Bell’s approach to that of Holmes: “I do not think that his analytical work is in the least an exaggeration of some effects which I have seen you produce in the outpatient ward.” While Conan Doyle’s son mounted an aggressive protest against the claim that Bell had been such an inspiration, plenty of scholarship attests to its truth. And Bell, plagued by reporters, wasn’t always happy about it.

Even after Bell retired, he continued to see patients in the country, and on October 4, 1911, he died peacefully. His funeral, attended by many grateful patients, former students, and respectful colleagues, was one of the largest Edinburgh had ever seen.

References Davidson, G. (2006, June 29). Detecting signs of Holmes from home. Edinburgh Evening News.

Guthrie, D. (1949). Medicine and detection: Dr. Joseph Bell and others. Medicine Illustrated 3(5), 223226.

Joseph Bell Centre. (2005). Retrieved from http:// www.cfslr.ed.ac.uk/ Liebow, E. M. (1982). Dr. Joe Bell. Bowling Green, OH: Bowling Green University Press.

More, J. W. (1908). Famous Scottish and British trials: The trial of A. J. Monson. Edinburgh: W. Hodge.

Smith, S. (1959). Mostly murder: An autobiography.

New York: Dorset Press.

Wagner, E. J. (2006). The science of Sherlock Holmes. New York: John Wiley & Sons, Inc. Wallace, I. (1955). The real Sherlock Holmes. The fabulous originals. New York: Alfred A. Knopf. 2246.

Wilson, C. & Wilson D. (2003). Written in blood: A history of forensic detection. New York: Carroll and Graf Publishers. n

ABOUT THE AUTHOR

Katherine Ramsland, PhD, CMI-V, has published 35 books, including The Devil’s Dozen: How Cutting Edge Forensics Took Down 12 Notorious Serial Killers and Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation. Dr. Ramsland is an associate professor of forensic psychology and the department chair at DeSales University in Pennsylvania. She has been a member of the American College of Forensic Examiners since 1999.

Fall 2009 THE FORENSIC EXAMINER® 79

BOOK REVIEWS

The Devil’s Dozen: How Cutting-Edge Forensics Took Down 12 Notorious Serial Killers

By Katherine Ramsland, PhD, CMI-V Katherine Ramsland’s latest book, The Devil’s Dozen, once again highlights her command of history and forensic knowledge, fusing it with her interesting and approachable narrative voice.

In the book, Ramsland examines the cases of 12 serial killers, offering detailed descriptions of the killers and insightful commentary on their crimes.

Each chapter illustrates how these cases affected forensic developments and investigation techniques. The Devil’s Dozen is a collection of some of the most fascinating cases and instances of innovative investigation. It lauds the trailblazer. Ramsland explains this collection: “Over and over, we see someone at a dead end in a frustrating investigation looking around for a technique, approach, or technology that no one had yet considered, and boldly trying it out.”

Katherine Ramsland, PhD, CMI-V, has published 35 books, including The Devil’s Dozen: How Cutting Edge Forensics Took Down 12 Notorious Serial Killers and Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation. Dr. Ramsland is an associate professor of forensic psychology and the department chair at DeSales University in Pennsylvania. She has been a member of the American College of Forensic Examiners since 1999.

Ramsland’s introductory example takes us to Germany in the 1800s, when an aging woman of no means had limited options for providing for herself. Anna Maria Schonleben nee Zwanziger’s most feasible solution? Get hired as a wealthy man’s most dedicated servant and entice him to marry her. If the man had a wife complicating this plan, Anna could always poison her with arsenic. As the body count began to add up in Anna’s attempts to safeguard her future, investigators closed in as they developed the earliest techniques of arsenic analysis. This unique case is just a teaser for the reader; though an engaging story and a remarkable tale of investigation, the German poisoner isn’t even one of the focal cases of The Devil’s Dozen. The 12 cases featured in the book span the course of two centuries, multiple countries, and vary in both nature of the crime and methods of investigation. Justice prevails based on the results of handwriting or chemical analysis, behavioral profiling, and even careless slip-ups by the killers. The investigating authorities were constantly developing techniques and pushing themselves beyond limits. Ramsland asserts this necessity, “Common to all the cases presented in this book are persistence, flexibility, the importance of innovative thinking, and the ability to initiate dialogues across disciplines. The Devil’s Dozen is not only a series of compelling case studies, but also an inspiration to investigators. n

WANT YOUR BOOK REVIEWED?

Mail it to: Editor; The Forensic Examiner® 2750 E. Sunshine St. Springfield, MO 65804 Be sure to include a press release.

COMMISSION ON FORENSIC EDUCATION

COFE Update LeadAmerica, COFE’s partner association, recently held its first CSI summer camp of the year in San Francisco at the University of California at Berkeley. LeadAmerica’s mission is to “inspire and empower the next generation to achieve their full potential and instill a sense of purpose, integrity, and personal responsibility.” Their youth leadership conferences offer students unique and dynamic career-based simulations.

A 10-day program, the CSI camp offers students the chance to gain first-hand forensic experience to hone their skills and spark their SM

80 THE FORENSIC EXAMINER® Fall 2009

passion for the art of the investigation. Some highlights of the camp experience include a crime scene simulation, hands-on forensic training in multiple fields, interactive leadership development workshops, field experiences and excursions, as well as briefings, lectures, and discussions with forensic experts. Students who attend the camp can earn up to 2 college credits. COFE also grants an official certificate recognizing each student who successfully completes this program.

Upcoming conferences will take place at Bentley University in Boston and Fordham University in New York.

For more information on this and upcoming LeadAmerica camps, go to http://www.forensiccommission.com/ and click on the LeadAmerica link. n

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FALSELY ACCUSED

Falsely Accused: Wrongly Convicted Teen Set Free

sJimenez moments after his release from the Hill Correctional Center in Galesburg, IL (in the background). To his left is attorney Stuart Chanen, to his right is Steven Drizin.

After 16 years, 2 months, and 27 days in custody of the Illinois Department of Corrections for a murder he did not commit, Thaddeus Jimenez was released. He was released at age 30, convicted at 14—making him Illinois’s youngest person at the time of his arrest ever to be fully exonerated.

A February 1993 gang shooting in Chicago resulted in the death of 18-year-old Eric Morro. Morro was walking with his friend, 14-year-old Larry Trueffel, when the two got into an altercation with two other teens. Morro was shot in the chest and died at the scene. Initially, no eyewitnesses identified Jimenez’s presence at the scene, much less his guilt. Later that night, one of these eyewitnesses called the police and amended his statement, saying that Jimenez shot and killed Morro (Center on Wrongful Convictions [CWC] & Katten Muchin Rosenman, 2009). Thirteen-year-old Jimenez had a long arrest record linked to his involvement in the gang; despite contrary evidence pointing to another suspect, the primary investigation focused on Jimenez.

Trueffel was brought in again for questioning; police brought the 14-year-old to the station in the middle of the night and interrogated him for hours without his parents present. Trueffel eventually agreed that Jimenez was the murderer, though he had never mentioned Jimenez in his previous statements. Jimenez was arrested early the next morning.

Victor, an accomplice to the murder who would be Jimenez’s co-defendent, did not know Jimenez and identified Juan Carlos Torres as the shooter. Police even had a taped confession by Torres, whom Jimenez fingered as the murderer during his initial trial (Walberg, 2009). The father of a 12-year-old allegedly present at the crime provided a tape of Torres admitting that he ran following shooting Morro and that he was glad the police had charged someone else with his crime (Dimanno, 2009). But this tape was not given consideration in the original investigation, and eyewitness testimony secured Jimenez’s conviction. At the sentencing, the judge described Jimenez as a “little punk, probably too young to shave, but old enough to commit a vicious murder” (as cited in Dimanno, 2009). At the age of 14, Thaddeus Jimenez was sentenced to 45 years in prison.

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The Center on Wrongful Convictions (CWC) of Northwestern University’s School of Law and Katten Muchin Rosenman LLP have pursued Jimenez’s case since 2005. This partnership of Steven A. Drizin, Alison R. Flaum, and Joshua A. Tepfer of the CWC, and Stuart J. Chanen, Rachel M. Vorbeck, Patrick C. Harrigan, and Aaron M. Chandler of Katten Muchin Rosenman LLP has put in thousands of hours of pro bono work on Jimenez’s behalf. The CWC’s Steve Drizin states, “There were so many red flags pointing the police and prosecutors in the direction of the true perpetrator, and we had to do that again 16 years later” (as cited in CWC, 2009). Finally, on July 31, 2006, Trueffel offered them a taped statement revealing that Torres, not Jimenez, was the shooter. May 2007, another eyewitness recanted her testimony against Jimenez as well. Jimenez’s lawyers took the case to authorities in September of 2007 (Dimanno, 2009). It was at this point that investigators more closely analyzed the tape with Torres’s confession. They finally gave due attention to the evidence that would clear Jimenez’s name—evidence that had been available all along.

The morning of May 1, 2009, police arrested Torres for the murder of Eric Morro. At 7 pm that night, Jimenez was released from prison and greeted by several of the lawyers who had worked so hard to set him free (CWC, 2009). From there, they took Thaddeus Jimenez to a steak dinner and drove him home for a tearful reunion with his mother.

The newly issued certificate of innocence should help Jimenez find a job, and it entitles him to claim up to $200,000 as compensation from the state for his years of wrongful imprisonment (Walberg, 2009). Like many individuals who are exonerated after long incarcerations, Jimenez just wants to get his life back: “I’m happy that it’s done. I’m out. It’s over with. I’m a free man and I have a new start. . . . Let bygones be bygones” (as cited in Hussain, 2009). Drizin says Jimenez’s case highlights the need to electronically record all investigative interviews of children and for courts to be more receptive to evidence of innocence, especially of a thirdparty’s guilt and recantation evidence (CWC & Katten Muchin Rosenman LLP, 2009). But for now, Drizin and his associates can take pride in their role in Jimenez’s remarkable story. Drizin describes Jimenez’s immersion into a new world of freedom, including the young man’s confusion when being handed a cell phone for the first time: “Slowly but surely, he’s trying to stick his toe into the real world” (as cited in Dimanno, 2009).

References Center on Wrongful Convictions (CWC). (2009). CWC client arrested for murder at 13, exonerated at 30. Northwestern Law Retrieved May 27, 2009, from http://law.northwestern.edu/wrongfulconvictions Center on Wrongful Convictions (CWC) & Katten Muchin Rosenman LLP. (2009). Press release. Northwestern Law Retrieved May 27, 2009, from http://law. northwestern.edu/wrongfulconvictions Dimanno, R. (2009, May 6). 16 years later, justice and freedom. The Star. Retrieved May 27, 2009, from http://www.thestar.com/news/columnist/article/629657 Hussain, R. (2009, June 3). Man wrongly convicted as teen of murder formally cleared. Chicago Sun Times Retrieved May 27, 2009, from http://www.suntimes. com/news/metro/1605617,thaddeus-jimenez-wrong-conviction-060309.article Walberg, M. (2009, June 4). Piece of paper means the world. Chicago Tribune Retrieved June 4, 2009, from http://www.chicagotribune.com/news/local/chi-exonerate-04-jun04,0,6929640.story n

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