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Diatom Tests for

Drowning

Plus . . . Hurricane Katrina Morgue Operations Qualifications and Paradigms for Independent Examiners Killer Coworkers Multiple Drownings: Accidents or Murder?

ACFEI Member Dr. Peter D. Frade (left) and Edward J. Rohn (right) Discuss the Diatom Tests for Drowning

2006 Editorial Advisory Board

ACFEI Executive Advisory Board Chair of the Executive Board of Advisors: David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, DABFE, DABFM, FACA (apoth.), Chair, American Board of Forensic Medicine Vice Chair of the Executive Board of Advisors: Michael A. Baer, PhD, FACFEI, DABPS, DABFE, DABFM, Chair, American Board Psychological Specialties Members of the Executive Board of Advisors: Nick Bacon, CHS-IV, DABCHS, Past President of the Congressional Medal of Honor Society, Civilian Aide to the Secretary of the Army, Chair, American Board for Certification in Homeland Security Michael W. Homick, PhD, CHS-V, DABCHS, Chair, American Board of Law Enforcement Experts James L. Greenstone, EdD, JD, FACFEI, DABECI, DABLEE, DABPS, DABFE, CHS-V, CMI-I, Chair, American Board of Examiners in Crisis Intervention David Albert Hoeltzel, PhD, DABFET, DABFE, Chair, American Board of Forensic Engineering and Technology J. Bradley Sargent, CPA, CFS, Cr.FA, Chair, American Board of Forensic Accounting Russell R. Rooms, MSN, RN, CMI-III, CFN, Chair, American Board of Forensic Nursing Marilyn J. Nolan, MS, DABFC, Chair, American Board of Forensic Counselors Thomas J. Owen, BA, FACFEI, DABRE, DABFE, Chair, American Board of Recorded Evidence Michael Fitting Karagiozis, DO, MBA, CMI-V, Chair, American Board of Forensic Examiners Daniel S. Guerra, PhD, FACFEI, DABFSW, DABFE, Chair, American Board of Forensic Social Workers

Louay Al-Alousi, MB, ChB, PhD, FRCPath, FRCP(Glasg), FACFE, DMJPath, DABFM, FFFFLM Nicholas G. Apostolou, DBA, DABFA, CPA Larry Barksdale, BS, MA E. Robert Bertolli, OD, FACFEI, CHS-V, CMI-V Kenneth E. Blackstone, BA, MS, CFC David T. Boyd, DBA, CPA, CMA, CFM, Cr.FA Jules Brayman, CPA, CVA, CFD, DABFA John Brick, PhD, MA, DABFE, DABFM Richard C. Brooks, PhD, CGFM, DABFE Steve Cain, MFS, MF--SQD, DABFE, DABRE, FACFE Dennis L. Caputo, MS, DABFET, REM, CEP, CHMM, QEP Donald Geoffrey Carter, PE, DABFET David F. Ciampi, PhD, FACFEI, DABPS Leanne Courtney, BSN, DABFN, DABFE Larry Crumbley, PhD, CPA, DABFE 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 John Shelby DuPont, Jr., DDS, DABFD Scott Fairgrieve, Hons. BSc, MPhil, PhD, FAAFS Edmund Fenton, DBA, CPA, CMA, Cr.FA Per Freitag, PhD, MD, FACFEI, DABFE, DABFM Nicholas Giardino, ScD, DABFE David H. Glusman, CPA, DABFA, CFS, Cr.FA Karen L. Gold, PysD, FACFEI, DABPS Ron Grassi, DC, MS, FACFEI James Greenstone, EdD, JD, FACFEI, DABFE, DABFM, DABPS, DABECI Roy C. Grzesiak, PhD, PC Raymond Hanbury Jr., PhD, DABFE, DABPS James Hanley III, MD, DABFM Nelson Hendler, MD, DABFM David L. Holmes, EdD, BCFE, BCAP, BCPS, BCBS, FACFEI, DABFE, DABPS Leo L. Holzenthal, Jr., PE, DACFE, MSE, BSEE Linda Hopkins, PhD, CFC John R. Hummel, PhD, CHS-III Edward J. Hyman, PhD, FACFEI, DABFE, DABFM, DABPS Zafar M. Iqbal, PhD, FACFEI, DABFE, DABFM Nursine S. Jackson, MSN, RN, DABFN Paul Jerry, MA, C.Psych., PhD, DAPA, DABFC Scott A. Johnson, MA, DABPS, DAACCE Philip Kaushall, PhD, DABFE, DABPS

Eric Kreuter, CPA, CMA, CFM, DABFA, FACEI, SPHR, BS, MA Ronald G. Lanfranchi, DC, PhD, DABFE, DABFM, DABLEE, CMI-IV Richard Levenson Jr., PsyD, DABFE, DABPS Monique Levermore, PhD, FACFEI, DABPS Jonathon Lipman, PhD, FACFEI, DABFE, DABPS, DABFM Jennie Martin-Gall, CMT, CMI-I Mike Meacham, PhD, LCSW, DCSW, DABFSW David Miller, DDS, FACFEI, DABFE, DABFM, DABFD Norva Elaine Osborne, OD, FAAO, CMI-III Terrence O’Shaughnessy, DDS, FACFEI, DABFD George Palermo, MD, FACFEI, DABFE, DABFM Ronald J. Panunto, PE, CFEI, BSEE Larry H. Pastor, MD, FAPA, FACFEI, DABFE, DABFM Theodore G. Phelps, CPA, DABFA Marc Rabinoff, EdD, FACFEI, DABFE Harold F. Risk, PhD, DABPS Susan P. Robbins, PhD, LCSW, DCSW, BCD, LCDC, DFSW, DABFSW Jane R. Rosen-Grandon, PhD, DABFC Douglas Ruben, PhD, FACFEI, DABFE, DABFM, DABPS William Sawyer, PhD, FACFEI, DABFE, DABFM Victoria Schiffler, RN, DABFN John V. Scialli, MD, FAACAP, DFAPA, DABFE, DABFM Howard A. Shaw, MD, DABFM Henry A. Spiller, MS, DABFE, DABA Marylin Stagno, PsyD, RN, DABFE, DABFM, DABPS Richard I. Sternberg, PhD, DABFE, DABPS, FABVE, FFAPP James R. Stone, MD, MBA, CHS-III, DABFE, DABFM Johann F. Szautner, PE, PLS William A. Tobin, MA, DABFET, DABLEE Robert Tovar, BS, MA, DABFE, DABPS, CHS-III Brett C. Trowbirdge, PhD, JD, DABPS Jeff Victoroff, MA, MD, DABFE, DABFM Patricia Ann Wallace, PhD, FACFEI, DABFE, DABFM Raymond Webster, PhD, FACFEI, DABFE, DABFM Dean A. Wideman, MSc, MBA, CFC Paul Zikmund, MBA, Cr.FA

Publisher: Robert L. O’Block, MDiv, PhD, PsyD, DMin (rloblock@aol.com) Editor in Chief: Heather Barbre Blades, MA (editor@acfei.com) Associate Editor: Leann Long, BS (leann@acfei.com) Assistant Editor: Angela Burroughs Kelly, MA (angie@acfei.com) Assistant Editor: Laura Kirsch, JD, MA (laura@acfei.com) Art Director: Brandon Alms, BFA (brandon@acfei.com) Photography: www.istockphoto.com

The Forensic Examiner® (ISSN 1084-5569) is published quarterly by The American College of Forensic Examiners International, Inc. (ACFEI). Annual membership for a year in the American College of Forensic Examiners International is $145. Abstracts of articles published in The Forensic Examiner® appear in National Criminal Justice Reference Service, Cambridge Scientific Abstracts, Criminal Justice Abstracts, Gale Group Publishing’s InfoTrac Database, e-psyche database, and psycINFO database. Periodicals Postage Paid at Springfield, Missouri, and additional mailing offices. ©Copyright 2006 by the American College of Forensic Examiners International. All rights reserved. No part of this work can be distributed or otherwise used without the express permission of the American College of Forensic Examiners International. The views expressed in The Forensic Examiner® are those of the authors and may not reflect the official policies of the American College of Forensic Examiners International.

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Fall 2006 THE FORENSIC EXAMINER

THE

FORENSIC

EXAMINER

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

VOLUME 15 • NUMBER 3 • FALL 2006

ACFEI offers continuing education (CE) credits for the peer-reviewed articles in this publication. A list of CE approvals appears at the beginning of each article that qualifies for CE credit. Please use the following abbreviation key to determine what each abbreviation stands for.

ACFEI: ACFEI approves this continuing education credit for Diplomates. APA: ACFEI is approved by the American Psychological Association to offer continuing professional education for psychologists. ACFEI maintains responsibility for the program. ASWB: This organization, American College of Forensic Examiners International, 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: 9/13/04 – 9/13/07.

Social workers should contact their regulatory board to determine course approval. Social workers will receive 1 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. CFC: ACFEI approves this continuing education program for Certified Forensic Consultants.

CFN: ACFEI approves this continuing education program for Certified Forensic Nurses. CME: The American College of Forensic Examiners Institute is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. CMI: ACFEI approves this continuing education program for Certified Medical Investigators. Cr.FA: ACFEI approves this continuing education program for Certified Forensic Accountants.

Continuing Education Articles

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p. 16

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10 The Role of Diatoms in Medicolegal Investigations I: The History, Contemporary Science, and Application of the Diatom Test for Drowning

By Edward J. Rohn, MA, and Peter D. Frade, PhD

16 Hurricane Katrina Morgue Operations: Two Forensic Professionals’ Perspectives By Barbara L. Needell, DMD, and Christine Kruse-Feldstein, BS

24 Qualifications and Paradigms for the Independent Examiner

By John J. Haberströh, DC, DABCN, DACAN, FACFEI, DABFE, CFC, CMI-V, and Kevin Mulhern, DC, FICC

37 Stand Your Ground: New Challenges for Forensic Psychologists By Patricia Wallace, PhD, DABFE, DABFM, FACFEI

The American College of Forensic Examiners International (ACFEI) does not endorse, guarantee, or warrant the credentials, work, or opinions of any individual member. Membership in ACFEI does not constitute the grant of a license or other licensing authority by or on behalf of the organization as to a member’s qualifications, abilities, or expertise. The publications and activities of ACFEI are solely for informative and educational purposes with respect to its members. The opinions and views expressed by the authors, publishers, or presenters are their sole and separate views and opinions and do not necessarily reflect those of ACFEI, nor does ACFEI adopt such opinions or views as its own. The American College of Forensic Examiners International disclaims and does not assume any responsibility or liability with respect to the opinions, views, and factual statements of such authors, publishers, or presenters, nor with respect to any actions, qualifications, or representations of its members or subscriber’s efforts in connection with the application or utilization of any information, suggestions, or recommendations made by ACFEI, or any of its boards, committees, or publications, resources, or activities thereof.

THE FORENSIC EXAMINER Fall 2006

Case Studies/Current Issues

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Where’s the Truth? False Confessions, Police Interrogations, and the Case of Beverly Anne Monroe By Laura Kirsch, MA, JD

Multiple Mysterious Drownings: Accidents or Serial Murders?

Killer Coworker: The Case of Michael McDermott

The Ability to Doubt: Forensic Pioneer, Alexandre Lacassagne

By Katherine Ramsland, PhD, CMI-V

Private Defense Evaluations

Cannibalism in the Sierra Nevadas: The Donner Party

By Leann Long, BS

By Heather B. Blades, MA

By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABPS, DABFM, DAPA

By Angela Burroughs Kelly, MA

Also in This Issue

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ACFEI and The Forensic Examiner® Logo Products CE Test Pages: 4 Continuing Education Credits in This Issue Recent Books by ACFEI Members Falsely Accused: Profiles of Individuals Wrongly Accused or Convicted of Crimes Fall 2006 THE FORENSIC EXAMINER

Comments from Readers The Forensic Examiner® in the Classroom My job as a classroom teacher is to introduce students to timely material and spark some interest in, not only education, but possible futures. This is not new news because most of us in this profession are committed to the same goals, but my students are all adjudicated teenagers who have been working on the wrong side of the law. Since their anonymity is protected, I will only mention that this is a group-home setting with accredited teachers and accredited schools within the lock-and-key environment. I am fortunate to be a part of a system that combines treatment, education, vocational instruction, and assessment with an outdoor component that includes hiking, rappelling, canoeing, and other teamand trust-building activities. I was introduced to The Forensic Examiner® when Heather Blades, the editor in chief, asked me to write an article for the Summer 2006 issue about a book that I had published on a cold case in Nixa, Missouri. For those of us who believe that everything happens for a reason, I had just begun a science/vocational unit in my classroom

on forensics and the multitude of jobs that are offered in the field. The Forensic Examiner® was a perfect fit! Thanks to the popularity of forensics and crime-related television, both nonfiction and fiction, my students were enthusiastic about the topic. It also didn’t hurt to offer them alternatives to criminal paths. This publication is well written and illustrated and is still within the reading range of my high school class. However, occasionally I will not offer them an article if it seems more adult in content or too technical for them to relate to. I have used the following articles in science, writing, debate, and hands-on vocational thematic units, and I look forward to using more articles from The Forensic Examiner® in the future! The article “Identification of the Skeletal Remains of a Child in Uruguay,” from the Fall 2004 issue, taught the students about forensic anthropology. After learning how forensic anthropologists and facial reconstruction artists worked to solve this mystery, the students assembled a paper skeleton and labeled gender and approximate age.

An article in the same issue that was discussed at length after an oral reading was “Violent Media and Video Games and Their Role in Creating Violent Youth.” This was done in debate style, and the students backed their stands with personal experience scenarios. We have also read “Characteristics of Juvenile Firesetting Across Childhood and Adolescence,” from the Winter 2004 issue, and “Blood Spatter Interpretation at Crime Scenes,” from the Summer 2005 issue. “The Piltdown Hoax,” in the Spring 2006 issue, coincided with our ancient history reports and was presented by one student whose report topic was “Anthropological Finds of Ancient Man.” We are preparing to address “Prison Gangs: Descriptions and Selected Interventions,” from the Spring 2005 issue, in a unit on deterring crime and the realities of lockup on an adult level. Keep the journals coming. This is great teaching tool! Sincerely, Barbara Kemm-Highton, BS Regular academic and special education teacher

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2006 CONFERENCE Presentations Scheduled for ACFEI’s 2006 National Conference in Orlando, Florida, September 21–23

For more information on any of these presentations, see the complete program of events at www.acfei.com. The conference schedule is subject to change. Forensic Examinations and Financial Fraud: A Review of Important Methodologies and Procedures for the Successful Forensic Examiner Presenter: David Rhoades

Caring For Vulnerable Populations: When Patients with Special Needs Become Victims of Violence Presenter: Dianne Ditmer Deposing and Cross-Examining the Financial Expert Presenter: L. Lyons

Impeachment of the Expert Witness: Exploiting Common Flaws in Testimony, Preparation, and Ethics Presenter: Robert Lewis

The Faces of Child Abuse: Patterns of Injuries in Child Victims of Violence Presenters: Sonja Eddelman and Edgar Cortes

Treating Complex Post-traumatic Stress Disorder (PTSD) in Children and Adults Presenter: Kathleen Monahan

Expert Witness Testimony in High-profile Cases Presenter: Barbara Kirwin

Deaths in Custody: Experiences of the Wayne County Medical Examiner, Detroit, Michigan Presenter: Francisco Diaz Certified Forensic Nurse Refresher Presenters: Rusty Rooms and Jamie Ferrell Identifying “Red Flags” and Patterning the Abuse Presenters: Debra Pacha and Stephen Ratcliff The Benefits of Using Forensic Evaluations in Child Welfare Cases Presenters: DeeAnna Merz Nagel and Shelley Hankins Violent Deaths in the Older Population Presenter: Donna Cohen The Multifaceted Nature of Psychological Trauma in Burn Injuries Presenter: Roy Grzesiak Expert Witness Cross-examination: An Interactive Experience Presenter: Rose Constantino Criminal Mock Trial Led by Karen Gold IMEs in Personal Injuries: Medical/Chiropractic Approaches and Controversies Presenters: Robert Fielden and John Haberströh

The High-profile Case and the Compensated Expert Witness Presenter: Joseph Miller Exploring the Sexual Offender and Domestic Batterer Presenter: Scott Johnson Forensic Evidence Collection from Bodies at Crime Scenes and in the Morgue Presenters: Mikki Favor and Gail Lippert Assessment and Treatment of Complex Advanced Substance Dependence Disorders in Adolescents Presenters: Peter Choate and Natalie Imbach Post-traumatic Stress: Psychosocial and Legal Effects of a Humaninduced Trauma Presenters: Jaime Ross and Yael Fischman Cross-examination “Trick” Questions Presenter: Jess Dines Linking Individuals to Digital Information Presenter: Gavin Manes Thinking Collaboratively, Working Collaboratively Presenters: Barry Lipton and Mitzi Schardt Authenticity in the Digital Age Presenters: Thomas Owen, Ryan Johnson, Ernst Alexanderson, and Jennifer Owen

Assessing the Control Environment: Reading the Early Signs Presenter: Brad Sargent Parenting Capacity Assessments in Child Protection Cases— An Interview Protocol Presenter: Peter Choate Courtroom Battles, Jury Wars, and the Expert Witness Presenter: Karen Gold The Psychological Mechanisms of Cult Indoctrination and Its Consequences for Law Enforcement Presenters: Richard Davis and Cornel Plebani

THE FORENSIC EXAMINER Fall 2006

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2006 CONFERENCE Presentations Scheduled for CHS’s 2006 National Conference in Orlando, Florida, September 19–21

For more information on any of these presentations, see the complete program of events at www.chs.acfei.com. The conference schedule is subject to change. Homeland Security Lessons Learned Presenter: Robert Silver Business Espionage Countermeasures Presenter: Bill G. Rhoads Surveillance Detection Presenter: David L. Johnson Homeland Security—Dynamic Emerging Trends in Public-Private Partnerships Presenters: Ernest C. Blount and Glen M. Mowrey K-9s and Their Increased Use in Transportation Security Since 9/11 Presenters: Henry R. Nolin and Lady Tinkerbelle, labrador retriever

Intervention and Management of Psychological Aspects of Crisis and Trauma Presenters: Steven M. Crimando and Raymond F. Hanbury Modern Communications Systems and Inerrability Presenter: Greg Carttar Chechen Terrorism—The Russian Connection to al-Qaeda Presenter: Jeffrey T. Flower Panel Discussion: Providing Mass Care for Those with Special Needs Panelists: Harry Risor, Eric White, Shawna French-Lynd, Mark Garver, and Dr. Raymond Hamden Lessons Learned for Corporations and Emergency Services: Katrina and TOPOFF 3 Presenter: Bo Mitchell

WMD, Drugs, Vision Science, and the Traffic Stop Presenters: E. Robert Bertolli and Robert Pannone

The Use of Modeling and Simulation in Support of Homeland Security Applications Presenter: John R. Hummel

Computer Support for Disaster Simulation Exercises Presenter: Kenneth A. Keen

Pandemic Flu and Its Impact on National Security Presenter: Barbara B. Citarella

Panel Discussion: Safety and Security—Perception vs. Reality Panelists: Bill Cummins, John Biddy, Kenneth Buckhalter, Karen Blackwood, and Jeffrey James

Risk Assessment in Health Care Emergency Management: Strategies for Optimization Presenter: Jim Paturas

Surveillance Detection Presenter: David L. Johnson

Defensive Tactics Presenter: Fred Sams

Vulnerability Assessment in a Post-9/11 Environment Presenter: Forest P. Franklin

Large ERP Systems, PeopleSoft, ADP, and Systems Known as Enterprise V2 Presenter: David S. Perlin

Securing Our Homeland—An Update on Homeland Security Presenter: Andrew J. Jurchenko, Sr.

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Projects for Law Enforcement’s Top IT Security Presenter: Bill Spernow Medical Concerns of CBRNE Weapons Presenter: Gregory R. Frailey Introduction to Hazardous Wastes and Security Presenter: Barry R. Weissman Panel Discussion: The Value of Prior Military in Homeland Security Panelists: Nick Bacon, John Bridges, LZ Johnson, Herman Statum, and Thomas Baines Advances in Optical Biometrics in Security: Iris and Retinal Scanning Identity Verification Presenter: Max D. Venard

Fall 2006 THE FORENSIC EXAMINER

This article is eligible for CE credit in the following categories: ACFEI and CMI. See page 4 for a key to these CE abbreviations and complete CE approval statements.

By Edward J. Rohn, MA, and Peter D. Frade, PhD Key Words: diatoms, drowning, medicolegal investigation, forensic science

Abstract Deaths by drowning are difficult to determine and often are diagnosed by eliminating all other potential manners of death. However, the diatom test stands as a direct screening test for death by drowning. The field of forensic limnology has stagnated in the literature, at least in terms of the emergence of new and more accurate collection, testing, and confirmation modalities. In this article a review of past and contemporary science and applications of the diatom test is put forward in an attempt to renew interest in this important test. An outline for future research in this area will be forthcoming.

The Role of Diatoms in Medicolegal Investigations I: The History, Contemporary Science, and Application of the Diatom Test for Drowning

10 THE FORENSIC EXAMINER Fall 2006

he presence of aquatic diatoms in a cadaver has long been held by some to be a clear indicator of death by drowning. Deaths of this type are difficult to diagnose accurately, typically relying on diagnosis by eliminating all other potential causes of death. Research into the presence of diatoms in bone marrow, lungs, liver, spleen, kidney, and brain tissue has led to the development of the diatom test, a direct screening test for drowning. The presence of diatoms can be verified and analyzed both quantitatively and qualitatively through a diatom test. This can lead not only to a more direct determination of the cause of death, but also can help pinpoint the site of a suspected drowning.

Considering the lengthy history of this method, it is no surprise that extensive literature exists on the topic. However, the methodology has remained largely unchanged since its refinement in the early 1960s (Timperman, 1962; Timperman, 1969). While the diatom test remains highly specific in its application, the difficulty of a drowning diagnosis alone warrants the test’s continued evolution. It is the authors’ contention that the field of forensic limnology, the use of freshwater ecology to aid medicolegal investigations, has stagnated in the literature, at least in terms of the emergence of new and more accurate collection, testing, and confirmation modalities. To this end, a review of past and contemporary science and applications of the diatom test is put forward in an attempt to renew interest in this important test. A pending companion piece to this article will put forth a set of well-conceived and logical suggestions for new modalities so that the established methodology can be augmented and improved and, above all, the sensitivity of the current test can be increased. The field of forensic limnology, of which the diatom test is the hallmark method, is best understood within the context of the larger arena of medicolegal investigation. Any study of the remains of human life, from the time of death to the autopsy table and from a shallow grave to bones in the woods, falls under the rubric of forensic taphonomy. Haglund and Sorg (1997) define forensic taphonomy as: The use of taphonomic models, approaches, and analyses in forensic contexts to estimate the time since death, reconstruct the circumstances before and after deposition, and discriminate the products of human behavior from those created by the earth’s biological, physical, chemical, and geological subsystems (p. 3). Given this perspective, forensic pathology, toxicology, entomology, anthropology, and the like, because their focus is the human body, are taphonomic by nature. They all are concerned with reconstructing the circumstances surrounding death and the subsequent journey of a body from obscurity to the autopsy table to a resolved investigation. Forensic limnology is in crucial company, and the diatom test

is among those modalities that need to remain at center stage.

The Biology and Ecology of Diatoms Diatoms are part of the Bacillariophyceae division of the Chrysophyta family of microscopic unicellular plants. The genera, species, and individuals of this enormous group are so numerous that they represent the most abundant single source of oxygen in our atmosphere (Duke & Reimann, 1977). Diatoms consist of vegetative cells encased in a rigid silicon dioxide shell, referred to as a frustule. The highly variable shape of the extracellular silica valve and pleura are the main criterion by which diatoms are systematically classified (Duke &

“ . . . the field of fo-

rensic limnology, the use of fresh water ecology to aid medicolegal investigations, has stagnated in the literature . . . .

” Reimann; Pollanen, Cheung, & Chaisson, 1997). Their species-specific cell rheology allows for easy identification and can help investigators form opinions and theories as to the facts surrounding a difficult drowning case (Siver, Lord, & McCarthy, 1994). This is the crux of their value as forensic identifiers. Various genera and species of diatoms will establish themselves within bodies of water based on their specific nutrient and light requirements. Carbon, nitrogen, phosphorous, and silica are the primary building blocks of the diatom, and all are necessary in abundance to support populations of any type (Darley, 1977). This fact and the natural competition between equally suited species lead to generic and special variations between and within bodies of water.

While diatom communities exist almost everywhere, “the communities that live in water under natural conditions usually consist of a great many more species than those communities found in aerial habitats or in the soil” (Patrick, 1977, p. 285). They occur regularly in fresh, salt, and brackish water, from ditches and puddles to rivers and oceans (Pollanen et al., 1997). This, of course, is fortunate for the forensic investigator engaged in drowning investigations (Di Maio & Di Maio, 1993). Various bodies of water will exhibit different sorts of diatoms based on the conditions found therein. Lakes and ponds, including reservoirs, due to their depth and slow exchange of water, develop stratifications of various species of diatoms based on the temperatures and amount of light each species prefers (Patrick, 1977). Deeper water attracts planktonic diatoms, those that are free-floating and live similarly to other phytoplankton. Shallower waters support periphytic diatoms, which attach themselves to rocks and other plants. Streams and rivers develop entirely different diatom communities due to the speed and shallowness of their waters, and they tend to stratify less, with diatom populations clustering on the edges and in floating debris and plants (Patrick). The species present in a given body of water is a function of the rate by which new diatoms enter an area and the species pool capable of living in the given environmental conditions (Auer, 1991; Patrick). The number of different species can range from nearly 100 in slow-moving lake habitats to well over 300 in fast-moving streams and rivers (Patrick).

The Physiology and Pathology of Drowning The mechanism of death by drowning is irreversible cerebral anoxia brought on by a prolonged period of hypoxemia (Di Maio & Di Maio, 1993). The process runs in a regular course, beginning with breathholding until a breaking point is reached. This is followed by involuntary aspiration or gasping, leading then to loss of consciousness and finally death (Di Maio & Di Maio; Timperman, 1972). After the breaking point is reached, the victim literally breathes in water for several minutes

Fall 2006 THE FORENSIC EXAMINER 11

until respiration ceases. Consciousness is usually lost within 3 minutes of submersion. Cerebral hypoxia continues until death, usually within 10 minutes (Di Maio & Di Maio; Pearn, 1985). During this time, large volumes of water can pass through the alveolar-capillary interface, or alveolar epithelium, through the endothelial capillary lining and enter into the circulatory system (Di Maio & Di Maio; Pearn; Schwar, 1972). Under certain circumstances, drowning does not follow the normal pattern. In 10% of all drownings, laryngeal spasms can form after exposure to small amounts of water, triggering an outflowing of thick mucus that forms a blockage in the airway, leading to what is referred to as a “dry drowning” (Di Maio & Di Maio, 1993; Pearn, 1985). This plug prevents water from entering the lungs. The phenomenon is typically associated with intoxication of the victim (Pearn). Secondly, hyperventilation may lead to loss of consciousness prior to the breaking point, which then leads to earlier aspiration of water and a quicker death overall (Di Maio & Di Maio). For medicolegal investigations, these unusual circumstances account for some instances of true drownings where the diatom test is not helpful. There are no clear pathological findings to diagnose drowning during an autopsy. Typically, the diagnosis of drowning remains one of exclusion. When a body is found in water and all other causes of death are eliminated, drowning becomes the logical conclusion (Azparren, Vallejo, Reyes, Herranz, & Sancho, 1998; Gordon, 1972). Attempts have been made to study changes in electrolytes or blood chemistry as a means of clinically verifying cause of death (Di Maio & Di Maio, 1993; Gordon; Schwar, 1972; Timperman, 1972). Many other indirect indicators of drowning have been observed but lack quantitatively verifiable traits. For example, “washerwoman” hands can occur either prior to or after death and are therefore not a clear indicator of drowning. Hemorrhagic or white edema fluid is often present in the nostrils, mouth, and airways, but this is not always the case. Lungs are large and bulky and cross sections appear brick red and flow with edema fluid, but this can happen passively. Vegetation or river stones

clutched in the corpse’s hands may also be a sign of drowning (Di Maio & Di Maio). Again none of these indicators represent empirically testable traits clearly implicating drowning as the cause of death; they only suggest the possibility. Often other wounds present themselves at autopsy that may or may not have been the actual cause of death. Determining whether the person drowned or was dead at the time he or she entered the water is often dependent on deductive logic. First of all, in drowning cases the struggle for survival greatly depletes ATP levels in the body, hastening the onset of rigor mortis (Di Maio & Di Maio, 1993; Schwar, 1972). Primary injuries, like stab wounds, gunshot wounds, and other injuries can occur while the victim is still alive. Secondary injuries can occur postmortem and may include fish and other aquatic animals nibbling on the body, damage from propellers on boats, or the action of currents moving the body against rocks and logs (Spitz & Fisher, 1993). Further, due to the natural processes of water, blood is often drawn or washed away from primary and secondary wounds, rendering them bloodless and suggesting that they may be postmortem artifacts. This is deceiving; primary wounds may be the actual cause of death, changed by the action of the drowning medium (Di Maio & Di Maio). The challenge is to use careful investigation to reconstruct the sequence of events, a key area where the application of the diatom test can help confirm or deny investigative findings. “Putrefaction and postmortem mutilation both frequent and set limits to the investigation possibilities of drowned bodies” (Timperman, 1972, p. 399). The putrefaction rate of a body in water is roughly equal to half that of the same process on land. The rule of thumb stands as 1 week in open air, equals 2 weeks in the water, equals 8 weeks in the ground. Putrefaction occurs more rapidly in stagnant water where there are high counts of bacteria (Spitz & Fisher, 1993). Further, postmortem lividity is often difficult to recognize due to swelling and the loss of translucency of the upper layers of skin; the skin becomes waterlogged, particularly if the immersion was prolonged. The internal organs, however, display lividity in the

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usual fashion. Noticeable discolorations include intense livor mortis and possibly cyanosis. The livor mortis is due to the low temperature of the water causing the blood to settle rapidly to dependent tissues (Mayer, 1996). Finally, time of death determinations via algor mortis, postmortem cooling of the body to the surrounding environment, must be used carefully because several factors can affect the cooling of the body. A victim cools more rapidly in water than in air because water is a far better conductor of heat, speeding the process considerably (Sachs, 2001). Finally, factors such as cold temperatures, obesity, drug use, and the presence or absence of clothing can influence cooling rates. Algor mortis remains, as always, a dubious estimator of postmortem interval.

Forensic Value of the Diatom Test Diatoms find their way into the body via the inhalation of airborne individual plants, the ingestion of material containing diatoms, or the aspiration of water, leading to subsequent circulation of the diatoms into body organs or bone marrow (Di Maio & Di Maio, 1993). Central to forensics is the collection of diatoms from femoral bone marrow in drowning deaths. Diatoms are found in bone marrow in about 30% of all drowning deaths and at significantly lower rates (about 10%) in cases of bathtub or other city water drownings because diatoms and other impurities are filtered out of domestic water. If present in domestic water, they have most likely been introduced residually from household cleansers. These are unique and recognizable species, used for their value as abrasives, and therefore should not confound the informed investigator (Pollanen et al., 1997; Pollanen, 1998). The presence or absence of diatoms is linked not only to their ability to navigate the alveolar-capillary interface through the circulatory system and eventually into the bone marrow, but is also highly dependent on the traits and natural life cycle of local diatom communities. First, diatoms must be sufficiently tiny (typically less than 30 μm) in order to embolize into the circulatory system and pass into the bone marrow (Pollanen et al., 1997). Typically, no more than three distinctive species of diatom are found in any given bone marrow sample, and less than 10 individuals per sample are generally

discovered. Two primary types of diatoms tend to be found in the marrow—pennate diatoms, usually oval or elliptical in outline and having a length/width ratio of approximately 1:2 to 1:5, and radial diatoms. Pennate-shaped diatoms tend to predominate (Pollanen, 1997). Secondly, the concentration of diatoms in bone marrow and other tissues is directly proportionate to the concentrations of diatoms in the water (Timperman, 1962). If diatom levels are high within the drowning medium, linked to their natural cycle of blooms and die-offs, then their presence in bone marrow or other tissue increases (Pollanen, 1998). In the northern hemisphere, diatom blooms occur in April and August/September, with a persistently high level of dead diatoms present in the water throughout the summer. The winter shows the lowest levels of diatoms overall. “[D]iatom population dynamics suggest that the monthly incidence of positive test outcomes should correlate with the cyclic variation in the diatom population” (Pollanen et al., 1997, p. 282). To ensure proper application of the diatom test, every possible fact about the “totality of characteristics that render any scene unique” (the evidence environment) must be gathered and applied to an interpretation of the results of the test (Siver et al., 1994, p. 848). This includes sampling the suspected immersion fluid for comparison with the sampled tissue and bone marrow (Hendey, 1980; Ludes, Coste, Tracqui, & Mangin, 1996; Siver et al.). Diatom and algal communities vary from water source to water source. Bodies of water with similar chemical and physical compositions develop similar but not identical diatom communities. Sample population dynamics, therefore, suggest the higher the rate of similarity the more likely the test sample and the control originated from the same body of water. Therefore, the diatoms can be considered quasi-characteristic for that site (Ludes et al.; Siver et al.). In order for diatoms to reach bone marrow, the death must be a true drowning. In other words, aspiration of water is required to transport the diatoms (Pollanen, 1998). The transportation process works precisely because the diatom’s silica frustule is resistant to the mucus of the respiratory system and is able to embolize from the circulatory

system into internal organs (Pollanen et al., 1997). Bone represents a closed system, requiring the circulation of blood to bring the diatoms into the marrow, where other organs such as the lungs may become invaded passively. Bone marrow is therefore preferable to all other sources of diatoms because those deposited are the ones most likely done so antemortem (Pollanen et al.). For this reason diatoms taken from external body cavities or the lungs must be treated with caution (Auer, 1991). It has been suggested, however, that diatoms from external body cavities (nose, throat, and ear canals) and those found in other tissues (lungs, brain, kidney, liver, and spleen) may provide additional confirmatory clues to those found in bone (Ludes et al., 1996; Pollanen, 1998; Siver et al., 1994) as well as increase the proportion of positive test results, because larger diatoms may find their way into these places (Pollanen, 1997). However, this should only be used in instances when a body is not decomposed or the chest-cavity lies open because the chance of passive suffusion greatly increases (Azparren et al., 1998; Ludes et al). It has been suggested that marrow of the sternum may be as good of a source of diatoms as femoral tissue. In certain instances it has been shown to yield a greater volume of individual diatoms. The depositional interval for sternum marrow is considerably shorter than for femoral marrow, and since the sternum is removed at autopsy, this minimizes mutilation to the cadaver (Timperman, 1962). The classic method for the diatom test is discussed in detail throughout the literature and proceeds as follows. Samples are collected from the suspected drowning victim. Pains are taken as to not contaminate the sample with foreign diatoms during the process. Intact femurs, for example, are removed at autopsy and washed in distilled water. Femurs are longitudinally sectioned using a clean band saw, and the bone marrow (about 50g) is removed using a clean spatula and placed into a boiling flask. Approximately 50mL of concentrated analytical-grade nitric acid is added to the flask, and the marrow-acid suspension is boiled on a hot plate for approximately 48 hours under a fume hood. The suspension is then cooled and centrifuged, in some instances two separate times, with the supernatant

discarded and the resulting acid-resistant material dropped onto clean microscope slides. Electron or dark phase microscopy are currently the main methods used for analysis. These allow for more detailed imaging than simple light microscopy (Pollanen et al., 1997; Timperman, 1969). The diatom test is considered positive when unequivocal diatoms are present on the slide. Incidences of positive diatom tests should be analyzed in relation to the season and month of drowning, if possible. As previously discussed, these factors can have an enormous effect on the number of diatoms discovered and the different genera represented. Discordances between diatoms found in the body and those in the putative drowning medium may suggest that either natural currents or human activity has moved the body, thus highlighting the importance of sampling the water source where the body is found (Pollanen, 1998). Additionally, the diatom test is able to help ascertain the cause of death in cases when a body is found on land, sometimes far from water, and when all other causes of death have been eliminated. Rarely in these cases has it been discovered that the victim did in fact drown, despite his or her remote location. The diatom test has been able to confirm this. By comparing the genera and species of diatoms found to regional samples, it may then be possible to localize the original site of a drowning in such cases (Pollanen, 1998). Investigations of homicidal drowning can benefit from the diatom test in two important ways: (1) the confirmation of a diagnosis of drowning made at postmortem examination and (2) the detection of drowning in cases of homicidal deaths involving extensive decomposition or postmortem burning of the body. As an infrequent method of homicide, murder by drowning may go unnoticed. Forensic corroboration of a thorough police investigation, in the form of the diatom test, can help minimize that risk. It is particularly helpful in cases where the body is transported from the putative drowning medium to a dry site on land (Pollanen, 1998). The presence of diatoms in the bone marrow, one must remember, is proof that the individual was alive when he or she entered the water. This means that the cause of death, at least in part, was due to the drowning.

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However, it is important to remember that the absence of diatoms does not immediately rule out drowning; the test does not prove the negative, and a thorough investigation is always required. Again, if specific types of diatoms recovered from the marrow can be matched with those found at the suspected drowning site, the results might implicate a particular locale of submersion and help identify the death scene, which in turn could lead to additional forensic evidence. The presence of diatoms can also corroborate investigative evidence in making accident determinations (Pollanen, 1997, Pollanen et al., 1997). Accidental drownings typically occur in the summer months, in pools or other swimming areas where the victim has ended up underwater, or in bathtubs when complicated by natural disease (e.g., epilepsy, coronary artery disease). These can generally be ruled as accidental based on eyewitness testimony and other straightforward information gained during a standard police investigation including medical records or autopsy evidence of disease (Pollanen, 1998). In cases, however, where eyewitnesses are lacking or classical findings of drowning are not present, due to, for example, extensive aquatic putrefaction or dismemberment by ship propellers, the diatom test can be useful in establishing the taphonomic history of the time since death and perhaps confirm or deny a death by drowning (Pollanen, 1998). The diatom test is not without its detractors however. Perhaps the most ardent criticism of the diatom test is the fact that diatoms may be seen in the tissues and bone marrow of those who have died by means other than drowning and who are not found in water. This is due to diatoms that are ingested in other material or inhaled from the air, symptomatic of the most general failing of the diatom test, false positives (Ludes et al., 1996; Pollanen, 1998; Pollanen et al., 1997). These can occur either when contamination of a sample has occurred or in the instances where diatoms are discovered within the body of someone who obviously has not drowned. Numerous authors have addressed these two points, both of which can be controlled for and resolved via the same basic premise; aquatic diatoms are diagnostically different from those living in other environments.

First, diagnosis should be made using only closed organ samples, preferably bone marrow. As previously mentioned, in instances where the body is open or the organs damaged, or in the case of passive inhalation to the lungs, an assumptive diagnosis of drowning can be dangerous. The lungs or exposed organs may result in a positive test result while the bone marrow or closed kidney, spleen, or liver tissue may be negative (Ludes et al., 1996). Secondly, the risk of contamination is a major consideration when conducting any forensic test. The centrifuge process requires a great deal of fresh water, and it must be ensured that this water is free of foreign diatoms; otherwise the test loses all validity (Pollanen, 1998). The primary sourced of this contamination are the reagents and the band saw or other tools used to collect or cut open the bone and other samples (Auer, 1991; Pollanen et al., 1997). However, contamination will not go unnoticed for long. The likelihood that the contaminants and the sample diatoms from the drowning site represent similar populations and species ratios is remote, considering the approximately 100,000 known species. To ensure an accurate comparison is feasible, the site of a suspected drowning (putative drowning medium) should be sampled and tested for diatoms as well, and the results should be compared to those from the test bone marrow or other tissue (Pollanen, 1998). This will also help control for false positives resulting from inhaling airborne diatoms. Knowing the species generally present in local waterways and comparing them with those found in the test sample will render the false positive invalid. Analysts in this arena often “fail to distinguish between diatoms that are present in the immersion fluid . . . and extraneous diatoms that are present as contaminants,” (Hendey, 1980, p. 289) since pathologists may not know the differences between genera of diatoms or even between airborne, soil, and aquatic species. A discussion of this issue (in a forthcoming issue of The Forensic Examiner®) will present the new modalities, suggesting that the diatom specialist is a beneficial partner to the medicolegal investigation. In defense of the current methodology of the diatom test, Pollanen and his colleagues

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(1997) have engaged in numerous quality control tests of the procedure. They have found, under repeated testing, that where there are no diatoms in the body of water of the suspected drowning, there are no diatoms present in the body. This verifies the accuracy of the negative test result. Furthermore, paired drownings yield the same diatom species. This verifies the accuracy of the collection method and the regularity of the process by which diatoms are deposited in bone marrow, increasing confidence in the soundness of the test as a whole. The utility of the diatom test for drowning is directly linked to the incident of positive test results. With an occurrence of less than one third, the majority of drowning cases do not benefit from this method. Pollanen et al. have suggested three chief reasons for the low instances of positive test results (1997). First, the method of collection may not extract all the diatoms present in a sample and may miss diatoms altogether if only one or two individuals are present in the bone marrow—an issue that will be addressed later in a discussion of new methodologies (increased test sensitivity). Secondly, victims with heart conditions or other weaknesses of the circulatory or pulmonary systems who hyperventilate and pass out underwater or who experience a laryngeal spasm may die more quickly. This leads to a decreased volume of inhaled water and a lessened window of time where the circulatory system can embolize the diatom-containing medium (Auer, 1991; Ludes et al., 1996; Pollanen et al., 1997). Finally, there is a relatively low volume of blood circulating to and through the bone and bone marrow (Pollanen et al., 1997). This fact makes the investigation of other major closed organs all the more important. Relying on negative test results based on the bone marrow alone may lead an investigator to miss what is actually a positive indicator of drowning. Again, however, care must be taken to investigate only closed organs. The suggestion given here is a balanced approach where care is taken to avoid contamination or insecure sources of diatoms, but where every possible secure diatom source is investigated and tested. Further, the authors contend that the development and testing of new modalities may increase the sensitivity and reliability of the diatom test.

Conclusion The diatom test, while extremely specific, is of immense value considering the limited objective tests available for drowning diagnoses. However, the test has remained relatively unchanged in the 40 years since it was developed. In examining the modality, however, it became clear that some of the current criticisms and unspoken shortcomings could be addressed with original thinking and new methodologies. A fresh outlook is necessary to rekindle use of this important application to medicolegal investigations. What remains is for scientists engaged in forensic research and application to test and develop what may well prove to be invaluable new additions to the diatom test for drowning. An overview of the current state of the science has been offered here; an outline for future research in this important area is forthcoming. References Auer, A. (1991). Qualitative diatom analysis as a tool to diagnose drowning. American Journal of Forensic Medicine and Pathology, 12(3), 213–218. Azparren, J. E., Vallejo, G., Reyes, E., Herranz, A., & Sancho, M. (1998). Study of the diagnostic value of strontium, chloride, haemoglobin, and diatoms in immersion cases. Forensic Science International, 91, 123–132. Darley, W. M. (1977). Biochemical composition. In D. Werner (Ed.), The Biology of Diatoms (pp. 211–215). Berkeley: University of California Press. DiMaio, D. J., & DiMaio, V. J. (1993). Forensic pathology. Boca Raton: CRC Press. Duke, E. L., & Reimann, B. E. F. (1977). The ultrastructure of the diatom cell. In D. Werner (Ed.), The Biology of Diatoms (pp. 65–66). Berkeley: University of California Press. Gordon, I. (1972). The anatomical signs in drowning. Forensic Sciences, 1, 389–395. Haglund, W. D., & Sorg, M. H. (1997). Forensic taphonomy: The postmortem fate of human remains. Boca Raton: CRC Press. Hendey, N. I. (1980). Letter. Medicine, Science, and the Law, 20(4), 289. Ludes, B., Coste, M., Tracqui, A., & Mangin, P. (1996). Continuous river monitoring of the diatoms in the diagnosis of drowning. Journal of Forensic Sciences, 41(3), 425–428. Mayer, R. G. (1996). Embalming: History, theory and practice (2nd ed.). Stamford, CN: Appleton & Lange. Patrick, R. (1977). Ecology of freshwater diatoms and diatom communities. In D. Werner (Ed.), The Biology of Diatoms (pp. 285–317). Berkeley: University of California Press. Pearn, J. (1985). Pathophysiology of drowning. Medical Journal of Australia, 142, 586–588.

Pollanen, M. S. (1997). The diagnostic value of the diatom test for drowning II, validity: Analysis of diatoms in bone marrow and drowning medium. Journal of Forensic Sciences, 42(2), 286–290. Pollanen, M. S. (1998). Diatoms and homicide. Forensic Science International, 91, 29–34. Pollanen, M. S., Cheung, C., & Chaisson, D. A. (1997). The diagnostic value of the diatom test for drowning I, utility: A retrospective analysis of 771 cases of drowning in Ontario, Canada. Journal of Forensic Sciences, 42(2), 281–285. Sachs, J. S. (2001). Corpse: Nature, forensics, and the struggle to pinpoint time of death. Boulder: Perseus Publishing. Schwar, T. G. (1972). Drowning: Its chemical diagnosis: A review. Forensic Science, 1, 411–417. Siver, P. A., Lord, W. D., & McCarthy, D. J. (1994). Forensic limnology: The use of fresh water community ecology to link suspects to an aquatic crime scene in southern New England. Journal of Forensic Sciences, 39(3), 847–853. Spitz, W., & Fisher, R. S. (1993). Spitz and Fisher’s medicolegal investigation of death. Springfield, IL: C. C. Thomas Press. Timperman, J. (1962). The detection of diatoms in the marrow of the sternum. Journal of Forensic Medicine, 9(4), 134–136. Timperman, J. (1969). Medico-legal problems in death by drowning. Journal of Forensic Medicine, 16(2), 45–76. Timperman, J. (1972). The diagnosis of drowning: A review. Forensic Science, 1, 397-409.

About the Authors Edward J. Rohn, MA, is a PhD student with a concentration in medical, business, and organizational anthropology. He is a research interviewer on the HAART Project, an anthropological study funded by the National Institutes of Health and designed to explore adherence to antiretroviral medications among HIV-positive African American individuals living in Detroit. He holds a master’s degree in interdisciplinary studies and a post-bachelor’s certification in forensic investigation from Wayne State University and a bachelor’s degree in anthropology and sociology from Albion College, Albion, Michigan. His current research interests include organizational culture, stress-related illness, health-seeking behavior, and the anthropology of work among law enforcement officers, as well as the development of a

police identity as balanced against quality of life issues. Most recently he completed research into the culturally appropriate means of bonding and friendship formation between young men in American society, including the role of shared experience, ritual participation, and constructions of masculinity. Peter D. Frade, PhD, currently serves as associate professor and chair of the Department of Fundamental and Applied Sciences where he is a member of the full-time faculty and serves as program director of both the Anatomic Pathologists’ Assistants and Mortuary Science programs. His department is part of the Eugene Applebaum College of Pharmacy and Health Sciences at Wayne State University in Detroit, comprising the mortuary science, the anatomic pathologist’s assistants, and the post-bachelor forensic investigation programs. Prior to his full-time academic appointment in 1996, he was employed as a senior toxicologist in the Department of Pathology at Detroit’s Henry Ford Hospital for 28 years. His areas of specialization focus on hyphenated instrumental techniques as applied to clinical and forensic protocols. He has authored and co-authored over 25 papers, serves as a peer reviewer for numerous scientific journals, and is on the Forensic Medicine Editorial Board of the Annals of Pharmacotherapy. He is a member of the American Chemical Society, the American Institute of Chemists (Fellow), the Royal Society of Chemistry (United Kingdom), the New York Academy of Sciences, the National Academy of Clinical Biochemistry (Fellow), the Association of Clinical Scientists (Fellow), and the American College of Toxicology. He has been a member of the American College of Forensic Examiners since 1997. Earn CE Credit To earn CE credit, complete the exam for this article on page 66 or complete the exam online at www.acfei.com (select “Online CE”).

Fall 2006 THE FORENSIC EXAMINER 15

Hurricane Morgue Operations: Two Forensic Professionalsâ&#x20AC;&#x2122; Perspectives 16 THE FORENSIC EXAMINER Fall 2006

This article is eligible for CE credit in the following categories: ACFEI and CMI. See page 4 for a key to these CE abbreviations and complete CE approval statements.

Key Words: morgue, Katrina, disaster, forensic dentistry, caskets, DMORT

Abstract This article relates the experiences of two professionals, one a dentist and the other a crime scene detective, deployed by the U.S. government to serve in Louisiana at morgues after Hurricane Katrina made landfall in 2005. In the first section, we depict the temporary morgue and the living conditions at the facility in St. Gabriel, Louisiana. In the second section, we describe conditions of the newer morgue and casket recovery operations in Carville, Louisiana. In this article we provide a glimpse of the current status in the United States of the roles, physical conditions, and activities of morgue workers in a mass disaster.

“Mortui Vivis Praecipant” Inside the morgue the sign reads, “Let the dead teach the living.” It serves to remind us of our mission to identify victims and help families find closure in the tragedy of Hurricane Katrina. This article relates the experiences of two professionals, a dentist and a crime scene detective, deployed by the Department of Homeland Security in late 2005. Both specialists are members of a Disaster Mortuary Operations Response Team (DMORT).

By Barbara L. Needell, DMD, and Christine Kruse-Feldstein, BS

The DMORT System After a mass disaster, our government usually deploys teams to assess the damage, rescue the living, and recover the dead. It is an operation that may span weeks or months, as in the Hurricane Katrina mission. Under the Depart-

ment of Homeland Security and FEMA, DMORT is the group trained to identify the deceased so they may be returned to their families. The morgue operations workers have various functions depending on how soon they arrive after the incident. The first team sets up the morgue. The second team processes intact bodies while subsequent teams work with decomposed remains, skeletonized remains, and unburied caskets. In the first section of this article, Barbara L. Needell depicts the temporary morgue and the living conditions in St. Gabriel, Louisiana; in the second section, Christine Kruse-Feldstein describes conditions of the newer morgue and casket recovery operations in Carville, Louisiana.

Fall 2006 THE FORENSIC EXAMINER 17

1. The St. Gabriel morgue 2. The St. Gabriel morgue compound 3. A New Orleans parish under water

St. Gabriel On August 29, 2005, Hurricane Katrina hit Louisiana and Mississippi, breaching levees, flooding the parishes, and virtually destroying New Orleans. The national team was put on deployment alert from federal headquarters in Washington, DC, and strike teams were sent to the region to be in place even before the storm landed. One strike team went to Mississippi (Region IV, my region) and one went to Louisiana (Region VI). After the storm subsided, the advance teams assessed the damage and set up morgues to prepare for the victims. On Sunday, September 18, at 10:00 p.m., my commander called and asked, “Can you leave right away?” I was to report to St. Gabriel, Louisiana, to assist in the west morgue. By midnight, I finalized all transportation arrangements and planned to take the 8:00 a.m. flight out. I woke my children at 6:00 a.m. to give them the news

that I would be leaving them for at least 2 weeks. Even though I had already prepared them for this moment, at 10 years old my twin girls trembled with anxiety for themselves and worry for me. I promised them I would call daily and that my parents and their father would take care of all their needs. When I left, I was more worried about them than about myself. On my arrival in Baton Rouge, I called my phone contact who told me to take a shuttle to a local hotel. As I got off the shuttle, the bellhop recognized my shirt; I had worn my uniform that announced I was not an ordinary hotel guest. He quickly escorted me through the hotel to a guarded room in which I had to fill out paperwork, and I was soon ushered to a car waiting to take me to the morgue in St. Gabriel, about a 25-minute drive away. At headquarters more paperwork awaited me. I had my photographic identification card made, which said “Morgue Ops”

18 THE FORENSIC EXAMINER Fall 2006

(Ops for Operations). This ID had to be worn at all times in the facility and could never be worn outside the facility. We were never to be identified as morgue workers to the general public. Another of our strict rules demanded that we never speak to the media because we had trained information officers for that. After a tour of the facility, I was taken to our supply room for a cot, blanket, and inflatable pillow. Then I had to find a place to live for 2 weeks. At first I considered the large tents. There were two of them set up in an adjacent field, and each could hold 30 people, but there were many fire ants in the grass where my gear would be, and in the middle of the night the brief walk to the restroom would feel like a mile. Because our facility was established in an abandoned school, I checked out a few classrooms, found a spot in a coed room, and set down my cot. A few hours later I met a familiar face, a dental assistant I had trained with, who said

there was room in the all-women’s billet. I relocated there. Fifteen or so of us chose the crowded room, but at least we had feminine privacy. Because it was close to dinner time, I joined a few of the women to eat at our dining tent. An Alaskan company, North Slope, prepared our food, and the menu was based on a 6,000-calorie-a-day diet. Already suffering from culture shock, I couldn’t eat much, but I knew that when my appetite returned I would have to use restraint not to gain weight. These caterers were accustomed to feeding firefighters, and they prepared delicious meals. My new microcosm was this dilapidated high school, consisting of outdoor corridors leading into a large gymnasium. Each corridor had adjacent classrooms, and many of the windows were broken with cardboard replacing the glass. Air conditioners had been placed in one of the window slots in each room, so schoolrooms were now bedrooms and offices. Two tents served as sleeping quarters and other tents as meeting areas. Bathrooms, both from the run-down school and portable toilets, were a short distance away outside. Caterers served from a trailer on a large field with a tent as shelter from the powerful sun; another trailer contained showers, and still another housed laundry facilities. Armed guards monitored the entrance to and from the area. Nobody could leave the facility until morgue operations were shut down for the day. Then, vehicles were available for sign-out by any of the volunteers.

My New Neighbors We had funeral directors, chaplains, nurses, detectives, anthropologists, pathologists, psychologists, and weapons of mass destruction (WMD) personnel. (The WMD personnel were responsible for decontaminating human remains.) When I first arrived, our dental group had only one hygienist and one assistant, and the 20 dentists included oral surgeons, orthodontists, and prosthodontists as well as general practitioners. On my third day, just when I was getting used to my dental group, four of them left, and by the end of my first week we were down to 12 and begging for new faces. When they came, they lacked the experience of our previous group, and I had to take on the role of trainer instead of trainee. I realized during that first week

that I had been privileged to work with the top forensic dentists in the country.

Our Work Behind the Tarps As difficult as our living conditions were, the morgue was more shocking. Before we could enter the morgue, we had to report to the medical room to have our weight and blood pressure taken. If cleared, we walked past the reefer trucks (refrigerated trucks containing the human remains) and mounted the ramp to the guard who inspected our identification cards that had to say “morgue ops.” Other camp identification cards said “support staff,” and the bearers of those cards were not allowed in the morgue. Inside, we put on protective equipment that consisted of Tyveks (onepiece protective jumpsuits), gloves, and masks. A nurse was there to help. Our names were marked with a permanent marker on the front of our Tyveks. Once appropriately suited up, I headed through two tarps into the morgue. Immediately a blast of air from the air-conditioning system vents hit me. The temperature had to be kept cold to keep the cadaveric odors down, the workers cool in their gowns, and the bodies from decomposing. When entering for the first time, I was shocked by the large number of people in white Tyveks who were walking around. I couldn’t tell who was female or male, fat or thin, blonde or brunette. It was like some futuristic movie. The only noise came from the powerful fans that propelled the air. The human silence was eerie. Each of the morgue sections had a separate station. The first people I observed were trackers, who I think had the most difficult job of all. These people were assigned a body when it came out of the reefer truck and after it had undergone decontamination procedures. They wheeled the body from station to station and had to get paperwork signed when each station finished its work. Because some stations took 30 or 40 minutes, the trackers had to wait, and chairs were placed throughout the morgue for trackers’ use only. When they completed their rounds, they would get another body and repeat the process. The Bodies When a body was first found in the community, its location was marked, and an

independent company or a government strike team came to pick up the body and deliver it to the morgue. At the morgue the body was transferred to a reefer truck. When the morgue began its daily operation, usually at 7:00 a.m., a reefer truck would back up to the warehouse, and workers would open it in the decontamination area of the morgue. At the first station was the HAZMAT (hazardous materials) team, who would bring out a body and decontaminate it with a bleach solution. They would re-bag it and place it on a new gurney before moving it over for number assignment. The body and bag would receive a number in sequence. The next station was assessment and was where workers would confirm the tag number and assign a tracker. The body then went to pathology where a cause of death could be determined and the body could be examined for any potentially identifying medical abnormalities (e.g., a hip replacement or prosthetic leg). Then the tracker would wheel the body to personal effects, where anything found along with the victim was logged and photographed and placed in resealable bags. From there, the body went to the fingerprint section. Fingerprinting took at least a half hour to complete. Next was the dental section, which could take 30 to 40 minutes. Details about the dental section are included in the following section. After dental the body would move to x-ray and then would turn around and head back to the other side, first stopping at DNA where a small piece of the tibia would be cut out. Then the body would be wheeled to the medical examiner’s station. The New Orleans medical examiner’s staff would perform an autopsy, after which the tracker would take the body to checkout. Here the body would be rewashed and re-bagged. Then it would go into another reefer truck, where it would remain until released to the family. Even though I worked in the dental section, I made time to observe the other jobs, admiring the organization of each team. There was very little talking when a body was present; it was treated with respect and handled gently. In between, when we waited for our next body, sometimes an hour, we socialized quietly, but this all halted as soon as the fingerprinting station finished a body and moved it to our station.

Fall 2006 THE FORENSIC EXAMINER 19

Work in the Dental Section The dental area had a leader, a photographer, an information technician (IT), and three stations. Each station had three people (or positions). Position one was the cutter. He or she would remove any dental appliances, clean the teeth, and position the x-ray sensor. The cutter would never cut into the mouth unless absolutely necessary and only with approval from the dentist in command. Position two was the shooter. He or she would hold the NOMAD handheld x-ray unit and shoot the exposure. The third position was the computer position. This person was considered in charge of the group because he or she had to approve the radiographs taken, set the pace of the exam, and sign the paperwork for each victim. The computer person was also designated as “clean” and was the only person who could use the computer. The other two position workers were not allowed to touch the computer or its user so as not to contaminate them. Gloves and masks were not changed between exams, so the working area was considered unclean. The dental exam consisted first of photographing the victim. There was one dental photographer who took 5–10 photos per victim. After these were done, the cutter would examine the teeth, and all findings were entered into the computer after which digital x-rays were taken through a sensor connected to the computer. The computer staff then made sure that all of the x-rays and the charts were assigned to the correct victim by using the WINID program. This program, developed by Dr. James McGivney, was specifically designed for dental disasters, and it performed well beyond our expectations. We could not have done the work we did as well as we did without WINID. I had the opportunity to work at all of the dental stations, but my primary assignment was to the computer. I have since used the knowledge I gained in other disasters, most notably the recent Chalk Air crash off of Miami Beach, Florida. When my shift was over in the morgue, I would head back to the medical room. There my temperature, weight, and blood pressure were taken again to make sure I wasn’t dehydrated or hyperthermic. Once released, I was free to do anything I wanted as long as I stayed in camp. If needed, I could be called back to the morgue at any

time to work another shift. I was required to be on call for approximately 12 hours each day. The current fatality statistic varies depending on the source. In my journal, I kept count of how many bodies the dental team processed each day: 75, 19, 37, 28, etc. As of September 22, 2005, I had a tally of 522. It was interesting that as our leadership changed, so did the information given to us by our camp commander. After my first Thursday, which was September 22, 2005, the new commander no longer informed us of camp totals; by my second week, however, I knew that the dental team was averaging 5–15 bodies daily. The only days we did not have to report to work were Saturday and Sunday, September 24 and 25. On the Friday evening of September 23, Hurricane Rita stormed in and took out our electricity and power, and we prepared for evacuation. I had the dubious pleasure of sandbagging the morgue until 2:00 a.m. The water level came up to the warehouse loading area and threatened to flood our morgue. Despite the heavy winds and rain, we formed a line and protected our work areas. My arms and back were sore for the next 3 days! When on a government mission, you are responsible to perform whatever job is necessary; our physicians, dentists, anthropologists, and even clergy were sandbagging. Up until 2 days before my deactivation, all of the dental work in the morgue dealt with human remains. Several boxes of antemortem (before death) dental records had begun to arrive, mostly from convalescent homes in New Orleans. However, they were too contaminated to be opened. Because we were averaging only five bodies a day now, we took the boxes into the morgue and began the careful task of opening them. Most were water-damaged, and the writing was unreadable. We laid out the dental radiographs to dry and then digitally photographed them, transferring the photographs to our computer system. After the first 10 records went in, we did a best-match evaluation. We were amazed that the antemortem radiographs exactly matched postmortem radiographs! Because our job was to gather information and provide it to the state medical examiner, we noted the matches only. The state medical examiner evaluated our conclusions and, if

20 THE FORENSIC EXAMINER Fall 2006

he agreed, released the body to the family. Because the medical examiner was not stationed at St. Gabriel, we never had to field media questions or deal with family members. The dental group became smaller in the weeks after I left Louisiana. There were fewer bodies, so morgue operations consisted mostly of dealing with antemortem records. In November, the morgue moved into a “permanent” facility in nearby Carville, Louisiana, and in February of 2006 that morgue, too, was permanently closed. As my airplane landed in Ft. Lauderdale, I wondered if I appeared as changed as I felt. I looked around at the other passengers, busy gathering their possessions, and thought, these people will never have the opportunity to see and do what I’ve just done. I wondered if their hearts would ever feel the pride of achievement that I felt. When I reached the car where my husband and children were patiently waiting, I knew I had made the right decision to go. I accepted all their hugs and kisses eagerly. I reminisce on my St. Gabriel experience daily, and I value the time I have with my family so much more because of it.

Carville, Louisiana When a disaster is too big for local government (in this case the Louisiana coroner system) to handle, DMORT is activated to assist with the dead. With Hurricane Katrina, which made landfall as a Category 4 storm, not only did the coroners have to deal with storm and flood victims, but also with unearthed coffins and many of the above-ground cemeteries that sustained severe water damage. Just like any other big government event, it’s always “hurry up and wait.” I have been part of law enforcement for a long time, 10 years with the Miami-Dade Police Department with almost 9 years working crime scene investigations. I’m familiar with working the big cases. After receiving the call that I was on standby from DMORT, I knew that after packing my suitcase my second task would be to wait. Still, I refused to unpack, knowing that as soon as I did Murphy’s law would take effect. After a week passed with no word, I reluctantly unpacked. Then I got the second call. Hurricane Rita was rolling through Louisiana, bringing more damage to an al-

4. An unearthed casket 5. The Carville compound 6. The Carville morgue

ready devastated area. I expected to go any minute. When Rita passed, I was still waiting. A friend who was already there asked, “When are you coming? I am saving you a sleeping space.” I was about to give up, when suddenly, right after Christmas Day in 2005, I found myself on my way to Louisiana. Along with other DMORT members, I was picked up at the airport and taken to Carville, Louisiana, the middle of nowhere. As a sidenote, for over a century (from 1894 until 1999) Carville was the site of the only in-patient hospital in the continental United States for the treatment of Hansen’s disease, the preferred designation for leprosy (Gaudet, n.d.). On the way, we passed the old morgue compound at St. Gabriel. There hadn’t been much news, so I figured that most of the Katrina victims had been recovered. When I arrived, however, I learned a different story (Table 1). I was as-

signed to the casket recovery detail, which meant I would be helping to recover previously interred remains and any personal effects from inside the coffins that were still being found. The strike team, a group of people who located unearthed coffins, would search mapped areas. The caskets might be in gator-infested swamps, under layers of mud or debris, in wooded areas, or on top of demolished buildings. There were apparently quite a few that remained to be found and processed. The team used construction equipment, ropes, old-fashioned elbow grease, trucks, and even helicopters to get the disinterred coffins out of the area. Once loaded onto trucks from all over the affected Louisiana area, the coffins were taken to the new morgue in Carville. The Carville compound had two security points with armed guards where we showed our identification. We proceeded to the ad-

ministration office to fill out paperwork and received our morgue passes. Once we were inside, I saw that the whole place was under surveillance via cameras. After finding my sleeping quarters for the next 2 weeks, my first thought was, “My god, I’ve been in jail cells bigger than this!” But staff people reassured me that the arrangements now were much better than they had been. During the early days, DMORT workers had slept in the reefer trucks on plywood boards, and they had been grateful because that was the only place that was air-conditioned. Six billets represented typical dorm-style living with a main area that had a refrigerator and microwave and a shared bathroom down the hall. After unpacking, I received a tour of the compound. Both the main building and the morgue were tent-like semi-permanent buildings. The main building consisted of offices, a cafeteria, a recreation room, a laundry room, and a supply warehouse––

Fall 2006 THE FORENSIC EXAMINER 21

Table 1: Katrina Figures

(As of February 24, 2006) Human remains examined Human remains released Human remains ready for release Identity unknown Identified Storm-related deaths ME cases not storm related

910 750 74 86 816 727 23

our DMART. Because water was an issue, we drank bottled water. When you turned on the sink the water would be brown for a few minutes because workers were working on the water system, which was only acceptable for showering. In the early days workers didn’t have the luxury of bathing. Baby wipes were their only form of cleansing. The recreation room offered some access to the modern world, including television and wi-fi (Internet access). The password key to get into the system was literally longer than the VIN number on your car. Talk about the federal government wanting security! Cell phones worked sporadically depending on the individual’s service provider. I was eager to begin my work in the morgue but had to wait until my shift began the next morning. I explored the compound and found rows of semi-trailer reefer trucks that contained the unknowns. These included unidentified Katrina storm victims, identified but unreleased storm victims who had not been picked up by funeral homes, and unearthed caskets awaiting identification. My day started at 7:00 a.m., but I was so excited to be part of this operation that I woke up even earlier. After eating the typical Southern breakfast with grits, I joined the others for roll call and our camp briefing. We began each day with the Pledge of Allegiance and a moment of silence for the deceased. We were then given any new information that the commander felt we needed to know, and we reported to our assignments. I finally got to enter the morgue. Before entering the main area of the morgue, I went to an area for donning personal protection equipment (PPE). I knew how to suit up for crime scenes, but the procedure here required more layers than I was used to. I would begin by putting on a pair of gloves, and then I put on my Tyvek suit and made a hole in the fabric for my thumb. A second pair of gloves went over the first, and I would duct tape them to the

Tyvek suit. I would put on another pair of booties, which had to be duct taped over the Tyvek boots. I continued with another pair of gloves and arm sleeves, and duct taped these together. I ended with two more pair of gloves, an apron, a surgeon’s cap, a mask, and a face shield. I found all the layers necessary, mainly because contaminated remains covered me by the end of my shift. When I took the outside PPE layers off, I was left with clean gloves to assist with removing less dirty PPE underneath until finally I was down to my uniform and the last clean pair of gloves. One of the daily rituals that acted as a form of stress relief was writing on each others’ Tyvek suits. Sayings and drawings of tattoos, as well as a multitude of inside jokes, were on the backs, arms, and chests of the suits. When I finally entered the Carville morgue, I was astonished. A lot of thought had been put into its construction. Brightly lit, it was large and roomy, and I learned how the various areas were designated. On one side of the morgue was decontamination, which consisted of spraying down the remains with a bleach solution, photography, personal effects, and dental. The other side of the morgue had anthropology, DNA (mitochondrial), pathology (two sections), and x-ray. Each of these sections had its own space with some of the latest technology available. At the far end of the morgue, a huge American flag hung from the ceiling. This was where the trucks came up and dropped off the deceased we were working on that day. A big tarp was put down on the ground for reasons I was not really clear about until later. As the coffins and/or storm victims came off the truck, someone had the job of verifying the number on the body bag or coffin. This individual also assigned the tracker. The tracker moved the body from station to station and was responsible for obtaining signatures from each morgue section after it completed its examination. The deceased had two numbers assigned. The first was a 6-digit number, the format being 01-1234. The first two numbers represented the parish that the deceased came from, and the last four represented that deceased’s case number. The second set of case numbers was a combination of three

22 THE FORENSIC EXAMINER Fall 2006

Table 2: Disinterred Remains (As of February 24, 2006) Total received Total processed Identified Total casketed Released caskets

614 614 222 614 602

numbers with a format 01-02-03 or A-0203. This number was given to the deceased as the remains were placed on the truck. The first set of digits defined the truck, the second set of digits represented the row, and the third set designated the space in the row. All of the Katrina storm victims were assigned numbers while all the unearthed coffins were assigned letters. Katrina victims were normally referred to as “storm victims,” and the unearthed coffins were referred to as “casket assessment.”

My Work Area The area in which I worked was called decon. When the coffins were opened and photographed, they were sprayed with a decontamination solution of bleach. The remains from inside were then placed on a gurney, and any other identifiable items were removed from the coffins and placed on the gurney with the remains. Some coffins contained water, mud, adipocere (insoluble fatty acids left over from a cadaver), decomposition fluids, and embalming chemicals. We had to search for bones, teeth, and dentures. We also searched for personal items, such as photos and letters that families left in the caskets, and any other personal items that were put inside the casket. Anything helped in the identification—from the clothing the deceased had been buried in to the personal notes that had been placed inside the coffin. Sometimes we got lucky by finding a memorial tube that had a properly filledout form. More often than not, though, when the tube was opened the form was blank. There were many caskets from earlier generations that held no information and revealed no traceable family. When we finished our analysis, the remains were sent for re-casketing (Table 2). We had to be careful of broken glass from photo frames or eyeglasses, straight pins from flowers pinned to cushion linings, and rusted metal mattress frames. We had the choice of wearing thick rubber gloves

Table 3: Other Facts

(As of February 24, 2006) • DMORT conducted more than 12,000 VIP interviews. • One hundred and eight missing persons were found via shared database information from the Find Family National Call Center (FFNCC) and the FEMA National Processing Center. • Missing persons now number fewer than 2,000. • Most storm victims (90.5 %) have been identified. • As of March 18, 2006, all disinterred remains have been returned to the local parishes.

that reduced our sensitivity or extra gloves that prevented us from getting stuck. It was relatively easy to remove some bodies, but others weighed a lot or were so fragile that they fell apart. Because some were from family plots, there could be multiple individuals in one body bag. It was a custom for the area in Louisiana to use the same plot for multiple family members. By the end of our day, the tarp that the caskets were opened on and our outfits were covered with mud and other fluids. On a typical day, we would process about 21 caskets and make numerous reassessments, which consisted of counting the number of victims still awaiting positive identification. As more information flowed into the family assistance center (FAC), the deceased were evaluated with new information for positive identifications. The FAC was a group of individuals who would continuously make or attempt to make contact with the families. They would interview family members (VIP interviews) as well as obtain the paperwork, photos, and medical histories and attempt to get DNA standards. They were also the record keepers of our operation (Table 3). After the deceased were processed for the day, cleanup began. Because there was no special cleanup crew, we were the crew. The cleanup first started with sweeping up all the dry, loose dirt. Then, with a solution of water and bleach, we mopped the entire morgue. The hard part was the tarp; it was normally caked with mud, and sometimes we scrubbed the tarp two or three times before it was reasonably clean. All other sections were also swept and mopped before we left for the day. By the time I got back to my “cell” at night, I was always exhausted. Most of my bones and muscles hurt from the day’s activities. When I closed my eyes at night, I would see the remains of the daily routine. Although I was only there a relatively short time, when I left I really felt that I had been

a part of something important. I felt I had helped give families closure and put their loved ones back into an appropriate resting place. That alone was worth every muscle ache, missing my birthday and the New Year’s celebration, and sleeping in a jail cell.

Conclusion Even though we both were deployed months apart, we shared similar emotions, sympathies, and positive attitudes. Our differences lay in our living conditions, food, personal hygiene, weather, and working environments. We expected to find the typical government disorganization one reads about, but instead we encountered a structured and stocked facility with competent and compassionate leadership. From the wellexecuted morgue operation to the support staff, we appreciated the many years of training our commanders and leaders had and their diligence and skill in imparting that knowledge to us. In this paper we have presented a glimpse of the physical conditions, roles, and activities of morgue workers in a mass disaster. Although we hope a mass disaster will never occur again, we feel prepared to deal effectively with the reality that such incidents will indeed happen and that this account may help to prepare future workers for their own participation. No written report of our operations can tell the whole story. Works Consulted and Credits Gaudet, M. (n.d.). Carville: Remembering leprosy in America. Retrieved March 31, 2006, from http:// www.upress.state.ms.us/catalog/fall2004/carville.html All table information from: http://www.dhh. louisiana.gov Photographs were taken by unidentified team members and openly shared by workers.

About the Authors Barbara L. Needell, DMD, is a general dentist practicing in Ft. Lauderdale, Florida. A graduate of Colgate University in Hamilton, New York, and a 1986 graduate of Boston University’s Goldman School of Dental Medicine, she returned to her home state of Florida to practice. She is currently the consultant forensic odontologist of Palm Beach County and a team leader on the Miami-Dade Disaster Response Team. Dr. Needell is a member of the Florida Emergency Mortuary Operations Response System (FEMORS), where she responded after Hurricane Charley, and a member of the Disaster Mortuary Operational Response Team (DMORT), with whom she served in the morgue at St. Gabriel, Louisiana. She participated in the dental identification of the victims of the recent Chalk Air disaster in Miami-Dade. Dr. Needell served as a medical volunteer in Colombia, South America, and is a graduate of National Outdoor Leadership School (NOLS). Christine KruseFeldstein, BS, has been a police officer for the Miami-Dade Police Department for more than 10 years. She has been a detective in the Crime Scene Investigations Bureau for almost 9 years. Kruse-Feldstein joined the DMORT team in 2002. She received her bachelor’s degree in criminal justice from Northern Kentucky University in 1994. Kruse-Feldstein has completed several graduate-level classes in anthropology and entomology. She teaches law enforcement classes at the Miami-Dade Medical Examiner’s office, and she is a guest presenter at several universities. Earn CE Credit To earn CE credit, complete the exam for this article on page 66 or complete the exam online at www.acfei.com (select “Online CE”).

Fall 2006 THE FORENSIC EXAMINER 23

Qualifications and Paradigms for the

INDEPENDENT EXAMINER This article is eligible for CE credit in the following categories: ACFEI, CFC, and ACCME. See page 4 for a key to these CE abbreviations and complete CE approval statements.

Key Words: independent examiner (IE), peer review, forensic exam, report magnification, behavioral signs, junk science

The American College of Forensic Examiners International is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. This activity has been planned and implemented in accordance with the Essential Areas and Policies of the Accreditation Council for Continuing Medical Education (ACCME). The American College of Forensic Examiners International designates this educational activity for a maximum of 1 hour AMA PRA Category 1 Credits TM. Physicians should only claim credit commensurate with the extent of their participation in the activity. The authors of this article have nothing to disclose for CME purposes.

Abstract In a prior article (HaberstrĂśh & Mulhern, 2005), we explained how field practitioners can better document case files to withstand challenges, including those made by independent examiners (IEs). The article also addressed the forensic examination of IEs. In this article, we seek to establish reasonable standards to which IEs should be held. In this way, examinersâ&#x20AC;&#x2122; credibility can be established. Currently, the unfortunate reality is that in the vast majority of jurisdictions in the United States any doctor can become an IE simply by requesting a job from an IE company or intermediary; for most states, there are simply no standards, no good guidelines, and no certification processes. We find this unacceptable. It has become the norm, not the exception, that IEs hold field practitioners up to lofty standards that few, including the IEs themselves, can reach. Thus, bills are cut, complaints are sometimes filed with boards, and other professionally aggravating and costly situations arise from untrained supplicants who exceed their mandates of case review.

24 THE FORENSIC EXAMINER Fall 2006

By John J. HaberstrĂśh, DC, DABCN, DACAN, FACFEI, DABFE, CFC, CMI-V, and Kevin Mulhern, DC, FICC

Introduction This paper suggests reasonable standards that should be met by all independent examiners (IEs) of any health care discipline. This includes qualifications in education, field experience, and post-graduate training. We discuss paradigms for the IE once he or she is actually performing reviews and/or examinations on patients. To date, solid, fundamental paradigms have never been established for IEs, and this paper seeks to ameliorate that deficit. It should be noted that this article was written by chiropractors and focuses more on chiropractic practices than other fields. Basic Qualifications for the Independent Examiner The practitioner performing independent examinations must meet a high set of standards. Everyday field practitioners are held to these same standards, and we see no valid reason why IEs should not be also. We, after years of experience dealing with IEs, strongly urge the following as basic qualifications: 1.) The IE should have a valid license in the examining jurisdiction. 2.) The IE should have a minimum of 3 years experience practicing in the field as an associate doctor or in solo/group practice. We feel this is consistent with the latest board requirements in Massachusetts regarding registering oneâ&#x20AC;&#x2122;s practice with the board. The length of time could be longer or shorter, but the authors feel that 3 years is a fair and reasonable amount of time for a new graduate to have begun appreciating the general aspects of a practice. 3.) The IE should have certification in independent reviewing, including patient examining and paper reviewing. Chiropractic colleges have sponsored occasional courses for certification in independent examining and peer review. Usually, the certification is good in any jurisdiction. The problem is that few requirements exist for this type of certification in the United

Fall 2006 THE FORENSIC EXAMINER 25

States except in Mississippi, Missouri, Kentucky, and Texas. State societies or medical/chiropractic schools could change this by offering qualified courses that doctors could earn credits for taking. 4.) The IE should have at least 12 hours per year of continuing education specific to independent examining and/or peer reviewing. 5.) The IE should maintain an active practice, using at least half of his or her time to see patients. This qualification could be waived for retired doctors who have passed a recognized certification course in independent reviewing. 6.) The IE should be compelled to reveal who has requested the exam/report if asked. We include this seemingly odd point for the simple reason that there are many fourth-party interlocutors who are contacted by insurance companies for independent examinations. A fourth party will farm out the business to hired IEs who say they have no relationship at all with the insurance company and are thus truly independent. We feel this fiction is one of the more oxymoronic aspects of independent examinations and should be relegated to a more open “truth-in-trade” assignment. 7.) The IE should have an accurate, upto-date CV available at all times to anyone who asks for it in a timely manner. 8.) All jurisdictions should acknowledge and inject language into their rules and regulations that a patient/doctor relationship exists between the IE/peer reviewer and the patient. We feel that because the IE industry is completely unregulated, guidelines should be instituted. The afore-mentioned requirements represent merely a basic, fundamental set of suggested parameters for a doctor considering going into the IE business and for the boards who issue licenses and are supposed to protect the public trust. The purpose of independent examinations is for the review of the propriety or necessity of a given treatment for a particular health condition for a particular patient. This is most often done at the behest of a thirdparty payer such as an insurance company. The insurance company, therefore, has a fiduciary duty to the subscriber to pay for what is considered reasonable and necessary treatment. The IE is, then, an agent for the insurance company, and thus has

no responsibility to the patient/subscriber in any way, shape, or form. Obviously, although there is a set fee paid to the IE for each report he or she writes, future work is more likely if the insurance company is satisfied with the IE. For example, if the IE recommends discontinuation of treatment, the insurer will save money. Thus, there is an obvious financial incentive for the IE agent to undercut treatment protocols and disallow treatment and reimbursement for the provider who has rendered care. The insurer has a blind trust that the exams and reports submitted by the IE are truthful and accurate. The only ethical standards are those within the individual IE. No statutory regulations regulate IEs in the vast majority of jurisdictions that we have researched. Thus, the IEs can, and many do, serve their own financial needs with their reports and conclusions. This system is ripe for abuse. There are no consequences that we can find for the IE no matter what he or she says or does, which becomes especially apparent in defense evaluations such as when a case is litigated. We find this totally unacceptable. Again, this situation not only invites abuse but also encourages it. The goal of any examination, forensic or otherwise, is truth, and the truth cannot be ascertained without thoroughness. IEs are supposed to follow the evidence. The problem in the chiropractic/medical arena is that some of the evidence is subjective on the part of the patient. That type of evidence often consists of the patient’s reaction to a provocative orthopedic or neurologic test in the clinical setting that can be colored by ethnic background (as in a standard ethnic reaction to touch and/or pressure; see discussion of Waddell’s signs), the degree or level of aggravation of the pathology on the day of the exam, and so forth. The treating doctor’s goal is the health and welfare of the patient. Thus, the ethical core principle of all doctors, that of primum non nocere (the first thing is to do no harm), often isn’t compatible with the testimony or report writing of an IE, which can lead to harmful outcomes such as denial of care and/or monetary loss. Later in this paper, we’ll discuss further refinements of these parameters and make further suggestions on how to bring the archaic IE system up to standards.

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Chiropractic Board Rules and Regulations In an effort to be thorough and objective about our statements and conclusions, the authors have researched all available chiropractic board websites. (We did not examine medical or physical therapy websites or board rules/regulations.) Luckily, the National Board of Chiropractic Examiners’ website serves as a master website that provides links to all of the chiropractic state boards (http://www.nbce.org). For ease of understanding and to decrease clutter in the body of the text of this article, we simply refer to each state board website by the state name only. At the time this article was written, the National Board of Chiropractic Examiners’ website indicated that four states did not have a website for their state chiropractic board: Kentucky, Mississippi, Missouri, and New Hampshire. Yet, our investigation revealed that New Hampshire is the only state without a website of any kind, that Mississippi and Missouri have websites, and that Kentucky started its website while this article was being written. Most other states don’t have a dedicated chiropractic website. Rather, most of the state board websites are more akin to a web address that leads the researcher to a general state government home page and from there to a state government website that has rules and regulations for chiropractors. A few states, such as Massachusetts, do have well-constructed, well-thought-out, dedicated websites for everyone to access, despite being part of a broader state government online system. Additionally, some states, such as Massachusetts, don’t have statutory regulations for peer-reviewer/ IE exams but do have board policies on this issue. These policies have no legal bite and are merely suggested guidelines. We’ve made an effort to thoroughly review statutes and general policies to ascertain whether a given state has made any kind of attempt at regulating peer reviews and/or independent examinations. Policies, Rules, and Regulations Regarding Peer Reviewers and/or IEs by State We refer to states that have more dedicated, well-constructed websites as W-sites, states that have a more generic tab listing for chiropractic issues as W-tabs, and those with-

out Internet links as “no web link.” We occasionally comment on the sites themselves and their ease of navigation and, of course, comment on whether relevant IE/peer reviewer rules, regulations, or policies exist. 1.) Alabama: W-site; has no peer-reviewer/IE policies or regulations. 2.) Alaska: W-site; has an in-house board-controlled peer-review committee but no actual peer-reviewer/IE policies or regulations are listed. 3.) Arizona: W-site; has no peer-reviewer/IE policies or regulations. 4.) Arkansas: W-site; has no peer-reviewer/IE policies or regulations. 5.) California: W-site; has no peer-reviewer/IE policies or regulations. 6.) Colorado: W-site; has a utilization review policy that flatly states that every utilization review doctor is held to the same standards as a practicing DC. Otherwise, the site does not delineate peer-reviewer/IE policies or regulations. 7.) Connecticut: W-tab; is a generic state government site that is extremely difficult to navigate. Repeated attempts to search for “chiropractic board,” “board of chiropractic examiners,” “chiropractic examining board,” etc., resulted in no direct connection. Apparently, the state has a board of chiropractic examiners listed somewhere in the state site, but we were unable to locate it. 8.) Delaware: W-tab; has no peer-reviewer/IE policies or regulations. 9.) District of Columbia: W-tab; is a general government website yet was simple and easy to navigate. The site listed no peer-reviewer/IE policies or regulations. 10.) Florida: W-tab; has no peer-reviewer/IE policies or regulations. 11.) Georgia: W-site; has no peer-reviewer/IE policies or regulations. 12.) Hawaii: W-tab; has no peer-reviewer/IE policies or regulations. 13.) Idaho: W-tab; has a peer-review committee. According to statute, the board members themselves or DCs appointed by the board may serve on the peer-review committee. No actual rules or regulations delineate how the DCs can function. We assume that the peer-review committee adjudicates files according to standard rules and regulations.

14.) Illinois: W-tab; has no peer-reviewer/IE policies or regulations. 15.) Indiana: W-site; has no peer-reviewer/IE policies or regulations. 16.) Iowa: W-tab; has a peer-review committee made up of DCs appointed by the board to investigate complaints. No actual peer-reviewer/IE policies or regulations exist that we can find. 17.) Kansas: W-site; has the Kansas State Board of Healing Arts. Many medical professionals fall under one huge board that governs them all. The board members consist of a group of MDs, DCs, and DOs. There are no specific peer-reviewer/IE policies or regulations. 18.) Kentucky: W-site; has a progressive peer-review policy along with a definitive procedure to become a peer-review doctor. Despite the information on the National Board of Chiropractic Examiners’ website stating that Kentucky does not have a website, we learned that Kentucky went online on October 27, 2005. After calling the Kentucky Board of Chiropractic Examiners, the board developed a website, and we were pleasantly surprised with their policies. The peer-review rules are statutory (Ky. Rev. Stat. Ann. § 312.200) and include the provisions that the board shall approve of a peer-review committee that cannot have ties to insurance companies and that must have completed an annually approved utilization review course. Furthermore, the doctors doing peer review must register with the board and pay a fee. 19.) Louisiana: W-site; has a peer-review committee. This committee reviews, on any request, any matter relative to the appropriateness of care rendered by any DC. A fee is paid directly to the board, and the committee renders a judgment. Currently, the peer-review committee only has one board member. Parties can approach the peer-review committee as stated, or doctors throughout the state can perform peer reviews and independent examinations outside of the official peer-review committee. Nowhere did we find actual peerreviewer/IE policies or regulations. The board committee simply reviews files based on, we presume, board rules and regulations and their own sensibilities as to what constitutes over-utilization, unprofessional conduct, etc.

20.) Maine: W-tab; has no peer-reviewer/IE policies or regulations. 21.) Maryland: W-site; has no peer-reviewer/IE policies or regulations. 22.) Massachusetts: W-site; has peerreview guidelines. These, like all policies promulgated by various boards, are akin to mere suggestions. They carry no legal weight, which is stated in the disclaimer at the beginning of the guidelines. No IE rules or regulations exist. 23.) Michigan: W-tab; has no peerreviewer/IE policies or regulations. We found the secretary of state’s website excessively difficult to navigate. 24.) Minnesota: W-site; has a board regulation regarding IEs. They even call them independent examiners. In this case, the doctor has to prove he or she is registered with the state board, has to prove he or she has been in practice or has been an instructor for at least 2 years, and has to devote at least 50% of his or her practice to treating clinical patients. 25.) Mississippi: W-site; has regulations regarding reviewers that state that the DC who performs examinations must have taken a 300-hour course of study in chiropractic claims reviews (Miss. Code Ann. § 73-6-17). Unfortunately, none of this information is available on the National Board of Chiropractic Examiners’ website. 26.) Missouri: W-site; has regulations regarding reviewers. Missouri appears to have one of the most organized and thorough approaches to IE examinations. The Missouri Code of Regulations (Mo. Code Regs. tit.4, § 70-4.010) states that a.) the DC must be certified as an insurance consultant, b.) the DC who reviews must notify the board that he or she is engaged in this activity and must report the correct address at which he or she is doing this consulting, and c.) no DC may receive compensation from a third-party payer based in whole or in part on the amount of fee the licensee recommends be reduced or denied when the licensee is reviewing files of persons other than his or her patients for the purpose of determining the adequacy or sufficiency of chiropractic treatments. The exact meaning of this last statement was unclear until we called the Missouri Board; Provision (c.) was designed to prevent DCs from purposely cutting bills so insurers would be more inclined to send

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“ The goal of any

examination... is the truth.... The problem in the chiropractic/ medical arena is that some of the evidence is subjective on the part of the patient.

”

them business. The National Board of Chiropractic Examiners erroneously states on its website that Missouri’s board does not have a website. 27.) Montana: W-tab; has no peer-reviewer/IE policies or regulations. 28.) Nebraska: W-tab; has no peer-reviewer/IE policies or regulations. 29.) Nevada: W-site; has no peer-reviewer/IE policies or regulations. Interestingly, this is the only website to offer multiple language options. Even more impressive is the wide variety of languages offered. 30.) New Hampshire: No web link. A call to the state board of examiners confirmed that they have no peer-reviewer/IE policies or regulations. 31.) New Jersey: W-tab; has peer-reviewer/IE regulations. They are brief and simply state that the examining doctor performs these exams at state standards. Although not too stringent, these are at least statutory regulations that clearly state that examinations are to be thorough like those performed by any practicing doctor. 32.) New Mexico: W-tab; has no peerreviewer/IE policies or regulations. 33.) New York: W-tab; has no peer-reviewer/IE policies or regulations.

34.) North Carolina: W-site; has no peerreviewer/IE policies or regulations. 35.) North Dakota: W-tab; has no peerreviewer/IE policies or regulations. 36.) Ohio: W-site; has no peer-reviewer/ IE policies or regulations. 37.) Oklahoma: W-site; has no peer-reviewer/IE policies or regulations. 38.) Oregon: W-site; users will have to navigate to this site, but it is fairly comprehensive and well organized. Oregon actually has a peer-review law that is listed separately under “Rules & Regs” as well as under “General Rules & Licensing” (Or. Admin. R. 811-010-0095). The latter basically rehashes the chiropractic rules and regulations because peer-review committee members are appointed by the board and, as such, are agents of the board. Peer-review committee members review on request by any party the appropriateness of care under the rules and regulations of Oregon. Interestingly, the peer-review committee does not replace independent medical examinations (IMEs). Nowhere do any of these rules, regulations, or statutory laws address IMEs. Additionally, no actual policies or specific laws govern peer reviewers other than stating that they are to be DCs

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in good standing who have been in practice for more than 5 years. 39.) Pennsylvania: W-tab; has no peerreviewer/IE policies or regulations. 40.) Rhode Island: W-tab; has no peerreviewer/IE policies or regulations. 41.) South Carolina: W-tab; has no peer-reviewer/IE policies or regulations. 42.) South Dakota: W-site; has peerreview policy. This site is simple but well organized. To quote the mission statement, “The Board of Examiners may act as a peer-review committee or appoint other board chiropractors to perform the duty.” This situation is similar to all other boardsanctioned peer-review committees in that it is a subjective examination occurring in response to a submitted request for review as per state board rules and regulations. The only twist here is that patient-requested peer reviews have no charge. For all other requests, $300 payable to the board is required. Again, no special rules, regulations, or statutes address peer reviewers or IEs. 43.) Tennessee: W-tab; has no peer-reviewer/IE policies or regulations. Interestingly, this state has a peer-assistance policy. This policy has nothing to do with our research or this article, but we found it so interesting that we felt a brief comment was warranted. The peer-assistance policy is for DCs who may be impaired for some reason, whether physically, pharmacologically, mentally, etc. It is designed to offer needed help and resources to those professionals who need it. Tennessee is the only state board to have such a policy. 44.) Texas: W-site; has peer-review statutes pursuant to the Texas Chiropractic Act (Tex. Occ. Code § 201.251-55). We found this law to be fair and at times truly enlightened and a good model for other states. To briefly summarize, the board of examiners appoints local chiropractors, presumably through local state societies, to be on local peer-review committees. Thus, the state is replete with local committees covering all geographic areas. Only DCs who have completed a program of peerreview training approved by the board are eligible to serve on these local peer-review committees. The DC cannot be a consultant or an employee/agent of any company or carrier of health care insurance. The

board establishes requirements for peerreview training programs. The board also appoints an executive chiropractic peerreview committee to direct the activities of the local committees. The executive peer-review committee conducts hearings relating to disputes referred by the local peer-review committees and makes recommendations based on the evidence. The executive committee also cannot be affiliated in any way with insurance companies. We find the clauses regarding non-connection with insurance companies and appointing local sub-committees truly inspired thinking. 45.) Utah: W-tab; has no peer-reviewer/ IE policies or regulations. 46.) Vermont: W-tab; has no peer-reviewer/IE policies or regulations. 47.) Virginia: W-tab; has no peer-reviewer/IE policies or regulations. This board is officially designated as a board of medicine. The chiropractic board is mixed in with the medical board, and the chiropractic rules and regulations are blended in with their medical analogs. 48.) Washington: W-tab; has no peerreviewer/IE policies or regulations. Interestingly, this board is not called a board but rather the Chiropractic Quality Assurance Commission. The website is difficult to navigate, and chiropractic issues are blended into an admixture of all health professionals, with one large set of rules and regulations. 49.) West Virginia: W-site; has no peerreviewer/IE policies or regulations. This dedicated website is very simple to navigate and understand. There is not much to this site, which is why it is so easy to navigate. 50.) Wisconsin: W-tab; has no peerreviewer/IE policies or regulations. The site is a very generic sub-tab that has to be navigated to indirectly from the state government site. The rules and regulations for chiropractors are interspersed with those for other professionals such as accountants. 51.) Wyoming: W-tab; has no peer-reviewer/IE policies or regulations. Navigating to this site is an ordeal. Trying to find the actual rules and regulations can be even more of a time-consuming exercise. Paradigms for the Independent Examiner In an effort to improve the current IE situ-

ation, we pose seven paradigms and recommendations for each. Paradigm #1. We have patients who have been independently examined throughout the years. Each patient fills out an affidavit, after the fact, describing his or her encounter with the IE. Nearly universal in their responses, these patients indicate that the “exams” they underwent were usually 3–8 minutes long. The question that begs to be asked, therefore, is whether IEs should be held up to the same standards as a field practitioner. We say yes, they should. We feel strongly about the actual mechanisms of an independent review. In the 20plus years that IEs have been in vogue, we have seldom seen examinations that rise to a statutory standard-of-care type of exam. Field practitioners are, by statute, required to take a detailed case history, obtain vitals, conduct relevant orthopedic and neurological testing to include the cranial nerves as well as provide a DDX (differential diagnosis), a DX (diagnosis), and a plan of treatment for the future. We feel, therefore, that it is unfair and simply unprofessional to allow IEs to get away with brief, nearly ad hoc exams that seldom include even basic vital signs. It is rare that IEs will take a blood pressure, let alone perform competent neurological exams (Bates, Bickley, & Hoekelman, 1995; Foreman & Croft, 2001). Paradigm Recommendation #1. IEs must be compelled to do thorough examinations. We further recommend that if the doctor feels he or she is lacking information, such as aspects of the case file, x-rays, hospital records, etc., he or she should indicate so and avoid conclusions based on too little data. IEs should acknowledge what they consider lacking in a review. Whether they are doing an exam or just a peer review, any data the examiners feel would enhance their knowledge of the case should be stated, and their conclusions should be labeled as tentative, pending further data acquisition. Paradigm #2. Some IEs do not like witnesses, an unfortunate prejudicial oddity. We’re not sure why this is so. Often, an

IE will allow one witness, sometimes two. We feel that to help avoid conflicts after the fact, it is good to have a witness who can corroborate the encounter, especially for those occasions in which language barriers exist. Paradigm Recommendation #2. IEs should allow up to two witnesses to attend an exam. That is to say, the examinee should decide who and how many witnesses attend the independent examination. We are not aware of any statute or guideline that addresses this issue to any degree. Currently, at least in Massachusetts, custom allows the IE to decide how many witnesses will be present, which makes no sense at all, but no regulation or even a guideline states this. We see no reason not to allow witnesses except in the very rare case in which physical space may be lacking. Naturally, the witnesses are admonished to remain silent during the exam. We recommend that audio and/or videotaping be allowed by the patient or his or her witnesses for the purpose of recording the encounter accurately. We see only advantages to these suggestions: a) witnesses and/or a videotape of the event will provide a more detailed and accurate history of the encounter should discrepancies arise later as to what really happened; b) taping will discourage report magnification by the IEs because after the current standard 3- to 5-minute exam, IEs typically write a 9- to 12-page report listing a myriad of clinical tests that may not have been performed; and c) the presence of a bilingual witness can obviously allow an exam to move forward in the event of a language barrier without the witness. In our research, we found several references that address the issue of witnesses, but all of them focus nearly exclusively on mental health professionals who were witnesses themselves in the trial and pretrial arenas. Melton, Petrila, Poythress, and Slobogin (1997) delved into interesting areas such as witnesses exaggerating their résumés, expert witness testimony in various legal situations, and strategies during cross-examination. The bulk of the book spoke from a forensic psychologist’s point of view, discussing the role of the psychologist as a witness. According to Gutheil (2002), a fact witness may testify in court only on what was

Fall 2006 THE FORENSIC EXAMINER 29

directly observed by his or her five senses; an expert witness on the other hand, has the latitude by the court to actually draw conclusions from the available data. The expert can even draw conclusions from data not personally observed by the witness. Appelbaum (1990) has pointed out that the traditional doctor-patient relationship does not apply between the forensic examiner and the examinee (patient). In any event, when we speak of a witness, we speak of an individual who merely observes an IE encounter, not an expert witness. It is our opinion that a fact witness will not adversely affect the independent examination and most likely will enhance the encounter with a factual recitation of the dispositive actions taken during the encounter. We acknowledge that an independent examination is a forensic examination on behalf of a third party, but we hasten to add that we believe that a relationship does exist, however brief, between the IE and the patient. This is no longer conjecture. Recent literature (Bates, Bickley, & Hoekelman, 1995) and court rulings (Council on Ethical and Judical Affairs, Opinion 10.03, 2004; Dugan v. Mobile Medical Testing Services, Inc., 2003; Mass. Gen. Laws ch. 112, 2005; National Board of Chiropractic Examiners, n.d.; Reed v. Bojarski, 2001) have clarified and removed all doubt in this argument. There is a limited patient-doctor relationship between the IE/peer reviewer and the patient. A professional syzygy exists as a matter of law. This obviates the disclaimer still used by some IEs that a relationship does not exist. (See also the information about the AMA Council on Ethical and Judicial Affairs later in this article.) Paradigm #3. Waddell signs, or behavioral signs, as we discussed previously (Haberströh & Mulhern, 2005), have no place in independent examinations, yet IEs continue to use them to disallow treatment and cut off care. We pointed out that according to Dr. Waddell himself, there are three major caveats to the use of the behavioral signs: 1) patients with serious spinal pathology should not be tested because the results are meaningless; 2) ethnic minorities should not be tested for the same reasons; and 3) patients more than 60 years of age should not be tested.

Paradigm Recommendation #3. The behavioral signs, or Waddell signs, should not be used by the IEs. State boards need to revamp board regulations to disallow the use of these signs as a means to cut off care. Other than screening for pre-surgical candidates, they serve no purpose. Paradigm #4. Field practitioners have no recourse other than a lawsuit when an IE cuts off patient care, assuming the care was reasonable and necessary in the first place. Paradigm Recommendation #4. We urge either state legislatures or the boards themselves to set up independent oversight committees in concert with state societies. This is somewhat similar to what Texas is doing already. These committees should consist of field practitioners rather than members of the state board and should be granted the authority to hear complaints by treating doctors who believe unreasonable IE reports and decisions were rendered against them. The committees should have at least three members review each complaint and should examine the patient records (redacted, of course) and the IE report. The committees should then render a binding decision as to the merits (or lack thereof ) of a given complaint and resolve the dispute in a fair and balanced way. In this manner, field practitioners would have an outlet to voice grievances. Ideally, the committees’ decisions would be binding, authoritative remedies one way or the other in disputes of this nature. This procedure has the added benefit of lending credibility to a field doctor’s rebuttal of an unfair IE’s report. As it stands now, most insurance adjusters automatically conform to what the IE says. Rebuttals are ignored by the adjuster and merely forwarded to the IE who, if he/she bothers responding to the rebuttal at all, most often simply says his/her opinion remains unchanged. Thus, the IE’s opinion prevails regardless of any factual, substantive opinions to the contrary. Corollaries to Paradigm #4. 1.) Having board members who do independent examinations and peer reviews without an independent system of adjudication is oxymoronic. In Massachusetts, for example, at least one board member is a well-known peer reviewer. Complaints

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come to the board against this individual, but the complaints are summarily and routinely dismissed. Failing to thoroughly examine the complaints in no way protects the public, which is the alleged mandate of this board and all boards (Gutheil, 2002). 2.) IEs and peer reviewers should be statutorily liable for damages in the event the care they may cut off was actually needed and the unfortunate patient suffered because of the premature termination of care by the contracting examining doctor. We feel this goes back to the issue of whether a patient-doctor relationship exists and/or an encounter with the patient and a one-time independent examination has occurred or even a one-time review of the patient’s file took place (Appelbaum, 1990). Now that this argument has been clarified and we know a relationship exists between the IE and the patient, we feel the independent doctor should be held to the same standards and liabilities as the treating doctor. Several courts have recently declared that IEs are liable. In 2004 the Michigan Supreme Court held that a physician who conducts an IME for personal injury litigation creates a limited physician-patient relationship and, therefore, may be liable for physical harm caused to the patient during the examination (Dyer v. Trachtman). Also in 2004 the Arizona Supreme Court decided that a radiologist interpreting chest films for possible tuberculosis screening for an employer may be liable for failing to take reasonable steps to inform the patient of other unrelated findings suggestive of other potentially life-threatening conditions (Stanley v. McCarver). The high courts in several other states, including Colorado, Connecticut, Montana, and New Jersey, have all addressed the issue of physician liability in IMEs and all have recognized the potential for liability in certain situations (Baum, 2005). The question is no longer whether a patient can sue an IE but how much liability the IE/peer reviewer is exposed to. That discussion exceeds the scope of this article but is well worth exploration. Paradigm #5. Predicting the outcome of a case is folly for a non-treating physician. We believe that the regular practice of predicting a timeline based on a single exam or the mere reading of the case file

(peer review) is akin to fortune telling and has no place in modern health care practices or independent examinations and is another example of junk science. Clearly the best prognosticator is the treating physician (Baum, 2005). The well-traveled, credentialed professional’s recommendations should have much more weight in a discussion of prognosis than those of an IE who has only had one visit with a patient. Paradigm Recommendation #5. Cases that are pre-ordained to be cut off by a one-time IE’s exam or paper review are ludicrous. Our recommendation is that IEs be prohibited from making such predictions by their state boards. They are to examine the patient or the file and render an opinion but not state that the patient will be fine in a certain amount of time or number of visits. It is junk science to state the always popular but unfounded and unsupported opinion that, for example, a car accident soft-tissue-injury victim will recover in 8 weeks no matter what therapy is or is not used (Foreman & Croft, 2001). Paradigm #6. Randomness exists in independent examinations because they are carried out at any time during a patient’s treatment regime. We feel this is unfair to the patients and the practitioners. Too often, a patient must undergo an independent examination after only a few visits with the treating doctor. In similar cases, the independent examination is performed at or near the end of treatment. In some instances, the independent examination is performed long after care has stopped and the patient has been discharged. We again find that there is no method to this kind of random examining. It is a strictly “make it up as you go” approach to patient treatment decisions, especially when an exam is performed after treatment has stopped and the IE has recommended retroactively cutting care and, hence, the treating doctor’s bill. Paradigm Recommendation #6. We strongly urge state boards, possibly in conjunction with the state societies, to set up stringent guidelines as to when an independent examination can be performed on a patient who is currently undergoing treatment. We suggest further that the in-

dependent examination be set up in the middle of treatment with all other paradigm suggestions to be followed. The idea that an IE can retroactively disassociate the patient and his or her treatment, and furthermore suggest that because the patient has no findings or that there must have been minimal to no injuries, is nothing short of ludicrous. Paradigm #7. The new trend in 2005 was for some IEs to download quotes out of context. The dumping of junk science into a report and forwarding the report as an erudite treatise on a patient’s medical status is unprofessional (Freeman, 2005). Paradigm Recommendation #7. We advocate a ban on the use of junk science in report writing by any doctor in any situation. We find it appalling that data can be stated, taken out of context, twisted, and/or utterly convoluted so that the text is manipulated differently from its original intent. Our discontent is not limited to these reports but extends to CVs that doctors embellish (Melton et al., 1997). This kind of sophism also has no place in the chiropractic/medical/legal world and often leads to report magnification. Summary of Recommendations 1.) Doctors embarking on full- or parttime careers as IEs/peer reviewers should stop, think, and make informed decisions. They need to understand that by conduct-

ing independent examinations/peer reviews, they enter into a physician-patient relationship in the eyes of the law. This may include the responsibility to diagnose a patient and, thus, their liability increases markedly. 2.) Clear documentation helps all doctors. The IE needs to eliminate confusion on the part of the patient and clearly state that a doctor-patient relationship exists but that a third-party initiated the examination. A witness who accurately records the events and an IE who performs a thorough exam will help to make the experience more professional and reduce liability issues later. We urge recording on videotape. 3.) If certain important conditions are discovered during an independent examination, the IE should inform the patient. Additionally, the IE should make sure the patient understands that he or she is not the primary doctor and that the patient should follow up with his or her personal care provider, personal physician, and/or DC at the earliest possible moment. This should be highly and meticulously documented. 4.) Finally, the IE should understand that, just as with a regular field practitioner, good documentation and open communication with the patient might not be enough to shield the IE from future malpractice actions.

Fall 2006 THE FORENSIC EXAMINER 31

Conclusion As of this writing, the United States has few standards that govern chiropractic peer reviews and/or independent examinations. Some states, including Minnesota, Missouri, Mississippi, and Kentucky, stood out in our investigation as having wellthought-out and reasonable regulatory and/or statutory criteria that, for example, actually require peer-review credentialing before performance of the peer review and verification that no affiliation exists with any insurance company. Texas’ system was the best model in our opinion because of its additional program of using numerous statewide sub-committees for IE adjudication. Without a policy similar to the one in Texas, medical and chiropractic IE testing has no methodology, no standard of practice, no checks and balances, no credentialing, and no logical formatting. We know this from the thousands of independent examinations performed on chiropractic patients by medical IEs each year. As we stated in our previous article on this subject, the orthopedic doctors are usually fairer and far more reasonable in their conclusions. Nevertheless, regulatory statutes can only raise the standard for all IEs and better serve the patients the IEs examine. In addition, the only way to challenge IEs is to drag them into court, which is time-consuming and expensive for all. IE testing has been in vogue now for about 20 years, but in most jurisdictions it is still completely random in all of its inventories. We consider this to be unacceptable and believe we speak for the majority of field practitioners when we say this. Furthermore, independent examinations need to be regulated. We do not suggest that IEs be abolished, but rather, we advocate the establishment of standards of care for this aspect of patient-doctor interaction, as in all other aspects of the patient-doctor relationship. It is the one area remaining that has never been regulated. Left to its own devices, independent examining has become a random miasma of occasionally unprofessional caprice by the IE companies that hire these doctors and the doctors themselves. We feel that this impromptu approach to patient-doctor interaction is completely unacceptable and dangerous to the patients. This type of makeshift practice would never be tolerated with a field

practitioner. Why allow IEs to practice this way? Also, we must state again that independent examinations/peer reviews establish a patient-doctor relationship. The American Medical Association agrees, stating in its Code of Medical Ethics that “when a physician is responsible for performing an isolated assessment of an individual’s health or disability for an employer, business, or insurer, a limited patient-physician relationship should be considered to exist” (Council on Ethical and Judicial Affairs, 2004). Addressing this issue in this article is a small first step in reigning in a completely unregulated aspect of health care that is literally out of control and, in our opinion, dangerous to the public. We urge state boards and the state societies, especially in the chiropractic arena, to redress this important issue. References Appelbaum, P. S. (1990). The parable of the forensic psychologist: Ethics and the problem of doing harm. International Journal of Law and Psychiatry, 13(4), 249-259. Bates, B., Bickley, L., & Hoekelman, R. (1995). A guide to physical examination and history taking (6th ed.). Baltimore: J. B. Lippincott Co. Baum, K. (2005, June). Independent medical examinations: An expanding source of physician liability. Annals of Internal Medicine, 142(12). Council on Ethical and Judical Affairs, American Medical Association. (2004). Code of medical ethics: Current opinions, opinion 10.03, patientphysician relationship in the context of work-related and independent medical examinations. (pp. 3034). Chicago: AMA. Dugan v. Mobile Medical Testing Services, Inc., 830 A.2d 752 (Conn. 2003). Dyer v. Trachtman, 679 N.W. 2nd 311 (Mich. 2004). Foreman, S., & Croft, A. (2001). Whiplash injuries: The cervical acceleration/deceleration syndrome (3rd ed.). Baltimore: Lippincott, Williams, & Wilkins. Freeman, M. (2005). Junk science by IME doctors. Retrieved from http://doctorwhiplash.com/ ACR/Frames/Junk%20Science%20by%20IME %20Doctors%20-%20Freeman.htm Gutheil, T. G. (2002). The psychiatric expert witness. Psychiatric Times, 19(4). Haberströh, John J., & Mulhern, K. (2005). Properly documenting a file and forensic examination of IME doctors. The Forensic Examiner, 14(4), 26-39. Ky. Rev. Stat. Ann.§ 312.200 (Thomson/West 2005). Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). Mass. Gen. Laws ch. 13 (2005).

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Mass Gen. Laws ch. 112 (2005). Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (Eds.). (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press. Miller, K., & Kinkel, S. (2004). Malpractice: The first visit can make or break you. Journal of the American Chiropractic Association, 41(4), 4447. Miss. Code Ann. § 73-6-17 (2005). Mo. Code Regs. tit.4, § 70-4.010 (2005). National Board of Chiropractic Examiners. (n.d.). Retrieved from http://www.NBCI.com Or. Admin. R. 811-010-0095 (2005). Reed v. Bojarski, 764 A.2d 433 N.J. (2001) Stanley v. McCarver, 92 P.3d 849 (Ariz. 2004). Tex. Occ. Code § 201.251-55 (2005). 233 Code Mass. Regs (2005). Waddell, G. (2004). The back pain revolution (2nd ed.). New York: Churchill Livingstone.

About the Authors John J. Haberströh, DC, DABCN, DACAN, FACFEI, DABFE, CFC, CMI-V is a private practitioner in Somerville/ Boston, Massachusetts. He is a Diplomate of the American Board of Chiropractic Neurology, a Diplomate of the American Chiropractic Academy of Neurology, a Fellow of the American College of Forensic Examiners, a Certified Medical Investigator-Level 5, a Certified Forensic Consultant, and certified in spinal trauma/ sports physician/rehab. More information about him can be found at http://www. bostonspineclinics.com. Kevin Mulhern, DC, FICC, is a private practitioner in Waltham/ Boston, Massachusetts.

Earn CE Credit To earn CE credit, complete the exam for this article on page 67 or complete the exam online at www.acfei.com (select “Online CE”).

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Cause of Death: Gunshot wound to the head

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Wealthy land speculator and art dealer found dead in his library.

By Laura Kirsch, JD, MA

Motive: Jealousy. He had multiple affairs. He even made an arrangement with one woman to give him a male heir. The long-time lover must have been upset. Upset enough to kill.

By Laura Kirsch, MA, JD

nd that’s how Beverly Anne Monroe ended up in prison for the death of her lover, Roger de la Burde (Turner Network Television [TNT], 2000). Well, that’s the abbreviated version. But the case against Beverly did move with surprising speed. De la Burde’s death occurred on March 4, 1992, and by November 2, 1992, less than 9 months later, a jury had delivered its guilty verdict (TNT). Regaining her freedom though, was not as swift. What followed was an 11-year legal battle to free Beverly (Crocker, 2003). How could a case be so cut-and-dry in the beginning

and result in such an intricate legal battle? The complications are in the details. Beverly reported having dinner with de la Burde at his estate on the evening of March 4, 1992 (Blumenthal, 2000). De la Burde was no ordinary guy. A Polish immigrant, he boasted of royal lineage (later disputed) and made his millions in real estate (Crocker, 2003). He worked for Philip Morris as a research scientist, and in his spare time he aged his “authentic” paintings on the roof of his home in the rain (Blumenthal). In 1979 he met Beverly while she was working at Philip Morris as an organic chemist. Both were married at

34 THE FORENSIC EXAMINER Fall 2006

the time but started seeing each other anyway (Crocker). According to Beverly, back at the estate on March 4, after dinner, the couple worked on a manuscript for an art book before kissing goodnight. After leaving his estate at 9:30 p.m., she returned home and visited with her son and then went to Safeway for groceries. Her dated receipt and an eyewitness confirmed her check-out time of 10:40 p.m. (Blumenthal, 2000). Concerned because she had been unable to reach him by telephone, Beverly drove to de la Burde’s estate the next morning, where she and the caretaker found de la

Burde’s body on his couch with a gun in his hand and a bullet wound in his head (Blumenthal, 2000). The sheriff soon arrived, and Beverly told him about being with de la Burde the night before and not being able to reach him since then (TNT, 2000). She also told the sheriff that de la Burde had been suffering from depression during the past few months (TNT). Investigators gathered evidence and took photographs from the crime scene (TNT). By the next day, the police had assigned John Riley to the case, and soon after that Beverly became his primary suspect (TNT, 2000). Once he saw the crime scene photographs, Riley decided that de la Burde had not committed suicide but had been murdered, most likely by Beverly. After all, he thought, she had a lot to be jealous about (TNT). De la Burde liked the ladies, as they say, having affairs with many different women and even making a contract with a married woman to have his child, which he hoped would produce a male heir for him. Beverly found this contract just days before his death and now had what some believed was a concrete reason for wanting to kill de la Burde (Crocker, 2003). Three weeks passed before Riley interviewed Beverly, and she told him the same details that she had told the sheriff about dinner at the estate followed by the drive back to her home and a trip to the grocery store (TNT, 2000). She waived her right to an attorney and voluntarily took the polygraph test requested by Riley, which she failed, but she would not admit to killing de la Burde (Blumenthal, 2000). Riley kept insisting and suggesting that Beverly had killed de la Burde and then blocked out the memory (TNT). Police reported that Beverly changed her story after Riley’s continued suggestions and admitted to falling asleep on a couch at the estate before waking up to de la Burde killing himself (TNT, 2000). Riley had been tape-recording their conversation, he said, and forgot to restart it for Beverly’s responses, including her admission that she was present when de la Burde died (Blumenthal, 2000). Riley and Beverly met again about a week later and again Beverly’s comments were not recorded. Riley’s goal was to get

a confession and, according to Beverly, he told her that the prosecutor was planning on charging her with first-degree murder (TNT, 2000). The meeting resulted in a set of statements, written by Riley and signed by Beverly, in which she claimed she was at the estate when de la Burde died (Blumenthal, 2000). The statements included various hypothetical situations that placed Beverly in the room with de la Burde where she could have even touched the gun (Blumenthal). Beverly later testified that she signed the statements because of threats from Riley. She said that his originally friendly demeanor became menacing at that time (TNT, 2000). A week later, the prosecutor indicted Beverly for the murder of de la Burde (Crocker, 2003). In addition to the signed statements, other evidence against Beverly at trial included testimony from Zelma Smith, a convicted felon who said that Beverly had tried to buy a gun from her a year ago, and from a firearms expert who said that de la Burde must have been murdered (TNT, 2000). Although the case against Beverly did not rely solely on her statements elicited by Riley, those statements were persuasive enough to help a jury find her guilty within 2 hours and 55 minutes (Blumenthal, 2000). A judge sentenced her to serve 22 years in the Pocahontas Correctional Center (TNT, 2000). The next 11 years brought appeals and, finally, freedom after a 2002 federal ruling granted Beverly a new trial and the county prosecutor decided on June 19, 2003, not to retry her case (Crocker, 2003).

The Innocent Beverly’s case isn’t the only one in which a confession has later been questioned or undergone scrutiny. Despite the many legitimate confessions that investigators obtain, the cases that end up getting the most publicity are the ones in which the confessions have gone wrong—the ones where innocent people confessed to crimes they didn’t commit. In the Supreme Court case Miranda v. Arizona, the Court established a law that all suspects who are in custody must be informed by police of their rights to silence and counsel (1966). Waiving these rights, perhaps against common sense, puts indi-

viduals at a higher risk for giving a false confession (Kassin & Gudjonsson, 2004). In addition, children under the age of 14 and individuals with mental disabilities are most likely to give false confessions (Kassin & Gudjonsson). It seems an innocent person would not have anything to hide, but research indicates that people often naively believe that their innocence will save them (Kassin & Norwick, 2004). This belief could stem from an illusion of transparency, which causes people to believe that their inner thoughts or emotions are readily apparent to others, or from faith in justice (Kassin & Norwick). In addition, as many as four of five suspects choose to forego the assistance of counsel and waive their right to silence, and those without a record of past felonies decide to waive their rights more often than those who have committed past crimes (Kassin & Norwick). Other research suggests that some people confess because they feel they have no other options due to the interrogation techniques used by police officers (Begley, 2005). Often in interrogations, police isolate the suspect, which increases stress levels, and convey the idea that they are confident that the suspect was the one who committed the crime. The more the suspect denies the crime, the more the police might question inconsistencies in the suspect’s story (Begley). Also, when officers imply that the crime was justified, suspects are more apt to confess (Begley).

The Officers Before a suspect will waive his or her rights, a police officer might try to win over the suspect. By befriending the suspect, the officer might be able to convince the suspect that by admitting to the crime, everything will be okay (Kassin & Norwick, 2004). Another questionable tactic used by some police is presenting the suspect with false evidence that he or she committed the crime in the hopes that the suspect will see the evidence against him or her and believe he or she has no other choice but to confess (Hansen, n.d.). Richard Ofshe, a professor at the University of California at Berkley who studies how police interrogation methods relate to false confessions, has come across officers who have told suspects that they have satellite photos of the

Fall 2006 THE FORENSIC EXAMINER 35

suspects committing the crime or that they have made up technology (for example, a neutron proton negligence intelligence test) that supposedly proves that the police have scientific proof that the suspect is guilty (Hansen). A polygraph test is another device that can elicit false confessions. Results from polygraph tests are not allowed in most courts, so some officers will administer a polygraph test and then confront the suspect by saying that the suspect failed the test, whether or not the suspect actually failed (Kassin & Gudjonsson, 2004). Another problem with police interrogations is that police often have false confidence in their ability to distinguish when suspects are lying. Psychological research does not show that certain groups of people are better at detecting lies (Aamodt, 2006; Kassin & Gudjonsson, 2004). When many officers see signs of nervousness or fear, they assume that those are indications of guilt. Yet, many people display those emotions when they are in high-stress situations, and a police interrogation definitely qualifies as high stress (Kassin & Gudjonsson). In addition, police officers often enter the interrogation process believing that the person they are questioning is guilty; otherwise, they wouldn’t be questioning that person. As a result, they might look for evidence that confirms their beliefs instead of taking the evidence as a whole (Kassin & Gudjonsson, 2004).

The Tips A confession from a suspect can be persuasive evidence in court. Certain techniques used by police officers can more frequently lead to genuine confessions instead of false ones (Kassin & Gudjonsson, 2004). For example, videotaping allows police to record the entire confession, which deters exceedingly long confessions and/or the use of abusive tactics. In addition, by having the confession on tape, the defense at trial will be unable to claim that the police coerced the suspect unless the tape indicates such a claim (Kassin & Gudjonsson). When videotaping confessions, police should take care to record the entire process and to focus the camera on the entire room and not just the suspect. If only the suspect is in the camera shot, then viewers of the tape might not be able to determine

whether the interrogation was coercive. By seeing both the officers and the suspect, viewers can better grasp the mood of the confession (Kassin & Gudjonsson, 2004). Videotaping also acts as a backup for officers; taping allows them to take fewer notes and refer back to the tape at any time for more clues or information. A study by the National Institute of Justice reported that many of the officers in the study did not believe that videotaping significantly increased their costs or prevented suspects from confessing (Kassin & Gudjonsson, 2004). To avoid questioning innocent people, officers should perform as much research and investigation as is realistically possible before the interrogation. Officers should avoid a narrow focus in the beginning to keep all possible leads open (Napier & Adams, 2002). Also, by planning an initial interview, officers can create a less stressful environment that will allow them to learn how the suspect reacts during a normal situation before an actual interrogation (Napier & Adams). Another useful technique for officers is to ask the suspect open-ended questions that do not include references to evidence in the case. The goal of the interrogation is to get the suspect to reveal how he or she committed the crime or what he or she knows about the case. If officers include too much information, they might lead the suspect into confessing falsely and contaminate the confession (Napier & Adams, 2002). Finally, officers should treat all suspects with dignity and respect. Believe it or not, convicted felons have said that when they are treated as human beings they are more likely to admit to their acts (Napier & Adams, 2002).

The Point And so, Beverly is free, and de la Burde’s death remains unsolved. Police officers still need to solve crimes, and innocent people will continue to be suspects. Maintaining the balance between preserving the rights of suspects and punishing the guilty is not easy. Justice is not easy. Police officers need to approach all suspects with care and caution, remembering that too much reliance on their truth-detection abilities might be misplaced and could lead to the innocent

36 THE FORENSIC EXAMINER Fall 2006

taking the rap for crimes they didn’t commit.

References Aadmodt, M. G. (2006). Who can best catch a liar: A meta-analysis of individual differences in detecting deception. The Forensic Examiner, 15(1), 6–11. Begley, S. (2005, April 15). Interrogation methods can elicit confessions from innocent people. Wall Street Journal. Retrieved May 17, 2006, from http://0-proquest.umi.com.www.coolcat.org:80/ pqdweb?index=3&did=822304171&SrchMod e=1&sid=1&Fmt=3&VInst=PROD&VType=P QD&RQT=309&VName=PQD&TS=114778 6172&clientId=2274 Blumenthal, R. (2002, May 28). A Virginia tale of love and death, suspicions and doubt. The New York Times. Retrieved May 15, 2006, from http:// www.truthinjustice.org/beverly.htm Crocker, R. (2003, July 10). Ready to move on. Richmond.com. Retrieved May 15, 2006, from http://www.richmond.com/news/ output.aspx?Article_ID=2558633&Vertical_ ID=2&tier=1&position=2 Hansen, M. (n.d.). Untrue confessions. ABA Journal. Retrieved May 15, 2006, from http:// truthinjustice.org/untrueconfession.htm Kassin, S. M., & Gudjonsson, G. H. (2004, November). The psychology of confession evidence: A review of the literature and issues. Psychological Science in the Public Interest. Retrieved May 15, 2006, from http://www.williams.edu/ Psychology/Faculty/Kassin/files/Kassin_Gudjonsson _PSPI_05.pdf Kassin, S. M., & Norwick, R. J. (2004, April). Why people waive their Miranda rights: The power of innocence. Law and Human Behavior. Retrieved May 16, 2006, from http://64.233.167.104/ search?q=cache:8O2u1x6otisJ:www.psy.tcu.edu/ bond_innocence.pdf+kassin+and+norwick&hl=e n&gl=us&ct=clnk&cd=2&client=safari Miranda v. Arizona. 384 U.S. 436 (1966). Napier, M. R., & Adams, S. H. (2002, November). Criminal confessions: Overcoming the challenges. FBI Law Enforcement Bulletin. Retrieved May 15, 2006, from http://www.fbi.gov/publications /leb/2002/nov2002/nov02leb.htm Turner Network Television. (2000). Was justice denied? Retrieved May 16, 2006, from http://alt. tnt.tv/specials/wasjusticedenied/frame_monroe_ exclude.html

About the Author Laura Kirsch, MA, JD, is an assistant editor for The Forensic Examiner®.

STAND YOUR GROUND: New Challenges for Forensic Psychologists

By Patricia Wallace, PhD, DABFE, DABFM, FACFEI

This article is eligible for CE credit in the following categories: ACFEI and CFC. See page 4 for a key to these CE abbreviations and complete CE approval statements.

Key Words: reasonable force, fear, deadly force, duty to retreat.

Abstract Evolving from English Common Law, the Castle Doctrine has expanded to the Stand Your Ground Doctrine, providing immunity from prosecution for Floridians defending themselves, including by the use of deadly force, from presumed criminal attack. The new law places the onus with law enforcers for evaluating the nexus between reasonable fear and deadly force. Forensic scientists are challenged to provide assessment tools proven to be germane, definitive, and quantifiable to assist law enforcers with the accurate determination of authentic and reasonable fear.

First test case: Stand Your Ground defense. Florida’s law could be facing its first test. Donald Montanez, owner of a Tampa towing company, is charged with murder in the shooting of a man whose car was impounded. Prosecutors say Montanez fired as the man drove off without paying a fee. Montanez’s attorney, Roger Rigau, says the new law should protect Montanez, who feared being hit by the driver (United Press International, 2006).

Introduction The scenario above requires the courts to interpret the towing company owner’s reasonable fear and his subsequent use of deadly force. This will likely be Florida’s initial case using the new Stand Your Ground defense. In April 2005, Florida Governor Jeb Bush signed into law Senate Bill 436, which expands and clarifies Floridians’ self-defense rights against violent attackers. Effective

October 1, 2005, the new law attempts to relieve the burdens of a person designated as a potential victim from the power and control of another person who is believed to be a threat or will cause harm. In the test case noted above, the court must determine the connection between reasonable fear and deadly force in consideration of the new Stand Your Ground law. Given the parameters of this new law, forensic psychologists must recognize the challenge at hand and be prepared to assist not only Florida, but also the 21 other states now considering modification of their laws relating to the Castle Doctrine, duty to retreat, reasonable fear, and deadly force. The forensic psychologist’s expanded responsibility lies in assisting and providing the judicial and legal professions, including law enforcement agencies, with the pre-eminent methodology, precise tools, and required psychological training to assist in the execution of the modified laws and the prerequisite tasks.

Fall 2006 THE FORENSIC EXAMINER 37

The Castle Doctrine refers to a legal concept derived from English Common Law, presently applied in certain sections of the laws of the United States. Specifically, it designates one’s home as his or her castle and, as such, as a place in which he or she enjoys protection from intrusion, invasion, or violent attack. At the time this article was written, 49 states presumed an obligation existed to retreat before using deadly force to defend oneself, whereas in Florida, the Castle Doctrine concept provides for an exception to this duty, provided one is attacked in his or her own home or on his or her legal property. The new law authorizes Florida citizens (and legitimate visitors) who are in their own homes, on their own personal property or vehicle, or in a place where they have a right to be the power to determine whether they should use deadly force against an intruder or attacker. This expands the concept of the Castle Doctrine from applying to the inside of a home or place of business to any setting where there is reason to believe that the citizen experiences reasonable fear. The law states that people are not compelled to retreat in the face of a threat as long as they are in a place they have a legal right to be, including public streets. They may “stand their ground” and use force, even deadly force, if necessary. The law also grants immunity from criminal or civil charges as long as the victim of deadly force was not a police officer in the line of duty. The notion of a duty to retreat signifies that killing is justified only as a last resort. With the removal of the traditional concept of the duty to retreat, Florida’s Stand Your Ground law nullifies the premise that people should avoid confrontation whenever possible. In the language of Senate Bill 436, the term reasonable force is substituted for deadly force, thereby signifying the construction of righteous, justifiable, and excusable homicide. While self-defense is defined as “the right of a person to defend against any unlawful force or any seriously threatened unlawful force that is pending or may be reasonably anticipated,” in most courts it is held that the force used by the defender must not exceed the force used by the attacker.

Most state laws have an implicit expectation that reasonable fear can be met with equally reasonable force. However, any force that exceeds the minimum amount of force reasonably necessary to defend against an assailant could possibly result in the authorities arresting and charging the defender with a crime. In fact, in most cases, the responding law enforcement officers give vast latitude in assessing defenders’ use of reasonable force. In Florida, law enforcement agencies are given ultimate responsibility to determine whether the actions of the defender constitute reasonable or excessive force. The final determination of whether a case will be adjudicated rests with the law enforcement agency. Therefore, it is important to understand how the law enforcement agency defines and measures the construct of reasonable fear and correlates it with reasonable force, including deadly force. The operative part of the law, codified in chapter 776 of the Florida Statutes and consistent with the Castle Doctrine principle, begins by setting forth the standard for use of deadly force against an attack in one’s home or automobile: Title XLVI. Section 776.013, Florida Statutes: Home protection; use of deadly force; presumption of fear of death or great bodily harm.- (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if: (a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and (b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (2005) Exceptions to the conditions under which deadly force can be used are outlined

38 THE FORENSIC EXAMINER Fall 2006

in the law. Those conditions dictate that a citizen is not permitted to use deadly force against someone who has a right to be in the home or vehicle (unless the person is the subject of a domestic violence restraining order or a no-contact order). The right does not apply in child-custody dispute issues. Nor does it apply if the person trying to enter the home or automobile is an identified police officer acting within the scope of police duties. The statute continues, (2) The presumption set forth in subsection (1) does not apply if: (a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or (b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or (c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or (d) The person against whom the defensive force is used is a law enforcement officer, as defined in § 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. (2005) Ordinarily, outside of the home or vehicle, a citizen may only use deadly force when it is convincingly believed to be necessary. Following the assumption that the deadly force is necessary, the citizen may act with the knowledge that he or she is no longer legally obliged to retreat. Next, the statute states, (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the

right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. (2005) The fourth subsection clearly delineates one of the basic presumptions of the law— that is, the law postulates that violent invaders of a home or automobile are presumed to be intending to commit violent crimes after they enter. (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. (2005) The second and third sections of the Stand Your Ground law amend existing Florida statutes to make explicit the absence of an obligation to retreat. The second section of the Stand Your Ground Law states, 776.012 Use of force in defense of person. - A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: (a) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or, (b) Under those circumstances permitted pursuant to § 776.013. (2005) Section 3 of the Stand Your Ground Law, § 776.031, Florida Statutes, has been amended to state: 776.031 Use of force in defense of others. - A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortuous or criminal interfer-

ence with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be. (2005) The fourth section of the law prohibits tort lawsuits against persons who act in conformity with the law. It also makes explicit the fact that police officers are not allowed to arrest a citizen whose actions were in self-defense; unless the officers have probable cause to believe the victim violated the laws: 776.032 Immunity from criminal prosecution and civil action for justifiable use of force. - (1) A person who uses force as permitted in § 776.012, § 776.013, or § 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in §943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant. (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful. (3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from

prosecution as provided in subsection (1). (2005)

Forensic Implications: Defining and Assessing the Nexus Between Reasonable Fear and Deadly Force It is beyond the scope of this article to debate the merits of this new law. The purpose herein is to examine the impact this law will have on the field of forensic psychology. The new law obligates Florida’s law enforcement agencies (of which there are over 300 unique groups) to determine (using their own standard investigation procedures) whether the reasonable fear/ deadly force issue will ever reach a court of law. Noting specifically Section 4(2) [§776.032(2)], forensic psychologists should be intricately concerned with the process by which decisions are made relative to the construct of reasonable fear as an explanation for the use of deadly force. The core of this law is its embodiment in the reasonableness doctrine. Customarily, this doctrine is based on the theorem that deadly force actions taken are consistent with that of a reasonable person. The traditional test standard is whether a reasonable person would be provoked enough to kill in the situation at hand. As indicated in Section 4(2), law enforcers may “investigate the deadly force situation, using standard investigative procedures.” Certainly, law enforcement officers are well trained and adept at handling crime scenes. However, the death of an assumed perpetrator reaches beyond the usual decisions left solely to standard investigation procedures. It is unclear whether all law enforcers will use the same model or measure of the reasonableness of the fear that lead to the use of deadly force. By what gauge will the law enforcement agency measure the construct of reasonableness? Is there to be an independent review of the scene in which the defender’s and attacker’s reasonableness are taken into consideration? Will the influence of alcohol or drugs ingested by either party be considered in assessing their ability to use reasonable judgment? Under Section 4(2) the law enforcement agency is prohibited from arresting the defender unless the agency has probable cause to believe

Fall 2006 THE FORENSIC EXAMINER 39

that the deadly force was unnecessary. The additional burden of determining reasonableness of deadly force is a tremendous, and possibly unreasonable, responsibility for the law enforcement agency without supplementary training and assessment tools.

Searching for Reasonableness The issue of what is reasonable is often difficult even for courts to decide. What is reasonable in one circumstance may be unreasonable in another. Therefore, courts in most states delineate certain circumstances in which deadly force may be reasonable such as when the initial attack is aggravated by the use of a deadly weapon or by multiple assailants. When one is in fear for his or her life or sustaining serious bodily injury, the courts may judge killing the assailant as use of reasonable force. However, in some circumstances in which the attack is considered a misdemeanor attack, the law does not permit a person to use deadly force or seriously injure the assailant. Typically courts have distinguished between standards of reasonableness by characterizing them as either objective or subjective. An objective standard of reasonableness requires the fact finder to view the circumstances surrounding the accused at the time he or she used force from the standpoint of a hypothetical reasonable and prudent person. Under the subjective standard, the issue is not whether the circumstances surrounding the accused’s use of force would be sufficient to create in the mind of a reasonable and prudent person the belief that the use of force is necessary, but rather whether the circumstances are sufficient to induce in the mind of the accused reasonable belief that he or she must use deadly force to defend himself or herself. Professor Cynthia Lee (2003) of the George Washington University Law School suggests that “rather than relying on a positivist conception of reasonableness (or one that focuses on what the average or typical person would have believed or done) . . . we ought to also utilize a normative conception of reasonableness (or one that focuses on what actions ought to be considered reasonable)” (p. 226–227).

Understanding Fear As difficult as it is for courts to agree on the concept of reasonableness, psychologists have equal difficulty agreeing on a definition and measure of fear. For example, not all psychologists agree on the foundation of human fear. Many will argue that fear is an innate instinct apparent from birth in the form of a “startle response” (Brazelton, 1993). Others contend that fear is more appropriately considered as a human emotion. Those who contend that fear is an instinct argue that once this fear instinct and its companion self-preservation are aroused, morbid mental life grows like an avalanche in its downward course. In later life these impulses of self-preservation and fear instinct become manifested in various ways, giving rise to the most distressing nervous and mental symptoms. Proponents of the definition of fear as an instinct are in general agreement with the principle that fear is an inbuilt instinct. It is believed that the instinct acts as an early warning system when humans are faced with potential danger, and it is a part of the individual’s primitive script that continues to protect and guide human behavior. Thus, it is hypothesized that the fear instinct automatically produces the innate flight-or-fight response, as identified in the early 1900s by experimental physiologist Walter B. Cannon, MD, and further described by Dienstbier (1989) in his work “Arousal and Physiological Toughness: Implications for Mental and Physical Health.” Disagreeing with the notion of fear as an innate instinct are those scientists who believe fear is best described as a human emotional response and, as so, it is likely a learned response. Overall most psychologists agree that there is great variability in human emotional responses. In their 1992 article, Mauro, Sato, and Tucker report “although capable of the same set of emotions, humans are not bound to have the same emotional reactions under the same circumstances” (p. 303). That is to say, for some people riding elevators or looking over the rail of a tall building is extremely frightening, while for others no fear is evoked. Similarly, some people experience a strong emotion of guilt if they, while

40 THE FORENSIC EXAMINER Fall 2006

driving, even accidentally kill an animal. Certainly, some other people might feel sad temporarily over the incident but do not experience the emotion of guilt, while yet another faction might purposefully kill animals and feel proud of it. It all depends on the individual and the unique set of social, cultural, and personal experiences that an individual brings. Whether fear is viewed as an instinct or an emotion is best left to theoreticians. Such a discussion is aside from our present purpose. Suffice, for our purpose herein, fear is defined as an involuntary passion, which may be partially controlled by an individual’s willpower.

Reasonable Fear Defenses Even in traditional court cases, the issue of levels and fundamentals of fear is perplexing. Most courts tend to obscure the difference between justification defenses (where the law agrees that the defendant was right in taking the action) and excuse defenses (where the law excuses the defendant from legal blame for taking the actions due to policy considerations associated with some personal characteristic or set of behaviors intrinsic to the defendant). Given the ambiguity courts face in determining the legitimacy of reasonable fear, reasonable force, motivations, and provocations, it is understandable that law enforcement officers may be faced with the same dilemmas. Representatives of various law enforcement communities will be expected to make crucial interpretations of an individual’s perceptions and actions in a brief amount of time. Particularly in Florida, the Stand Your Ground law states that a person who has used deadly force cannot be arrested unless the law enforcement agency deems “that there is probable cause that the force used was unlawful.” This means in essence that law enforcement agents, not courts of law, will make determinations of the reasonable fear-reasonable force nexus. Forensic Implications: Challenges for Forensic Psychologists There are several basic questions for forensic psychologists to consider. One question forensic psychologists will ask is, “How will Florida law enforcement agents au-

thenticate distinctions between excusable and justifiable actions?” That is, the law enforcer as decision-maker will need to evaluate whether a citizen’s conduct is a gross deviation from the standard of action that a reasonable person would expect to observe in the situation. It is for the law enforcement agent to decide which characteristics, if any, should be considered in using the objective versus subjective standard. Ordinarily, testimony of a forensic expert helps courts discern whether the actor honestly held the belief that force was necessary for self-defense and whether the belief was reasonable. Typically, from that point, the trier of fact determines whether the expert testimony is relevant and should be admitted into evidence. Establishing whether an individual’s claim of feared harm is genuine requires an examination of how the actor’s cognitive abilities and personal history affect his or her judgment of reasonable fear. Forensic psychologists are qualified to offer opinions germane to the determination of this issue given their special training in assessing cognitive ability and its influence on decision-making and actions. The enormous responsibilities of professional law enforcers are often unnoticed by many lay individuals. In order to maintain proficiency, periodic training programs are mandatory. It is in this sphere that forensic psychologists will be of the greatest benefit by providing training that enables law enforcers to better understand the psychological formulations of fear and force.

Conclusions Forensic psychologists must be ready to incorporate psychological science, talent, and technology to preserve integrity and continued distinction in forensic training for law enforcement agencies. Forensic psychologists can be of most assistance by understanding the law and legal definitions relative to psychological constructs. Current law enforcement training models comprehensively capture the roles and responsibilities expected of today’s law enforcers. However, as novel and more diverse responsibilities are added to the list of occupational duties for tomorrow’s officers, innovative subject matter must be implemented into the training modules.

The method of investigating a scene where the nexus of reasonable fear and deadly force is involved requires expertise in assessing basic human patterns of behavior. In this regard, forensic psychologists can support law enforcers’ training modules by providing advanced training specifically designed to promote better understanding of human behavior among law enforcers who will be undertaking these types of investigations. In particular, objective, expeditious screening instruments that are demonstrated through validity and reliability studies are needed immediately. Further, such tools must be easily assessable, uncomplicated, and cost effective. The challenge to forensic psychologists is the development and provision of meaningful, comprehensive, and proficient virtual psychological training programs and screening tools for the benefit of law enforcement agencies. In conjunction with the emergence of the Stand Your Ground Doctrine, forensic psychologists are further challenged to collaborate, discuss, design, develop, deliver, and distribute psychological tools and training programs to assist law enforcement officers with assessing the fear-force constructs. With the explosion of interactive and online communication systems available, law enforcers and forensic psychologists are capable of participation in real-time seminars and trainings designed to enhance understanding of the terms and conditions linking perceptions of reasonableness and the use of deadly force. Such real-time training, inclusive of avant-garde screening assessment tools, is being developed at this time and will be available for use in the near future.

References Brazelton, T. B. (1993). Touchpoints: Your child’s emotional and behavioral development. London:Viking. Dienstbier, R. A. (1989, January). Arousal and physiological toughness: Implications for mental and physical health. Psychological Review, 96(1), 84–100. Lee, C. (2003). Murder and the reasonable man: Passion and fear in the criminal courtroom. New York: New York University Press. Mauro, R., Sato, K., & Tucker, J. (1992, February). The role of appraisal in human emotions: A cross cultural study. Journal of Personality and Social Psychology, 62(2), 301–317.

Pebbles v. Commonwealth of Virginia, 28 Va. App. 360 (1998). Stand Your Ground Law. (2005). Fla. Stat. § 776. United Press International. (2006, February 24). NewsTrack. Retrieved April 3, 2006, from http://www.upi.com/NewsTrack/

About the Author Patricia A. Wallace, PhD, FACFEI, DABFE, DABFM, is a member of the Editorial Advisory Board for The Forensic Examiner® and has been an active ACFEI member since 1996. She has extensive experience as an expert witness in thousands of civil and criminal court cases as a Michigan licensed psychologist. Dr. Wallace is a graduate of Wayne State University and a consultant with the Juvenile Assessment Center of the Wayne County Department of Community Justice. As an adjunct faculty member in the department of psychology with Wayne County Community College, Dr. Wallace teaches courses with concentration in the fields of clinical and forensic psychology. Her experience includes service as chief psychologist for the Recorder’s Court Psychiatric Clinic for Wayne County, Michigan. With the Family and Law Program of the University of Michigan Medical Center, Child and Adolescent Psychiatric Hospital, Dr. Wallace prepared and facilitated training programs for psychiatric residents focusing on issues related to understanding psychological testing, forensic evaluations, and expert witness testimony. She is also a psychological consultant with the Detroit Police Department, Detroit Public Schools Public Safety Department, and Selfridge Air National Guard Base in Mt. Clements, Michigan. Dr. Wallace is founder/president of Wallace & Associates, Forensic and Psychological Consultants in Southfield, Michigan. Earn CE Credit To earn CE credit, complete the exam for this article on page 67 or complete the exam online at www.acfei.com (select “Online CE”).

Fall 2006 THE FORENSIC EXAMINER 41

By Leann Long, BS

young male college student is out late partying with his friends at a local bar. Everything is normalâ&#x20AC;&#x201D;just your average night. Suddenly his friends notice he is missing. No one saw him leave, no one knows where he went, and he never returns. A missing-person report is filed, and massive search efforts within the community fail to turn up any clues. A few weeks later, his body is discovered in a local river. His friends and family are overwhelmed with not only grief, but also confusion. Why would he spontaneously leave his friends, how did he manage to disappear without a single witness seeing him, and how did he end up at the river? The circumstances seem a little odd, but since there are no signs of a struggle, his death is ruled accidental. But then another young male college student in the area mysteriously disappears while out partying with friends, only to be found dead in a river. And then another, and another, and another . . . Drowning, After Drowning, After Drowning Starting in the year 1997 and continuing through 2006, the bodies of 24 males between the ages of 18 and 27 in the states of Minnesota, Wisconsin, Michigan, Illinois, and Indiana surfaced in rivers and lakes. All of the deaths happened in areas along Interstate 94 from Minneapolis, Minnesota, to Lansing, Michigan (see map 1). Each victim had a similar story; in al-

most every circumstance a young man had been drinking with friends and then mysteriously disappeared or separated from his group, never to be seen alive again. Days, weeks, or even months after each disappearance, a body would finally be discovered in a nearby body of water. In two additional cases the missing men were never discovered, making the total 26 in the area. None of the bodies displayed any signs of a struggle, and authorities ruled most of the

42 THE FORENSIC EXAMINER Fall 2006

deaths accidental and the remaining cases undetermined. Many of the family members and friends of the victims, as well as people in the surrounding areas, are convinced there is foul play behind several, if not all, of these â&#x20AC;&#x153;accidents.â&#x20AC;? They feel it is all too much of a coincidence. The idea of male college students getting drunk late at night is far from odd, but a significant number of drunken male students in the same area mysteriously

Midwestern Victims (Childseek Network, 2006; Holmes, 2005)

The red dots represent the locations in which the victims were last seen alive.

1. Franklin Gottschalk* Missing: 02-02-97 City: East Lansing, MI

3. Anthony Skifton Missing: 10-10-97 City: La Crosse, WI

2. Charles Blatz Missing: 09-22-97 City: La Crosse, WI

4. Ryan Getz Missing: 12-31-97 City: La Crosse, WI

disappearing from their friends and wandering by themselves into lakes and rivers to drown is more than a little unsettling. However, based on various statistics, others believe that the deaths are nothing out of the ordinary. Maybe there is nothing going on other than male college students drinking too much and wandering into bodies of water—some people just want to believe there is more behind these deaths. Or maybe there is a serial killer that authorities are overlooking. So which is it? Welcome to the mystery. Sinking the Suspicions Behind the Fishy Fatalities All of the cases were extremely similar, and an obvious pattern emerged; so much so that, with each new death, more and more people were becoming suspicious and alarmed. Although not every single case displayed all of the commonalities listed, they were present in most. Generally, the victims

5. Nathan Kapfer Missing: 02-22-98 City: La Crosse, WI

13. Chris Jenkins Missing: 10-31-02 City: Minneapolis, MN

21. Chad Sharon Missing: 12-12-03 City: Southbend, IN

6. Jeff Geesey Missing: 04-13-99 City: La Crosse, WI

14. Michael Noll Missing: 11-09-02 City: Eau Claire, MN

22. Jared P. Dion Missing: 04-10-04 City: La Crosse, WI

7. Brian Welzien Missing: 01-01-00 City: Chicago, IL

15. Josh Guimond Missing: 11-9-02 City: Collegeville, MN

23. Patrick Kycia Missing: 09-23-05 City: Mankato, MN

8. Ken Christianson Missing: 04-16-01 City: Duluth, MN

16. Brian Carrick* Missing: 12-20-02 City: Johnsburg, IL

24. Josh Snell Missing: 06-12-05 City: Eau Claire, WI

9. Eric Blair Missing: 10-20-01 City: East Lansing, MI

17. Nathan Herr Missing: 01-10-03 City: Sheboygan, WI

25. Matthew Kruuziki Missing: 12-24-05 City: Dubuque, IL

10. Christopher Nordby Missing: 11-07-01 City: Minneapolis, MN

18. Jeremy Stienkeoway Missing: 01-20-03 City: Hinckley, MN

26. Scot Radel Missing: 02-02-06 City: St. Cloud, MN

11. Albert Papandreou Missing: 04-12-02 City: Chicago, IL

19. Glen Leadley Missing: 02-08-03 City: Chicago, IL

*Bodies were never found.

12. Craig Burrows Missing: 09-29-02 City: Eau Claire, MN

20. Matthew Schiess Missing: 11-01-03 City: Lena, IL

• Were Caucasian males between the ages of 18 and 27. • Lived in the extended area surrounding Lake Michigan, most along Interstate 94. • Were students or recent graduates. • Were high-achieving. • Were in good physical condition and/or were athletes. • Were last seen out drinking with friends or at a party. • Were under the influence of alcohol. • Oddly became separated from friends. • Disappeared between the hours of 10 p.m. and 4 a.m. • Disappeared between the months of September and April. • Were given an accidental or undetermined cause of death. The common area that the deaths took place in and the strange circumstances surrounding the victims’ disappearances serve as the fishiest parts of the multiple drownings. The other factors have all been rationalized; judging by statistics and hard evidence alone, there appears to be no phe-

nomenon whatsoever. Consider the following: • Males make up 80% of drowning victims in the United States. • Individuals between the ages of 15 and 24 have one of the highest drowning rates. • None of the victims displayed any signs of foul play. • Drinking greatly increases the odds of drowning. • On average, nine accidental drowning cases occur in the United States every day. In addition, as most of the victims were in college towns in the Midwest, they easily fit the profile of young, high-achieving, physically fit, Caucasian males. And since college students are known for their binge drinking, it makes sense that they were drinking with friends between the hours of 10 p.m. and 4 a.m. during the school semester months (September through April). Doubts Floating to the Top But when you look deeper into the cases, suspicions begin to once again surface. Why have so many drownings occurred in

Fall 2006 THE FORENSIC EXAMINER 43

Additional Mysterious Drownings (Childseek Network, 2006; Holmes, 2005) There were nine other similar deaths that occurred between 1998 and 2006 in what appears to be a straight path through Illinois, Indiana, Ohio, West Virginia, Virginia, and New York (see map). Most of the young men in these cases were also drinking when they disappeared. Could these be more victims of a serial killer, or do they serve as additional proof that it is not uncommon for young men to mysteriously disappear into the depths of rivers and lakes? 1. Keith Noble Missing: 04-25-98 City: Athens, OH

4. Chris Olberding Missing: 10-02-2004 City: Cincinnati, OH

7. Arvin Sharma Missing: 4-16-05 City: Washington DC

2. Ryan Katcher* Missing: 11-05-00 City: Oakwood, IL

5. Adam Falcon Missing: 11-12-04 City: Canton, NY

8. Chris Thiem Missing: 01-12-05 City: Vincennes, IN

3. Justin Hayduk Missing: 03-10-01 City: Morgantown, WV

6. Patrick Welsh Missing: 04-05 City: New York City, NY

9. Albert Campbell Missing: 10-07-05 City: Potsdam, NY *Ryan Katcher’s body has never been found.

The red dots represent the locations in which the victims were last seen alive.

the Midwest? How did all these young men manage to get separated from their friends without anyone noticing? If 80% of drowning victims are male, shouldn’t at least 4–5 of the victims be female? Although an average of nine people drown across the United States every day (Forensic Science, 2005), statistically most drownings occur during the summer months when more people are swimming and usually involve boats, canoes, etc. (Wikipedia, 2006). Some of the individual stories don’t seem to add up either—for instance, a couple of the La Crosse, Wisconsin, victims. If you have heard something about any of these mysterious drownings and rumors of a serial killer, you’ve probably heard about the first few cases in La Crosse, where five students drowned in the Mississippi River, four of them within the same year and a half. Although the deaths were all ruled accidental, many of the local citizens were very disturbed by the repeated drownings, claiming there was a serial killer at work. According to some of the La Crosse residents, the riverfront area is clearly distinguishable from the rest of the town, and anyone drunk would have to manage his or her way down a cement staircase and over several feet of loose rocks before getting near the water (Conte, 2004). Additionally, if the victims had fallen down loose gravel into the water, wouldn’t their bodies have

displayed signs of trauma? All of the autopsies reported no signs of trauma, a factor that went into determining the deaths as accidental. Many others wondered why surrounding towns didn’t have any drownings. One student claimed that when out drinking, everyone watches out for each other, and it is difficult for someone to just wander off by himself or herself (Conte). Bloodhounds indicated that La Crosse victim Jeff Geesy went through trauma in several different locations and was driven from the bar where he was hanging out with friends to a bridge. According to the bloodhound handler, the dog also found the blood of Geesy, but no forensic investigation followed (Conte, 2004). However, the validity of the handler’s claims has been questioned (“Investigators Suspect,” 2003). Another question that has been raised about the La Crosse drownings was how Jared Dion’s cap was carefully placed on a post. Investigations determined that after getting excessively drunk with friends downtown, the victim disappeared and wandered to Riverside Park, where he accidentally fell into the river and drowned. The day after his disappearance, a jogger spotted the cap on a post (Conte, 2004). Many have wondered, if Dion had accidentally slipped and fallen into the water as reported by investigators, how did his cap

44 THE FORENSIC EXAMINER Fall 2006

get placed on the post? Whether he took it off before he fell into the river or there was foul play involved is just another piece of this looming puzzle. Cases outside of La Crosse provide odd evidence as well. Chris Jenkins was discovered 4 months after he disappeared; yet the oversized clogs he was wearing as part of his Halloween costume somehow remained on his feet (“Jenkins Case,” 2006; Thompson, 2003). Also, after being “lost” in the river for 4 months, his shirt was still tucked in, his arms were crossed, and his body was discovered floating face up, while most drowning victims are found face down (“Jenkins Case”). His blood-alcohol level was reported at only being between .07 and .12, and often blood-alcohol levels test higher in drowning victims, as bacteria in decomposing bodies produces ethanol (Mercer, 2004; Thompson). Consequently, Jenkins was most likely not intoxicated to the point that he would have suffered from seriously impaired coordination. Before Jenkins’ body was discovered, his parents hired a private investigator to look into their son’s case. Two different sets of bloodhounds on two separate occasions traced Jenkins’ scent from the bar where he was last seen into an underground parking garage that was nearby. The bloodhounds indicated that Jenkins got into a car that headed west on Interstate 94 (“6 College-

Trailing Bloodhounds Although some people have doubted the reliability of the bloodhounds who tracked some of the victims, these dogs are well known for their ability to track humans. First used to track people in the 16th century (Sidden, 1999), bloodhounds currently serve as an important part of many search and rescue teams. They get their keen sense of smell from their lengthy ears and the loose facial skin that form folds and encloses smells around their noses, making them the best breed of trailing dogs (Woolf, 2006). Trailing dogs are trained to distinguish between different scents and follow a specific scent when trailing a missing person (Wooters, 2004). The dogs are given an item that belonged to the missing person to smell and are preferably taken to the point where the missing person was last seen. The bloodhounds focus on the smell of skin cells that have fallen from the missing person’s body and follow the path the missing person took (Woolf, 2006). They can follow scents through the air, on water (a drowned victim’s skill cells will float to the surface), and on the ground (Woolf ). Once they are pursuing a scent, a bloodhound will not stop to eat or rest until he has found what he is searching for (Sidden, 1999). The dogs are able to trace the odor of a living or dead person, even if the missing person traveled by vehicle, bicycle, etc., and can follow odors through paved streets, water, city streets, and many other types of contaminated environments (Sidden). Age Men,” 2003). Within only 3 months of Jenkins’ disappearance, five additional young men disappeared from right around Lake Michigan, and several more victims were still to come in the following months and years. As if the coincidences and strange circumstances weren’t enough to make people wonder, an extremely suspicious man entered into the picture. The Perfect Suspect Unsuspected by Police Back in 1990, a man entered a police station in St. Charles, Missouri, and claimed to be the next Jeffrey Dahmer. The police ignored this man, but he finally got the attention of one detective when he shared his detailed fantasies about drowning young men (Conte, 2004). A well-known profiler, Pat Brown, got involved with the case and has been monitoring this man for years. Nicknamed John Doe to avoid revealing his identity, this man reportedly wanders from town to town (McGraw, 2005). Based on her interactions with Doe, Brown believes that it is very possible that Doe, or

someone like him, could be behind many of these mysterious drownings (Conte; McGraw). It is actually pretty easy to build a case around Doe. In addition to telling police that he would go on a drowning spree if not contained and that he fantasized about driving across the country making friends with and picking up 16- to 30-year-old men (“6 College-Age Men,” 2003), he was just a block away when Chris Jenkins went missing and claimed to be on a road trip during the time that several of the other victims disappeared (Conte, 2004; McGraw, 2005). There is also evidence confirming that he spent time in Wisconsin (McGraw). Doe had charges on his record for making sexual advances toward the teenage son of the owner of a funeral home where Doe worked and making death threats to the teenager’s entire family (McGraw). The police reports stated, “The defendant is a danger to the community . . . because he goes for white males between the ages of 16 and 25 . . . and had serial-killer tendencies” (as cited in McGraw).

The pattern of drownings fits the work of a traveling organized killer. Organized killers plan the events, target strangers, get sexual gratification from murdering their victims, and avoid leaving any evidence behind so they can continue to elude authorities (About, 2006; Scott, 2006; Tatum, n.d.). Traveling serial killers move from town to town and are hard to track due to the separation of police jurisdictions and the lack of pattern recognition (Scott). Unfortunately, police never seriously considered Doe a suspect. In fact, Stuff Magazine reporters are the ones responsible for bringing John Doe into the spotlight on these cases (Conte, 2004; McGraw, 2005). Until Stuff informed both the La Crosse police and the Wisconsin Division of Criminal Investigation about John Doe and all of the evidence against him, both admitted that they didn’t have any idea that he even existed (Conte). Apparently, this kind of neglect is common in serial killer cases. As many people believe is the case in La Crosse and the rest of the Midwest, police are often reluctant to admit that a serial killer is lurking in the city and/or region due to the public pressure to catch the murderer (About, 2006). Sometimes law enforcement departments will even wait to act, hoping the murderer will move on to another region outside of their jurisdiction (About). With these cases, though, it is hard to blame the law enforcement for failing to act. With the lack of physical evidence and so many statistics pointing toward accidental deaths, searching for a serial murderer must have seemed pointless. Also, many of the deaths occurred in different jurisdictions. Even if it was the work of a serial killer, many of the deaths were spread out just enough to keep one department from investigating all of the deaths, a method employed by many serial killers to prevent their capture (Scott, 2006). Although Doe was incarcerated at the time of Jared Dion’s death (Conte, 2004), it is possible that he is responsible for many of the other drownings. If Doe is guilty of drowning young men, Dion’s death, which happened 5 years after the other La Crosse drownings, could have been an accident or the work of a similar killer. So is John Doe responsible for some if

Fall 2006 THE FORENSIC EXAMINER 45

not many of these drownings? That depends on whom you ask. Many factors support the serial killer theory. By definition, a serial murder involves at least three to four murders with a cooling off period in between (Scott, 2006; Tatum, n.d.). Studies show that there are about 10 serial killers performing murders throughout the United States each year (Tatum). Although they might not necessarily stay within one particular city, serial killers tend to prefer to work in the same geographical area (Tatum). The killer is usually a stranger to the victims, who are usually randomly chosen based on their vulnerability (Scott). College students are often targeted, especially when under the influence of alcohol (Tatum). Usually the motive is a strong psychological desire to dominate others, and the victims fit a certain stereotype and display similar physical and personality traits in order to fulfill a symbolic meaning (Scott; Tatum). Skeptics, on the other hand, such as criminology professor Kim Vogt, claim that serial killers by nature would not use drowning as a method of killing their victims, as they usually want to objectify and humiliate their victims (Scott, 2005) and usually rape their victims. She also brought up the fact that there are no known serial killers who have used drowning as their method of murder (Conte, 2004; McGraw, 2005). In addition, it is unlikely a serial killer would let the river decide the fate of his or her victims because serial killers desire to be in complete power and control over their victims (About, 2006; Scott). Psychotherapist and profiler John Kelly agrees that a serial killer would make sure his or her victim was dead before throwing someone into the river to avoid any chance that the intended victim might survive and identify him or her (Conte; McGraw). Kelly did throw out the potential of the victims being sedated though—a possibility that doesn’t seem to have been fully explored. But what if a different type of serial killer existed? What if there was someone who felt a sense of power without raping and/ or torturing victims? What if there was a serial killer who felt empowered by drowning an immobilized and sedated victim or by watching a victim struggle to stay above water and eventually drown? It just so happens that Doe is a member of a website devoted to the fetish of drowning men.

Brown posed as a 15-year-old boy who watched his brother drown and exchanged messages with Doe on a website devoted to gay men with underwater fetishes (Conte; McGraw). She reported that during their role-playing, Doe wasn’t willing to be the drowning victim, but always wanted to do the drowning (McGraw). She also reported that he enjoyed watching his victims’ eyes as they drowned (Conte). Brown was able to confirm that Doe experienced sexual gratification from “watching” his victims struggle and die (McGraw). Based on her Internet encounters with Doe, Brown concluded that he was a psychopath due to his lack of feelings for the victims and capable of committing the drownings. “A lot of people have fantasies, but when you talk to them on the Net or you try to role-play with them, you can tell that they aren’t a psychopath. They have too much feeling for you and the bad things that happen” (as cited in McGraw). Brown also reported that Doe’s life was apparently falling apart and he didn’t receive any respect, making him a likely candidate to turn to serial murders as a way to gain power and control (McGraw). Could Doe or someone like him be traveling around the Midwest murdering these young men? And if so, how does he manage to get his victims away from their friends and drown them without a struggle? Possibly, as Kelly proposed, he does it with the help of drugs. Drowned by Drugs? The autopsies performed on each victim ruled that the deaths were accidental drownings, based on the fact that no other conclusion could be reached (for more information on determining death by drownings, see “The Role of Diatoms in MedioLegal Investigations: The History and Contemporary Science and Application of the Diatom Test for Drowning” on page 10). There were no signs of any struggles, no witnesses, and no evidence left behind. Is it possible though that these men were given a drug that made them black out? Rohypnol (flunitrazepam) and GHB (gamma hydroxy butyrate) are two wellknown central nervous system depressants that have been linked to rapes and, consequently, labeled rape drugs. If the drown-

46 THE FORENSIC EXAMINER Fall 2006

ings were murders, these drugs explain how there could be no struggle, a quiet disappearance, and a lack of physical evidence left behind. Rohypnol is an odorless and tasteless drug that can be dissolved in any drink (Office of National Drug Control Policy [ONDCP], 2003; University of Michigan Wolverine Wellness [UMWW], 2005). Until February 1999, the drug was clear, but the new version contains a blue tint to make it more detectable. However, older versions still exist and are available, and the pill can be camouflaged when mixed with a blue tropical drink or punch (ONDCP, 2003). Someone who has ingested Rohypnol will begin to suffer from its effects within 15–20 minutes, and the effects can last as long as 12 hours (ONDCP, 2003). The effects include slowing of psychomotor performance, muscle relaxation, sleepiness, becoming mentally and physically paralyzed, and amnesia (ONDCP, 2003). When the drug is consumed in addition to alcohol, these effects are all intensified and blackouts are common (ONDCP, 2003; UMWW, 2005). GHB is a powder drug that quickly dissolves into a clear odorless substance when mixed with liquids (ONDCP, 2002). It has a slightly soapy or salty taste (UMWW, 2005) but is barely detectable when mixed with a drink. Although it is a Schedule I drug, inexpensive ingredients and readily available recipes on the Internet make it easy to produce (Whitten, 2001). After taking GHB, an individual will start to be affected within 15–30 minutes, and the effects will last anywhere from 3–6 hours, depending on how much of the drug is consumed (ONDCP, 2002). GHB users often suffer from slowed motor coordination, inhibited balance, impaired speech, unconsciousness, and amnesia (ONDCP, 2002). As with Rohypnol, taking GHB with alcohol exacerbates the drug’s effects (ONDCP, 2002). Information from the autopsies of the men who drowned was not available, so it is unknown whether they were tested for either of these drugs, but according to the United States Naval Criminal Investigative Service (USNCIS) (n.d.), Rohypnol is not usually tested for in autopsies and, according to numerous sources, neither is GHB

(Hiller & Godlaski, n.d.; USNCIS; Whitten, 2001). Even if the autopsies did actually test for these drugs, they might have not shown up in the victims’ systems. During the compilation of this article, several pathologists and toxicologists were asked the question, “If someone who has taken Rohypnol dies, how long will the drug be detectable in their system?” It has been determined that Rohypnol is detectable in the blood of an individual for up to 12 hours and in the urine for up to 72 hours (ONDCP, 2003; UMWW, 2005), but according to Madira Webster, an expert toxicologist, there doesn’t seem to be a known answer for how long the drug will be detectable in the postmortem period (personal communication, May 5, 2006). That doesn’t even take into consideration a body that has been decomposing in the water for several days, weeks, or even months. GHB is even harder to detect and remains in a user’s body for an even shorter amount of time than Rohypnol (ONDCP, 2002). The Mystery Continues By evaluating the different possibilities and piecing them together, it is easy to create a likely story. Consider the following scenario: John Doe visits bars, befriends young men, and puts drugs in their drinks. He then manages to discretely lure them away from their friends and into his car. Once he has them in his car, he drives them to a nearby river or lake. He chooses a secluded area; because it’s in the early hours of the morning, he doesn’t have to worry about being seen. When his victims are unconscious, he waits for them to wake up. He then takes them into the water and holds them under. Being immobilized from the effects of the drug, the victims are unable to put up much of a struggle. But Doe can see the fear in the defenseless young men’s eyes as he forces them beneath the surface of the water. The victims take their last breaths, and Doe releases them to the current of the river or lake. When the victims are finally discovered, they have alcohol in their systems and display no signs of a physical struggle, so it appears their deaths were accidental. Although this scenario might sound believable, it is merely one of many theories

that lacks concrete evidence and proof. Without the ability to prove someone was responsible for these deaths, they will continue to be assumed to be, and might very well be, accidental. It is impossible to determine if the evidence, or the lack thereof, clearly points in one direction or another, but it is undeniable that something strange is going on— either a freakish string of coincidences is plaguing the northern Midwest, or a crafty serial killer is effortlessly getting away with multiple murders. If the deaths are the work of a serial killer, he or she has discovered the perfect venue for his or her murders—fulfilling his or her need for power, instilling fear in the public, yet deceiving the authorities to the point where not only is he or she not a suspect, but the possibility of murder is not even considered. The investigators and authorities involved with these cases seem to be convinced that the drownings are nothing more than accidents, but are you?

References About. (2006). Serial killer: Encyclopedia. Retrieved June 5, 2006, from http://experts.about. com/e/s/se/Serial_killer.htm Childseek Network. (2006). Commonalities and bios. Retrieved May 8, 2006, from http://www. childseeknetwork.com/oldsite/commonalities.htm Conte, A. (2004). Mystery river. Stuffmagazine. com. Retrieved May 10, 2006, from http://www. stuffmagazine.com/articles/index.aspx?id=817 Forensic Science. (2005). Cause of death. Retrieved May 30, 2006, from http://library. thinkquest.org/04oct/00206/ta_cause_of_death. htm Hiller, M., & Godlaski, T. (n.d.). Drugs and drug abuse. Retrieved June 15, 2006, from http://72.14.203.104/search?q=cache:m1n7QCrK_ 8QJ:www.uky.edu/SocialWork//courses/sw702Holmes, V. (2005). Drowning in coincidence: Midwest student mystery. Retrieved May 8, 2006, from http://www.vanceholmes.com/court/trial_ missing_students.html Investigators Suspect Accidents, Suicides. (2003, February 12). TheMilwaukeeChannel. com. Retrieved June 1, 2006, from http://www. themilwaukeechannel.com/print/1973837/detail. html Jenkins case may not be closed. (2006, February 20). 5 Eyewitness News. Retrieved May 8, 2006, from http://www.kstp.com/article/Pstories/ S14309.html McGraw, S. (2005). Only the river knows. Crime Library. Retrieved May 10, 2006, from http:// www.crimelibrary.com/serial_killers/unsolved/la_ crosse_wisconsin/index.html Mercer, A. (2004, April 30). Father wants regional task force to look into river deaths, offers

$175,000 reward for information leading to a conviction. La Crosse Tribune. Retrieved May 30, 2006, from http://www.redhouse.us/FatherWantsTaskForce.htm Office of National Drug Control Policy. (2002). Gamma Hydroxybutyrate (GHB). Retrieved June 20, 2006, from http://www.whitehousedrugpolicy. gov/publications/factsht/gamma/ Office of National Drug Control Policy. (2003). Rohypnol. Retrieved June 15, 2006, from http:// www.whitehousedrugpolicy.gov/publications/ factsht/rohypnol/ Scott. S. L. (2006). What makes serial killers tick? Crime Library. Retrieved June 2, 2006, from http://www.crimelibrary.com/serial_killers/ notorious/tick/victims_1.html Sidden, J. B. (1999). About bloodhounds. Mysterynet.com. Retrieved May 10, 2006, from http:// www.mysterynet.com/lanier/bloodhounds.shtml 6 college-age men disappear about same time, 5 in similar way. (2003, November 5). TheMilwaukeeChannel.com. Retrieved June 1, 2006, from http://www.themilwaukeechannel.com/ print/26142/detail.htm Tatum, T. S. (n.d.). An application of the research literature on serial murder to the case of the night stalker: Richard Ramirez. Robert E. McNair program. Retrieved June 5, 2006, from http://www. mcnair.uncc.edu/tamika.htm Thompson, R. (2003, May 21). Student receives posthumous degree from U. Minnesota. Minnesota Daily [online]. Retrieved June 1, 2006, from http://www.pbs.org/weta/washingtonweek/voices/ 200305/0521degree.html United States Naval Criminal Investigative Service. (n.d.). Date rape drugs. Retrieved June 15, 2006, from http://www.google.com/ search?q=cache:SY24zNrIHQ0J:navdweb.spawar. navy.mil/add-training/daterapedrugs.ppt+%22Na val+Criminal+Investigative+Service%22+date+rap e+drugs+23ci&hl=en&gl=us&ct=clnk&cd=1&cli ent=firefox-a University of Michigan Wolverine Wellness. (2005). GHB and Rohypnol. Retrieved June 15, 2006, from http://www.uhs.umich.edu/wellness/ aod/ghbandrohypnol.html Whitten, L. (2001). Conference highlights increasing GHB abuse. NIDA Notes 16(2). Wikipedia. (2006). Drowning. Retrieved May 10, 2006, from http://en.wikipedia.org/wiki/ Drowning Woolf, N. B. (2006). Search and rescue dogs. Dog Owners Guide. Retrieved May 10, 2006, from http://www.canismajor.com/dog/srchresc.html Wooters, V. (2004). Search and rescue dogs: Which dog does which task? Canada’s Guide to Dogs. Retrieved May 10, 2006, from http://www. canadasguidetodogs.com/dogjobs/sar2.htm

About the Author Leann Long, BS, is the associate editor of The Forensic Examiner®.

Fall 2006 THE FORENSIC EXAMINER 47

“I don’t speak German.” These were

the words that 42-year-old Michael McDermott calmly told police on December 26, 2000. In the lobby of Edgewater Technology, surrounded by spent weapons and the bloody bodies of two of his coworkers, McDermott sat waiting for law enforcement. Minutes earlier the software tester had rampaged through the office building, unloading more than 55 rounds and savagely gunning down seven of his coworkers (“Workplace Shooting,” 2002).

es, MA

By Heather B. Blad

The Case of Michael McDermott, the Christmas Killer McDermott could easily be described as a “coworker from hell,” seemingly unimaginable and yet terrifyingly real. His horrific crime represents a scenario that has played out in America many times over the past 30 years. Media accounts of these murder sprees lead the public to believe that crazed gunmen simply “snap” one day and erupt into an uncontrollable rage that is taken out on their coworkers. However, this portrait glosses over the truth that these workplace attacks are often the work of individuals who carefully plan, prepare for, and then execute their “revenge” on the coworkers and organizations that they believe are the root of their troubles. While workplace violence is a real problem in the United States, less than 10% of work-related injuries and deaths are from worker-on-worker violence (Injury Prevention Research Center [IRPC], 2001). However, when these seemingly unpredictable crimes do occur they devastate organizations, terrorize workers, traumatize friends and family members, and often leave multiple victims. Yet, by understanding the characteristics that workplace killers tend to share, organizations can watch for and deal with potentially violent employees.

Profile of a Killer Coworker While no profile can accurately describe every workplace killer or predict who will seek bloody revenge in a hail of bullets, many of those who commit “occupational homicide” share strikingly similar characteristics (see “Profile of a Workplace Killer”). The typical workplace killer is a middle-aged white man. He is a loner who owns one or more guns. His history of frustrating life experiences might include bouts of depression or mental illness, frequent job changes, and/or a litany of failed or disappointing relationships. As a worker he is chronically disgruntled, blaming others for his failures. He “knows” that his supervisors and coworkers are out to get him, undermining his efforts, sabotaging his work, or stealing the credit for his accomplishments. His anger seethes beneath the surface, although he might file grievances against his coworkers or occasionally lash out with hostile or threatening behavior. Eventually a catastrophic event, such as an impending job loss or being passed over for a promotion, pushes him over the edge. He decides to attack the root of his troubles: those who have conspired against him. He carefully plans his attack, putting together an arsenal of weapons and calculating how to effectively wipe out his targets (Fox, 2000). He might have a list of individuals to eliminate, specifically targeting his supervisors (Grimme & Grimme, n.d.; IRPC, 2001), or he might enter the workplace and shoot indiscriminately, effectively trying to murder the or-

ganization itself (Duncan, 1995; Fox). He begins his spree armed to the teeth with multiple weapons and extra ammunition (Duncan). Once his rampage is complete or his ammunition and rage are spent, he turns the gun on himself (Duncan; Rugala & Isaacs, 2004) or eventually surrenders to police. Left in his wake are the dead and the injured, and also many questions about how the seemingly “normal” man could have done the unimaginable. Michael McDermott: The Christmas Killer When trying to imagine a crazed killer, it is doubtful that Michael McDermott would have come to mind. Known as “Mucko” (a nickname given to him by nieces and nephews who couldn’t pronounce his name), he seemed like an average, if depressed, 42-year-old man with a barrel chest, bushy beard, moderate ambitions, and a quiet personality. As a young man he joined the Navy, where he spent 6 years as an electrician on a submarine. Following his honorable discharge he went to work for a nuclear power plant. He had problems at the job, reportedly refusing to work overtime, and suffered a mental breakdown after losing his work privileges, attempting suicide in 1987. He was fired from his position, but settled a worker’s compensation claim against the company for a “stress-related suicide attempt” (“Chronology,” n.d.; “Software Tester,” 2000; “Workplace Shooting,” 2002). McDermott next worked with Dura-

Fall 2006 THE FORENSIC EXAMINER 49

cell as a battery tester from 1990 to 2000. During this time he married his childhood sweetheart. However, the marriage was short-lived and ended in divorce after 4 years. In 2000 McDermott voluntarily left Duracell to take a job as a software tester for Edgewater Technology in the Boston suburb of Wakefield (“Chronology,” n.d.; “Workplace Shooting,” 2002). Financial Problems Spark a Rage Coworkers of McDermott at Edgewater saw him as quiet, strange, and quirky. The burly man, who usually came to work in a flannel shirt, jeans, and sneakers, mostly kept to himself; neighbors described him as a “loner” (Fox, 2000; “Murder Charges,” 2001; “Software Tester,” 2000). Although he held a relatively well-paying job (making $55,000 a year), McDermott had financial problems, and as the 2000 holiday season approached these troubles began to overwhelm him. He reportedly owed the IRS over $5,000 in back taxes, and his car was about to be repossessed. When McDermott learned that Edgewater was going to turn part of his paycheck over to the IRS, leaving him a weekly takehome pay of $275, he angrily confronted the management. The management at Edgewater later reported that they tried to help McDermott avoid having his wages garnished, even attempting to help him set up a payment plan. However, McDermott refused, saying that he didn’t owe the government anything. Unable to get McDermott to budge, Edgewater agreed to wait to begin withdrawing the money from his paychecks until after the holidays. But this was not enough for McDermott; he demanded an advance on his pay and a raise, even though he had been with the company for less than a year. When the company refused, he went into a rage. The incident was frightening enough that one of the employees in the payroll department reportedly told her mother that she was frightened of McDermott (Vogler, 2002; “Workplace Shooting,” 2002). Edgewater Becomes the Enemy Presumably at this point, in McDermott’s mind the company had gone from be-

ing an ally to an enemy, and McDermott began to make his plans. On the Friday before Christmas, in an act that provided a glimpse into his state of mind, McDermott asked two coworkers to come to his desk and sign his will as witnesses (“Alleged Shooter,” 2000; Cavaan, 2000). No one wondered why McDermott was taking such an interest in his final affairs; later the reason would become obvious. After celebrating Christmas and dropping his girlfriend off at her house, McDermott went to work. Prosecutors in the case stated that on Christmas night McDermott snuck into his office and hid over two dozen boxes of ammunition, two rifles, a shotgun, a pistol, and a bayonet at his desk (“Workplace Shooting,” 2002). The Holiday Massacre The day after Christmas the Edgewater office was quiet, as many workers had taken the day off. McDermott came in at 10:30 a.m. and chatted with Kenneth Yee, a senior consultant with the firm. Yee, who a half hour later found himself hiding under a conference room table to avoid bullets and shattering glass, would later testify that during their conversation McDermott had seemed happy to be at work; nothing seemed out of the ordinary (“Massacre Survivors,” 2002). Following their conversation McDermott went to his desk. Just before 11 a.m. he received a phone call; his car was about to be repossessed. McDermott reportedly told the caller, “I won’t be needing it. Come pick it up.” Minutes later, according to authorities, he rose from his chair and grabbed a gun bag from his work area; the bag contained ammunition, a semi-automatic pistol, a pump-action shotgun, and an AK-47 semi-automatic rifle (“Chronology,” n.d.; “Massacre Survivors,” 2002; “Workplace Shooting,” 2002). Reports and witness testimony piece together what happened next. Armed and ready, McDermott walked through the office past several coworkers. When he reached the reception area Janice Hagerty, the office manager, jokingly asked him where he was going. McDermott reportedly replied “Actually, I need to see some-

50 THE FORENSIC EXAMINER Fall 2006

one in human resources.” A witness who had glanced into the lobby later stated that she then saw McDermott raise a rifle and shoot Hagerty twice, ending her life. McDermott then shot human resources director Cheryl Troy, riddling her with five bullets from behind, presumably as she tried to flee (“Chronology,” n.d.; “Massacre Survivors,” 2002; “Murder Charges,” 2001; Steinhaus, 2002a; “Workplace Shooting,” 2002). McDermott acted quickly following this first attack. He moved purposely to the office of the company president but found it empty. He then proceeded to the human resources department, passing several employees without incident. Jonathon Land, the company vice president, later testified that he came out of his office to see what all the noise was about and saw McDermott barreling down the hall with a focused look and a gun in his hand. Land stepped back into his office but reported overhearing Louis Javelle, the director of consulting, saying, “Mike, why?” followed by the sound of gunshots. Witnesses also overheard Craig Wood, who worked in the human resources department, begging, “Mike, no!” and then a shot. Still alive, Wood continued to plead for his life as McDermott shot him several more times. At the same time McDermott also shot and killed Jennifer Bragg-Capobianco, who worked in the marketing department but was sitting at a desk in human resources for the day (“Chronology,” n.d.; “Massacre Survivors,” 2002; “Murder Charges,” 2001; “Profiles,” n.d.; Steinhaus, 2002a; “Workplace Shooting,” 2002). Finally McDermott proceeded to the accounting office at the far end of the building where three terrified employees had barricaded themselves. This was the department that would have been responsible for his payroll deductions for the IRS. McDermott shot through the locked office door and killed Paul Marceau and Rose Manfredi. The third employee, who had hid under a desk, later said she heard Marceau begging McDermott for his life as McDermott reloaded his weapon. Marceau’s pleas were answered with more gunshots, and then silence (“Chronology,”

Profile of a Workplace Killer Typical characteristics of workplace killers: Workplace killers typically exhibit several of the following characteristics: • Are overwhelmingly male1-4; women commit only 3%–7% of all attacks2, 5 • Tend to be middle aged, between 35–45 years of age1, 2, 6, 7 • Might have a history of violence against vulnerable targets4, 7 • Have a hard time socializing; tend to be loners3, 4, 6-8 • Are prone to obsessions or fixations on people, ideas, or events such as guns; acts of violence; political, racial, or religious causes; their jobs; other people6, 7, 9-11 • Have a history of frustrating life or work experiences or a migratory work history1, 6, 7, 10 • Are narcissistic; depreciate others; cannot accept criticism9, 11 • Own a gun or guns; are interested in dangerous weapons4, 6, 8-11

• Exhibit a fascination with military-type groups, law enforcement, survivalist organizations, fascist history, etc.9, 12 • Belong to fringe, right-wing, anti-government, or racist political groups9 • Have history of drug/alcohol abuse8-10 • Express a great interest in violent themes or acts reported by the media such as smass murder, capital punishment, etc.9, 10, 12

Potential warning signs often exhibited by workplace killers: • Behaving in a hostile or threatening way towards others; escalating domestic/work problems6, 7, 10-12 • Acting “strangely” or erratically (deteriorating personal hygiene; becoming reclusive, paranoid, disorganized, etc.)6, 7, 10, 11 • Having emotional problems like drug/alcohol abuse, depression, etc.4, 6, 7, 12 • Performing poorly at work1, 7 • Getting into conflicts with supervisors and/or coworkers1, 7 • Filing unfounded grievances or complaints, seeing oneself as a victim, blaming others, being chronically disgruntled1, 3, 6, 9, 10, 12 • Coworkers or others feel the person is ready to explode 7, 13 n.d.; “Massacre Survivors,” 2002; “Murder Charges,” 2001; Steinhaus, 2002a; “Workplace Shooting,” 2002). His methodical and murderous spree completed, McDermott returned to the now-bloodstained reception area, laid down his weapons, and waited for police to arrive. His odd statement to the first officers on the scene, “I don’t speak German,” was later interpreted to be an early attempt to set up an insanity defense (Vogler, 2002).

Events that may trigger a workplace killer: • Losing a job1, 7, 9, 10 or being suspended7 • Being passed over for a promotion1, 7 • Being reprimanded/disciplined at work1, 7, 10 • Suffering financial strain (bank or court action, loss of law suit, loss of money)7, 9, 11 • Enduring a personal crisis (the end of a relationship, a death in the family, family conflicts, etc.)7, 9-11 • Facing interpersonal or work-related dispute(s)14 References

1. Duncan, T. S. (1995, April). Death in the office: Workplace homicide. The FBI Law Enforcement Bulletin. Retrieved May 11, 2006, from www.findarticles.com 2. Kasindorf, M. (2006, January 31). Woman kills five, self at postal plant. USA Today. Retrieved May 11, 2006, from http://usatoday.printthis.clickability.com 3. Smith, S. (2003, July 9). More facts revealed in Mississippi workplace shooting. Occupational Hazards. Retrieved May 10, 2006, from www.occupational hazards.com/ articles/7377 4. Thompson, D. (2001). On the edge: Managing high-risk situations. Participant’s Workbook. Edge Training Systems, Inc. HRD Press, Inc. MA, USA. 5. Workplace shootings almost always by men. (2006, January 31). MSNBC.com. Retrieved May 22, 2006, from www.msnbc.msn.com 6. Cavaan, A. M. (2000, December 31). Experts: Work colleagues must recognize signs. Boston Herald. Retrieved May 11, 2006, from civil.nih.gov/news/work12312000. html 7. Grimme, S., & Grimme, D. (n.d.). Violence in the workplace: The realities and the options. Business Know-How. Retrieved May 10, 2006, from www.businessknowhow. com/manage/violwork.htm 8. Mathis, K. J. (n.d.). Violence in the workplace: Protecting your law office. American Bar Association. Retrieved May 11, 2006, from www.abanet.org/genpractice/compleat/ w96viol.html 9. Blinder, M. (1997, May). Workplace murders are rising in the U.S., says forensic scientist. Outreach. Retreived May 10, 2006, from www.psych-health.com/killers.htm 10. Rugala, E. A., & Isaacs, A. R. (Eds.). (2004, March 1). Workplace violence: Issues in response. Critical Incident Response Group, National Center for the Analysis of Violent Crime, Federal Bureau of Investigation. Washington, DC: U.S. Department of Justice. 11. National Center for Victims of Crime (NCVC). (1997). Workplace violence: Employer information. Retrieved May 11, 2006, from www.nycagainstrape.org 12. Walker, C. (n.d.). Workplace violence. Retrieved May 11, 2006, from www.neurolifeinc.com/HTML/resources/WPVPresentation-Handout.pdf 13. Walsh, T. (2000, December 28). There are techniques to stem work violence. Boston Herald. Retrieved May 11, 2006, from civil.nih.gov/news/safe12282000.html 14. Injury Prevention Research Center (IRPC). (2001, February). Workplace violence: A report to the nation. Iowa City, IA: The University of Iowa Press.

Was It Insanity? At trial McDermott’s defense claimed that he had been suffering from depression and schizophrenia and that he believed he had been commissioned by the archangel Michael to stop the Holocaust. According to McDermott he had traveled back in time to 1940 and had shot Nazis and Hitler, not his Edgewater coworkers (Naraine, 2002). However, McDermott admitted on the stand that he had done extensive Internet research on how to fake a mental

illness and psychosis, and a year before the killings he had purchased the book Clinical Assessment of Malingering and Deception, which was written to help mental health professionals uncover defendants who faked mental illnesses (Vogler). These facts made his defense appear even more unbelievable. Another blow to McDermott’s insanity defense came from the nature of his crimes. Prosecutors argued that the coworkers he gunned down were all somehow involved

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in his IRS dispute, and most worked for the human resources or accounting departments (or were in the wrong place at the wrong time). The fact that he walked by some uninvolved coworkers without incident but methodically hunted down and shot others against whom he held grudges did not point to a psychosis. Instead it seemed to indicate a man who coldly and ruthlessly executed a planned attack and worked hard to set up the only possible defense for his heinous actions: an insanity defense (“Prosecutor Provides,” 2000). In the end, the jury in the case rejected McDermott’s insanity defense, instead apparently accepting the prosecution argument that while he was depressed and had a personality disorder, he was not psychotic and knew exactly what he was doing when he took his coworkers’ lives. On April 24, 2002, McDermott was found guilty on all counts, including seven counts of first-degree murder. He was sentenced to seven consecutive life terms—one for each of his victims and the maximum penalty allowed for his terrible crime (Steinhaus, 2002b). Prediction and Prevention For many in the public it is difficult to believe that any sane person could coldly and ruthlessly murder the people with whom he or she works every day. Yet the McDermott case, as well as dozens of other similar cases, illustrate that such events can and do occur. The vast majority of these killers fit into a typical profile of a workplace killer; however, many others who fit this same profile are excellent workers who will never go on to kill. It is impossible to predict who will become the next Michael McDermott. However, one is safe in predicting that similar crimes will continue to occur. American workplaces are becoming more stressful and harsh, and workers are placed under increasing pressure to work harder, faster, longer, and smarter. At the same time, businesses are being downsized and reorganized, benefits are being cut, and many employees feel their sense of job security slipping away. Understaffing, excessive required overtime, poor management, and

mishandled grievances only exacerbate the problems. This environment is a breeding ground for anger and frustration (Mathis, n.d.; Patton, 2001; Rugala & Isaacs, 2004), and both of these factors can potentially influence and breed violence and emotional explosions at work. Employers must take proactive steps to reduce the risks of violence in their workplaces. Perhaps even more important than watching for potentially volatile workers is creating an environment at work that reduces the risks of violence. Much research has been done on specific steps employers can take to make their work environments more worker-friendly and less hospitable to violence. Although changing the culture of the American workplace will not eliminate all incidents of violence on the job, it is an important step to decreasing the likelihood that another Michael McDermott will shatter a quiet workday with an explosion of violence. References Alleged shooter in workplace killing remembered in contradictory ways. (2000, December 28). CourtTVnews. Retrieved May 30, 2006, from http://www.courttv.com/archive/ news/2000/1228/shooter_ap.html Cavaan, A. M. (2000, December 31). Experts: Work colleagues must recognize signs. Boston Herald. Retrieved May 11, 2006, from civil.nih.gov/ news/work12312000.html Chronology. (n.d.). CourtTV.com. Retrieved May 24, 2006, from http://www.courttv.com/trials/ mcdermott/chronology.html#a Duncan, T. S. (1995, April). Death in the office: Workplace homicide. The FBI Law Enforcement Bulletin. Retrieved May 11, 2006, from www. findarticles.com Fox, J. A. (2000, December 31). Workplace avengers don’t just snap; they target their rage. Boston Globe, p. D01. Retrieved May 11, 2006, from www.jfox.neu.edu/seektokillcompany.htm Grimme, S., & Grimme, D. (n.d.). Violence in the workplace: The realities and the options. Business Know-How. Retrieved May 10, 2006, from www. businessknowhow.com/manage/violwork.htm Injury Prevention Research Center (IRPC). (2001, February). Workplace violence: A report to the nation. Iowa City, IA: The University of Iowa Press. Massacre survivors tearfully recall rampage. (2002, April 8). CourtTVnews. Retrieved May 31, 2006, from http://www.courttv.com/trials/ mcdermott/040802_ctv.html Mathis, K. J. (n.d.). Violence in the workplace:

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Protecting your law office. American Bar Association. Retrieved May 11, 2006, from www.abanet. org/genpractice/compleat/w96viol.html Murder charges in workplace shooting. (2001, February 15). CBS News. Retrieved May 11, 2006, from www.cbsnews.com Naraine, R. (2002, April 25). Murder conviction for Edgewater killer. Internet News.com. Retrieved May 24, 2006, from http://www.internetnews.com/bus-news/article.php/1015741 Patton, S. (2001, May 4). Looking for clues on workplace violence: Where next? CNN.com. Retrieved May 30, 2006, from http://archives. cnn.com/2001/CAREER/trends/05/01/office. violence.idg/index.html Profiles of key players. (n.d.). CourtTVnews. Retrieved May 31, 2006, from http://www.courttv.com/trials/mcdermott/keyplayers.html#victims Prosecutor provides chilling details of office massacre. (2000, December 27). CNN.com. Retrieved May 30, 2006, from http://archives.cnn.com/2000/ LAW/12/27/shooting.details/index.html Rugala, E. A., & Isaacs, A. R. (Eds.). (2004, March 1). Workplace violence: Issues in response. Critical Incident Response Group, National Center for the Analysis of Violent Crime, Federal Bureau of Investigation. Washington, DC: U.S. Department of Justice. Software tester at center of Boston shooting. (2000, December 27). CourtTVnews. Retrieved May 30, 2006, from http://www.courttv.com/archive/news/2000/1227/shooter_ap.html Steinhaus, R. (2002a, April 4). Details of shooting, but not insanity, prominent in trial’s opening. CourtTVnews. Retrieved May 26, 2006, from http:// www.courttv.com/trials/mcdermott/040402_ctv. html Steinhaus, R. (2002b, April 24). Jury rejects insanity claims, convicts “Mucko” of first-degree murder. CourtTVnews. Retrieved May 26, 2006, from http://www.courttv.com/trials/mcdermott/ verdict_ctv.html Vogler, M. E. (2002, April 13). He kept date with death, not doctor. Eagle Tribune. Retrieved May 24, 2006, from http://www.eagletribune. com/news/ stories/20020413/FP_004.htm Workplace shooting suspect accused of killing seven victims in seven minutes. (2002, April 1). CourtTVnews. Retrieved May 11, 2006, from www.courttv.com/trials/mcdermott/background. html

About the Author Heather Blades, MA, is the editor-inchief of The Forensic Examiner®.

By Katherine Ramsland, PhD, CMI-V Fall 2006 THE FORENSIC EXAMINER 53

n 1885 in Lyon, France, an elderly man was found on the bed in his locked bedroom with a wound to his head and his hand firmly grasping a pistol. There was no evidence that anyone had forcibly entered the room, and two physicians called to the scene stated that the manner of death was clearly suicide. However, when the professor of medicine from the University of Lyon, Dr. Jean Alexandre Eugène Lacassagne, examined the scene, he noticed something odd. The bed linens had been pulled over the dead man’s arms, a difficult feat for someone who has just put a bullet through his brain. On closer examination, Lacassagne noticed other items indicating that the scene had probably been staged: the man’s eyes were closed and his skin lacked the usual gunpowder burns that resulted from a close-range shot. Years before the publication of the first story featuring Sherlock Holmes, Lacassagne believed that it was imperative to use observation and critical examination to get the big picture before he made a judgment. He knew from his experience working on corpses how suicide-by-gunshot should appear, and he was convinced that the weapon was held too far away. Yet Lacassagne was not certain about the relationship between violent deaths and eyelids, so he questioned a number of nurses. They said that only in natural deaths had they seen the eyes closed; in contrast, sudden or violent deaths generally resulted in the eyes remaining open, even staring. Assured that he was on the right track, Lacassagne turned his attention to the revolver in the dead man’s hand. Such a tight grip would be difficult to achieve by placing the weapon there after death, but he considered several possible scenarios and then collected data from an experiment.

He requested that other medical personnel inform him immediately whenever someone died in the area, and he would then go to the scene to attempt to place an object into the decedent’s hand in a grip as tight as what he had observed with the elderly man. He learned that a dead hand, immediately postmortem, could indeed be made to grip something, though not tightly. However, once the early stages of rigor mortis set in, a gun placed in an initially loose grip could become more tightly clasped. Relying on the evidence, his experiments, and his own reasoning, Lacassagne decided that the elderly man had been murdered. The police turned their attention toward the victim’s son as an obvious suspect. It seemed that while he’d hoped to dispatch the man, the slight degree of fondness he felt had compelled him to close his father’s eyes and cover him. The son was tried and convicted on Lacassagne’s findings; had the police relied only on the doctors who had performed a cursory examination, this killer would have gotten away with his crime. In his day, due to his careful work, prestigious university position, and authoritative bearing, Lacassagne became a celebrity investigator. Born in 1843, he had attended military school and qualified as a surgeon, becoming an army physician in North Africa. There he developed an interest in pathology and the identification of the dead and was especially adept at the interpretation of wounds and casualties from violent incidents. In 1878, when he was 35, Lacassagne published Précis de Médicine, which helped him obtain a teaching position at the Institute of Medicine at the university, which was established 2 years later. He was an obsessive learner who read documents from a variety of fields, and because his knowledge proved comprehensive he won the respect of colleagues in other disciplines. Yet he remained ever cognizant of the limitations of medicine, and he exercised doubt about even the most seemingly obvious situa-

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tions so as not to miss the tiny clues that could produce a more accurate opinion. By the time he retired in 1921, he donated his impressive collection of over 12,000 books. Lacassagne’s most memorable contributions derived from his work in pathology, notably his observation of the stages of death. Many 19th-century pathologists believed that the time of death could easily and accurately be determined by measuring body temperature and the stages of rigor mortis and lividity, but the more homicide cases they saw, the less certain they were. It took physicians as observant as Lacassagne to recognize and admit that the interpretation of decomposition and other postmortem indicators was not sufficiently reliable to be deemed a science. There were too many environmental and individual variables. Nevertheless, he spent considerable time making calculations from the dead for a better understanding of the postmortem interval. Lacassagne also made a contribution to several areas of investigation. Among them was the field of ballistics. After removing a bullet from a victim during an autopsy in 1889, he noticed longitudinal grooves on its surface and counted them; there were seven. Then he examined the barrels of several pistols that belonged to the various suspects and identified the one he believed had been used to commit the murder—the only one with seven grooves. Its owner was convicted. While this kind of analysis was primitive and could easily have been wrong, the early scientists—mostly physicians, pathologists, and chemists—were at least moving in the right direction. One of the first cases in which hair was carefully analyzed also involved Lacassagne. In August 1889, the decomposed nude body of a bearded, dark-haired man was found near Le Tour de Millery, France, 10 miles from Lyon. It had been wrapped in oilcloth and placed headfirst inside a canvas bag. Dr. Paul Bernard, who had once studied with Lacassagne, examined the corpse with some

difficulty because it was in an advanced state of decomposition and had a terrible odor, but he estimated the victim’s age to have been around 35. He also thought, but could not be certain, that the man had died by strangulation because the larynx showed two breaks. Around the same time a wooden trunk, broken into pieces and smelling distinctly of decomposition, turned up not far away; it bore a shipping date from Paris that was difficult to read. Investigators speculated on whether it might be associated with the deceased, and a key found near the area where the corpse was dumped fit the lock, clinching the connection. They started to work on learning when the box and body had been shipped. The corpse was not identified as a local resident, so the press picked up the story and it reached the ears of Assistant Superintendent Marie-François Goron at the Sûreté in Paris. He looked through his reports on missing persons and came across the name of Toussaint-Augsent Gouffé, a known womanizer whose brother-in-law had reported that he had not been seen since July 27. Gouffé was a 49-year-old court bailiff with an office in the neighborhood of Montmartre, and during the investigation Goron had learned that a strange man had entered Gouffé’s office on July 26 and left in a hurry without stating his business. Because Gouffé’s financial affairs were in order and there appeared to be no reason that he might flee town or kill himself, Goron paid more attention to the case. He sent Gouffé’s brother-in-law to Lyon to look at the remains found there, which were stored on an odiferous barge converted into a morgue. The man looked at the black-haired, rotting corpse for as long as he could bear and stated that because Gouffé had chestnutbrown hair, it was not him. The unidentified decedent was finally buried, while Gouffé remained missing. However, Goron thought there were too many circumstances in common for the cases to be unrelated, so he persisted. A Lyon cab driver claimed to have picked up a heavy trunk from the rail-

road station on July 6, along with three men who had asked him to take them to the vicinity of Millery. They’d left the trunk there, returned to Lyon, and were arrested for robbery. Thus, since this all occurred before Gouffé had disappeared, the corpse that had clearly been in the trunk could not be the missing Parisian. But Goron was not convinced that this ended the case. He learned that Gouffé had been seen with a man named Michel Eyraud, a known pimp and scam artist, and Eyraud’s mistress, Gabrielle Bompard. Both had also vanished from Paris on July 27. Then the police managed to track the trunk to a shipping agent whose

“

Lacassagne’s most memorable contributions derived from his work in pathology, notably his observation of the stages of death.

”

records indicated that it had been sent to Lyon on July 27. Goron was now certain that the corpse was their missing citizen, especially after the cab driver admitted that he had fabricated his tale about the trunk. Goron asked Dr. Bernard for a sample of the dead man’s hair, kept in a test tube, and immersed it in distilled water. The “black” hair, now free of grime and crusted blood, turned out to be chestnut brown, the color of Gouffé’s hair, so Goron petitioned for an exhumation and invited Lacassagne to make an opinion. (Some sources indicate that Lacassagne is the one who washed the hair.) Knowing that a bungled autopsy cannot be revised, Lacassagne performed a re-autopsy as best he could on Novem-

ber 12, 1889, removing the putrid flesh to examine the bones. He noted with dismay that Bernard, his own former student, had smashed the skull and sliced so ineptly through the flesh that much of it was damaged. It took Lacassagne 11 days to make his way through the putrid remains. His colleague, Dr. Etienne Rollet, had recently published a method for determining the size of a body from the bones, so Lacassagne relied on these calculations to state that the man had once been about 5 ft. 8 in., which matched Gouffé’s military record. Under a microscope, Lacassagne compared hair removed from Gouffé’s hairbrush with selected hairs from the corpse. Their thickness corresponded exactly, and another type of analysis showed that no hair dye had been used. In addition, the corpse had a deformity in the bone of the right knee from an accumulation of fluid, which corresponded to a limp that the missing Gouffé was known to have (his doctor also confirmed treatment for water on the knee). Wear on the dentine of the teeth and an accumulation of tartar revealed a man closer to 50 than 35, and Gouffé had been 49. Lacassagne also re-examined the bones of the throat and found the two breaks, which confirmed some type of strangulation as the cause of death, and he believed it was done manually. On November 21, Lacassagne said to Goron and his associates, “Messieurs, I herewith present you with Monsieur Gouffé.” Once Gouffé’s identity was established, the police set out to find his killer, and it proved to be an ingenious bit of work. Goron had a replica of the steamer trunk built and placed in the Paris morgue for the public to see. Twenty-five thousand people filed past. When no one offered useful information, a photograph was published in newspapers abroad. A Frenchman in London who saw it recalled meeting a father and daughter who had purchased one like it. This information was publicized as well, and Goron subsequently received a 20-page letter from Michel Eyraud, then in New York.

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He accused his mistress, Gabrielle Bompard, of the murder, and she arrived in Goron’s office to implicate them both in the grifting scheme. They had killed the man, she admitted, attempting to hang him but finally strangling him with their hands (as Lacassagne indicated). Their trial was brief, and both were convicted. Eyraud was executed, and Bompard was given a prison sentence. During Eyraud’s execution, peddlers sold tiny replicas of the trunk with lead corpses inside, bearing the inscription, “L’Affaire Gouffé.” This case was widely publicized, turning forensic pathology into a public sensation. The careful unraveling of the mystery and the collective persistence of brilliant minds gave the struggling discipline of forensic science a real boost. After his involvement in this incident, Lacassagne’s fame spread internationally, so people listened when he introduced new ideas into other forensic arenas. He analyzed blood stains at crime scenes and studied the criminal psyche. He was also invited to analyze criminal suspects and offer his opinion. In 1897 a tramp from southwestern France named Joseph Vacher was accused of crimes against 14 people, including 11 murders. The police also believed he had raped as many as 40 children. Vacher had been arrested after a 17-year-old shepherd was found strangled and stabbed, with his belly ripped open, and Vacher, 29, offered a written confession in which he claimed to suffer from an irresistible impulse that drove him to commit murder. Having been bitten by a rabid dog when he was a child, he insisted that his blood had been poisoned. He admitted that as his victims died, he drank blood from their necks. A team of doctors, including Lacassagne, examined the defendant for 5 months, learning from relatives and associates about his “confused talk,” spells of delirium, persecution mania, and violent history. Indeed, 3 years earlier he had been treated in an asylum after he killed a woman and had sex with her corpse, and it was also known that he’d

removed the genitalia from several children. Lacassagne nevertheless decided that Vacher was faking a mental illness. Because the assailant’s memory was clear about the crimes and because he had run off after committing them, he demonstrated sufficient awareness to be judged sane and thus responsible for what he had done. In 1898 in court, Lacassagne demonstrated how he believed the defendant had carried out the crimes and Vacher reportedly said, “He’s very good.” Indeed, Lacassagne’s reputation and commanding stance helped to convict Vacher, who was executed 2 months later by guillotine. Lacassagne’s interest in criminology had a long history. A once-avid student of the works of Italian criminal anthropologist Cesare Lombroso, who believed that criminal types could be recognized via bodily “maps,” Lacassagne redirected the discipline by noting sociological influences. He formed a group of professionals around his own ideas, becoming famous for the comment, “Societies have the criminals they deserve.” While he believed that disease and addiction, passed on to successive generations, could cause mental and physical degeneracy, other factors such as poverty and social marginalization were also involved. In fact, in a speech given in 1881, he stated that the fight against criminality was the physician’s social responsibility. “At the present time, it will be the physicians, once again, who will show judges that some criminals are incorrigible [and] some are organically bad, defective individuals . . . .” Lacassagne came to realize that, contrary to the ideas of physical anthropologists, criminals appeared physically normal but for various reasons were vulnerable to corrupting social influences. “The criminal is a microbe,” he said, “that proliferates only in a certain environment.” He then launched a journal, Archives de l’anthropologie criminelle, to discuss social initiatives to ease crime. In addition to making analyses, Lacassagne also instigated the earliest criminal autobiographies. He encouraged a number of prisoners to write about

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themselves, and each week he checked their notebooks, correcting and guiding these men and women toward some revealed insight. He found that their family histories were full of violence, tension, and disease. Interestingly, these prisoners seemed eager to contribute to the new science of the criminal type and some even critiqued the theories. Lacassagne, who always collected data before offering a theory, is to be credited for his contributions to many forensic techniques. Works Consulted Becker, P., & Wetzell, R. F. (2006). Criminals and their scientists: The history of criminology in international perspective. Cambridge: Cambridge University Press. Evans, C. (2004). The second casebook of forensic detection. Hoboken, NJ: John Wiley and Sons. Lane, B. (1994). The encyclopedia of forensic science. London: Magpie Books. Thorwald, J. (1964). The century of the detective. New York: Harcourt, Brace & World. von Krafft-Ebing, R. (1928). Psychopathia sexualis with especial reference to the antipathic sexual instinct: A medico-forensic (Rev. ed.). Philadelphia: Physicians and Surgeons. Wilson, C., & Wilson, D. (2003). Written in blood: A history of forensic detection. New York: Carroll and Graf Publishers.

About the Author Katherine Ramsland, PhD, CMIV, has published 27 books including The Human Predator: A Historical Chronicle of Serial Murder and Forensic Investigation. Dr. Ramsland is an assistant professor of forensic psychology at DeSales University in Pennsylvania. She is a Certified Medical Investigator (CMI-V) and has been a member of the American College of Forensic Examiners since 1998.

Private Defense Evaluations By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABPS, DABFM, DAPA

Fall 2006 THE FORENSIC EXAMINER 57

This article will only discuss the parameters and dynamics of conducting evaluations from one perspective: that of the forensic expert who has been privately retained on behalf of the defendant. Mental health forensic experts conduct evaluations in the context of criminal, civil, family, juvenile, and administrative trials and hearings. Each arena or area of practice is unique, posing different challenges, obligations, and opportunities for the expert. As the Director of the Institute of Psychiatry, Law, and Behavioral Sciences at the University of Southern California’s Keck School of Medicine, I have regular contact with attorneys, mental health practitioners, and policy makers from around the nation. Recently, I have received a surprising number of calls related to a lack of understanding of the legal and ethical proscription of the role and responsibilities of a forensic mental health practitioner. Specialty guidelines have been developed by several professional organizations, such as the American Academy of Psychiatry and the Law, a joint committee of the American Psychology-Law Society and Division 41 of the American Psychological Association (with endorsement by the American Academy of Forensic Psychology), and the National Academy of Neuropsychology, among others.1,2,3,4 These guidelines provide “aspirational models” of professional conduct to be followed during the application of mental health skills and expertise in a forensic setting. All forensic mental health professionals should be familiar with and intermittently review those guidelines appropriate to their degrees, licenses, and areas of subspecialty. While these guidelines vary in degree and area(s) of detail, they stop short of outlining specific dos and don’ts.

Determining the Actual Client and Point of Accountability The majority of complaints and concerns I have received have been related to practice parameters of experts conducting an evaluation on behalf of a criminal defendant, and to the nature of the working relationship between the expert and defense attorney. Experts for the defense are typically brought in to a case by court appointment (and are paid a pre-established set fee), or

are contacted privately by the defendant’s counsel (with the expert setting his or her own fee for which the defendant is responsible). While the overriding purpose of an evaluation conducted under either condition is to serve the defendant, the client and associated accountability differ. When appointed by the court, the court is the client, and when privately contracted, the defendant (and defense counsel, by extension) is the client. To whom the defense expert is contractually accountable—the court or the defendant—determines the ethical and legal steps the expert must take during the evaluation process. There are significant differences in the protocols for defense evaluators who are privately retained versus those who are court-appointed. The main areas of confusion for all involved in the criminal justice system are the role and responsibilities of the privately retained forensic mental health practitioner. As such, the present article will focus on those issues alone, and not everything that follows will apply to defense experts appointed by the court. (Please see the final “Caution” section.) When privately contracted, the forensic expert works for the defendant and with the defendant’s counsel. He or she is only accountable to the attorney in that the attorney is an agent or extension of the client/defendant. The practitioner’s duty is to serve the best interests of the client within the scope of the law. Any objective the attorney may have beyond allowing the expert to “contribute as able” to his or her client’s defense is irrelevant, as is any secondary goal the expert may have, such as being brought in by the attorney on a future case.

Equal Under the Law Unless an expert has had prior experience working with a given attorney, it is incumbent on the expert not to assume anything about the attorney’s professionalism. The expertise, experience, and knowledge of the law varies among defense attorneys as greatly as it does among forensic mental health specialists. It is a disservice to the defendant to assume the attorney knows more (or anything) about the obligations, duties, and purpose of the expert’s role. Similarly, not all defense attorneys are well versed in the range of available foren-

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sic mental health services. Unfortunately, neither are all forensic specialists. Forensic experts must keep abreast of the evidence and penal codes (as well as case law) relevant to each type of evaluation, the definition and criteria for qualifying as an expert, evidentiary standards and procedures, and the admissibility of or limitations on expert testimony. Failure to know and conform to the above parameters can result in literally life and death consequences for the client/defendant, as well as legal and administrative consequences for the practitioner. By way of example, in an ongoing administrative matter in California, an “expert” with years of experience is being investigated for failure to understand the difference between competency and sanity evaluations, evaluating for one when asked to assess for the other. The burden (and liability) is on the forensic mental health expert to be conversant with those matters of law that bear directly on his or her ability to perform competently, ethically, and within the bounds of the law. Beyond defense attorneys, experts should not assume that anyone in the court possesses a working knowledge of those issues that guide the practice of forensic psychology. For example, in a confidential juvenile matter the therapist for a minor child was held in contempt of court for rightly refusing to testify until privilege had been waived. No one in the courtroom—including the judge—knew who held the privilege, and no one thought to ask the therapist while on the stand. Instead, the practitioner was kept in a holding cell until someone finally researched the issue and arrived at the answer. Some defense attorneys are better at working with forensic specialists and are better able to effectively integrate the expert into the evolution of their defense strategies. This is especially important when working as an expert on a capital case, where it is virtually impossible to serve the defendant without being incorporated into the defense team. Before accepting a case (especially a capital one), assess how open the attorney will be to the expert suggesting possible lines of defense from a mental health perspective and the recommendation of other experts (in related fields) who may prove crucial to a thorough and ag-

gressive defense. Be aware that no matter how professional and respectful an attorney may seem, he or she may not be above attempts to manipulate experts.

Ignorance Isn’t Always Bliss Many privately retained defense experts fail to ask the defendant’s attorney what he or she hopes to show via the evaluation. A truly objective and unbiased professional will not be swayed by knowing what the attorney hopes to obtain from the evaluation. On the contrary, the expert will gain invaluable insight into the depth and breadth of the attorney’s understanding of forensic psychology and its application. In addition, the expert will gain a better understanding of the attorney’s defense strategy at that point. After the expert has formulated his or her opinions, he or she will then be able to provide the attorney with information that is either supportive of that strategy or that indicates the need for strategy revision. Prior to seeing the client/defendant, make sure the attorney has told the client what he or she specifically does not want him or her to discuss during the evaluation. Rather than being manipulative, defense attorneys have an obligation to protect the client and the client’s defense. In this way, the expert has communicated to the attorney an understanding of protected material and pre-set boundaries that protect the usability of material gathered by the expert, which allows the defendant to say “my attorney told me not to discuss that” rather than fabricating or evading when interview questions probe into the protected area. Understanding “Work Product” Many forensic mental health practitioners (private and appointed) erroneously believe it is their obligation to record and report every bit of information obtained from the attorney (or representatives of the attorney’s law office) and from the client/ defendant. On the contrary, forensic experts have a duty to protect all information that might harm the defendant and that does not have direct bearing on the opinions formed by the expert pertaining to the psycho-legal question at hand. As stated in the Specialty Guidelines for Forensic Psychologists (Section 6, Item

B): Forensic psychologists have an obligation to document and be prepared to make available, subject to court order or the rules of evidence, all data that form the basis for their evidence or services. The standard to be applied to such documentation or recording anticipates that the detail and quality of such documentation will be subject to reasonable judicial scrutiny; this standard is higher than the normative standard for general clinical practice. When forensic psychologists conduct an examination or engage in the treatment of a party to a legal proceeding, with foreknowledge that their professional services will be

“ Privately con-

their data and evidence derived from it are likely to enter into legally relevant decisions. Whether by intention or by carelessness, defense attorneys occasionally send “work product” in the packet of documents sent for the experts review. Before any material is sent, the expert should remind the attorney not to send any protected material. Upon receipt of documents, the expert should initially glance through the files to ensure no work product is present (such as reports by the defense attorney’s investigators, notes made by the attorney, letters from the defendant to the attorney, etc.). If such material has been included, the expert should, before reading it, contact the attorney to ensure it was sent intentionally and, if not, arrange for its return.

Dos and Don’ts of Conducting an Evaluation First and foremost, when doing any forensic work, be objective, but do no harm. Second, be thorough. Third, don’t use outdated test protocols, ones that are experimental, or any that do not meet admissibility standards. And, finally, use common sense.

tracted defense experts . . . should not assume the defense attorney conferred with his or her client or is capable of accurately explaining the process and purpose of the evaluation.

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used in an adjudicative forum, they incur a special responsibility to provide the best documentation possible under the circumstances. 1. Documentation of the data upon which one’s evidence is based is subject to the normal rules of discovery, disclosure, confidentiality, and privilege that operate in the jurisdiction in which the data were obtained. Forensic psychologists have an obligation to be aware of those rules and to regulate their conduct in accordance with them. 2. The duties and obligations of forensic psychologists with respect to documentation of data that form the basis for their evidence apply from the moment they know or have a reasonable basis for knowing that

Informed Consent Privately contracted defense experts who have been requested to conduct an evaluation of a defendant should not assume the defense attorney conferred with his or her client or is capable of accurately explaining the process and purpose of the evaluation. As such, prior to conducting the evaluation the forensic expert should obtain informed consent from the client/defendant. Informed consent must include a clear and understandable explanation of every step of the evaluation process, including any assessment procedures that will be used and any collateral interviews that might be conducted. The intended purpose of the evaluation must be explained, as well as how and when the results may be used. As part of obtaining informed consent, the defendant should understand that the findings of the evaluation will be discussed with his or her attorney. Based on the outcome of the evaluation and the attorney’s decision regarding a “best defense,” the results of the evaluation might be presented

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in a written report and/or in-court testimony, both of which would become part of the public record. The defendant should know that if a written report is issued, his or her attorney might use it during pre-trial negotiations, at trial, or during sentencing or the penalty phase of a capital trial. If testimony will be given, the defendant must know that pursuant to discovery laws, the expert might have to turn over all material that was foundational to all presented opinion. This can include any notes taken during the evaluation process, test data, all documents reviewed (including any markings or notations made on such by the expert), any recordings, etc. The expert should carefully explain that the overriding purpose of the evaluation is to help the defendant. As such, should the results of the evaluation be more harmful than helpful to the client/defendant, it is most likely that the client’s attorney will choose to maintain the evaluation in its entirety as work-product, undisclosed to anyone. Once all these issues have been explained, a consent form should be signed by the client/defendant, with a copy sent to the attorney. If the client has any doubts or reservations that further discussion does not satisfy, as irritating as it may be, the evaluation must be postponed until the client has had the opportunity to confer with his or her attorney. In the event the client/defendant is not competent to provide informed consent, do not conduct the evaluation (unless you are specifically doing a competency evaluation); rather, inform the attorney, suggesting possible alternative services to consider.

Confidentiality in the Context of Privilege Debate persists as to whether confidentiality exists when a mental health professional is working as a forensic evaluator. The argument that leans on the side of protecting the client/defendant’s rights purports that it is only by virtue of the evaluator’s skills as a clinician that he or she is able to elicit the information gathered during the evaluation process. For a forensic evaluator to best serve a client and best protect himself or herself from liability, he or she should do as much as possible to protect the defendant’s confidentiality.

As alluded to above, before the interview begins the forensic expert should carefully explain the limits of confidentiality and privilege. Encourage clients to be as open and forthright as possible, explaining that if they lie, it will be detected and work against them. Rather than lie, instruct the defendant to ask if he or she must answer a specific question if the prospect of answering any given question causes embarrassment or concern. Postpone having the client answer until sufficient data has been gathered to determine whether it is probable the answer will contribute to the foundation of an opinion relevant to the psycho-legal issue at hand.

“ Where clinical

reports should include as much detail as possible, forensic reports should include the least amount of information necessary to support the expert’s opinions.

”

In clinical practice, if a client admits to having killed someone in the past, that assertion must remain confidential. Only if a client threatens to kill someone, admits to planning a future murder, or presents signs and symptoms suggestive of dangerousness does the clinician have a duty to violate confidentiality and provide warning as mandated by law. However, if a client/defendant admits to a prior murder (regardless of his or her current charge or the forensic question to be addressed by the evaluation), that information should not be recorded until discussed with the defense attorney. For many reasons, disclosure of that information might result in the attorney needing to cancel the evaluation. On the other hand, depending on other issues and as surprising as it seems, the prior uncharged offense might be constructively

60 THE FORENSIC EXAMINER Fall 2006

integrated by the attorney into the defense strategy. Unless and until a defendant enters his or her mental state into evidence as a component of the defense, all information gathered during the course of an evaluation remains privileged. Once a mental-state defense has been entered, all gathered information that is unrelated to the opinions formulated by the forensic expert remains confidential. There is, however, a notable exception in that, when testifying, the prosecuting attorney can move to change the practitioner’s status from that of expert to that of a lay witness. If allowed by the court, none of the information gathered during the course of the evaluation is confidential. This represents one more reason why the evaluator should exercise extreme care regarding those questions asked of the client/defendant and what information is written down.

Written Product To protect their clients and themselves, forensic specialists must be excruciatingly careful about what notes they take during phone calls with the defendant’s attorney, during the evaluation, when reviewing the record, when conducting collateral interviews, and when preparing for testimony. Aside from additional notations added within a reasonable time subsequent to a professional contact, an expert’s written notes cannot be altered, rewritten, or destroyed. As soon as possible after conducting the evaluation, privately contracted defense experts (but not those court-appointed) should give a verbal report of their initial findings, impressions, and opinions. A written report should never be made unless and until the defense attorney requests one. The attorney might need the report to be issued at a specific time, pursuant to defense strategy and rules of discovery. The law proscribes when discovery must be turned over to the prosecution; however, it’s up to the attorney to determine when, in relation to those laws, the report is turned over. If the expert knows the attorney will be wanting a report but does not yet know by when, a written draft should not be dated until finally requested. As stated in the Specialty Guidelines for Forensic Psychologists (Section 6, Item F2):

With respect to evidence of any type, forensic psychologists avoid offering information from their investigations or evaluations that does not bear directly upon the legal purpose of their professional services and that is not critical as support for their product, evidence or testimony, except where such disclosure is required by law. Many forensic specialists (both privately contracted and court-appointed) seem to confuse the degree of detail to be provided in a forensic report with that typically included in a report of a clinical evaluation. Where clinical reports should include as much detail as possible, forensic reports should include the least amount of information necessary to support the expert’s opinions. Obviously, a forensic report should never include work-product. A well-written forensic report does not necessarily need to include a complete psychosocial history or clinical discussion of all test results. For example, where the defendant went to elementary school might not be relevant to a competency evaluation, but might be very relevant in a death penalty case, demonstrating the defendant lived in a high crime area and attended a school with a high rate of delinquency and truancy (known to be risk-factors for chronic violent behavior). Including peripheral information in a forensic report constitutes a form of negligence. As stated in the Specialty Guidelines for Forensic Psychologists (Section 6, Item G/ G-1): Unless otherwise stipulated by the parties, forensic psychologists are aware that no statements made by a defendant, in the course of any (forensic) examination, no testimony by the expert based upon such statements, nor any other fruits of the statements can be admitted into evidence against the defendant in any criminal proceeding, except on an issue respecting mental condition on which the defendant has introduced testimony. Forensic psychologists have an affirmative duty to ensure that their written products and oral testimony conform to this Federal Rule of Procedure (12.2[c]), or its state equivalent. 1. Because forensic psychologists are often not in a position to know what evidence, documentation, or element of a

written product may be or may lead to a “fruit of the statement,” they exercise extreme caution in preparing reports or offering testimony prior to the defendant’s assertion of a mental state claim or the defendant’s introduction of testimony regarding a mental condition. Consistent with the reporting requirements of state or federal law, forensic psychologists avoid including statements from the defendant relating to the time period of the alleged offense. Despite the above, court-appointed defense experts virtually never submit an unsigned draft report to the defendant’s counsel, whereas privately contracted experts virtually always should. The attorney working with the private expert should be allowed the opportunity to ensure that no information was included in the draft report that could harm the client/defendant from a legal perspective. Once the attorney has approved the draft, a final report should be issued, with earlier drafts considered as work-product. Experts should stand fast in regard to their opinions; however, they should openly discuss, consider, and make those changes to material that is peripheral, ancillary, and does not compromise the bottom line of the report.

Dos and Don’ts of Testimony Prior to testifying, an expert should doublecheck with defense counsel that no material was withheld that could potentially weaken his or her testimony if raised. When testifying, present findings and opinions fairly, but forcefully, with confidence and conviction. Experts should be prepared to discuss the given forensic question from all perspectives and to identify data and research that supports and contradicts their opinions. If data can be interpreted in two ways, only one of which is favorable to the defendant, acknowledge both, but stress the one most consistent with the rest of the data. It’s up to the trier-of-fact to decide between the two interpretations; if it be a jury, the judge will instruct them on what to take into consideration when making that decision.

Hearsay Forensic mental health experts should be aware of all hearsay exceptions and avoid offering opinions based solely on hearsay. When an expert’s opinion is based in part on hearsay data, every reasonable effort should be made to independently corroborate that information. If unable to do so, the expert is bound to acknowledge that the information is hearsay and attribute it to the source from which it came. In other words, hearsay data should not be presented in a report or testimony in such a way as to imply it was obtained or substantiated directly by the expert. Privately contracted defense evaluators should not conduct collateral interviews without first notifying and receiving approval from defense counsel. Whether privately or court contracted, experts should not collect documents (beyond those initially provided by counsel); rather, a request for the material should be made to the attorney.

Works Consulted

Caution It is imperative that the reader keeps in mind that this article only covered some of the problems encountered when a forensic mental health practitioner is privately contracted as an expert by the defense counsel. The parameters and protocols discussed typically apply to high-profile cases, yet also frequently apply to cases with multiple and complex forensic issues. 1. American Academy of Psychiatry and the Law. (2005). Ethics guidelines for the practice of forensic psychiatry. Available online: http://www.aapl.org/pdf/ETHICSGDLNS.pdf 2. American Psychological Association, Committee on Ethical Guidelines. (2002). Ethical principles of psychologists and code of conduct. American Psychologist; 57(12):1060-1073. 3. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior; 15(6):655-665. 4. Connell, M., & Koocher, G. P. (2003). HIPAA and forensic practice. American Psychology Law Society News; 23(2):16-19.

About the Author Bruce Gross, PhD, JD, MBA, is a Fellow of the American College of Forensic Examiners and is an executive advisory board member of the American Board of Forensic Examiners. Dr. Gross is also a Diplomate of the American Board of Forensic Examiners, the American Board of Forensic Medicine, and the American Board Psychological Specialties. He has been an ACFEI member since 1996 and is also a Diplomate of the American Psychotherapy Association.

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When most people hear the words “the Donner Party,” the story of the wagon train members who ate each other in order to survive their trek across the Sierra Nevada mountains comes to mind. However, new evidence from archeologists suggests that the cannibalism might not have been as grisly as initially reported.

By Angela Burroughs Kelly, MA

Cannibalism in the Sierra Nevadas: The Donner Party

History One hundred sixty years ago, in April 1846, the ill-fated Donner Party (sometimes known as the Donner-Reed party) made its way to California in pursuit of a better life. The party originally consisted of two families from Springfield, Illinois: the Donners and the Reeds. The grand total of the traveling family members was 31 (Johnson, 2006a). Eventually, other families joined the party as the wagon train headed into the vast West; these families included the following: Breens; Eddys; Graves and Fosdicks; Kesebergs; McCutchens; Murphys, Fosters, and Pikes; Wolfingers; and the Teamsters (Johnson, 2006b).

In June the party had made it to Fort Laramie, Wyoming, where discussion occurred about taking a new route, Hastings Cutoff, to California. Lansford W. Hastings had written a book titled, The Emigrants’ Guide to Oregon and California, to serve as a guide for emigrants heading to the West, but also to draw attention to his new route, Hastings Cutoff. The emigrants were cautioned by James Clyman about taking Hastings Cutoff because of the long stretch of desert and lack of water supply. Clyman warned, “take the regular wagon track and never leave it—it is barely possible to get through if you follow it—and it might be impossible if you don’t” (OregonCalifornia Trails Association, 2006).

Fall 2006 THE FORENSIC EXAMINER 63

However, on July 4 part of the party, which was known as Bryant-Russell, decided to go ahead and take the Hastings Cutoff. A few days later, while camping at Independence Rock, the remaining wagon party, which was known as the Boggs Company, received a letter from Lansford W. Hastings stating that he would meet them at Fort Bridger and lead them on his cutoff (Johnson, 2006a). On July 19 decisions were made in the Boggs Company. Part of the party decided to go ahead and take the Hastings Cutoff, while the remaining emigrants decided to take the normal route via Fort Hall. The group heading toward Hastings Cutoff elected George Donner to be their captain, thus giving them the name the Donner Party.

The Journey to the Mountains It seems the Donner Party started its tale of unlucky events when the decision was made to take the Hastings Cutoff. Hastings stated that this new route was only about 40 miles long, which would have shortened the emigrants’ route incredibly. However, the route was actually 65 miles long. The Donner Party was supposed to meet Hastings at Fort Bridger; however, he left before they arrived, and the party was assured by others at the fort that the cutoff was passable. By early August the Donner Party reached Weber River (in Utah) where Hastings had left a note for them not to follow him. A few members of the party went ahead on the trail and met up with Hastings, who gave them more a specific route to take (Johnson, 2006a). This resulted in the emigrants having to make their own trail and, therefore, the party only went 39 miles in 18 days (Oregon-California Trails Association, 2006). Eventually, the emigrants kept going and followed the grueling Hastings Cutoff through the Great Salt Lake Desert and arrived at the junction of the California Trail at the end of September. By this time the Donner Party had lost a crucial 3 weeks by following the Hastings Cutoff. As they began their journey over the Sierra Nevadas an early snowstorm stranded half of the party at

what is now called Donner Lake, and the rest of the party (mainly the Donner families) at Alder Creek, approximately 6 miles away (Wikipedia, 2006b). The two encampments periodically sent small groups back and forth to check on each other. In early November more snow had accumulated, and all attempts to cross the mountains failed. Realizing that their supplies were quickly diminishing, a group of emigrants from Alder Creek and Donner Lake decided to go over the mountains in snowshoes. (This group has become known as the Forlorn Hope.) Unfortunately, the group encountered more snow, and several died; those who survived resorted to can-

rescuers . . . ‘Ex“ The pected to find some

sufferers alive . . . . Entered the cabins, and a horrible scene presented itself— human bodies terribly mutilated, legs, arms, and sculls [sic], scattered in every direction.’

”

nibalism (Wikipedia, 2006b). Eventually, members of the party reached the other side of the mountains in January 1847—only 7 of the 15–16 survived the journey.

Help Is on the Way Meanwhile, back at the camps, provisions continued to become scarce. James F. Reed had left the group earlier at Iron Point to get more provisions after being banished because of a confrontation with one of the teamsters, John Snyder (which resulted in Snyder’s death). Reed, realizing the dire situation in the mountains, eventually formed a relief party to get to the entrapped emigrants in the

64 THE FORENSIC EXAMINER Fall 2006

mountains. While Reed was forming his relief party, another relief group, known as First Relief, made its way through the mountains to the camp of emigrants at Donner Lake (Johnson, 2006a). When they arrived at the camp in mid-February, 12 people at Donner Lake had died. This relief party took 23 survivors who were able to travel and planned to come back for the rest (Johnson, 2006c). Three more relief parties were formed to rescue the survivors. On the Second Relief, about 1 week later, the rescuers noticed possible signs of cannibalism, and by the time the Fourth Relief arrived at the camps, they recorded a horrific sight. The rescuers, according to the Fourth Relief Diary, “Expected to find some sufferers alive . . . . Entered the cabins, and a horrible scene presented itself—human bodies terribly mutilated, legs, arms, and sculls [sic], scattered in every direction” (Johnson, 2006d). Tales and descriptions such as these have led to the infamous legend of the Donner Party. Only 46 survived their experience in the mountains (Wikipedia, 2006b).

Fact or Fiction: Cannibalism and the Donner Party Cannibalism has been recorded throughout history from the Biblical siege in Samaria to the tragedy of the 1972 Uruguayan rugby team whose airplane crashed in the Andes Mountains. There are numerous reasons why cannibalism occurs ranging from survival cannibalism (cannibalism in order to survive) to cannibalism as part of a ritual or right (Wikipedia, 2006a). Psychologists have debated to determine the exact cause of cannibalism, especially criminal cannibalism. One theory for criminal cannibalism is that the person experienced a traumatic event during childhood, such as being weaned from the mother’s breast, which caused fear and anxiety, therefore, resulting in the child wanting to eat his or her mother (Cannibalism, 2006). Other theories for criminal cannibalism are that the individual had a sudden experience of traumatic stress (e.g., Jeffrey

Dahmer, whose first cannibalistic experience happened after a traumatic family event), the individual has a eating or sexual disorder, or that the individual may have a psychiatric disorder such as schizophrenia (Cannibalism, 2006). However, when discussing the Donner Party, survival cannibalism is the topic at hand. Survival cannibalism usually occurs when people are stranded without food. In such circumstances they must choose between dying of starvation or eating the only food on hand: another person (Shipman, 1987). Evidence of survival cannibalism has been recorded in many instances. This evidence has come from archaeological findings such as pot polish human bones, which are bones that have been boiled in order to obtain the marrow from them for nutrition; these bones appear to be smooth or “polished” from rubbing against the side of the pot while boiling (Viegas, 2006). Researchers and archaeologists have asked numerous times whether the Donner Party actually resorted to cannibalism. Recent evidence suggests that the usual depiction of these emigrants may not necessarily be true. The Donner Party Archaeology Project, conducted by Dr. Kelly Dixon of the University of Montana and Dr. Julie Schablitsky of the Oregon Museum of Natural and Cultural History, has made some interesting discoveries. After a hearth was unearthed in the summer of 2003, Dr. Dixon and Dr. Schablitsky took a research crew to the Alder Creek site to determine if remains found near the hearth were human. The team used canine detection methods (dogs trained to locate human remains) to search the site. Additionally, genetic archaeology (a combination of forensics and archaeology in which DNA testing—including mitochondrial DNA testing—is used on artifacts, such as bones, found at archaeological sites [Schablitsky, 2003]) was used to determine if bones found at the Alder Creek site were indeed human remains and if those human remains were members of the Donner Party (Stanik, 2006).

Historical documents from the rescuers indicate that survival cannibalism occurred during the winter of 1846-1847 in the Sierra Nevadas. Fragments of small bones were discovered during the archaeology project; however, human bones were not conclusively identified in the remains tested for DNA because the bones were so decomposed that DNA could not be gathered from them. That human remains were not found in this collection of bones does not mean cannibalism did not occur. The scientists did find that the small bones were from the Donner’s livestock and wild game. Another researcher involved with the project was Shannon Novak, an assistant professor of anthropology at Idaho State University. She looked for pot polish marks on the bones, and when the research team analyzed them they found the bones to be “sawed, chopped, as well as polished,” implying the group was starving at Alder Creek as they were trying to get all the nutrition they could from the bones (Stanik, 2006). Conclusions from the archaeology project have been that the party at Alder Creek was in an extreme situation, but that evidence pointing to cannibalism is not definitive. It is believed that if cannibalism occurred it was in the later part of their stay in the mountains. Additionally, this new research helps to relieve some of the stigma associated with the Donner Party and helps to shed some light onto what actually happened to them (Stanik, 2006). So, if cannibalism in the Donner Party was not as severe as everyone once thought, why did the survivors and rescuers report such ghastly tales? Perhaps, their tales were somehow distorted due to the traumatic events in the mountains, or perhaps the cannibalism did occur and the media at the time sensationalized it. Regardless of what happened 160 years ago, the answer to whether the Donner Party resorted to survival cannibalism might in time be answered with additional research, genetic archaeology, and historical documents.

References Cannibalism: The ancient taboo in modern times: Psychological perspectives. (2006). Crime Library. Retrieved May 8, 2006, from http://www.crimelibrary.com/ criminal_mind/psychology/cannibalism/8. html Johnson, K. (2006a). Donner party chronology. New light on the Donner party. Retrieved May 4, 2006, from http:// www.utahcrossroads.org/DonnerParty/ Chronology.htm Johnson, K. (2006b). Donner party roster. New light on the Donner party. Retrieved May 4, 2006, from http://www.utahcrossroads. org/DonnerParty/Roster.htm Johnson, K. (2006c). First relief diary. New light on the Donner party. Retrieved May 4, 2006, from http://www.utahcrossroads. org/DonnerParty/FirstReliefDiary.htm Johnson, K. (2006d). Fourth relief diary. New light on the Donner party. Retrieved May 4, 2006, from http://www. utahcrossroads.org/DonnerParty/FourthReliefDiary.htm Oregon-California Trails Association. (2006). Virtual tour: Hastings cutoff. Retrieved May 4, 2006, from http://www. octa-trails.org/learning_center/virtual_trail/ index.html Schlablitsky, J. (2003). Genetic archaeology. The Donner party project. Retrieved May 23, 2006, from http://home.teleport. com/~julschab/genetic.html Shipman, Pat. (1987, March). The myths and perturbing realities of cannibalism. Discover. Retrieved May 24, 2006, from http://www.findarticles.com/p/articles/ mi_m1511/is_v8/ai_4680063 Stanik, M. (2006, January 12). Donner party cannibalism legends remain unproven. EurekAlert!. Retrieved May 8, 2006, from http://www.eurekalert.org/pub_releases/200601/uoo-dpc011206.php Viegas, J. (2006, January 13). Donner party likely ate family dog. Discovery News. Retrieved May 24, 2006, from http://dsc. discovery.com/news/briefs/20060109/ donnerparty_his_print.html Wikipedia. (2006a, May 24). Cannibalism. Retrieved May 24, 2006, from http:// en.wikipedia.org/wiki/Cannibalism Wikipedia. (2006b, May 4). Donner party. Retrieved May 4, 2006, from http:// en.wikipedia.org/wiki/Donner_Party

About the Author Angela Burroughs Kelly, MA, is an assistant editor for The Forensic Examiner®.

Fall 2006 THE FORENSIC EXAMINER 65

CE TEST PAGE: FOUR TOTAL CREDITS AVAILABLE (WITH THE COMPLETION OF ALL 4 CE TESTS) To receive CE credit, please do the following: 1.) Read the CE article. 2.) Complete the exam by circling the chosen answer for each question. 3.) Complete the evaluation form. 4.) Mail or fax the completed form, along with $15 for each CE exam taken. A certificate of completion for one CE credit will be sent for each exam passed with a grade of 70% or above. Those who do not pass the exam are notified and will have a second opportunity to complete the exam. Direct any questions, grievances, or comments to the ACFEI CE Department (phone 800-423-9737; fax 417-881-4702; email cedept@acfei.com

Learning Objectives for “The Role of Diatoms in Medico-Legal Investigations I: The History and Contemporary Science and Application of the Diatom Test for Drowning” After studying this article, participants should better understand the following: 1.) The biology and ecology of diatoms. 2.) The physiology and pathology of drowning and its diagnosis. 3.) The importance of diatoms in crime scene investigation. 4.) The potential role of laboratory instrumentation in drowning determinations.

Article 1: CE Questions for “The Role of Diatoms . . .” (See page 10 for article.)

1.) A normal DMORT deployment is: A. 2 weeks. B. 1 month. C. 1 week. D. Not a set amount of time.

2.) A drowning is difficult to diagnosis because: A. There are no clear pathological findings for drowning. B. Seasonal variations in local diatom populations are misleading. C. Drowning victims are often relocated after death, often onto dry land. D. None of the above.

4.) Closed organ systems are important for the diatom test because: A. Diatoms are only found in closed organs. B. Investigating closed organs prevents contamination by airborne diatoms. C. Closed organs will contain samples of the drowning medium.

Evaluation for Article 1: (1-3 rating section) Please circle one (1=Poor 2=Satisfactory 3= Excellent) 1. The author presented material clearly. 1 2 3 2. The stated learning objectives were met. 1 2 3 3. New knowledge or technique was gained. 1 2 3 4. Additional comments:

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3.) The “personal effects” of victims: A. Were photographed without removal and, in fact, are never removed from body parts or bodies. B. Were removed, photographed, and placed in their original position. C. Were removed, photographed, and stored for the victims’ families. D. Were removed, photographed, placed in resealable bags, and kept with the bodies. 4.) Before entering the morgue: A. Workers suited up in personal protection equipment (PPE). B. Workers needed to wear the DMORT uniform of a green shirt and tan pants. C. Workers needed to have an entrance form signed by the commander. D. All of the above.

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2.) When you are deployed: A. It is customary to work with the same people to keep consistency in the work. B. It is customary to have various jobs for well-rounded teams. C. It is customary to have people coming and going throughout your deployment. D. It is customary to have set working hours.

Evaluation for Article 2: (1-3 rating section) Please circle one (1=Poor 2=Satisfactory 3= Excellent) 1. The author presented material clearly. 1 2 3 2. The stated learning objectives were met. 1 2 3 3. New knowledge or technique was gained. 1 2 3 4. Additional comments:

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After studying this article, participants should better understand the following: 1.) The setup, organization, and flow of morgue operations during a large-scale disaster. 2.) How morgues differ depending on location and need. 3.) The living conditions of workers while on large-scale disaster deployment.

Article 2: CE Test for “Hurricane Katrina Morgue Operations: Two Forensic Professionals’ Perspectives.” (See page 16 for article.)

1.) A diatom is: A. A microscopic animal. B. A vegetative cell encased in silicon. C. A possible foreign specimen that can be found in bone marrow of drowning victims. D. Answers B and C. E. All of the above.

3.) If diatoms are found in bone marrow of a suspected drowning victim, the victim was: A. Alive when he or she entered the water. B. Dead when he or she entered the water. C. Potentially alive or dead; it’s impossible to tell from diatoms alone.

Learning Objectives for “Hurricane Katrina Morgue Operations: Two Forensic Professionals’ Perspectives”

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CE TEST PAGE: FOUR TOTAL CREDITS AVAILABLE (WITH THE COMPLETION OF ALL 4 CE TESTS) Learning Objectives for “Qualifications and Paradigms for the Independent Examiner”

Learning Objectives for “Stand Your Ground: New Challenges For Forensic Examiners”

After studying this article, participants should be better able to do the following: 1.) Provide informed, consistent, fair, and balanced reviews of patients and/or case files. 2.) Adjudicate IEs and the reports they submit on the field practitioner’s patients in a more informed manner, which may include a forensic examination of an IE. 3.) Provide a model for state boards to establish either guidelines or statutory law for IE practice, much the same way an everyday practitioner must maintain the standard of care for his/her patients.

After studying this article, participants should be better able to do the following: 1.) Identify the main features of the Florida Stand Your Ground Doctrine. 2.) Recognize the challenge in defining the concept reasonable fear. 3.) Understand the distinction between duty to retreat and right to stand your ground. 4.) Understand the need for forensic-determined tools for the assessment of fear and the perceived need to use deadly force.

Article 3: CE test for “Qualifications and Paradigms for the Independent Examiner” (See page 24 for article.)

Article 4: CE test for CE test for “Stand Your Ground: New Challenges for Forensic Psychologists” (See page 37 for article.)

1.) According to the authors, what is/are the important document(s) an IE should possess? A. Valid driver’s license B. Valid passport C. Valid professional license in the jurisdiction where the IE practices D. Valid certificate in peer review/IE E. All of the above F. Answers C and D

1.) Florida’s Senate Bill 436 gives the greatest amount of additional responsibilities to: A. Florida courts. B. Florida law enforcement departments. C. Florida citizens. D. Visitors to Florida. 2.) Customarily in courts the reasonableness doctrine is based on the philosophy that deadly force is used only when consistent with that deemed necessary using the traditional general test standard, which is based on: A. Whether any person is likely to behave in the same manner in the situation being described. B. Whether a juror is provoked enough to use deadly force in a similar situation as being described. C. Whether a reasonable man would be provoked enough to use deadly force in the situation described. D. Whether the amount of provocation necessary to kill is deemed as reasonable in the situation described.

2.) An examination performed by any doctor should include: A. A complete case history. B. A complete inventory of vital signs. C. Relevant orthopedic and neurological testing. D. A referral to another specialist if indicated. E. All of the above. 3.) Witnesses are a good idea at an independent examination because: A. They can bring lunch for everybody. B. They can watch and record what happens and generally observe the process. C. They can testify after the fact as to exactly what occurred at the independent examination. D. A bilingual witness can often assist in translating issues. E. Answers B, C, and D. 4.) The behavioral signs are: A. Also known as the Waddell signs. B. Also known as the non-organic signs. C. Not intended to cut claims but rather to test patients on their emotional reactions. D. To be used all the time by everybody. E. Answers A, B, and C.

Evaluation for Article 3: Please rate how well this article met each learning objective. The exact learning objectives are listed at the top of this page. (1=Poor 2=Satisfactory 3= Excellent) 1. Learning objective 1:. 1 2 3 2. Learning objective 2: 1 2 3 3. Learning objective 3: 1 2 3

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4.) Ascertaining the validity of a person’s claim of feared harm: A. Is usually a logical judgment call. B. Can be determined by the sincerity of their description of how they feel. C. Cannot be determined without a comprehensive analysis of the person. D. Requires an examination of how the person’s cognitive abilities and personal history affect the judgment of reasonable fear. E. None of the above.

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3.) Response to fear is a predictable set of human behaviors. A. True, most forensic examiners are able to define the unique pattern of the fear response. B. False, responses to fear are variable and differ dependent on certain personal factors. C. True, however, forensic examiners are not in agreement about the specific pattern of behavior. D. False, responses to fear are correlated with demographic and historical factors.

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Fall 2006 THE FORENSIC EXAMINER 67

The Skirt Man By Shelley Reuben, DABFE

ing. She is a licensed private detective and a certified fire investigator who has been investigating fires and arson for more than 20 years. Reuben is a Diplomate of the American Board of Forensic Examiners and has been a member of the American College of Forensic Examiners since 1996. Bates’ I.S.Q.D.: Identification Systems for Questioned Documents (2nd ed.) By Garland D. Lewis, AAS, FACFEI

Shelley Reuben

Every small town has an eccentric or two, and Killdeer, New York, is no exception. Morgan Mason attracts more than a few stares when he drives through town on his ramshackle tractor wearing a skirt. His sister is mortified, his neighbor resents the Skirt Man’s interference, and a local preservationist is horrified by Morgan’s huge satellite dish. These minor small-town annoyances become more serious—and deadly—when the Skirt Man is killed in a tragic house fire during a benefit ballet performance starring Meredith Bly. Meredith’s father, State Trooper Sebastian Bly, and her uncle, Fire Marshal Billy Nightingale, are called in to investigate what some say is a case of spontaneous human combustion. Charred wood and chair remnants at the fire scene lead Sebastian and Billy to uncover clues that reveal hidden conflicts and a shocking discovery that will change the lives of everyone in Killdeer. Bringing back the brave and imaginative family team from Tabula Rasa, author and fire investigator Shelly Reuben fans the flame of small-town passion and breathes life into an unusual local hero. Shelly Reuben is the author of Tabula Rasa, Origin & Cause, Spent Matches, the Edgar-nominated Julian Solo, and Weep-

Garland Lewis

After the first edition of Bates’ I.S.Q.D.: Identification Systems for Questioned Documents went out of print several years ago, Garland D. Lewis thought that a valuable resource for examiners was being lost, which led him to write the second edition of this book. This newer edition updates and expands the previous volume and continues to reflect the scientific method of detecting whether a writing is genuine or forged. This book serves as a guide and reference for the investigator or examiner in matters relating to the identification of handwriting. In and of itself, it is not intended in any way to qualify an individual as an expert, but is a valuable tool that professionals can use to assist in the discovery and proof of fact. These are the two essential parts of handwriting comparison. Divided into three sections, the book presents the 12 points of comparison and the method for making a scientific analysis,

68 THE FORENSIC EXAMINER Fall 2006

a guide for the presentation of facts in court, and a sample demonstration of the discovery and proof of fact. Once these points of comparison have been determined, the examiner has a basis from which to offer an opinion. This book can be used as a primary text in questioned document examinations and will be an excellent resource for law enforcement agencies, including private and industrial investigative groups. Garland D. Lewis is a fraud detective and questioned documents examiner with the Canyon County Sheriff ’s Office in Caldwell, Idaho, who has examined questioned documents for more than 16 years and has been in law enforcement for more than 22 years. He earned an associate’s degree in applied science from the College of Southern Idaho and has specialized training through the Federal Law Enforcement Training Center in handwriting identification and questioned-document examinations. His professional experience has included work for the Idaho Department of Transportation, Union Pacific Police, the Federal Bureau of Investigation, the U.S. Secret Service, the U.S. Postal Inspection Service, and the U.S. Attorney’s Office, and he has testified numerous times in court as an expert witness. Lewis is a Diplomate of the American Board of Law Enforcement Experts, and he is a Fellow of the American College of Forensic Examiners and has been a member since 1997.

Members can have their books reviewed in The Forensic Examiner® by sending a review copy to Editor, 2750 E. Sunshine, Springfield MO, 65804

Fall 2006 THE FORENSIC EXAMINER 69

Falsely Accused Evidence that Innocent Person was Executed Leads to Request for Investigation On February 17, 2004, Cameron Todd Willingham was executed despite scientific evidence provided to the Texas government that supported his innocence. In the early morning just 2 days before Christmas in 1991, Cameron Todd Willingham’s wife left their home, leaving him with their 2-year-old daughter and 1-yearold twins. According to Willingham, he woke to his oldest daughter’s cries and a smoke-filled house. Unable to see through the thick smoke, Willigham reportedly made his way through the house. The front of the house, where his daughters were sleeping, was thick with black smoke. He approached his daughters’ bedroom while keeping low to the ground; when he attempted to stand his hair caught on fire. Once in their bedroom, he said he reached out for his daughters but was unable to find them. Falling debris burned him, forcing him to retreat outside. By the time he tried to go back inside, he said that the house was too hot. Seeing his neighbors, he yelled to them to call the fire department and that his babies were trapped inside. He said he grabbed a pool cue and broke the windows of the girls’ bedroom but could not enter. His neighbor told police she saw him standing by a fence while

smoke poured from the house. Suddenly, she said, flames shot out from the front of the house and the remaining windows blew out. Fire investigators concluded that someone had set the fire, and Willignham became the primary suspect. His neighbors reported that they didn’t think his efforts to save the children were very convincing. Firefighters also commented that his burns weren’t indicative of the search for his daughters that he described, and that his bare feet should have been injured. As the new year began, Willingham’s life was on its way to ending. The district attorney charged him with murder on January 8, 1992. Willingham, claiming innocence, rejected the prosecution’s offer of a life term in prison in exchange for a guilty plea, and and the trial began in August. Evidence against Willingham included the testimony of inmate Johnny E. Webb, a drug addict who said Willingham admitted that he set the fire to mask his wife’s physical abuse of one of their daughters. Yet, none of the girls had any injuries other than those caused by the fire. Additional testimony came from neighbors who thought he did not do enough to save his daughters. Much of the evidence against Willingham, though, came from fire investigators who concluded that the fire had been intentionally set at three points of origin. They claimed to have found traces of fire accelerant and other indicators of arson, including burn patterns on the floor and cracked glass. The jury returned a guilty verdict after deliberating for only a little more than an hour. Their death penalty recommendation was also quickly decided. After 12 years in prison, during which his wife divorced him, Willingham was to be executed on February 17, 2004. His appellate attorney and family thought they had run out of options. Then, his cousin contacted Gerald Hurst, a chemist who had investigated numerous fires, to review Willingham’s case. Hurst’s report disproved every one of the fire investigators’ conclusions about the fire. Hurst noted drastic improvements in fire science between when the fire had occurred and 2004. What the investigators said was evidence of fire accelerant Hurst

70 THE FORENSIC EXAMINER Fall 2006

said could have been residue from fire-hose water. Burn marks under carpet tiles and the cracked glass were also not reliable indicators of arson. While Hurst acknowledged that the original investigators had relied on the knowledge of fire science that was available to them at the time, advances in the science meant that no reasonable arson investigator would conclude that the Willingham fire was a result of arson. Although the highest court in Texas and the governor received Hurst’s report before Willingham was put to death, they declined to even delay the execution. With his ex-wife as a witness, Willingham died by lethal injection. On May 2, 2006, a report by four arson experts was submitted to the Texas Forensic Science Commission. The report revealed that the arson theories used to convict Willingham were false. If the Texas Forensic Science Commission agrees with this report, it will be the first time that a government entity has officially recognized that an innocent person was put to death.

References Arson Review Committee, a peer-review panel commissioned by the Innocence Project. (2006). Report on the peer review of the expert testimony in the cases of State of Texas v. Cameron Todd Willingham and State of Texas v. Ernest Ray Willis. Retrieved May 5, 2006, from http://www.innocenceproject.org/docs/ArsonReviewReport.pdf Gumbel, A. (2006, May 4). Guilty until proven innocent. The Independent (London). Retrieved May 8, 2006, from http://www.findarticles. com/p/articles/mi_qn4158/is_20060504/ai_ n16344510 The Innocence Project. (2006). Innocence Project submits two arson cases to Texas commission and requests system-wide review. Retrieved May 5, 2006, from http://www.innocenceproject.org/ press/ArsonPageTwo.php Mills, S., & Possley, M. (2004, December 9). Fire that killed his 3 children could have been accidental. Chicago Tribune. Retrieved May 5, 2006, from http://truthinjustice.org/willingham/htm Possley, M. (2006, May 3). Report: Inmate wrongly executed. Chicago Tribune. Retrieved May 8, 2006, from http://www.chicagotribune.com/ technology/chi-060502willingham,1,67945. story?ctrack=1&cset=true

Has your work on a case helped to exonerate someone who was falsely accused? Send your story to editor@ acfei.com or write to Editor, 2750 E. Sunshine, Springfield MO, 65804

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Fall 2006 THE FORENSIC EXAMINER 71

American College of Forensic Examiners International 2750 E. Sunshine Springfield, MO 65804

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