Schoolhouse Killers: Evaluating the Threat
Moon Madness: Does the Full Moon Cause Violence?
Devil in the Details: Documenting a Forensic File
The Value of an Idea: Intellectual Property Infringement Damages
Plus Forensic Examinations of Fascinating Cases, including John Wayne Gacy, Lizzie Borden, and BTK
2005 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 Dickson S. Diamond, MD, DABLEE, DABFE, 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 Marc A. Rabinoff, EdD, FACFEI, DABFE, CFC, Chair, American Board of Forensic Examiners Daniel S. Guerra, PhD, FACFEI, DABFSW, DABFE, Chair, American Board of Forensic Social Workers
Jack S. Annon, PhD, FACFEI, DABFE, DABFM, DABPS, DABLEE E. Robert Bertolli, OD, CHS-III, CMI-V David T. Boyd, DBA, CPA, Cr.FA, CMA, CFM John Brick, MA, PhD, DABFE, DABFM, CMI-V Steve Cain, MFS, DABRE, DABFE James H. Carter, MD, FACFEI, DABFE, DABFM Leanne D. Courtney, BSN, MFS, DABFN, DABFE D. Larry Crumbley, PhD, CPA, DABFA, Cr.FA Edmund D. Fenton, Jr., DBA, CPA, CMA, Cr.FA Nicholas J. Giardino, ScD, DABFE Daniel P. Greenfield, MD, MPH, DABFE, DABFM James L. Greenstone, EdD, JD, FACFEI, DABECI, DABFE, DABFM, DABPS, DABLEE, CMI-I, CHS-V Raymond F. Hanbury, Jr., PhD, ABPP, FACFEI, DABPS, DABFE James R. Hanley, III, MD, DABFM Nelson H. Hendler, MD, DABFM John R. Hummel, PhD, CHS-III Zafar M. Iqbal, PhD, FACFEI, DABFE, DABFM Paul Jerry, PhD, MA, CPsych, DABFC, DAPA Philip I. Kaushall, PhD, DABFE, DABPS Eric A. Kreuter, MA, CPA, CMA, CFM, DABFA, FACFEI, SPHR Richard L. Levenson, Jr., PsyD, DABFE, DABPS Jonathan J. Lipman, PhD, FACFEI, DABPS, DABFE, DABFM
Judith F. Logue, PhD, FACFEI, DABFSW, DABPS, DABFE, DABFM David B. Miller, DDS, FACFEI, DABFE, DABFM, DABFD Sandralee N. Miller, RN, FACFEI, DABFN, DABFE Terrence W. C. O’Shaughnessy, DDS, FACFEI, DABFD, DABFE, DABFM George B. Palermo, MD, FACFEI, DABFE, DABFM Marc A. Rabinoff, EdD, FACFEI, DABFE Douglas H. Ruben, PhD, FACFEI, DABFE, DABFM, DABPS William R. Sawyer, PhD, FACFEI, DABFE, DABFM Victoria Schiffler, RN, DABFN Stanley Seidner, PhD, DABFE, DABFET, CHS-III Kandiah Sivakumaran, MS, PE, DABFET Marilyn Stagno, PsyD, DABFE, DABFM, DABPS James Stone, MD, MBA Gere N. Unger, MD, JD, FACFEI, DABFE, DABFM Ralph Van Atta, PhD, FACFEI, DABPS Raymond E. Webster, PhD, FACFEI, DABFE, DABFM Paul Zikmund, MBA, Cr.FA
Publisher: Robert L. O’Block, MDiv, PhD, PsyD, DMin (rloblock@aol.com) Editor: Heather Barbre Blades, MA (editor@acfei.com) Assistant Editor, Senior Writer: Erica B. Simons, BS Writer: Leann Long, BS Graphic Designer: Brandon Alms, BFA (brandon@acfei.com)
Become a Member of the AMERICAN COLLEGE OF FORENSIC EXAMINERS ACFEI is the world’s largest forensic membership association. Annual membership dues are $130. For more information on the association, certifications, or conferences, or to become a member, please call us toll free at (800) 423-9737, visit www.acfei.com, or write to Association Headquarters, 2750 E. Sunshine, Springfield MO 65804.
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 $130. 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 2005 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.
CONTACT US: Publication, editorial, and advertising offices of ACFEI, 2750 East Sunshine Street, Springfield, MO—65804. Phone: (417) 881-3818, Fax: (417) 881-4702, E-mail: editor@acfei.com. Subscription changes should be sent to ACFEI, 2750 East Sunshine, Springfield, MO 65804.
POSTMASTER: Send address changes to American College of Forensic Examiners International, 2750 East Sunshine Street, Springfield, MO 65804.
2 THE FORENSIC EXAMINER Winter 2005
The American College of Forensic Examiners
Re: Blood Spatter Interpretation at Crime Scenes
Dear Editor: Congratulations to The Forensic Examiner for bringing the fascinating topic of blood spatter interpretation to the attention of the readership (vol. 14, no. 2; Spring 2005). I found it informative. From a psychological standpoint, however, I am concerned about the risk of blood spatter analysts developing posttraumatic stress or other anxiety disorders, as they are intimately involved with traumatizing crime scenes over extended periods of time. In
About ACFEI The Forensic Examiner is published by The American College of Forensic Examiners Institute (ACFEI), the world’s largest forensic membership association. A multidisciplinary society, ACFEI actively disseminates forensic information and continually promotes the advancement of forensic examination and consultation across the many professional fields of its membership. Members of ACFEI range from individuals interested in the field of forensics to professionals actively working in the varied forensic fields. Professional members come from a number of disciplines, including forensic accounting, forensic dentistry, forensic examination, forensic engineering and technology, forensic medicine, forensic nursing, law enforcement, and forensic psychology, among others. Certification Programs As a part of its mission to advance the forensic fields, ACFEI offers a number of cutting-edge educational and certification programs. These programs include the following: The Certified Medical Investigator®, CMI, course***
order to minimize the risk of criminalists and crime scene technicians developing anxiety disorders, I hope that they would have the opportunity to
The Certified Forensic Consultant, CFCSM, course The Certified Forensic Accountant, Cr.FA®, course
CMI
The Certified Forensic Nurse, CFNSM, course
debrief with trauma specialists at least on an annual basis.
Sincerely, Gary Lea, PsyD, RPsych Kelowna, BC, Canada Dr. Lea is a Diplomate of the American Board of Forensic Examiners and the American Board Psychological Specialties; he is also a Fellow in the American College of Forensic Examiners and has been a member since 1996.
The Certified in Homeland Security, CHSSM, program
CFC
***CMI Course Will Be Offered in Texas in Feb. 2006! The next CMI course offering will take place in Weslaco, Texas, on February 23-24, 2006. Register for this course today by calling toll free (800) 423-9737, ext. 126.
Cr.FA
For more information on any of these certification programs, or to join ACFEI, call toll free (800) 423-9737, send an email to cao@acfei.com, or visit www.acfei.com.
CFN
CHS
Winter 2005 THE FORENSIC EXAMINER 3
THE
FORENSICEXAMINER
The Official Peer-Reviewed Journal of The American College of Forensic Examiners
®
VOLUME 14 • NUMBER 4 • WINTER 2005
Continuing Education Articles
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Questions in the Evaluation for Threat Assessment in Schools By Carl J. Patrasso, PsyD, MA
The Effect of Lunar Phases on Domestic Violence Incident Rates By Kevin W. Dowling, MEd, EdS
Properly Documenting a File and Forensic Examination of IME Doctors
CME
By John J. Haberstroh, DC, FACFEI, DABFE, CMI-V; Jack R. Henry, DC; and Kevin J. Mulhern, DC
Reconstructing Skeletal Remains—An International Perspective: The Study and Identification of Human Remains in Uruguay By Horacio E. Solla, PhD
The Use of Forensic Accounting Techniques in the Determination of Intellectual Property Damages By Joseph N. Miller, CPA, CVA, Cr.FA, DABFA; H. Glen Jenkins; and John D. Houser, CPA, CVA
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Forensic Examination of CCTV Digital VTR Surveillance Recording Equipment By Steve Cain, 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 subscribers efforts in connection with the application or utilization of any information, suggestions, or recommendations made by ACFEI, or any of its boards or committees, or publications, resources, or activities thereof.
4 THE FORENSIC EXAMINER Winter 2005
Case Studies/Current Issues
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Honor Students Can Kill Too: A Case Study to Determine If Threat Assessments Can Properly Identify Non-Suspect Students as Risks By Leann Long
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John Wayne Gacy: Killer Clown Leaves Mass Grave of Skeletal Remains By Leann Long
Making Sense of “Senseless Looting” in New Orleans By Stanton E. Samenow, PhD, FACFEI, DABFM, DABFE, DABPS
Dusting Off a Cold Case With Modern Forensics: The Lizzie Borden Case By Megan Augustine
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Forensic Computer Investigation Brings Notorious Serial Killer BTK to Justice
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EDanger.com
By Erica Simons
By Bruce Gross, PhD, JD, MBA, FACFEI, DABPS, DABFE, DABFM, DAPA
Also in This Issue
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ACFEI and The Forensic Examiner Logo Products Opinion Piece: Is an Independent Medical Evaluation Independent? By Michael A. Baer, PhD, FACFEI, DABPS, DABFE, DABFM, CHS-III, CRS, DAPA, MasterTherapist
CE Test Pages: 6 Continuing Education Credits in This Issue Forensic Books by ACFEI Members Falsely Accused: Profiles of Individuals Wrongly Accused or Convicted of Crimes
Winter 2005 THE FORENSIC EXAMINER 5
Key Words: plan, friends, target, access, school violence, threat assessment
Abstract Identifying the characteristics of students who carry out violent acts at school, particularly the acts of shooting, killing, and kidnapping, remains of deep national concern. To help prevent school violence, schools throughout the country have implemented programs to help school authorities and the parents of violent youths assess the potential for violence in students and follow up with possible interventions. Studies have identified certain characteristics among students who have acted out violently at school. Based on a listing of these characteristics, interview questions have been developed to determine if a particular student is a threat to his or her school’s safety. These questions are one part of the assessment process and can be administered during a clinical, educational, or forensic interview. The assessment process, called a threat assessment, also involves a review of school records that identify alarming behaviors a student has displayed at school, behaviors that have concerned teachers, peers, and administrators. Several specific types of psychological tests are also useful instruments to include in the threat assessment of a student. This article is approved by the following for continuing education credit: ACFEI provides this continuing education credit for Diplomates. ACFEI is approved by the American Psychological Association to offer continuing professional education for psychologists. ACFEI maintains responsibility for the program. ACFEI is an approved provider of the California Board of Behavioral Sciences, approval PCE 1896. ACFEI is recognized by the National Board for Certified Counselors to offer continuing education for LMFTs, LCSWs, and National Certified Counselors. We adhere to NBCC Continuing Education Guidelines. Provider #5812. ACFEI, provider number 1052, is approved as a provider for social work continuing education by the Association of Social Work Boards (ASWB) www.aswb.org, phone: 1-800-225-6880, through the Approved Continuing Education (ACE) program. ACFEI maintains responsibility for the program. Licensed social workers should contact their individual board to review continuing education requirements for licensure renewal.
A Look at School Violence The Columbine High School shooting was the 9/11 of school violence. Before Columbine, school violence aroused little concern beyond the news of the events themselves; people were shocked, but each incident soon fell out of the public’s consciousness. However, after Columbine the nation was changed, and school violence became part of an ongoing national concern about school safety. Beginning in 1996, 12 school shootings occurred before the Columbine shootings, and an additional 25 acts of school violence have occurred since Columbine. The shootings have involved the deaths of students, teachers, school counselors, law enforcement officers, family members, and other school personnel. Of the 38 acts
6 THE FORENSIC EXAMINER Winter 2005
of school violence that have occurred since 1996, only 9 of these have occurred outside of the United States. The Columbine shootings were perpetrated by two male students, and in two other school shootings, one before Columbine and one after, there were also two male students involved. Students acting alone have executed all of the other shootings. The age groups have varied; 18 acts of violence were carried out by students ages 14 to 16, 11 acts by students ages 17 to 19, and 4 acts of school killings by students ages 11 to 13. A female student carried out an act of school violence; all others have been by male students. In 3 of the cases a parent or a family member was killed before the students went to the school. In 6 of the cases the students com-
By Carl J. Patrasso, PsyD, MA
mitted suicide following the perpetration of school violence. The Threat Assessment School districts throughout the country have set up programs to identify students who are potential threats to school safety. Each school district has its own particular procedures, rules, and regulations. Generally, the processes involve identification and referral of the student for an assessment, the actual assessment of the student, and a meeting that often includes the referring teacher, the school administrator, the identified student, the student’s parents or guardians, the school counselor, the school social worker, and the school psychologist. During this meeting decisions are made on suspension, transfer, home schooling, or qualifying conditions under which the student can attend school. Threat assessment is the term used in this article to designate a forensic assessment of the student, including relevant interviews with teachers, classmates, and others who have interacted with the identified student; a review of the records; and psychological testing. The school psychologist, or whomever else the school designates, conducts the threat assessment. The purpose of the assessment is to collect
important information regarding the student’s potential to act out violently against other students and teachers at school. Then, this information is presented at the meeting so that decisions can be made concerning acceptable and legal interventions. Educational systems throughout the country are currently in need of forensic experts to conduct the required evaluation and assessment of potentially violent students. Each forensic professional has developed a format of questions that he or she is comfortable with and that helps him or her reach an opinion. Forensic professionals have learned that asking the right questions is essential to their forensic interviews or investigations. Asking the Right Questions To compose a threat assessment for students in the school setting, professionals must focus on questions that specifically target the behavioral characteristics of students who present threats to school safety. Such fundamental characteristics can be found in the May 2002 final report and findings of the Safe School Initiative, developed by the United States Secret Services and United States Department of Education. This report eloquently and succinctly states the indicators that can be
used in a threat assessment. Based on that report, this article presents a series of questions that can be adapted to a forensic evaluation or interrogation to aid the forensic professional in determining if a student presents a threat of violence toward others in the school setting. As previously mentioned, each professional develops his or her own style and means of repartee when it comes to the technique of the clinical interview for forensic assessment purposes. These questions are adopted for the purpose of a threat assessment, and each forensic evaluator must present them with the style and expertise in which he or she is most comfortable and effective. The questions, with a brief rationale and suggestions on the style of asking them, are as follows: 1.) If you had to name people at school who have blocked your progress or made it hard for you, who would they be? This question was based on the findings that teachers were usually the targets of students who carried out armed attacks in school. The goal is to frame the question in an innocuous way, thereby making students comfortable enough to talk about teachers they dislike, find difficult, or hold a grudge against.
Winter 2005 THE FORENSIC EXAMINER 7
2.) Have you ever thought or daydreamed about how you could get even with the people at school who have done you wrong? You know, like put a tack on their chair? Attacks in school settings are planned attacks. They are not sudden outbursts of emotion or impulsive acting out; they are thought out, planned, and fantasized about. This question’s example adds a bit of humor and appears to minimize, in a non-threatening manner, how a student might get even with the teachers or students he or she perceives to have mistreated him or her. The goal is to get the student to talk about what he or she might do from the least harmful possibility and observe if he or she develops a simple or silly revenge scenario into greater threats. 3.) Have you shared with a good friend your thoughts about how you would like to deal with nasty people and situations at school? If so, what advice did they give you? Students who have carried out attacks against others in school have usually shared their fantasies and plans about how they would get even with teachers and fellow students with a good friend. The friend often reinforces these ideas and does not report the conversation to any teachers or adults. When answering this question, if a student names a friend with whom he or she has shared his or her fantasies, the
school should further investigate and interview the friend. 4.) Are you the kind of person who will let someone know you are angry or resentful of them, or do you prefer to keep it to yourself? From the way this question is worded, it might seem as though introverted behavior is perceived as less of a threat than extroverted behavior. However, people who are not assertive will often brood over hurt or angry feelings rather than discuss them with the person they feel has wronged them. Over time, without any warning, built up hurt, anger, and frustration can lead to the student acting out in violence. 5.) Would you describe yourself as the average student, or do you think you stand out as different and/or a troublemaker? Students who carry out harmful attacks against others in the school setting are usually not noticed by any unusual demographics such as age, grades, race, or religion. Most often they blend in as one of the student body, not as particularly outstanding, but not as particularly troublesome either. A student who internally fantasizes and is planning great harm to others in the school may portray himself or herself as quite normal, an average type of person,
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and as someone who tries to get along with and fit in with others. In contrast, an antisocial student might honestly admit that he or she is different or troublesome. However, outside of his or her admitted differences, the typical troublemaker is not the most likely candidate to secretly plan an assault within the school. 6.) How would you describe your schedule over the last several days? What have you bought shopping? What have you been watching on TV? Have you written any poems? Have you created any drawings? There is evidence that students who are about to act on their plans to carry out attacks within the school give off signals by poems they write, violent TV programs they watch, and books they purchase and read that may inspire them or serve as references on how to carry out violent acts. These violent youths also give clues in drawings they produce or clothing they purchase and/or wear that has special significance to them. 7.) Have you been feeling discouraged and let down lately? Did it cross your mind to end it all or hurt yourself? Students who commit violent acts against others in the school setting are often depressed. They contemplate committing suicide or have actually made attempts in the past. Other people are often unaware
of their depressed feelings. If they attempted suicide and were stopped or found by a friend, the troubled student’s family may be unaware that he or she ever made an attempt or had such feelings. If a student is hesitant in answering, gives partial answers, or hints at an answer but does not actually give a clear answer, the question should be pursued until the evaluator has a clear idea of what the student may be withholding. If the evaluator believes that the student is not telling the truth and is withholding his or her depressed feelings and suicidal ideation from the interviewer, the student should be referred for counseling. The counseling should be made a requirement and not a voluntary option. If in counseling it is decided that the student is depressed or suicidal, this should be taken as a positive risk factor for violent acting out. The counseling should occur off campus, and the first session should take place the day after the initial evaluation. It may be determined that several sessions of counseling need to be completed before the student can return to school. The purpose of the counseling is to clear up the questions of depression and suicidal attempts and/or ideation. It is more difficult to size up the student who behaves in a polite, compliant, intelligent, and soft-spoken manner. This student may behave in a mature way that facilitates repartee and the evaluator’s good
opinion of him or her. It is always important when conducting the interview to compare the student’s behavior during the evaluation with reports from teachers and school counselors. The evaluator may find that a student who presents him or herself in a mature and cooperative manner during the evaluation has an ongoing school record of situations in which he or she has been caught teasing other students, bullying other students, or making sexually inappropriate statements. The student is presenting a persona and is dissembling the evaluator. This discrepancy between the student’s behavior with the interviewer and reports from teachers and students about the student’s actual behavior in the school setting is an indicator that the student is engaging in serious deception during the interview; in particular he or she is not being honest about actions of hostility and intrusiveness toward others. 8.) Tell me about important people that you have lost in your life or whom you really miss. This question is open ended and may require a bit more inquiry on the part of the interviewer before the student will come up with the name of a person he or she lost and that he or she feels was important to him or her. The important element in this question is to discover how fresh and painful the wound of the loss still remains for the student. If it is a loss he or
she still suffers from and recalls with passion, then this should be taken as a risk factor. Many students who have carried out violent attacks in the school have suffered losses they cannot get over. 9.) What failure did you have in school that really hit you hard? Why do you think it hit you so hard? Students who have acted out violently in school have trouble coping with failure. This is compounded by the fact that they feel resentful of those who may have given them bad grades, failed them from passing, or denied them entrance to a school club or team. When evaluating the answer to this question, the interviewer is looking for the elements of anger, hurt, resentfulness, and a sense of unfairness that the student still has about the failure. What is significant is that the failure experience remains emotionally vivid to the student even if it occurred a long time ago. A student may present school as a string of failures and degrading or humiliating experiences. In this case a risk factor is clearly in affect. The student with conduct disorder may present school as a place he or she does not want to be and talk hopefully about quitting as soon as possible. In contrast, the student at risk for violence in the school may talk about how these failures are important to him or her because he or she wants to succeed but just cannot seem to do so.
Winter 2005 THE FORENSIC EXAMINER 9
Honor Students Can Kill Too: A Case Study to Determine If Threat Assessments Can Properly Identify Non-Suspect Students as Risks by Leann Long After the Columbine shooting and multiple other school shootings, investigations have shown several red flags among young killers’ behaviors, hobbies, criminal records, social lives, etc. According to reports, the Columbine assassins Dylan Klebold and Eric Harris were both constantly teased at school, wore dark clothing, maintained a hate website, and experimented with bombs. Jeff Weise, the 15-year-old who earlier this year
10.) Which students have really bugged you when it comes to making smart remarks, trying to push you around, or just bothering you by what they say? Bullies have often tormented students who carry out violence in the school setting. This bullying is usually ongoing and does not have to consist of actually having been beaten up or pushed. In fact, bullying may not necessarily take the form of an actual bully in the true sense of the term. For example, a student who is not athletic or popular may feel rejected and humiliated by the in-crowd of the school or have the self-conscious discomfort of feeling like an outsider. Other students may make remarks that tag the student as different or not acceptable to the regular school crowd. The interviewer should be alerted to these other types of behaviors by students in the school who have made the target student feel tormented, bullied, or like he
killed his grandfather, his grandfather’s companion, nine students in his own high school, and then himself, displayed similar alarming characteristics. Dr. Patrasso’s article presents a series of questions that can be adapted to a forensic evaluation to assess violence in students. Although a questionnaire of this sort might have been invaluable in assessing youths such as Harris, Klebold, and Weise, could such assessments identify violent youths who are well behaved and make good grades? An in-depth look into the case of Seth Trickey can provide some valuable insight to this issue. Seth Trickey was a straight-A honor student at his middle school in Fort Gibson, Oklahoma. He was involved in many school organizations as well as a teen Christian group. His classmates and the community described him as friendly, popular, and a model student. Trickey lived with his parents and two siblings, and the family was active in a local church and the community. He appeared to be a happy teenager with everything going for him. However, on the morning of December 6, 2005, Trickey surprised everyone when he took his father’s 9mm semiauor she does not fit in. The student will often feel resentful about being made to feel like he or she does not fit in. Some students, such as those in the arts, may want to feel that they do not fit in and are not average students. They wear their uniqueness with pride and as an affirmation of their place within a different group. In contrast, the target student betrays a level of resentment about his or her place as a loner or part of the outside group. 11.) If this country were under attack and you were in a situation in which you had to get your hands on a gun quickly to defend yourself, how would you do that or where would you go to get a weapon? Some interviewers may prefer to ask directly, “Do you have guns or weapons at home?” However, in this approach the questions are framed as non-threatening
10 THE FORENSIC EXAMINER Winter 2005
tomatic pistol outside the doors of his middle school and started shooting into a crowd of his classmates. A student who witnessed the event claimed the young shooter was yelling, “I’m crazy, I’m crazy” as he fired at least 15 times. According to authorities, Trickey ceased shooting and dropped his weapon when Ronnie Holuby, a science teacher and security guard, approached him. Trickey reportedly did not put up a struggle as Holuby grabbed the boy’s arms and held him against a brick wall. A total of four students were shot and suffered non-life-threatening injuries. A 12-year-old girl was shot in the cheek, a 13-year-old boy was shot in the forearm, a 13-year-old boy was shot in the leg, and a 12-year-old boy was shot in both arms. A fifth student was grazed by a bullet that passed through one of the other students. One of the victims claimed to be friends with the shooter. Police Chief Richard Slader reported that he never saw Trickey show any emotion in the hours after the shooting. “Dazed would be a proper word. He never said a word to me” (Barnes, 1999). Trickey was charged with six counts of shooting with intent to kill and possesand open ended in order for the interviewer to find out as much as he or she can about the student’s access to weapons. Also, if the student has easy access to weapons, the interviewer wants to avoid asking the question in such a way that will arouse defensive feelings in the student that may cause him or her to hide the fact that there are weapons at home or that he or she has access to weapons. Students who act out with violence in the school setting usually have easy access to weapons. A student may already be in possession of weapons and may have been collecting weapons for several weeks or even months before he or she actually carries out the attack. If a student denies that he or she has access to weapons or is in possession of weapons, the interviewer may want to engage the student in a discussion about weapons. The goal of such a discussion is to determine if the student is
sion of a weapon on school property. According to court records he spent around 2 1/2 years at a high-security center for juveniles, was discharged and spent 2 months at a residential treatment center in Austin, Texas, and then completed a five-phase reintegration program in a secure group home. During his time under state supervision, Trickey, much like in school, displayed nothing but good behavior. On October 26, 2004, Trickey was released to live with his grandparents in Kansas. He stayed there for a short period before being released from state oversight on March 29, 2005. This ideal student and well-behaved criminal juvenile is no longer serving time for the tragic events that took place on the day he went “crazy.” Trickey has never publicly provided a solid reason for shooting his classmates, but according to court records he blamed his violent act on pressure to get good grades, a military fascination, and a yearning to know what it was like to be in the shoes of Columbine perpetrators Harris and Klebold. Trickey is not the only honor student
knowledgeable about weapons, if he or she admires certain weapons, or if he or she wishes he or she owned a particular kind of weapon and why he or she would like to own it. Guns may not be the particular weapons that a student is interested in. A student may talk about other weapons he or she would like to possess, such as grenades, bombs, knives, or even car tools that can be used as weapons. A student may say that it would not be easy to make a bomb, but it would be easy to find out how to do so on the Internet. A student might also talk about why one type of weapon is desirable over another but deny that he or she has easy access to a weapon. This type of fanaticizing and discussion should be considered a risk factor and might be reason to suspect the student actually does have easy access to weapons but is not admitting it.
who has committed an act of violence at school. In May of 2000, Nathaniel Brazill, an honor student with perfect attendance, shot and killed his favorite teacher in a middle school in Lake Worth, Florida. Even though Trickey and Brazill appeared to be model students and youths in their communities and apparently did not display any outward warning signs for violence, if they had completed threat assessment tests they may have received the attention and help they needed, thereby preventing their violent shooting sprees. Dr. Patrasso’s proposed threat assessment questions involving access to guns, asserting feelings, discouragement, failures, and possibly others, could have helped identify warning signs within Trickey and protected his classmates. Although it appears that threat assessments will work on students who do not fit the mold of violent offenders, are only trouble-makers and misfits being assessed? In order to prevent violence in the school, threat assessments should be administered to all students, including honor students, class presidents, football captains, and homecoming queens.
12.) If you were in a tight spot, what friend would you like to have with you? Why that friend? Often other students are involved in the attack even though one student may be the instigator and inspiration. This question is asked to determine if the student at risk would involve, or has already involved, other students in his or her plans to carry out a violent attack in the school. If he or she has not, the names mentioned are good leads to follow-up on to discover if the at-risk student has discussed or hinted to other students about his or her grudges or plans and fantasies about how and who he or she would seek revenge on in school. A student at risk may evade answering a question about whether he or she has a plan in mind, whereas a fellow student may reveal that the student at risk does have a plan that he or she has decided to execute.
References Associated Press. (1999, December 7). Four shot: Seventh-grader opens fire at school. The Shawnee News-Star. Retrieved August 12, 2005, from http://www.news-star.com/stories/120 799/new_ftgibsn1.shtml Associated Press. (1999, December 15). Boy pleads innocent in school shooting. The Shawnee News-Star. Retrieved August 11, 2005, from http://www.news-star.com/stories/ 121599/new_ftgibson.shtml Barnes, S. (1999, December 10). Different schools, same scenario. The Morning News of Northwest Arkansas, p. A10. Judge orders release of school shooter Seth Trickey. (2005, March 31). Telequah Daily Press. Retrieved August 11, 2005, from http://www.tahlequahdailypress.com/artclesi/2005/03/31/news/police_-_courts/ aatrickey.txt Randall, K. (2000, June 7). Florida middle school student held in fatal shooting of teacher. World Socialist Web Site. Retrieved August 15, 2005, from http://www.wsws.org/articles/ 2000/jun2000/flor-j07_prn.shtml Weslander, E. (2003, September 26). School shooter may end up in Lawrence. LJWorld.com. Retrieved August 11, 2005, from http://www2. ljworld.com/news/2003/sep/26/school_ shooter_may/
Additional Psychological Testing Psychological tests should be used in conjunction with the observations and information developed during the interview. Depression, hostility, and suicidal ideation are a dangerous combination of factors. These are the three areas psychological testing should focus on as particularly important forensic elements in the threat assessment. The results from the psychological tests should be used in conjunction with the observations and hypothesis developed during the interview. The tests can be used to get information from a student who is guarded during the interview and who will not admit to problems with depression and feelings of hostility. They can be used to confirm direct statements or indirect innuendos about feeling suicidal and can indicate serious mental health problems and needed treatment interventions.
Winter 2005 THE FORENSIC EXAMINER 11
The Children’s Depression Inventory (CDI) can be used with students 7-17 years old, which includes the age of most of the students who have committed acts of violence in the school setting. The test provides a total score based on the wellestablished Beck Inventory, which reports on a student’s level of depression. The test provides five other pieces of information about a student’s depression, including negative mood, interpersonal problems, ineffectiveness, anhedonia, and negative self-esteem. The Suicidal Ideation Questionnaire (SIQ) is a straightforward questionnaire to assess a student’s suicidal ideation. A student may deny or be coy about directly answering the interviewer’s questions about suicidal ideation during the interview itself. This test allows the student to answer questions without the necessity of directly facing the adult evaluator. In such an instance a student may express him or herself more comfortably. Because this test was specifically designed as a component in a comprehensive assessment, it is particularly well suited for the threat assessment process. The Adolescent Anger Rating Scale (AARS) helps identify intensity and frequency of anger and the types of behavior a student engages in when he or she is angry. This is very important because a student may engage in many behaviors over a period of time that represent hostility but that are minimized in importance or go unrecognized because they are not dramatic enough to come to the attention of school authorities. Hostility that is expressed by writing poems, creating drawings, and contacting hate groups on the Internet is an indicator of a student’s anger and hostility, but because they do not involve acting out against school rules these behaviors can go unnoticed. This test can also help identify if a student belongs to a diagnostic group (such as conduct disorder) and assist in developing required treatment interventions for the student. Conclusion If the post 9/11 world has taught us anything, it has taught us that no threat
should be disregarded, taken lightly, or considered impossible to carry out. What students tell their friends; what they present in pictures, drawings, and poems; what they wear; which programs they watch on television; which websites they like to visit; and actual threats they make to others, either as jokes, in secret, or in the heat of passion, must all be taken seriously and followed-up on with a risk assessment of the student. This does not change the role of the school teacher, administrator, or others involved in the education setting from that of a concerned educator to a police officer. Instead, it increases the dimension of concern that educators have for the welfare and development of all students in their care, including the student at risk. Early identification of the student at risk protects others and provides the student at risk with the kind of legal intervention and treatment intervention he or she desperately needs. Psychologists at every level of our society must increase their forensic skills relative to the work and setting in which they find themselves. Within the modern educational setting, school psychologists must be well qualified in a clinical understanding of human problems and also have a solid grasp on forensic skills in order to best serve the interest of schools. Works Consulted Furlong, M., & Morrison, G. (2000). The school in school violence: Definitions and facts. Journal of Emotional and Behavioral Disorders, 8. Yell, M. L., & Rozalski, M. E. (2000). Searching for safe schools: Legal issues in the prevention of school violence. Journal of Emotional and Behavioral Disorders, 8. Cirillo, K. J., Pruitt, B. E., Colwell, B., Kingery, P. M., Hurley, R. S., & Ballard, D. (1998). School violence: Prevalence and intervention strategies for at-risk adolescents. Adolescence, 33. Mayer, M. J., & Leone, P. E. (1999). A structural analysis of school violence and disruption: Implications for creating safer schools. Education and Treatment of Children, 22. Vossekuil, B., Fein, R. A., Reddy, M., Borum, R., & Modzeleski, W. (2002, May). The final report and findings of the Safe School Initiative: Implications for the prevention of
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school attacks in the United States (pp. 19-36). Washington, DC: United States Secret Service, United States Department of Education. Bender, W. N., Shubert, T. H., & McLauchlin, P. J. (2001). Invisible kids: Preventing school violence by identifying kids in trouble. Intervention in School and Clinic, 37. Beger, R. R. (2002, March 22). Expansion of police power in public schools and the vanishing rights of students. Social Justice. Tobin, T., & Sprague, J. (2000). Alternative education strategies: Reducing violence in school and the community. Journal of Emotional and Behavioral Disorders, 8. Dwyer, K. P., Osher, D., & Hoffman, C. C. (2000). Creating responsive schools: Contextualizing early warning. Timely response. Exceptional Children, 66.
About the Author Carl J. Patrasso, PsyD, MA, has been a member of the American College of Forensic Examiners since its inception. He is a licensed psychologist in the state of Arizona, and he has worked for the Arizona Department of Health, the Arizona State Hospital in the Behavioral Management and Forensic Services programs, the Arizona Department of Juvenile Corrections, the Correctional Facilities Schools, and the Parole Violators program. He provides competency evaluations, expert testimony, and restoration training for the Arizona Superior Court, adult and juvenile divisions. The Phoenix Union High School district also employs him as a school psychologist to provide special education evaluations and consultations relative to risk assessment.
Earn CE Credit To earn CE credit, complete the exam for this article on page 63 or complete the exam online at www.acfei.com (select “Online CE”).
By Kevin W. Dowling, MEd, EdS
This article is approved by the following for continuing education credit: ACFEI provides this continuing education credit for Diplomates.
Key Words: lunar effect, domestic violence rates, moon
Abstract The research in this article sought to determine whether lunar phases affected the amount of domestic violence calls the Charlotte-Mecklenburg, North Carolina, police department typically received. Data from almost half a million calls during particular phases of the moon were recorded to determine if any correlation existed between lunar cycles and domestic violence
incident
rates.
The
research concluded that no correlation exists. This article also explores, through past literature, reasons why many individuals in the law enforcement community continue to perceive a positive correlation between the presence of a full moon and an increase in incidents of domestic violence and general crime rates. That orbed maiden with white fire laden, Whom mortals call the moon. - Percy Bysshe Shelly
Introduction Humankind has often looked up toward the heavens for guidance and, from the earliest records of history, has tried to determine if the moon exerts any influence over human destiny and behavior. It seems only fitting that science would begin to claim jurisdiction over this question. For many years, the debate has continued both in and out of the scientific community regarding whether the moon’s gravitational pull has any influence on human behavior. This belief has assumed many titles, from the lunar, or synodic, effect to the lunar hypothesis. In the early to mid-1970s, a significant amount of research was conducted on the relationship between lunar phases and asocial behavior. Much of the research of that period mirrored a study performed by Snoyman and Holdstock in South Africa (1980). The study reviewed data involving “crisis incidents” and concluded that there was a correlation between lunar phases and human behavior. However, the study, and many like it during this time, failed to take into account a plethora of independent variables that affected the results. It was a case of finding the data to fit the hypothesis. Many studies observing lunar effects on crime rates, suicides, or inpatient admissions were conducted in urban, densely populated areas. This introduced many confounding variables into the studies. Also, the studies varied in methods of statistical analysis, used small populations, and did not account for the presence of multiple, non-controlled variables. This article addresses these past errors as it answers the question of whether lunar phases have a quantifiable impact on one particular type of human activity—acts of domestic violence. With the rise in literature, research, and public concern over the devastating effects of domestic violence on society, it seems fitting to determine if any relationship exists between this type of crime and phases of the moon. This study compares the variables of lunar phases and the rate of reported domestic violence incidents within the city of CharlotteMecklenburg, North Carolina, analyzing data collected over the course of a year. It
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uses a statistical analysis of the frequency of these reported crimes. The phases of the lunar cycle that were chosen for the study are the new moon and the full moon. Review of the Literature Related to the Study Vance (1996) used behavioral incident reports filed on patients at a psychiatric care facility to catalog outbursts that were considered inappropriate by an independent reviewer. The behavior that was noted involved incidents in which clients represented a threat to themselves or others, or were engaged in activities that were uncharacteristically noncompliant. Also noted within the observational parameters were acts of violence. The occurrences were cataloged over a 34-month period. The study indicated that there was no significant correlation between anti-social or violent behavior and the synodic cycle. A study on self-violence or suicide rates and the lunar cycle (Gutierrez, Garcia, & Tusell, 1997) clearly found that there was no connection between the two. This study examined the data analyzed from the Anatomical Forensic Institute of Madrid. This forensic institute has the authority and responsibility to determine the time and cause of all unnatural deaths within the city. The period that was used for the research covered 1,096 consecutive days from January 1, 1990, to December 31, 1992. During this time there were a total of 897 reported suicides. The dates and times of these suicides were plugged into a Buys-Ballot table for analysis. This placed each of the cases of suicide into an individual cell, relating these to the moon’s cycle. The result of this study was the assertion that the synodic cycle has no significant impact on rates of suicide. A study conducted by Wilson and Tobacyk (1990) showed that there was no significant increase in calls to a local crisis center during full moon phases. The authors related dates within the lunar cycle to 4,575 calls that were placed to the center from January 1, 1985, to June 30, 1985. The study found that “the amount of variance accounted for by the 28-day lunar cycle was about .2 of 1%” (Wilson & Tobacyk, p. 49). No other data was pro-
vided in terms of the statistical significance of these results, but the types of calls were important because many of them involved personal and family problems. This would fall in line with complaints concerning domestic violence that will be addressed within this study. The authors also used a BILE (Belief in Lunar Effects) survey designed by Rotton and Kelly (1985) to measure the perceptions of 87 employees at a crisis center regarding their beliefs in the lunar effect. Their responses were compared to those of 102 university students who did not work for the center. The result was that the crisis center workers’ beliefs that the moon affected human behavior, as rated on the scale (M = 26.78, SD = 8.12) were significantly higher than those of the control croup of college students (M = 22.32, SD = 7.76; + (187) = 4.71, p < .001) (Wilson & Tobacyk, 1990, p. 50). The study pointed out that because of the unpredictability of the crisis center, workers needed to establish some control over and predictability within their environment. Sharing the misconception of patterns in their crisis calls allowed them to draw comfort in establishing order within an otherwise chaotic environment. It also displayed what is commonly referred to as a “perception bias.” This is when one holds a belief about an observable pattern and tends to look for incidents that confirm this belief, discounting or not even noticing counter beliefs. Since the full moon is easily observable, it is understandable for a crisis center worker or law enforcement professional to engage in this bias every time he or she looks up into the night sky. In attempting to further explain the role of perceptions on the belief of the lunar effect, Rotton, Kelly, and Elortegui (1986) performed a study examining beliefs. They felt that police officers and psychiatric workers, the people who played an important role in data categorization in past studies, would have a greater belief in the lunar effect than the general population. They surveyed police officers, psychiatric workers, and other civilians in a convenience-based sampling. The authors reported their results utilizing a 2 x 3 factorial design that compared data among the
male and female respondents as well as the police officers and psychiatric workers. The results showed that police officers, in general, had a greater belief in the effects of the synodic cycle on human behavior than civilians or psychiatric workers. The study remarked that “Fisher’s least significant difference LSD procedure indicated that scores in the police sample (M = 11.82, SD = 3.72) were significantly higher (p < .05) than scores in either the psychiatric or pedestrian samples (Ms = 9.61 and 8.97, SDs = 3.62 and 4.30, respectively) (Rotton et al., 1986, p. 173). Implications for the purpose of this study are that perceptions among public safety officials must be controlled when tabulating any data. In a study conducted by Feldman and Jarmon (1978), the effects of many different types of environmental stimuli were reviewed. It was determined that the day when welfare checks were received had a more profound impact on criminal activity than lunar factors. The study also found that there was no quantifiable effect of moon cycles on crime. The results did reveal that assaults and homicides followed a trend, but that these were based more on the day of the week and the overall temperature than anything else. Homicides and assaults peaked by as much as 50% on Saturdays. A slight increase in assaults on days of the full moon (7.5 versus 6.3) was noted, but also noted was the fact that the study could not take into account or control for other variables that could have given rise to these numbers. These included socio-economic conditions, lighting, and the day of week on which the full moon occurred. This research also gave a wide interpretation to the variable of crime. This is because it used the state’s crime index to measure the variable of criminal activity, lumping together such varied crimes as atrocious assault, forcible rape, and homicides. Because of the year in which it was published, the study did not set aside the particular category of “domestic violence assault” in its data-gathering efforts. It is only in the last decade that this crime has been removed from the realm of “family dispute” or “simple assault” and has
received a statutory heading that accurately reflects the true elements of the offense, allowing a more precise definition to be used within this research. An important point can be drawn from this study that should be considered within the framework of any future research. The study found that in the city of Newark, assaults were 15 times more prevalent than homicides, generating a more significant pool of data from which to draw. If the purpose of the research being conducted is to consider the physiological effects of the synodic cycle, then a crime should be chosen that occurs frequently enough to develop clearly discernable patterns. The crime of assault also reflected behavior that could be easily influenced and precipitated by slight changes in environmental conditions, much like incidents of domestic violence. The final and most comprehensive study that will be presented in this review of the literature was one performed by Culver, Kelly, and Rotton in 1988. This study sought to address the question of the lunar theory from a comprehensive scientific approach. The researchers reviewed various geophysical variables and their effects on human behavior using information from many different scientific disciplines, including biology, astronomy, and physics. The significance of this study cannot be overstated. The aim of the report was “to examine environmental and geophysical variables that are frequently invoked as intervening or mediating variables in research on lunar cycles and behavior” (Culver et al., 1988, p. 684). As part of this study the authors pointed out, quite clearly, that the concept of the lunar theory, or the belief that phases of the moon impact human behavior, is flawed at its very core. The lunar theory is based in large part on the concept that when the moon is at its fullest, it exerts the greatest amount of gravitational pull on the earth and the physiology of those who live on it. This, in turn, would have an impact on human behavior. Their explanation of the science behind this claim clearly shows that the phase of the moon has nothing whatsoever to do with its gravitational pull
Winter 2005 THE FORENSIC EXAMINER 15
“...the phase of the moon has nothing whatsoever to do with its gravitational pull on our planet. In fact, the point at which the moon is closest to the earth, its perigee, can occur during a full moon, new moon, or at any point between these phases. The two variables of gravitational pull and lunar phases are not related, and yet this very relationship is incorrectly assumed in many studies. ” on our planet. In fact, the point at which the moon is closest to the earth, its perigee, can occur during a full moon, new moon, or at any point between these phases. The two variables of gravitational pull and lunar phases are not related, and yet this very relationship is incorrectly assumed in many studies. As a result of this work, any research asserting a link between lunar phases and either an increase or decrease in the gravitational influence of the moon on individuals should be considered suspect. This narrows the field when considering the variables to study while examining the lunar effect. The authors also pointed out that in most studies concerning the lunar effect, the correlation between a variable and where it falls within the lunar cycle is given a wide berth for the purpose of data collection and interpretation. Many studies cite that since event X occurred on the day after a full moon, then it must be related to this point within the lunar cycle. This illustrates a research flaw found in studies in which the “effect” is never truly defined. This gives the individual conducting the study the ability to find relationships based on data that is gathered and applied using wide definitional categories; this practice will be avoided in this study. This literature review began with two studies, Vance (1996) and Gutierrez, Garcia, and Tusell (1997), which determined that the moon has no significant effect on either violent behavior or suicide rates.
The next study, conducted by Wilson and Tobacyk (1990), dealt not only with crisis or family violence calls during lunar activity, but also reviewed the effect that perceptions had on those who processed these calls. This offered a smooth transition into the research completed by Rotton, Kelly, and Elortegui (1986), which showed how perceptions by themselves could account for what is mistakenly believed to be the lunar effect, incorrectly casting what is truly a psychological phenomenon as one of a physical science. Finally, the last two studies of Feldman and Jarmon (1978) and Culver et al. (1988) were reviewed, lending a scientific foundation for the finding that there is no link between phases of the moon and criminal activity. Methods The research question being addressed in this study is whether lunar phases have an impact on the number of domestic violence incidents occurring in a metropolitan area. This study was ex-post-facto in its design. Reported daily incidents of domestic violence assaults were collected from police records for the calendar year of 1999. The total daily sums were then plugged into the yearly lunar cycle chart to determine if any relationship existed between the two. The variables used in this study were 1.) calls for service received by a telecommunicator regarding domestic violence or assaults on a female, and 2.) the lunar cycle. Domestic violence, as defined under
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North Carolina General Statute Chapter 50B-1, is “the attempt or causing of bodily injury to a party or the placing of that party in fear of these acts occurring between persons or children with whom the aggrieved party has had a personal relationship” (North Carolina Criminal Law and Motor Vehicle Handbook, 1999, p. 711). This will be measured in terms of the number of “assault on a female” cases that were reported to officers over a 24hour period. The phases of the moon will be determined using the calendar provided by the United States Naval Observatory. Calls for service for the studied crime will be correlated with two moon phases, the full moon and new moon. The incidents will be listed only for two 24-hour periods, or days, within each month. These will be the date on which the moon was listed as “full” and the date on which it was listed as “new.” No other information will be documented for any other days within the lunar cycle. This will avoid the problem that has surfaced in studies in the past, the process of measuring data found in the days surrounding the new or full moon and attributing this data to particular phases of the lunar cycle. When researchers collect data within a window of 3 or more days of a particular phase of the lunar cycle, the perceived synodic effect increases. This attributes more statistical importance to days that truly have little to do with the peak of the lunar phases. Using only 1 day out of each month to represent the full moon stage in the cycle and 1 day that represents the new moon phase results in less skewing of the data. These days are also considered to reside at opposite ends of the lunar effect continuum. If there is to be any measurable change in behavior, then it should appear at the extreme points of the lunar phases, not at non-precise stages within the lunar cycle. The geographic area on which the study focused was the city of Charlotte, North Carolina, and the incorporated area within the county of Mecklenburg, referred to collectively as Charlotte-Mecklenburg. The total area is approximately 472.6 square miles. Both the Charlotte-Meck-
lenburg Police Department and its 911, or Telecommunications Center, service this region. The police department employs 2,000 persons, of whom 1,500 are sworn officers answering calls for service. The telecommunications section of the department dispatches, on average, 480,000 calls each year. This is a significantly large sample from which to draw data for the purpose of this study. The subjects being studied were citizens of the city of Charlotte-Mecklenburg who totaled approximately 603,044, according to 1997 census data. It is expected that this number represents only the residential population and not commuters who frequently make use of the city’s law enforcement services. However, since the majority of the reported domestic violence incidents in this study occurred after regular business hours, i.e., after 5:00 p.m., the variable of non-residential victims has been controlled. For the purpose of incident reporting, the totality of the population within the city over the age of 16 was used to develop the data of incident rates. Within the state, 16 is the legal age at which an individual is considered an adult for the purpose of reporting a crime or being listed as an offender. Data was compiled using the Criminal Intelligence/Analysis Bureau of the Charlotte–Mecklenburg Police Department. The individuals in this organization are nationally recognized experts in their field. They also work “banker’s hours” within an office. As such, they are insulated from interpretative skewing of the data that might be encountered if individuals in the field, viewing the lunar phases, were responsible for the reporting of the data. In this study telecommunicators were responsible for classifying calls for service as domestic violence incidents. Because of the current liability associated with this particular type of crime, there is a significant amount of training that telecommunicators possess in order to perform their jobs, categorize calls, and dispatch officers to investigate these calls. There are also strict policies and procedures already in place for documenting these cases. Due to all of these factors, there will be significant control exercised over the vari-
able of individual perception. The first control will be exercised when the dispatcher codes the call for service and dispatches it to an officer on the street. The second will involve the officer filling out a report for an assault on a female, the actual charge in the case of domestic violence. Since this particular incident relies on a statutory definition of specific elements of a crime being present, individual beliefs or perceptions will have little effect on the reported data. The literature cited earlier in this article had a significant impact on the selection of domestic violence, from multiple types and classifications of crimes, as the dependent variable for this study. This is due in large part to the fact that this crime typically occurs within a domicile. Because of this there is a reduction in the presence of multiple confounding “out-of-doors” variables, such as a participant’s awareness of the lunar phase, ambient lighting, humidity, etc. (Feldman & Jarmon, 1978; Culver, Kelly, & Rotton, 1988). Also, the particular crime being studied, by definition, occurs between spouses or couples living together. This exercises further control over the variable than is typically seen with other types of crime because of the assumed familial structure that exists between the victim and the offender. Because of this, elements such as a lack of victim “target hardening,” socioeconomic status, and the chance of random acts of violence were also controlled. This reduction in the presence of confounding environmental variables places the study in a better position to move beyond a mere data analysis that links environmental stimuli to resulting human behavior. It allows the research to more fully explore the psychosocial reasons for a belief in the lunar effect. Factors such as socio-economic level, educational achievement, age, etc., have been addressed in the randomization of the reporting process due to the fact that the sample was drawn from the entire population of the urban area being studied. Since all members of the population have equal access to telephones, more or less, and the general population has an equal chance to call for law enforcement inter-
vention, the sample was very large. This sample represents all persons residing within the incorporated area of CharlotteMecklenburg. Results The results of the study showed that there was no relationship between lunar phases and incidents of domestic violence. In addition to this, the data clearly displayed that regardless of lunar phase, whether full moon or new, the average number of incidents was the same. In fact, there was less than a .75-point difference between the median rates of incidents that occurred on days of a full moon and on days when there was a new moon. The median number of incidents that took place during either phase of the lunar cycle within the year 1999 was 23. The median number of incidents that happened during days on which there was a full moon was 22.75, a difference from the median of only .25. On days on which there was a new moon, the number of domestic violence incidents was reported as 23.50, a difference from the median of only .50. These numbers clearly illustrate a lack of statistically significant indicators that the lunar phase had any effect on incidents of assaults on females or domestic violence behavior. Discussion From the review of the related research to the presentation of the hard data, it is obvious that there is no relationship between lunar cycles and incidents of domestic violence. Once the variable of observational skewing and the reporting of the data have been accounted for, this conclusion is undeniable. Past studies that have supported the idea of a lunar effect on human behavior have failed to take into account the deep-rooted human need to find recognizable patterns in our experiences and to be in control within an otherwise chaotic world. Our desire to connect to the natural world and use this connection to establish order is forgivable and an understandable part of the human experience. However, to attach any scientific meaning to the lunar effect would be incorrect. In 1944, Heider wrote that crime,
Winter 2005 THE FORENSIC EXAMINER 17
because it could not be rationally explained or predicted, disturbed the moral “equilibrium” and conscience of society. When this is the case, individuals long for a substitute on which to assign responsibility and impose some type of control, a phenomenon known as “attribution.” Unlike crime, the moon’s phases are easy to observe and anticipate, allowing for the establishment of order, predictability, and causation where it does not naturally exist (Heider). Even today, many law enforcement professionals continue to engage in attribution as they look up into the night sky, view the full moon, and remember this one particular fact about the evening. If the night is busy, these individuals incorrectly attribute this to the full moon. If the night is slow, the full moon is forgotten. It is this self-fulfilling prophecy and selective memory that are the true psychological foundations upon which the lunar theory firmly rests.
References Culver, J., Kelly, I., & Rotton, J. (1988). Geophysical variables and behavior: XLIX. Moon mechanisms and myths: A critical appraisal of explanations of purported lunar effects on human behavior. Psychological Reports, 62, 683-710. Feldman, H., & Jarmon, R. (May 1978). Factors influencing criminal behavior in Newark: A
local study in forensic psychiatry. Journal of Forensic Sciences, 234-239. Gutierrez, G., & Tusell, E. (1997). Suicides and the lunar cycle. Psychological Reports, 80, 243250. Heider, F. (1944). Social perception and phenomenal causality. Psychological Review, 51, 358374. North Carolina criminal law and motor vehicle handbook. 50B-1. Domestic violence; definition. (1999). Longwood, FL: Gould Publications, 711. Rotton, J., & Kelly, I. W. (1985). A scale for assessing belief in lunar effects: Reliability and concurrent validity. Psychological Reports, 57, 239245. Rotton, J., Kelly, I. W., & Elortegui, P. (1986). Assessing belief in lunar effects: Known-group validation. Psychological Reports, 59, 171-174. Snoyman, P., & Holdstock, T. L. (1980). The influence of sun, moon, climate, and economic conditions on crisis incidence. Journal of Clinical Psychology, 36, 884-893. Vance, D. (1996). Geophysical variables and behavior: LXXXI. Testing the lunar hypothesis with rural behavioral reports. Psychological Reports, 79, 1080-1082. Wilson, J., & Tobacyk, J. (1990). Lunar phases and crisis center telephone calls. Journal of Social Psychology, 130, 47-51.
dinator for the North Carolina Justice Academy specializing in the areas of community policing and criminal investigation. Prior to this he served as a master police officer and administrative analyst for the Wilmington, North Carolina, Police Department for a period of 5 years. He received his educational specialist degree (2003) from Western Carolina University, a master’s degree in education from the University of North Carolina, Wilmington (1997), and an undergraduate degree in English/philosophy (1990) from Loyola College in Baltimore. He is certified as a criminal investigator through the North Carolina Department of Justice, North Carolina Justice Academy. Dowling is currently completing his doctoral degree in education from Western Carolina University and is conducting critical doctoral research into developing a best practices curriculum for the training of human rights forensic investigators. He requests that forensic professionals reading this article who are interested in participating in this study complete an on-line survey by visiting http://www.surveymonkey.com/s.asp?u=760 7884227.
About the Author Kevin W. Dowling, EdS, MEd, is currently assigned as an Instructional Systems Specialist with the United States Secret Service, Rowley Training Center, where he develops training for the sworn members of the Service. Before this time he served 5 years as an instructor and coor-
18 THE FORENSIC EXAMINER Winter 2005
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By John J. Haberstroh, DC, DABCN, DACAN, FACFEI, DABFEI, CMI-V; Jack R. Henry, DC, DACBR; and Kevin J. Mulhern, DC
This article is approved by the following for continuing education credit:
CME
ACFEI provides this continuing education credit for Diplomates.
This activity has been planned and implemented in accordance with the Essential Areas and Policies of the Accreditation Council for Continuing Medical Education (ACCME) through the joint sponsorship of ACFEI and APA. ACFEI is accredited by the ACCME to provide continuing medical education for physicians. ACFEI designates this educational activity for a maximum of 1 hour(s) in category 1 credit towards the AMA Physicians Recognition Award. Each physician should claim only the number of hours he or she actually spent in the activity. The authors of this CME article have nothing to disclose for CME purposes. In addition, there is no advertising present within the pages of this CME article. ACFEI provides this continuing education credit for Certified Forensic Accountants, Cr.FAs. ACFEI provides this continuing education credit for Certified Forensic Consultants, CFCs.
Key Words: forensic, independent examiner, independent exam, IE, informed consent, IC, first day report, addendum, HIPAA aside Note: This article makes reference to several addenda forms. Due to space limitations these forms are not included here. However, you may access them by visiting www.acfei.com. (Click “Online CE” and then locate this article. The links to download the forms will be listed directly below the article.)
Abstract The independent medical exam (IME) was designed to reel in over-utilization and monitor doctors’ billing practices so that fair and equitable payments are made for services rendered. The IME phenomenon has spread from the chiropractic arena to the medical and physical therapy worlds. While this trend is a good and reasonable way to monitor doctors and their billing practices, regrettably, some doctors have gone too far, inhibiting good practices and denying needy patients the care they require. This article describes proven techniques for appropriate file documentation. These techniques, together with several additional strategies, are effective in rebutting and dismantling specious independent examiners (IEs) (for the sake of this article this term includes all examiners, regardless of discipline) and peer review reports (review of case file only). This article also demonstrates how to uncover fraud in an industry that was originally designed to thwart unscrupulous chiropractic and medical practices. Introduction The IME phenomena began in New Jersey in 1985. Larry Walther, DC, initiated a plan born of his disgust with nurses and insurance adjusters adjudicating chiropractic bills. The plan, as originally intended, was noble in its simplicity. The independent examiner (IE), in this case a DC, would review a bill to deter-
20 THE FORENSIC EXAMINER Winter 2005
mine if over-billing was present. The task was to ferret out over-utilization of treatment, supplies, and other specious charges submitted by chiropractors. Who better to understand chiropractic bills than another chiropractor? Unfortunately, a legion of unscrupulous IEs have sprung up over the years who are far more corrupt, dishonest, and fraudulent than the practitioners they audit. Each of the authors in this article has performed independent exams on patients and/or carried out peer reviews. In Dr. Henry’s case, this included reviews of x-rays as well. Everything
mentioned in this article is geared to meet if not exceed the standard of care in any jurisdiction. The standard of care refers to what is reasonably expected of any physician in the clinical office setting. For instance, reasonable standard of care expectations in a doctorâ&#x20AC;&#x2122;s office consist of a good case history, exam, a report of the findings (ROF) to the patient, informed consent (IC), detailed daily note recording, and rendering a written report of these findings with a plan of therapeusis or referral. On the other hand, computed tomography scanning for every patient who comes
through a doctorâ&#x20AC;&#x2122;s door is not an example of meeting the standard of care, as it would be tremendously expensive and time consuming. Part I: Documenting a Patient File The most important aspects of patient care are a credible initial case history along with an equally credible initial examination. It is surprising how many clinicians fail to grasp this basic concept, which becomes crucial for a number of reasons. A well-taken case history, barring the bizarre, will tell the treating
doctor what is wrong with the patient or at least give the clinician a reasonably narrowed differential diagnosis. It is important for the doctor to properly guide the patient through his or her history and not let the patient lead the discussion, as patients are notoriously bad informants. It is up to the doctor to control the case history, obtain the salient past, and present and obtain facts in a reasonable order along with properly documented signs and symptoms. As patients may very well exaggerate or embellish their symptoms either subconsciously or intentionally, the doctor
Winter 2005 THE FORENSIC EXAMINER 21
“For doctors who interact with insurance companies, documentation becomes an even more critical issue as the insurance companies routinely hire out IEs to review the bills and the documenting data submitted by treating physicians.”
(DC, DO, MD) must be able to sift through the data being related and document a reasonably accurate history. The examination that follows must be thorough enough to include vitals, a review of systems, an on-point ortho/neuro examination, and all salient palpatory findings (which in the case of DCs should include an inventory of all pathomechanics located). This should all be recorded in a first day report (FDR). The clinician may or may not take x-rays at his or her facility. Whether the doctor takes x-rays or reads outside films, a detailed report should ensue (see x-ray addendum sample). As previously stated, the patient comes first, but other factors always come into play. The specter of malpractice accusations and payment for services rendered are ever-present issues. For doctors who interact with insurance companies, documentation becomes an even more critical issue as the insurance companies routinely hire out IEs to review the bills and the documenting data submitted by treating physicians. Therefore, we recommend that the FDR also include a differential diagnosis, diagnosis, and an initial treatment plan with short-, intermediate-, and long-term goals. Very few practitioners currently do this.
Additionally, if a range of motion (ROM) was done on any body part for any reason, a mensuration device must be used according to the AMA Guides to the Evaluation of Permanent Impairment, 5th Ed. If the spine is at issue, then the use of an electronic inclinometer is strongly urged by the Guides. Doctors should document that the ROM was performed, a measuring device was used, and the ranges were obtained properly; the actual values themselves should be highlighted. Doctors who do not document how they obtained the ROM leave themselves open to attack. If not noted in the FDR, this information can be reported on an addendum (see ROM addendum sample). Familiarity with the AMA Guides is essential when amassing data on a patient, as is remembering to include negative as well as positive findings when documenting the orthopedic and neurological tests performed on the initial exam. Too often doctors fail to document what was normal. Additionally, a practitioner need not perform an excessive number of clinical tests on each patient. For the typical patient, five to seven clinically indicated orthopedic tests are considered the norm. Neurological testing should include basic reflexes
22 THE FORENSIC EXAMINER Winter 2005
and dermatomes and should determine most of the cranial nerve functions by careful observation of the patient and simple cerebellar testing. Documentation should cover normal and abnormal results. If a more detailed neurological exam is indicated, then this should be performed, and the procedure and results should be fully documented. Report of Findings and Consent Regardless of what an exam reveals, the patient must be made aware of the findings and given a chance to consider the doctor’s recommendations. Chiropractors are historically excellent at rendering the so-called “report of findings” (ROF) to their patients. What doctors typically forget to do is document that the ROF was actually made. They should include a small blurb in the daily notes along with an addendum (see ROF addendum sample). Furthermore, should the patient be accepted for care, a note to the effect that “the patient has agreed with the treating doctor’s recommendations and treatment plan and has agreed to begin care” should be included either in the addenda or the daily note blurb. The ROF and its attendant documentation segue nicely into the IC component of the patient file.
IC is absolutely critical to initiate care on a patient (see IC sample). This means stating clearly that the practitioner has accepted the patient for care, outlining a basic treatment plan with specific treatment inventories, informing the patient of potential risks of care and of alternative treatment options, answering any questions the patient may have, documenting that the patient understood what was said, and finally, obtaining a signed waiver indicating the patient’s agreement to let the practicing doctor actually treat and touch the patient in the course of providing professional services in his or her specialty. While some doctors still rely on oral consent, the sagacious path is to get the IC in writing. The only exceptions would be immediate family members in the clinical setting or an ER patient in acute distress. Federal CLAS laws require that the IC be in the patient’s native language (Office of Minority Health, 2000). Legal Issues During an Exam As a legal aside to this same topic, during an exam typical procedure often includes closing the door to the room for privacy. Practitioners as well as IEs face additional legal challenges from any type of exam. Some of these are assault (acting in a threatening way), battery (unwanted touching), false imprisonment (being enclosed in a room without permission), and possibly sexual harassment. We therefore recommend a signed consent form to examine the patient as well. A simple solution is to develop an exam consent form or use the combined exam/treatment form attached to the IC document and have patients sign it. Should a patient refuse to sign this form, the doctor is urged not to accept the patient. Document in a brief addendum in the file why the patient was not accepted, because, should the patient later elect to sue a doctor for not accepting him or her (as occasionally occurs), proper notation stating that consent could not be obtained from the prospec-
tive patient will be important in a legal challenge. Daily Notes With the FDR properly prepared, the ROF stated and documented, and the IC obtained, the practitioner then moves on to treatment and the allimportant daily notes documenting the same. There are myriad systems available for documenting patient encounters, such as templates, merge programs, etc. Handwritten notes remain perfectly acceptable, if the handwriting is actually legible and if the note describes the encounter in a basic SOAP (subjective comments, objective findings, assessment of the clinical situation, plan for treatment then and shortly beyond) or DAP (data, a combination of subjective and objective input as seen in the SOAP format; assessment of the clinical situation; plan for treatment that day and shortly beyond) format. Even then, a key explaining the doctor’s acronyms and abbreviations must be included. Doctors should also include language regarding activities of daily living (ADL). Practitioners should have patients comment on simple everyday tasks, such as lifting children, toting groceries, getting in and out of a car, etc., and how the patient feels these activities are affecting his or her pain level. This practice gives the daily notes more originality and diversity. In chiropractic at least, there is a certain redundancy in the day-to-day treatments of patients. By commenting on their ADL, doctors can breathe sensitivity into each encounter and keep the notes looking refreshed. There is the added benefit of documenting what the patient reports on each contact. There will be many encounters bringing forth information regarding exacerbations or additional clinical problems that need to be addressed. By asking pertinent questions and listening to the patients’ responses, the doctor will learn what he or she needs to know to document the case file. Many doctors
find it convenient to utilize computer programs to summarize their patient encounters. Consider the following malpractice claim. The treating doctor (DC) was being sued for causing a disc herniation. Only four treatments were provided and the doctor fully documented in computer-assisted notes how the patient reported constantly adjusting his own back by twisting himself to get the low back “release.” The doctor’s documentation also included the fact that the patient had been doing the self-twist routine for years. The doctor further cited the fairly blatant positive orthopedic tests on this patient in the first exam encounter. Needless to say, with his documentation in the file, along with the patient’s own statement added in the daily notes, a strong defense case was presented that the treating chiropractor did not cause the disc herniation. The doctor also had a key outlining his own acronyms and statements throughout the file that he admonished the patient to not twist his own lower back in this manner. There was a detailed record of quotes indicating that the patient said the doctor’s gentle, manipulative techniques had actually made the patient feel better. The malpractice claim was dropped because, without question, the clinician did everything right. One final caveat on this topic is that every doctor should sign off on every daily SOAP note for every encounter. The note should state something to the effect that “I, (doctor’s name), certify that I provided and/or supervised the treatment inventories rendered on this patient today.” Check the back of the standard HCFA 1500 forms that are used for billing. There is clear language stating that doctors should sign off on their notes, not just the bills that are submitted. This becomes an issue should bills and notes be investigated. The daily notes need to be certified by the treating doctor or that doctor will be vulnerable to allegations of fraud.
Winter 2005 THE FORENSIC EXAMINER 23
X-rays Mysteriously, many chiropractic IEs question the use of x-rays under any circumstances. Most IEs who discourage xrays are following the medical model of daily clinical back-pain treatment; most MDs donâ&#x20AC;&#x2122;t take x-rays for back pain. On the other hand, most current critical literature flatly states that upon ballistic impaction, for example, x-rays in the traumatized area are indicated. Treating physicians should invoke this issue when justifying the use of x-rays. Even in clinical situations involving non-traumatic back pain, judicious use of fast x-ray techniques are widely endorsed in the literature. Incidental findings are numerous and can often add important data to the clinical picture. Even Yokum and Rowe state that plain film x-rays are still the most cost effective imaging available and should be performed if there is the slightest question as to the etiology of a skeletal complaint. In addition, too often a doctor is sued because he or she did not take (or order) any x-rays on the patient in question. Lack of x-rays is virtually always an issue that is alleged as part of the malpractice problem in a given case. Although it may not turn out to substantiate substandard care, it is a condemning allegation, especially in front of a jury. Recommendations for Clinical Spinal X-rays. In the cervical spine the so-called Davis Series is considered the norm after an impact. We suggest substituting right-to-left lateral bending views for the right-to-left obliques, as we feel more information is ascertained with lateral motion views. Usually AP/Lat (anterior posterior/lateral) views are adequate for the T-L (thoracic-lumbar) spine should they have suffered traumatic insult. On occasion, lumbar oblique views will be indicated. Remember, the standard rule for taking x-rays is to get at least two views of an area at 90 degrees to each other. For patients with simple back pain the literature is divided as to whether x-rays are absolutely needed (Department of Industrial Rela-
tionsâ&#x20AC;&#x201D;CA, 2005; Walsh, Weinstein, Spratt, Lehmann, Aprill, & Sayre, 1990). Nevertheless, the judicious use of xrays in the chiropractic office, even for uncomplicated back pain, is a good idea. This opinion assumes that the following usual contra-indications to x-ray are observed: pregnancy, recent x-ray studies available elsewhere, or an existing patient who has returned due to an exacerbation of the same injury. Furthermore, radiation exposure can be mitigated by the use of fast screens and compliant films, such as 800 speed rare earth systems for all views. This is an extremely fast film/screen combination that does not sacrifice details but dramatically drops radiation exposure to a minimum. Additionally, all doctors taking xrays should make full use of the built in collimators. It is advisable to use additional lead shielding such as gonadal blocks and/or aprons. Another recommendation is to line up the tube at 68 inches for all shots and simply add a small amount of kilovolts (Kv) to compensate for the longer tube distance. At 68 inches, the spinal images are not magnified like they would be at 40 inches. Bear in mind that the established MPD (maximum permissible dose) of xradiation on a t y p i c a l patient is 5000 millirad (one t h o u sandth of a unit of an absorbed dose of ionizing radiation) per
24 THE FORENSIC EXAMINER Winter 2005
year. A normal adult is exposed to 100 millirad per year due to environmental background exposure. The rare earth systems keep exposure at or below the total of 100 millirad per year in a standard set of films. Chiropractors, by definition, are concerned with the structural integrity of the spine (barring extremity issues that may themselves need to be x-rayed) and must have at least a basic set of x-rays to appreciate the underlying structural positioning of the presenting patient. Using rare earth super-fast systems, patient exposure will be minimal, eliminating the patientâ&#x20AC;&#x2122;s concerns. Doctors should consult a qualified radiologist for a formal over read interpretation and report if any question
arises on a film. Diplomates of the American Chiropractic Board of Radiology (DACBRs) are considered the very best x-ray interpreters, especially with regard to spinal imaging. If a practitioner is not aware of a locally based DABCR, check out the ACBR website and locate one within reasonable proximity. DACBRs often encourage the sending of films and case histories to their office regardless of geographic location. They will then bill out on the insurance for all charges and return the film, a report of their findings, and the history to the treating doctor. If a DACBR is simply not an option due to geographical or other restrictions, clinicians should develop a relationship with a medical radiologist and utilize his or her services for x-ray interpretation when needed. Most chiropractors who take x-rays either write a substandard x-ray report or fail to do it entirely. Doctors should comment on why they chose to perform an x-ray; specify the film, screens, and lead shielding used; the views taken; and most importantly, report what the find-
ings were, both normal and abnormal (see the x-ray addendum sample). Digital X-rays. Readers should be made aware of the digital revolution now occurring in plain film radiology. New, smaller digital machines are coming into vogue that will usher in a huge savings to the practitioner in terms of supplies and service. With the new digital machines the tube, tube stand, control panel, and generator remain the same but the screens are all digital. So, where one formerly placed the x-ray film, there will now be a digital screen in place. X-radiation strikes the digital screen such that images are routed directly to a doctorâ&#x20AC;&#x2122;s personal computer or laptop via a wireless radio frequency (RF). The image will then be committed to the hard drive of a doctorâ&#x20AC;&#x2122;s computer and can be pulled up on his or her screen at any time. The clarity of the image can be further enhanced on disc. Copies, if desired, can either be printed, burned onto a CD, or saved to a floppy disc. Should a second opinion be needed, the images can be emailed to a radiologist. With the advent of digital x-ray, the practitioner can say goodbye to the x-ray processor, x-ray film, x-ray envelopes, xray chemicals, special plumbing, dark room space, and the cost of processor and chemical servicing. The digital x-ray
Winter 2005 THE FORENSIC EXAMINER 25
will also help reduce the negative environmental impact with the cessation of all the chemicals needed to process film. Addenda Hand in hand with clinical documentation is the concept of the addendum. The addendum is a short report that describes a situation too long for a daily note entry but significantly less involved than an FDR. Commonly, patients will suddenly remember something they forgot to tell the treating doctor originally. For example, a patient might suddenly recall recent x-rays taken elsewhere. Because changing the FDR is out of the question and doing an x-ray report is too impractical for daily notes, an addendum, on the doctor’s letterhead, is the answer. The heading, “Addendum to Case File,” should be in bold font (see Addendum to Case File sample). A series of tabs labeled “Date,” “File Name,” “File Number,” and all other appropriate information identifying the document should be added. At the end of the document the clinician should add “Subscribed and sworn to under the pains and penalties of perjury.” Thus, the document becomes a sworn affidavit. In the example above, the introduction to the document stipulates that in fact, the patient did indeed forget to mention these films, which is being noted after the fact via this addendum to preserve the record. The Doctor’s Fees and CPT Coding Codifying and justifying exactly what treatment decisions the clinician has made and what charges have been billed must be done expertly. The clinician, in our opinion, is ethically obliged to obtain each new annual edition of the CPT Code Book and be certain that all staff members are thoroughly up-to-date on charges. Additionally, doctors should obtain a fee guide such as Ingenix. This publication sets national and regional standards and means for all services for a given practice. If a practitioner is in line
with national and/or local fee guidelines then he or she has less of a chance of being challenged regarding what he or she charges. The use of a fee guide such as Ingenix has the additional benefit of defending doctors against accusations of collusion and/or fee fixing. If a challenge does ensue it can be easily defended by producing a nationally recognized fee standard. The challenged doctor is then urged to rebut by asking why his or her fees were questioned in the first place and what specific concerns prompted the questions. Obtaining a Second Opinion There is no catch-22 in noting for the record a suggestion to the patient that he or she should obtain a second opinion. This is good medical/chiropractic practice. However, doctors should go even further. Every treating doctor should develop a mutually mentoring relationship with a practitioner in the same or a related discipline. From time to time, the two should meet to discuss the more unusual cases on which they are working. Questions of diagnosis and/or therapeusis concerning the patient are ideal topics for such meetings. Another possibility is to form a professional “round table” that meets monthly to hold case conferences for the benefit of all the members as well as the patients. In any event, any other opinions obtained and noted in the record will bolster the credibility of patient management decisions. A doctor’s own reviewer may be able to make recommendations on treatment protocols that the doctor may not have appreciated originally. Photographs of the Patient Simple photographs of the actual patient are helpful for a number of reasons. Use a digital or 35mm camera and obtain 4x6 doubles; each doctor should put one photograph into his or her clinical file and the other into the insurance file (if there is one). This helps the clinician and the insurance clerk better remember
26 THE FORENSIC EXAMINER Winter 2005
a case at a glance. It is especially helpful for a coverage doctor to see who is who in a clinic full of patients. Supplemental pictures are also recommended if there are visible injuries and/or medical appliances such as neck braces or crutches in use. In addition to visually documenting these items, doctors should add the following language in the report: “See medically documenting photographs.” Clinicians should also keep on file a photocopy of a driver’s license or other ID to prove the patient’s identity. In rare cases, identity theft could snowball into a Board of Registration complaint. If the treating physician can document that he or she took reasonable steps to document that an individual was who he or she purported to be, then the practitioner will be able to withstand even a vigorous fraud challenge. Compliance Compliance works hand in glove with HIPAA regulations. All practitioners are now subject to federal regulations and standards together with federal penalties. Most state societies and doctor management organizations are urging their doctors to issue what is called a compliance policy for the office. Basically, this policy calls for a manual given to each staff member to include the essential compliance policy guidelines, a standard office policy, and HIPAA rules. The actual compliance aspect of the package states that a compliance officer be designated to enforce compliance issues. The primary responsibilities of the compliance officer would be as follows: • Overseeing and monitoring the implementation of the compliance program by making sure that services provided were clinically indicated, there was no purposeful overbilling or double billing, CPT and ICD-9 coding were correct, and no overt premeditated fraud is being foisted upon third party payers. • Establishing methods, such as periodic audits, to improve the practice’s
efficiency and quality of services and to reduce the practice’s vulnerability to fraud and abuse. • Periodically revising the compliance program in light of changes in the needs of the practice or changes in the law and in the policies and procedures of government and private payer health plans. • Developing training modules and training materials for the staff and/or leading frequent office meetings to discuss the issues. • Ensuring that all employees and physicians know and comply with pertinent federal and state statutes, regulations, and standards. • Investigating any report, allegation, or hint of unethical or improper business practices and remedying the situation if it exists. This is just a very brief overview. Each doctor should hasten to draft a compliance policy. Essentially, this is a written document that states that the office does not engage in fraud and has a system in place to continually check for errors, and that the designated compliance officer will remedy problems and issues as soon as they arise. For more information on this topic, practitioners should check with their state societies for guidance in setting this system up and properly maintaining it. Over-Utilization or Not? Doctors are often taken to task by IEs for the classic allegation of over-utilization. Over-utilization is defined as “Inappropriate or excessive use of medical services that add to health care costs” (Benico, Ltd., 2005). Over-utilization is in the eye of the beholder. Barring outright criminal behavior, what one IE may see as over-utilization is most likely seen by the treating doctor as a concerted clinical trial. The way to deal with this harsh allegation is for doctors to fully document their entire file, including each and every service and why it was selected. This may occasionally
require citing literature as a justification. In chiropractic, for example, intersegmental traction is often singled out as not having been justified in the literature; thus, it is labeled as an unnecessary therapy. However, there is much literature to establish this highly effective mode of therapeusis. Accordingly, a citation from the professional literature placed into the record is a good protective tactic. The practicing clinician should have appropriate literature and citations available to establish efficacy of treatment and treatment parameters. Additionally, outcome-based measures have been considered a fair and reasonable way to monitor the clinical experience with any patient. Disability questionnaires like the “Oswestry” and the “Roland Questionnaire” have worked nicely for clinicians for years. They help document a file and later rebut a challenge if need be. Patients should complete a patient affidavit with regard to ADL. The doctor should also consider using the simple analog pain scale along with the classic anatomical figurine drawing on which the patient is asked to mark and indicate pain locations. Some doctors utilize this method on re-exams, while others have a patient fill out an analog scale/figurine drawing on every patient encounter. Part II: Establishing the Credentials of the IE and Rebutting Specious Reports This section moves forward into the realm of defending a clinical case file in the event that a treating doctor is questioned by third party supplicants such as IEs. These techniques are from a proven, effective methodology to protect a clinician’s reputation and case file. Referencing specific literature on this is difficult due to the fact that, to the author’s knowledge, this article is the first of its kind in publication. There is a presumption by the authors that a given case file by any practitioner has been ethical and professionally handled and executed.
Curriculum Vitae After the treating doctor has done all he or she can do to document his or her case file to where it is clinically sound, there will still be the occasional IE who will find fault with the case at hand. The treating doctor must move forward with an aggressive offense aimed at taking the specious IE to task. The first step is to obtain the curriculum vitae (CV) of the insurance doctor. CVs are considered public domain information. Any inquiring party can access them. Inquiries can be made with the company that hires out the IE doctor. Make the request in writing (although a phone call can sometimes get the CV faxed directly to your office), and ask that the CV be faxed as soon as possible. Rarely is the CV request denied. Once the CV is in hand, a careful perusal of the document is urged. Some IEs pad their CVs with false credentialing. To find out what is true and what is not may take some investigative phone calling, but the effort is worthwhile. In one odd case in Massachusetts, a chiropractic IE claimed to be on staff at a hospital, to have earned two advanced degrees in neurology, to be the director of chiropractic services with an IME company, to have a private practice office in New Hampshire, and to be a forensic consultant at three other facilities. None this was true. When this kind of fabrication is revealed, by extension, any opinion he or she rendered becomes highly suspect and can be attacked in a stinging rebuttal. This type of discovery usually ends the credibility of the examiner right away and thus, any of the treating doctor’s services that may formerly have been called into question are usually reimbursed immediately. As a side note, all doctors of every discipline are urged to keep an accurate and up to date CV ready on their hard drive to be used as needed. In reality, most IEs are not well credentialed from the onset. Their postgraduate training is usually lacking, and
Winter 2005 THE FORENSIC EXAMINER 27
few have been granted a post-graduate degree or certificate. This may be the underlying cause of the falsification of credentials. The practitioner who has been challenged has every right to ascertain the IE’s standing to question the care and services the treating doctor has rendered. Back to IEs and X-rays Along these lines, the basic forensic investigation of the typical IE needs to start with nothing more than a simple phone call to his or her private office (if he or she even has a practice). It is usually ascertained that the IE does not own an x-ray, nor has he or she ever owned one. It is not unusual to find that the IE doesn’t even practice anymore. Rebuttals in this case would consist of commenting on the IE’s lack of x-ray skills and equipment and, if applicable, commenting on what you, the practitioner, found on the films you took that had a dispositive bearing on the case. Rehabilitation Methods Another example of a forensic challenge to an IE is the justification of isotonic rehab protocols on certain patients. One of the more popular protocols is the Zinovieff-Phase I. Often spectacular results spring from rehab on patients in which manipulative reductions had reached a plateau in effectiveness. Without exception, IE and peer review reports vacate methodology on this aspect of care and indicate that the rehab was not supported by documentation and naturally debarring the bills submitted. Often these reviewers do not have any post-graduate training in rehabilitation methods. Most of the reviewers don’t even practice the art of chiropractic. In Massachusetts, the Board of Registration Rules and Regulations states that no chiropractic specialties set any one chiropractor apart from another. While we grudgingly acknowledge this unfortunate regulatory reality, it still does not and should not prevent the
treating doctor from exposing an IE’s lack of training in a rebuttal, especially if the treating physician is a well-credentialed specialist in his or her particular field. Occasionally doctors have had their patients independently examined by very well credentialed orthopedic surgeons. This group of IEs usually renders far more fair and balanced opinions on patients than their chiropractic counterparts. The need to vigorously rebut these doctors is usually diminished to a large degree. Collecting IE Reports Practitioners should keep special files on each and every independent exam report they receive and keep a separate file on each IE who has written such a report reviewing their work. The strategy is that over time, a pattern of similarity in the comments, critiques, and financial cutting tendencies will emerge in those reports critiquing the treating doctor’s services. This can be extremely helpful should the treating doctor later need to rebut. (Should it be necessary to use this tactic, the practitioner must be careful to redact names of any patients other than the one referenced in the case in chief.) In one case, the authors of this article brought both the patient and the patient’s x-rays with them to a review. The IE (a DC) was nonplussed, yet made his opening statement that there was no doctor/patient relationship between he and the patient. The exam ensued and lasted 9 minutes, including the opening statement and a brief perusal of the x-rays the treating doctors brought with them. The IE’s x-ray review was perfunctory at best, akin to merely glancing at them to make sure they were actually x-rays and not vacation photos. In the IE’s report, which came through 2 weeks later, half of the services rendered were disavowed as being unnecessary and undocumented. The report also stated that the patient had no
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scoliosis. No mention was made of the IE’s “review” of the x-rays that were presented to him. Since the patient in this case has a rather profound scoliosis in the thoraco-lumbar spine, the doctors’ rebuttal that followed was scathing. Emphasized in this rebuttal was the fact that this IE always claimed that patients did not have scoliosis and that the IE states this in the same spot between all the other standard macros he uses in his word-processed reports, right along with the standard blurb that the treating doctor’s case file was not documented and care was not necessary. Needless to say, there was no defense for this appalling lack of credibility. The bills on this patient were paid in full. Exam Affidavit As most practitioners now know, many independent exams are shamefully brief. A proper exam simply cannot be performed in haste. All practitioners should have patients who are forced to attend these independent exams fill out an IE affidavit when they return to the practitioner’s office (see the IE affidavit sample). This affidavit, in the form of a questionnaire, asks penetrating questions about the patient’s encounter with the IE. Among the questions asked is “How long did the examination take?” Another is, “How much time did the examiner spend talking with you?” It is not uncommon for a patient to indicate that “5 minutes” were spent on the history taking and “5 minutes” for the exam. The patient “subscribes and swears to his/her statement under the pains and penalties of perjury.” This becomes a sworn legal statement by the patient, which can be very effective in augmenting a treating doctor’s rebuttal of an unfair report. In 5 minutes, an IE cannot possibly sufficiently ascertain a patient’s medical/chiropractic status to challenge the careful documentation of an appropriate treatment regime.
Commenting on Pathomechanics and Vitals This article is limited to neck and back issues. While extremity and internal issues may exist, the bulk of chiropractic complaints remain with the spine. Oddly, in the chiropractic arena, IEs virtually never perform a spinal exam during their assessments. It is incumbent for a chiropractic doctor to perform a spinal exam on a chiropractic patient. In this article, the authors use the term pathomechanics as a somewhat more descriptive term than subluxations, which is the traditional phrase used to describe misaligned vertebrae. The “pathology of mechanics” is exactly what the term pathomechanics means; that is what is appreciated in a properly performed spinal exam. In chiropractic, the majority of patients present for professional services on their spines. How, then, can chiropractic IEs ignore the spine as they do? The treating chiropractor’s reports, as well as the daily notes, are replete with data on the patient’s spine. Why then do the chiropractic IEs have no interest in examining the patient’s back? The chiropractic IE’s disinterest is perplexing. With this in mind, the treating doctor should question why the examiner didn’t examine or comment on the patient’s spinal area of complaint. In this same vein, IEs regularly fail to perform a truly comprehensive exam and often exclude blood pressure, height, or weight. This alone calls into question the IE’s credibility and casts doubt on adherence to state board regulations. These exams are incomplete and flawed and should be challenged. This, together with the usual failure to truly examine the spine for pathomechanics, leaves the IE’s report open to attack. Typically, the IE’s report speaks of muscle spasm or lack thereof, ROM, and whether the patient was complaining of pain that day. We touched on ROM earlier but it bears repeating again; most commonly the ROM is mentioned, and in the IE’s report the ranges are all
miraculously full, ending in 0s or 5s. This means that the ROM was simply eyeballed, which is unacceptable as per the AMA Guides. This flaw and others can easily be exploited. Waddell “Inorganic” Signs IEs as a group often invoke the so-called Waddell Signs to show that a patient is, at minimum, magnifying his or her symptoms or, at the most, an outright malingerer. The signs came into vogue about 24 years ago and have appeared on a regular basis from a wide gamut of IEs, both chiropractic and medical. To understand what these signs are about, one should understand Gordon Waddell, MD, the man who designed them. The authors of this article have read his book at length, chatted with Waddell online, and have the second edition of his landmark book The Back Pain Revolution in our possession. Dr. Waddell is a seasoned veteran of orthopedic surgery who has literally traveled the world researching what he calls a “20th century medical disaster:” back pain. He speaks very highly of chiropractic and physical therapy in his book and goes on to explain the true nature and genesis of the famous signs. In short, Waddell first developed a psychological thesis on behavioral symptoms in his own problem back clinic. The initial aim was to clarify assessment of nerve root problems and decisions about surgery. Next, a psychological approach was developed with regard to behavioral responses to examination. These then are the famous Waddell Signs that have been inappropriately co-opted by the IEs over the years to justify cost containment. Waddell carried out an exhaustive literature search and performed pilot studies to identify an appropriate group of signs to distinguish a patient’s behavior, rather than physical presentations, during an examination. Waddell was interested in the reactions that vary between patients and how people try to convey their condition to an examiner. A so-
called positive sign does not automatically mean the patient is a fraud. Many signs Waddell initially developed were discarded because they were either too unreliable or prone to observer bias. He tells us that even the final seven signs in use today are subject to that bias. This statement is key because the signs are basically completely subjective. Bear in mind that only IEs call these responses Waddell Signs; Waddell calls them “behavioral responses to examination.” Waddell cautions that too many examiners fall into the trap of trying to make judgments rather than dispassionate clinical observations. Waddell’s seven signs are as follows: Tenderness: 1.) superficial, 2.) nonanatomic; Simulation: 3.) axial loading, 4.) simulated rotation; Distraction: 5.) SLR; Regional: 6.) weakness, 7.) sensory disturbance. Waddell stresses, however, that in the following three situations the behavioral signs cannot be used: • With patients with possible serious spinal pathology or widespread neurology. Diagnostic triage must be carried out first. The behavioral signs are only inappropriate with regards to mechanical LBP and sciatica. • With patients over 60 years of age. The behavioral responses are normal for people in this age group. • With patients from ethnic minorities. There are wide cultural variations in pain behavior. Waddell only standardized his signs on Caucasian patients. Additionally, Waddell offered the following caveats about observing illness behavior, also known as the signs: • Again, always carry out diagnostic triage first. As Waddell so well states, diagnosis is the foundation of management and is based on clinical assessment. Thus, diagnostic triage consists of ascertaining the level of back pain in one of the following three cate-
Winter 2005 THE FORENSIC EXAMINER 29
gories: simple backache, nerve root pain, or possible serious spinal pathology. • Clinical observation of the illness behavior presumes careful technique so to avoid observer bias. • Isolated behavioral symptoms and signs are meaningless. Many perfectly normal people will display a single “sign.” Only multiple findings or several different kinds are significant. The practicing doctor should obtain a copy of Waddell’s book, The Back Pain Revolution, study it, and carry out a careful reading of the pertinent text. When confronting a negative IE report based on Waddell’s criteria, practitioners should first decide if their patient is part of an ethnic minority group or 60+ years of age. If so, the Waddell signs are rendered meaningless. Next, they should ascertain whether the IE performed diagnostic triage; the chances are slim that this occurred. Then, they should determine how many signs the IE is invoking, remembering that just one or a couple of scattered signs may be meaningless. By understanding these signs and what they were originally intended to reveal, the practicing doctor will easily be able to rebut IE attacks on a case that involves Waddell’s research. Accompanying the Patient to an Independent Exam The practitioner always has the option of accompanying the patient to the IE. In many jurisdictions there is considerable latitude, such that the patients may have the right to audiotape the exam, have an advocate present, and re-schedule the exam to a more convenient time. Also, family emergencies are always accommodated. For example, in Massachusetts, case law has established the right for a patient to audiotape the exam if English is not the patient’s primary language and all parties agree to be taped. There is no known case law on whether a patient “advocate” can be present at an exam. However, the Chiro-
practic Board itself has stated that it is the patient’s “right” to have an advocate present during the exam. Statutory law allows for re-scheduling of the exam to a convenient time for the patient and advocate. Thus, the patient doesn’t absolutely have to go to the first scheduled IE when it is scheduled. So, do IEs allow the treating doctors to accompany the patient to an exam? Yes and no; it depends on the personality quirks of the examiner. Some will allow an advocate and some will not. Some will allow audiotaping and some will not. Some will allow the treating doctor to attend and some will not. No IEs will allow the session to be videotaped. Regrettably, there is no case or statutory law that allows for videotaping of the IE encounter. The practicing doctor should reschedule the IE to a convenient time for him or herself and the patient and act as the patient’s witness. The following are additional suggestions for the treating doctor “witness”: • Be polite. • Be respectful. • Bring a tape recorder, spare batteries, and case law to show an uncooperative examiner. • Bring pencils and paper to take notes. • Mark the time you and the patient showed up at the facility and the time the exam started and ended. • Differentiate the timeline of the exam between history taking and actual hands-on examining. • Bring x-rays if possible. Do not do the following: • Say a word other than salutations. • Correct the examiner if he or she forgets to do part of the exam. • Correct the examiner if he or she is doing the wrong exam (such as examining the wrong area). • Correct the examiner if he or she is performing an aspect of the exam improperly. • Talk with the patient during the
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exam (if at all possible). After the IE has taken place, the doctor should have the patient return to his or her office to fill out the exam affidavit. The treating doctor should compose an unofficial report of what transpired at the insurance exam. The doctor might even dictate such a report en route back to the office from the exam. That report should remain dormant until the treating doctor views the IE’s report of the same event. Almost inevitably, a rebuttal must be prepared. The clinician’s contemporaneous, unofficial report on the encounter should then be integrated with a more complete rebuttal composed after the IE report is in hand. For instance, recall our previous example of the IE who looked at some X-rays of a patient he was “examining” and failed to notice the frank dextro scoliosis present. That IE also failed to even mention that he viewed the patient’s X-rays in his IE report. This is an excellent example of how what the visiting doctor actually witnessed at the exam, combined with what he read later in the IE’s report, was integrated into a well documented, bullet proof rebuttal that completely discredited the sub-standard IE exam and its equally sub-standard report. (Of course, this statement assumes the IE report is not valid.) Clinicians should not dismiss the fair IEs and reports that can occur. There will be fair and balanced IEs and subsequent reports that may very well support the treatment rendered and even recommend more treatment. In that event, we recommend leaving well enough alone. Finally, if the practitioner does go to an IE, there may be the occasion in which the IE will refuse to perform the exam. That is not a problem. We recommend that the clinician and the patient simply turn around and leave. We further recommend that when the treating doctor returns to his or her office, he or she should fully document that the patient was present at the appointed
time and place for his or her exam, the IE was present also, and the IE voluntarily refused to perform the exam. Most state law includes language to the effect that if the patient fails to show for an IE more than twice, the entire case file can be disavowed for reimbursement. Make sure that it is documented that the patient did in fact appear for the exam at the appointed time and place, that the IE was there as well, and that the examiner opted not to perform the insurance examination. Rebuttals Throughout this article, rebutting the IE attacks on doctors’ case files has been discussed. There is a good chance that there will come a time to put all of this information to use. After the treatments rendered, the careful case documentation, the second opinions (if obtained), the collating of data on the IE, and the careful review of an IE report, the rebuttal of an IE attack ensues. Simply put, practitioners should intelligently, cogently, and professionally rebut the attacks that may come against their case files from IEs typically working for a third party payer. Insurance companies keep track of doctors. If a practitioner gets a reputation as a pushover who does not fight for his or her own bills, he or she will regularly get cut on them. Doctors should state that they have read the IE report and that they want to make a few comments on it. The format each chooses is optional, such as the bulleted sequences, arrowheads, and so forth to draw attention to important points. Sometimes a simple paragraph or two is all that is needed. Bear in mind, if doctors use the techniques and ideas presented in this article, their rebuttals will be easy to read, logically sequenced, and hopefully virtually “bullet-proof.” IE reports occasionally attack practitioners by either exaggerating events, accusing the practitioner of over-utilization, accusing the practitioner of fraud,
accusing the practitioner of making an inappropriate diagnosis, or suggesting that the patient should not have even started treatment with the practitioner. We suggest that the treating physician stand up for his or her case and defend it vigorously. This goes a long way in establishing a respectable, professional name in the community and in supporting the care that is rendered. One final word of advice to clinicians is to keep rebuttals reasonably short. No more than four pages are ever needed. Usually two or three pages will be all it takes for doctors to say what needs to be said. Conclusion Meticulously documenting a case file has many advantages: it keeps the file professionally organized for the sake of the patient, the treating doctor, a coverage doctor, or referral doctor; it helps prevent malpractice; it helps make the documents in the file logical and compelling enough for reimbursement; and it provides enough professional documentation to be able to rebut overzealous IE attacks, which in turn also helps get the case reimbursed. Doctors owe it to their patients and to one another to stand up for their discipline, their principles, and their practices. Practitioners now have a highly effective strategy to pull a case file together in a logic-based, outcomemeasured format and defend it from virtually any type of challenge. Works Consulted Andersson, G. (Ed.). (2001). Guides to the evaluation of permanent impairment (5th ed.). Chicago: AMA Press. Bates, B., Bickley, L., & Hoekelman, R. (1995). A guide to physical examination and history taking (6th ed.). Philadelphia, PA: J. B. Lippincott Co. Benico, Ltd. (2005). Insurance. Retrieved from http://www.benico.com Bushong, S. (2001). Radiologic science for technologists (7th ed.). Philadelphia, PA: Mosby. Department of Industrial Relations—California. (2005). Neck problems. Retrieved
from http://www.dir.ca.gov/ime/NECK.html Foreman, S., & Croft, A. (2001). Whiplash injuries: The cervical acceleration/deceleration syndrome (3rd ed.). Philadelphia, PA: Lippincott Williams & Wilkens. Jackson, R. (1977). The cervical syndrome (4th ed.). Springfield, IL: Charles C. Thomas. Massachusetts. (2005). Codes of Massachusetts regulation for chiropractors. Chapter 13, 112, subsection CMR 233. Retrieved from www.mass.gov Miller, K., & Kinkel, S. (2004). Malpractice: The first visit can make or break you. Journal of the American Chiropractic Association, 41(4), 44-47. Office of Minority Health. (2000). National standards on culturally and linguistically appropriate services on health care. Federal Register, 65(247), 80865-80879. Retrieved from http://www.omhre.gov/clas Randall, M., Kachur, K., & Hall, D. (Ed.). (2004). Ingenix: Coding guide for chiropractic services. Eden Prairie, MN: St. Anthony Publishing. Rook, J., Rosenquist, S., Helffenstein, D., Sokol, R., & Sol, N. (2003). Whiplash injuries. Burlington, MA: ButterworthHeinemann. Taylor, J., Clopton, P., Bosch, E., Miller, K., & Marcelis, S. (1995). Interpretation of abnormal lumbosacral spine radiographs. Spine, 20(10), 1147-1153. Teasell, R., & Shapiro, A. (Eds.). (1993). Cervical flexion-extension/whiplash injuries: Spine-state of the art reviews, 7(3). Philadelphia, PA: Hanley & Belfus, Inc. Waddell, G. (2004). The back pain revolution (2nd ed.). London, England: ChurchillLivingstone. Walsh, T. R., Weinstein, J. N., Spratt, K. F., Lehmann, T. R., Aprill, C., & Sayre, H. (1990). Lumbar discography in normal subjects. A controlled, prospective study. American Journal of Bone and Joint Surgery, 72(7): 1081-1088. White, A., & Panjabi, M. (1978). Clinical biomechanics of the spine. Philadelphia, PA: J. B. Lippincott Co. Yokum, T., & Rowe, L. (1996). Essentials of skeletal radiology (2nd ed.). Philadelphia, PA: Lippincott Williams & Wilkens.
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About the Authors John J. Haberstroh, DC, DABCN, DACAN, FACFEI, DABFE, CMI-V, is a private practitioner in Somerville and Boston, Massachusetts. He is a Diplomate of the American Board of Chiropractic Neurology and the American Chiropractic Academy of Neurology, a Diplomate of the American Board of Forensic Examiners, a Fellow in the American College of Forensic Examiners, a Certified Medical InvestigatorLevel 5, and a Certified Spinal Trauma/Sports Physician/Rehab. Readers may visit his website at www.bostonspineclinics.com.
Jack R. Henry, DC, DACBR, is a private radiology interpretation practitioner in South Easton, Massachusetts. He is a Diplomate of the American Chiropractic Board of Radiology and a Certified Chiropractic Sports Physician. Readers may contact him by writing to Jhenry@spinalimaging.com. Kevin J. Mulhern, DC, is a private practitioner in Waltham and Boston, Massachusetts. Readers may visit his website at www.drmulhurn.com.
Note: This article makes reference to several addenda forms. Due to space limitations these forms are not included here. However, you may access them by visiting www.acfei.com. (Click “Online CE” and then locate this article. The links to download the forms will be listed directly below the article.) Earn CE Credit To earn CE credit, complete the exam for this article on page 64 or complete the exam online at www.acfei.com (select “Online CE”).
While Gacy’s firm was remodeling a coming from Gacy’s house was not the Killer Clown Leaves pharmacy, an employee at the pharmacy, smell of sewage, but of decaying dead Mass Grave of Skeletal 15-year-old Robert Piest, disappeared. bodies. Remains Gacy was the last known person to see Gacy described his brutal crimes in by Leann Long In December of 1978, things were going well for John Wayne Gacy. He owned a highly esteemed construction firm and was well known and respected in the community for his volunteer work. One of Gacy’s charitable services was dressing up as Pogo the Clown and visiting the local children’s hospital. If any of the children in the hospital ever shivered at the sight of Pogo’s, sinister black eyes, creepy white flesh, and unsettling crimson smile, their spinechilling fears were not without reason. The eerie dark secrets and murderous habits of the killer clown were about to be exposed.
Piest. Investigators were able to obtain a search warrant after a background check on Gacy revealed he had served prison time for committing sodomy on a teenage boy. During the raid of Gacy’s house, investigators found little evidence but did notice a foul smell they believed to be caused by a sewage problem. However, a couple of items the investigators seized from the house turned out to be extremely valuable. A ring they confiscated belonged to a boy who had disappeared a year earlier, and a receipt for film they found had been given to Piest by a coworker the day of Piest’s disappearance. Before investigators could return to Gacy’s house to perform another search, Gacy turned himself in to the authorities, confessing to burying 29 bodies under his house and, due to lack of room in his underground graveyard, dumping 4 bodies in a nearby river. The investigators suddenly realized that the foul smell
detail to authorities, explaining how he would often trick his victims into putting on what he told them were fake clown handcuffs. Once they were restrained he frequently tied ropes around his victims’ necks to strangle them or stuffed their underwear down their throats to suffocate them and raped them as they died. Police eventually recovered all 29 bodies buried underneath Gacy’s home and the four additional bodies that were dumped in a river. Gacy refused to reveal to authorities the names of any of his victims, so when 14 of the bodies still remained unidentified, well-known forensic anthropologist Clyde Snow took the case. Many of the bodies were buried on top of each other, so Snow’s first task was to separate and arrange the bones to make sure each bone was placed with the correct remains. After all the bones were sorted, Snow was able to confirm that all Continued on page 38
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Opinion Piece: Is an Independent Medical Evaluation Independent? By Michael A. Baer, PhD,, FACFEI, DABPS, D A B F E , DABFM, CHSIII, CRS, FAPA, Master Therapist
For some time now I have experienced increasing concern about the independence of those of us who perform independent medical evaluations (IMEs). For psychological specialists like myself, IMEs are often referred to as psychiatric or psychological examinations. What concerns me is the issue of independence and bias. When we know who is writing the check, how unbiased are we? In fairness, when conducting IMEs I should not know whether I am working for the insurer or the insured. I believe that even the fairest of us experiences unconscious pressure to report the results of these examinations in favor of our employer. The reason is undeniable: we want to be hired again. W h a t about the professional who always works for the defense or the plaintiff in such examinations? Is there an unconscious process going on in those situations? Why do so many defense-hired psychologists and psychiatrists find malingering, and so many professionals hired by plaintiffs find damage? It is alarming to me that there are experts performing IMEs only for the defense or only for the plaintiff ’s attorney. Should this be allowed? I think not, as it encourages bias. In a sense, when you only work for one side you have already declared your position. Whenever you are aware of who is paying you there is built in pressure to please that employer. It is easy to become skewed, as this is an adversarial situation. Why should we be aware of who we are working for when we perform an IME for workers’ compensation, motor vehicle accidents, or even in a court room? In
these situations it becomes a battle of the experts. Who has the best stage presence, who appears to the jury to be more eloquent, who is witty, and who knows best how to work the jury? I would like to suggest that this process is a waste of time and money and doesn’t get us any closer to the truth. It lacks good science. It should be substituted for a double-blind system. The system should have all the names of the professionals who perform IMEs, and these professionals should be chosen on a rotating basis by the court or by an independent office. The small cost would be divided equally between the plaintiff and the defense. The experts would be chosen by the specialty area requested. The rules of conducting the IME would otherwise apply. The results would be submitted to both parties. The results could be binding with few exceptions. In order for expert participants to learn this system, the county medical society or the court system could sponsor and provide a 3-hour class for continuing education credit that participants would attend to learn the new system. Participant agencies, i.e., workers’ compensation, would also have a role in providing guidance. A small common office could be set up through one of the involved agencies where requests would be made for IMEs. These requests could be made by attorneys, industry, insurance carriers, and others for a small fee to run the office. Here the appropriate name of the expert who is needed would be pulled up out of a revolving file. If the expert was unable to take the case for whatever reason, the next name would be selected. The examiner would be supplied with all available records but would not be told for whom he or she is working. In addition to relieving the examining expert of the pressure to please his or her employer, this new method would also accomplish another feat. We would no longer have a client who would go into the examination with the knowledge that he or she would be seeing the expert for the other side. This would make it more likely that we would acquire a balanced performance from the client. The client will
not be facing an enemy or an ally. He or she will be facing a fair expert without a built-in bias. Under this system the expert’s fee would be decided in advance. It would be recorded in the examiner’s file depending on rates that are established or negotiated. It is unlikely that many experts would be eliminated. They could withdraw for reasons of familiarity with the client or for having seen the client in another capacity. The other problem that would be eliminated is the growing issue of IME companies putting pressure on examiners to produce a document that supports the insurance company that hires them. These companies are not bashful about telling the expert what revisions they want made in a report to favor them. I hear about this pressure increasingly often from colleagues. I am sure that it also occurs in the case of attorneys. The expert is only a hired gun when he or she is bought and paid for by either side. We must devise a system that allows the expert to complete his or her assigned task without outside pressure. We need to remove the report of the expert from the advocacy portion of the battle. The role we play currently forces us to become involved in winning or losing. We are not a part of the defense or the plaintiff ’s team. We are supposed to be offering an expert opinion about some aspect of a patient’s condition supported by scientific methods. I present these thoughts for your consideration. Perhaps they will be viewed as heuristic. It is not the last word but a starting point. Michael A. Baer, PhD, is Vice Chair of the American College of Forensic Examiners Institute and is a Fellow in the association. He is a Diplomate of the American Board Psychological Specialties, the American Board of Forensic Examiners, and the American Board of Forensic Medicine. He is also a Master Therapist, Certified Relationship Specialist, and Fellow and Chair of the American Psychotherapy Association.
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34 THE FORENSIC EXAMINER Winter 2005
By Horacio E. Solla, PhD
This article is approved by the following for continuing education credit: ACFEI provides this continuing education credit for Diplomates. ACFEI provides this continuing education credit for Certified Medical Investigators.
Key Words: human remains, forensic anthropology cases, identification methods, Montevideo’s Judicial Morgue, Uruguay
Abstract This article presents the first quantitative analysis of the forensic anthropology cases that occurred in Uruguay from 1950 to 2001. This article shows the recent advances in this new branch of forensic science in Uruguay. Forensic anthropology cases have rapidly increased in Uruguay over the years—from only 1 case in 1950 to 44 cases in 2001. When human skeletal remains were found in the past they were analyzed by the local coroner who lacked experience in these types of cases and in anthropological techniques. Therefore, in the majority of cases the skeletal remains were not identified. As the need to solve these cases became increasingly pressing, in January of 1992, the Forensic Anthropology Laboratory at the Judicial Morgue of Montevideo was created. This article studies a total of 529 forensic anthropology cases that were undertaken at the Judicial Morgue of Montevideo between 1950 and 2001. In each case the
remains in question were analyzed to see if they were successfully used to identify the deceased person’s sex, race, stature, and age at the time of death. Whether a positive identification was made as a result of the forensic investigation was also analyzed. The study is divided into two parts: the first part represents cases occurring from 1950 to 1991, and the second part represents cases occurring from 1992 to 2001. In the first period of analysis, starting in 1950, there were no professional forensic anthropologists available in Uruguay. Due to this limitation, pathologists without any experience in these types of cases conducted the preliminary studies. In the second period of analysis, starting in 1992, the Laboratory of Forensic Anthropology was operating at the Judicial Morgue of Montevideo City. Professional forensic anthropologists conducted these cases and had great results.
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Figure 1. This 80-year-old woman’s remains were identified using facial reproduction.
The results obtained from the two analyzed courses of time are also compared. The latest anthropological techniques have yielded a high percentage of positive identifications, and have highly contributed to solving crimes and positively identifying human skeletal remains. Forensic Anthropology A person’s identity is necessary in life; identity must also be established after death.1 There are legal, emotional, economic, and in several cases political reasons why it is necessary to establish the identity of a person who has died.2 An identification may take place on a living person, a cadaver, or the skeletal remains of a person. Forensic anthropology focuses on the identification of skeletal remains. Identification of human skeletal remains in a legal context is extremely useful in cases in which the victims are mutilated, burned, or in a state of advanced decomposition.3 Other experts in the medicolegal field work on identifications, but forensic anthropologists offer a unique perspective on cases in which an identification cannot be made using traditional methods like fingerprint analysis, dental and medical records, or visual recognition of the cadaver.4 Through the study and analysis of skeletal remains, the forensic anthropologist may estimate sex, age at the time of death, stature, racial affinity, time since death, manner of death, and any unique characteristics of a victim that will help establish a positive identification.5 Forensic anthropology is a scientific discipline that has grown rapidly in the forensic science field over the few last years.6
Today, forensic anthropology is an integral part of many forensic teams around the world and may be defined as: “...the study and identification of human skeletal remains in a legal context...”7 According to Lawrence Angel, the term forensic anthropology originated in the 1970s and is used today among forensic scientists around the world.8 Forensic anthropologists confront several types of problems depending on each case, but according to Kathleen Reichs, all cases may essentially be classified in two types: the first type is the re-collection and later analysis of unknown human skeletal remains; the second type is when the remains of missing people are found.9 The first type of case is the most difficult to solve because there is nothing with which to compare the human skeletal remains (i.e., the remains can’t be compared to the records of an actual person). In the second type of case the forensic anthropologist’s work is more satisfactory because there are several databases of missing persons; the forensic anthropologist can compare the records of the people in the databases to the unknown human remains that are being investigated. In these cases the forensic anthropologist is a consultant working on a forensic team with coroners, medical examiners, odontologists, toxicologists, and law enforcement agents.10 Analysis of Forensic Anthropology Cases in Uruguay In Uruguay, medico-legal studies are assigned to the Forensic Medicine Department by the Forensic Institute at Montevideo City. Autopsies and other types of
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forensic studies, such as toxicological and anthropological, are carried out at the Judicial Morgue of Montevideo City, where at present there are two pathologists, seven coroners, one forensic anthropologist, one forensic odontologist, one radiologist, seven toxicologists, and one forensic photographer working together.11 Since 1992, the Laboratory of Forensic Anthropology has been assisted by the coroner and legal authorities in several criminal cases in which the study and identification of human skeletal remains was needed.12 Generally, forensic anthropology cases are submitted to forensic anthropologists by coroners and legal authorities. These types of cases include skeletonized remains, burned bodies, decomposed human remains, and fresh bodies. When a positive identification is made on the basis of a forensic anthropologist’s studies, the coroner signs the death certificate. Therefore, the forensic anthropologist is an official consultant of the Forensic Medicine Department at Montevideo City.13 There were 529 forensic anthropology cases from 1950 to 2001; according to the judicial forensic anthropology files found at the Judicial Morgue of Montevideo City, the oldest forensic anthropology file was recorded in 1950. This period is divided into two parts: the first part, which includes 225 cases, starts in 1950 and ends in 1991; the second part, which includes 304 cases, is from 1992 to 2001 and includes all forensic anthropology files recorded since the Forensic Anthropology Services department was established at the Judicial Morgue of Montevideo City in January of 1992. In the majority of cases the remains were found by police or civilians in forests, fields, parks, lakes, or rivers. Some were found in burned cars, on highways, or in abandoned houses. All of the forensic anthropology cases were analyzed to determine the number of persons, age at time of death, sex, location where the remains were found, stage of decomposition of the remains (fresh, advanced decomposed, burned, or skeletonized), and whether a positive identification was made. Digital video superposition and dental
mined for 49% of the total sample. Of these 135 persons, 68% were males and 32% were females. No techniques of identification were used, so no positive identifications were made for this period. In general, a majority of the forensic anthropology cases from this period of time did not have enough relevant anthropological data to be further analyzed, especially the cases from the 1950s and 1960s. Figure 2: An example of an identification made using computer-assisted digital video-superposition.
and facial reproductions were used for identification purposes. The study of the facial surface has always been of high interest to forensic anthropologists when identifying human skulls.14 The reconstruction of the face from the skull and the video-superposition of a photograph over the skull is a common method of identification used by forensic anthropologists around the world.15 It has been used in several well-known cases, such as the identification of the nazi war criminal Joseph Mengele in Brazil.16 The scientific principles of this method were very well described in the specialized literature.17 Together with other methods, the comparisons by digital video-superposition assisted by computers were the most useful methods used in identifying human remains in Uruguay. From the second course of time analyzed (1992-2001) a total of 70 cases were solved and identified using comparisons by digital video-superposition assisted by computers, and 2 cases were identified using facial reproductions.18 Figure 1 shows a reproduction facial case in which a black woman of 80 years, born in Rivera City, about 500 km from Montevideo City, could be identified and her remains delivered to her relatives. An example of identification by digital video-superimposition is shown in figure 2. For the estimation of the age at death, the degree of external cranial suture closure19 is used and provides good results when used in conjunction with other techniques developed for the ribs, pubic sinfisis, and the auricular surface of the ileon.21 The percentage of positive identifica-
tions may vary depending on several factors, but in Uruguay the percentages of positive identifications depend on the following factors: • Usually law enforcement agents and the police who are the first to arrive at the scene of the remains don’t have any knowledge about what is relevant data and what evidence should be obtained to positively identify a person. • Positive identifications are more difficult to make when there is not a report of missing persons. All identification methods require that the remains be compared against something. • Ante-morten dental records are very difficult to obtain in Uruguay because there is no obligation for odontologists to keep files of their patients. Results of the First Period of Analysis (1950-1991) A total of 225 forensic anthropology cases were found in the Montevideo Judicial Morgue’s files for the first period of analysis. The cases increased from 1 in 1950 to 20 in 1991 and averaged 5.4 cases per year. About 85% of the cases from this period came from Montevideo State (the most populated of the 19 states in Uruguay, with almost 2 million people), and only 15% were from the rest of the country. About 85% of the forensic anthropology cases correspond to skeletonized remains; another 3% were burned; 6% were in advanced stages of decomposition; 2.2% were fresh bodies; and 3.8% were animal skeletal remains. It was possible to estimate the age at the time of death in only 39% of the cases. The sex was deter-
Results from the Second Period of Analysis (1992-2001) A total of 304 cases were analyzed in the second period corresponding to 390 persons and 13 fetus remains, which were excluded from this analysis. There were 14 cases from 1992 and 44 cases from 2001, with an average of 30.4 cases per year. The year 1996 had the most cases with 46. Only 58.6% of the forensic anthropology cases came from Montevideo State, and the remaining states represented 41.1% of the cases. In this sample of forensic anthropology cases, 66% were skeletonized remains, 17% were remains of individuals in advanced stages of decomposition, 6% were burned remains, 6% were fresh bodies, and the last 5% were animal skeletal remains. A total of 304 forensic anthropology cases were analyzed with a total of 390 persons (some cases involved multiple persons). In 90% of the cases the age at the time of death could be estimated. The sex was successfully determined in about 95% of the cases; males represented 71% of the remains identified and females represented 29% of the examined remains. In 5% of the cases sex could not be determined due to poorly preserved remains or because there were insufficient remains to determine sex. Positive identifications were made for about 24% of the cases. Comparison of Results The average number of cases per year increased dramatically in the second period, with an average of 5.4 cases per year in the first period and an average of 30.4 cases per year in the second period, when the Forensic Anthropology Laboratory at the Judicial Morgue of Montevideo was established—an increase of 563%. There
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was also a great increase in the number of cases outside of Montevideo. In the first period of analysis only 15% of the cases came from outside Montevideo State, while in the second period 41.4% of the total of cases were from outside states. Although females represent more than half the population in Uruguay, they only represented 32% of the total of number of persons analyzed in the first period and 29% of the second period. In the first period, only 49% of the remains were identifiable as male or female, while in the second period the sex of the remains was identifiable in 95% of the cases. In the first period of analysis, age at time of death was identified in only 39% of the cases, while
in the second period, age at time of death was identified in 90% of the cases. No positive identifications were made in the first period of analysis because no identification techniques were used, but in the second period positive identifications were made in 24% of the cases. This comparison of results confirms that the establishment of the Forensic Anthropology Laboratory at the Judicial Morgue of Montevideo has vastly enhanced the scientific community’s ability to identify skeletal remains in Uruguay. Conclusion Forensic anthropology contributions to the Uruguayan medico-legal system have
increased in the last few years. The number of cases in which positive identifications have been reached is similar to those of European countries and the United States. It should be remarked that according to actual tendencies, forensic anthropology cases are increasing. Among the reasons that explain this increase are the following: • The creation of the Forensic Anthropology Laboratory at the Judicial Morgue of Montevideo, which made it easier for medical examiners and coroners to contact the resident forensic anthropologist when needed. • The creation of a full time Resident Forensic Anthropologist position at the
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of Gacy’s victims were Caucasian males in their teens or early 20s. How did he come to these conclusions? Sex is determined by examining the pelvic bones, skulls, and weight of all of the bones. The male pelvic bone is typically narrower than the female pelvic bone, certain features of the male skull are larger, and the bones of a male tend to be heavier than the bones of a female (Ramsland, 2005). The age of skeletal remains is identified in young people by the length of their bones, the extent of fusion of the caps on the ends of long bones, and the status of teeth. For remains of individuals over the age of 20 other methods are used, such as examining the pitting on the fourth rib, which allows a forensic anthropologist to determine age within a 2-year range (Sullivan, 1998). Determining race, which is becoming increasingly difficult due to racial mixing, involves examining facial features on a skull. One of the major variations in facial structures is that Caucasians’ nose ridges are narrower than other races’ nose ridges (Ramsland, 2005). After determining the sex, age, and race of each set of remains, Snow now needed to identify these young men. He made a chart for each skull listing 35
characteristics that he could compare with missing-person reports. He compared the skeletons to photographs, descriptions, x-rays, etc. (Valentine, 2000). In one instance, Snow determined that the remains were from a lefthanded young man, 5'11", who had suffered from an injury to the head and had broken his left arm. Using this data he was able positively identify the skeleton as one of the missing persons (Ramsland, 2005). After a year of work on the case, Snow had only made five positive identifications. He the brought in Betty Gatliff, a sculptress who used modeling clay, prosthetic eyes, and wigs matching any hairs found to recreate the remaining unidentified victims. Over time, anatomists have developed general data about the tissue depth covering the skull and facial bones based on an individual’s race, sex, and age. (Valentine, 2000). Gatliff was able to use this science to form the clay over the skeletal shapes and help her decipher how the mouth and cheeks of the victims would have appeared. She used any remains of cartilage to determine the shapes of noses (Ramsland, 2005). Pictures of Gatliff ’s models were distributed to the public, but unfortunate-
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ly, if anyone recognized the photos, they did not come forward. Nine of the victims remain unidentified. Gacy spent 14 years in prison before being executed in 1994. He spent his time in prison completing oil paintings, largely of clowns, including a disturbing painting of the skull of a clown. References Lohr, D. (2005). Boy killer: John Wayne Gacy. Crime Magazine: An Encyclopedia of Crime. Retrieved September 21, 2005, from http://crimemagazine.com/boykillergacy.htm Ramsland, K. (2005). Forensic Anthropology. Court TV’s Crime Library. Retrieved September 21, 2005 from http://www .crimelibrary.com/criminal_mind/forensic/ anthropology Sullivan, E. (1998). If these bones could speak: Identifying skeletal remains. UAB Magazine. Retrieved September 21, 2005 from http://main.uab.edu/show.asp?durki=45647 Valentine, C. A. (2000). How the Pros Identify Corpses. Public Action, Inc. Retrieved September 21, 2005, from http://www.publicaction.com/SkyWriter/WacoMuseum/death/ page/d_id1.html
Judicial Morgue of Montevideo City. • The ability to have a trained forensic anthropologist working in a forensic team with medical examiners, coroners, odontologists, radiologists, and toxicologists. • A better knowledge of the scope of this modern branch of forensic science by the medico-legal system as a whole. • The high percentage of positive identifications carried out by the Forensic Anthropology Laboratory from 19922001. Today, forensic anthropology has been integrated into forensic teams in the majority of countries in the world, and the specialty is working its way into medicolegal systems around the world as well. Scientific literature has described numerous times in which forensic anthropology has solved crimes or identified skeletal remains. Clearly it is important to have a well-trained forensic anthropologist available when human skeletal remains are found and a positive identification must be made. The number of forensic anthropology cases in Uruguay has increased over the last few years, and hopefully, in future cases, there will be an even higher percentage of positive identifications.
Endnotes 1. Horacio E. Solla, Antropologia Forense: Estudio de Casos (Montevideo, Uruguay: EPPAL, 1994) 10-11. 2. Horacio E. Solla and Mehemet Yasar Iscan, “Skeletal Remains of Dr. Eugenio Antonio Berrios Sagredo,” Forensic Science International 116, no. 2-3 (2001): 201-211. 3. Kathleen J. Reichs, Forensic Osteology: Advances in the Identification of Human Remains (Springfield, IL: Charles C. Thomas, 1984) 15. 4. Ted A. Rathbun and Jane E. Buikstra, Human Identification: Case Studies in Forensic Anthropology (Springfield, IL, Charles C. Thomas, 1984) 5. 5. Robert B. Pickering and David C. Bachman, The Use of the Forensic Anthropology (Boca Raton, FL: CRC Press, 1997) 1-6. 6. M. Y. Iscan, “Rise of Forensic Anthropology. Yearbook of Physical Anthropology,” in Introduction to Forensic Sciences, ed. W. G. Eckert (Boca Raton, FL: CRC Press, 1997) 1-6. 7. United States Department of Justice, “International Criminal Investigative Assis-
tance Training Program (ICITAP),” in Surveys of Basic Investigative Techniques (Washington, D.C.: Miranda Associates, 1988) 1. 8. Lawrence J. Angel, “The Forensic Anthropology Examination,” The Pathologist 37, no. 5: 49-56. 9. Kathleen Reichs, Forensic Osteology: Advances in the Identification of Human Remains (Springfield, IL: Charles C. Thomas, 1986). 10. Horatio E. Solla, “La Antropologia Forense,” Revista MIDU 3, no. 12 (1991): 34. 11. Lorenzo Schiappapietra, “Conceptos Sobre la Organizacion y Funcionamiento de la Justicia: Aspectos Generales Sobre la Justicia Penal y Civil,” in Medicina Legal, Officina del Libro (Montevideo, Uruguay: Asociacion de Estudiantes de Medicina, Facultad de Medicina, 1995) 27-39. 12. Horatio E. Solla, Antropologia Forense: Estudio de Casos (Montevideo, Uruguay: Ediciones Populares Para America Latina, 1994). 13. Horacio E. Solla, “Las Reproducciones Faciales Como Metodo de Identificacion,” Revista MIDU 4, no. 15 (1992): 42-45. 14. W. M. Krogman and M. Y. Iscan, The Human Skeleton in Forensic Medicine (Springfield, IL: Charles C. Thomas, 1986). 15. M. Y. Iscan and R. P. Helmer, ed., Forensic Analysis of the Skull: Craniofacial Analysis, Reconstruction, and Identification (New York, NY: John Wiley, 1993). 16. R. Helmer, “Identifizierung der Leichenuberreste des Josef Mengele,” Archives Kriminology 177 (1986): 130-144. 17. M. Yoshino, H. Matsuda, S. Kubota, K. Imaizumi, S. Miyasaka, and S. Seta, “Computer-Assisted Skull Identification System Using Video Superimposition,” Forensic Science International 90, no. 3 (1997): 231-244. 18. W. M. Krogman and M. Y. Iscan, The Human Skeleton in Forensic Medicine (Springfield, IL: Charles C. Thomas, 1986). 19. T. W. Todd, and D. W. Lyon, Jr., “Ectocranial Suture Closure, Its Progress and Age Relationship. Part 1. Adult Males of White Stock,” American Journal of Physical Anthropology 7 (1924): 325-384. 20. Horacio E. Solla, “Un Nuevo Metodo Para la Determinacion de la Edad Anagrafica en Restos Oseos Humanos,” in Antropologia Biologica: Revista Internacional de Biologia de Poblaciones 2 (1994): 1-13. 21. J. S. Johnson, “A Comparison of Age Estimation Using Discriminant Function Analysis and Some Other Age Estimations of Unknown Skulls,” Journal of Anatomy 121 (1976): 475-484. 22. C. C. Snow, “Equations for Estimating Age at Death from the Pubic Symphysis: A
Modification of the McKern-Stewart Method,” Journal of Forensic Science 28 (1983): 864-870. 23. H. Soto, R. Castellanos, and L. R. Toribio, “Estudio Metrico del Canal Medular del Humero como Indicador de la Edad,” in Estudios de Antropologia Biologia Mexico City, Mexico: Universidad Nacional Autonoma de Mexico, 1989) 143-148.
About the Author Horacio E. Solla, PhD, received his graduate degree in anthropological sciences and his postgraduate degree in forensic anthropology from the Republic University in Uruguay. He was included in the “2000 Outstanding Scholars of the 21st Century” (First Edition); this honor was bestowed for his outstanding contributions to the field of forensic anthropology in Uruguay and in recognition of his being a founder of forensic anthropology in that country. Dr. Solla has published more than 50 scientific papers and three books. He is a member of the American College of Forensic Examiners, the Uruguayan Society of Forensic Sciences, the Uruguayan Society of the History of Medicine, the American Academy of Forensic Sciences, and the Spanish College of Forensic Experts, among others. He was curator at the National Museum of Anthropology in Uruguay from 1990 to 1992, assistant professor of physical anthropology at the University of the Republic, Montevideo, from 1989 to 1995, and forensic anthropologist at the National Institute of Criminology from 1992 to 1995. Dr. Solla currently works as a forensic anthropologist at the Judicial Morgue of Montevideo City in Uruguay, where to date he has solved more than 430 forensic anthropology cases and identified the skeletal remains of more than 100 missing persons.
Earn CE Credit To earn CE credit, complete the exam for this article on page 64 or complete the exam online at www.acfei.com (select “Online CE”).
Winter 2005 THE FORENSIC EXAMINER 39
By Joseph N. Miller, CPA, CVA, Cr.FA, DABFA; H. Glen Jenkins; and John D. Houser, CPA, CVA
Abstract Forensic accountants are hired to assist the trier of fact (judge, jury, or arbitration panel) by providing their expert opinions as evidence in a case. The forensic
This article is approved by the following for continuing education credit: ACFEI provides this continuing education credit for Diplomates. ACFEI provides this continuing education credit for Certified Forensic Accountants, Cr.FAs.
accountant is consulted to determine whether economic damages have been incurred, and, if so, the amount of those damages. Forensic accountants, with their training in financial accounting, evidence presentation, and research skills, are ideally qualified to calculate and provide estimates of economic intellectual property rights (IPR) infringement damages. This article discusses the types of IPR,
Key Words: financial damages, intellectual property, lost profits, infringement
the statutory scheme, and the typical damages-determination engagement; it also summarizes the major types of damages sought in IPR infringement litigation.
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Significance of Intellectual Property Rights In order to gain an understanding and perspective of the concepts and techniques used to calculate financial damages for intellectual property rights (IPR) engagements, one must embrace the overall intrinsic value of IPR in today’s society. Capitalism is the economic system that allows each person the freedom to profit substantially from his or her own efforts. Developing and demonstrating one’s imaginative talents by creating new products, ideas, business processes, and works of art is one of the cornerstones of the United States’ capitalistic economy. New products, expressions, formulas, inventions, imaginative ideas, processes, or any other creation of the mind are referred to collectively as IPR. Protection of IPR is very important to the continued success and growth of our capitalistic society. In the United States, ownership and recognition of IPR are usually attained through a registration process. IPR, just like tangible and real properties, may be bought, sold, or leased. As with other property rights in a capitalistic society, there are specific laws that protect the rights and privileges of the owners of IPR. Federal law governs the protection of patents, copyrights, and trademarks; however, trade secrets are governed exclusively by state law. Summary of the Most Common Types of Intellectual Property Patents are legal rights granted through a document issued by the United States Patent and Trademark Office to an inventor to exclude others from making, using, or selling the claimed invention in the United States. A patent is granted for a term of 20 years and is not renewable. The patent statutes are part (Title 35) of the U.S. Code (USC). Title 35 USC, Section 271, addresses infringement (2000). Infringement cases are heard in the U.S. district courts. Appeals from district-court decisions go to the court of appeals for the federal circuit rather than to the respective circuit court of appeals. This change was made as part of the Federal Courts
Improvement Act of 1982 to promote greater uniformity in patent enforcement and litigation. While the promotion of uniformity was a worthy goal, it has not yet been achieved because the court of appeals for the federal circuit has reversed approximately 50% of district court patent cases appealed to it (Chu, 2002). A trademark is any word, name, symbol, or device used to indicate the source of a party’s goods or services and distinguish those goods and services from the goods and services of others (trademarks for services are called service marks). Trademarks are sometimes followed by the “Circle R” (®) to indicate that they are federally registered. Trademarks and service marks can last forever as long as they are used in commerce. Infringement occurs when a third party uses a mark that is so similar to a mark already in use that it is likely to cause consumer confusion. The trademark laws (sometimes called the Lanham Act) can be found under Title 15 USC, Section 1051, et seq. (2000). The infringement sections are Title 15 USC, Sections 1114 through 1129. Infringement cases are heard in the U.S. district courts, and appeals from district-court decisions go to the respective circuit court of appeals. A copyright is the right granted to the creator for an original work of authorship. This right gives the owner the exclusive right to reproduce, prepare derivative works, distribute copies, and display the work publicly. The copyright statutes are found in Title 17 USC, with infringement covered in Sections 501 through 513 (2000). Copyrights are granted for the life of the author plus 70 years. Works made for hire (i.e., authored by an individual but owned by a corporation or other legal entity) are granted for the longer term of 95 years from first publication or 120 years from creation. Infringement cases are heard in the U.S. district courts, and appeals from district-court decisions go to the respective circuit court of appeals. A trade secret is any confidential information not known to the general public or others in the industry that gives a business an economic or competitive advantage. State law covers the establishment and protection of trade secrets. Trade-secret
law attempts to promote commercial ethics by protecting trade secrets from misappropriation. The National Conference of Commissioners on Uniform State Laws drafted the Uniform Trade Secrets Act in 1985, however, the Uniform Act has not been adopted by most states. Currently, the trade secrets laws of each state are different (Pillsbury Winthrop Shaw Pittman LLP, 2004). The Role of Forensic Accountants in IPR Infringement Litigation While capitalism allows people to flourish based on their own merits, these labors are fueled by one fundamental consideration—profit. Profit is the purpose and reward for producing goods more efficiently, distributing products to a wider market, and doing things better, faster, and smarter than ever before. The profit or economic benefit is the fundamental right and privilege for the owner of IPR in a capitalistic economy. Someone else’s profit also provides a high level of motivation for the willful violator of IPR and for individuals who will illegally take advantage of the opportunities afforded by a capitalistic society. Profit comes from an increase in the production of wealth. The measurement, calculation, and insight into notions of profit are most often relegated to the financial and economic community. Therefore, when there is a question regarding a determination of lost profits or economic damages resulting from the infringement or theft of IPR assets, the expert hired should be skilled in forensic accounting. The skill set of the forensic accountant is ideal for calculating damages from IPR infringement. Skills typically possessed by forensic accountants include the following: • Understanding of financial accounting in general. • Understanding of practical microeconomics. • Understanding of corporate departmental and cost-center accounting systems. • Experience in drawing and defending logical conclusions from incomplete data.
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• Ability to write reports and clearly present oral evidence. • Research skills. • Interviewing skills. Intellectual Property Litigation Process The forensic accounting damages expert can work for either the plaintiff or the defense. The litigation process begins at an initial meeting with the retaining attorney to discuss background elements, legal pleadings, case progress, preliminary damages theories, timetables, and budgets. Ideally, the forensic accounting damages expert should be retained prior to the end of document production and discovery. If retained early enough, the expert can advise the retaining attorney on specific documents that will likely be needed and can usually identify particular employees who would likely have access to them. For example, legal counsel may request a manufacturer’s production reports by facility and may request product sales reports by region rather than placing a simple request for sales information. This information likely exists for a public company because the segment information is reported in the company’s annual Form 10-K. Federal Rule of Civil Procedure 34 provides that “[T]he request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity” (2004). The more particularity specified, the more likely it is that produced financial documents will be useful to the retaining attorney’s forensic accounting damages expert. Quite often it is more advantageous for the expert to initially be retained as a consultant rather than being hired directly as an expert. It is not necessary to identify non-testifying consultants to opposing counsel. During the period that the forensic accounting damages expert is retained as a consultant, the retaining attorney needs to decide whether the expert’s opinions are helpful to his or her case as he or she wants to present it. If so, the retaining attorney can identify the forensic accountant as a testifying expert.
The expert needs to review the document production from both sides of the case in order to adequately prepare his or her report. In most IPR engagements, document production will result in an immense amount of data. Very often, much of this data may not immediately appear to be pertinent. However, it is imperative that the expert become cognizant of the various data and that he or she does not easily dismiss the data as being irrelevant. While counsel may furnish copies of documents to the forensic accounting damages expert, it is important that he or she also survey the entire document production and read key depositions to determine if there are other relevant documents that the forensic accountant has not considered. Failure to conduct some independent inquiry will subject the forensic accountant to the opposing side’s claim that his or her report and testimony are based solely on what the retaining attorney wanted him or her to see. Through data research and case analysis, the forensic accountant damages expert will begin to develop his or her opinion of economic damages. The basis of the opinion will be predicated upon the current and potential product market, relevant cost, profit structures of the germane product for both sides, financial results surrounding the infringement period, and the financial models developed by the expert. The expert must research the background of specific cases to be sure his or her economic damages model is allowable and has not been dismissed in cases as being speculative. Ultimately, the expert must convey his or her opinions; this is most often accomplished through a formal written report that supports the expert’s findings. Rule 26 of the Federal Rules of Civil Procedure (2004) governs the reports of experts. In summary, that rule states that reports of experts must include a complete statement of all opinions to be expressed, the data or other information considered, and any exhibits and qualifications of the witness (including publications and other testimony) and the reports must be signed by the witness. Reports for cases docketed in state courts follow the civil procedure rules of
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that state. Once the expert has reached his or her conclusions and completed the report, opposing counsel will have the opportunity to depose the expert under oath. Opposing counsel can have as many as 10 goals in mind in deposing the expert (Babitsky, 1999), which includes evaluating the expert’s credibility in front of a jury. The transcript is evidence and may be used at the trial if the expert is not available due to death, disability, or any other acceptable reason. Deposition testimony is a double-edged sword. It likely will include an explanation of the expert’s theory of damages, but it will also lock down the expert to the opinions stated. Often the retaining attorney will request the forensic accounting damages expert to attend the deposition of the opposing expert in order to suggest questions and evaluate the opposing expert’s answers. Damage Remedies Most IPR plaintiffs request an injunction against the alleged infringer. The injunction could be temporary or permanent. Beyond an injunction, the IPR plaintiff may request financial remedies. The following list describes some of the usual financial remedies requested by IPR plaintiffs: • Lost profits are the difference between the profits that the IPR owner would have realized but for the alleged actions of the infringer, and the IPR owner’s actual profit over the appropriate damages period. • The infringer’s profits can be awarded to the IPR owner, except in patent cases in which the award of the infringer’s profits is not provided for in the statute. • A reasonable royalty is the monetary amount the infringer would have paid the IPR owner as the result of a hypothetical license negotiation occurring at the time the infringement began. Reasonable royalties are most often seen in patent cases, where 35 USC Section 284 provides that the damages awarded be adequate to compensate for the infringement but in no event be less than a reasonable royalty for the use made of the invention by the infringer (2004). • Statutory royalties are provided for copy-
“Ideally, the forensic accounting damages expert should be retained prior to the end of document production and discovery. If retained early enough, the expert can advise the retaining attorney on specific documents that will likely be needed...” right law violations. The statutory royalty can be increased up to $150,000 by aggravating factors, such as willful violation. • Lost profits on convoyed sales are the profits on items usually sold along with the infringed patented or trademarked product. • Price erosion is the reduction in profits suffered by the IPR owner due to having to compete with the alleged infringer. • Corrective advertising costs are the cost incurred by the IPR owner in providing accurate information to consumers after advertising or market activity by the alleged infringer. Experts and Helpfulness to the Trier of Facts The expert’s testimony must be relevant to the issue and helpful to the court in understanding the issue. In order to be helpful the witness must be qualified as an expert, the expert must have a reasonable factual basis for the testimony, the testimony must be based upon reliable methods, and the testimony must be relevant to the facts of the dispute. Daubert and Kumho Cases and Challenges to Experts In Daubert [Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)], the Supreme Court ordered the trial judge to be the “gatekeeper” for scientific testimony, allowing only expert testimony that meets the following four requirements: • The theory can be (and has been) tested. • The theory or techniques have been analyzed through peer review or publication. • The theory or techniques have been tested for potential rate of error. • The theory or techniques have been accepted within the scientific or technical community. Daubert (1993) was extended to non-
scientific experts, such as financial damages experts, by Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). These standards have been adopted as Section 702 of the Federal Rules of Evidence (2004). Opposing counsel may make a Daubert challenge, called a motion in limine, seeking to exclude the forensic accountant’s report and testimony. It is important that the forensic accountant does not overreach in his or her report or deposition and provide ammunition for a Daubert challenge. The importance cannot be overstressed. Loss of a Daubert challenge and exclusion of the expert’s report usually means that the financial damages portion of the case is over. Losing a Daubert challenge is also something that the forensic accounting damages expert will be explaining at depositions and trials for the rest of his or her career. With the financial damages at stake, it is imperative that the forensic accounting damages expert consider not only the reliability of the testimonial evidence, but also his or her own level of expertise. For this reason, the expert should associate with other knowledgeable colleagues from the inception of the engagement. An association or collaboration with an economist is advisable if the forensic accountant’s report will likely include technical economic issues. If advanced economic issues are identified, the economist may prepare his or her own report. In the event of a Daubert challenge, the court will likely examine both the methodology and the applicability of the expert’s approach. Faced with a proffer of expert scientific testimony, … the trial judge must determine at the outset … whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue (Daubert, 1993, p. 592-93). A proper damages analysis requires an understanding of the IPR owner’s and the infringer’s financial reports, books, and records. A background in accounting principles is a basic requirement to accurately identify the financial information necessary for translating abstract economic theories into factually supported positions. A forensic accountant can provide a detailed accounting analysis that is suitable to the courts and often will assist the trier of fact and form the foundation for argument, debate, and ultimately dispute resolution. Beyond basic accounting, forensic accountants utilize various investigative skills necessary to sift through documentary evidence, financial records, and economic data to communicate financial information clearly and concisely for a courtroom setting. Damages Quantified It is one matter for the IPR owner to claim that some sort of harm or financial damage occurred as a result of an alleged IPR infringement; it is an entirely different matter to quantify the financial damages into categories without double-counting. “The core principle of compensatory damages requires awarding the smallest monetary amount required to put the plaintiff in the pecuniary position he or she would have been in had the alleged “bad act” not occurred” (Glick, 2003, p. 34). To satisfy this requirement the expert must understand the IPR owner’s current economic and financial condition. A hypothetical “but for” economic model must be constructed as if the IPR infringement had not occurred. While this may seem straightforward,
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there are restrictions and guidelines in creating the hypothetical “but for” economic position. Federal Rule of Evidence 703 provides guiding principles for information used in the construction of the “but for” model (2004). The failure to adhere to these principles risks the expert’s exclusion under a Daubert challenge. Aside from an injunction, one of the initial decisions a damages expert or lawyer must decide is which of the above primary financial remedies should be used to calculate the economic damages incurred. In many cases, a combination of theories should be used if allowable under the statute and case law. Application of Forensic Accounting in Determining Trademark Infringement Damages In the case of the infringement of a registered trademark, 15 USC 1117 (2000) provides in pertinent part: [T]he plaintiff shall be entitled…to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. The court shall assess such profits and damages or cause the same to be assessed under its direction. In assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed. In preparing his Rule 26 report, the forensic accounting damages expert for the plaintiff should use the above as his or her outline of damages sustained. However, it is unwise to wait for the defendant’s expert to prove all of the elements of cost and deduction from the defendant’s infringing gross receipts (assuming that the infringing gross receipts are properly reported) because discovery might have closed and documents to refute the defendant’s computations might not be available. Accordingly, it is important that the plaintiff ’s forensic accountant review the documents produced and prepare preliminary estimates of the elements of the defendant’s costs and deductions. The general standard is that variable costs are the only ones allowed. In other words, fixed costs such as rent and executive com-
pensation are not an allowed element of cost or deduction. Some sources of this variable cost information include the following: • Defendant’s financial statements, product and departmental budgets, and sales reports. • Defendant’s tax returns (including Section 263A cost allocations) and detail of cost of goods sold. • Reports to regulatory agencies. • Accountant’s working papers and trial balances. • Industry information and statement studies from the Risk Management Association (formerly known as RMA or Robert Morris Associates, an association of bankers and credit executives). Using the variable cost information, the forensic accountant for the plaintiff can estimate the defendant’s claimed costs and deductions. He or she can also work with the retaining attorney to request additional documents. Summary Litigation of intellectual property rights requires financial damages analysis. This analysis requires accounting, economics, and forensic techniques. The role of the financial damages expert in the resolution of the case is defined in the federal rules of evidence for most IPR cases, although state law applies to trade secrets and other IPR under certain fact patterns. As the financial damages expert, the forensic accountant must consider the applicable statutes and case law in preparing his or her opinion of damages incurred and defending it. References Babitsky, S., & Mangraviti, J. J. (1999). How to excel during depositions. Falmouth, MA: SEAK, Inc. Chu, C. (2000). Study of 502 patent cases in period January 1998 through April 2000. Unpublished raw data. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Glick, M., Reymann, L. A., & Hoffman, R. (2003). Intellectual Property Damages, Guidelines and Analysis. Hoboken, NJ: John Wiley & Sons. Federal Rules of Civil Procedure. (2004). Washington, DC: U.S. Government Printing Office. Federal Rules of Evidence. (2004). Washington,
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DC: U.S. Government Printing Office. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Pillsbury Winthrop Shaw Pittman LLP. (2004). Basic Guide to Intellectual Property. New York, NY: Unpublished Manuscript. A copy of this guide is available by request from helena.kennedy@pillsburylaw.com. United States Code. (2000). Washington, DC: Office of the Law Revision Counsel. United States Reports. (2005). Washington, DC: Supreme Court of the United States.
About the Authors Joseph N. Miller, CPA, CVA, Cr.FA, DABFA, is the founding partner of Miller Ray Houser & Stewart LLP, a 40person CPA firm in Atlanta, Georgia. He has provided expert witness services since 1978, along with business, tax, and financial advisory services. He is a Certified Forensic Accountant and a Diplomate of the American Board of Forensic Accounting with ACFEI. H. Glen Jenkins is the Director of Forensic Accounting and Litigation Support for Miller Ray Houser & Stewart LLP. As a forensic accountant, he has provided forensic and financial analysis for a wide variety of engagements in numerous industries and business segments since 1994. John D. Houser, CPA, CVA, is a Certified Public Accountant and a Certified Valuation Analyst. His practice areas involve primarily business valuation, taxation, and financial advisory services. Houser has provided expert witness testimony and consulting services since 1998. Earn CE Credit To earn CE credit, complete the exam for this article on page 65 or complete the exam online at www.acfei.com (select “Online CE”).
By Stanton E. Samenow, PhD, FACFEI, DABFE, DABFM, DABPS
As if there weren’t enough tribulations after Katrina, the devastated city of New Orleans became fair game to the criminal element. I’m not talking about the men and women who grabbed water and other provisions vital to self-preservation. I am speaking of those individuals who saw opportunity because of the drastically reduced presence of law enforcement officers. They snatched items from stores that they could not possibly use—multiple pairs of shoes, televisions, and other appliances. They invaded commercial establishments, ransacked homes, and even looted and vandalized the D-Day Museum. Pilfering more than they could stuff in their arms, they loaded the merchandise into carts and then carried it off to who knows where. We witnessed on television the bravado, defiance, and excitement on the faces of these men, women, and even youngsters as they helped themselves to the property of others, creating in certain instances an almost carnivallike atmosphere. Television commentators and news columnists shook their heads in disbelief and remained at a loss to explain that which seemed truly unexplainable. Why would someone make off with a television when he or she had no electricity and, more than likely, no home in which to watch it? Why would some individuals wreak havoc on businesses that the owners toiled over many years to build? And why would these individuals rob refugees in public shelters of what little they had? To explain this disturbing behavior, an understanding of the criminal mind is essential. The criminal spends a lifetime building him or herself up at the expense of others. Constantly casing people out,
the criminal takes advantage of any vulnerability. Seldom are criminals concerned about the welfare of others, for they have no empathy. To them, people are merely pawns to be manipulated on their personal chessboards. They have no concept of effort. What others struggle for years to build, they think nothing of destroying in minutes. Their stealing has little to do with personal need or deprivation. Most poor people do not steal, and many who are wealthy do. The criminal will steal for the sheer excitement of it. I remember one man who stole a huge iron cross from a church just to brag that he could do it. A criminal will steal items that he or she can afford to purchase. As one asserted, “Why buy it if you can steal it?” Based on many years of studying the criminal mind, I would conjecture that a videotape of the lives of the New Orleans looters would reveal that, well before Katrina struck, they were dishonest individuals who had stolen under a variety of circumstances. Whenever the social fabric weakens, the criminal moves in. We have seen this all over the world. When governments fall, the criminal spots opportunity. The Mafia took hold as Communism fell in the former Soviet Union. When Saddam Hussein’s regime ended, lawlessness prevailed in much of Iraq. In our own country, when civil unrest has occurred, looters have moved in to prey. Whenever masses of people gather (allowing the criminal to remain anonymous) and the security is weak, the criminal is at-the-ready, poised to strike. I am describing a person who knows right from wrong. However, the mentality as articulated by one perpetrator is, “‘Right’ is what I want to do at the time.”
Stanton E. Samenow, PhD Cunning and calculating, the criminal is keenly aware of the potential consequences of his or her actions. In New Orleans, it was not difficult for such a person to figure out that the odds of getting caught were minimal. The destruction of the city provided criminals with a vast arena in which to operate. They could help themselves to whatever they wanted with impunity. And so it became open season to steal whatever was not bolted down. Hundreds of thousands of New Orleanians had the same opportunity—to have a field day and steal items that perhaps they could not otherwise have afforded to purchase. They too could have looted and gotten away with it. Although we have emblazoned in our memory the unforgettable and often repeated pictures of criminals gleefully looting, we saw that most citizens of New Orleans remained true to their own character and were law-abiding. In contrast to the criminals around them, they tried to save their own lives and the lives of family members and, if they could, even help others along the way. Stanton E. Samenow, PhD, is author of Inside the Criminal Mind (Crown, 2004) and is a clinical psychologist in Alexandria, Virginia, specializing in the evaluation and treatment of juvenile and adult offenders. He is a Fellow in ACFEI and is a Diplomate of the American Board of Forensic Examiners, the American Board of Forensic Medicine, and the American Board Psychological Specialties.
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By Steve Cain, FACFEI
This article is approved by the following for continuing education credit: ACFEI provides this continuing education credit for Diplomates. ACFEI provides this continuing education credit for Certified Forensic Consultants who are required to obtain 15 credits per year to maintain their status.
Key Words: digital video tape recorder (DVTR), closed circuit television (CCTV) recorder, CCTV surveillance equipment, tape editing, tape tampering, time-lapse (TL), security VCR, quad screen, multiplexer, analogue, wave form monitors, VCR testing equipment
Abstract This article focuses on some of the more important parts of the audio, video, and timing components, including control track differences existing between analogue VCRs and the more recently available digital video tape recorders (DVTRs). A preliminary examination is made of DVTR components that may be suitable for forensic individualization where methods of determining and measuring error production and concealment are available. It has been reported that various types of error rate and concealment rate data are available inside the VTR, and standards for reporting that information are being developed. Forensic individualization of different DVTRs may be possible through measurement of the radio frequency envelope differences and bit error and concealment rate data.
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Previous Study A previous article, “The Forensic Examination of Video Recordings,”1 discussed some of the more conventional forensic techniques for examining questioned analog videotapes regarding their originality and potential for tape alternation evidence. That article specifically addressed the various mechanical and electrical signal anomalies that occur when editing videotapes or using different analog VCRs to produce composite videotapes. Conventional 2-hour VHS tapes that were continuously recorded on an original VCR were examined. The instruments utilized in the examination included an oscilloscope, a waveform monitor, a cross pulse monitor, a spectrum analyzer, and other analytical equipment. Whenever editing/tampering occurred on an evidential videotape, invariably the above listed equipment was successful in identifying various timing differences that produced visible variations in the horizontal, vertical, and color synchronization pulses that make up the video waveform.
Portions of the audio signal are also often adversely affected as a result of the editing process. This article will focus on the operational characteristics of both analog and digital closed circuit television (CCTV) time lapse (TL) VCRs and the forensic tools utilized in their testing and evaluation. CCTV Surveillance Equipment Security VCRs have a number of additional features specifically designed for the industrial marketplace or for institutions that require 24-hour video/audio surveillance. Some of the primary differences between a 2-hour domestic VCR and a TL VCR for the security industry include the following: • TL VCRs can record up to 960 hours on a 120-minute tape. • TL VCRs can record either continuously or in TL modes between 6 and 960 hours. • A conventional VCR records continuously in real-time with 25 frames per second, while a TL recorder has selectable recording intervals depending upon the
amount of elapsed time recorded by the VCR. • The recordings in TL mode are periodic rather than continuous, and there will always be a certain amount of information lost during the discontinuous recording process. • TL VCRs can also be triggered by external alarms that cause the recording unit to switch from TL mode into real-time for a preset duration or until the alarm is cleared. • The TL recorders also can be programmed to recycle and rerecord, which is extremely useful when there is no operator to replace the 24-hour tape. It is also important to remember that TL recorders provide 2-, 6-, and 24-hour videotape recording, but the original tape has to be played back in the same or a similar TL recorder set at the particular recording speed to permit review of audio information. Although sometimes the audio signal is weak and has poor intelligibility, there are a host of audio enhancement software options and other audio fil-
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Digital v. Analog Recording Fact Sheet Digital
Analog
Records directly to hard drive.
Requires VHS tapes to record.
Records only when motion is detected so it won’t fill up your hard drive with unnecessary information.
Constantly records, except during playback.
Constantly records any detected motion, even during playback.
Can’t record while reviewing tapes.
Depending upon the amount of constant motion and the size of your hard drive, you can record approximately 30 to 180 days of information or more. Plus no tapes! Your hard drive will begin to recycle itself over the oldest information once it fills up.
If you’re like most, you must change tapes weekly if not every couple of days. You’re still responsible for changing and archiving tapes.
With a high resolution digital unit and high resolution cameras, you can record 450 lines of resolution that will deliver sharper, cleaner images.
TL and Real Time recorders will only record 300 to 330 lines of resolution. Still limited to 300 to 330 lines of recording resolution.
Each camera is individually addressable, which provides the ability to prioritize any camera in your system. IE: camera 1–2 FPS, camera 2–5 FPS, etc.
Remote capabilities are available at a significantly higher price. (Often, it’s even more costly than an unitized digital system.)
You can monitor events at your facility from a remote location if you have a static IP address at your facility and are viewing over a high speed modem line.
Separate remote system available at an extra cost. Live viewing only; no recorded playback.
12 to 15 year life expectancy.
3 to 5 year life expectancy.
Source: Freeze Frame Video Surveillance CCTV Internet Articles, http://www.freezeframevideo.com/digvsang.html.
ters that can improve the audio signal intelligibility even if recorded in a 12- or 24-hour TL mode.2 Switchers and Splitters It is common in many industrial sites to require multiple camera and monitor viewing during the playback process. A simple analog video switcher can accommodate several different camera inputs and can activate particular fields of view. The next form of video switcher is known as a QUAD, which allows a simultaneous display of four cameras onto a single monitor by splitting each view into quarter-size samples. QUADs are capable of viewing single or multiple cameras in a sequence or
can individually provide for a single view. Unfortunately, the resolution for QUAD processors is normally marginal and the recorded image degrades further with the copying process. A recent innovation by the security industry is the development of a multiplexer that can typically display 4 to 32 camera images on a single monitor. The multiplexing of cameras results in their output being recorded in sequence onto a single videotape. The recorded images are captured in full screen, thus ensuring good resolution. The rate at which they are recorded can vary depending upon the initial setup of the TL recorder and the multiplexer’s ability to process the informa-
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tion. However, a disadvantage of mulitplexers is that the recording of each camera is not continuous, and when the recording is played back the system decodes whatever is on the tape. The mulitplexer further encodes the time, date, and camera number in the vertical blanking interval of the video waveform following each recorded field. When attempting to playback tapes without a multiplexer, the decoding process does not occur, and only exactly what was recorded on the tape shows up, which is extremely rapid changes from one camera field to another. Further, if a worn video head is involved, the signal strength will be reduced and the digitization process will be degraded and may not be capable of proper playback.3 Time-Lapse (TL) Recorders The forensic examination of TL recordings invariably requires that attempts be made to obtain the original videotape because copies bear some of the electronic and mechanical signatures of the copy VCR. Within the vertical blanking interval of the video waveform, a waveform monitor or oscilloscope can view important data information that is stored by the TL VCR during the recording process. It normally consists of 20 blank lines and gives the recorder an opportunity to store important information about the camera, date and time of recording, store information, etc., for each line of video that has been recorded. Often, a monitor that has under-scan capability can visualize the vertical blanking interval and some of the data produced during the TL recording process. Although the majority of TL recorders and corresponding videotapes are of the analog variety, there is an increasing demand for both digital video recorders and related equipment that require different forensic examination techniques. One of the primary advantages of digital recording is that it is more immune from electronic and other forms of interfering noises. A digital signal is an electronic waveform that is comprised of the numeric values zero and one. This results in less signal degradation and a better picture quality for the surveillance industry. The
signal can also be digitally processed and stored, which aids in such factors as image enhancement, compression, and other forms of correction. Lastly, there is no degradation between the originally recorded video signal and the copy tape. Another signal that can be analyzed during the testing of TL tapes is the audio signal that is normally recorded along one edge of a conventional VHS tape as either a single or stereo channel. Often, a separate erase head is mounted next to the audio head to facilitate the dubbing of a new audio signal onto the original videotape. In addition there is a control track that normally is a 30-hertz square-wave signal that synchronizes the video frames on the tape with the monitor during playback. Full track-erase heads are normally seen on the video drum and are available for erasing any prerecorded material on the tape, including audio\video or control track information. A standard domestic VCR records continuously in real-time, with 25 frames per second and 2 fields per frame (a total of 50 images in all). On the other hand, an industrial machine has selectable recording intervals that allow the user to reduce the amount of information he or she tapes depending on the requirements. For example, if the record rate is dropped to 8.33 frames per second (16.66 images in total), the VCR can span recordings to 24 hours worth of information. In this instance the VCR is said to be running in 24-hour TL mode. As the recordings in TL mode are periodic rather than continuous, there is a loss in the information taped in any single sequence that can give a stroboscopic effect on replay. Consequently, the configuration of TL recording is very much dependent on the practical needs of the particular security installation. It should also be noted that when TL VCRs are used in conjunction with multiplexers, the frames recorded are divided between the number of cameras being viewed. There has been a notable shift in the last 5 years from the use of black and white surveillance cameras to color equipment, and likewise there has been a dramatic change in both size and low light capabilities of CCTV cameras.
Correspondingly, there has also been a dramatic drop in the prices of CCTV cameras and TL recorders. Todayâ&#x20AC;&#x2122;s surveillance systems cost significantly less than they did several years ago. There has been an increasing change in digital video recording equipment that is transmitted not only over local/wide area networks, but also over the Internet. At Sanyo Security Products in California, the latest digital recording device (DSR-C100) includes a hard drive that allows continued recording of 17,000 high-quality digital images on an internal 10.2 GB hard drive. The surveillance cameras connect directly to a PC and can record on compact flash cards for transportation and backup. During playback the operator can choose a zoom capability of up to 21-times normal enlargement, and a watermarking capability further ensures that digital editing does not occur.4 Measuring the Video Signal In the late 1940s, Institute of Radio Engineers (IRE) units were established as the true measurement medium for videos. It wasnâ&#x20AC;&#x2122;t until the 1960s and the increased availability of the oscilloscope that the video signal was able to be measured in peak-to-peak voltage measurements. A video signal is made up of three important parts: video, pedestal or black level, and synchronization (sync) pulses. Color signals have the features listed above as well as a color burst. Composite video is the combination of all three pieces measured together. Each portion of the video signal has its own separate level. Video should measure 100 IRE (0.7143 volts peak-topeak), and sync should measure 40 IRE (0.2857 volts peak-to-peak). In color cameras, the color burst will measure 40 IRE (1.000 volts peak-to-peak). A good handheld video meter will give its user the ability to measure sync, luminance (video white level), composite video, and color bursts individually. In addition, the user should be able to set the focus and/or backfocus of the camera upon the video signal.5 Another feature a quality digital video meter offers is focus, which is accomplished through the high frequency levels of the video signal. A quality hand-held digital
video meter can set the focus of a camera without a monitor. Out-of-balance systems provide the user with technical problems, including picture rolling, horizontal tearing, jumpy playback, and poor resolution. Signal losses are quite often attributed to partial or complete short circuits between center conductors and shields, double terminations of the video cables, lack of termination of the video cable, or improper impedance connectors. A major technical deficiency of the hand-held meter is its inability to determine the nature of the video noise or the radio frequency anomalies in the recording system. The oscilloscope can resolve these questions.6 Oscilloscope (Analog) A time analysis of any electrical signal can be conducted with an electronic instrument called an oscilloscope. The oscilloscope works on principles similar to those of a television monitor, only in this case the scanning of the electron beam follows the video signal voltage in the vertical direction, while horizontally the only variable is time. With the so-called time-base adjustment, video signals can be analyzed from a frame mode (20 milliseconds) down to the horizontal sync width (5 seconds). Oscilloscope measurements provide the most objective measurement of the video signal and are strongly recommended to anyone seriously involved in CCTV. With an oscilloscope it is very easy to see the quality of the signal bypassing any possible misalignment of the brightness/contrast on a monitor. Sync/video levels can easily be checked and can confirm whether a video signal has a proper 75-OHM termination together with how far the signal is (reduced in signal amplitude or the loss of the high frequencies). Digital Video Recorders Soon digital video broadcast (DVB) will become widely accepted as a new television standard. In fact, it is already recommended by various countriesâ&#x20AC;&#x2122; broadcast regulatory authorities. CCTV will definitely follow suit with similar advancements, although the majority of the video devices are still analog. One of the most important differences
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between an analog and digital signal is the immunity to noise. A digital signal, having an electronic form, is also affected by noise but can only have two values: zeros and ones. Noise will only affect the digital signal when its value reaches levels that may interfere with the digital circuit margins that decide whether a signal is zero or one.7 The following are major differences between digital video recorders (DVRs) and analog VCRs: • VCRs use standard VHS tapes, while digital information can be stored on a digital audiotape (DAT), digital versatile disc (DVD), or hard disk drive (HDD). • DVRs have the ability to search for recorded information based on time/date/second as well as camera input, allowing for much faster retrieval times. • DVRs can save images with very little background picture noise and higher stability and are generally of higher quality. • With DVRs the image quality does not deteriorate during storage or frequent viewing. • DVRs require less maintenance. • DVRs offer many additional features such as remote video retrieval, integral multiplexing, pre- and post-image enhancements, and networking capabilities.
There are three types of DVRs. Basic DVRs are a replacement for traditional VCRs. They are typically single-channel devices capable of recording up to 1 or 2 weeks of information. Basic units offer little or no setup capability. The recorder usually determines the playback quality, storage capacity, and reviewing characteristics. Multiplexed DVRs combine multiple video inputs with the recording unit and an 8- or 16-channel multiplexing unit with the digital recording device. The time sharing of video inputs operates the same way that standalone video multiplexers operate. Multiplexed DVRs typically have a storage capacity of about 480GB to 600GB. Multi-channel DVRs are designed for high-end applications. Requirements such as month-long storage, real-time video recording of all video inputs, and unlimited video channels can be obtained with multi-channel DVRs. They allow all images per camera to be recorded; whereas, in a multiplexed unit, video inputs are divided between the images. Digital VTR Theory The main differences between analog and digital VTRs are in the signal system. If
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analog video is input into the system, it is converted to digital. Four or more channels of analog audio are also converted to digital. In addition, most professional digital formats also have analog longitudinal audio cue and time code tracks to go along with the digital audio. If a format uses video compression, the video is compressed at this time. Tiny imperfections in the tape that produce unnoticeable dropouts in an analog system seriously “trash” a digital signal. The digital video data is therefore encoded using an error correction system that can replace lost data completely. Because of the wide bandwidth of the digital signal, it is recorded on the tape by several heads at once. The head drum spins much faster in most digital machines than in analog machines, with 6,000 RPM being about average. There are more tracks per scan, and they are narrower than any analog format. The servos have to work very hard in a digital machine to keep data errors down. Audio data is also recorded by the rotary heads, usually in a special area at the center or ends of the video track. Since audio errors are generally more objectionable than video errors, most digital VTR formats record each audio segment twice. The audio is recorded in separate segments from the video to allow editing of just the video, just the audio, or a combination of both. DVRs provide the ability to record perfect quality pictures and replay them at the touch of a button. Digital recording also makes it possible to record video on a computer disk. DVRs are able to record much more information, whether in real time or TL mode. DVR and Remote V ideo Monitoring DVR allows remote viewing of video systems through local area networks, wide area networks, and web-based systems. One major advantage of a network is the ability to receive video signals anywhere using equipment ranging from a simple Internet browser to special client-based application software. Another advantage is that it eliminates the need to run new cabling and provides easier solutions for future system expansion.9
Measuring the Digital Serial Signal When viewed on an appropriate scope or monitor, several time sweeps (overlaid by the CRT persistence or digital sample memory) produce a waveform that follows a number of different paths across the screen. The waveform that results is known as an eye pattern as displayed on a monitor. Analog measurements of the serial digital waveform start with the specifications of the transmitter output. Specifications to be measured are amplitude, risetime, and jitter, which are defined in the serial standard, Society of Motion Picture and Television Engineers 259M. Frequency, or period, is determined by the television sync generator developing the source signal, not the serialization process. Requirements for a basic operational monitor include display of the program signals carried by the digital signal with features and accuracy consistent to today’s analog baseband signal monitors. An operational monitor should also include information about the serial digital signal itself, such as data available, bit errors, and data formatting errors. Program signal measurements are essentially the baseband video and audio measurements that have been used for years. An important aspect to these measurements is that the accuracy of signal representation is limited by the number of bits-per-sample. In analog systems there has been a small amount of digital data present in video signals in the form of vertical interval time code (VITC); but the serial data stream has much more capacity for data other than video. Hence, more complete measurement methods are desirable. In addition to the traditional television system measurements, there is a new dimension for test and measurement to quantify the various parameters associated directly with the serial waveform. The results are several categories of monitoring and measurement methods to be considered: program signal analysis, data analysis, format verification, transmitter/receiver operation, transmission hardware, and fault reporting.10 Conclusion The increasing usage of both analog and
digital surveillance cameras, recorders, and different transmission/storage mediums requires the forensic expert to continually update his or her analytical tools. The detection of audio and video edits will be more problematic in the digital age, which will necessitate ongoing research into the development of appropriate test measurement equipment/protocols for forensic video examinations.
Endnotes 1. Steve Cain, “The Forensic Examination of Video Tape: Technical Integrity and Legal Issues,” The Forensic Examiner 8, no 11,12 (1999). 2. Steve Cain, “Testing of Security Recording Equipment”(unpublished FTA Task Description, 2001), http://VideoExam.com/equipment_testing.html 3. Toshiba-Year 2000 Readiness Disclosure, http://www.videoexperts.com/eng/advice/time_la pse_VCRs.html 4. Cain, “Testing of Security Recording Equipment,” 3. 5. Charlie Pierce, “Installation/Field Service of CCTV,” Learning Training Center, (2002): 14.1 & 14.2. 6. Cain, “Testing of Security Recording Equipment,” 3. 7. Vlado Damjanovski, CCTV (Boston: Butterworth and Heinemann Press, 2000), 211. 8. “Digital VTR Theory,” Ardent Security Solutions, http://www.security-solutions.com/ss/dvr.html 9. “Digital Recording (DVR) for CCTV,” Ardent Security Solutions, http://www.securitysolutions.com/ss/dvr.html 10. Ibid.
About the Author Steve Cain has more than 20 years experience in examining audio and video tapes for the U.S. Department of Justice; U.S. Attorney’s Office; over 100 Public Defender offices; Federal Bureau of Investigation; Securities and Exchange Commission; Drug Enforcement Administration; Customs; Internal Revenue Service; Secret Service, Bureau of Alcohol, Tobacco, and Firearms; and over 1,000 law firms in both criminal and civil cases in the United States and overseas. Following 22 years as both a special agent and a forensic specialist with the U.S. Secret Service and IRS National Crime Laboratories, Cain founded Forensic Tape Analysis, Inc., in Lake Geneva, Wisconsin. A variety of forensic services are offered through the organization, although the majority of requests concern the identification of questioned voice recordings or issues relating to audio or video tape recording authenticity (i.e., tampering or editing evidence). Cain is also board certified as a questioned document examiner and a Fellow in the American College of Forensic Examiners.
Glossary of Terms Peak-to-Peak: Relates to how much of a signal is being used for a measurement; the entire video signal is to be read from the top-most point, and positive or negative is irrelevant. Composite Video: The complete video signal, including the raw video information pedestal and sync line. Composite video is measured from the sync line to the peak of the raw video; average composite video with any camera system should be 1 volt peak-to-peak. Composite video signals may have high peaks of as much as 1.4 volts, which represent hot spots or very bright points within the video picture. Raw Video: The signal created by the tube or imager of the camera. Raw video, on an average, measures 0.6 volts peak-to-peak with high peaks of 0.8 volts. Pedestal: Appears to be a straight line and is below the raw video information. The pedestal is used as the black reference for the raw video. All measurements of the video start from the pedestal and go up. The farther away from the pedestal that the video is, the whiter it will be. The closer to the pedestal that the video signal is, the blacker it will be. Sync Line: The bottom-most point of the signal, used as the zero reference point for all peak-to-peak measurements of the composite video signal. Source: Charlie Pierce, “Installation/Field Service of CCTV,” Learning Training Center (2002), 14.6.
Earn CE Credit To earn CE credit, complete the exam for this article on page 65 or complete the exam online at www.acfei.com (select “Online CE”).
Winter 2005 THE FORENSIC EXAMINER 51
Lizzie Borden took an axe And gave her mother forty whacks. And when she saw what she had done, She gave her father forty-one.
by Megan Augustine
We have all heard the story of Lizzie Borden. It is a case that has fascinated us for over 100 years; a case that, in the books, remains unsolved. But what we all haven’t heard is the story of modern forensics—the story that could have potentially changed the outcome of this mysterious case. Murder on Second Street The date was August 4, 1892. The location, Fall River, Massachusetts; more specifically, No. 92 Second Street, the home of Andrew and Abby Borden. At around 11:10 a.m., 32-year-old Lizzie Borden, Andrew’s daughter and Abby’s stepdaughter, discovered Andrew’s dead body on a couch in the sitting room of the home. Soon after, Abby was found dead on the floor of the guestroom. Confusion spread through the house, and police were summoned. Bridget, the
hired help in the household and a key player in the case, dashed across the street to get the help of Dr. Bowen, the family physician. He was out at the time but arrived at the Borden home shortly thereafter. He telegraphed Emma, Lizzie’s older sister, to relay the terrible news. In the meantime, neighbors came and went, intrigued and horrified by the brutal murders. Upon examination, Dr. Bowen found Andrew’s wounds to be quite gruesome. One eye had been cut in half and protruded from its socket, his nose had been severed, and 11 gashes painted the left side of his face. Abby’s deceased body was in no better shape. Her body was found lying face down in a pool of blood, her head nearly separated from her shoulders. Dr. Bowen found that Abby had been struck in the back of the skull more than a dozen times, presumably with the same
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hatchet or axe that had been used to kill Andrew. All Eyes on Lizzie Lizzie fell under suspicion for the murders for several reasons. The day before the murder, Abby claimed to Dr. Bowen that she and Andrew were being poisoned. Both had been violently ill the previous night. Unfortunately for Lizzie, Eli Bence, a clerk at Smith’s Drug Store, informed investigators that Lizzie had attempted to buy prussic acid (hydrogen cyanide) on several occasions in the 2 weeks prior to the murders; Bence refused to sell it to her without a prescription. Lizzie later denied visiting the store or requesting the poison. Lizzie also had a problem with alibi consistency. She was constantly changing her story, remembering and forgetting bits of information and contradicting herself.
The infamous "handleless hatchet" found in the basement of the Borden house following the murders. Exhibited as evidence during the trial, the hatchet was never proven to be the murder weapon.
Then, a couple of days after the murder took place, Miss Russell, a friend of the Borden sisters, witnessed Lizzie burning a dress in the kitchen stove. Lizzie said the dress was stained with paint and was of no use. Not likely. It was this testimony that prompted Judge Blaisdell to charge Lizzie with the crimes. The trial lasted 14 days, from June 5 to June 19, 1893. The only time Lizzie spoke throughout the trial came after closing arguments. She merely stated, “I am innocent. I leave it to my counsel to speak for me.” At 3:24 on June 19, the jury was sworn, given the case, and retired to carry out their deliberations. At 4:23, the jury returned with a verdict: not guilty. It is said it took them only 5 minutes to reach a verdict, but out of respect for the prosecution they waited an hour to deliver it. Errors, Answers, and Questions of “What If ” of the Investigation An inconsistent alibi, a dress gone up in flames, and the stereotypical image of a young woman in the 1800s; all these and much more fuel the mystery of the
Crime scene photograph of Andrew J. Borden, August 4, 1892.
Lizzie Borden case. Theories run rampant and Lizzie Borden books reside in every library. If only we’d had modern forensics at the time of the crime, maybe we could have stamped this case “solved.” In the minutes following the discovery of the bodies, little, if anything was done to secure the crime scene. A number of individuals waltzed around the crime scene, leaving fingerprints everywhere, including on the bodies of the deceased. Had the crime scene been secure, modern forensics would have dusted for fingerprints, and those found would raise suspicion. However, with an unsecured scene, fingerprints are meaningless! Additionally, the bodies were moved prior to a complete investigation. Had the bodies not been moved, blood spatter analysis would allow investigators to
correctly collect blood stain data at the scene, and a blood spatter expert could interpret the patterns to reveal critically important information such as the positions of the victims, assailant, and objects of the scene; the type of weapon used and number of blows, etc.; and the movement and direction of the victim and assailant after bloodshed began. The trajectory of blood spatter would prove useful in estimating the angle of the wounds and the height of the attacker. For example, it has been suggested that Andrew was standing at the time of the first strike and that the blood spatter at the scene would have resulted from a strike from someone much taller than Lizzie. Additionally, modern forensics could utilize Luminol to find traces of blood at the crime scene. Luminol is a chemical
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person dies suddenly and violently, the blood becomes uncoagulable shortly after death. Secondly, pathologists today would not rely on the use of touch to determine body temperature. An internal thermometer would be used to take measurements over a period of time. Also, research has found that the body temperature of the deceased drops very little in the first few hours after death. Thus, the varied body temperatures, measured by touch, would have very little meaning. And finally, people digest food at different rates, so the amount of food found in the victims’ stomachs does not shed light on the time of their deaths.
Crime scene photograph of Mrs. Andrew J. Borden, August 4, 1892.
that glows greenish blue when it comes into contact with blood, even traces that are years old. To be exact, it reacts to hemoglobin, an oxygen-carrying protein in red-blood cells. Luminol is so sensitive that it can detect blood at 1 part per million. If there is one drop of blood within a container of 999,999 drops of water, Luminol will glow. With Luminol highlighting any traces of blood, a bloody footprint, shoeprint, or fingerprint might help tell a new story. A bloody trail could have been left behind, invisible to the naked eye, displaying to investigators the escape route of the murderer. It might show which door he or she exited through, if in fact the killer left at all. The issue of Lizzie’s attire that fateful day has never been resolved. Some say it was a light blue dress, others say it was dark blue. If investigators had been able to identify, locate, and submit into evidence the dress she wore that day, further examination could have been performed to analyze the blood (if there was any) that soiled the cloth. Additionally, the dress-burning incident would not
have been of consequence. With the dress in question in the hands of authorities, the burning of another dress would not lead to an arrest as it did in Lizzie’s case. Modern crime scene investigators would have captured the scene with photographs and/or videotape. We would know exactly what Lizzie was wearing and how she reacted to the tragedy; everything would be in recorded evidence. The determinations of time of death in the Lizzie Borden case were merely guesswork. Experts at the time estimated that Abby died between 1-2 hours prior to Andrew. This conclusion was based on three factors: 1) Abby’s blood was coagulated and Andrew’s was not; 2) Abby’s body felt cooler to the touch than Andrew’s; 3) Abby’s stomach had a great deal of undigested food, while the food in Andrew’s stomach was well digested. Today, with modern forensic technology, the evidence presented would not determine that Abby died 1-2 hours before Andrew. First, the fact that Andrew’s blood was not coagulated is unusual, but not unheard of. When a
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The Jury Is Still Out Based upon modern forensic examination, would Lizzie Borden be found guilty of the crimes? In a mock trial presided over by Justices Rehnquist and O’Connor of the United States Supreme Court, a jury of Stanford Law School alumni, faculty, and students again found Lizzie not guilty. With the results of the many tests (blood samples, DNA testing, hair samples, etc.), perhaps we’d have a clear-cut answer. However, without that evidence from modern forensics, the jury, figuratively speaking, is still out. References Akin, L. L. (2005). Blood Spatter: Interpretation at Crime Scenes. The Forensic Examiner, 14(2), 6-10. Auito, R. (2005). Lizzie Borden Took an Ax. Court TV [On-line]. Retrieved September 2005 from http://www.crimelibrary.com/notorious_ murders/famous/borden/index_1.html. Clark, D. M. (2005). How Lizzie Borden Got Away with Murder. Crime Magazine, An Encyclopedia of Crime [On-line]. Retrieved September 2005 from http://crimemagazine.com/borden .htm.
Forensic Computer Investigation Brings Notorious Serial Killer BTK to Justice by Erica B. Simons
Dennis Rader (BTK Serial Killer)
The BTK Investigation On January 15, 1974, the nation was shocked at the news that four people, Joseph and Julie Otero and their 11-yearold daughter and 9-year-old son, had been brutally murdered in their home. These would be the first of BTK’s string of murders. Those that followed were spread out over many years, with the final confirmed killing carried out on January 19, 1991. Besides the Otero family, all of the BTK victims, whom he labeled his “projects,” were women who varied widely in age and lived in the same general area. BTK was an oddity among other serial killers in that he regularly engaged police and the media in cat-and-mouse type games involving cryptic messages, puzzles, and other forms of communication threaded with half-truths, lies, and false leads. This was especially strange in comparison to other serial killers, as psychopaths who would carry out such heinous crimes will normally avoid any activity that could get them caught. At one point BTK even sent police a biographical sketch of himself, although police doubted the information was correct, a hunch that was later confirmed when the killer was finally identified. BTK mysteriously ended his frequent communications with police and the press in 1979 and was not heard from again until 2004, when he sent a letter to The Wichita Eagle claiming responsibility for a murder he committed in 1986. Until that
Between 1974 and 1991, a serial killer terrorized the citizens of Wichita, Kansas, murdering 10 people under the moniker he created for himself: BTK, which stood for “bind, torture, kill.” The Wichita police dedicated more than 100,000 hours, investigated thousands of suspects, and spent hundreds of thousands of dollars trying to identify and capture BTK. What made this case especially bizarre was the killer’s habit of sending the Wichita police taunting communications over the years. Detectives used many tactics to encourage BTK to send these communiqués, believing they would eventually lead to the killer’s identification and capture. Decades later, they were proven correct and the sadistic murderer was finally brought to justice.
time, the murder had not been linked to BTK. This led detectives to pursue a new investigation centered on that cold case, which involved the gathering of thousands of DNA samples from potential suspects. Unfortunately, this angle of the investigation did not lead to any concrete results and the case remained unsolved. However, this would not be the last time BTK would be heard from; in the months leading up to his arrest he planted numerous cryptic messages and bizarre symbolic objects around the Wichita area. In 1983 police tried to revamp the BTK investigation by launching two teams of detectives on a cross-country trip to collect voluntary saliva and blood samples from 200 potential suspects for comparison to DNA left at some of the crime scenes. Most of this DNA was the killer’s semen, which was a type that would only match 6% of all men. All but 12 of the tested individuals were cleared, five of whom had refused to comply with the tests. However, no charges were filed based on the effort. In 1984, police established a task force named “The Ghostbusters” to compile and reanalyze the massive amount of evidence collected in the BTK case. This task force worked with a computer consultant to develop a database that analyzed this evidence to create a list of potential suspects and hopefully find links between the crimes that investigators had not yet discovered. This task force revealed that all the BTK
murders had taken place less than 4 miles apart from one another, suggesting that BTK was familiar with and lived in the area. The task force also determined that one of the letters BTK had sent to the media had been Xeroxed at the Wichita State University (WSU) library. One of the poems BTK sent to the media was also modeled after the poem “Oh Death,” which was published in a WSU textbook. These discoveries suggested that BTK had likely attended the university. Two lists of potential suspects were created based on the task force’s findings. One list contained the names of all men living within 1 1/4 miles of the victims’ homes. The other contained the names of all white males who had attended WSU between 1974 and 1979. Unfortunately, these lists did not lead to BTK’s identification. In 1997 a former FBI agent helped create a profile of BTK directing police to seek a graduate student or professor in WSU’s criminal justice department who would have been in his mid-to-late 20s at the time of the murders. This profile described BTK as an avid reader of materials about serial killers and theorized that he had either left the Wichita area, died, or been institutionalized or imprisoned, a guess based on the abrupt end to BTK’s string of murders. Another profiler suggested that BTK was intelligent but also extremely immature, a theory based on the mind games the killer played with police
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and the fact that he did not sexually assault his victims. This profiler theorized that BTK was not married and that any relationships he had with women would be superficial. He was also described as a compulsive psychopath who loved to kill and would never stop his pattern of crimes. Detectives also formulated their own profile based on the information BTK provided in his communiqués. BTK’s messages often involved police lingo, leading to suspicion that he worked in law enforcement. This led to a request that all male retired police officers in the area voluntarily provide DNA samples for comparison to the killer’s DNA. All but one officer complied with this request, but the tests did not lead to any new suspects. The Break in the Case: BTK Slips Up BTK sealed his fate when he made the mistake of mailing a package containing a computer disc and 3x5 index card to a Wichita television station. This package was taken to police officials, who quickly went to work to glean any evidence contained in this, the latest of BTK’s communiqués. The disc that Rader sent contained only one file labeled “TestA.rtf,” which contained a single sentence directing detectives to read the index card he had sent with the disc. Fortunately, the disc contained more evidence than was immediately visible. This evidence, uncovered through modern forensic computer detection, would eventually lead to BTK’s capture. The disc was sent to the Wichita Police Department’s forensic computer crimes unit, where a detective went to work delving into the disc’s hidden files and cryptic digital information. Within minutes, this detective uncovered residual information that identified the last person who had used the disc: someone named Dennis. The detective then dug deeper to learn the disc had been used on computers registered to two local organizations, Christ Lutheran Church and the Park City Library. A simple Internet search on Christ Lutheran Church provided the name of the congregation’s president: Dennis Rader.
To many detectives, this exciting discovery seemed too good to be true. They suspected BTK was simply playing one of his twisted games and that the information uncovered on the disc would lead to yet another dead end. A sentence that BTK had written on the index card he’d sent with the disc fueled this suspicion. It read: “Any communications will have a # assigned from now on, encase one is lost or not found.” The misspelled word “encase” concerned detectives because it is the name of a sophisticated software program that police use in forensic computer investigations. Since it was already suspected that BTK was involved in law enforcement, many worried that the killer knew of the program and had purposely misspelled the word as a hint that the information on the disc was nothing more than another false clue. Still, the investigators ran with the information, which provided the most promising lead they had uncovered in the case so far. Detectives located Dennis Rader’s home and found a Jeep Cherokee parked in the driveway, the same type of car that had been captured on surveillance videos at a location where BTK had planted one of his cryptic messages. This detail had been withheld from the media, which gave police additional hope that they were on the right track. Police carefully conducted the final stages of their investigation to ensure that Dennis Rader truly was BTK before taking him into custody. These measures included comparing a DNA sample subpoenaed from Rader’s daughter to DNA that BTK had left at his murder scenes. This DNA was a close match, confirming that the serial killer truly had been found. Nine days later Rader was taken into custody. The Man Behind the Murders: About Dennis Rader Rader, born in 1945 and raised in Wichita, was married with two children. Although he wasn’t well liked by many in his life, few people who knew Rader believed he could be dangerous. His ability to fool those around him and hide his psychopathic personality was evidenced by his roles as church council president and
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Boy Scout troupe leader. Once Dennis Rader was apprehended, several clues that investigators missed became glaringly obvious. For example, Rader graduated from WSU with a degree in criminal justice and had worked with two of the BTK victims. He also lived near the victims, just down the street from one of them. Rader had served in the Air Force, coinciding with some investigators’ belief that the BTK moniker could have been based on the Air Force squadron term “Born To Kill.” One of the puzzles that BTK sent to police even contained hidden words and numbers hinting at his identity, including “DRader” and “6220,” which was Rader’s house number. Once Rader was captured, he provided a full confession filled with bizarre and disturbing revelations. He claimed his sadistic sexual appetite began when a “demon” possessed him at a young age, and said he was driven to murder to fulfill fantasies involving bondage and torture. He also believed his victims would serve him as “sex slaves” in the afterlife. At the time of Rader’s arrest he was employed as a city compliance officer for Park City, Kansas. In this position Rader was responsible for enforcing city codes and regulations, such as dog leash laws and minor public nuisance violations. Numerous complaints were made about the overzealous, bullying way he carried out his duties, but no disciplinary action was ever taken against him. Rader even allegedly harassed one citizen to the point of peeping into her windows, banging on her doors, and putting her dog to sleep. This woman made at least one complaint to local police, but they dismissed her claims. Desperate to escape Rader’s persistent and increasing harassment, the woman was finally forced to move out of the area. Before holding this position with the city, Rader worked with ADT Security Services, installing security systems in customers’ homes, and with the U.S. Census Bureau, going door-to-door collecting information from citizens. It is theorized that Rader encountered some of his first victims while working for these organizations. Rader often tricked his victims into letting him into their homes using his
authority with Park City and his roles with his church and the scouting group he led. He even used the church to carry out some of his sadistic activities; in addition to using the church computer to create some of his communiqués, he once took a victim to the church basement, where he took photos of the body posed in bondage positions for his personal collection. Rader’s killing spree was far from over when he was finally captured. Police have now revealed that Rader had selected his future target victim and had even set October 22, 2005 as the day he would attack her. Officials have notified this potential target, whose identity remains anonymous. Rader’s Trial and Sentencing Rader’s trial was completed in 2005, just a surprisingly short amount of time after his arrest. After Rader pled not guilty and waived his right to a jury trial, prosecutors presented their case, which included evidence ranging from his confession to the DNA that matched him to some of the crime scenes. Items found during searches of Rader’s home, Park City office, and camper also helped seal the killer’s fate, including a knife and mouth gag used in the Otero family murders. Rader kept copies of nearly all the messages he sent to the media and police, which he planned to eventually digitally scan for safekeeping. He also stored mementos from his murders, including photos and personal items taken from the victims’ homes, and preassembled “hit kits,” bags containing rubber gloves, tape, handcuffs, rope, and bandannas for use in future attacks. Rader also collected hundreds of self-made pornographic materials, often photos of women and children that he wrote and drew over to depict his sadistic sexual fantasies. He also had a collection of dolls that he practiced bondage with; these were found bound with rope and handcuffs. Photos that Rader had taken of himself in various bondage poses wearing women’s clothing, such as pantyhose and bras, were also located. In one photo Rader was halfburied in a shallow grave that had been intended for one of his victims. In court Rader provided detailed and graphic accounts of how he had stalked
and murdered his victims. When the judge overseeing the case asked Rader whether he had killed to satisfy his sexual fantasies, Rader answered yes. Rader’s defense team took very few measures to fight his conviction. They did not request a change of venue and made no attempt to suppress any of the evidence brought against their client. They also did not postpone Rader’s trial, although such a request would almost certainly have been granted. Rader’s sentencing hearing was mostly a formality; the only issue the judge was asked to rule on was whether Rader would serve his 10 life sentences consecutively or concurrently. Since Rader’s murders were committed before 1994, the year that Kansas reinstated the death penalty, he was not eligible for execution. However, the judge gave Rader the harshest sentence possible: 10 consecutive life terms with no chance of parole for 175 years, ensuring that Rader would be imprisoned until the time of his death. An additional trial was held this October to help determine how limited Rader’s life in prison would be. At this trial the judge recommended that the Kansas Department of Corrections deny Rader access to any materials or objects that would fuel his sadistic sexual fantasies, including pictures of people or animals. The judge also ruled that Rader should not be allowed to view, listen to, or read any media coverage of his crimes, since he is known to thrive off this attention. The Kansas Department of Corrections will make the ultimate determination as to what materials Rader will have access to in prison. However, it is expected that the judge’s opinion will strongly influence the agency’s decision on the matter. Other issues were also decided during this trial, including whether Rader should be treated as a sex offender and pedophile. The judge ruled that Rader should be considered a sex offender, but did not specifically label him a pedophile. The judge also ordered Rader to pay $42,000 in restitution and ruled that all evidence from the BTK case, including personal items that had belonged to the victims, be held by police officials until Rader had completed his appeals process. At that time the issue
will again be raised to determine the future of these materials. The families of Raders’ victims are expected to be involved in these trials, fighting to prevent Rader from profiting from the sale of the items. Kansas state law prohibits criminals from profiting from telling the story of their crimes, but similar laws in other states have been ruled unconstitutional. Kansas does not have laws barring Rader from profiting from the sale of his personal possessions and items saved as mementos of his crimes. The final issue decided during this trial declared that the thousands of DNA samples collected from former suspects during the BTK investigation be destroyed. These DNA samples were not entered into any database, preventing them from being used in any future cases and protecting the subjects’ privacy. Rader’s Future in Prison Today Rader is being held in a tiny cell at the El Dorado prison, secluded from fellow inmates for his own protection. In an ironic twist of fate, one of Rader’s current prison guards had actually been one of his targeted victims. This guard was a teenager when Rader knocked on the door of her home in 1977, intending to gain entry and attack her. However, she did not answer his knocks so Rader moved on and chose an alternate victim living down the street. Rader still faces numerous civil suits from his victims’ family members aimed at preventing him from profiting from the BTK murders. Congress is also working on bills to prevent Rader from being eligible for an honorary military burial at one of the national cemeteries, a right he otherwise would have been guaranteed as an Air Force veteran. While developments are still ongoing in Rader’s case, one thing is sure: This killer will die behind bars, never again free to carry out his sadistic murderous fantasies. Editor’s note: For a complete list of reference materials and an extended version of this article, visit www.acfei.com.
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By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABPS, DABFM, DAPA
hen Ray Tomlinson developed the first e-mail application in 1971, he did so for the Advanced Research Projects Agency Network (ARPANet), a computer network built by and for the United States 1,2 Department of Defense. When Tim Berners-Lee and Robert Cailliau developed the protocols that gave rise to the World Wide Web in 1989, they did so for CERN, a laboratory in Geneva dedicated to high-energy physics and nuclear research. When Yair Goldfinger created instant messaging (IM) technology in 1996, he did so with three friends for Mirabilis, a company they started and initially ran from a basement in Israel. Each of these inventors had a clear purpose and intended application for their technology, whether it was to improve national defense, expedite research, enhance business efficiency, or facilitate interpersonal communication. Undoubtedly each was able to predict constructive unintended uses of their individual creations, as well as unexpected individual and global benefits. For example, Goldfinger developed his IM protocol with a $10,000 starter loan as a fun way for friends to stay in touch with one another. Yet just 2 years after its development Goldfinger and his partners sold Mirabilis to America Online (AOL) for over $400 million. Known as ICQ (an acronym for “I seek you”), Goldfinger’s IM application is the preferred IM platform internationally. ICQ was downloaded by 300 million users by mid-2004, and was download.com’s most popular program for 7 years in a row. AOL used ICQ technology to develop Instant Messenger (AIM), the most popular IM platform in the United States with 195 million registered users. Instant messaging—which includes Internet chat-rooms and is available on mobile communications systems—is considered the world’s fastest growing form of technology-based communication.
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Getting Connected Ironically, the very technology that was designed to connect people has resulted in greater interpersonal distance and isolation. Goldfinger himself acknowledged concern regarding the impact IM has had on social interaction and lifestyle, referring to the decrease in face-to-face verbal exchange and the increase in children’s indoor-virtual versus outdoor-physical play. At the same time that IM has decreased in-person interaction, it has provided a new venue for both positive and negative social connections that might not have taken place otherwise. On the positive side is the increasing number of people who use ICQ/“I seek you” chat-rooms and Internet dating services to find, meet, and even marry a romantic partner. On the more negative side is the increasing number of people who use ICQ (also an acronym for “I cheat quietly”) to carry on extramarital affairs. An inherent (though perhaps unintended) feature of ICQ is the possibility for total anonymity. In cyberspace men and women are free to be and act however they wish, as driven by their needs, limited only by their imagination, and
with no one the wiser. In turn, the anonymity of the Internet allows for increased disinhibition, providing an environment in which the socially insecure can reveal themselves without the anxiety associated with face-to-face interaction. Those who are lonely and desperate for attention and those who feel worthless and yearn for validation can receive what they crave with the added attraction of being able create a vision of the other person that fulfills their fantasies. Those unable to take risks in the real world are emboldened to do so in the virtual world of cyberspace. While letter writing also allows for disinhibition, chat-rooms and IMs are uniquely different in that disinhibition occurs in the context of anonymity with an illusion of safety, combined with immediacy of response or reinforcement. This potent combination often leads to a sense of immediate connection or premature emotional intimacy that, whether real or perceived, can be intensely rewarding, alluring, and even intoxicating. With increasing frequency, emboldened, impulsive risk-taking is resulting in these connections evolving into emotional affairs, virtual relationships that meet the individual’s needs without violating the taboo of involving a “real” person. Typically, the chatter becomes sexual in nature, may become elaborately detailed, and in order to keep the “sex-buddy” interested (so he or she won’t move on), reflective of the individual’s fantasies rather than real-life preferences and tolerance. Going Offline Research conducted by Zogby International revealed that one out of six women (17%) believe they can find a meaningful relationship and sexual fulfillment in cyberspace.3 A remarkable 80% of these women eventually make the choice to take their chat-room affair into the real world, often with disastrous and deadly results. A rather bizarre example of this growing trend is the cybersex relationship between chess prodigy Oliver Jovanovic (a then 30-year-old doctoral student in
molecular biology at Columbia University) and Jaime Rzucek (at the time, a 20year-old Barnard College English and philosophy major at the end of her freshman year), who met in a chat-room during the summer of 1996.4
“While letter writing also allows for disinhibition, chat-rooms and IMs are uniquely different in that disinhibition occurs in the context of anonymity with an illusion of safety, combined with immediacy of response or reinforcement. This potent combination often leads to a sense of immediate connection or premature emotional intimacy that, whether real or perceived, can be intensely rewarding, alluring, and even intoxicating.” Without using their real names, Jovanovic and Rzucek exchanged over 57 pages of macabre, titillating e-mails and IMs in which each divulged in detail their experience in sadomasochism and interest in “snuff ” films. Less than 6 months later, at 3:00 a.m. on November 22, the couple shared their first phone conversation that lasted 4 hours. At 8:30 that evening, Jovanovic met Rzucek at her dorm and the two went to a restaurant where they continued their on-line revelation of common sadomasochistic interests. The couple left the restaurant at 10:30 and went to Jovanovic’s apartment “for tea,” followed by over 20 hours of consensual, mutually gratifying bondage, domination, and sadomasochism (BDSM) as described by Jovanovic, or brutal, perverse torture, as described by Rzucek. After a prolonged struggle (during which she dressed herself piece by piece) Rzucek was able to flee Jovanovic’s apartment some time on the 23rd. She then took the subway back to her dorm, fell asleep at 10:00 p.m., woke, showered, and then visited a male friend whom she
told about her ordeal. Checking from the campus library on the 24th, Rzucek found an e-mail from Jovanovic informing her she had left her necklace at his apartment. Rzucek responded and their cyber-sex econnection continued. In one e-mail Rzucek described feeling “quite bruised mentally and physically, but never been so happy to be alive” and “the taste is overpoweringly delicious, and at the same time, quite nauseating” (a line she took from Burroughs’ controversial 1959 book, Naked Lunch).5 Eventually Rzucek filed a report with the police against Jovanovic, and four days after the incident she underwent a medical examination at Barnard’s medical center. Though Rzucek reported profuse bleeding from both breasts as a result of extensive abuse, only a fading bruise on one was found. She alleged excruciatingly painful vaginal and anal penetration resulting in three days of heavy bleeding, yet a highly sensitive test found no evidence of blood in the rectum. Although she claimed to have been “hog-tied” and described endless struggling against the restraints, no rope marks, bruises, nor scratches indicative of such were found. Despite the absence of physical evidence, Jovanovic was arrested on December 5, 1996, and was portrayed as a “sexual sadist” by the media. During the last week of March 1998, just weeks before he was to defend his dissertation, Jovanovic was on trial on charges of kidnapping, aggravated sexual abuse, sexual abuse, two counts of assault in the second degree, one count of assault in the third degree, and sodomy. Armed with Rzucek’s e-mails, Jovanovic attempted to put forth a consent defense to all of the charges. This defense was thwarted by the judge’s questionable interpretation of the Rape Shield Law and by his instructions to the jury. Specifically, the judge’s application of the Rape Shield Law resulted in the redaction of a significant number of Rzucek’s e-mails; in particular, those that included her self-reported history of bondage and domination, her interest in “snuff ” films, and her general knowledge and seeming familiarity with
Winter 2005 THE FORENSIC EXAMINER 59
the alternative sexual lifestyle of BDSM. Prior to deliberation, the judge instructed the jury with good reason that consent is not a defense to assault. The 3-week trial ended on April 15, 1998, with the jury acquitting Jovanovic of the sodomy and aggravated sexual abuse counts, but convicting him of kidnaping, assault in the second and third degrees, and sexual abuse. On May 21, 1998, he was sentenced to 15 years to life for kidnapping with concurrent sentences for the lesser charges, resulting in a maximum sentence of 25 years to life. In February 1999, the New York Appellate Court reversed the conviction and ordered a new trial on the grounds that the Rape Shield Law had been applied in error, improperly hampering Jovanovic’s defense. After being detained for 20 months, Jovanovic was released. The new trial was set for September 4, 2001, and it was inevitable that all of Rzucek’s cyber-correspondence to Jovanovic would be admissible, publicly revealing she had perjured herself at the first trial. The prosecution’s appeal of the higher Court’s decision was denied and in a desperate effort to hang on to a disintegrating case, they offered Jovanovic a plea bargain, which he flatly refused. Within days of trial, Jovanovic’s case was dropped because Rzucek refused to testify. With a 5-year defense costing half-a-million dollars finally over, in October 2004 Jovanovic filed a lawsuit against New York City in which he claimed the allegations had harmed his reputation. There appears to be no question Jaime Rzucek’s cyberspace relationship with Jovanovic was consensual. Yet two questions remain: whether her self-representation as an experienced “pushy bottom” (the “submissive” in sexual sadomasochism who “pushes” the “dominant” to inflict greater pain) was true, partially true, or pure cyber-play, and to what degree she willingly participated in the 20 hours of sadomasochism (the true brutality of which may never be known). What is known is that Rzucek went offline with Jovanovic in November 1996, only one
month after reading an article in her college newspaper regarding a woman who was killed when she took her online relationship offline. Lost in Space Ironically, it was in 1994 that John Edward Robinson, Sr., discovered cyberspace and became enthralled with the opportunities it provided.6,7 Robinson had five computers in the home he shared with his wife (they were married in 1964 and, at the time, their four children were grown and living on their own). It wasn’t long before Robinson surfed into websites dedicated to his area of sexual interest: BDSM. It was online that in 1997 Robinson (whose online identity was Slavemaster) met Izabela Lewika, a Purdue University freshman studying fine arts who shared an interest in bondage. Shortly after forming a cyber-connection with Robinson, Lewika told her parents she received a summer internship in Kansas City, where Robinson lived. Though never seen again and believed to have been murdered in the fall of 1999, Lewika’s parents continued to receive intermittent e-mails from their daughter until early 2000. It was in the fall of 1999 that “Slavemaster” made a cyber-connection with 27-year-old Suzette Marie Trouten, who enjoyed the role of “slave.” He offered Trouten, a licensed practical nurse from Michigan, $60,000 to move to Kansas City and care for his diabetic, wheelchairbound father. In February 2000, having driven to Kansas City with her two dogs, Trouten called her family to let them know she’d arrived safely and was settling into a motel. After a call home on March 1, Trouten’s contact with her mother (which had been on a near daily basis) essentially stopped. Trouten had left Robinson’s phone number with her mother and when she received letters she instinctively knew were not written by her daughter (although they bore her signature), Trouten’s mother went to the police. In 2000, Victoria “Vickie” Neufeld moved to Houston to complete a
60 THE FORENSIC EXAMINER Winter 2005
practicum for her doctoral degree in psychology. Just before relocating, her marriage of 20 years ended in an unexpected divorce which she adamantly did not want. To compound her sense of loss and disconnection, the move separated Neufeld from her children. As a final assault to her sense of stability, Neufeld lost her job and was left with essentially no financial resources. A lonely and desperate Neufeld turned to cyberspace for connection and hope, choosing to seek comfort in sites she found familiar. A practitioner of BDSM, she placed an ad on a BDSM bulletin board, which drew numerous responses, but only one that spoke to her. Neufeld had received an e-mail from Slavemaster, who told her he was wealthy and had helped several professional women get started in Kansas City, where he was purportedly well-connected. Choosing to take a risk, she used the $100 Robinson sent her to drive to Kansas City, Missouri, arriving on Easter Sunday. In what should have been an obvious indicator of trouble ahead, Robinson had not reserved Neufeld a hotel room with his credit card, something he had said he would do. The second red-flag was Robinson’s day-late arrival and flood of excuses. Third was the elaborate “slave contract” he brought for her (and all his other BDSM partners), which she signed. Fourth was his “not by the rules” response when she told him the collar he had put on her was too tight; he bound her wrists and tethered them to the collar such that any movement actually tightened the collar. With this an edge of fear materialized, but desperate for the job he had promised she stayed for three days of sex games. On the third day, Robinson claimed he had to fly to Israel and sent Neufeld back to Houston with a promise to send a moving truck so she could move to Kansas City permanently. When the truck never arrived and her search of the web revealed there was no flight to Israel on the day Robinson indicated, Neufeld felt both humiliated and angry. She filed a report with the police explaining that
while she was a novice in BDSM she knew the “rules” and he had gone further than she wanted, turning consensual sex into criminal assault. In addition, she alleged that Slavemaster had stolen the sex toys and BDSM props she brought with her, representing a combined value of more than $500. Scripting a Security Threat Years prior to going online, Robinson met women with an interest in BDSM through personal ads combined with lucrative job offers in bogus and fraudulent companies he “owned.” Two women, 19-year-old Paula Godfrey in 1984 and 26-year-old Catherine Clampitt in 1987, were never seen again after being “hired” by Robinson. In the mid-1980s Robinson began visiting homeless and battered women’s shelters, posing as a philanthropist but never making a donation; he actually took steps (albeit, fraudulent) to open a home for “unwed mothers with no familial support.” It was through this “trolling” that in 1985 Robinson met 19-
year-old Lisa Stasi (who was separated from her abusive husband) and her infant daughter. Perhaps as the pinnacle of Robinson’s perversely manipulative behaviors, after Stasi’s 1985 disappearance, Robinson arranged for her daughter’s adoption by his own brother and sister-in-law, who were unable to conceive. A completely fraudulent, illegal adoption, Robinson’s brother gave him a total of $5,000 in fees for a non-existent attorney. At a distance, Robinson was seen as a dedicated husband and father, Christian businessman, Eagle Scout, and former choirboy. Minimal interaction with this one-time Kansas City “Man of the Year” (an honor he won by blatantly rigging the vote) provided sufficient opportunity to see a man motivated by self-interest who was chronically manipulative of others and pathologically deceitful. A brazen forger, Robinson was seemingly addicted to theft and embezzlement. With multiple arrests for financial scamming dating back to the late 1960s, he had been placed on probation, received reduced
sentences, and charmed or weaseled his way out of others. Finally in 1987, through combined sentencing in three separate convictions in two jurisdictions, Robinson served six of the 6-to-19 year prison sentence and was released on parole in March 1993. Prior to his release, Robinson met Beverly Bonner, a prison librarian married to a prison doctor. Within months of Robinson’s release, Bonner filed for divorce, moved to Kansas City where she was to work in another of Robinson’s alleged businesses, and wasn’t seen after early 1994. Bonner’s family attributed her seeming disappearance to the world-travel she previously told them her new job would require. Letters the family received from various parts of Europe reinforced this belief; it was later learned Robinson’s wife had mailed the letters while traveling at his request, under some pretense. In the summer of 1994 Robinson responded to a personal ad placed by Sheila Faith, a 46-year-old woman with an interest in BDSM. Having recently
Winter 2005 THE FORENSIC EXAMINER 61
lost her husband to cancer, Faith was left to care for their 15-year-old daughter who suffered profound disabilities caused by cerebral palsy. She was lonely and living hand-to-mouth on the monies she received from social security and help from friends. Lured by Robinson’s promises of financial security and specialized treatment for her daughter, Faith decided to accept his invitation to Missouri before driving on to see relatives in Texas. Though Faith and her daughter were never seen again, her social security checks (and those of her daughter) were cashed monthly until June 2000, and her sisters received occasional typewritten letters, although they didn’t seem to reflect the Sheila they knew. Virus Alert The police had been investigating Robinson in relation to the disappearance of Godfrey followed by Stasi. The families of both women had filed missing person reports with the police and reported the alarm raised by receiving letters that were uncharacteristic of their loved ones in style and content. Over time, the other missing women were connected to Robinson, followed by Neufeld’s complaint of Robinson’s perverse violence and theft. Arrested on June 2, 2000, the media identified Robinson as being the “first Internet serial killer.” A total of five female bodies in various stages of decomposition were found in chemical drums on Robinson’s property and a rented storage unit. Identified as Beverly Bonner, Sheila Faith and her daughter, Izabela Lewika, and Suzette Trouton, all five had been killed by one or two blows to the head after suffering untold torture. Robinson later admitted to having raped Sheila Faith’s daughter before killing her. He also confessed to having raped, sodomized, and beaten Lisa Stasi before her murder, and to having killed Paula Godfrey and Catherine Clampitt. In 2001 Robinson went on trial in Kansas for the capital murders of Lewika and Trouten; the rape, sodomy, and murder of Stasi; and the theft of Neufeld’s sex
toys.8 Found guilty by jury, in January 2003 he was sentenced, receiving two death sentences and one life sentence. Robinson was still facing multiple murder charges in Missouri (including capital murder) related to the remaining victims. Compared to Kansas, which had reinstated capital punishment in 1994 and at the time had only four men on death row, Missouri was aggressive in enforcing death sentences. Knowing this, in midOctober 2003 before a Missouri Superior Court judge, Robinson acknowledged the prosecution had sufficient evidence to convict him for multiple counts of capital murder. In brief, Robinson manipulated a plea bargain in which he indirectly admitted guilt and was guaranteed life sentences (rather than death) in exchange for providing authorities with information regarding the location of the remaining bodies. Robinson is now housed on death row in Kansas in the administrative segregation unit of the El Dorado Correctional Facility along with six other inmates.9 In 2004, existent death penalty law in Kansas was ruled unconstitutional as it mandated a death sentence when mitigating evidence presented at the penalty phase balanced that in aggravation.10 The Tangled Web Despite her loneliness and desperation at the time she was lured into Robinson’s web, Vickie Neufeld had the sense to set up certain safety precautions. She insisted on meeting in a public place, gave Robinson’s cell phone number to the head of a sadomasochist group she was associated with in Houston, and pre-arranged “safe calls.”11 A safety measure often used by those who practice BDSM, “safe calls” are made (typically by the submissive) to a third party who knows the couple’s location. If the submissive fails to make an arranged call, the third person notifies the authorities. Robinson was reportedly infuriated by the safe calls Neufeld is said to have made. His anger undoubtedly contributed to the brutality of the experience, but also probably saved her life by removing her
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isolation and his anonymity from their encounter, conditions he strategized for his own potentially deadly purposes. Neufeld’s ordeal with Robinson did not dampen her interest and involvement in BDSM. With a doctoral degree in psychology, Neufeld is the editor of Silenced No Longer, a non-pornographic website dedicated to alternative relationships, in particular, BDSM.12 End Notes 1. Wolinsky A. (1999). The history of the internet and the world wide web. Berkeley Heights, NJ: Enslow Publishers. 2. Allan, R. A. (2001). A history of the personal computer: The people and the technology. London, Ontario: Allan Publishing. 3. Available online at http://www.zogby.com/ 4. The People of the State of New York v. Oliver Jovanovic. (1999). Available online at http://www.anusha.com/jov-deci.htm 5. Burroughs, W.S. (1959). Naked Lunch. France: Olympia Press. 6. See www.kcstar.com/item/pages for an extensive archive of articles pertaining to Robinson, his victims, his legal history, and trials. 7. Singular, S., & Douglas. (2003). Anyone you want me to be: A true story of sex and death on the internet. Scribner: New York, NY. 8. Morrison, P. J. (2000). Third amended complaint. Available online at http://www.courttv.com/trials/robinson/docs/ complaint3.html. Also, see Neufield, V. (Ed.). Silenced no longer. Available online at http://www.silencednolonger.net/ 9. Available online at http://www.accesskansas .org/government/agencies/ 10. In the Supreme Court of the State of Kansas (No. 81,135). State of Kansas v. Michael Lee Marsh, II. Available online at http://www.kscourts.org/kscases/supct/2004/200 41217/81135.htm 11. Kennedy, H., & Siemaszko, C. (2000, June 6). Harrowing tale of s&m escape: Woman’s call led cops to slay suspect. New York Daily News. 12. Neufeld, V. (Ed.). Silenced no longer. Available online at http://www.silencednolonger.net/
About the Author Dr. Bruce Gross is a Fellow of the American College of Forensic Examiners Institute (ACFEI) 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.
CE TEST PAGE: SIX TOTAL CREDITS AVAILABLE (WITH THE COMPLETION OF ALL 6 CE TESTS) In order to receive CE credit, each participant is required to do the following: 1.) Read the continuing education 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 the $15 payment for each CE exam taken. You will receive a certificate of completion for one continuing education credit for each exam you pass with a grade of 70% or above. The participants who do not pass the exam are notified as such and will have a second opportunity to complete the exam. Any questions, grievances, or comments should be directed to the ACFEI CE Department by phone at (800) 423-9737, faxed to (417) 881-4702, or emailed cedept@acfei.com.
Learning Objectives for “Questions in the Evaluation for Threat Assessment”
Learning Objectives for “The Effect of Lunar Phases on Domestic Violence Incident Rates”
After studying this article, participants should be able to do the following: 1.) Develop questions for a risk assessment evaluation of a high school student. 2.) Help make the school environment a safe place by knowing the key characteristics of students who are at risk to carry out violent attacks in the school and identifying these students. 3.) Intervene with students who have clinical problems of depression and suicidal ideation.
After reading this article, participants should be able to do the following: 1.) Discuss the results of several major studies that sought to determine the impact of lunar phases on human behavior. 2.) Determine whether the phases of the lunar cycle have quantifiably significant effects on domestic violence incident rates. 3.) Identify the reasons why the myth of the lunar effect and its perceived impact on criminal incident rates exists in the law enforcement community.
Article 1: CE test for “Questions in the Evaluation for Threat Assessment” (See page 6 for article.)
Article 2: CE Test for “The Effect of Lunar Phases on Domestic Violence Incident Rates” (See page 13 for article.)
1.) A student who acts out violently in school has usually told _____ about his or her plans. A. No one. B. The parent to whom he or she feels the closest. C. A trusted friend who will tell no one. D. A teacher with whom he or she feels close.
1.) The variables used in this study were lunar phases and: A. General crime rates. B. Suicide incident rates. C. Domestic violence rates. D. Reported crisis rates.
2.) A student who carries out a shooting in school usually: A. Acts in the heat of the moment. B. Acts when he or she has been triggered by the ‘last straw.’ C. Has been planning and thinking about the attack. D. Gets the idea from a close friend.
2.) For the purpose of this study, domestic violence rates were listed for how many days within each month? A. 1 day B. 2 days C. 3 days D. 4 days
3.) Students who act out violently in school usually: A. Have easy access to weapons. B. Don’t think much about weapons before the event. C. Steal their weapons several days before the event. D. Do not like weapons per se. 4.) Students who have carried out attacks against others in school usually: A. Are normal and healthy except for anger and grudge problems. B. Are depressed and either think about suicide or have made suicide attempts. C. Have in their academic record a past diagnosis of ADHD or Asperger Syndrome. D. Suffer from a severe personality disorder.
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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4.) True or false: When the moon appears full to an observer, it is always at the point when it is closest to the earth (perigee) and exercises the greatest gravitational pull on the earth. A. True B. False
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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3.) When an individual holds a particular belief, especially concerning observable patterns, and then searches for incidents that stand to confirm this belief, this is known as: A. Personal bias. B. Incident confirmation. C. Rate redundancy. D. Perception bias.
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Statement of completion: I attest to having completed the CE activity. Please send the completed form, along with your payment of $15 for each test taken. Fax: (417) 881-4702, or mail the forms to ACFEI Continuing Education, 2750 E. Sunshine, Springfield, MO 65804. If you have questions, please call (417) 881-3818 or toll free at (800) 423-9737.
Winter 2005 THE FORENSIC EXAMINER 63 Take CE Tests online: www.acfei.com (select “Online CE”)
CE TEST PAGE: SIX TOTAL CREDITS AVAILABLE (WITH THE COMPLETION OF ALL 6 CE TESTS)
Learning Objectives for “Properly Documenting a File and Forensic Examination of IME Doctors”
Learning Objectives for “Study and Identification of Human Remains in Uruguay: 1950-2001”
After studying this article, participants should be able to do the following: 1.) Provide useful information to health care specialists on better documentation of case files. 2.) Introduce principles and practices that facilitate better clinical documentation protocols to support a case file. 3.) Effectively defend their case files in the event of a review by an independent examiner or third party adjuster.
After studying this article, participants should understand the following: 1.) Forensic anthropology and its contributions to the medico-legal systems in Uruguay and around the world. 2.) The degree to which Uruguay’s identification of human remains has improved since the Forensic Anthropology Laboratory at the Judicial Morgue of Montevideo was established. 3.) The importance of having a forensic anthropology laboratory where forensic anthropologists, pathologists, toxicologists, and law enforcement officers are able to work as a team to identify human remains and solve crimes.
Article 3: CE test for “Properly Documenting a File and Forensic Examination of IME Doctors” (See page 20 for article.)
Article 4: CE Test for “Study and Identification of Human Remains in Uruguay: 1950-2001” (See page 34 for article.)
1.) When documenting a patient file, the treating doctor, especially medical or chiropractic doctors, should include: A. A detailed case history and chronology of past illnesses. B. Vital signs. C. Relevant orthopedic and neurological inventories. D. A differential and final diagnosis. E. All of the above are correct.
1.) Forensic anthropology is defined as: A. A modern branch of forensic medicine. B. The study and identification of human skeletal remains in a legal context. C. The study of human skeletal remains. D. The physical study of human remains.
2.) For any type of doctor, informed consent is: A. Unnecessary. B. Optional and redundant. C. Not a good idea because it confuses the patient. D. An important, legally protective factor for the doctor and the patient. 3.) For any doctor, obtaining a second opinion is: A. A clever way to run up the bill. B. A prudent option when there is doubt about a particular patient’s diagnosis or therapeusis. C. A time-consuming exercise that usually does not solve the problem. D. A good way to get a professional friend of yours involved in a case. 4.) When a case file has been attacked by an independent examiner (IE), the doctor should: A. Obtain the IE’s curriculum vitae and examine weaknesses in it. B. Read the IE’s report carefully and examine mistakes, half-truths, and fictional conclusions. C. Consult his or her database (if applicable) on that IE and see if the report reads the same as the other reports the examiner has rendered. D. Create a rebuttal pointing out mistakes and problems with the IE’s report and offering substantiating literature/documents to bolster the arguments. E. All of the above are correct. Evaluation for Article 3: (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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4.) True or false: The term “forensic anthropology” was coined in the 1970s. A. True B. False 5.) True or false: Recollection and later analysis of unknown human skeletal remains is a more difficult type of case because there is not anything with which the human remains can be compared. A. True B. False
Evaluation for Article 4: (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.) What is the most commonly used method of identifying human skeletal remains in Uruguay? A. Skull-photo comparison by digital video superimposition B. DNA fingerprint analysis C. Dental chart comparisons D. Radiographic comparisons
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2.) An identification of a person can take place on: A. A living person. B. A cadaver. C. The skeletal remains of a person. D. All of the above answers are correct.
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Statement of completion: I attest to having completed the CE activity. Please send the completed form, along with your payment of $15 for each test taken. Fax: (417) 881-4702, or mail the forms to ACFEI Continuing Education, 2750 E. Sunshine, Springfield, MO 65804. If you have questions, please call (417) 881-3818 or toll free at (800) 423-9737.
64 THE FORENSIC EXAMINER Winter 2005 Take CE Tests online: www.acfei.com (select “Online CE”)
CE TEST PAGE: SIX TOTAL CREDITS AVAILABLE (WITH THE COMPLETION OF ALL 6 CE TESTS)
Learning Objectives for “The Use of Forensic Accounting Techniques in the Determination of Intellectual Property Damages”
Learning Objectives for “Forensic Examination of CCTV Digital VTR Surveillance Recording Equipment” After studying this article, participants should be able to do the following: 1.) Understand the differences between analogue and digital CCTV VCRs. 2.) Understand that digital VCRs do not necessarily record better on quality images than their analogue counterparts. 3.) Identify some of the measurement devices/equipment needed to monitor and measure the digital video signal.
After studying this article, participants should understand the following: 1.) The significance of intellectual property damages in the United States. 2.) The significance of a Daubert challenge and its effect on the financial expert’s testimony. 3.) Why forensic accountants are ideal for calculating financial damages related to intellectual property infringement lawsuits.
Article 5: CE test for “The Use of Forensic Accounting Techniques in the Determination of Intellectual Property Damages” (See page 40 for article.) 1.) Which statement correctly identifies the properties of trademarks and copyrights? A. Trademarks are governed by state statutes and copyrights are governed by federal statutes. B. Trademarks can last forever while copyrights are granted for the life of the author plus 70 years. C. A trademark is any confidential information unknown by the general public, and a copyright is any word, name, or symbol distinguishing goods and services. D. Laws governing copyrights and trademarks are covered by the Lanham Act. 2.) A patent is granted for what length of time? A. 17 years B. 70 years plus the life of the inventor C. 20 years D. Forever, as long as patent holder can demonstrate continuous business use 3.) What are four key skill sets that are ideal for a forensic accountant in calculating intellectual property infringement damages? A. Understanding of financial accounting, interviewing skills, understanding of microeconomics, and ability to defend logical conclusions drawn from incomplete data B. Interviewing skills, ability to analyze fingerprints, negotiation skills, and ability to examine foreign financial documents C. Interviewing skills, keen sense of direction, understanding of psychological profiling, and understanding international business law
Article 6: CE test for “Forensic Examination of CCTV Digital VTR Surveillance Recording Equipment” (See page 46 for article.) 1.) True or false: Digital VCRs always produce better quality pictures than analogue CCTV VCRs. A. True B. False 2.) True of false: Surveillance evidence videotapes should be played back on the same/similar VCR for optimum viewing identification purposes. A. True B. False 3.) Normal time-lapse VCRs review images: A. Continuously. B. Periodically. 4.) What function does a multiplexer perform in the playback of multiple camera inputs? A It provides simultaneous display of all camera input signals. B. It can alternately reveal each of the captured camera images on full screen. C. The multiplex signal is normally found within the vertical interval and is decoded during the playback process. D. All of the above answers are correct.
4.) What is the authoritative text governing the reports prepared by expert witnesses for Federal Courts? A. Rule 26 of the Federal Rules for Civil Procedure B. Title 15 of the USC C. Title 35 of the USC Evaluation for Article 5: (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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Evaluation for Article 6: (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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Statement of completion: I attest to having completed the CE activity. Please send the completed form, along with your payment of $15 for each test taken. Fax: (417) 881-4702, or mail the forms to ACFEI Continuing Education, 2750 E. Sunshine, Springfield, MO 65804. If you have questions, please call (417) 881-3818 or toll free at (800) 423-9737.
Winter 2005 THE FORENSIC EXAMINER 65 Take CE Tests online: www.acfei.com (select “Online CE”)
Cyril H. Wecht
Mortal Evidence: The Forensics Behind Nine Shocking Cases By Cyril H. Wecht, MD, JD, CMI-V; Greg Saitz, and Mark Curriden Things are not always as they appear, as world-renowned forensic pathologist Cyril Wecht and his coauthors Greg Saitz and Mark Curriden show in Mortal Evidence: The Forensics Behind Nine Shocking Cases, a riveting behind-the-scenes look at nine famous cases. In the nationally known baby case involving Amy Grossberg and Brian Peterson, Dr. Wecht reviews the evidence and comes to a startling conclusion. In fascinating detail, he demonstrates how the tools of forensic pathology often uncover murky, long-hidden secrets that crack seemingly unsolvable crimes. Writing in the first-person, Dr. Wecht leads you into the heart of the investigations, focusing each chapter on a single engrossing case. He reveals startling evidence that shows why JonBenet Ramsey’s killer most likely came from within her home, why O.J. Simpson probably had an accomplice in the murder of Nicole Simpson and Ron Goldman, shocking revelations about Robert Berdella’s grisly torture and sexabuse crimes against young men, and many intriguing facts about other infamous cases.
Forensic Aspects of Chemical and Biological Terrorism By Cyril H. Wecht, MD, JD, CMI-V Forensic Aspects of Chemical and Biological Terrorism by Dr. Cyril H. Wecht was designed to provide appropriate information to medical, scientific, public health, legal, and military experts and authorities as well as the general public. Each chapter has been written by a prominent expert in his or her particular field. A working familiarity with the wealth of current knowledge set forth is this volume will immeasurably contribute to the enhancement of public health and safety in the potentially dangerous period in which we live, and perhaps the even more dangerous years that lie ahead. This text provides practical advice on the avenues of dealing with the many forms of terrorism. The medicine, public health, psychology, and law enforcement experts address bio-weapons, chemical warfare agents, bombings, aviation attacks, the media’s influence, and several other areas of importance. This book will serve as an essential reference tool for anyone involved in homeland security and the prevention of and preparation for terrorist attacks. Cyril H. Wecht, MD, JD, one of the world’s leading pathologists, is the author of Who Killed JonBenet Ramsey?, Grave Secrets, Cause of Death, and hundreds of professional publications. He has served as president of both the American College of Legal Medicine and the American Academy of Forensic Sciences, and has appeared on numerous nationally syndicated television programs including NBC’s Dateline, Larry King Live, 20/20, Burden of Proof, and many others. He is a Certified Medical Investigator (CMI-V) and a lifetime member of ACFEI.
Research In Law Enforcement Selection By Michael G. Aamodt, PhD, FACFEI, DABFE
Michael G. Aamodt
Research in Law Enforcement Selection is a comprehensive reference for professionals who do assessment work with police departments and other law enforcement agencies. Other than a few dissertations that could not be obtained, all journal articles, theses, and dissertations relevant to law enforcement selection from 1970-2003 are included in this text. In addition, there are plenty of studies included that occurred before 1970 and after 2003. The author has sought to provide readers with enough information about each study that no original sources, which are often difficult to obtain, need to be consulted. The book is filled with meta-analyses (statistical reviews of the literature) investigating the validity of methods used to predict police performance. These methods include education requirements, cognitive ability, background variables, personality inventories, interest inventories, physical agility tests, assessment centers, and interviews. The first chapter of the book informs readers unfamiliar with meta-analysis about the purpose of meta-analysis and how to interpret the meta-analysis tables. The rest of the chapters include a discussion of the topic, tables listing the meta-analysis results, and a discussion of the results. Michael G. Aamodt, PhD, is a Fellow of American College of Forensic Examiners
Winter 2005 THE FORENSIC EXAMINER 67
Institute and a Diplomate of the American Board of Forensic Examiners. Dr. Aamodt is a professor of psychology at Radford University and has been a consultant with law enforcement agencies for over 20 years. He is a past president of the Society for Police and Criminal Psychology and is the author of several books including Applied Industrial/Organizational Psychology, Human Relations in Business, and Law Enforcement Selection: Research Summaries. Tabula Rasa By Shelly Reuben, DABFE
Shelly Reuben
Inspired by a real-life case of multiple murders in New York, Shelly Reuben took the seeds of a true crime mystery and created a heart-pounding novel with enough twists and turns to leave the reader breathless. Tabula Rasa is not only a gripping and entertaining crime novel, but also a sensitive exploration of the deeper issue of what defines a family and an individual. Investigator Billy Nightingale and his brother-in-law, Officer Sebastain Bly, are called in to investigate a house fire that killed two young children. Suspicious details at the fire scene and the discovery of a baby hidden underneath the porch put Billy and Sebastian on the trail of a murderous mother. Later in her life, the young survivor, adopted by Sebastain and his wife, must confront her horrifying past in a chilling showdown with her mother who is determined to finish what she started. Shelly Reuben is also the author of Origin and Cause, Spent Matches, the Edgarnominated Julian Solo, and Weeping. She is a licensed private detective, a certified fire investigator, and has been investigating fires and arson throughout the United States for more than 20 years. She is a certified member of the International Associa-
tion of Arson Investigators, which certifies less than 1,000 fire investigators in the entire world. Reuben also runs her own fire and arson investigation company that she co-founded with her late husband. She is a Diplomate of the American Board of Forensic Examiners and has been a member of ACFEI since 1996.
Red Teaming: Identifying Terrorist Targets and Tactics—The Don L Rondeau Method By Don L. Rondeau, MS, CJ, CHS-V
Don L. Rondeau
Through his vast and impressive experience and knowledge concerning security protocols and measures, Don L. Rondeau has authored a book that is a vital tool for anyone desiring to protect assets and lives. Based off Rondeau’s personal investigation of a string of over 50 robberies, Red Teaming: Identifying Terrorist Targets and Tactics—The Don L. Rondeau Method explains to its readers the science that is needed to become successful in red teaming. Don L. Rondeau, MS, CJ, is a member of ACFEI and is Certified in Homeland Security at Level V (CHS-V). He is currently employed as the Director of Intelligence for a national counter-terrorism program. Prior to his appointment to this current post, Don served as the Director of Claims and Security for a national transportation support association where he was charged with representing the security interests of the trucking industry. Rondeau routinely interacts with various county, state, and federal cargo theft and terrorism task forces as well as various elements of military intelligence. He has a broad and distinguished career, having served as a contract investigator for the Department of the Interior and as the chief
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security consultant to the embassies of the States of Kuwait and Qatar. As CEO of the publicly traded Rondeau & Smith, Inc., Rondeau cultivated relationships in the Middle East to include teaming with Middle Eastern security group Shamco for special projects. He is the former director of asset protection for Boat American, Inc., and the former director of loss prevention for Blockbuster Entertainment. He has worked with and trained various law enforcement agencies and civilian experts alike. Rondeau is the Transportation Security Advisor for the International Association of Counter Terrorism for Security Professionals and the National Chief Security Advisor for the Heart of America Quilt Project. He is a Presidential Volunteer Medal Honoree and Daily Points of Light Honoree. He was also IACSP 2004 Homeland Security Executive of the Year. Ethics in Forensic Science and Medicine: Guidelines for the Forensic Expert and Attorney By Melvin Shiffman, MD, JD, FACFEI, DABFE, DABFM
Melvin Shiffman
Melvin Shiffman and his distinguished colleagues share their vast amount of experience and knowledge in both the medical and legal fields in Ethics in Forensic Science and Medicine: Guidelines for the Forensic Expert and the Attorney. The guidance provided in this book is invaluable to physicians and other forensic scientists who have served or plan to serve as expert witnesses in the judicial system. Dr. Shiffman and his coauthors provide ethical principles and professional standards to fully and honestly utilize our legal system and establish justice. Melvin Shiffman, MD, JD, graduated in 1957 from Northwestern University Med-
ical School with an MD degree. He is a Diplomate of the American Board of Surgery, American Board of Cosmetic Surgery, American Board of Forensic Examiners, and American Board of Forensic Medicine; he is also a Fellow in ACFEI. He has practiced in Tustin, California, doing cosmetic, reconstructive, and oncology (cancer and allied diseases) surgery since 1964. A former Assistant Clinical Professor of Surgery at the University of California, Irvine, Dr. Shiffman has written over 170 papers and books and is Editorin-Chief of the International Journal of Cosmetic Surgery as well as former Editor-inChief of the American Journal of Cosmetic Surgery. He is a past president of the American Society of Cosmetic Breast Surgery and lectures multiple times yearly at national and international meetings on medical jurisprudence and cosmetic surgery. Dr. Shiffman is former District Medical Consultant for the Medical Board of California and has been a medical legal consultant since receiving his JD degree in 1976 from Western State University College of Law. The Definitive Book of the Deputy Directors General of the International Biographical Centre By Sondra L. Campian, DDG, FACFEI, DABFE, DAPA
over the world together. Sondra L. Campian, DDG, is an accomplished consultant and lecturer, and is an analyst to governmental agencies, movie stars, international business conglomerates, and businesses nationwide. Campian was the first woman on the American Board of Forensic Examiners and later joined ACFEI in 1996. She is ACFEI’s first life member, and is also a Diplomate of the American Psychotherapy Association. She is a lifetime member of the International Graphoanalysis Society, is a Charter Member of the World Association of Document Examiners, and in 1987 won the title of Humanitarian of the Year at the International Congress of Biographical Institute Research of Arts and Sciences. Throughout her career, Campian has received numerous rewards and honors. The American Biographical Institute made her a Lifetime Deputy Governor of their Research Association in October 1987 and then presented her with an Honorary Appointment to their Research Board of Advisors. She has been raising funds for St Jude Children’s Research Hospital since 1962. Campain is a board member of Assisting Children in Drugs, a volunteer for the American Cancer Society, and a lifeliner for the Variety Club’s “The Children’s Charity.” Forensic Profiling Cards Created by Kimon Iannetta, FACFEI, DABFE, and James F. Craine, PhD
Sondra L. Campian
The International Biographical Centre, Cambridge, England, accurately highlights the achievements of important people to a world-wide audience of academics and researchers who use the information for individual or scholarly research. Sondra L. Campian has compiled The Definitive Book of the Deputy Directors General of the International Biographical Centre in order to bring distinguished individuals from all
The Forensic Profiling Cards, created by Kimon Iannetta and James F. Craine, PhD, were developed as a companion tool to accompany the Kimon Iannetta text Danger Between the Lines, a reference manual for use in profiling violent behavior. The set of 124 cards was designed to help illuminate the thought process that drives a person’s actions, allowing for a more thorough assessment of risk. This system can provide useful assistance to a security professional in piecing together existing data, validating
hunches, and making informed decisions in varying circumstances. It can aid in providing insight into an individual’s capacity for high risk and potentially violent behavior by helping detect and translate hidden clues that may reveal the unseen elements of a person’s thinking and emotional patterns of control (or lack thereof ). All of the cards included in the Forensic Profiling Cards set feature illustrations covering a wide variety of writing stroke types and characteristics, such as the distorted personal pronoun ‘I’, angularity, segmentation, X-formation, dot gringing, weaponshaped letters, extreme sizing, horizontal expansion and compression, and many more. The Forensic Profiling Cards are recommended for use as an adjunct to standard methods of interviewing, investigation, and testing. The Forensic Profiling Cards are recommended for law enforcement and security personnel, mental health and human resources workers, school counselors, background screeners, private investigators, professional graphologists, criminal profilers, and fraud examiners. The tool may be useful in detecting high-risk behavior in a variety of settings, such as conflict resolution, employment pre-screening, investigations, interrogations, disciplinary decisions, interventions, risk management, and the evaluation of threatening letters. For more information on the Forensic Profiling Cards or their accompanying text Danger Between the Lines, visit www.trialrun.com. Co-developer Kimon Iannetta specializes in forensic behavioral profiling. She is a Diplomate in the American Board of Forensic Examiners and a Life Fellow of ACFEI who has been active in the association since 1992.
Correction In the Fall 2005 issue of The Forensic Examiner, the title of Andrea Campbell and Ralph Ohm’s book was listed incorrectly. The correct title of their book is Legal Ease: A Guide to Criminal Law, Evidence, and Procedure.
Winter 2005 THE FORENSIC EXAMINER 69
STATEMENT OF OWNERSHIP, MANAGEMENT, AND CIRCULATION 1. Publication Title: The Forensic Examiner 2. Publication Number: 1084-5569 3. Filing Date: September 12, 2005 4. Issue Frequency: Quarterly 5. Number of Issues Published Annually: 4 6. Annual Subscription Price: $29.95 7. Complete Mailing Address of Known Office of Publication: 2750 E. Sunshine, Springfield, MO 65804 8. Complete Mailing Address of Headquarters of General Business Office of Publisher: 2750 E. Sunshine, Springfield, MO 65804 9. Full Names & Complete Mailing Addresses of Publisher, Editor, & Managing Editor: Publisher: Robert L. O’Block, 2750 E. Sunshine, Springfield, MO 65804; Editor: Heather Blades, 2750 E. Sunshine, Springfield, MO 65804; Managing Editor: None 10. Owner: The American College of Forensic Examiners International, 2750 E.Sunshine, Springfield, MO 65804 11. Known Bondholders, Mortgagees, & Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None 12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) The purpose, function, & nonprofit status of this organization & the exempt status for federal income tax purposes: Has Not Changed During Preceding 12 Months 13. Publication Title: The Forensic Examiner 14. Issue Date for Circulation Data Below: August 2005 15. Extent & Nature of Circulation: Average No. No. Copies of Copies Each Single Issue Issue During Published Preceding 12 Nearest to Months Filing Date 12,045 a. Total # of Copies (Net Press Run) 11,700 b. Paid &/or Requested Circulation (1) Paid/Requested Outside-County Mail Subscriptions Stated on Form 3541 (Include advertiser’s proof & 9,407 exchange copies 9,314 (2) Paid In-County Subscriptions Stated on Form 3541 (Include advertiser’s 18 proof & exchange copies) 18 (3) Sales Through Dealers & Carriers, Street Vendors, Counter Sales, & 54 Other Non-USPS Paid Distribution 48 (4) Other Classes Mailed Through the 0 USPS 0 c. Total Paid &/or Requested Circulation 9,479 [Sum of 15b. (1), (2), (3), & (4)] 9,380 d. Free Distribution by Mail (Samples, complimentary, & other free) 1) Outside-County as Stated on Form 0 3541 0 0 (2) In County as Stated on Form 3541 0 (3) Other Classes Mailed Through the 1,800 USPS 1,800 0 e. Free Distribution Outside the Mail 0 f. Total Free Distribution (Sum of 15d. & 1,800 15e.) 1,800 11,279 g. Total Distribution (Sum of 15c. & 15f.) 11,180 766 h. Copies Not Distributed 568 12,045 i. Total (Sum of 15g. & 15h.) 11,700 j. Percent Paid &/or Requested Circula84% tion (15c./ 15g. x 100) 84% 16. Publication of Statement of Ownership: Publication required. Will be printed in the Winter 2005 issue of this publication. 17. Signature & Title of Editor: (Signed) Heather Blades, Editor (Date) 9/27/04. I Certify that all information furnished on this form is true & complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines & imprisonment) &/or civil sanctions (including civil penalties).
70 THE FORENSIC EXAMINER Winter 2005
Offer Continuing Medical Education (CME) through your organization by jointly sponsoring an activity with the American College of Forensic Examiners International (ACFEI). By jointly sponsoring activities with ACFEI, a nationally accredited provider of Continuing Medical Education, you can offer Continuing Medical Education to physicians in practice anywhere in the United States. For more information about how your organization can offer CME by jointly sponsoring an activity with ACFEI, call toll free (800) 423-9737 or send an e-mail to cedept@acfei.com.
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Mountain State University (MSU) *ACFEI members save 20% MSU is a private, nonprofit university with North Central accreditation. It offers a variety of internet, distance learning, and on-site programs at both the bachelor’s and master’s levels. These A grave dig is part of MSU's forensics program. degree programs are focused on high-demand professional fields as well as the humanities and sciences. Thanks to an educational strategic partnership between ACFEI and MSU, ACFEI members can save up to 20% on tuition and related fees! For more information on MSU visit www.mountainstate.edu or send an email to Dr. Harvey Stone at hstone@mountainstate.edu.
Falsely Accused? Changed Testimonies Free a Man Whose Innocence Remains in Question In 1984, Sylvester Smith was charged with two counts of rape and spent 20 years in prison. Although he was declared a free man in 2004, his innocence is debated. After taking her 4-year-old daughter Gloria to the emergency room on account of persistent abdominal pains, Ann Ogundeji was pulled into a separate room from her child and told that Gloria had been sexually abused. Devastated, Ann told authorities that she knew of no other prior sexual abuse and that the only man her daughter had been alone with was with a man she and Gloria lived with, Sylvester Smith. Although a rape kit was collected, no physical evidence was located to present at the trial in 1984. The case was built around statements by Gloria and her 6year-old cousin Leantha, who also claimed to have been sexually abused by Smith. It was also presented that one of the girls had venereal disease, for which Smith reportedly tested positive. He was convicted and sentenced to two life terms in prison. On November 5, 2004, a hearing took place to retry the case. Gloria had come forward 20 years later and told a lawyer that she and her cousin had lied about Smith and that he had not sexually abused them. She said her cousin, Ben-
jamin Peterson, who was 9 years old at the time the rape occurred, had been the one who sexually abused her. She claimed her grandmother had instructed her to blame the rape on Smith in order to protect Peterson, who is currently in prison for murder. She explained that at the time she didn’t understand what would happen to Smith, a man she viewed as her “daddy.” Leantha also recanted her testimony but claimed that she was never raped at all. The district attorney presented evidence from a transcript from the original trial that contained 4-year-old Gloria testifying in court that her grandma had told her to blame Smith and that he never did anything to hurt her. However, this testimony had been ignored at the trial; the courts instead chose to believe the children’s original claims of abuse. In light of this evidence and the fact that the two women had come forward denying Smith ever abused them, the judge agreed to set Smith free while he awaited his new trial, and the district attorney dropped all charges against Smith due to a lack of evidence. But should Smith have been set free? Ann Ogundeji, who the judge also let testify in court, voiced her belief that her daughter and niece were lying. She claimed that her now-deceased mother would never have encouraged her grandchildren to falsely accuse a man. She also informed the court that Gloria and Gloria’s two daughters were living with the Smith family and suggested that they convinced or even paid Gloria and her cousin to testify on the behalf of Smith. Ogundeji raised concerns for her granddaughters, who she feared might end up living with Smith. However, Gloria testified in court that she had not been paid by anyone to offer her testimony and that she just could not live with the guilt any longer. Benjamin Peterson also claims that his cousin is lying and denies ever sexually abusing her. Due to his age at the time of the crime, he could not be convicted so
the case was not pursed any further. North Carolina Governor Mike Easley, who ironically was the district attorney who prosecuted Smith in the original trial, denied Smith’s appeal for a pardon, which would have entitled Smith to a $400,000 check in compensation for his time wrongly spent behind bars. Many people believe Governor Easley did not want to admit that he made a mistake in prosecuting Smith back in 1984, especially since at the same time he denied Smith’s pardon he granted a pardon to Leo Waters who served 21 years in prison for rape. However, Waters’ pardon was based on DNA evidence that cleared his name, something Smith’s case lacked. Easley reasoned that two assistant district attorneys, as well as the victim’s mother, did not believe Gloria and Leantha were telling the truth. He also defended his decision by pointing out that Smith took a lie detector test prior to his original trial showing deception and that he had tested positive for the sexually transmitted disease that 4-year-old Gloria had contracted. Although the court’s and Governor Easley’s decision have both been made, the disturbing truth is that only a few people know who really raped Gloria when she was 4 years old and whether Leantha was ever raped at all. On one hand, why would a 4-year-old falsely testify that her grandmother told her to lie abuse? On the other hand, how likely it is that a 9-year-old boy would have a venereal disease, especially when Smith tested positive for the disease himself? Perhaps one day the truth will be revealed.
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.
Winter 2005 THE FORENSIC EXAMINER 71
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