PAIN RELIEVER OR POISON? Methadone Deaths Skyrocket as Drug Expands to Analgesic Use
Best Friends to the Lost
Search Dogs can Save the Day When Brought to Scene Early
Dollhouses of Death
Woman’s Obsession Creates Crime Scenes Accurate to the Most Minute Detail
Forensics in San Diego A Setting in Paradise Combines with Outstanding Forensic Programs
The Bullet’s Path
Geometry Points to Convergence in Where the Shooter Fired
Falsely Accused Exonerations Point to ‘Disaster’ in Mississippi Criminal Justice $7.50 U.S./$9.50 CAN
Certified Trends
Security breaches still making big news this year Damage from security breaches hit an all-time high for 2007, but 2008 may already be on a pace to make this year the most dangerous in history for information security. During the first three months of 2008, security breaches ranged from the high-profile compromise of the passport records of three presidential candidates to a disturbing theft of credit information that was in transit from grocery stores to financial institutions. SPYING ON POLITICIANS—In late March, The Washington Times broke the story that Democratic presidential front-runner Barack Obama’s personal passport files were illegally compromised on three occasions—Jan. 9, Feb. 21, and March 14. The next day, the U.S. State Department reported that passport records of Democrat Hillary Clinton and presumed Republican presidential nominee John McCain had also been compromised. Secretary of State Condoleezza Rice issued an apology to Obama, Clinton, and McCain.
Passport records are protected by the Privacy Act of 1974. They generally contain applications submitted by a citizen, along with evidence of U.S. citizenship. They may contain such details as the date and place of birth, Social Security number, family status, and physical characteristics. Even more sensitive information could include investigative reports that might have been conducted in relation to the passport application. Files might even contain medical data and financial information. Access to passport files is highly restricted, with employees and contractors undergoing background checks in order to be able to access the information. The government can track when a file has been accessed and who accessed it, which may have led to the discovery of the presidential candidate breaches. CREDIT CARD TRANSIT BREACH—This year the Maine-based Hannaford Brothers grocery chain announced that hackers intercepted 4.2
million customer card transactions on the way to approval by financial institutions. Within two days, two class action lawsuits were filed against the chain. More than 1,800 credit card numbers have already been used for fraudulent transactions. What makes the breach even more significant is the fact that it involved data in transit rather than “data at rest.” Some experts are already calling for new rules requiring that data sent even on private networks be encrypted. ANTI-TERROR PLANS IN GARBAGE—In March, plans that showed the layout of a new building for a Canadian Forces Counterterrorism unit based in Trenton, Ontario were found in a pile of garbage piled on a street. Military officials later acknowledged the seriousness of the breach. UNENCRYPTED LAPTOP STOLEN—A National Institutes of Health laptop was stolen earlier this year. It contained information of 2,500 patients enrolled in an NIH study.
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VOLUME 17 • NUMBER 2 • Summer 2008
The Official Peer-Reviewed Journal of The American College of Forensic Examiners
The American College of Forensic Examiners International (ACFEI) does not endorse, guarantee, or warrant the credentials, work, or opinions of any individual member. Membership in ACFEI does not constitute the grant of a license or other licensing authority by or on behalf of the organization as to a member’s qualifications, abilities, or expertise. The publications and activities of ACFEI are solely for informative and educational purposes with respect to its members. The opinions and views expressed by the authors, publishers, or presenters are their sole and separate views and opinions and do not necessarily reflect those of ACFEI, nor does ACFEI adopt such opinions or views as its own. The American College of Forensic Examiners International disclaims and does not assume any responsibility or liability with respect to the opinions, views, and factual statements of such authors, publishers, or presenters, nor with respect to any actions, qualifications, or representations of its members or subscriber’s efforts in connection with the application or use of any information, suggestions, or recommendations made by ACFEI or any of its boards, committees, publications, resources, or activities thereof.
Feature Articles
38 48 38
48
The Methadone Poisoning “Epidemic”
By Jonathan J. Lipman, PhD, FACFEI, DABFE, DABFM, DABPS
The Battle of Accounting Expert Witnesses: Judges Can Be Harsh By D. Larry Crumbley, PhD, CPA, Cr.FA, DABFA
60
Assessing Patients During a Mass Casualty: The Need of Clinical Laboratory Services By Issac D. Montoya, PhD, CHS-III
68
Misidentifying Converging Bullet Trajectories in Shooting Reconstruction By Louis L. Akin, LPI, CMI-II
72 60
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A Tale of Two Countries: International Fraud Detection Homicide By Frank S. Perri and Terrance G. Lichtenwald, PhD, FACFEI, DABFE, DABFM, DABP
82
Litigation Support and the Forensic Accountant: Assembling a Defensible Report
By James DiGabriele, D.P.S., CPA/ABV, CFSA, FACFEI, Cr.FA, CVA, DABFA
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82
Write about a fascinating forensic case. Case studies exploring forensic investigations on any topic, case, or crime—including fraud, theft, murder, historical cases, and any others—are welcome. These case studies could discuss serial killers, famous fraudsters, cold cases, or any other type of case. Case studies should focus on how forensic techniques, tools, and investigations were used to break the case or solve a mystery. These could be cases you’ve worked on or simply cases that fascinate you. Submit an article for peer review. The Forensic Examiner® is always looking for articles on research, new techniques, and findings in the various fields of forensics. To submit an article for peer review, or for complete submission guidelines, please visit www.acfei.com or write to editor@acfei.com. How to Submit: Whether you wish to submit an article for peer review, a fascinating case or forensic case profile, or an article on a current issue in the field of forensics, send your writing electronically (either in the body of an email or as an attachment) to editor@acfei.com. Or, send in your writing on a disc or CD to Editor, Association Headquarters, 2750 E. Sunshine, Springfield, MO 65804.
6 THE FORENSIC EXAMINER Summer 2008
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Case Studies/Current Issues
11 12
Letters to the Editor Search and Rescue: Dogs Find Evidence and Save Lives By John Lechliter, Editor in Chief
16
The Truth in a Nutshell: The Legacy of Frances Glessner Lee By Katherine Ramsland, MA, PhD, CMI-V
22 54
Forensic Science in San Diego: A 2008 National Conference Preview Caretaker Cruelty: Munchausen’s and Beyond
By Bruce Gross, MBA, JD, PhD, FACFEI, DABFE, DABPS, DABFM, FAPA
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Falsely Accused: Prosecutor, Forensic Experts Take Heat for Mississippi ‘Disaster’ By John Lechliter, Editor in Chief
Also in this Issue
31 32 35 86
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Register for the 2008 National Conference ACFEI New Members Books by ACFEI Members ACFEI News
79 CONFERENCE SPOTLIGHT (p.22-31):
Raymond Hamden, Jan Hargrave, and Gary Klein
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Publisher: Robert L. O’Block, MDiv, PhD, PsyD, DMin (rloblock@aol.com) Editor in Chief: John Lechliter (editor@acfei.com) Executive Art Director: Brandon Alms (brandon@acfei.com) Associate Editor: Amber Ennis (amber@acfei.com) Associate Editor: Anna Pry (anna@acfei.com) Assistant Editor: Kara Goeke (kara@acfei.com) Advertising: Carol Wollard (carol@acfei.com) (800) 423-9737, ext. 162
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 Fitting Karagiozis, DO, MBA, CMI-V, Chair, American Board of Forensic Examiners Members of the Executive Board of Advisors: John H. Bridges III, DSc (Hon.), CHS-V, DABCHS, FACFEI, Chair, American Board for Certification in Homeland Security Doug E. Fountain, PhD, DABFSW, Chair, American Board of Forensic Social Workers Raymond F. Hanbury, PhD, ABPP, FACFEI, DABFE, CHS-III Lee Heath, CHS-V, DABCHS, Chair, American Board of Law Enforcement Experts Brian L. Karasic, DMD, DABFD, DABFM, DABFE, Chair, American Board of Forensic Dentistry Marilyn J. Nolan, MS, DABFC, Chair, American Board of Forensic Counselors Thomas J. Owen, BA, FACFEI, DABRE, DABFE, Chair, American Board of Recorded Evidence Jamie J. Ferrell, RN, BSN, SANE-A, FACFEI, DABFN, DABFE, CFN, Chair, American Board of Forensic Nursing Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE, Chair, American Board of Forensic Association Vincent B. VanHasselt, PhD, DABCEM, Chair, American Board of Crisis and Emergency Management Ben Venktash, MS, DABFET, DABFE, Chair, American Board of Forensic Engineering and Technology
2008 Editorial Advisory Board Louay Al-Alousi, MB, ChB, PhD, FRCPath, FRCP(Glasg), FACFEI, DMJPath, DABFM, FFFFLM Nicholas G. Apostolou, DBA, DABFA, CPA Larry Barksdale, BS, MA E. Robert Bertolli, OD, FACFEI, CHS-V, CMI-V Kenneth E. Blackstone, BA, MS, CFC David T. Boyd, PhD, DBA, CPA, CMA, CFM, Cr.FA Jules Brayman, CPA, CVA, CFD, DABFA John Brick, PhD, MA, DABFE, DABFM Richard C. Brooks, PhD, CGFM, DABFE Steve Cain, MFS, DABFE, DABRE, FACFEI , MF-SQD Dennis L. Caputo, MS, DABFET, REM, CEP, CHMM, QEP Donald Geoffrey Carter, PE, DABFET David F. Ciampi, PhD, FACFEI, DABPS Leanne Courtney, BSN, DABFN, DABFE Larry Crumbley, PhD, CPA, DABFE Jean L. Curtit, BS, DC Andrew Neal Dentino, MD, FACFEI, DABFE, DABFM Francisco J. Diaz, MD James A. DiGabriele, DPS, CPA, CFSA, DABFA, Cr.FA, CVA John Shelby DuPont Jr., DDS, DABFD Scott Fairgrieve, Hons. BSc, MPhil, PhD, FAAFS Edmund Fenton, DBA, CPA, CMA, Cr.FA Per Freitag, PhD, MD, FACFEI, DABFE, DABFM Nicholas Giardino, ScD, DABFE David H. Glusman, CPA, DABFA, CFS, Cr.FA Karen L. Gold, PysD, FACFEI, DABPS Ron Grassi, DC, MS, FACFEI, DABFM James Greenstone, EdD, JD, FACFEI, DABFE, DABFM, DABPS, DABCEM Roy C. Grzesiak, PhD, PC Richard C. W. Hall, MD, FAPA, FAPM, FACPsych Raymond F. Hanbury, PhD, ABPP, FACFEI, DABFE, DABPS, CHS-III James Hanley III, MD, DABFM Nelson Hendler, MD, DABFM David L. Holmes, EdD, BCAP, BCPS, BCBS, FACFEI, DABFE, DABPS Leo L. Holzenthal Jr., PE, DABFET, MSE, BSEE, FACFEI Linda Hopkins, PhD, CFC John R. Hummel, PhD, CHS-III Edward J. Hyman, PhD, FACFEI, DABFE, DABFM, DABPS Zafar M. Iqbal, PhD, FACFEI, DABFE, DABFM Nursine S. Jackson, MSN, RN, DABFN Paul Jerry, MA, C.Psych., PhD, DAPA, DABFC Scott A. Johnson, MA, DABPS, DAACCE Philip Kaushall, PhD, DABFE, DABPS
Eric Kreuter, PhD, CPA, CMA, CFM, DABFA, FACFEI, SPHR Ronald G. Lanfranchi, DC, PhD, DABFE, DABFM, DABLEE, CMI-IV Richard Levenson, Jr., PsyD, DABFE, DABPS Monique Levermore, PhD, FACFEI, DABPS Jonathon Lipman, PhD, FACFEI, DABFE, DABPS, DABFM Judith Logue, PhD, FACFEI, DABFSW, DABPS, DABFE, DABFM Jennie Martin-Gall, CMT, CMI-I Mike Meacham, PhD, LCSW, DCSW, DABFSW David Miller, DDS, FACFEI, DABFE, DABFM, DABFD John V. Nyfeler, FAIA, LEED-AP Jacques Ama Okonji, PhD, FACFEI Norva Elaine Osborne, OD, FAAO, CMI-III Terrence O’Shaughnessy, DDS, FACFEI, DABFD George Palermo, MD, FACFEI, DABFE, DABFM Ronald J. Panunto, PE, BSEE, CFEI Larry H. Pastor, MD, FAPA, FACFEI, DABFE, DABFM Theodore G. Phelps, CPA, DABFA Marc Rabinoff, EdD, FACFEI, DABFE Harold F. Risk, PhD, DABPS Susan P. Robbins, PhD, LCSW, DCSW, LCDC, DABFSW, BCD Jane R. Rosen-Grandon, PhD, DABFC Douglas Ruben, PhD, FACFEI, DABFE, DABFM, DABPS J. Bradley Sargent, CPA, CFS, Cr.FA, DABFA, FACFEI William Sawyer, PhD, FACFEI, DABFE, DABFM Victoria Schiffler, RN, DABFN John V. Scialli, MD, FAACAP, DAPA, DABFE, DABFM Howard A. Shaw, MD, DABFM Henry A. Spiller, MS, DABFE, FACFEI Marylin Stagno, PsyD, RN, DABFE, DABFM, DABPS Richard I. Sternberg, PhD, DABFE, DABPS, FABVE, FFAPP James R. Stone, MD, MBA, CHS-III, DABFE, DABFM Johann F. Szautner, PE, PLS William A. Tobin, MA, DABFET, DABLEE Robert Tovar, BS, MA, DABFE, DABPS, CHS-III Brett C. Trowbirdge, PhD, JD, DABPS Jeff Victoroff, MA, MD, DABFE, DABFM Patricia Ann Wallace, PhD, FACFEI, DABFE, DABFM Raymond Webster, PhD, FACFEI, DABFE, DABFM Dean A. Wideman, MSc, MBA, CFC, CMI-III
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 $165. 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 2008 by the American College of Forensic Examiners International. All rights reserved. No part of this work can be distributed or otherwise used without the express permission of the American College of Forensic Examiners International. The views expressed in The Forensic Examiner® are those of the authors and may not reflect the official policies of the American College of Forensic Examiners International.
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The American College of Forensic Examiners Executive Advisory Boards
AMERICAN BOARD OF CRISIS AND EMERGENCY MANAGEMENT Originally The American Board of Examiners in Crisis Intervention Chair of the Executive Board of Crisis and Emergency Management Advisors: Vincent B. VanHasselt, PhD, DABCEM Second Vice Chair: Kent Rensin, PhD, DABCEM Members of the Executive Board of Crisis and Emergency Management Advisors: Sam D. Bernard, PhD, DABCEM Monica Beer, PhD, DABCEM Marie Geron, PhD, DABCEM Raymond Hamden, PhD, FACFEI, DABPS, DABCHS, DAPA, CFC, CMI-V, CHS-V, DABCEM Marilyn Nolan, MS, DABFC, DABCEM Rev. Roger Rickman, DABCEM, CHS-V, DABCHS, CFC, CMI-I, FACFEI Debra M. Russell, PhD, CMI-V, CRC, CISM, DABCEM Dorriss Edward Smith, Col. U.S. Army, CHS-V, DABCEM Alan E. Williams, MS, CHS-V, DABCEM Founding Members of the Board of Crisis Intervention: James L. Greenstone, EdD, JD, DABCEM W. Rodney Fowler, EdD, PhD, DABCEM Sharon C. Leviton, PhD, DABCEM Edward S. Rosenbluh, PhD, DABCEM (1937-2000) AMERICAN BOARD OF FORENSIC ACCOUNTING Chair of the Executive Board of Accounting Advisors: Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE Members of the Executive Board of Accounting Advisors: Stewart L. Appelrouth, CPA, CFLM, CVA, DABFA, Cr.FA, ABV Gary Bloome, CPA, Cr.FA Jules J. Brayman, CPA, ABV, CVA, CFFA, FACFEI, DABFA Stephen E. Cohen, CPA, ABV, FACFEI, DABFA, Cr.FA, CVA D. Larry Crumbley, PhD, CPA, DABFA, Cr.FA, CFFA, FCPA James A. DiGabriele, CPA, ABV, CFSA, Cr.FA, FACFEI, CVA June Dively, CPA, DABFA, Cr.FA David Firestone, CPA David H. Glusman, CPA, FACFEI, DABFA, Cr.FA Eric A. Kreuter, PhD, CPA, CMA, CFM, FACFEI, DABFA, SPHR, CFD, CFFA, BCFT Raimundo Lopez Lima Levi, CPA, DABFA Dennis S. Neier, CPA, DABFA Sandi Peters, CPA, Cr.FA Jay J. Shapiro, CPA, DABFA AMERICAN BOARD OF FORENSIC COUNSELORS Chair of the Executive Board of Counseling Advisors: Marilyn J. Nolan, MS, DABFC Vice Chair of the Executive Board of Counseling Advisors: Steven M. Crimando, MA, CHS-III Chair Emeritus: Dow R. Pursley, EdD, DABFC Members of the Executive Board of Counseling Advisors: George Bishop, LPC, LAT, LAC, FACFEI, DABFE Laura W. Kelley, PhD, DABFC, LPC Robert E. Longo, FACFEI, DABFC Kathleen Joy Walsh Moore, DABFC, CHS-III DeeAnna Merz Nagel, MEd, LPC, CRC, DCC, CFC Irene Abrego Nicolet, PhD, MA, DABFC Hirsch L. Silverman, PhD, FACFEI, DABFC, DABFE, DABFM, DABPS William M. Sloane, JD, LLM, PhD, FACFEI, DABFC, CHS-III, CMI-I, DACC, DCPC, FAAIM, FACC, MTAPA Gary Smith, MEd, FACFEI, DABFE Ava Gay Taylor, MS, LPC, DABFC AMERICAN BOARD OF FORENSIC DENTISTRY Chair of the Executive Board of Forensic Dentistry: Brian L. Karasic, DMD, MScFin, DABFD, DABFM, DABFE, FACFEI Members of the Executive Board of Dental Advisors: Ira J. Adler, DDS, DABFD Bill B. Akpinar, DDS, FACFEI, DABFD, DABFE, CMI-V Stephanie L. Anton-Bettey, DDS, CMI-V Jeff D. Aronsohn, DDS, FACFEI, DABFD, CMI-V Susan A. Bollinger, DDS, CMI-IV, CHS-III Michael H. Chema, DDS, FACFEI, DABFD, DABFE James H. Hutson, DDS, CMI-V, DABFD John P. Irey, DDS, CMI-V, LLC Chester B. Kulak, DMD, CMI-V, CHS-III, CFC Morley M. Lem, DDS, FACFEI, DABFD, DABFM, DABFE John P. LeMaster, DMD, DABFD, CMI-V, CHS-III Jeannine L. Weiss, DDS AMERICAN BOARD OF FORENSIC ENGINEERING & TECHNOLOGY Chair of the Executive Board of Engineering & Technological Advisors: Ben Venktash, MS, DABFET, DABFE, CHSP, REA, FRSH (UK), FIET (UK) Vice Chair: Cam Cope, BS, DABFET, DABFE 2nd Vice Chair: Ronald Schenk, MSc, MInstP, PEng (UK), CHS-IV, CMI-I Chair Emeritus: David Hoeltzel, PhD Members of the Executive Board of Engineering & Technological Advisors: Nicholas Albergo, DABFET Kyle J. Clark, DABFET George C. Frank, CFC, DABFE Robert K. Kochan, BS, DABFET, DABFE, FACFEI John W. Petrelli Jr., AIA, NCABB, TAID, DABFET
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Max L. Porter, PhD, DABFET, DABFE, PE, HonMASCE, Parl, Dipl ASFE, FTMS, FACI, CFC Peter H. Rast, DABFET, DABFE, DABLEE, BS, MSFS, MBA Oliver W. Siebert, PE, DABFET, FACFEI Kandiah Sivakumaran, MS, PE, DABFET James W. St. Ville, MD, MS, FACFEI, DABFET, DABFM Malcolm H. Skolnick, PhD, JD, FACFEI, DABFET, DABFE AMERICAN BOARD OF FORENSIC EXAMINERS Chair of the Executive Board of Forensic Examiners: Michael Fitting Karagiozis, DO, MBA, CMI-V Chair Emeritus: Zug G. Standing Bear, PhD, FACFEI, DABFE, DABFM Members of the Executive Board of Forensic Examiners: Jess P. Armine, DC, FACFEI, DABFE, DABFM Phillip F. Asencio-Lane, FACFEI, DABFE John H. Bridges, III, CHS-V, DABCHS, CHMM, FACFEI, DABCEM Ronna F. Dillon, PhD, DABFE, DABPS, CMI-V, CHS-III Nicholas J. Giardino, ScD, DABFE, FACFEI, RPIH, MAC, CIH Bruce H. Gross, PhD, JD, MBA, DABFE, DABFM, FACFEI, DAPA Kenneth M. Gross, DC, FACFEI, DABFE, CMI-I Darrell C. Hawkins, MS, JD, FACFEI, DABFE, DABLEE, CMI-V, CHS-III, F-ABMDII, IAI-SCSA, IAAI-CFI Michael W. Homick, PhD, EdD, DABCHS, CHS-V John L. Laseter, PhD, FACFEI, DABFE, DABFM, CMI-V, CHS-III Jonathan J. Lipman, PhD, FACFEI, DABFE, DABFM, DABPS Leonard K. Lucenko, PhD, FACFEI, DABFE, CPSI Edward M. Perreault, PhD, DABFE Marc A. Rabinoff, EdD, FACFEI, DABFE, CFC David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, DABFE, DABFM, FACA Janet M. Schwartz, PhD, FACFEI, DABFE, DABFM, DABPS, CHS-V Richard Sgaglio, PhD, CMI-IV AMERICAN BOARD OF LAW ENFORCEMENT EXPERTS Chair of the Executive Board of Law Enforcement: Lee Roy Heath, CHS-V, DABLEE Vice Chair of the American Board of Law Enforcement Experts: Darrell C. Hawkins, JD, DABLEE, DABFE, CHS-III, CMI-V, Chair Emeritus: Michael W. Homick, PhD, DABCHS, CHS-V Members of the Executive Board of Law Enforcement Advisors: Alan Bock, CHS-III, DABLEE Tom Brady, CHS-V, DABLEE Gregory M. Cooper, MPA, DABLEE Dickson S. Diamond, MD, DABLEE, DABFE John E. Douglas, EdD, DABLEE Les M. Landau, DO, FACFEI, DABLEE, DABFE, DABFM, CHS-III Ronald Lanfranchi, PhD, DABLEE, DABFE, CMI-IV, FACFEI, DABFM Leonard Morgenbesser, DABLEE John T. Pompi, BA, DABLEE, DABFE Stephen Russell, DABLEE, CMI-II Oscar Villanueva, CHS-V, DABLEE David E. Zeldin, MA, FACFEI, DABFE, CHS-III AMERICAN BOARD OF FORENSIC MEDICINE Chair of the Executive Board of Medical Advisors: David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, DABFE, DABFM, FACA (apoth.) Vice Chair: Michael Fitting Karagiozis, DO, MBA, CMI-V Members of the Executive Board of Medical Advisors: Terrance L. Baker, MD, MS, FACFEI, DABFM, CMI-V John Steve Bohannon, MD, CMI-IV Edgar L. Cortes, MD, DABFM, DABFE, CMI-V, FAAP Albert B. DeFranco, MD, FACFEI, DABFM, DABPS, CMI-V, CHS-III James B. Falterman Sr., MD, DABFM, DABFE, DABPS, CMI-IV Malcolm N. Goodwin, Jr., Co. USAF MCFS (Ret.), MD, MS, DABFM, DABFE, FCAP, FACFEI Vijay P. Gupta, PhD, DABFM Richard Hall, MD, FACFEI, DABFM, DABFE Louis W. Irmisch, III, MD, FACFEI, DABFM, DABFE, CMI-V E. Rackley Ivey, MD, FACFEI, DABFM, DABFE, CMI-V Kenneth A. Levin, MD, FACFEI, DABFM, DABFE E. Franklin Livingstone, MD, FAAPM&R, FACFEI, DABFM, DABFE, DAAPM John C. Lyons, MD, FACS, MSME, FACFEI, DABFM, DABFET, DABFE Manijeh K. Nikakhtar, MD, MPH, DABFE, DABPS, CMI-IV, CHS-III John R. Parker, MD, FACFEI, DABFM, FCAP Anna Vertkin, MD, CMI-V, DABFM Maryann M. Walthier, MD, FACFEI, DABFM, DABFE Cyril Wecht, MD, JD, FACFEI, CMI-V AMERICAN BOARD OF FORENSIC NURSING Chair of the Executive Board of Nursing Advisors: Jamie J. Ferrell, RN, BSN, SANE-A, FACFEI, DABFN, DABFE, CFN, CMI-III Vice Chair of the Executive Board of Nursing Advisors: Dianne T. Ditmer, PhD, MS, RN, DABFN, CMI-III, CFN, FACFEI, CHS-III Members of the Executive Board of Nursing Advisors: Marilyn Bello, RNC, MS, CMI-V, CFC, CFN, SAFE, DABFN, DABFE Rose Eva Bana Constantino, PhD, JD, RN, FACFEI, DABFN, DABFE, CFN, FAAN Renae M. Diegel, RN, SANE-A, CMI-III, CFC, CFN, CEN Lo M. Lumsden, ANP, GNP, EdD, CFN, DABFN, DABFE, CHS-III Yvonne D. McKoy, PhD, RN, DABFN, FACFEI
Diane L. Reboy, MS, RN, CFN, LNCC, CNLCP, LNCC, FACFEI, DABFN Suzette Rush-Drake, RN, BSN, PsyD, DABFN, DABFE Russell R. Rooms, MSN, RN, CMI-III, CFN, DABFN, APRN Elizabeth N. Russell, RN, BSN, CCM, DABFN, BC, FACFEI LeAnn Schlamb, RN-BC, MSN, CFN, DABFN Sharon L. Walker, MPH, PhD, RN, CFN AMERICAN BOARD PSYCHOLOGICAL SPECIALTIES Chair of the Executive Board of Psychological Advisors: Raymond F. Hanbury, PhD, DABPS, DABFE, ABPP, FACFEI, CHS-III, DABPS Vice Chair of the Executive Board of Psychological Advisors: Raymond H. Hamden, PhD, FACFEI, DABPS, DABCEM, DABCHS, DAPA, CFC, CMI-V, CHS-V Chair Emeritus: Carl N. Edwards, PhD, JD, FAAFS, FICPP, FACFEI, DABPS, DABFE Members of the Executive Board of Psychological Advisors: Carol J. Armstrong, PhD, LPC, DABPS Robert J. Barth, PhD, DABPS Monica Beer, PhD, DABCEM John Brick, III, PhD, MA, FAPA Alan E. Brooker, PhD, FACFEI, DABPS, DABFM, DABFE, CMI-III, ABPP-Cn Brian R. Costello, PhD, FACFEI, DABPS, DABFE Ronna F. Dillon, PhD, DABPS, DABFE, CMI-V, CHS-III Brent Van Dorsten, PhD, FACFEI, DABFE, DABFM, DABPS Douglas P. Gibson, PsyD, MPH, DABPS, CMI-V, CHS-III Mark Goldstein, PhD Thomas L. Hustak, PhD, FACFEI, DABPS, DABFE Richard Lewis Levenson, Jr., PsyD, FACFEI, DABPS, DABFE, CTS, FAAETS Stephen P. McCary, PhD, JD, DABFE, DABFM, DABPS, FACFEI, FAACP, DAPA Helen D. Pratt, PhD, FACFEI, DABPS Douglas H. Ruben, PhD, FACFEI, DABPS, DABFE, DABFM Richard M. Skaff, PsyD, DABPS Zug G. Standing Bear, PhD, FACFEI, DABFE, DABFM Charles R. Stern, PhD, DABPS, DABFE, CMI-V Joseph C. Yeager, PhD, DABFE, DABLEE, DABPS Donna M. Zook, PhD, DABPS, CFC AMERICAN BOARD OF RECORDED EVIDENCE Chair of the Executive Board of Recorded Evidence Advisors: Thomas J. Owen, BA, FACFEI, DABRE, DABFE, CHS-V Committee of the American Board of Recorded Evidence Forensic Audio: Ryan Johnson, BA, DABFE, DABRE Forensic Voice Identification: Ernst F. W. Alexanderson, BA, MBA, FACFEI, DABRE, DABFE Members of the Executive Board of Recorded Evidence Advisors: Eddy B. Brixen, DABFET Charles K. Deak, BS, CPC, DABFE, DABLEE Michael C. McDermott, JD, DABRE, DABFE Jennifer E. Owen, BA, DABRE, DABFE Lonnie L. Smrkovski, BS, DABRE, DABFE AMERICAN BOARD OF FORENSIC SOCIAL WORKERS Chair of the Executive Board of Social Work Advisors: Douglas E. Fountain, PhD, LCSW, DABFE, DABFSW Chair Emeritus: Karen M. Zimmerman, MSW, DABFSW, DABFE Members of the Executive Board of Social Work Advisors: Susan L. Burton, MA, LMSW, MSW, DABFSW, DABFE Judith V. Caprez, MSW, ACS, LSCSW, DABFSW Peter W. Choate, BS, MSW, DABFSW, DABFE Judith Felton Logue, PhD, FACFEI, DABFSW, DABFE, DABFM, DABPS Michael G. Meacham, PhD, LCSW, DCSW, DABFSW, FACFEI Kathleen Monahan, DSW, MSW, CFC, DABFE Susan P. Robbins, PhD, DABFSW, LCSW, DCSW, BCD, LDC Steven J. Sprengelmeyer, MSW, MA, FACFEI, DABFSW, DABFE, LISW AMERICAN BOARD FOR CERTIFICATION IN HOMELAND SECURITY Executive Committee: Chair of the Executive Board for Certification in Homeland Security: John H. Bridges, III, D.Sc. (Hon.) CHS-V, CHMM, CSHM, DABCHS, FACFEI Lt. Colonel Herman C. Statum, United States Army (Ret.), CHS-V, CPP, MS, PI, DABCHS Robert R. Silver, CHS-V, PhD, MS, DABCHS Members of the Executive Board for Certification in Homeland Security: Nick Bacon, CHS-V, DABCHS Thomas Baines, MA, MPA, JD, CHS-V, CFC E. Robert Bertolli, BS, OD, CHS-V, CMI-V, DABCHS, DABFE, FACFEI Paul P. Donahue, CHS-V, MBA, Cr.FA, CMA, CPP, CBM Billy Ray Jackson, ATS, CSC, CHS-V Andrew Jurchenko, Col. U.S. Army (Ret.) CHS-V, DABCHS Robert McAlister, BS, CHS-V, DABCHS Janet M. Schwartz, PhD, CHS-V Edward W. Wallace, CHS-V, Detective 1st Grade (Ret.), MA, SCSA, LPI, BS CFI I & II, CLEI, CTO, CDHSI Eric White, CHS-V, DABCHS, BS
Summer 2008 THE FORENSIC EXAMINER 9
Attention Experts! Give back to your profession by helping others learn. Increase your profile as an academic leader. —Become an Online Instructor for the American College of Forensic Examiners Institute.
Above, Dr. Marc Rabinoff instructs the online Certified Forensic Consultant (CFC) course.
Teach forensics worldwide, 24/7 Be a part of our organization’s efforts to raise standards and education for thousands of forensic science experts. The American College of Forensic Examiners Institute will provide you with a platform to reach students throughout the world. This is your chance to become a leading educator, to influence countless students to become better professionals, and to earn extra income while doing it. Teach an entire course or just a module—it’s up to you.
The ACFEI is accepting course submissions in all areas, including: Forensic Nursing Forensic Accounting Medical Investigation
Computer Forensics Forensic Psychology Crime Scene Investigation
Forensic Photography Chain of Evidence Handwriting Analysis
Criminal Behavioral Profiling General Forensic Science All Forensic Specialties!
FOR MORE INFORMATION: SEND AN E-MAIL TO COURSES@ACFEI.COM.
Letters to Editor
ACFEI provided well-timed opportunities Dear Editor, Today, I write with a heart filled with gratitude. When I initially joined ACFEI in 1995, I had no idea that the organization would provide me with the leadership opportunities and collegial support that would greatly enhance both my professional development as well as the development of Forensic Fraud Research, Inc., a non-profit humanitarian effort that formally incorporated in 2000. It appears that from the very first conference I attended in 1995, I have experienced the best of the organization. How could I ever forget attending my first ABFE board meeting chaired by John Douglas, Ed.D., with such esteemed colleagues including John Brick, Ph.D., Jonathan Lipman, Ph.D., and Marc Rabinoff, Ph.D.? My work researching and investigating white-collar organized crime was just evolving at that time and I was in the midst of major security incidents; the validation I received from John Douglas and the group is forever etched in my mind for they, too, moved in their respective worlds from a deeply ethical center.
Many of us have said through the years that a deep bond was forged among us from that moment. Also, it was during a remarkable phone conversation with an executive staff member during those early years that my work was actually termed forensic fraud research. I was doing a blend of several careers as I proceeded with developing the field, working case after case while noting the prevalent patterns of the behavioral descriptors that eventually became significant to the U.S. Department of Justice. Continued attendance at the annual conventions led to more speaking opportunities. The presentations connected me to such extraordinary members and attendees who furthered my conviction that, “It can be done.” As my research, investigations and state and federal network expanded, so did my opportunities to contribute to ACFEI. Writing the “psychological profile of a spy” as a contribution to the Sensitive Security Information, Certified course was one of the most intriguing writing projects I have ever undertaken. Little did I know, however, that an unusual finding would connect me to the world of homeland security. Currently, and frontline and center, my work focuses on creating a
model for the nation with a co-sponsored Five-Step Homeland Security Initiative for the Local Level. As each step of the Initiative unfolds, rare is the privilege of working with such distinguished colleagues as those serving on the ABCHS Board along with other esteemed colleagues from within the CHS membership. Above all, now, at a moment when federal funding and other opportunities are in the forefront, I would like to gratefully acknowledge the consistent intellectual support and guidance that I have received all of these years from Dr. Robert O’Block and CAO-CHS Marianne Schmid. I am now able to see that you observed my own patterns from afar. You provided opportunities at “just” the right moment. Without a doubt, your organization and your belief in the intention of my mission have greatly furthered the cause. Respectfully, Janet M. Schwartz, Ph.D., FACFEI, DABFE, DABFM, DABPS, DAPA, CHS-V President Forensic Fraud Research, Inc. www.whitecollarcorruption.com n
ACFEI News
Florida board approves ABPS credential The American Board of Psychological Specialties (ABPS) is proud to announce that after its persistent petitioning and having met the required standards, the Florida Board of Psychology has granted our institution the authority to credential our qualifying Florida members with the honor of Certified Member or Diplomate. “It is essential at this time ... that we enhance the credibility of such recognition. The credential needs to be considered true recognition of the actual possession of proficiency, competency, knowledge base, skills, and relevant experience in one or more of the five approved subspecialties. This will be achieved by meeting specific requirements, including passing written and oral examinations. (800) 423-9737
By increasing such standards, there can be a cadre of well-trained professionals providing the highest caliber of care and service,” said ABPS Chair Raymond Hanbury. The ABPS offers subspecialties in addiction psychology, forensic psychology, geriatric psychology, psychotherapy, and trauma psychology. ABPS Diplomates must meet the following criteria: • Be a psychologist • Have a doctoral degree • Be licensed in the state in which they practice • Have a minimum of 3 years of professional experience
• Complete an oral examination conducted by ABPS Board Members • Successfully complete a written examination in one of the following subpecialties: • Addiction Psychology • Forensic Psychology • Geriatric Psychology • Psychotherapy • Trauma Psychology The American Board of Psychological Specialties looks forward to continually striving to meet the needs of its members. For more information on how to obtain this prestigious designation, please contact Member Services at (800) 423-9737. n Summer 2008 THE FORENSIC EXAMINER 11
Giving Back
Best Friends to the Lost Search and Rescue Dog Teams Should be Activated Sooner in Most Searches
By John Lechliter, Editor in Chief
I
n March of 2007, a Boy Scout wandered away from his troop and began a 4-day trek through the wilderness in the rugged mountain-country of North Carolina. Searchers looked frantically for the 12-year-old boy using hundreds of volunteers and such advanced technology as helicopters armed with heat-detection equipment. On the 4th day, a black 2-year-old Shiloh Shepherd named Gandalf picked up the boy’s scent and led searchers to a stream where they found him, disoriented and dehydrated, but alive. It was a happy ending made possible by the science of canine scent detection, the training of search dog handlers, and search and rescue techniques that bring together disciplines as divergent as geometry and psychology.
s Patricia Wolanyk walks her Belgian Malinois shepherd as it sniffs for a trail.
Studies have frequently shown that search dogs are the most effective way to find missing people, whether dead or alive. But too often authorities bring in search dog teams as a last resort, even though in an outdoor rescue situation, hours can make a life-and-death difference.
Saving lives, solving mysteries Forensic science professionals are well aware of the amazing abilities of well-trained search dogs, which can detect microscopic traces emitted from bones that have been buried for years. 12 THE FORENSIC EXAMINER Summer 2008
Specialized cadaver dogs have an uncanny ability to detect human remains, whether working on land or water. Many criminal investigations have broken open when search dogs found even small remnants of murder victims. But it is in the search for the living that these dogs can make the biggest difference, and they often become the best friend that a lost hiker, missing child, or wandering Alzheimer’s patient can have. The people who train them, and the volunteer search organizations that organize them, want everyone to know that they are available whenever they’re needed. It’s never too early in a wilderness search to call in search dog teams—in fact, the earlier, the better. One of the search dog units involved in the search last year for the missing North Carolina Boy Scout was the North Carolina Search And Rescue Dog Association (NCSARDA). The organization is all volunteer and responds to about 75 calls a year for assistance from fire and rescue agencies, emergency management, and law enforcement in North Carolina, South Carolina, Virginia, Tennessee, and Georgia. The Boy Scout was found by a member of NCSARDA’s sister unit, which had been called from South Carolina to assist in the search effort. According to NCSARDA handler Richard Schaffer, there are many volunteer organizations doing similar work all over the country. These teams received a big boost in recognition from the Boy Scout incident because of the media notoriety it received. “Unfortunately,” said Schaffer, “searches like this are taking place every day across America, and most receive little or no recognition.” He hoped that continued recognition would produce some deserving support of all teams. Schaffer and his wife, Avery, who is also a search dog handler, are also members of Linville Central Rescue, which is noted for its high-angle and rope rescues in the area near Grandfather Mountain in North Carolina. Schaffer says many misconceptions exist about search dogs, primarily involving the way they conduct searches. “People think that you bring a dog to where the person was last seen, the dog sniffs the trail and leads you right to the person,” Schaffer said. “But it seldom happens that way.”
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“In most cases where the dogs are instrumental in locating a subject, it is because of the combined efforts of several dog teams,” he said. “Handlers often brief managers as to where the dogs show ‘interest.’ When several dogs are all showing interest in one area, then managers know to focus their resources. That is often where the subject is found.” He adds emphatically, “It is always about teamwork.” A search is scientific, employing different types of dogs for different tasks, and using geometry and probability equations. Search handlers are even aware of psychological pattern studies made of people who are lost. Modern search techniques are designed to make search and rescue efforts as efficient as possible, lessening the time it takes to find a subject and increasing the chances that the person will be found alive. Dogs are trained to be specialists in certain areas of detection. They include: Air-Scent Dogs—These are often intelligent, versatile dogs, such as Labrador retrievers, which can roam off-leash and follow air-borne scent. Scent carried in the air is affected by wind currents, and it can pool in low areas. A dog may pick up a scent, lose it, and then find it again in another area. Some air-scenting dogs are trained to follow the scent of a specific human. Others will alert to any human scent they detect. Air-scent dogs can cover large areas quickly because they don’t have their noses to the ground, and they are not slowed by being on leashes. An air-scent dog can cover as much ground more effectively than up to 50 human searchers (Godfrey-Smith, 2004). Tracking Dogs—Tracking dogs follow more than just human scent. They follow changes in the trail left by a human, such as crushed vegetation. They (800) 423-9737
Baraon heeds a command from U.S. Capitol Police Sgt. T.J. Williams during a search and rescue training at Sundowners Kennel in Gilroy, California. KRT PHOTOGRAPH BY DAI SUGANO/ SAN JOSE MERCURY NEWS
are similar to human trackers who can follow a trail by noticing broken branches and flattened blades of grass. They follow the direct path taken by the subject, so they cover less ground more slowly than air-scenting dogs, but they may find a more direct path. Bloodhounds are good tracking dogs. They are handled on a leash, because a bloodhound may tend to wander off in search of a scent and not return. Cadaver Dogs—Although many search dogs are cross-trained to locate the scent of a cadaver (because during a search it is rarely known with certainty whether a subject is alive or dead), cadaver dogs are specialists at finding human remains. Land cadaver dogs can find remains through air-scenting, and they can even detect buried remains from the scent rising from below the ground. On water, cadaver dogs can find human remains under water or ice from the gases that are produced by decay. It takes a dog that is able to focus for a long time and a handler who understands water current dynamics to make a successful water search (West Jersey K-9 Search and Rescue, 2006).
s Eagle, a human remains detection dog, signals that he has found remains in an old Kentucky cemetery. BY JANET WORNE/ LEXINGTON HERALD-LEADER/MCT
s Kilo, a city K-9 officer, with Officer Paul Vandel, closes in on Officer Rod Biechler, right, posing as a ‘decoy’ during an open-field search training exercise. KRT PHOTOGRAPH BY ANDY ROGERS/ COLORADO SPRINGS GAZETTE
Search strategies A handler and a dog are a search dog team. Several teams working together make a unit. The first rule in canine search and rescue, according to Schaffer, is that there is no “freelancing.” Search dog units will only go to a search if formally requested by the authority in charge of the search. In many jurisdictions, county sheriffs lead search efforts; in others the job is handled by emergency management. A search dog coordinator will often assist search managers in determining how to deploy the dog teams. Often tracking dogs will be sent to the place where the person was last seen, in order to deter-
s It is sometimes necessary for search dogs to overcome obstacles in the wilderness. PHOTO COURTESY RICHARD SCHAFFER
Summer 2008 THE FORENSIC EXAMINER 13
When dogs are called to a search that has been in progress for some time, often the area is divided into sectors, and dogs are deployed to those. The dogs can then assist search managers in knowing where the subjects are not. When a dog team completes a search of an area, the handler will report to the search coordinator on what the dog found or did not find, and the degree of certainty that the subject is not in the area. The information is analyzed and a determination is made whether or not to place additional resources in the area. Dog search teams can be effective anytime, day or night. But evening and early morning hours are often the most productive for dogs. Afternoon breezes will push vertically rising scent plumes back toward the ground, and the early morning dew rehydrates dried scent particles, making them easier for a dog to detect (Godfrey-Smith, 2004).
Dedication of handlers A search dog handler is usually a volunteer who devotes a large amount of time and personal resources because of a love for dogs and a desire to help people in need. It takes incredible patience to work with a puppy and develop the relationship that will produce success as a search team. According to NCSARDA President, Denver Holder, a nationally known instructor, “We’re not really teaching the dog.” They pretty much know what they’re doing. It’s the handler who gets the training. He points out that, “It takes years for the average handler to learn to read a dog.” NCSARDA handlers go to every search prepared to stay for several days, bringing along supplies for themselves and their dogs. “We don’t want to be in a position where someone’s loved one is out still out there, and we have to pack up and go home,” Schaffer said.
Search dog breeds
s Richard Schaffer sits with Rocky, his search dog. Schaffer is a member of the North Carolina Search and Rescue Dog Association (NCSARDA). PHOTO COURTESY RICHARD SCHAFFER
mine the direction of travel. Then faster-moving air-scent dogs can be focused in that direction. Often, search dog teams are brought in days after a search begins. This is unfortunate for many reasons, primarily because the search dog teams are a very important resource, and every hour counts in determining whether the search returns a live person or recovers a dead body. Human searchers can also make a dog’s task more difficult. Trampling by many people can obscure the trail that a tracking dog would follow. Having other people in the search area can cause a dog to give false alerts, although scent-discriminating dogs trained to follow specific human scents can still work in contaminated environments.
14 THE FORENSIC EXAMINER Summer 2008
The most popular breeds of search dogs are bloodhounds, Labs, shepherds, and herding dogs such as border collies. But a search dog can come in any size and shape. The Schaffers currently work a “high drive” Lab for air-scenting, and a shepherd for tracking. Both are cross-trained in cadaver. Schaffer said that one member of NCSARDA has two dachshunds, which come in very handy for certain types of searches. For instance, the first place to search when an Alzheimer’s patient goes missing is within a nursing home. Schaffer said his Lab would not be a good choice for a nursing home search because of its high energy. But the small dachshunds fit right in.
Breeding search dogs Patricia Wolanyk and her husband, Gene, breed,
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raise, and train search dogs at their Mansfield, Missouri operation, Blackhawkk9. About 16 years ago, Patricia began working with search dogs as a 17-year-old citizen of Budapest, Hungary. She moved to Missouri about 14 years ago and continued to work with dogs. Blackhawkk9 raises Belgian Malinois sheep dogs, which Wolanyk says is a very old breed that is a predecessor of German Shepherds. She prefers the breed because it isn’t “overbred” and Belgian Malinois dogs aren’t susceptible to the same diseases that are common to German Shepherds. Blackhawkk9 has breeders in Europe provide puppies, which are ready for transport at around 10 weeks old. The company raises and trains the dogs until they are ready to be sold at about 18 months old. Police departments and the military are Blackhawkk9’s chief clients. Besides search dogs, Blackhawkk9 also trains drug dogs and personal protection dogs. A lot goes into raising and training a search dog, and they don’t come cheap. A dog that has one specialty, such as a drug dog, sells for around $4,500, and a dog that is crosstrained, such as in drugs and handler protection, sells for about $6,000. Many law enforcement departments can’t afford a dog, so Blackhawkk9 donates a dog each year to a department in need. Some agencies will hold fundraisers to pay for the purchase of a dog. Blackhawkk9 works with handlers and keeps close track of each dog that is sold. Patricia said that she is available 24/7 to provide advice and support. She also keeps track of the dogs because she often becomes personally attached to them. “Leaving them is the hardest part,” she said. “We don’t keep them in a kennel, they come into the house. We don’t treat them as just working dogs.”
On the trail Wolanyk said that she and Gene are also available for searches, which they do as volunteers. Her most memorable search, she said, was when she and her 3-year-old Doberman tracked down a 2-year-old girl who had wandered off into a forest in Hungary. The girl had gone missing in the morning, and she had found her in the blazing heat of the afternoon. Most of the searches she works have happy endings, with the discovery of a live person. She purposely tries to avoid searches where (800) 423-9737
there is a high probability that the subject has died. “It’s emotionally draining to do cadaver searches,” she said. “Finding a young child who is not alive is hard.” She said it especially affects her because she is a mother and can empathize with what the parents are going through.
The earlier, the better Law enforcement search coordinators should keep search dogs at the forefront of their resources because they are most effective when called in early. Most search units welcome the opportunity to practice call-out procedures, so even a false alarm can be good practice. Search teams are far more likely to express relief instead of resentment if the subject is found before the dog teams arrive (Godfrey-Smith, 2004). “It’s better to err on the side of calling in dogs than it is to leave them out,” Schaffer said. “Any search manager who leaves dogs out is risking criticism by the family and the public.” Wolanyk agrees that law enforcement agencies are usually too reluctant to call in search dogs. She has found that sometimes dogs are not brought to the scene for days. “That’s unfortunate,” she said. “It seems that in Missouri, the dogs are the very last to be brought in. The tracks become contaminated when there are a lot of searchers walking across them.” Getting dogs to a search site should be a search coordinator’s top priority, Wolanyk said. “It’s still a mystery why they don’t think of dogs sooner,” she said. Schaffer said that all law enforcement leaders should be aware of the search dog organizations that serve their area. It’s good to stay in contact with leaders of the organizations and to periodically conduct joint training exercises. Closer contact between law enforcement officers and search dog teams educates the officers on the amazing abilities of the animals,
s Avery Schaffer stands with Scout during a wilderness search and rescue mission. PHOTO COURTESY RICHARD SCHAFFER.
and it will likely result in better coordination during actual searches. Many times lives depend on quick and efficient searches, and search dogs can literally lead the way to a successful search outcome.
References
The Associated Press. (2007). Boy Scout missing in N.C. found alive. Retrieved March 25, 2008, from http:// www.msnbc.msn.com/id/17701966/ Godfrey-Smith, D. (2004). Effective use of dogs in search management. Retrieved March 25, 2008, from www.searchdogs.org/articles/Effective%20Use%20 of%20Dogs%20in%20Search%20Management.pdf West Jersey K-9 Search and Rescue. (2006). Search dog types. Retrieved March 25, 2008, from http://www. westjersk9.org/types/index.htm Zanoni, M., Morris, A., Messer, M., & Martinez, R. (1998). Forensic evidence canines: Status, training, and utilization. Retrieved March 25, 2008, from http://www.csst.org/ forensic_evidence_canines.html n
About the Author John Lechliter is the editor in chief of The Forensic Examiner. He has had a 20-year career as a newspaper editor. He has also worked for the U.S. House of Representatives and was a member of the 1991 Kansas Select Committee on Ethical Conduct in the Kansas Legislature. He has published two history books. Contact him at editor@acfei.com.
Summer 2008 THE FORENSIC EXAMINER 15
Forensic Science Traditions
The Truth in a Nutshell The Legacy of Frances Glessner Lee By Katherine Ramsland, M.A., Ph.D., CMI-V
A
lthough the past century in forensic science has yielded many innovations, few women have been credited with advancing the field. A notable exception is Frances Glessner Lee, daughter of John Jacob Glessner and heir to the International Harvester fortune. Defying her father’s attempt to protect her from the outside world, she found a way to make a significant contribution to the arena of death investigation. In a 1949 article for the Coronet, George Oswald described her: “A queenly looking woman with the high, white coiffure and the tiny gold-rimmed eyeglasses is known as a passionate crusader for justice and a tireless lobbyist for reform.” Lee was one of a kind. s Frances Glessner Lee constructing a miniature crime scene in the 1940s. PHOTO/GLESSNER HOUSE MUSEUM
Born March 25, 1878, in Chicago, “Fanny” was raised in privilege and privately tutored. She aspired to study law or medicine, but her father refused to allow her to attend a university. Off went her older brother George to Harvard, which seemed to her unfair, but it would prove fortuitous. He met George Burgess Magrath, who was working on his MD at the medical school and who hoped to have a career in pathology. Magrath often visited the Glessners at “the Rocks,” their thousand-acre summer estate in New Hampshire, where he mesmerized Frances, a fan of Sherlock Holmes, with stories about death investigation.
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After Magrath became the medical examiner for Suffolk County in Massachusetts, he confided to Lee the need for the training of death investigators, especially because coroners in many states were not required to have medical degrees. He thought medicine should be part of their background, because accurate assessments required familiarity with such things as the nuances of wounds and the physical symptoms from different types of poisonings. She asked what she could do, and Magrath encouraged her to assist with developing a prestigious flagship program at Harvard, so she moved to the Rocks to have easier access. In 1931, Lee used her fortune to help establish Harvard’s Department of Legal Medicine, with Magrath as first chair. In his name she donated a library of more than 1,000 books and manuscripts, many of them rare, and endowed a sizable grant. With Lee’s support, Harvard was able to mount conferences and seminars to train students to become medical examiners. The program flourished, but Magrath did not have long to enjoy the fruits of his collaboration with Lee—he died in 1938. She was heartbroken, but she continued to support the vision. Her next move was truly innovative.
The Surprise Factor Fascinated with the “surprise factor”—the way small clues could quickly divert an investigation onto a new track—Lee taught herself everything she could about crime investigation. She knew that inexperienced police officers often committed errors when trying to determine manner of death, largely due to missing the clues. To mitigate this, she devised a practical solution: build crime scenes on which they could practice—in miniature. Lee already knew how to make miniatures. When she was 35, she had spent 2 months creating a replica of 90 musicians in the Chicago Symphony Orchestra, all fully garbed and each with a musical score and specific instrument. Then for two years she worked on a similar project involving four musicians, which was so minutely detailed the men on whom she based it were astonished. She would now turn her talent and passion for such projects toward fighting crime. Lee’s motto, inspired by a detective, was “convict the guilty, clear the innocent, and find the truth in a nutshell.” Thus, she dubbed her project the “Nutshell Studies of Unexplained Death.” Setting aside the second floor of her four-story mansion as a
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Summer 2008 THE FORENSIC EXAMINER 17
majority of victims were female, and some were children—even a baby. All were Caucasian, and many lived in deprived circumstances. In the rooms or yards, Lee placed tiny cigarettes she’d rolled, clothespins she’d whittled, books or newspapers she had prepared, and prescription bottles with labels she had printed by hand. One room even had crushed-out butts in an ashtray. Sometimes Lee used items from charm bracelets or Cracker Jack boxes, and a “mouse” caught in a trap was made from a pussy willow bud. Among these items were clues to the manner of death— an open beer bottle where none belonged, broken glass, bullet casings, or a pile of letters. To create each crime diorama, she blended several stories, sometimes going with police officers to crime scenes or the morgue, sometimes reading reports in the newspapers or interviewing witnesses, and often using fiction. She preferred enigmatic scenarios, where one had to examine all the clues before deciding on a conclusion, including items that did not initially appear significant. In the scenario called “Burned Cabin,” for example, a young man who escaped a nighttime fire that killed his uncle is fully dressed, undermining his story of an unexpected accident. Lee based this on a 1943 crime, and after the mini-cabin was assembled, she used a blowtorch to incinerate parts of it.
The Seminars
s This portion of a kitchen crime scene where a cook apparently perishes from gas poisoning, shows a clue—material stuffed around the door frame, presumably to hold the gas in. PHOTO COURTESY CORINNE BOTZ.
workshop, she filled one room with doll-size furniture from her international travels. Then she hired a full-time carpenter, Ralph Mosher (and then his son) to craft the small buildings. From cabins to three-room apartments to garages, each was fashioned from her design, on a scale of one inch to one foot. She instructed Mosher to make doors and windows that actually worked, with shades that rolled up and working locks with mini-keys. For her own delight, she sometimes used wallpaper patterns from her own household, and in some rooms Lee even placed tiny dollhouses with which the children might play. Mosher and his son turned out about three Nutshells per year, each of which cost the same as an average house in those days. Lee herself made the dolls by hand, using a cloth body stuffed with cotton BB gun pellets and bisque heads. She painted the faces and stitched the clothes, adding sweaters and socks knitted on straight pins. Once each doll was ready, Lee would decide just how it should “die” and proceed to stick a knife in one, drown another, or hang one up with a noose. On each, she would paint the appropriate colors of decomposition. The
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Once Lee had several “dollhouses of death” completed, she used them as part of the week-long seminars she sponsored at Harvard twice a year for the many different professionals involved in law enforcement. The only woman in attendance, she sent out invitations to police officers from around the country. One day of each week was set aside to showcase the Nutshells, which were kept in a temperature-controlled room. Participants were granted a limited period of time to look at each crime scenario, take notes of what they observed, and report back to the others. The point was not to “solve” the crime but to notice important evidence that could affect investigative decisions. By the time Lee finished her ambitious project, she had 19 Nutshells. In a written instruction, Lee urged those preparing to observe a scene to imagine themselves as less than half a foot tall. She also advised that, to accomplish a methodical examination, they adopt a geometric search pattern. They were to look at the entire scene, searching for any and all clues, because some were not obvious. There might be a bullet caught in a ceiling, a pattern of blood that contradicted an obvious interpretation, or a weapon in an odd position. Lee would pen spare descriptions to assist, such as one referring to a crime that “occurred” on April 12, 1944: “Mrs. Fred Barnes, housewife, dead.”
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In each scene, she included items that were not apparent unless one looked carefully, such as a purse under the bed or a smudge of lipstick on a pillow slip. What seemed a suicide, for example, might change when a key item was noted—a fresh-baked cake, a load of freshly laundered clothing, and an ice cube tray beside a woman’s body on the kitchen floor. Other scenarios included a bound prostitute with a sliced throat, a man hanging in a wooden cabin, a boy dead on a street, and an apparent murder/suicide. Included in the seminars was a magnificent dinner at the Ritz Carlton, served on expensive china that Lee had purchased and used exclusively for the occasion. Many in attendance had never experienced such luxury, and a few came to refer to Lee as “Mother.” One trooper told her that the Nutshell Studies had helped him learn how to handle difficult cases. If not for the challenge she had posed, he might not have been as careful as he’d now become. Such compliments confirmed for her that the intense effort and the $60,000-plus that she had spent was entirely worthwhile. On the anniversary of the first Harvard seminar in 1946, graduates came together to form the Harvard Associates in Police Science (HAPS), and each graduate thereafter become a member. The seminars were so successful they inspired similar teaching tools in other states. By 1949, some 2,000 doctors and 4,000 lawyers had been educated at the Harvard Department of Legal Medicine, and several thousand state troopers, detectives, coroners, district attorneys, insurance agents, and even reporters had attended Lee’s seminars. They would continue successfully for several more years.
Honors In 1943, Frances Glessner Lee received an honorary appointment as a captain of the New Hampshire State Police, which made her the first woman to hold such a position. In addition, she became the first female invited into the International Association for the Chiefs of Police.
When her eyesight finally failed, her doctors forbade her from working, so she had a radio installed in her room to listen to the police reports. She wrote encouraging letters to chiefs of police and spoke passionately about the need for reforms in the coroner system. In 1962, her stamina gave out, and she died, mourned by many. Four years later, when the Department of Legal Medicine closed at Harvard, the Nutshells were transferred to the Office of the Medical Examiner in Baltimore, Maryland, and in 1992, a grant funded their restoration. Although one of the Nutshells is on display in the lobby, permission must be requested from the Office of the Chief Medical Examiner to see the others. The Harvard Associates in Police Science continues to use some Nutshells in its teaching seminars. Although few people today, even in forensic science, know about Frances Glessner Lee, her legacy lives on in those who teach via diorama, and even in a series of CSI episodes that used miniature crime scenes as clues in a serial killer investigation. In an obituary, Lee’s close friend, Erle Stanley Gardner, author of the Perry Mason series, wrote, “Captain Lee had a strong individuality, a unique, unforgettable character, was a fiercely competent fighter, and a practical idealist.” Despite the hurdles she faced in this maledominated arena, Lee found a niche and managed not only to achieve her childhood dream but also to make a difference.
Sources Botz, C.M. (2004). The Nutshell studies of unexplained deaths. New York: Monacelli Press. Kahn, E. (2004, October 7). Murder Downsized. New York Times. Maxwell, D. (2006). Oh, you beautiful doll. New York Arts Magazine, May/June. Miller, L. Frances Glessner Lee: Brief life of a forensic miniaturist. Harvard Magazine. Retrieved June 18, 2006, from http:// www.harvardmagazine.com Oswald, G. (1949). Grandma knows her murders. Coronet, reprinted on http://www.sameshield.com. Retrieved June 18, 2006, from http://www.sameshield.com n
About the Author
s Photographer Corinne May Botz has compiled the definitive look at the crime scene dioramas by Frances Glessner Lee. Her book, “The Nutshell Studies of Unexplained Death,” was published in 2004 and contains 225 pages of fascinating color photographs. It is available at www.amazon.com.
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Katherine Ramsland, PhD, CMI-V, has published 31 books, including The CSI Effect and Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation. Dr. Ramsland is an assistant professor of forensic psychology at DeSales University in Pennsylvania and has been a member of the American College of Forensic Examiners International since 1998.
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FREE CE CREDITS! The American College of Forensic Examiners is now offering FREE CE credits to all members in good standing. To receive free credits, simply read an Examiner CE article and take the online examination. Only online exams qualify for this free offer. Summer 2008 THE FORENSIC EXAMINER 21
FORENSIC SCIENCE IN SAN DIEGO!
The Town & Country Resort in sunny San Diego will be host to the 2008 National Convention during the first week of September. The resort boasts stunning views, first-class amenities, and outstanding recreational opportunities. This is a great location in California’s secondlargest city.
National Conference Features Serious Science in a Paradise Setting erious forensic science and paradise—they’ll go togeth-
Outstanding programs
er at the 2008 National Conference of the American
The schedule for the conference begins on Page 24, and a conference registration form appears on Page 31. Registration is even easier online at www.acfei.com. The September 5 programs delve into a wide array of forensic issues, including digital data, conflict and crisis management, horizontal violence, false confessions, blood spatter interpretation, homicidal drowning, and electronic evidence, among others. On September 6, programs cover such important topics as evaluation of financial controls, behavior genetics, computer forensics, and report writing. The ACFEI mock trial will take place on the afternoon of September 6, giving attendees valuable insight into courtroom procedures and strategies.
College of Forensic Examiners Institute. The San Diego venue offers warm beaches, vibrant nightlife, and resort accommodations that will make attendees well rested and ready to plunge into the exciting programs. It’s all combining to make this year’s National Convention one of the most anticipated in recent memory. The ACFEI programs, running from Sept. 4 through Sept. 6, feature the chance to meet and network with fellow professionals, and they make the National Conference a must-attend meeting for hundreds of forensic science experts from across the nation and around the world. The ACFEI meeting coincides with annual meetings of sister associations, such as the American Board for Certification in Homeland Security and the American Psychotherapy Association, making it a great opportunity to establish cross-discipline contacts with other professionals and to take in programs offered by the other organizations at substantially discounted rates.
22 THE FORENSIC EXAMINER Summer 2008
Outstanding certifications Central to the conference is the opportunity to learn from the best. Six certification courses give participants the chance to interact with professionals who are recognized leaders in their subject areas. Certifications offered are CHS-V: CBRNE, Certified Forensic Consultant (CFC), Certified Forensic Nurse (CFN), Certified Forensic Accountant (Cr.FA), Certified Medical Investigator (CMI), and the Psychology of Terrorists Short Course.
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2008 Certification Conference The following certifications will be offered: Certified in Homeland Security Level V (CHS-V), Certified Forensic Consultant (CFC), Certified Forensic Nurse (CFN), Certified Forensic Accountant (Cr.FA), Certified Medical Investigator (CMI), and the Psychology of Terrorists Short Course.
Tuesday, September 2 8 a.m.–4:30p.m.
CHS-V: CBRNE Preparedness Course
5 p.m.–7 p.m.
CHS-V Certification Exam
Wednesday, September 3 7 a.m.–8 a.m.
Registration for CFC, CFN, CrFA, CMI, and Psychology of Terrorists
8 a.m.–5 p.m.
Certification Classes
Thursday, September 4 8 a.m.–5 p.m.
Certification Classes and Short Course
5:30 p.m.–9:30 p.m.
Exam for CFC, CFN, CrFA, CMI, and Psychology of Terrorists Short Course
ACFEI Announces New Short Course!
THE PSYCHOLOGY OF TERRORISTS SHORT COURSE Dr. Raymond H. Hamden will be offering a 2-day short course on September 3rd and 4th at this year’s National Conference in San Diego. His presentation will act as a training course in terrorist psychology using a clinical, psychoanalytical, and social psychology framework for studying terrorist groups and individuals, terrorist origins, goals, dynamics, ideologies, counterterrorism, and homeland security. Work in this course involves an overview of the structure and dynamics of terrorists in North America, South America, Europe, the Middle East, Africa, Asia, and Australia. Terrorist strategies and tactics, the hot spots from which they evolve, the ways they operate, the use of the media, and theories of counterterrorism or negotiations are all covered. The history, present, and future of terrorism are indicated. Participants will review definitions and typologies of terrorism, analyze specific concepts in context, and discuss thoughts about terrorism. Dr. Raymond H. Hamden earned a PhD in psychology and continued post-graduate studies in modern psychoanalysis. Dr. Hamden (800) 423-9737
consults in clinical psychology, domestic relations, crisis intervention, trauma, and homeland security. He is a Certified Medical Investigator, Level-V; Certified in Homeland Security, Level-V; and a Certified Forensic Consultant. Prior to coming to Dubai in 1990, Dr. Hamden was in private practice in Washington, D.C. For professional distinction, Dr. Hamden was awarded the status of Fellow by the American College of Forensic Examiners International, where he serves as an Advisory Board member on the American Board of Psychological Specialties and was selected as Vice-Chair for the 2007–2008 year. He also holds a Board member position on the new American Board of Crisis and Emergency Management. Dr. Hamden has appeared as an expert in international media: ABC’s 20/20, ABC Good Morning America, National Public Radio, CNN, BBC, Al Arabiya, Al Jazeerah English TV, Canada AM, and many others; local networks have regularly called on his professional analysis and testimony in various topics on psychological profiling and critical incidents. He has also consulted on site in Baghdad, Iraq; Kabul, Afghanistan; Saudi Arabia; Syria; Lebanon; Algeria; and other locations throughout the Middle East/North Africa and globally. Most recently, he was selected to serve on the workshop committee and plenary group for the European Space Agency (ESA) and consulted on psychology of space travel. Summer 2008 THE FORENSIC EXAMINER 23
Conference Agenda Tuesday, September 2 1 p.m.–8 p.m.
CHS National Conference Registration
7 p.m.–9 p.m.
Welcome Reception
Wednesday, September 3 Please note: Conference schedule is subject to change without notice. All presentations are approved for ACFEI Continuing Education credits.
8 a.m.–9 a.m.
General Session Meet and Greet the ABCHS Board
9 a.m.–9:30 a.m.
Morning Break
9:30 a.m.–11 a.m.
Crime Prevention Through Environmental Design Presenter: John Judd, CHS-V
Safeguard Assets Presenter: Barbara B. Citarella, CHSIII, RN, BSN, MS
Networking Lunch (Registration Required) Keynote Speaker: Jessica M. Cummins, CHS-V
11 a.m.–12:45 p.m. 1 p.m.–2:30 p.m.
The Octopus of Terrorism in the Middle East Presenter: John W.A. Didden, CHS-III
Security, Trends, Issues, Unification of Effort-Schools Securing the Supply: Food Concerns, and Solutions and Law Enforcement: Part 1 Vulnerability Assessments Presenter: Mark Garver, CHS-V Presenter: Mark E. Presenter: Col. Ronald A. Kissel, MS, CHS-III Torgerson, CHS-V, DABCHS
Introduction to Compound 2:45 p.m.–4:15 p.m. The Secret to Our Present and Unification of Effort-Schools Entry Control Points Future is in Our Past: History’s and Law Enforcement: Part 2 Presenters: Frank Shearer, Undertones and Why We Presenter: Mark E. CHS-III and Michael Gomien Need to Be in Tune With Them Kissel, MS, CHS-III Presenter: Patrick N. Cowan, CHS-V, CFC, SSI 4:30 p.m.–5:30 p.m.
Panel Discussion: Challenges and Solutions to Changes Worldwide in Law Enforcement
24 THE FORENSIC EXAMINER Summer 2008
Newly Revised National Incident Management System: Introduction Presenter: Steve Hermann, CHS-V, DABCHS
Fire Down Below: The Aviation Threat Posed by Man Portable Air Defense Systems (MANPADS) Presenter: Jeffrey T. Fowler, CHS-III
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Conference Agenda Thursday, September 4 Please note: Conference schedule is subject to change without notice. All presentations are approved for ACFEI Continuing Education credits.
8 a.m–-9:30 a.m.
General Session Keynote Speaker: Dr. Roy Swift, Program Director, ANSI
9:30 a.m.–10 a.m.
Morning Break
10 a.m.–11a.m.
IED Recognition Presenters: David L. Johnson, CHS-V, and Officer Gregory Faught, EOD
National Response Framework Presenter: Steve Hermann, CHS-V, DABCHS
Mortuary Services Surge Capacity Planning Presenter: Col. Ronald A. Torgerson, CHS-V, DABCHS
11:15 a.m.–12:15 p.m.
Creating Hospital Surge Operational Pragmatics: Overcoming Resistance Capacity: Hospital Emergency The Key to Delivering on the Local Level Support Functions and Results in Complex Presenter: Janet M. Schwartz, Reallocation of Resources Organizational and PhD, CHS-V, FACFEI, Presenter: James L. Operational Environments DABFE, DABFM, DABPS Paturas, CHS-IV Presenter: AJ Briding, CHS-III
12:15 p.m.–1:15 p.m.
Lunch On Own
1:30 p.m.–2:30 p.m.
The Safety Act...What is It? Presenter: Andrew J. Jurchenko, Sr., CHS-V, DABCHS
Panel Discussion: IT/Cyber Security/ Computer Forensics
Disaster Planning and Special Needs Population Presenter: Barbara B. Citarella, CHS-III, RN, BSN
2:45 p.m.–3:45 p.m.
Panel Discussion: Emergency Management Moving Forward in the 21st Century
Building and Sustaining the Education Continuum for a Homeland Security Workforce Presenters: Debra Griffin and John Heller, PhD, CHS-IV
Improvised Explosive Devices Presenter: Buddy Eanes, CHS-III
4 p.m.–5 p.m.
Leading Cross-Cultural Law Enforcement and Security Forces: A 21st Century Challenge Presenter: Jeffrey T. Fowler, CHS-III
6:30 p.m.–9 p.m.
(800) 423-9737
Fundamental Understanding Strengthening Rural Response, of Domestic Terrorist Groups Recovery, and Resiliency Presenter: Stephen Through Integrated Systems Para, CHS-III Presenters: Ruth Cover, CHS-III, Angela Jouett, and Kathleen Bordby
Awards Banquet (Ticket included with conference registration) Keynote Speaker: Dr. Gary Klein, MD, MPH, MBA, DABCHS, CHS-V
Summer 2008 THE FORENSIC EXAMINER 25
Conference Agenda
Please note, conference schedule is subject to change without notice.
Thursday, September 4 2 p.m.–8 p.m.
ACFEI/APA/AAIM Conference Registration
6:30 p.m.– 9 p.m.
Awards Banquet (Ticket included with conference registration) Keynote Speaker: Dr. Gary Klein, MD, MPH, MBA, DABCHS, CHS-V
Friday, September 5 8 a.m.–9 a.m.
General Session Keynote Speaker: Jan Hargrave, MEd
9 a.m.–9:30 a.m.
Morning Break
9:30 a.m.–5 p.m.
All-Day Workshop: The Science of Happiness: Using Positive Psychology Research in Psychotherapy and Changework Presenter: Bill O’Hanlon, MS, LMFT, FAPA, MT CEs: APA, NBCC, ASWB, CBBS
9:30 a.m.–11 a.m.
Conflict and Crisis Management Digital Data: How to Use Computer Forensics in an Investigation Presenters: Brad Sargent, CPA, CrFA, DABFA and Mick Kahaian CEs: ACFEI CEs: NASBA, ACFEI
Horizontal Violence: When Bully Behavior Turns Deadly Presenter: Dianne Ditmer, MS, RN, DABFN, CFN, CMI-III, CHS-III, FACFEI CEs: ACFEI
Lunch On Own
11 a.m.–12 p.m. 12 p.m.–1:30 p.m.
Skimming, Scamming, and Collusion: Case Studies in Discovery of Fraud Presenter: Constance Pinney, CPA, CrFA, CFC CEs: ACFEI, NASBA
Law Enforcement Outreach Training and Service Initiative Presenters: Kathy Sperry, PhD, CFC, FACFEI, DABPS, and James Childers, MS, CFC CEs: ACFEI
Providing Effective Testimony-Lessons Learned from the Defense Presenters: Brenda Ewen, RN, MSN, CFN, and Joseph Gabay CEs: ACFEI
1:45 p.m.–3:15 p.m.
A Model-Based Approach to Enhancing Problem Solving Skills Among Forensic Examiners Presenter: Ronna Dillon, PhD, CMI-V, CHS-III, DABFE, DABPS
False Confessions: An Introduction Presenter: Elizabeth Owen, PhD, CFC
Whiplash: The Epidemic Presenter: John Haberstroh, DC, DABFE, FACFEI, CMI-V, CFC
CEs: ACFEI
CEs: ACFEI, APA
Electronic Evidence 21 Months Later Presenter: Ernesto Rojas
Show Me-Don’t Tell Me Presenters: Paul Greenwald and Glynn Bedington
CEs: ACFEI
CEs: ACFEI
3:30 p.m.–5 p.m.
5 p.m.–7 p.m.
26 THE FORENSIC EXAMINER Summer 2008
CEs: ACFEI Advance Healthcare Directives: Are They “Dead on Arrival” When You Need Them Presenters: Philip Kaushall, PhD and Michael Evans, JD, MSW CEs: ACFEI
Networking Reception
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Conference Agenda Quality of sessions was excellent. Qualified and experienced speakers with lots of participant Q & A. I always get good ideas from this conference.”
A wonderful variety of topics and excellent speakers. You are provided with current resources to obtain additional information. Excellent conference!” Mental Health and Law With a Cultural Overview Presenter: Carmen Inoa Vazquez, PhD, DABPS and Martin Juvelier, Esq CEs: APA, ASWB, CBBS, NBCC
Inchoate Crime: Is it a Conspiracy Presenter: James Williams, PhD CEs: ACFEI
Digital Media Using the Electric Network Frequency Presenter: Rich Sanders, MSEE CEs: ACFEI
Lunch On Own Psychopathy and Criminal Behavior No One Wants to Blow the Presenter: Lesley Kane, PhD Whistle: When Must You Presenter: Max Porter, PhD, DABFE, FACFEI, CFC CEs: ACFEI, APA CEs: ACFEI
Recovery and Strengthening Techniques for Combating Cancer, Heart, Traumatized and Terminally Diagnosed Patients Presenter: Brian Costello, PhD CEs: ACFEI
Assessing and Investigating the A Dysfunctional Nation ENF Methodology for Domestic Abuser and Sexual and Its People Forensic Authentication Offender: Forensic Considerations Presenter: Raymond Hamden, Presenter: Eddy Brixen, DABFET Presenter: Scott Johnson, PhD, FACFEI, DABPS MA, DABPS CEs: APA, NBCC, ASWB, ACFEI CEs: ACFEI, APA CEs: ACFEI Testifying and Preparing for Courts and Depositions Presenter: Cam Cope, BS, DABFE, DABFET CEs: ACFEI
Homicidal Drowning: A Case Report Presenters: Syed H. Shah and Mubashir Farooqi, MD CEs: ACCME, ACFEI
Blood Spatter Interpretation at Crime and Accident Scenes Presenter: Louis L. Akin, LPI, CMI-III CEs: ACFEI
Networking Reception
(800) 423-9737
Summer 2008 THE FORENSIC EXAMINER 27
Conference Agenda Saturday, September 6 Please note, conference schedule is subject to change without notice. 8 a.m.–9:30 a.m.
9:45 a.m.–11:15 a.m.
Evaluation of Financial Controls in the PreFraud Environment Presenter: Eric Kreuter, CPA, FACFEI, DABFA
Bath Tub Effect: Fact or Myth Presenter: Bill Petrelli, CFC, FACFEI, DABFET
Behavior Genetics Presenter: Syed Shoaib H Shah
CEs: NASBA, ACFEI
CEs: ACFEI
CEs: ACFEI
History of Audio Understanding Planes, Vans, Enhancement and Posttraumatic Stress and Automobiles: Authenticity Analysis Disorder as a Professional Medical Escort of the from Edison to Today’s Presenter: Debra Russell, Forensic Patient Digital Technology PhD, CMI-V, DABCEM Presenter: Heidi Bale, RN Presenter: Tom Owen, FACFEI, DABFE, CEs: APA, NBCC, DABRE, CHS-V ASWB, ACFEI CEs: ACFEI CEs: ACFEI
11:15 a.m.–12:15 p.m. 12:30 p.m.–2 p.m.
Managing Stress in the Aftermath of a Critical Incident Presenter: Sandra Caramela-Miller, CMI-IV, CFC CEs: APA, ASWB, ACFEI Musculoskeletal Pain Syndromes Presenter: Robert Fielden, MD, FACFEI, DABFE, DABFM CEs: ACCME, CABRN, ACFEI
Lunch On Own Utilization of Quantitative Computer Forensics: EEG (QEEG) in Past, Present, and Future Forensic Cases Presenters: Johnette Presenter: David Hassell, PhD, Genevieve Cantor, PhD, DABFE, Turner, and Caroline Hiatt DABPS, FACFEI CEs: ACFEI CEs: APA, ACFEI
Report Writing for Investigators Presenter: Stephen Russell, CMI-II
Psychoactive Drug Effects and Public Safety Presenters: Lauren DeWitt, RPh and Moira Dolan
CEs: ACFEI
CEs: APA, ACCME, ACFEI
2:15 p.m.–3:45 p.m. ACFEI Mock Trial
4 p.m.–5:30 p.m. ACFEI Mock Trial
28 THE FORENSIC EXAMINER Summer 2008
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Conference Agenda Saturday, September 6 Please note, conference schedule is subject to change without notice. The Utilization of Personality Type in the Understanding of Dysfunctional Relationships Presenter: Gerald Dahl, MSW, PhD, CRS, FAPA
Putting Attachment Theory Into Action Presenter: Marion Solomon, PhD, DAPA
Caring for the Healer Panel Discussion
CEs: APA, ASWB, NBCC, CBBS Anxiety, Addiction, and Compulsion: Integrating Reichian-Myofascial Release Therapy in the Treatment of Emotional Trauma Presenter: Peter Bernstein, PhD, FAPA CEs: APA, NBCC, CBBS, ASWB
CEs: APA, NBCC, ASWB, CBBS Using Guided Imagery with Addiction and Recovery Presenters: Charles Leviton, EdD, DAPA, and Patti Leviton
CEs: ACFEI
CEs: APA, NBCC, ASWB
Personal Plug N’ Play: An Interactive Seminar on Distance Credentialed Counseling Presenter: Kevin J. Lourie, PhD, LMHC, BCPC CEs: ACFEI
Lunch On Own The Importance of Goal Setting in Client’s Level of Satisfaction with Therapy Presenters: Andre SagreraCuartas, PhD and Kristie Cato, LPC, DAPA
Using Hypnotic Language in Everyday Life Presenter: Kate CohenPosey, BCPC
BodyMind in Psychotherapy of Trauma Presenter: Jacqueline Carleton, PhD, DAPA
CEs: NBCC, CBBS, APA, ASWB
CEs: ACFEI
CEs: APA, ACFEI
Screening Brief Intervention and Referral to Treatment in a Level I Trauma Center Presenter: Gary Kesling, PhD, BCPC
Educational Therapy: Hope for Exceptional Learners and Families Presenters: Jill Porras, MA, and Christine Kraus, PhD CEs: APA, NBCC, ASWB, ACFEI
Survival of the Fittest: Somehow We all Survived Adolescence Presenter: Amy Flavin, MS, LPC, BCPC CEs: APA, NBCC, ASWB, CBBS
CEs: ACFEI
Ethical Boundaries and Spirituality in Healing: Clinical Settings Moving Beyond Symptoms Presenters: Patricia Coccoma, Presenters: Carmen Nate, MD, LCSW, and Amanda and Fred Weaver, III, MD Evans, EdD, MSW CEs: APA, NBCC, CEs: ACFEI CBBS, ASWB, ACFEI
(800) 423-9737
Sex, Health, and Aging Presenters: Dan Stein, MD and Michael Baer, PhD, FAPA, FACFEI CEs: ACCME, ACFEI
Summer 2008 THE FORENSIC EXAMINER 29
Conference Spotlight: Jan Hargrave, ‘Body Language’ Jan Hargrave, an expert in nonverbal communication, will be giving a seminar on the use of body language at the National Conference in September. She will cover eight basic categories encountered in everyday life. Hargrave has appeared in such venues as The Montel Williams Show, The Ricki Lake Show, The Learning Channel, and E-Entertainment Television, just to name a few. If you have never had the opportunity to see Hargrave on one of her frequent television appearances, you may have read one of her many books: Let Me See Your Body Talk, Freeway of Love, Judge The Jury, and Strictly Business Body Language. Hargrave has also written for high-profile publications, and her works have been featured in such periodicals as The New York Post, Cosmopolitan Magazine, and Us Weekly.
She is also the CEO of her own consulting firm, Jan Hargrave & Associates, where she has acquired a clientele list that includes Starbucks, Johnson & Johnson Pharmaceutical, the Texas Department of Corrections, and NASA Johnson Space Center. Hargrave has a Bachelor’s Degree, a Master’s Degree, and an Education Specialists’ Degree from the University of Lafayette. She is also an active member of the American College of Forensic Examiners Institute. Jan Hargrave’s seminar this September should prove to be informative, useful, and most of all, an enjoyable experience. This seminar will help attendees understand the silent communication behind any face-to-face interaction.
Watch for Article in Fall Examiner Hargrave has written an article for The Examiner, “Do You Speak Body Language? Mastering the Art of Nonverbal Communication,” to be featured in the Fall 2008 edition, which will hit newsstands a few weeks before the National Conference.
Conference Spotlight: Dr. Gary Klein, ‘Natural Disasters’ Dr. Gary Klein will be presenting at this year’s National Conference. His presentation “Natural Disasters, Are We Better Prepared?” will cover the underlying issues of the preparedness of our nation. There are few who are better equiped to present this infomration than Dr. Klein. Dr. Klein comes from a diverse educational background having attended both the Medical College of Georgia School of Medicine and also the Emory University School of Medicine. Additionally, he has earned an MBA from the University System of Georgia. Dr. Klein’s awards and education didn’t stop in the university setting. His achievements with the University System of Georgia
led to him being honored with an Entrepreneurial and Leadership Internship from the founders of Home Depot. While working with a team researching the H. Pylori outbreak in India and Egypt, he was awarded with a Fellowship from the World Health Organization. He has also shown dedication to the American College of Forensic Examiners by achieving a Level V Certification in Homeland Security. In conjunction with the American Medical Association, Dr. Klein is an Instructor for Disaster Life Support, where he teaches both basic and advanced procedures. He has also published many peer-reviewed journal articles and is a member of the Editorial Board for the journal, Urgent Care. He is the author of Guide to the Electronic Medical Practice: Strategies to Succeed, Pitfalls to Avoid. Dr. Klein will present at the Awards Banquet on Thursday, September 4th.
UPGRADE YOURSELF
Education makes you more effective, and it makes your work more valuable. Management Executives, Inc. is a leader in producing quality courses and soughtafter certifications. Here are only a few of the many education and certification options included in the 2008 catalog of courses:
• Sensitive Security Information, Certified • Certified Forensic Nurse, CFN • Certified Forensic Consultant, CFC • Certified Medical Investigator, CMI I–V • Certified Forensic Accountant, CrFA • Crisis Response Coordinator, CRC • Establishing Executive Security
MANAGEMENT EXECUTIVES INC.
• Computer Security and You • An Introduction to Forensics • The Hospital Emergency Receiver Team: Its Development As A Tool For Homeland Security Readiness and Response • Certified in Homeland Security, CHS I–V
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All requests for cancellation of conference registration must be made to Association Headquarters in writing by fax, mail, or email. Phone cancellations will not be accepted. All cancelled/refunded registrations will be assessed a $50 administrative fee. All refunds will be issued in the form of credit vouchers and are pro-rated as follows: cancellations received 4 or more weeks prior to the conference=100% refund (less $50 administrative fee); cancellations received less than 4 weeks but more than 1 week prior to the conference=50% refund (less $50 administrative fee); cancellations received 1 week or less prior to the conference=no refund. For more information on administrative policies, such as grievances, call (800) 423-9737. The performance of this conference is subject to the acts of God, war, government regulation, disaster, strikes, civil disorder, curtailment of transportation facilities, or any other emergency making it impossible to hold the conference. In the event of such occurrences, credit vouchers will be issued in lieu of cash. Conference schedule is subject to change. Please be prepared to show photo identification upon arrival at the conference. Special Services: ❑ Please check here if you require special accommodations to participate in accordance with the Americans with Disabilities Act. Attach a written description of your needs.
New Members, Diplomates, Fellows, and Life Members
Welcome New ACFEI Members! Iqbal Ahmed Timothy Harold Akers Victor U. Akuchie Salem Saeed Nasser Aleisayi Richard K. Allen Roselyn Morgan Allred Christian Anderson Mont R. Anderson Nancy L. Anderson Anthony A. Aquila Armando Anthony Armijo Sam Ayesiga James H. Ballard Saman Wijaya Bandara Shannon M. Barnes John H. Baumgartner Glen H. Bednarz Barry J. Bernier Fred W. Bertram Aaron D. Bienkowski Douglas H. Biggs Timothy L. Bishop Janice L. Blake Monte D. Blome John Boal C. Duane Bodtker Richard C. Bollea
Kai Bollmann Nataliya A. Bolsheva Christopher J. Bolton Manfred C. Borges Keith A. Boring Thomas M. Bowers Bruce G. Boyer Gary B. Branche David Brannon Douglas L. Braund Alan J. Briding Tyrone D. Brinkley Welsey Brown John Bubany Pedro A. Bueno Philip E. Burnett Daniel T. Butts Jan E. Calloway Jeffery A. Campbell Matthew Capezzuto Arthur J. Cardo Thomas M. Carman Douglas Carner Ryan W. Carpenter Jerome Carr Anwar D. Carter Frantz Joseph Casseus Beth A. Channel Jennifer K. Chapel Mark Chapman
Richard E. Chase Val E. Chete Kent E. Chiles Tracy Chovanec Gerard Claudio Melvin A. Coleman Nestor L. CollsSenaha Ira Combs William A. Cook Bruce A. Cooke David W. Coons David Lazare Copeman Norman A. Cox Franklin N. Crowley Frank J. Cruice Louis S. Culpepper Justin Curtis Julian Joshua S. Cusio David J. Dailey Umar Dakwala Larry E. Daniel Jonathan H. Daniels Anthony Stewart Daulby Patricia L. Davis Shawn Dawson Jose L. Del Olmo Lani I. DesRosiers
Sarah J. DeWitt Debra Lauren Diaz Joseph Warren Dickson Sheila J. Dolbow Ellen C. Dollacker Robert L. Domenici Malcolm T. Dow Linda J. Doyle Shannon Dube Christopher J. Dunford James L. Dunn Daniel K. Eagle Thomas Glen Eatchel Gabriel Echavarria Mogamad Naasief Edross Joseph Elkins Lauren Ashely Ely Raymond Emmanuel Douglas England Sherri L. Evans Thierno Amath Fall Michael Farag Ellen Farrell John G. Feltz John M. Fetrow Andrew G. Fishman Donna T. Forrest
Mack A. Gadsden Michael Edward Gallagher Brian J. Gallant Bobby Antonio Garcia Marc E. Glasser Robert W. Glasser Ronald A. Glover Amber Goldsmith William Gonzalez Lisa D. Gordish Steven D. Gordon Jeffrey J. Gruber Ruben Ricardo Guerra Michael Gutzmer Daniel Hackett Laura L. Hains Lena P. Hale Robert Lee Halsey Alrena Hanna Janice L. Hargrave Tyler Hart Fay Hart Kira Anne Hassler Bradley Gene Hays Nicole M. Hecker Michael L. Hensley Ronald A. Herb Joe W. Hereford Virgil C. Hicks
Jeremiah J. Hockman Kim Hoffman William J. Hofto Allen C. Holtsford Lucas Hooper Toyya A. Howell Annemarie Huebner Richard J. Hughbank Jeffrey W. Hughes Arthur J. Hunt Alaudeen Ibrahim Brian K. Ingram Greg L. Jeffries Welsey L. Jennings Katherine Johnson Tracy A. Johnstone Josephine M. Jordan Michael N. Kahaian Richard L. Keller Diane L. Kelly Brenda Jean Kendrick Ashley Kruse Donna D. Kweller Frederick I. Lakes Carey Lasiter Emory B. Leatherman Robert Barry Lechter Robert E. Lee John P. Leiva Steven Roy Lelbach
Attention Forensic Educators The Commission on Forensic Education
To join the commission, apply online at www.acfei.com/pcfe.php or call Carol at (800) 423-9737
32 THE FORENSIC EXAMINER Summer 2008
The Commission on Forensic Education, developed by The American College of Forensic Examiners, emphasizes the importance of forensic science programs in education and is committed to their expansion. The Commission offers guidance on instruction, provides help to those who teach or study forensic science, and reviews professional certification programs. The Commission is an effective and essential network that helps educators and students stay informed of the latest innovations, breakthroughs, and important research in the field. Commissioner membership is open to college and university administrators and full time, part-time, and adjunct professors; Associate Commissioner membership is open to high school science teachers. The Commission helps educators advance the field and inspire future forensic professionals through providing supportive services: • Helping educators network with fellow teaching professionals and top experts in the field. • Teaching potential students about the importance and the benefits of studying forensic science. • Giving members a highly visible forum to publish and distribute their research. • Helping members stay current in a constantly evolving field by providing quality continuing education. • Providing certification programs that recognize achievement.
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New Members
Shawn L. Lewis Rafael Lopez Chad Loy Jessica A. Luedtke Ronald Mack Christine Magnuson Michael L. Maples Roberto Martinez Arnaldo Garcia Martinez C. Rayford Massey Roman Matatov Eugene McBride Elizabeth McClure Kathy Mays McConnel Albert L. McFarland Kenneth McGill David P. McHugh Keith D. McPherson Leonard H. Miller Samuel G. Miller Robert K. Minniti Caren J. Mintz Chad Mitchell Paul W. Mond Adam M. Montella David Wayne Moody Terry Lynn Moore Wes A. More Wade B. Moss Mary Moxley
Andrew Jefferson Murray Christopher D. Nadolski Sandra D. Nasca Juan Pablo Navarro Inna Neujahr Michael Nirenberg Stefan Oborski Stacey A. Offerman Robert Organo Della E. Ostendorf Rebecca Lynn Owens LeeAnn Parkes Harold C. Patin Stanley B. Person Mark Peters James R. Phelan William Chester Phillips Earl L. Pike Catherine A. Pimley Robert A. Prady Charles William Pratt Nils Puhlmann Roger L. Quesenberry Victoria B. Raabe Gale Rabalais Roy C. Radzinsky Raquel V. Rakstang
Gregory Jon Reck Brian Keith Reed Rosemary A. Reed Roderick M. Reyes Darwin N. Reynolds Senahid Ribic Kristi Lynne Ricker Marisol Rivera Carlos Alberto Rivera Ishac Rizer Donald M. Rochon Francisco Rosillo Steve Roule Jenny Russell Jeffrey M. Sacolles Jason V. Samson Ronald D. Schmittling David L. Schoendorfer James A. Scholz Dale E. Schultz Thomas R. Seith John A. Shriner D. Brian Shumway Andrew E. Smith Anthony C. Smith Nicole Lynn Smith Edward B. Sorrells Audley C. Spence John C. Spesak Jason S. Sprowl
Marie A. Stanley Raymond L. Stanley Daniel S. Stein Charles P. Stephenson William G. Stoeffler Caroline A. Styffe Dayton Edwin Swann Scott Taglia Terryann TalbotMoses Nancy Gee Tarre Marco A. Tassone Dennis P. Thibodeaux Alvario DeWayne Thomas Randy W. Thompson Jay G. Tokar Travis V. Tolbert Judith Lukens Torian Sheryl Lynn Torti April M. Toussant Lester Jim Tunigold Johnny B. Turner Antwoine Turner Tobi Barr Vanstory Stephen A. Wagner Floyd E. Walker Jennifer Walsh Ray T. Weeks Breanna K. Welch
Jeffrey A. Wentzell Gina Wett James Q. Whitman Edward J. Wieliczkiewicz Robert L. Wilkinson Edwin Willis Jonathan L. Willis Louis Wingate Nancy S. Wong Alan Woodward Cassandra Woolworth John J. Wray Paul Zielinski Otto S. Zuckschwerdt
Therese E. Finn Alcides Pinto Richard B. Morgan Melanie Allen Peter M. Jones Jan G. Shingler Orli J. Peter Gregory A. Ornella Ian D. Peggs Benedict J. Trigani
Diplomates New Diplomates since Jan. 1, 2008 Scott W. Lanigan Marina Lerner Steven Wray Wood
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Editor in Chief Contact Carol Wollard at (800) 423-9737 for more information.
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Summer 2008 THE FORENSIC EXAMINER 33
Introducing
T
Benefits
he Academy of Certified Chaplains is a community of chaplains who passionately serve their country in every aspect of daily life in such settings as hospitals, police stations, fire departments, schools, and elsewhere. Their mission is to provide a unified front for devotion, education, and training within the area of chaplaincy and to provide a voice for the dedicated chaplains of this nation.
• Membership in the American Psychotherapy Association.
Find out more today!
• Free one-year subscriptions to The Forensic Examiner, Annals of the American Psychotherapy Association, and Inside Homeland Security.
Call 1-800-205-9165 or visit www. americanpsychotherapy. com/acc.
• Membership as a Certified in Homeland Security level one, CHS-I. • One-year membership with Certified in Homeland Security National Emergency Management Team. • Opportunities to join a strong, unified group of fellow chaplains to address issues concerning your field.
Books by ACFEI Members
The Big ‘R’ A Forensic Accounting Action Adventure Second Edition By D. Larry Crumbley, Doug Ziegenfuss, John O’Shaughnessy Although the anthrax scare is not new in novels, an educational novel entitled The Big R: A Forensic Accounting Action Adventure by three professors evolves around a series of heinous biological and chemical murders occurring every time there was a perfect game in baseball. The home run record by Barry Bonds is forgotten. Using sarin and other chemical and biological weapons, baseball is completely unprepared for the risk this season—major league murders in the stands. Crumbley is back with a psychological thriller that will make chills run down your spine. Crumbley, author of eleven other novels and aka Iris Weil Collett, has joined with Doug Ziegenfuss and John O’Shaughnessy to develop an educational novel for forensic accounting (FA). The Big R: A Forensic Accounting Action Adventure is a supplementary book to be used near the end of a forensic accounting, an internal auditing (IA), an auditing, or fraud examination course. The novel could be used in a graduate investment class, also. This FA novel would be ideal for an MBA course or a finance course that has light coverage of accounting, or could be used in FA’s in-house training programs. An external auditor interested in outsourcing or co-sourcing an internal auditing function should read this book. This instructional novel mixes baseball, forensic auditing, serial killers, fraud, risks, chemical and biological agents, and scuba diving to get a better way of learning forensic auditing. A certified internal auditor, a forensic accountant, and a FBI agent work together to find serial killers striking at baseball parks. The killers are able to frame Milt Pappas, a former Chicago Cubs pitcher, as the person responsible for the terror. In 1972, Milt Pappas came within one out of pitching a perfect game, but according to Pappas, the umpire called at least two strikes balls, resulting in the 27th batter walking to first base. That umpire was killed in the novel. So put on your baseball cap and pull on your baseball spikes. Enjoy the thrills, excitement, and humor of 17 unique events in baseball history as told to you in exciting historical fiction. The plot is breathtaking as serial killers strike with impunity. Watch an FBI agent, an internal auditor of the New York Yankees, and a forensic accountant stalk the killers as baseball is traumatized by grizzly murders in various baseball parks. D. Larry Crumbley, PhD, CPA is a frequent contributor to The Forensic Examiner, and he is a Certified Forensic Accountant (Cr.FA). (800) 423-9737
Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation By Katherine Ramsland The O.J. Simpson trial was not only a groundbreaking case for the justice system, but it garnered interest from the general public who were curious to learn more about how forensic science would discover whether or not O.J. was the perpetrator responsible for this sensationalized crime of passion. Today, most people know from watching television that DNA analysis, fingerprinting, and taking impressions are the scientific precepts of crime solving, but there is much to be learned about the scientific process that goes into measuring evidence and how theory becomes proof in criminal investigations. In Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation (Berkley Trade Hardcover, Publication Date: September 4, 2007; $24.95), Dr. Katherine Ramsland, one of the foremost educators in forensic science, traces the development of forensics from its earliest days in thirteenth-century China, when decomposition rates were studied, all the way through to the scientific marvels and innovations that came about during the era of Newtonian physics in the nineteenth century and what the future holds for the field. Along the way, readers are introduced to fascinating characters who risked their careers and reputations in the pursuit to prove that there is no such thing as the perfect crime.
s The Big ‘R’: A Forensic Accounting Action Adventure Second Edition, by Larry Crumbley, Doug Ziegenfuss, and John O’Shaughnessy
s Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation, by Katherine Ramsland
Dr. Katherine Ramsland’s multiple degrees include a master’s in forensic psychology. She is the author of more than two dozen books and currently teaches forensic psychology as an assistant professor at DeSales University in Pennsylvania. Visit her Web site at www.katherineramsland.com. n
Have a book you would like reviewed? Mail it to:
Editor; The Forensic Examiner; 2750 E. Sunshine St.; Springfield, MO 65804 Be sure to include a press release.
Summer 2008 THE FORENSIC EXAMINER 35
THIS LAND IS YOUR LAND Protect Your Homeland. Become Certified in Homeland Security today.
“Victory at all costs, victory in spite of all terror, victory however long and hard the road may be; for without victory, there is no survival.” —Winston Churchill “There is a mysterious cycle in human events. To some generations much is given. Of other generations much is expected. This generation of Americans has a rendezvous with destiny.” —Franklin Delano Roosevelt “Freedom is never more than one generation away from extinction.” —Ronald Reagan
Call the Chief Association Officer directly at (800) 592-0960 or go online to chs.acfei.com.
36 THE FORENSIC EXAMINER Summer 2008
www.acfei.com
CE ARTICLE 1: THE METHADONE POISONING "EPIDEMIC" (pages 38-46) ATTENTION ACFEI MEMBERS: CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE
CE ACCREDITATIONS FOR THIS ARTICLE
In order to receive one CE credit, each participant is required to
This article is approved by the following for continuing education credit:
1. Read the continuing education article. 2. Complete the exam by circling the chosen answer for each question. Complete the evaluation form. 3. Mail or fax the completed form, along with the $15 payment for each CE exam taken to: ACFEI, 2750 East Sunshine, Springfield, MO 65804. Or Fax to: 417-881-4702. Or go online to www.acfei.com and take the test for FREE. For each exam passed with a grade of 70% or above, a certificate of completion for 1.0 continuing education credit will be mailed. Please allow at least 2 weeks to receive your certificate. The participants who do not pass the exam are notified and will have a second opportunity to complete the exam. Any questions, grievances or comments can be directed to the CE Department at (417) 881-3818, fax (417) 881-4702, or e-mail: cedept@acfei.com. Continuing education credits for participation in this activity may not apply toward license renewal in all states. It is the responsibility of each participant to verify the requirements of his/her state licensing board(s).
LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1. Understand and apply knowledge of recent epidemiology of methadone toxicity in the United States.
(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates. (CMI) The American College of Forensic Examiners International provides this continuing education credit for Certified Medical Investigators. (ACCME) The American College of Forensic Examiners International is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. This activity has been planned and implemented in accordance with the Essential Areas and Policies of the Accreditation Council for Continuing Medical Education (ACCME). The American College of Forensic Examiners International designates this educational activity for a maximum of 1 hour AMA PRA Category 1 Credits TM. Physicians should only claim credit commensurate with the extent of their participation in the activity.
KEY WORDS: methadone overdose, poisoning, drug interaction, MedWatch FDA, pain treatment, opioids TARGET AUDIENCE: medical investigators, physicians
2. Comprehend the scope of methadone’s adverse effects.
PROGRAM LEVEL: update
3. List the toxicological risks from methadone faced by different patient types.
DISCLOSURE: The author has nothing to disclose.
4. Apply knowledge of pharmacokinetics of methadone, and factors affecting this.
PREREQUISITES: none
ABSTRACT Death and morbidity associated with methadone treatment has increased dramatically in recent years, largely in the population prescribed this drug for pain control rather than addiction maintenance. Inadvertent overdose is becoming increasingly common, likely in part because the drug’s acute pain-relieving effect lasts only 4 to 6 hours, yet it has a very long and variable plasma half-life of 24 to 36 (in some studies 15 to 55) hours, is stored in body tissues, and toxic accumulation occurs with too-frequent consumption. Adverse effects are most common in patients treated with methadone in combination with other drugs. Both cardiac and respiratory systems are vulnerable targets for the drug’s toxic actions, and other coadministered drugs can interactively increase the risk of death through a variety of mechanisms including direct central nervous system depression of respiration, idiosyncratic respiratory vulnerabilities, and lethal cardiac arrhythmias. Idiosyncratic factors also play a part in methadone’s cardiac toxicity, and risk factors are well characterized, though perhaps not sufficiently widely known and understood by key stakeholders. The recent change in FDA labeling requirements for the drug—and the November 2006 posting of a government warning regarding its use in pain treatment—has not yet reduced morbidity and mortality associated with methadone as reported in the MedWatch database for the first quarter of 2007.
POST CE TEST QUESTIONS
(Answer the following questions after reading the article, pages 38-46)
1. Recent deaths due to methadone primarily occur in: a) the methadone maintenance addict population b) pain patients treated with methadone c) suicides
5. Which, if any, of the following may increase plasma methadone concentrations by inhibiting cytochrome P450 3 A4 a) Amiodarone b) Clarithromycin c) Erythromycin) d) Diltiazem. e) all of the above
2. Respiratory toxicity to methadone does NOT typically present with: a) pulmonary edema b) dilated pupils c) atelectasis d) pneumonia
6. The toxic concentration of methadone in blood is: a) below 1 mg/L b) below 0.5 mg/L c) below 0.4 mg/L d) none of the above e) all of the above
3. In the USA in year 2004 methadone was a factor in the deaths of a) 13,849 people b) 3,849 people c) 384 people
7. After abstinence, tolerance to opiates is lost a) quickly b) slowly c) it is not lost
4. Methadone is principally metabolized in (choose one) a) The liver b) The kidney c) The Lung
EVALUATION: Circle one (1=Poor 2=Below Average 3=Average 4=Above Average 5=Excellent)
PAYMENT INFORMATION: $15 per test (FREE ONLINE)
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Name:
1. Information was relevant and applicable. 2. Learning objective 1 was met. 3. Learning objective 2 was met. 4. Learning objective 3 was met. 5. You were satisfied with the article. 6. ADA instructions were adequate. 7. The author’s knowledge, expertise, and clarity were appropriate. 8. Article was fair, balanced, and free of commercial bias. 9. The article was appropriate to your education, experience, and
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10. Instructional materials were useful.
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licensure level.
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Summer 2008 THE FORENSIC EXAMINER 37
CE Article: (ACCME, CMI, ACFEI) 1 CE credit for this article
Increasing use of Methadone as a pain killer may be fueling a disturbing increase in deaths related to this potent drug. eath and morbidity associated with methadone treatment has increased dramatically in recent years, largely in the population prescribed this drug for pain control rather than addiction maintenance. Inadvertent overdose is becoming increasingly common, likely in part because the drug’s acute pain-relieving effect lasts only 4 to 6 hours, yet it has a very long and variable plasma half-life of 24 to 36 (in some studies 15 to 55) hours, is stored in body tissues, and toxic accumulation occurs with too-frequent consumption. Adverse effects are most common in patients treated with methadone in combination with other drugs. Both cardiac and respiratory systems are vulnerable targets for the drug’s toxic actions, and other co-administered drugs can interactively increase the risk of death through a variety of mechanisms including direct central nervous system depression of respiration, idiosyncratic respiratory vulnerabilities, and lethal cardiac arrhythmias. Idiosyncratic factors also play a part in methadone’s cardiac toxicity, and risk factors are well characterized, though perhaps not sufficiently widely known and understood by key stakeholders. The recent change in FDA labeling requirements for the drug—and the November 2006 posting of a government warning regarding its use in pain treatment—has not yet reduced morbidity and mortality associated with methadone as reported in the MedWatch database for the first quarter of 2007.
“
Methadone at high doses, or in naive users or idiosyncratically at much lower doses, depresses respiration and may interfere with cardiac function, either or both of which can lead to death.”
(800) 423-9737
Joshua Perper, chief medical examiner for Broward County, displays a bottle of methadone collected in a possible drug overdose death. KRT PHOTO BY ANASTASIA WALSH/SOUTH FLORIDA SUN-SENTINEL
Summer 2008 THE FORENSIC EXAMINER 39
Forensic Relevance
Methadone is commonly associated with automobile driving accidents, yet studies
on the effect of methadone on psychomotor impairment and neuropsychological function are complicated by the fact that the methadone-using population suffers from multiple co-morbidities, and impairments may be due in part to other factors including chronic pain, psychiatric problems, sequelae of chronic alcohol abuse, and invariably, too, traffic accidents involve other drugs in addition to methadone. Methadone maintenance patients, addicts taking stable supervised doses to the effects of which they are tolerant (see below), tend to have automobile driving accidents at a rate not greatly dissimilar to the general population (reviewed by Stout & Farell, 2002). Correlating driving performance deficits with neuropsychological performance deficits proves more complicated: Some studies find no difference between methadone maintenance patients and control groups (Maddux, Williams, & Ziegler, 1977) while others find between 50% to 80% of chronic methadone maintenance patients to be neuropsychologically impaired (Darke, Sims, McDonald, & Wickes, 2000; Dittert, Naber, & Soyka, 1999) with deficits in information processing, memory, attention, and problem solving ability. Yet other studies have concluded that the performance of patients stabilized on methadone for 3 months and tested in driving simulators is similar to community-equivalent control patients (Lenne, Dietze, Rumbold, Redman, & Triggs, 2003). It would seem on balance that the neurobehavioral deficits of the majority of chronic, stable, methadone-treated patients are usually not of a degree to cause accidents, or such patients avoid circumstances in which their impairments may contribute to driving accidents. In non-addicted subjects given methadone, however, measurable and dose-related impairments typical of opiate drug effects are seen in choice reaction time and continuous performance test measures (Rothenberg, Schottenfeld, Meyer, Krauss, & Gross, 1977); in attention, perception, and learning tasks (Gritz et al., 1975); and in tests for visual vigilance (Rothenberg, Schottenfeld, Gross, & Selkoe, 1980), although these impairments are less severe than are seen with diazepam or alcohol (Chesher, Lemon, Gomel, & Murphy, 1995). Problems of neurobehavioral impairment due to methadone, thus, typically occur in the early stages of treatment or when a doseadjustment has been made, as blood levels are rising and before stable plateau-like ki-
40 THE FORENSIC EXAMINER Summer 2008
Methadone is a synthetic morphine-type (opioid) drug developed in Germany in 1937 and introduced to the United States in 1947 by the Eli Lilly company under the trade name Dolophine®. It is now classified and restricted as a Schedule II drug. Methadone has two principal legitimate clinical uses: [1] substitution treatment of opiate drug dependency, and [2] analgesia for chronic pain. In addition, methadone is also subject to diversion and illicit consumption as a drug of abuse. Methadone-related cases come under forensic review for a number of reasons, now more than in the past. Methadone toxicity may be sub-lethal (affecting behavior and mental condition) or lethal. Both forms of toxicity are forensically relevant. Accordingly, reasons underlying forensic interest in methadone are similar to reasons underlying forensic interest in any potentially toxic drug that has both therapeutic and abuse potential. More specifically: [1] Methadone may adversely affect the behavior and/or culpable mental states of criminal defendants or victims or witnesses to crime. [2] Methadone may affect the mental and/or physical condition of civil litigants and may play a role as an element of disability determination, liability, and/or damages. Liability could be an issue in a motor vehicle accident caused by a methadone-impaired driver or in a medical malpractice case involving negligent prescription. Damages could be an issue in a case where negligent prescription results in death by overdose, or where tortiouslycaused injuries result in a need for methadone maintenance treatment for chronic pain. [3] Illicit use, possession, and/or distribution of methadone itself constitutes a crime. Moreover, when distribution leads to harm to third parties, there may be additional criminal consequences (e.g., homicide charges against a drug supplier when a recipient dies from overdose). [4] As a toxic substance, methadone may be an instrument for homicide or suicide, or its therapeutic or recreational use may result in accidental death. Sorting among these possibilities is of obvious forensic relevance.
Adverse Outcomes: Sub-lethal Toxicity
netics have been reached and before the user has subjectively adjusted to, and learned to compensate for, the effects of the drug.
Adverse Outcomes: Lethal Toxicity Methadone at high doses, or in naïve users or idiosyncratically at much lower doses, depresses respiration and may interfere with cardiac function, either or both of which can lead to death. An additional complication is that of co-morbid illness, which in the methadone maintenance population includes a disproportionately large proportion of HIV/AIDS patients and viral hepatitis patients who acquired their addiction from IV opiate abuse and their illness from needlesharing. In this tragic population, the secondary treatment of drug-abuse-related illnesses greatly increases the risk of drug interaction with methadone. Cardiac system. Cardiac problems associated with methadone toxicity and the heart’s underlying vulnerability to these can be described in terms of the electrocardiogram (ECG): The QT interval of the ECG, measured from the beginning of the QRS complex to the end of the T wave (see Fig. 1), represents the duration of activation and recovery of the heart in a single beat as measured by the electrocardiogram. QT intervals corrected for heart rate (QTc) longer than 0.44 seconds are generally considered abnormal, though a normal QTc can be slightly prolonged in some otherwise normal females (up to 0.46 sec). Torsade de Pointes (TdP, or “torsades”) is defined as a polymorphous ventricular tachycardia in which the morphology, the shape, of the electrocardiogram’s QRS complexes varies from beat to beat. The ventricular rate in TdP can range from 150 beats per minute (bpm) to 250 bpm. TdP usually starts with a prolonged QT interval. At high doses, methadone, even in otherwise normal subjects, is associated with an increased risk for QT prolongation and TdP, especially at very high doses. The risk of QT prolongation appears to be dose-related. Laboratory studies, both in vivo and in vitro, have demonstrated that prolongation of the QT interval operates through methadone’s inhibition of cardiac potassium channels (Islander & Vinge, 2000). Most cases involve patients being treated for pain with large, multiple, daily doses of methadone, although cases have been reported in patients undergoing maintenance treatment of opioid addiction (Krantz, Kutinsky, Robertson, & Mehler, 2003; Walker, Klein, & Kasza, www.acfei.com
s Figure. 1 The QT interval of the electrocardiogram (adapted with permission from Crouch et al 2003)
2003). For this reason methadone must be used with extreme caution in vulnerable populations or when co-administered with other drugs known to prolong the QT interval—a list that is extensive and includes antipsychotics, tricyclic antidepressants, beta agonists, and certain antibiotics (see Table 1). Certain populations are idiosyncratically more vulnerable than others to suffering from prolonged QT and TdP even in the absence of drugs. Risk factors include female sex, elderly, significant bradycardia, hypokalemia, hypomagnesemia, and underlying cardiac disease such as cardiomyopathy, arrhythmias, and myocardial ischaemia. Because women normally have a longer QT interval than men, and because the interval increases with age, elderly women are at a particularly increased idiosyncratic risk. Cardiotoxic interactions are not the only danger of drug interaction with methadone. Certain drugs such as selegiline and rasagiline, the monoamine oxidase type-B inhibitors (MAOIBs), interact dangerously with methadone, and can cause excitation, sweating, rigidity, hypertension, severe respiratory depression, coma, and peripheral vascular collapse, possibly resulting in death. At least 2 weeks should elapse between stopping these MAOI-B drugs and starting methadone (Azilect, 2006; Emsam, 2007). Respiratory system. Concomitant use of methadone with another central nervous system (CNS) depressant can lead to additive respiratory depression, and the list of CNS depressants is large indeed, including alcohol, sedatives, anxiolytics, muscle relaxants, anti-epileptic drugs, and tranquilizers. Methadone should be used with caution and in reduced dosages if used concurrently with a CNS depressant, because respiratory depression, hypotension, and profound sedation or coma may result. To add to the complexity of risks, some CNS de(800) 423-9737
pressants are also included among the drugs which prolong the heart’s QT interval. Pulmonary edema is also a common manifestation of opiate, including methadone, toxicity (Gottlieb & Boylen, 1974). A white or pink watery froth is seen around the nostrils and lips of the usually comatose patient, and respiratory depression, cyanosis, and constricted pupils (an opiate effect) are usually evident. Moist rales, rhonchi, and wheezes may be heard over the chest. Naloxone, the specific opiate antagonist, is always administered (IV bolus followed by continuing IV infusion) to reverse central respiratory depression, but it does not reverse pulmonary edema, which is treated with intubation, mechanical ventilation, intravenous steroids, and diuretics, the latter with caution because opioids reduce blood pressure (Presant, Knight, & Klassen, 1975). Pneumonia is a common respiratory complication of pulmonary edema resulting from non-fatal methadone poisoning. It may follow a pulmonary infarct or bacterial invasion. Another common complication of methadone—or any opiate—poisoning is regurgitation pneumonitis, with increasing hypoxemia being evident, because opiates are quite emetic in effect. They also suppress the cough reflex (one reason why opiates are prescribed), which may contribute to yet another pulmonary complication of atelectasis.
Is there an epidemic of lethal methadone cases? Between 1998 and 2003, prescriptions for hydrocodone, oxycodone, and methadone all increased markedly, and methadone use increased from 0.5 to 1.8 million prescriptions. Continuing this trend, unique patient prescriptions for methadone increased 80% from 2005 to 2006, this increase largely accounted for by pharmacy dispensing rather than self-dispensing methadone maintenance programs (Reuter, 2004). With this increase in methadone use has come an increase in methadone-related deaths. An increase in death associated with methadone was apparently first noted, at least in the lay press, by investigative reporters Scott Finn and Tara Tuckwiler in West Virginia in 2003 (West Virginia Gazette, 2003). Following up on this report, or perhaps independently, the National Center for Health Statistics (NCHS) (Fingerhut, 2007) found that in the United States, methadone was a factor in the deaths of 3,849 people in 2004, an increase of 390% from the 1999 figure of 786, and an increase of almost 900 deaths from the previous year. Deaths due to all poisonings increased only 54% in this 1999–2004 time period. During 2003 methadone-related deaths rose 29%, while all poisonings rose only 6%. Methadone was responsible for more deaths than any single prescription pain-
Table 1: Drugs that prolong the heart’s QT interval (see text for abbreviations, list adapted from Clinical Pharmacology, 2007) Higher risk for QT prolongation:
• Class IA antiarrhythmics: disopyramide, procainamide, quinidine
• Class III antiarrhyth-
mics (amiodatone, bretylium, dofetilide, ibutilide, sotalol),
• astemizole, arsenic trioxide, bepridil, cisapride, chloroquine, clarithromycin droperidol, erythromycin, grepafloxacin, halofantrine, haloperidol, levomethadyl, Pentamidine
• Certain phenothiaz-
ines (chlorpromazine, mesoridazine, and thioridazine),
• Pimozide, probucol, sparfloxacin, and terfenadin
Lower but possible risk of QT prolongation and TdP include:
Abarelix, alfuzosin, amoxapine, apomorphine, beta-agonists, certain quinolones (ofloxacin, ciprofloxacin, gatifloxacin, gemifloxacin, levofloxacin, moxifloxacin, norfloxacin), clozapine, cyclobenzaprine, dasatinib, dolasetron, flecainide, halogenated anesthetics, lapatinib, local anesthetics, maprotiline, mefloquine, octreotide, olanzapine, ondansetron, paliperidone, palonosetron, some phenothiazines (fluphenazine, perphenazine, prochlorperazine, and trifluoperazine), propafenone, quetiapine, ranolazine, risperidone, sertindole, sunitinib, tacrolimus, telithromycin, tricyclic antidepressants when given in excessive doses or overdosage, troleandomycin (based on interactions with macrolides), vardenafil, vorinostat, or ziprasidone
Summer 2008 THE FORENSIC EXAMINER 41
killer listed in the NCHS report, including oxycodone, fentanyl, morphine, and codeine. Between 73% and 79% of poisoning deaths mentioning methadone were classified as unintentional, with an additional 11% to 13% being of undetermined intent. The number of deaths in 2004 was five times the number in 1999. Among those aged 55 to 64 years, the death rate due to methadone in 2004 was seven times the rate in 1999; for those in each of the 10-year age groups covering the span 25–54 years, the rates in 2004 were 3–5 times the rates in 1999. The largest increase, however, was noted for young persons 15 to 24 years; the rate in 2004 was 11 times that in 1999. In those states with the largest numbers of methadone-related deaths (greater than 50 for at least 3 of the 6 years of the survey) the ratio of 2004:1999 numbers was reported as: West Virginia (25:1), Kentucky (15:1), Florida and Oregon (both 14:1), North Carolina and Texas (7:1), Virginia (6:1), and Washington (5:1). New York showed no overall change (ratio 1:1) during the 6 years of the survey (Fingerhut, 2007). Clearly the regional differences require further study in order to address countermeasures specific to the population ‘overdosing,’ yet globally the phenomenon, described more fully below, has been attributed to a combination of inadvertent overdose and drug interaction in patients prescribed their drugs by their primary care providers (PCPs) in an attempt to treat a pain condition.
Management (AAPM), affecting millions in the United States. Fifty million Americans are partially or totally disabled by pain, and 45% of all Americans seek care for persistent pain at some point in their lives (APS, 1999). If untreated, pain can lead to depression, loss of sleep, depressed immune function, change in eating patterns, decreased mobility, and other long-term deleterious effects in addition to morbidities due to the underlying cause of the pain. With proper and timely pain treatment, these effects may be minimized or eliminated. New regulations governing hospital practice promulgated by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), which came into force January 1, 2001, require health-care workers to treat pain as ‘the fifth vital sign,’ and educational initiatives are currently being introduced throughout practitioner training and established practice guidelines to introduce the JCAHO mandates as these pertain to clinical care. This initiative continues the earlier work of the International Association for the Study of Pain (IASP) and the AAPM into raising physician and nurse awareness of the need for humane treatment of pain and promoting the doctrine that pain is both unnecessary and avoidable with appropriate drug treatment (AGS Panel, 1998).
Pharmacology of Methadone
In contrast to its comparatively short-acting relative morphine, whose average elimination half-life ranges from 2 to 3 hours (longer in men than women), the half-life of methadone averages 24 to 36 hours at steady state, but may range from 4 to 91 hours, and its rate of clearance from the body can vary by a factor of almost 100 (Inturrisi & Verebely, 1972; Loimer & Schmid, 1992; Payte & Zweben, 1998). The long half-life of methadone is in part a result of the drug being stored extensively in the liver and to a lesser extent in other body tissues. The amount in the blood stream is kept relatively constant in the regular user by slow release of methadone from these tissue stores. (For review, see Leavitt, 2003). The long half-life of methadone makes it almost ideal for use as a substitute for illicit opioids with shorter half-lives such as heroin or morphine, because the methadone-maintained patient is freed from the turbulent subjective “highs” and “lows” of shorter-acting drugs, freed from the necessity of re-dosing every few hours to avoid withdrawal, and is able to hold a job and attend to the needs of daily living without focusing on and obsessing about the always impending need for the next ‘fix.’ Dosing can be once-daily, un-yoking the addict from the drug consumption cycle. Further, by gradually and very carefully increasing the methadone dose over time, the addict can be rendered so severely opiate tolerant that the illicit opiate doses typically available to the user will have little or no euphoric effect. Thus, high doses—doses that would be lethal to an opiate-naïve person— are the norm in the methadone-maintained population. About 20% of the estimated 810,000 heroin addicts in the United States receive methadone maintenance (American Methadone Treatment Association, 1999). As a corollary of its relatively long half-life, when taken regularly, every 8 to 12 hours, methadone concentrations in the body, measured in blood, build up slowly until a steady state plateau is reached—the process can take a week or, in some individuals, longer, to achieve (Leavitt, 2003; Eap, Buelin, & Baumann, 2002; Payte & Khuri, 1993). During the initial methadone-induction period, prior to steady state being reached, an essential consideration is that about half of each day’s dose remains in the body and is added to the next day’s consumption, producing rising serum methadone levels even without any increase in dose (Payte, 2002, as cited in Leavitt, 2003). After each increase in methadone dosage, it will take 4 to 5 days,
One factor in methadone’s injudicious prescription and use is likely common to the forces encouraging analgesic prescription in general. The historical undertreatment of pain is a serious problem that has become a current focus of educational, legislative, and patient advocacy. Undertreatment is a problem in both acute pain and chronic pain populations, and, among the latter population, benign and malignant subgroups each have their own unique needs for pain control strategies. Pain is described as an “epidemic” by the American Academy of Pain
Half-life Methadone is highly lipophilic with rapid gastrointestinal absorption and onset of action. It has a large initial volume of distribution with slow tissue release. Oral bioavailability is high (80%). Unlike morphine, its metabolites are not active and therefore no dose adjustment is necessary in renal failure patients. The major route of metabolism is hepatic with significant fecal excretion; renal excretion can be enhanced by urine acidification (pH <6.0). The serum methadone level typically reaches a peak in 2 to 4 hours on average (range 1 to 5 hours) after dosing, but its elimination half-life is much longer and the patient’s physiologic response may be influenced by many factors. To clarify the term half-life: After the passage of one half-life of time, plasma levels will fall to one-half of their original level. After the second half-life, they will fall one-half again, to one-quarter of their original level. After a third half-life’s passage, they will fall by one-half again—to one-eighth of their original level, and so on. We usually assume that 5 to 7 half-lives are required to clear a drug from the body.
42 THE FORENSIC EXAMINER Summer 2008
Causes of Adverse Methadone Outcomes Not surprisingly, causes of adverse outcomes from the use of methadone appear multifactorial and require an understanding of both the pharmacology of methadone and of the particular types of human errors associated with its prescription and use.
Changes in Attitudes Toward Treating Pain
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or more, to achieve steady state at the new total dose (Payte, Zweben, & Martin, 2003). Therefore, adding dose increases before a full steady state has been reached at a current dose must be considered cautiously, because failing to wait until steady state has been reached before increasing to the next dose level can easily result in overdose.
Drug Interactions As previously discussed, methadone may interact with other CNS depressants to produce lethal respiratory depression—people die because they simply stop breathing as a result of the depression of the brain’s respiratory centers. In addition, the combination of methadone with other drugs may interfere with the enzymes responsible for methadone’s metabolism, thereby increasing methadone’s serum concentration and leading to overdose. Because methadone is commonly taken in combination with other drugs, including over-the-counter preparations, specialist neuropharmacological consultation regarding potential drug interactions is often required. More specifically, methadone is metabolized by processes in the liver that employ Cytochrome P450 (known as CYP), particularly the 3A4, 2C, and 2D6 subtypes of this polymorphous enzyme system. N-demethylation results in the formation of the inactive metabolite, 2-ethylidene-1,5dimethyl-3,3-diphenylpyrrolidine (EDDP). Some drugs (e.g., amiodarone, clarithromycin, erythromycin, or diltazem) may increase plasma methadone concentrations by inhibiting cytochrome P450 3A4. All selective serotonin reuptake inhibitor (SSRI) antidepressants may inhibit CYP 3A4, 2C, and/or 2D6 to varying degrees (Hansten, 2007). These SSRI antidepressants (e.g., sertraline [Zoloft®], fluvoxamine [Luvox®], and fluoxetine [Prozac®], among others) may increase methadone plasma levels upon co-administration with methadone, and the combination can result in increased opiate effects and/ or toxicity. Thus, methadone-treated patients co-administered SSRIs should be carefully monitored, and dosage adjustment should be undertaken if warranted (Dolophine®, 2006). Fluoxetine may inhibit the metabolism of methadone via CYP 3A4 and is a relatively potent inhibitor of CYP2D6 (Prozac, 2003). Interestingly, in patients treated with methadone, it has been shown that plasma levels of the R-enantiomer (the active analgesic species of the methadone molecule) is (800) 423-9737
increased by the addition of fluoxetine, and both the R- and S-enantiomer are increased in patients receiving fluvoxamine, an inhibitor of CYP2C19 and CYP3A4. In some patients receiving methadone for opiate dependence, the addition of fluvoxamine has produced a substantial increase in methadone serum concentrations and has been associated with symptoms of methadone toxicity (“Fluvoxamine,” 2005).
than previously. Failure to recognize this may have lethal consequences, particularly with methadone in light of the discrepancy between pharmacodynamic and pharmacokinetic time courses. Thus, not unexpectedly, Strang et al. (2003) found that patients who “successfully” completed inpatient detoxification and abstinence were more likely than other patients to have died of opiate overdose within a year of detoxification.
Tolerance
Human Errors
There is no “toxic level” of methadone. Rather, people die of so-called “overdose” as a result of the effect of a blood level that exceeds their individual tolerance to the drug’s toxic effects on respiration and heart function. The majority of people who die as a result of taking methadone have post-mortem blood concentrations that would produce no adverse effects in a patient chronically maintained on the drug. Overdose, then, is an idiosyncratic phenomenon depending on individual susceptibility, co-morbid illness, drug use history, and—often—the interactive effects of other drugs taken. Tolerance is defined as a reduced response to one or more effects of a drug after repeated administrations (Leavitt, 2003; Kosten & George, 2002; O’Brien, 1996). Essentially, opioid receptors on nerve cells become less sensitive to opioid stimulation, and more drug is needed to achieve the same effects. However, tolerance develops much more rapidly to some opioid effects than others. For example, tolerance develops quickly to the euphoric effects of opioids, while tolerance to gastrointestinal effects (e.g., constipation), sedation, or respiratory depression is slower to develop. This can be potentially fatal if users ingest increasingly greater amounts for purposes of obtaining the euphoric effect (Harden, 2002; White & Irvine, 1999) or in pursuit of analgesia. Tolerance development is specific to the drug class, such that tolerance to the respiratory depressant effects of opiates does not affect tolerance to the respiratory effect of other non-opioid central nervous system (CNS) depressant drugs. In the case of methadone, tolerance development is incomplete (Kosten & George, 2002), so that respiratory depressant effects of other opiates, or acutely excessive methadone, may not be completely attenuated even in persons at stabilized methadone-maintenance doses. Tolerance to opiates is lost quite rapidly, so that upon resuming the opiate regimen after a period of abstinence the user is required to begin re-initiated treatment at a lower dose
Methadone is sold as both liquid and solid (tablet, diskette, and soluble tablet) formulations, the liquid being used principally in methadone maintenance programs. Although use of all formulations of methadone has shown steady, incremental growth over the past several years, the distribution of tablets (most often used in pain management) and diskettes has surpassed that of liquid formulations. For example, the rate of increase from 1999 to 2002 was far greater for sale of tablets (331 percent) than for either diskettes (147 percent) or liquids (175 percent). In 2002, about 55 percent of all methadone distributed nationwide was in the form of tablets or diskettes (Howard, meeting presentation, 2003, as cited in CSAT, 2004). See Figure 2. With respect to fatal overdose, studies have confirmed that the source of the methadone in the overdose cases of recent years is not the methadone maintenance clinics but general practitioners prescribing the drug ostensibly for pain control. In a Utah study, 48 of the 114 deceased were themselves prescribed the drug, the rest either obtaining it from a family member or an undetermined source. About 20 percent of West Virginians who died from methadone overdose had no other drug in their systems. According to the National
t Figure 2. Number of units of methadone distributed 1998-2002 through retail and other channels, by dosage form (Data from IMS Health, Retail and Provider Perspective, courtesy of Laura A. Governale, PharmD (adapted from CSAT, 2004)
Summer 2008 THE FORENSIC EXAMINER 43
a tragic course of conduct if they assume that methadone can be safely taken at the briefer intervals typically employed with other, shorter-acting, analgesic drugs (which may even be concomitantly prescribed for “breakthrough” pain). As is painfully obvious, death can result from nothing more than misguided attempts to treat pain.
Product Labeling
s The casket containing the body of Anna Nicole Smith is ushered into Mount Horeb Baptist Church by pallbearers for her funeral in Nassau, Bahamas, on March 2, 2007. She and her son, 6 months earlier, both had their deaths linked to methadone use. (Carl Juste/Miami Herald/MCT)
Center for Health Statistics, between 1999 and 2004, the unintentional death increase in West Virginia increased (per 100,000 of the population) by 24.8%, in Kentucky by 15.1%, in North Carolina by 7.2%, and by 5.1% in the United States as a whole (Reuter, 2007).
Blame for methadone deaths has been laid also at the product labeling. Until November 2006, the package insert for methadone included reference to a potentially fatal (for opiate-naïve patients) “usual adult dose” for pain patients—up to 80 milligrams a day. In addition to revising the package insert, providing a black box warning and reducing the recommended maximum dose to 30mg per day, the FDA in November 2006 issued a Public Health Advisory entitled “Methadone Use for Pain Control May Result in Death” (FDA, 2006). Most recently the journals of the medical and professional pain management societies have been publishing articles and editorials on the subject of methadone lethality in pain management (see Tennant, 2007 and Kuehn, 2007). Yet pain management specialists are likely not the primary offenders, because, like the methadone maintenance clinics, their staffing level and familiarity with the hazards of methadone pharmacokinetics and pharmacodynamics typically provides for a cautious and well-managed approach of the opiate-treated patient. It is not yet clear what effect the November 2006 cautionary, educational, regulatory, and labeling changes will have on prescribing practices. Death due to methadone typically strikes while serum levels rise early in the intended course of treatment, however, comparing statistics on methadone-related morbidity between the first quarters of 2006 and 2007 would seem likely to capture this statistic. The U.S. Food and Drug Administration (FDA) maintains a database of Adverse Event Reports (AERs) which consolidates reports from practitioners and the pharmaceutical industry. The program is called MedWatch. Reports can be filed by mail or on the Web and are analyzed quarterly. Data for the first quarter (Q1, 1 January to 30 March) of 2007 are currently available at time of writing (MedWatch, 2007). Certain outcomes reported in the database lie outside of the scope of interest of this present review (the teratogenic outcome of congenital anomaly, for instance). A small number of reports do not describe the AER outcome, yet the data is
Why should a disproportionate number of fatal overdoses come from the population receiving methadone for pain control as compared to addicts receiving it for treatment of opiate addiction? Certainly the drug is cheap, and certainly it is a good and powerful pain killer. Analysis of this question benefits, in the first instance, from understanding that human errors contributing to methadone overdose appear significantly related to failure (perhaps especially by prescribers) to respect important differences between addiction and pain treatment contexts. In the United States, methadone can legally be prescribed as an analgesic—as a pain reliever—by any prescriber, but, since 1973, to prescribe it as a treatment or maintenance drug solely for opiate addiction (outside of its time-limited use in a hospital where the admission is for other purposes) requires special training, special personnel, special permissions, and special facilities using special record-keeping requirements dedicated to the purpose (Rosenbaum, 1995). The opening of such facilities requires community approval, which can be hard to obtain, and the strategy of requiring such facilities has ensured that addicts are made to congregate at these treatment centers, often having to relocate miles from their homes and families for this purpose. The lethality of methadone in the population prescribed this drug for pain control
has been laid at least in part on a failure of non-specialist practitioners, and the patients they advise, to properly understand the difference between opiate-dependent pain patients and the methadone maintenance population of addicts, who are for the most part not in pain and not otherwise dosing to achieve pain relief and who may comfortably and slowly, stepwise and cautiously, ramp up their methadone dose under close supervision, to ultimately take very large doses of the drug per day. Furthermore, just because methadone is used in maintenance of opiate addicts, it is not a “treatment” for dependence or tolerance in opiate-using pain patients. The pain patient is driven by need for pain control, and breakthrough pain drives analgesic consumption, yet despite its long elimination half-life, the acute analgesic effect of methadone lasts only 4 to 6 hours. As a result, patients taking the drug on a twice-daily (every 12 hours) schedule with the intention of pain relief may feel the subjective need to take another dose after this short 4 to 6 hour interval, leading to increased accumulation and toxicity and death. Guidelines for the use of methadone in pain control emphasize the need to carefully tailor dose and regimen to the individual (see Gouldin, Kennedy, Ralph, & Small, 2000; Tennant, 2007). In sum, methadone’s long half-life, the very reason why it is ideal for addict maintenance, can render it dangerous in pain-management contexts. The long plasma half-life is not matched with the relatively shorter analgesic time course of the drug. When the analgesic effect wears off, patients naturally want more relief, and the recurrence of symptoms encourages patients to take methadone at a frequency that results in escalating accumulation in the body. Patients may be further misled into such
44 THE FORENSIC EXAMINER Summer 2008
Problems with Methadone Analgesia
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2004 Q1 Total AER cases in quarter
Q2
2005 Q3
Q4
Q1
Q2
2006 Q3
Q4
Q1
Q2
2007 Q3
Q4
Q1
65,975 60,222 75,451 70,752 76,180 80,614 81,314 88,518 89,527 79,597 71,724 83,229 88,832 152
268
261
423
226
254
294
520
179
328
240
367
331
Dead
35
111
70
210
57
50
82
318
39
87
69
182
79
Required Hospital
Total Methadone cases
65
82
74
94
85
109
110
96
53
109
82
105
89
Required intervention
2
0
3
5
3
1
4
1
2
3
3
0
9
Long term consequences
2
2
5
6
4
2
1
2
5
31
6
3
16
Disability
3
8
9
12
16
17
7
19
11
13
4
6
3
Congenital anomaly
0
0
1
1
0
1
0
1
5
2
0
51
0
Other outcome
18
49
41
59
46
47
63
55
46
58
56
19
108
No outcome reported
27
16
65
36
15
27
27
28
18
25
20
182
27
Methadone cases/1000 AER
2.30
4.45
3.46
5.98
2.97
3.15
3.62
5.87
2.00
4.12
3.35
4.41
3.73
% of methadone cases dead
23.03
41.42
26.82
49.65
25.22
19.69
27.89
61.15
21.79
26.52
28.75
49.59
23.87
s Table 2. Adverse Event Report (AER) counts and outcomes extracted from quarterly FDA MedWatch reports between Q1 2004 and Q1 2007
of interest to the present review, because it provides a census of methadone-related incident reports and records the mortality within this cohort. To perform the analysis, the raw ascii drug text files for the four quarters of 2004, 2005, 2006, and the first quarter of 2007 were searched for the keyword “methadone” and the case numbers (unique patient ID numbers) of the identified methadoneassociated cases were imported into an excel worksheet. The raw ascii text files were then searched again for all other drugs (in addition to methadone) associated with the previously-identified case numbers and this information added to the Excel worksheet. The separate corresponding “outcome files” (also ascii text files) were then searched for outcomes associated with the previously identified case numbers, and these outcomes imported into the worksheet in affiliation with the drug lists for each case number. The assembled worksheet could then be searched and summarized using standard Excel methods. Table 2 provides the statistics related to AERs citing methadone as one of the drugs involved in the adverse event. For the year 2004 (the last year of the NCHS survey of death certificates [Fingerhut, 2007] currently available), it is clear that the MedWatch AER data represent only a small fraction of methadone morbidity cases. NCHS counted 3,849 deaths involving methadone in 2004, yet the MedWatch database for 2004 captures only 426 (Q1 through Q4 combined, Table 2). Although 3 years of data is insufficient to develop a meaningful regression analysis, also apparent in the data of Table 2 is a quarterly variation in both methadone reports and methadone lethal(800) 423-9737
ity, which seems to indicate that, at least in the years surveyed, the fourth quarter methadone-related morbidity censuses are larger, and first quarter censuses are smaller than the census in other quarters. Mortality appears to follow a similar end-of-year preponderance, insofar as the Q4 death rate (% of methadone AER cases dead) is disproportionately greater than that in other quarters. In terms of early indications of a significant post-November 2006 drop in methadone-related morbidity or mortality, however, these data provide no such indication when first quarter 2007 data are compared with those of other years’ first quarters surveyed. It is not clear why the fourth quarter should contain both more methadone-related cases and a disproportionately greater methadonerelated death rate. The FDA MedWatch staff advises (personal communication) that all data are entered in real-time, as reported to them, with no “bureaucratic” or ‘book-keeping’ delays in entry. One possibility is that corporate reporters (pharmaceutical companies) may possibly delay provision of information until their annual reports are due at the end of the year, but the current survey did not seek to answer this question by matching reporters to reports. Future studies are planned. Reporting in the FDA MedWatch system is voluntary for practitioners—though compulsory for industry—so that these data are neither complete nor all-inclusive either as to patient numbers or other drugs taken, yet of the cohort who died taking methadone in the first quarter of 2007, the majority were also taking other psychiatric and pain-related non-opiate drugs. In 20 cases (25%) they were taking other opiates, while in 38
cases (48%) they were also taking benzodiazepines. Of the group hospitalized, only 21/89 (23.5%) were taking another opiate and 22/89 (or 24.7%) were co-administering a benzodiazepine (z-drugs, such as Ambien, Sonata, or Lunesta, were not counted as benzodiazepines in this total). The MedWatch data provide only an incomplete snapshot, and we need to await follow-up survey reports from the CDC, but initial indications are that the FDA’s warning has not yet reduced Adverse Event Reports for methadone.
Conclusions The current health-care environment, with its recently-adopted renewed emphasis on universal pain management, is undoubtedly at least partly responsible for the increased number of prescriptions of methadone to the pain patient population. Increased morbidity and mortality associated with methadone in the pain patient population is disproportionately larger than that associated with other analgesics and initial indications in the FDA’s MedWatch database do not—yet—confirm the early success of public health measures taken to counter this increase. Careful attention to the avoidance of dangerous interactive drug combinations would be helpful in reducing morbidity and mortality, as would careful medical screening to identify individuals idiosyncratically at risk of adverse effects. As to the reason why patients take more than is safe or prescribed, however: practitioner and patient education regarding methadone’s shorter analgesic time-course relative to its longer pharmacokinetic half-life, responsible for its propensity to accumulate Summer 2008 THE FORENSIC EXAMINER 45
in the body when over-used, would seem the only solution.
Acknowledgement Grateful thanks are extended to Dr. Tom Schacht for helpful editorial comments and expert writing advice in the drafting of this article.
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nary complications of drug abuse. West J Med, 120(1), 8–16. Gritz, E.R., Shiffman, S.M., Jarvik, M.E., Haber, J., Dymond, A.M., Coger, R., et al. (1975). Physiological and psychological effects of methadone in man. Arch Gen Psychiat, 32(2), 237–242. Hansten, P.D., & Horn, J.R. (2007). Cytochrome P450 enzymes and drug interactions: Table of cytochrome P450 substrates, inhibitors, inducers and pglycoprotein, with footnotes. In The top 100 drug interactions: A guide to patient management (pp. 159–175). Freeland, WA: H&H Publications. Harden, R.N. (2002). Chronic opioid therapy: Another reappraisal. APS Bulletin, 12(1). Inturrisi, C.E., & Verebely, K. (1972). The levels of methadone in the plasma in methadone maintenance. Clin Pharm Ther, 13(5, Pt. 1), 633–637. Islander, G., & Vinge, E. (2000). Severe neuroexcitatory symptoms after anesthesia with focus on propofol anesthesia. Acta Anesthesiol Scand, 44, 144–149. Kuehn, B. (2007). Methadone deaths rise. J Am Med Assn, 297, 799. Kosten, T.R., & George, T.P. (2002). The neurobiology of opioid dependence: Implications for treatment. Science & Practice Perspectives, 1(1), 13–20. Krantz, M.J., Kutinsky, I.B., Robertson, A.D., & Mehler, P.S. (2003). Dose-related effects of methadone on QT prolongation in a series of patients with torsade de pointes. Pharmacotherapy, 23, 802–805. Leavitt, S.B. (2003). Methadone dosing & safety in the treatment of opioid addiction. Addiction Treatment Forum. Retrieved Oct. 7, 2007, from http://atforum. com/SiteRoot/pages/addiction_resources/DosingandSafetyWP.pdf Lenne, M.G., Dietze, P., Rumbold, G.R., Redman, J.R., & Triggs, T.J. (2003). The effects of the opioid pharmacotherapies methadone, LAAM, and buprenorphine, alone and in combination with alcohol, on simulated driving. Drug Alcohol Depend, 72(3), 271–278. Loimer, N., & Schmid, R. (1992). The use of plasma levels to optimize methadone maintenance treatment. Drug Alcohol Depend, 30(3), 241–246. Maddux, J.F., Williams, T.R., & Ziegler, J.A. (1977). Driving records before and during methadone maintenance. Am J Drug Alcohol Abuse, 4(1), 91–100. MedWatch. (2007). Retrieved Sept. 7, 2007, from http://www.fda.gov/medwatch O’Brien, C.P. (1996). Drug addiction and drug abuse. In Hardman, J.G., & Limbird, L.E. (Eds.), Goodman & Gilman’s The pharmacological basis of therapeutics (pp. 557-577). 9th ed. New York: McGraw-Hill. Payte, J.T., & Zweben, J.E. (1998). Opioid maintenance therapies. In Graham, A.W., & Schultz, T.K. (Eds), Principles of Addiction Medicine (pp.557–570). 2nd ed. Chevy Chase, MD: American Society of Addiction Medicine, Inc.
Payte, J.T., & Khuri, E.T. (1993). Principles of methadone dose determination. In M.W. Parrino. (Ed.), State Methadone Treatment Guidelines. Treatment Improvement Protocol (TIP) Series 1. Rockville, MD: U.S. Department of Health and Human Services; Center for Substance Abuse Treatmen (pp. 47–58). DHHS Pub# (SMA) 93-1991, cited in Leavitt (2003). Payte, J.T., Zweben, J.E., & Martin, J. (2003). Opioid maintenance treatment. In Graham, A.W., Schultz, T.K., Mayo-Smith, M.F., Ries, R.K., & Wilford, B.B., Principles of addiction medicine (pp. 751–766). Chevy Chase, MD: American Society of Addiction Medicine. Presant, S., Knight, L., & Klassen, G. (1975, Nov. 22). Methadone-induced pulmonary edema. Can Med Assoc J, 113(10), 966–967. Prozac®. (2003). Fluoxetine hydrochloride package insert. Indianapolis, IN: Eli Lilly and Company. Reuter, N. (2004). DEA National Conference, June 6, 2004. Ft. Lauderdale, FL. Retrieved Oct. 5, 2007, from http://www.deadiversion.usdoj.gov/mtgs/drug_chemical/2007/methadone_panel_nreuter.pdf Rosenbaum, M. (1995). The demedicalization of methadone maintenance. Journal of Psychoactive Drugs, 27, 145–146. Rothenberg, S., Schottenfeld, S., Gross, K., & Selkoe, D. (1980). Specific oculomotor deficit after acute methadone. I. Saccadic eye movements. Psychopharmacology (Berlin) 67, 221. Rothenberg, S., Schottenfeld, S., Meyer, R.E., Krauss, R., & Gross, K. (1977). Performance differences between addicts and nonaddicts. Psychopharmacology (Berlin) 52, 299. Stout, P.R., & Farrell, L.J. (2002). Opioids: Effects on human performance and behavior. Forensic Sci Rev, 15, 29. Strang, J., McCambridge, J., Best, D., Beswick, T., Bearn, J., Rees, S., et al. (2003). Loss of tolerance and overdose mortality after inpatient opiate detoxification: Follow up study. Brit. Med. J. 326(7396), 959–60. Tennant, F. (2007). Methadone deaths and warnings. Practical pain management, 7(3), 8–9. Walker, P.W., Klein, D., & Kasza, L. (2003). High dose methadone and ventricular arrhythmias: A report of three cases. Pain, 103, 321–324. White, J.M., & Irvine, R.J. (1999). Mechanisms of fatal opioid overdose. Addiction, 94(7), 961–972. West Virginia Gazette. (2003). Retrieved Sept. 21, 2007, from http://www.wvgazette.com/section/Series/ The+Killer+Cure n
Earn CE Credit To earn CE credit, complete the exam for this article on page 37 or complete the exam online at www.acfei.com (select “Online CE”).
About the Author Jonathan Lipman, PhD, DABFE, DABFM, DABPS, is a neuropharmacologist in private consulting practice, a founder of Neuroscience Consulting Inc., and Associate Clinical Professor of Psychiatry and Behavioral Science at East Tennessee State University. His research interests are principally in the areas of pain, analgesia, and addiction.
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CE ARTICLE 2: BATTLE OF ACCOUNTING EXPERTS (pages 48-53) ATTENTION ACFEI MEMBERS: CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE
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LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1. Understand the need for truthfulness in the written report, deposition, and testimony. 2. Explain what is meant by side-taking or result-oriented work.
KEY WORDS: Expert witness, perjury, side taking, securities fraud, scienter, Daubert challenges, Daubert Tracker, Daubert on the Web, Frye challenges. TARGET AUDIENCE: forensic accountants
3. Describe how the SEC attacks securities fraud violations.
PROGRAM LEVEL: update
4. Understand how Daubert and the Frye rules may be used against experts.
DISCLOSURE: The author has nothing to disclose.
5. Explain how lawyers and experts may use the online Daubert Tracker to learn about experts.
PREREQUISITES: none ABSTRACT Expert witnesses must have thick skin because judges can be mean. Experts must be truthful in the courtroom as well as careful when preparing his or her written report. If an expert does not survive a Daubert or Frye challenge, the other side can use the Daubert Tracker to learn about the expert’s tarnished history.
POST CE TEST QUESTIONS
(Answer the following questions after reading the article, pages 48-53)
1. Which of the following statements is false? a. Larry F. Stewart was convicted of perjury in the Martha Stewart matter. b. Side-taking refers to hints at a lawyer’s line of argument before drafting your report. c. At least one U.S. Tax Court judge has said that appraisers have third-party responsibilities. d. A bench trial is before a judge, and not a jury. 2. A motion of limine is a. An attempt to remove a juror. b. Attempt to remove the judge. c. Attempt to disallow an expert witness. d. All of above.
c. The plaintiff won in SEC v. Guenthner. d. Some negative history was found about Harris Devor in the Daubert Tracker. 4. What statement is false? a. Under GAAP a receivable must be booked at the time the revenue is realized, or once the company has either received the cash or has the right to receive the cash. b. The judge admitted the testimony of Dr. John Bazley. c. The Daubert Tracker is an online repository of Daubert documents. d. The Daubert Tracker is free. 5. Daubert on the Web a. Is free. b. Has a total of 25 fields on its online database. c. Show admissibility rate of “Accountants and Economists.” d. All of the above.
3. Which of the following statements is false? a. KPMG was the auditor for InaCom. b. The company posted the bid price arbitrages as a receivable.
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Summer 2008 THE FORENSIC EXAMINER 47
CE Article: (ACFEI, Cr.FA) 1 CE credit for this article
THE BATTLE of
ACCOUNTING EXPERT WITNESSES:
JUDGES CAN BE HARSH T
By D. Larry Crumbley, PhD, CPA, Cr.FA, DABFE
hick skin can be an asset for expert witnesses dealing with the harshness of some judges. Judges can make negative comments about an expert in the courtroom, which can hurt an expert’s reputation. For example, a judge in Florida’s Fourth District Court of Appeal said the following about an expert when a defense attorney asked why he excluded the expert: “Dr. ________ is an insidious perjurer who wouldn’t know the truth if it leapt up and bit him on the ***.” The expert had been a doctor since 1963 and had testified for 25 years. On appeal, the appellate court upheld the judge’s ruling that the expert’s claim lacked merit.
48 THE FORENSIC EXAMINER Summer 2008
Not being truthful while testifying can be especially harmful. For example, prosecutors said that ink expert Larry F. Stewart committed perjury on the stand during the obstruction-of-justice trial of Martha Stewart. Mr. Stewart, laboratory director for the U.S. Secret Service, was charged with two counts of perjury, facing 5 years in prison if convicted. Prosecutors said that Mr. Stewart lied when he said he participated in the testing of ink on a worksheet supposedly showing a pre-existing agreement with Martha Stewart to sell her shares of Imclone stock. He had said, “I performed a test to determine … ,” when in effect, he did not participate in analyzing the critical documents. Larry Stewart was acquitted on October 5, 2004. One juror said, “He put his foot in his mouth, and he couldn’t take it out because of his ego. He did not walk into the courtroom intending to lie” (Bary, 2004). After a discussion of side-taking, this article will cover two business trials where the judges were extremely critical of the experts.
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Side-Taking or ResultOriented Work Experts must be unbiased advocates for the truth. Expert testimony is not useful when the expert is merely an advocate for the position argued by one of the parties (Estate of Jameson v. Commissioner, 1999). A trial judge may dismiss an expert witness who is influenced by side-taking. Hints at a lawyer’s line of arguments can influence an accounting expert’s opinion about an auditor’s compliance with GAAS (Ricchiute, 2004). Even the most famous of experts can be tarred by a judge. In Estate of Bessie I. Mueller (1992), the issue was the valuation of stock of Mueller Company. The IRS produced as its expert on the valuation questions Dr. Shannon Pratt, managing director of Willamette Management Associates and the acknowledged dean of business appraisers. U.S. Tax Court Judge Renato Beghe nevertheless concluded that “Willamette’s report was result-oriented and this was reflected in Dr. Pratt’s testimony.” The Judge noted that appraisers “have third-party responsibilities— just as certified public accountants do—to those who rely on their opinions, and their determinations must be independent and objective. … “Dr. Pratt strayed from the standard of objectivity and cast aside his scholar’s mantle and became ‘a shill’ for respondent.” In Mueller, as a result, Judge Beghe rejected most of both the Willamette report and Dr. Pratt’s testimony, but did take into account Dr. Pratt’s criticism of the taxpayer’s expert’s reports and testimony (Raby & Raby, 2003).
The SEC Tries for Fraud In a bench trial in April 2005, the Securities Exchange Commission (SEC) alleged fraud in violation of §10b and records violations under §13b of the Securities Exchange Act of 1934. The SEC alleged that David C. Guenthner (CFO) and Jay Samuelson (Asst. Corporate Controller) committed fraud by causing InaCom Corporation [InaCom] to overstate its 1999 third-quarter earnings in public filings, fraudulently recorded the overstated earnings in its books and records, and lied to auditors to conceal the fraudulent activities. The SEC’s claim of securities fraud violation involved three allegedly improper or erroneous accounting practices that affected InaCom’s third-quarter 1999 financial statements and filings: (1) InaCom’s reduction of certain reserves; (2) InaCom’s adjustment (800) 423-9737
of certain inventory and accounts payable discrepancies and the posting of those adjustments to third-quarter 1999 financial statements; and (3) InaCom’s recognition of “bid price arbitrage” (BPA) receivables in third-quarter 1999. The SEC contended that these accounting practices violated generally accepted accounting principles (GAAP).
Some Basic Facts from this Court Decision InaCom, a Delaware Corporation headquartered in Omaha, Nebraska, was a provider of information technology products and services. InaCom purchased computer equipment from major manufacturers for resale to end-users. InaCom merged with Vanstar Corporation, another provider of information technology products and services, in February 1999. During the late 1990s, traditional computer manufacturers who had distributed their products through resellers such as InaCom experienced significant price competition from direct sale manufacturers. As a result, the traditional manufacturers established “special bid” rebate programs to effectively compete with the direct sellers for the business of large customers. These traditional manufacturers also established various price protection programs whereby a computer manufacturer would rebate the difference in price for each computer that a reseller held in inventory if it decreased the wholesale price of a computer within a certain time after a computer reseller’s purchases. [On June 16, 2000, InaCom filed for Chapter 11 protection, and neither David Guenthner nor Jay Samuelson personally profited from the alleged misstatements.] With respect to the events leading to the third-quarter filing, CFO David Guenthner testified that Jay Samuelson and Paul Draheim reported to him. Draheim was responsible for the inventory and had calculated an inventory adjustment in the amount of $15.6 million for the third quarter of 1999. David Guenthner also testified that the company maintained operating reserves set by its operating divisions, inventory reserves in each division, and corporate reserves, including those that were set up in connection with the acquisition of Vanstar Corporation. Guenthner said he reviewed total inventory reserves at the end of each quarter, and his understanding of GAAP in connection with reserves was that it was necessary to have a basis or reason for setting the reserves and for reversing them.
David Guenthner’s original recommendation to the board of directors (BODs) in the third quarter of 1999, was that InaCom’s third-quarter earnings should be 25 cents a share. Guenthner and Jay Samuelson had met with then CEO Bill Fairfield on October 15, 1999, to discuss the financial statements in preparation for the upcoming BODs meeting. Fairfield agreed with David Guenthner’s financial analysis, and InaCom’s Audit Committee also agreed with his recommendation. The 25-cents-per-share figure was based on a reduction of reserves in the amount of $14 million. Guenthner continued to believe that the 25-cents-per-share figure was appropriate under GAAP. David Guenthner testified that Bill Fairfield, the Audit Committee, the Board of Directors, and InaCom’s external auditors, KPMG, were all informed of the proposed reduction of reserves. The evidence showed that the reserves were discussed at the Audit Committee meeting and that representatives of KPMG were present at the meeting. Guenthner testified that he believed InaCom had adequate reserves even with a reduction in reserves in the amount of $14 million. He testified that InaCom had in excess of $116 million in reserves in the third quarter of 1999. These reserves included NYNEX tax reserves and lease closing reserves. David Guenthner testified that the likelihood of needing those reserves had lessened over time.
Posting of BPA as Receivables Regarding the posting of bid price arbitrage (BPA) amounts as receivables, David Guenthner, CFO, testified that bid price arbitrages were agreements that salesmen and others at the district level made with vendors to rebate a portion of the price that InaCom had paid for their product if the price went down before InaCom sold to the ultimate consumer. These special bid contracts were generally oral agreements, which were common in the computer industry. The vendors’ incentive to agree to the rebates was InaCom’s continued business as a reseller of the vendors' product. David Guenthner testified that he believed the BPA amounts were collectible. InaCom employees John Dugan and Mike Steffan testified as lay witnesses for the defendants. They testified that they expected to collect the bid price arbitrage amounts. Dugan had been assured that the vendors were working to streamline procedures to Summer 2008 THE FORENSIC EXAMINER 49
validate the amounts, and Mike Steffan received assurances from other executives that the rebates would be paid. Also, the evidence established that InaCom had in fact collected some BPA receivables. Defendant Jay Samuelson also testified and essentially corroborated David Guenthner’s version of the events. He added that he had no knowledge regarding the adjustment of inventory beyond the documents that were provided to him by Paul Draheim. There were no allegations that defendant Jay Samuelson was involved in posting the BPA as receivables in the financial statements.
SEC’s Star Witness Paul Anderson, a CPA who was employed by KPMG, and InaCom’s external auditor at the time of the incidents at issue, also testified. He testified that InaCom was a KPMG audit client, and that he worked on the InaCom account in various capacities beginning as an assistant accountant in 1990, and ultimately as the supervising senior manager in 1999 and 2000. He performed quarterly and annual audits at InaCom. Paul Anderson testified that InaCom acquired Vanstar in what he characterized as a “pooling of interests” or “merger of equals” in February of 1999. As a result of the merger, Vanstar’s and InaCom’s financial statements were combined, and InaCom’s revenues doubled. Anderson testified that he was aware of the competitive pressures that occurred within the computer industry in the late 1990s. Mr. Anderson testified that KPMG performed a quarterly review of Inacom’s thirdquarter financial statements in 1999, stating that quarterly audits were less detailed than annual audits. As senior manager, he reviewed the work of supervising senior accountant Denise McGill. The KPMG auditors completed its review of InaCom’s third-quarter 1999 filings before they were filed. KPMG signed off and approved the filings. Paul Anderson further testified that he was involved with InaCom’s 1999 year-end audit. Thomas Fitzpatrick had become CFO in late November or early December of 1999. Fitzpatrick spoke to Mr. Anderson and to Anderson’s supervisor, Pat Jung, about possible restatements or earnings that Fitzpatrick thought should be taken on InaCom’s fourthquarter financial reports. Anderson said that he investigated the issues and made some preliminary findings. His preliminary conclusion was that InaCom’s reserve reduction, BPA posting, and adjustment for inventory in InaCom’s third-quarter financial statements 50 THE FORENSIC EXAMINER Summer 2008
did not comply with GAAP. Anderson’s initial conclusion was that InaCom should decrease earnings of the third-quarter 1999 by $25 million. Paul Anderson further testified that his audit was never completed and that his findings remained preliminary. Paul Anderson also said that the field work for the audit was not performed under normal conditions because the hardware division of InaCom had been sold to Compaq in February of 2000, and many former InaCom employees were no longer working there or were employed by Custom Edge, a company owned by Compaq. In addition, Mr. Anderson was aware that a class-action shareholder suit had been filed against InaCom, and Anderson’s working papers could be subpoenaed. Paul Anderson testified that Mr. Guenthner had stated that the reserves had been reduced because they were not necessary, but Anderson’s superiors did not consider that explanation satisfactory.
Other Important Details In order to succeed on their claim, the SEC must prove: (1) misrepresentations or omissions of material facts or acts that operated as a fraud or deceit in violation of the rule; (2) causation, often analyzed in terms of materiality and reliance; and (3) scienter on the part of the defendants (In re K-tel Int’l, Inc., 2002). Mere negligence does not violate Rule 10b (Ernst & Ernst v. Hochfelder, 1976). Severe recklessness, however, which is “limited to those highly unreasonable omissions or misrepresentations that involve not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and that present a danger of misleading buyers or sellers which is either known to the defendant or is so obvious that the defendant must have been aware of may [amount to securities fraud]” (Ernst & Ernst v. Hochfelder, 1976). “Reckless conduct is conduct that consists of a highly unreasonable act, or omission, that is an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.” Such a level of recklessness requires that defendants make statements that they know are materially inaccurate, or that they have access to information that suggests the statements are materially inaccurate (Ferris, Baker Watts, Inc. v. Ernst & Young, 2005). Thus, to result in a Section 10(b) liability for fraud, the mere second-guessing of calcu-
lations will not suffice; the SEC must show that defendants’ judgment—at the moment exercised—was sufficiently egregious that a reasonable accountant reviewing the facts and figures should have concluded that the company’s financial statements were misstated and that, as a result, the public was likely to be misled (In re IKON Office Solutions, Inc., 2002). Financial statements to the SEC must be made in accordance with GAAP (Kinder v. Acceptance Ins. Cos., 2005), and financial results reported in violation of GAAP are presumptively misleading or inaccurate (California Pub. Employee’s Ret. Sys. v. Chubb Corp., 2004). Violations of GAAP standards also can provide evidence of scienter (Greebel v. FTP Software, Inc., 1999). Scienter is defined as when the fraudster knew that his or her actions were intended to deceive. Statements of Financial Accounting Standards (SFASs) and the anti-fraud rules promulgated under §10 (b) of the 1934 Act serve similar purposes, and courts have often treated violations of the former as indication that the latter were also violated (Malone v. Microdyne Corp., 1994). Nevertheless, the prohibitions contained in GAAP and in Section 10(b) are not perfectly coextensive (Malone v. Microdyne Corp.). In some situations, courts have found defendants liable for securities fraud under §10b despite having complied with GAAP, while in other situations, courts have discharged defendants from §10b liability notwithstanding deliberate violations of GAAP (Malone v. Microdyne Corp.). “Even when a company’s disclosure is in violation of GAAP, ‘some techniques…might prove to be entirely legitimate, depending on the specific facts’” (Barron v. Smith, 2004). “GAAP is a term of art that encompasses a wide range of acceptable procedures" ((In re IKON Office Solutions, Inc., 2002). GAAPs “are far from being a canonical set of rules that will ensure identical accounting treatment of identical transactions … [GAAPs], rather, tolerate a range of ‘reasonable’ treatments, leaving the choice among alternatives to management” (Decker v. GlenFed, Inc., 1994). Because accounting concepts are flexible, circumstances will give rise to fraud only where differences in calculations are the result of a falsehood, “not merely the difference between two permissible judgments” (Godchaux v. Conveying Techniques, Inc., 1988). A reasonable accountant may choose to apply any of a variety of acceptable procedures when preparing a financial statement. “There are 19 different GAAP sources, any number of
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which might present conflicting treatments of a particular accounting question … when such conflicts arise, the accountant is directed to consult an elaborate hierarchy of GAAP sources to determine which treatment to follow” (Shalala v. Guernsey Mem’l Hosp., 1995). The sources for GAAP include official publications consisting of APB opinions, FASB Statements, and Accounting Research Bulletins (ARB) (In re K-tel Int’l, Inc., 2002).
The Defense Won in SEC v. Guenthner Establishing that an accounting practice or method is inconsistent with GAAP requires expert testimony (In re Burlington Coat Factory, 1997). The Supreme Court in Daubert identified four flexible, nonexclusive variables for determining whether an expert’s opinion is sufficiently reliable: (1) whether the theory has been, or can be, tested; (2) whether the theory has been subjected to peer review and publication; (3) when a particular technique is used, whether there is a known or potential rate of error; and (4) the extent of acceptance of the theory in the relevant scientific community (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993). Further, in Kumho Tire (Kumho Tire Co., Ltd. v. Camichael, 1999), the Supreme Court held that a trial court is to use its discretion to determine what the reasonable criteria of reliability are and whether the proposed testimony meets those criteria based on the circumstances of that dispute. Finally, as observed by the Supreme Court in 1998, in assessing reliability the court must determine whether the expert testimony has “a traceable, analytical basis in objective fact” (Bragdon v. Abbott, 1998). But even Daubert stated that “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence" (pp. 595–596). At the close of the SEC’s arguments, defendants moved for judgment as a matter of law, contending that the SEC had failed to prove its case. The judge reserved ruling on the motion, and the defendants proceeded to put on their evidence. During the prosecution stage, Dr. John Bazley was identified as an expert by the SEC. He is a professor of financial accounting at the University of Denver. He testified that corporations, banks, and auditors follow rules and procedures known as “generally accepted accounting principles” (GAAP) in filing financial statements and reports with the Securities Exchange Commission. These rules are promulgated by the Financial Accounting Standards Board (FASB). He stated that the establishment of a reserve and the release of a reserve are governed by GAAP. He explained that a company creates a reserve when there is an economic event that indicates that the asset value needs to be lowered or a (800) 423-9737
liability needs to be recognized. Correspondingly, he testified that it is appropriate under GAAP to release a reserve when there is evidence that the estimate that led to the reserve is no longer appropriate. Recording of a reserve is covered under FASB Statement No. 5, “Accounting for Contingencies.” Proper recording of a reserve requires that the contingent event must be both probable and reasonably measurable. Dr. Bazley also testified that under GAAP, a receivable must be booked at the time the revenue is realized, or once the company has either received the cash or has the right to receive the cash from the customer. The valuation of a receivable is the amount the company expects to collect. In order to determine such an amount, a company can rely on the concept of aging of receivables, under which the longer the receivable has been outstanding, the less likely it is to be collected in full. In addition, Dr. Bazley testified that if an accounting error is made, and the accounting in a prior period is later determined to be incorrect, the financial statement for the prior period should be adjusted or corrected. Dr. Bazley did not state an opinion on whether InaCom’s third-quarter financial statements complied with GAAP.
s NEW YORK, NY -- Martha Stewart leaves federal court in New York City on March 5, 2004. Stewart was found guilty of one count of conspiracy, two counts of making false statements and one count of obstruction of agency proceedings. The case also proved costly to an expert witness who was accused but acquitted of committing perjury. PHOTOGRAPH BY MAYITA MENDEZ/NEWSDAY (MCT)
Summer 2008 THE FORENSIC EXAMINER 51
The judge said the following about the motion in limine to deny Dr. Bazley: To the extent that a party challenged the probative value of the evidence, such an attack is upon the probative sufficiency of evidence related not to admissibility but to the weight of the evidence and is a matter for the trier of fact to resolve. Also, some evidence “cannot be evaluated accurately or sufficiently by the trial judge” in the procedural environment of a ruling on a motion in limine (United States v. Beasley, 1996). Accordingly, the judge admitted the testimony of Dr. Bazley and accorded it appropriate weight. Defendants presented the expert testimony of Harris Devor. Although the trial transcript says that Mr. Devor is a professor of accounting at Temple University, he is merely a graduate from Temple University. He is a CPA in the Philadelphia Shechtman Marks Devon firm. He has been trained as an auditor and has 32 years of experience in applying GAAP and GAAS standards. He testified that he reviewed documents, exhibits, and deposition testimony in connection with the transactions at issue in this action. He testified that, based on a reasonable degree of accounting and auditing certainty, in his opinion no one following professional standards could conclude that the alleged accounting improprieties at issue in this action violated GAAP. According to the trial transcript, Dr. Harris [sic] explained that there are two ways to establish that a reduction in reserves is inappropriate: (1) establishing that the reserve should not have been established in the first place, or (2) showing that the reserves remaining after the reduction are inadequate to cover certain future liabilities or to reflect impairment of certain assets. Mr. Devor further testified, based upon the record evidence in this dispute, that he saw no evidence that InaCom’s reserves were inadequate. He also testified that it is appropriate to record an asset if it is reasonably expected to produce an economic benefit at the time it is posted. He thus concluded that it had been proper for InaCom to record the bid price arbitrage (BPA) amounts as receivables if InaCom reasonably expected to collect those receivables at the time they were recorded. He further concluded, based on the record evidence, that InaCom had a reasonable belief that the BPA amounts were collectible, and thus it was proper to record them. Professor Kenneth Lehn, professor of Finance at the University of Pittsburgh, also testified on behalf of the defendants. He stated that the alleged misrepresentations or misstatements,
either singly or in combination, by InaCom would not have been material to the average investor. He testified that investors are generally forward-looking and that the extremely negative fourth-quarter prospects reported in the press release would have negated the impact of any 15-cent-per-share earnings. Defendants renewed their motion for judgment as a matter of law at the close of the evidence phase, and the judge found that the defendants’ motions for judgment as a matter of law should be sustained. The judge said that there had been a complete and utter failure of proof by the SEC. The SEC failed to prove any of the elements of its securities fraud claims. Most notably, the SEC had not shown that David Guenthner or Jay Samuelson made any misstatements or misrepresentations in InaCom’s third-quarter 1999 filings. The SEC’s claim was based on its contention that defendants had misstated or “managed” earnings in the third-quarter 1999 report. The alleged misstatements of earnings were premised on three allegedly improper, false, or erroneous accounting procedures. The SEC presented no evidence that InaCom’s accounting procedures did not comply with GAAP. The SEC’s only designated expert witness, Dr. Bazley, testified generally about GAAP and about basic principles of accounting, but he offered no opinion on whether the defendants’ conduct in connection with the third-quarter 1999 financial reports complied with GAAP. Whether the defendants’ actions as professional and certified public accountants in preparing InaCom’s third-quarter 1999 financial reports complied with GAAP is a question that requires technical and specialized knowledge. The standards of conduct of a professional under these circumstances are not within the court’s general knowledge and experience. The need for expert testimony in this dispute is analogous to the need for expert testimony on the standard of care in a professional malpractice dispute. With respect to the reduction of reserves, Dr. John Bazley testified only that the creation or reduction of a reserve must be based on a reason. Jay Guenthner testified that he had a reason for the creation and the reduction of the reserves and that InaCom was adequately reserved. The SEC made no showing that Guenthner’s reason for releasing the reserve was in any way inadequate or suspect. Moreover, according to the judge, Paul Anderson (the KPMG auditor) testified only as a fact witness and not as an expert. Even if he were qualified, and had been disclosed, as an expert, his preliminary conclusions
that the three accounting procedures at issue did not comply with GAAP do not amount to proof of those conclusions because they were admittedly preliminary and tentatively. Moreover, any testimony by KPMG employees is suspect and cannot be afforded much weight in view of the fact that KPMG had considerable exposure to liability for the fraud, if it were shown to have occurred. The evidence showed that KPMG was aware of, and approved, the accounting procedures that it later professed, in hindsight, to have been erroneous and improper.
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The Daubert Tracker The Daubert Tracker (www.dauberttracker. com) is an online repository of Daubert documents including more than 14,000 court decisions from 1993. A lawyer can check the gatekeeping history of any expert before retention or deposition. In mid-July of 2006, there were 570 accounting decisions involving Daubert actions. Of the 570 accounting disputes, 314 experts were admitted (55%), 203 were denied (36%), and 53 were admitted/denied in part (9.3%). A check of John Bazley found no other Daubert action. Likewise, no Daubert history was found on June 29, 2006, for Kenneth Lehn and Paul Anderson. Negative Daubert history, however, was found for Harris Devor. In 1996, Mr. Devor did not survive a motion in limine in L & M Beverage Co. v. Guinness Import Co. (Jonasson v. Lutheran Child and Family Servs., 1997), where he calculated the annual net profit of L & M that could have been expected to earn on the brands of beer it sold to C & M, and then multiplied this figure by a term of years ranging from 15 to 35 years. The District Court determined that the proper measure of compensatory damages here was “diminution in value.” “Thus, without addressing Guinness’ many criticisms of Mr. Devor’s qualifications and accounting methodology, the court “granted the motion to deny Devor’s testimony.” In a 2004 District Court dispute (U.S. Dist., 1996), Mr. Devor was retained to give his expert opinion on whether AIC’s financial statements were prepared in accordance with Financial Accounting Standard No. 5. Judge Laurie Smith Camp said that Devor did not explain how he reached his ultimate opinions, nor did he describe the analytical processes he went through to reach his opinion. The judge did not believe that Mr. Devor’s testimony had been subjected to peer review. On appeal, the Eighth Circuit upheld the inadmissibility of Mr. Devor’s affidavit www.acfei.com
because it was not supported by any methodology and was not particularly helpful to the court (In re Acceptance Ins. Cos., 2004). Harris Devor took the shareholders’ statements as true and did not review the record to see if the statements were supported. The appellate court felt that his opinions were, more or less, legal conclusions about the facts of the dispute as presented to the experts by the shareholders. When an expert's opinions are little more than legal conclusions, a district court should not be held to have abused its discretion by excluding such statements (Kinder v. Acceptance Ins. Cos., 2005). There is another searchable database of Daubert decisions called “Daubert on the Web,” found at www.daubertontheweb.com. This online free tracking service is, of course, not as extensive as the Daubert Tracker. On January 9, 2007, 87 cases were under the field “Accountants and Economists” with an admissibility rate of .595. Most of the decisions involved economists. There are a total of 25 fields on this online database with various “admissibility rates,” such as Appraisers 0.800 Computer experts 0.667 Criminologists 0.847 Marketing experts 0.333 Polygraphers 0.121 Statisticians 0.647 In Louisiana, there have been at least 33 Daubert challenges with a 60% admission rate.
Another Rejection In another dispute involving accounts receivable and a professor, a bankruptcy judge rejected the professor. The judge said that Dr. James A. Knoblett, CPA, had no education or experience in insolvency or bankruptcy accounting. His report is even more conclusory and contains even less explanation than Ms. Faulkner’s report [another expert], and his deposition testimony is even more damning (United States v. Ingle, 1998). For example, Dr. Knoblett testified that he was not aware of any difference in the treatment of contingent liabilities under the Bankruptcy Code vis-a-vis under generally accepted accounting principles. He also accepted WBI’s valuation of an account receivable owed by a related party, without investigating to determine the collectibility of the receivable (or even determining the identity of the related party to evaluate whether the receivable should be included in a consolidated balance sheet at all). In addition, Dr. Knoblett did not investigate Mr. Wilkinson’s solvency, but he based his (800) 423-9737
conclusions regarding the values of the receivable owed by Mr. Wilkinson and of the liability represented by WBI’s guaranty of indebtedness owed by Mr. Wilkinson solely on information indicating that he had historically paid his debts. Dr. Knoblett also acknowledged having no information regarding the source of the funds used to pay debts to WBI, so he could not confirm that the debts were paid rather than refinanced. Also, in deciding that there was a zero probability that WBI would be called upon to honor its guaranties of Mr. Wilkinson’s debts, Dr. Knoblett gave no consideration to whether the debts were in fact called around the times of the transfers. Thus, the court likewise concluded that the defendant had not provided sufficient evidence of the reliability of Dr. Knoblett’s testimony to pass the Daubert/Kumho “gatekeeper” test. Accordingly, Dr. Knoblett’s report was excluded and did not, therefore, rebut the presumption of insolvency in this dispute.
Conclusion An expert witness must be truthful in the courtroom as well as careful when preparing his or her report. If an expert does not survive a Daubert or Frye challenge, the other side can use the Daubert Tracker to learn about the expert’s history easily. Any negative comments about an expert can be harmful to the career of an expert witness. For example, in a 2002 Tenth Circuit decision, the court said that the expert used unreliable data, did not understand computers or the computer market, changed his opinion from an earlier expert report, and that his testimony was non-technical (Lantec, Inc. v. Novell, Inc., 2002). On January 6, 2005, Andrea Yates’ capital murder conviction for drowning her children was overturned by an appeals court because of Dr. Park Dietz’s erroneous testimony about a nonexistent TV episode on Law & Order. His photo was shown on Fox News, and the talking heads called him a “hired gun.” One talking head said that “he’s dead.”
References
Barron v. Smith, 380 F.3d 49, 55-56 (1st Cir. 2004). Bary, C. (2004, September 24). Stewart ink-test trial starts. Wall Street Journal, C–4. Bragdon v. Abbott, 524 U.S. 624, 653, 141 L. Ed. 2d 540, 118 S. Ct. 2196 (1998). California Pub. Employee’s Ret. Sys. v. Chubb Corp., 394 F.3d 127, 153 (3d Cir. 2004). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.), 42 F.3d 1541, 1549 (9th Cir. 1994). Ernst & Ernst v. Hochfelder, 425 U.S. 185, 214, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976). Estate of Bessie I. Mueller v. Commissioner, T.C. Memo. 1992-284. Estate of Jameson v. Commissioner, T.C. Memo. 1999-43. Ferris, Baker Watts, Inc. v. Ernst & Young, LLP, 395 F.3d 851, 854 (8th Cir. 2005). Godchaux v. Conveying Techniques, Inc., 846 F.2d 306, 315 (5th Cir. 1988). Greebel v. FTP Software, Inc., 194 F.3d 185, 203 (1st Cir. 1999). In re Acceptance Ins. Cos., Sec Litig., 2004 U.S. Dist. LEXIS 26609. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1421 (3d Cir. 1997). In re IKON Office Solutions, Inc., 277 F.3d 658, 673 (3d Cir. 2002). In re K-tel Int’l, Inc. Sec. Litig., 300 F.3d 881, 888 (8th Cir. 2002). Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 439 (8th Cir. 1997). Kinder v. Acceptance Ins. Cos., 423 F.3d 899 (CA-8, 2005). Kumho Tire Co., Ltd. v. Camichael, 526 U.S. 158, 119 S.Ct. 1167 (1999). Lantec, Inc. v. Novell, Inc., 306 F. 3d 1003 (10th Cir., 2002). Malone v. Microdyne Corp., 26 F.3d 471, 478 (4th Cir. 1994). Raby, B.J.W., & Raby, W.L. (2003). Reasonable compensation, expert witnesses, and the tax practitioner. Tax Notes, 100(11), 1415. Ricchiute, D.N. (2004). Effects of an attorney’s line of argument on accountants’ expert witness testimony. Accounting Review, 79(1), 221–245. Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 101, 115 S. Ct. 1232, 131 L. Ed. 2s 106 (1995). U.S. v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996). U.S. Dist., 1996, LEXIS 9025. U.S. v. Ingle, 157 F.3d 1152 (CA-8, 1998). n Earn CE Credit To earn CE credit, complete the exam for this article on page 47 or complete the exam online at www.acfei.com (select “Online CE”).
About the Author Dr. D. Larry Crumbley, CPA, Cr.FA, is KPMG Endowed Professor at Louisiana State University. He is the co-author of a book entitled Forensic and Investigative Accounting, published by Commerce Clearing House.
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Case Study
Caretaker Cruelty Munchausen's and Beyond seemingly incongruous traits. First, he was a remarkably honest businessman, and secondly, he was a delightful and steadfast liar. Münchhausen typically became the center of attention at social gatherings, regaling his friends with incredible stories about his alleged feats and experiences during his travels and military service. It was Münchhausen’s ability to tell a bold-faced lie that earned him a name in the history of psychology.
Münchhausen’s History
By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABPS, DABFM, DAPA
B
orn in 1720, Karl Friedrich Hieronymus, Freiherr von Münchhausen, spent his youth as a page to Anthony Ulrich II, the Duke of BrunswickLüneburg (“Munchhausen,” 2008). Münchhausen moved to Russia with Ulrich, and both served in the Russian cavalry: Ulrich as a “generalissimo” and Münchhausen as a “cornet.” Together, they served in two campaigns against the Ottoman Empire with Münchhausen remaining in the military even after Ulrich was imprisoned in 1741. By 1750, Münchhausen had been promoted to the position of “rittmeister,” or captain, and shortly thereafter, retired from the cavalry and returned to his family’s manor in Bodenwerder, Germany. s An Engraving of Baron Munchausen from 1870. Engraving by Gustave Dore.
The facts of Münchhausen’s personal life are scant and often contradictory. By all accounts, Münchhausen married in Latvia in 1744, with his wife dying in Bodenwerder in 1790. By some accounts, Münchhausen remarried 4 years later, to a 17-year-old girl who was supposedly pregnant with his only child. This marriage reportedly ended in a highly tumultuous divorce, and his son, Polle, is thought to have died of unknown or mysterious circumstances around the age of 12 months. By other accounts, Münchhausen died childless in 1797. One certain fact regarding Baron von Münchhausen was the reputation he earned after his return to Bodenwerder and maintained for more than 40 years. Münchhausen was known for two,
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In 1951, an article appeared in a medical journal written by Richard Asher, a London physician (Asher, 1951). In it, Asher described a syndrome in which patients presented with rather dramatic symptoms they had consciously fabricated or induced. They often underwent numerous, costly, and painful procedures that did not result in a diagnosis or alleviate symptoms, and they had extensive medical histories. Asher also noted these patients had all traveled and/or moved a great deal. In recognition of his travels and propensity for fabrication, Asher named this syndrome after Baron von Münchhausen, or “Munchausen’s Syndrome” (having anglicized the spelling). In 1977, English pediatrician Roy Meadow published a report of a new type of child abuse, in which mothers consciously invented stories of illness in their children that they frequently substantiated by inducing physical symptoms (Meadows, 1977). Carrying the parallel with Münchhausen even further, Meadow labeled this destructive dynamic “Munchausen Syndrome by Proxy” (MSbP). He asserted that mothers suffering from MSbP were willfully hurting and sometimes even killing their children, claiming that “one sudden infant death is a tragedy, two is suspicious, and three is murder, until proved otherwise” (Meadow, 1997). This posit became known as “Meadow’s Law” and for a time, became the “rule of thumb” for British child protection agencies. In more recent years, a focused presentation of MSbP—referred to as the contemporary-type of MSbP—has become increasingly common. Although all MSbP involves child maltreatment, in contemporary-type MSbP, the caretaker asserts the child has been subjected to physical, sexual, or emotional abuse, to neglect, or to any combination of such.
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By Any Other Name Since Asher’s coining of the term “Munchausen’s Syndrome,” there has been decades of debate over the appropriateness of the term. Some felt the label was not scientific or serious enough. Others believed the term ridiculed those patients suffering from the syndrome, not to mention the Baron himself. Over the years, “Munchausen’s Syndrome” has been renamed many times, referred to as “pathomimia,” “peregrinating problem patients,” “ipsepathogenic patients,” “nosocomotropism,” “hospital addiction,” “hospital hobo,” and “Van Gogh Syndrome,” to name a few. Asher’s “Munchausen’s Syndrome” essentially led to the formal diagnostic category of “Factitious Disorders” (FD). According to the Diagnostic and Statistical Manual of Mental Illness, Fourth Edition, Text Revision (DSM-IVTR), FD involves the intentional feigning or production of physical and/or psychological symptoms (as opposed to the unconscious process in somatoform disorders) (APA, 2000). To meet the diagnostic criteria, the purpose of FD must be to fulfill a psychological need to assume the patient role, rather than to achieve an external gain (as with malingering). Within the DSM-IV-TR classification system, “Munchausen’s Syndrome” represents the most severe and chronic form of the category of factitious disorders with predominantly physical symptoms. Despite being a subtype of FD, the term “Munchausen’s Syndrome” tends to be used interchangeably with “Factitious Disorder.” As with “Munchausen’s Syndrome,” Meadow’s term “Munchausen Syndrome by Proxy” has also been referred to by several different names. In a slight variation, the syndrome has been called “Munchausen by Proxy” and, for a time, it was known as “Polle Syndrome” after Münchhausen’s son. In light of the speculation regarding the very existence of Polle, the term “Polle Syndrome” is no longer used. Most recently, in 2002, the American Professional Society on the Abuse of Children suggested using the term “Pediatric Condition Falsification” for the syndrome (Ayoub et al., 1998). MSbP was not mentioned in the DSM until 1994 (in the DSM-IV) when it was suggested that the problem be studied further for possible future inclusion as a diagnostic category (APA, 1994).
A Syndrome of Abuse Although MSbP is not a diagnosis, per se, it is a recognized and reportable form of child abuse or maltreatment that is identified by the perpetrator’s behavior (Stirling, 2007; (800) 423-9737
Ludwig, 2006; Berkowitz, 2004; Meadow, 1977). Offenders often go undetected not because of the cleverness of their deception, but because the perpetrator’s behavior is so heinous, surrealistic, and incongruent with their presentation. While health-care workers are trained to be objective and observant, most would not automatically suspect that a “caring” and “normal” caretaker could be so calculatedly cruel to a child. In an attempt to dispel doubt and disbelief about MSbP, English pediatrician David Southall literally documented the bizarre syndrome. Southall hid video cameras in the hospital rooms of 39 children whose medical presentation suggested the possibility of MSbP (Southall et al., 1997). Of those 39 mothers, 34 were recorded poisoning, smothering, or harming their child in some other way. Five of those mothers later admitted to having murdered one of their children. Although MSbP can be varied and complex in its presentation, it is always characterized by an adult caretaker (usually a mother) deliberately exaggerating, fabricating, and/or inducing symptoms in someone under their care (typically a child). The mother creates a multidimensional scenario that might include providing a fabricated or exaggerated report of her child’s history and current “problems,” which she, in fact, inflicted. For example, she might have given her child any number or combination of poisons (including excessive amounts of salt or pepper) to create a range of physical signs and symptoms. She might have simulated or created rashes on any part of her child’s body by repeatedly pricking his or her skin, rubbing the skin with some caustic agent or material, or even by applying dye to mottle the skin’s appearance. In other cases or at other times, a mother with MSbP might falsely report that her child is having seizures, or she may actually induce seizures by suffocation or excessive pressure on the carotid artery. She might alter laboratory specimens by, for example, returning a urine sample into which she has introduced her own blood. If her child has a legitimate immediate or chronic illness, the mother might exacerbate the symptoms or condition by feeding her child something to which he or she is allergic, for example. While hospitalized or at home, the mother may introduce a poison or contaminated fluid into her child’s intravenous line. It is important to note that it is not uncommon for a mother with MSbP to change her methods over time, as the possibilities for creating a “sick” child are limited only by her knowledge, experience, and imagination.
The frequency with which an adult with MSbP induces symptoms in a child and/or subjects the child to unnecessary medical procedures varies. It may occur as a single event or as intermittent episodes triggered by an external stress (or stressors), such as a pending divorce. At the other extreme, MSbP may become an ongoing way of life that may transfer from one child to another.
Motivation to Harm While Baron von Münchhausen’s motivation to fabricate adventures was apparently to entertain and impress listeners, persons with MSbP are motivated by a range of drives and desires (Rogers, 2004). Most simply, as the term implies, MSbP allows the perpetrator to assume the “sick role”—by proxy. However MSbP is clearly more than a vicarious experience of illness. The perpetrator gains some form of internal gratification, such as attention and sympathy for having a “sick” child, or admiration and respect for being a committed and emotionally strong parent/caretaker. The motivation for consciously inflicting pain on a child can range from what can best be described as an addiction to the world of health care, to the desire to be seen as a “saint” and “savior.” MSbP behavior may be further motivated by more temporal or situational needs and desires. For example, a sick child might improve family relationships, allowing the members to rally together on behalf of the child. In a similar vein, being a “good mother” to an ill child might quash a husband’s criticism and demands. Being not just a mother but also a “caretaker” to a sick child serves to increase the child’s dependency. That very connection can also serve to create distance between the child and father, even to the point of severing the relationship. An MSbP mother may use her child’s illness—and her caretaking skills—to her advantage during a divorce where custody is disputed. In the case of contemporary-type MSbP, the accusing parent may gain recognition for “protecting” the child; in the case of divorce, where the father is the accused offender, the fabrication may be sufficient for the mother to gain sole custody. Despite the appearance of putting her child’s needs above her own, the singular focus of an MSbP mother on her own needs allows for a unique form of cruelty, and often lethality. To date, there are no profiles of MSbP offenders and victims. There are, however, certain recognized signs and characteristics, most of which are behavioral (Rogers, 2004; Sharif, 2004; Schreier, 2002; Meadow, 1997). Summer 2008 THE FORENSIC EXAMINER 55
The Perpetrators of MSbP MSbP almost always involves a biological mother whose behavior is that of a good, dedicated, confident parent/caretaker. She is extremely attentive to her child and seems always to be at her child’s side. While the amount of time she spends with her “sick” child may cause an observer to wonder if she might not be neglecting any other children, that thought is usually pushed aside because she appears to be such a “good” mother. Perpetrators of this form of child abuse often encourage health care providers to perform many tests, even to the point of pushing. They seem to welcome invasive and painful procedures that non-MSbP would only agree to with some hesitation or reluctance. Mothers with MSbP tend not to show anxiety or fear when other parents might. If they express anxiety or concern, their words may not match their affect. In fact, medical personnel may demonstrate more concern for the child than does the mother. Many mothers with MSbP have a background in health-care or an allied field, or they may possess medical knowledge beyond that of the average mother. They may approach health-care providers as a “peer” and initiate conversations with staff members about other patients’ medical problems. These mothers may be well liked by healthcare professionals (especially nursing staff ) as they are extremely helpful (lightening the employee’s workload), exceptionally appreciative, and show inordinate concern for their feelings and well-being. Aside from being “too good” and seeming “off ” in some unidentifiable way, perpetrators may have no evident mental health problems. In fact, they may produce assessment results that are entirely within the normal range. At the other extreme, there may be identifiable pathology, such as a personality disorder, paranoia, or sadistic impulses. (If the abusive behavior arises from psychosis or in the presence of delusions, the behavior may not be knowing, willful, or voluntary, and as such, would not qualify as MSbP.) Any dependency needs they may have are often masked by a presentation of confident capability. Their need for attention is not always directly evident, although some might be described as “drama magnets.” Central to the syndrome, mothers with MSbP are very accomplished liars, deceivers, and manipulators who can be remarkably convincing. It is not uncommon for mothers with MSbP to fabricate a history of sexual abuse in her own past, and there may be striking 56 THE FORENSIC EXAMINER Summer 2008
similarities between her alleged abuse and that of her child. Despite having inflicted symptoms and illness in their children) for varying lengths of time (even years), very few of these mothers have prior involvement with child protection agencies. When perpetrators sense they are about to be “found out,” they generally do not stop the behavior. Rather, they may change their method or mode of maltreatment, or abruptly relocate with the child. In fact, these mothers are often the most dangerous when they believe they are about to be “caught.”
The Victims of MSbP Demographically, the vast majority of victims of MSbP are children (equally male and female) under the age of 6 years (Schreier, 2002). Historically, they tend to have an atypical or unusual course of medical treatment, including many physicians from the same specialty. Victims of MSbP mothers generally have multi-systemic illnesses that are prolonged or rare, with symptoms that are baffling and incongruent. Oftentimes, there is no apparent “fit” between the child’s reported history and clinical presentation or findings. The child’s symptoms may be inconsistent with test results and may not respond as expected to treatment. As mentioned above, rashes and seizures (especially those that do not respond to anticonvulsants and witnessed only by the mother) are common, specific symptoms with which victims of MSbP present. Other common signs and conditions include multiple allergies; bleeding with failure to clot; apnea (induced by suffocation); diarrhea and/or vomiting (induced by ipeacac or laxatives); blood in the stools or urine (introduced by the mother or resulting from injury to the rectum or urethra); sugar imbalance; depression of the central nervous system; infections from a range of often unusual organisms; and, in the case of contemporary-type MSbP, vaginal or rectal injuries that are inconsistent with the alleged abusive behavior. In fact, the range of fabricated and/or induced symptoms is endless and tends to shadow the advent of new medical and social services. On the least abusive end of the spectrum, victims of MSbP may present with no symptoms, but with a factitious history supplied by the mother. At the other end of the continuum, victims may suffer recurrent life-threatening events (induced by the mother). Somewhere in the middle are those children who have a legitimate illness that is exacerbated at will by the mother (and which may become lethal).
A victim of MSbP may have symptoms that are only witnessed by his or her mother, or only occur/flare when she is present. Similarly, the symptoms may begin to improve or completely disappear when the victim and mother are separated. Hospitalized victims may show a sudden recurrence when discharge is discussed or planned, or may have a relapse very soon after returning home. Of note, the victim’s father may be completely absent during his child’s hospitalization. The victim may have one or more siblings who died of “sudden infant death syndrome” and/or relatives who have experienced unexplained illness.
The Consequences of MSbP Victims of MSbP suffer a range of physical and emotional consequences, including a very fundamental betrayal of trust. Psychological consequences can include depression, anxiety, shame, and the development of phobias, to name just a few. Physically, victims of MSbP can suffer compromised immune systems, multiple scars, organ loss, induced chronic illness, and much more—including death. Unfortunately, the risk of maltreatment to the child comes not only from the mother, but also from health-care professionals. Professionals can mistreat the MSbP victim severely, albeit unintentionally, by peril of failing to diagnose the syndrome in the mother. With their attention focused on the child, countless unnecessary and often painful tests (including exploratory surgery) are conducted in an effort to arrive at a diagnosis. The child is subjected to interventions, aimed at resolving symptoms, which can be damaging in themselves. In the case of the contemporary-type of MSbP, the mother may insist on a vaginal examination; if the child is very young, that can only be done under anesthesia. Older children may be subjected to repeated interviews, psychological evaluations, and legal proceedings. If the child victim is often kept home due to “sickness” or hospitalized for frequent and prolonged periods, he or she may suffer delays in emotional, social, and/or educational development. If an older child is involved, he or she may have accommodated to the syndrome, “going along” with the mother’s behavior, and maintaining her secrecy. An older child may even take part in inducing or exacerbating symptoms (potentially developing “Munchausen’s Syndrome” or “Folie a Deux”). In an unknown number of cases, the victim is raised believing he or she is chronically ill (e.g.; told he or she is having seizures during sleep)
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or in some way disabled. In these situations, the child may remain with the perpetrator mother indefinitely, with the MSbP involving a mother and her adult child. As Meadow said, “Child abuse does not cease when the child reaches adult age, childhood ends when you lose your parents (Meadow, 1984).”
Evaluating for MSbP Because of the physical nature of the symptoms, MSbP is most often diagnosed in medical settings. However because of the nature of underlying motivations for MSbP behavior, it often presents and can be exposed during the course of custody and/or child abuse investigations and evaluations. For example, in the context of custody evaluations the possibility of MSbP should be considered when the child has been alienated from the father for no apparent reason. With MSbP, the mother may seem to encourage/support the father-child relationship and the father may be a completely adequate caretaker, but the distance exists and persists nonetheless. If allegations of sexual abuse arise in the context of a contested divorce, most jurisdictions allow for all parties (mother; child; accused father) to be evaluated by the same person. Having access to all parties and all records increases the likelihood that MSbP, if present, will be discovered. The adversarial nature of the legal system does not allow for a family evaluation or for the review of all available records for each party. As such, it is much more difficult to assess for the presence of MSbP in the context of criminal proceedings related to child sexual abuse. Regardless the veracity of the allegations, it is a tremendous disservice to the child not to rule out the possibility of MSbP being at work. Despite the inability to access all parties during an evaluation in a criminal context, indicators of MSbP may still be evident. One such possible indicator is the addition of new allegations or the remembering of new details when the case becomes “stuck” or about to be dropped. This becomes increasingly significant when the mother of the alleged victim seems to be overly focused on “building a case” against the accused, the child is unwilling to be interviewed alone, and/or the mother demands to be present during the child’s interview/exam. As suggested above, MSbP might be suspected if the mother of the alleged victim accepts multiple interviews and examinations of the child without some hesitation. Other possible indicators of MSbP might be found in the allegations themselves, such as inconsistencies between the described (800) 423-9737
event(s) and physical findings. Similarly, in cases of MSbP, the mother (and/or child) may present allegations of acts that are bizarre, improbable, or factually inconsistent. The child may discuss the allegations with interviewers in a rote manner, as if reciting; on the other hand, the child may be over-eager to discuss the abuse. The mother with MSbP may seem to know more about what happened to the child than does the child him/herself. The mother may compare the child’s alleged abuse to that she allegedly suffered as a child. Most importantly, the child may deny the abuse, but only when the mother is not present. When evaluating an alleged victim of child abuse, to facilitate ruling out MSbP, the evaluator should review all of the child’s medical and educational records. Details of the child’s history as provided by the mother should be collaborated by other sources. The alleged victim’s siblings can be an important source of information, not just when investigating allegations of sexual abuse, but also to assess for possible MSBP in the mother. Perhaps most telling of all is the mother who just seems too good to be true.
The Professional Aftermath Roy Meadow was knighted for his efforts in preventing child abuse and provided expert testimony in several high-profile MSbP cases in England during the 1990s. Several of these cases were appealed in the early 2000s, resulting in Sir Meadow temporarily losing his license to practice medicine. In 2004, David Southall was temporarily banned from working with abused children after he apparently falsely accused a man of murdering his children. Although these disciplinary actions may well have been justified, clinical experience suggests that persons with MSbP can be very litigious. Close to two years ago in California, the mother of a chronically ill child raised the suspicion of a custody evaluator. When the mother became aware her behavior was under question, the child suffered a sudden, severe worsening of her medical condition. Within days of being hospitalized, the child died of “unknown causes” shortly after a visit by the mother. Although there was no definitive evidence of the mother’s guilt, there was very convincing circumstantial evidence provided by a witness. No criminal charges were filed against the mother who lost custody of her other child. Despite being “exposed,” the mother went on to sue all of the parties she claimed were responsible for her child’s death. Immunity laws prevented her from suing the
evaluator despite repeated attempts. The insurance company of another party chose to settle (for close to half a million dollars) rather than fight the case in court. Having moved out of state, she is reported to have recently given birth to another child.
References American Psychiatric Association (APA). (1994). Diagnostic and Statistical Manual of Mental Disorders (4th Ed.). Washington, D.C: American Psychiatric Association. American Psychiatric Association (APA). (2000). Diagnostic and Statistical Manual of Mental Disorders (4th Ed, Text Revision). Washington, D.C: American Psychiatric Association. Asher R. (1951). Munchausen’s syndrome. Lancet, 1(6), 339-341. Ayoub C, Alexander R, Beck D, et al. (1998). Definitional issues in Munchausen by proxy. The APSAC Advisor, 11, 77. Berkowitz CD. (2004). Child abuse and neglect. In: Tintinalli’s Comprehensive Study Guide. Emergency Medicine, A Comprehensive Study Guide. (6th Ed.). 1847-1850. Munchhausen, Baron. (2008). In Encyclopaedia Britannica, Online. Available at: http://www.britannica. com/eb/article-9054209. Ludwig, S. (2006). Child abuse. In: Textbook of Pediatric Emergency Medicine (5th Ed.). 1761-1801. Meadow, R. (1977). Munchausen syndrome by proxy: The hinterland of child abuse. Lancet, 2(8033), 343-345. Meadow, R. (1984). Munchausen by proxy and brain damage. Developmental Medicine and Child Neurology, 26(5), 672-674. Meadow, R. (1995). What is, and what is not, ‘Munchausen syndrome by proxy’? Arch Dis Child. 72(6); 534-538. Meadow, R. (1997). ABC of Child Abuse. London, England: BMJ Publishing. Rogers, R. (2004). Diagnostic, explanatory, and detection models of Munchausen by proxy: Extrapolations from malingering and deception. Child Abuse and Neglect. 28(2);225-238. Schreier, H. (2002). Munchausen by proxy defined. Pediatrics. 110(5); 985-988. Sharif, I. (2004). Munchausen syndrome by proxy. Pediatric Review, 25(6); 215-216. Southall, D.P.; Plunkett, M.C.; Banks, M.W.; Falkov, A.F.; Samuels, M.P. (1997). Covert video recordings of life-threatening child abuse: Lessons for child protection. Pediatrics, 100(5), 735-760. Stirling, J. (2007). Beyond Munchausen syndrome by proxy: Identification and treatment of child abuse in a medical setting. Pediatrics, 119(5): 1026-1030. n
About the Author Bruce Gross, PhD, JD, MBA, is a Fellow of the American College of Forensic Examiners and is an Executive Advisory Board member of the American Board of Forensic Examiners. Dr. Gross is also a Diplomate of the American Board of Forensic Examiners and the American Board of Psychological Specialties. He has been an ACFEI member since 1996 and is a also a Diplomate of the American Psychotherapy Association. Summer 2008 THE FORENSIC EXAMINER 57
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KEY WORDS: Bioterrorism, Clinical laboratory, Mass Casualty
LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1. Describe the history of biowarfare.
TARGET AUDIENCE: physicians, nurses, medical investigators
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3. Understand the role the clinical laboratory plays in assessing patients during a mass casualty.
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ABSTRACT History has recorded many natural epidemics. By World War I, scientists had established germ theory by studying natural epidemics and learned how to use this knowledge for biological sabotage. On September 11, 2001, the United States realized a terrorist attack that was followed by biological attacks. Since that time the United States has invested heavily in bioterrorism preparedness, however, the role of the clinical laboratory has been taken for granted in this preparation. Studies have demonstrated that without a functioning clinical laboratory, clinicians are relegated to providing first aid. Bioterrorism agents such as anthrax, plague, tularemia, brucellosis, and glanders all require intensive laboratory services for proper diagnosis and treatment. The laboratory’s resources are also crucial in preventing the spread of disease.
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4. The U.S. national stockpile of medical equipment and supplies can be delivered to any city within how many hours after attack? a. 8 hours. b. 12 hours. c. 16 hours. d. 24 hours. 5. What percentage of objective medical decisions are based on clinical laboratory data? a. 60-70%. b. 70-80%. c. 80-90%. d. 100%.
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CE Article: (ACFEI, ACCME, CABRN, CMI, CMI) CFN)11CE CEcredit creditfor forthis thisarticle article CE Article: (CERTIFIED MEDICAL INVESTIGATOR,
Assessing Patients During A Mass Casualty By Isaac D. Montoya, PhD
The Need for Clinical Laboratory Services
istory has recorded many natural epidemics. By World War I, scientists had established germ theory by studying natural epidemics and learned how to use this knowledge for biological sabotage. On September 11, 2001, the United States experienced a terrorist attack that was followed by biological attacks. Since that time the United States has invested heavily in bioterrorism preparedness, however, the role of the clinical laboratory has been taken for granted in this preparation. Studies have demonstrated that without a functioning clinical laboratory, clinicians are relegated to providing first aid. Bioterrorism agents such as anthrax, plague, tularemia, brucellosis, and glanders all require intensive laboratory services for proper diagnosis and treatment. The laboratoryâ&#x20AC;&#x2122;s resources are also crucial in preventing the spread of disease.
History Bioterrorism experts have long warned anyone who would listen that the United States is extremely vulnerable to attack by biological weapons. This warning was fully realized in the fall of 2001, as the World Trade Center and the Pentagon were attacked. Only a week after the terrorist attacks of September 11th, letters containing anthrax spores were mailed to journalist Tom Brokaw at NBC News in New York, the offices of the New York Post, and Senator Tom Daschleâ&#x20AC;&#x2122;s office in Washington, D.C. By the end of 2001, anthrax had infected 18 people, five of whom died of the inhaled form of the bacteria, and millions of Americans experienced anxiety as a result of the attacks. Historians have recorded many natural epidemics that are both frightening and threatening. Epidemics stemming from smallpox and plague are well known and also horrifying. Natural epidemics of such scourges as smallpox and plague are terrifying enough. These naturally occurring events are disastrous, in and of themselves; however, the fact that these diseases are used for warfare is maddening. The use of biological weapons is known to date back centuries, and the recent attacks show us how vulnerable we can be.
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A picture of the letter contaminated with anthrax sent to Tom Brokawâ&#x20AC;&#x2122;s office in 2001.
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Summer 2008 THE FORENSIC EXAMINER 61
During the fourteenth and fifteenth centuries, little was known about what caused disease. According to medieval medical lore, the stench of rotting human bodies transmitted disease. The use of rotting human bodies is one of the earliest known forms of biological warfare. The following well-documented cases illustrate this warfare (Archives): 1340 Attackers hurled dead horses and other animals by catapult at the castle of Thun L’Eveque in Hainault, in what is now northern France. The defenders reported that “the stink and the air were so abominable ... they could not long endure” and negotiated a truce.
Credit: Scott Camazine / Photo Researchers, Inc
By World War I, scientists understood how microbes such as bacteria and viruses transmit illness, and the germ theory of disease was well established. This knowledge was used by German scientists and military officials in a widespread campaign of biological terrorism. The Germans targeted livestock such as horses, mules, sheep, and cattle that were being shipped from neutral countries to the Allies. Their diseases of choice were glanders and anthrax, both well known to devastate populations of grazing animals resulting in natural epidemics. Simply by infecting a few animals through needle injection and pouring bacteria cultures on animal feed, the Germans hoped to spark devastating epidemics. As Germany engaged biological weapons in World War I, the Japanese used biowar-
fare on a mass scale prior to and throughout World War II. The Japanese biowarfare was directed against China, in an onslaught that was led by a notorious division of the Imperial Army named Unit 731. This unit occupied Manchuria, beginning in 1936, where Japanese scientists tested scores of human subjects on the lethality of various disease agents including anthrax, cholera, typhoid, and plague. As a result of this testing, as many as 10,000 people died. In October 1940, the Japanese military dropped paper bags filled with plague-infested fleas over the cities of Ningbo and Quzhou in the Zhejiang province. Other attacks by the Japanese involved contaminating water wells and distributing food that had been poisoned. During the apprehensive era of the Cold War, the Soviet Union and the United States reached new heights with their bioweapons programs. Extensive research efforts took place as both nations explored the use of hundreds of different bacteria, viruses, and biological toxins. And each country experimented with sophisticated ways in which to disperse these agents in fine-mist aerosols, to package them in bombs, and to launch these bombs on missiles. In the 1990s, the Soviet Union’s program began to collapse. As the collapse progressed, salaries declined dramatically, including those of the Soviet Union’s scientists. Capitalizing on this opportunity, Iraq recruited bioweapons experts to develop a sophisticated bioweapons program. By the time of the Gulf War cease-fire in 1991, Iraq had weaponized anthrax, botulinum toxin, and aflatoxin, and it had several other lethal agents in various stages of development (Archives). Inspectors from the U.N. Special Commission (UNSCOM) spent exasperating years chasing down evidence of the program, which Iraq repeatedly denied existed. The UNSCOM team found that Iraq’s stockpile included Scud missiles loaded to deliver disease. It is known that Iraq unleashed chemical weapons in the 1980s, both during the Iran-Iraq war and against rebellious Kurds in northern Iraq.
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1346 As Tartars launched a siege against Caffa, a port on the Crimean peninsula in the Black Sea, they suffered an outbreak of plague. Before abandoning their attack, they sent the infected bodies of their comrades over the walls of the city. Fleeing residents carried the disease to Italy, furthering the second major epidemic of “Black Death” in Europe. 1422 At Karlstein in Bohemia, attacking forces launched the decaying cadavers of men killed in battle over the castle walls. They also stockpiled animal manure in the hope of spreading illness. Yet the defense held fast, and the siege was abandoned after 5 months.
In 1984, Salmonella was sprinkled on salad bars throughout the county where Indian guru Bagwan Shree Rajneesh was living on a compound in rural Oregon. This supposedly was a trial run for an attack at a later date. The purpose of Rajneesh’s scheme was to sicken local citizens and thus prevent them from voting in an upcoming election. Unfortunately, the trial attack resulted in more than 750 cases of food poisoning and 45 hospitalizations. An investigation by the Centers for Disease Control and Prevention concluded that the outbreak was natural. Interestingly enough, it took a year after the investigation, and an independent police investigation, to discover the true source of the poisoning. The event in Oregon is considered the first bioterrorist act on American soil and almost went unnoticed; yet, a decade later another cult-initiated attack caused a flurry of media coverage and government response. It was 1995 when the apocalyptic religious sect Aum Shinrikyo released sarin gas in a Tokyo subway. This attack killed 12 commuters and injured thousands of others. Between 1993 and 1995, Aum Shinrikyo hired PhD bioweapons experts and tried as many as 10 times to spray Botulinum toxin and anthrax in downtown Tokyo. Attacks failed for two reasons: The cult did not sufficiently refine the particle size of its agents, and they were working with an avirulent strain of anthrax.
United States Preparedness Top U.S. government and public health officials have reported that in spite of an investment of $20 billion in bioterrorism preparedness since 2001, the country is still woefully unprepared to respond to a bioterrorism attack. Critics such as Irwin Redlener from the National Center for Disaster Preparedness at Columbia University contend that bioterrorism preparedness programs are not operated in an effective manner. Bioterrorism preparedness is the primary responsibility of the Department of Health and Human Services www.acfei.com
Credit: Arthur Friedlander Color-enhanced scanning electron micrograph shows splenic tissue from a monkey with inhalational anthrax; featured are rod-shaped bacilli (yellow) and an erythrocyte (red)
(DHHS). The departmentâ&#x20AC;&#x2122;s responsibilities include stocking antibiotics, sharing information among laboratories and hospitals, and assisting communities in responding to an emergency. This is an overwhelming responsibility even for the federal government. Although the government has made advances in addressing this responsibility, problems exist with some of these efforts. For example, a national stockpile of medical equipment and supplies has been amassed and can be delivered to any city within 12 hours of an attack. Unfortunately, once the cities receive the supplies, they have not developed the infrastructure to deliver these supplies to their citizens in a time frame that would save lives. Although the location and exact contents of the national stockpile are secret, DHHS reports that there is enough smallpox vaccine for every U.S. resident and enough antibiotics to treat 60 million people who might be exposed to the most viral form of anthrax.
The Clinical Laboratory The role of the clinical laboratory in bioterrorism has received no attention, yet the laboratory is a pivotal point in the preparedness strategy. In the event of an attack, and before supplies arrive, physicians and nurses will be faced with massive numbers (hundreds to thousands) of patients presenting with various symptoms that will require supportive therapy until each individualâ&#x20AC;&#x2122;s condition can be assessed for attack impact and for any co-occurring conditions. It is reasonable to expect exposed patients to experience vomiting, diarrhea, dehydration, and many other symptoms depending on the toxin they have been exposed to. Clinicians will require substantial laboratory work to appropriately sustain patients until it is known what toxic agents patients have been exposed to and until supplies from the federal government arrive. Laboratory tests such as electrolytes, basic chemistries (glucose, renal and liver function tests), complete blood counts, and microbiology cultures are minimal procedures needed to make objective medical decisions. (800) 423-9737
KRT PHOTOGRAPH BY MIKE STOCKER/ SOUTH FLORIDA SUNSENTINEL (December 21) MARGATE, FL -Broward County, Florida, technicians Mike Silvestri and Neil Colosi finish checking out a mail box on October 16, 2001, where a postal worker discovered a powdery substance. (FL) NC 2001 (Horiz) (gsb)
Summer 2008 THE FORENSIC EXAMINER 63
Without these tests, clinicians can only provide first aid. After treatment supplies arrive from the federal government, and patients are treated, these same basic tests will be required along with many other tests necessary to assess a patient’s complete condition and his or her potential infectivity. In addition, blood products such as plasma or packed cells may be required. Examining the critical elements in the bioterrorism response process, the question begs: Is the laboratory prepared to handle possibly thousands of requests in a 12- to 72-hour period? For example, will the laboratory have the staff to handle the tremendous volume that accompanies an attack of this magnitude? Will the laboratory have the equipment necessary to process the high volume to testing? Will the laboratory have the reagents and other supplies required for these analyses? What will treatment providers do if laboratory services are available for only a few patients? How will laboratory services be rationed? These are extremely important questions if patient lives are to be saved; yet, little to no attention has been paid to them. It is easy to envision the frustration and chaos that may result in hospitals and clinics if laboratory services are limited.
Clinical Laboratory Dependent Biological Agents Five of the common bioterror agents are discussed below, as is the critical role of the laboratory in diagnosing and treating these infections. ANTHRAX Anthrax is an acute infectious disease caused by the spore-forming bacterium Bacillus anthracis. Anthrax most commonly occurs in wild and domestic lower vertebrates (cattle, sheep, goats, camels, antelopes, and other herbivores), but it can also occur in humans when they are exposed to infected animals or tissue from infected animals. Anthrax infection can occur in three forms: cutaneous (skin), inhalation, and gastrointestinal. B. anthracis spores can live in the soil for many years, and humans can become infected with anthrax by handling products from infected animals or by inhaling anthrax spores from contaminated animal products. Eating undercooked meat from infected animals can also spread anthrax. Symptoms of the disease vary depending on how the disease was contracted, but symptoms usually occur within 7 days. Symptoms of the three forms include the following: 64 THE FORENSIC EXAMINER Summer 2008
Cutaneous: Most (about 95%) anthrax infections occur when the bacterium enters a cut or abrasion on the skin, such as when handling contaminated wool, hides, leather, or hair products (especially goat hair) of infected animals. Skin infection begins as a raised itchy bump that resembles an insect bite but within 1 to 2 days develops into a vesicle and then a painless ulcer, usually 1 to 3 cm in diameter, with a characteristic black necrotic (dying) area in the center. Lymph glands in the adjacent area may swell. About 20% of untreated cases of cutaneous anthrax will result in death. Deaths are rare with appropriate antimicrobial therapy. Inhalation: Initial symptoms may resemble a common cold. After several days, the symptoms may progress to severe breathing problems and shock. Inhalation anthrax is usually fatal. Intestinal: The intestinal disease form of anthrax may follow the consumption of contaminated meat and is characterized by an acute inflammation of the intestinal tract. Initial signs include nausea, loss of appetite, vomiting, and fever, followed by abdominal pain, vomiting of blood, and severe diarrhea. Intestinal anthrax results in death in 25% to 60% of cases. Diagnosis—Anthrax is diagnosed by isolating B. anthracis from the blood, skin lesions, or respiratory secretions or by measuring specific antibodies in the blood of persons with suspected cases. The isolation of the bacteria is done in the microbiology department of a clinical laboratory while the measurement of antibodies is done in the immunology department of a laboratory. Treatment—Clinicians will prescribe antibiotics that have been shown to be effective against B. anthracis by the clinical laboratory. To be effective, treatment should be initiated early. If left untreated, the disease can be fatal (Prevention, 2006). PLAGUE Fleas that become infected with the bacteria Yersinia pestis typically transmit plague. Fleas transmit the plague bacteria to humans and other mammals during the feeding process. Fleas may become infected by feeding on rodents, such as chipmunks, prairie dogs, ground squirrels, mice, and other mammals that are infected with the bacteria Yersinia pestis. The bacteria Yersinia pestis are maintained in the blood systems of rodents. Infected persons transmit Yersinia pestis by coughing plaguecontaining droplets into the air, which is then breathed by non-infected persons.
The typical sign of the most common form of human plague are swollen and very tender lymph glands, accompanied by pain. The swollen gland is called a “bubo” (hence the term “bubonic plague”). Bubonic plague should be suspected when a person develops a swollen gland, fever, chills, headache, extreme exhaustion, and has a history of possible exposure to infected rodents, rabbits, or fleas. A person usually becomes ill with bubonic plague 2 to 6 days after being infected. When bubonic plague is left untreated, plague bacteria invade the bloodstream. When plague bacteria multiply in the bloodstream, they spread rapidly throughout the body and cause a severe and often fatal condition. Infection of the lungs with the plague bacterium causes the pneumonic form of plague, a severe respiratory illness. The infected person may experience high fever, chills, cough, breathing difficulty, and expel bloody sputum. If plague patients are not given specific antibiotic therapy, the disease can progress rapidly to death. About 14% (1 in 7) of all plague cases in the United States are fatal. Diagnosis—Yersinia pestis must be isolated in the microbiology section of the clinical laboratory. Laboratory tests that should be done include blood cultures for plague bacteria and microscopic examination of the lymph gland, blood, and sputum samples. Treatment—A patient diagnosed with suspected plague should be hospitalized and medically isolated. Antibiotic treatment should begin as soon as possible after laboratory specimens are taken. Streptomycin is the antibiotic of choice. Gentamicin is used when streptomycin is not available. Tetracyclines and chloramphenicol are also effective. Persons who have been in close contact with a plague patient, particularly a patient with plague pneumonia, should be identified and evaluated. The U.S. Public Health Service requires that all cases of suspected plague be reported immediately to local and state health departments, and that CDC confirm the diagnosis. As required by the International Health Regulations, the CDC reports all U.S. plague cases to the World Health Organization (Prevention, 2006). TULAREMIA Tularemia is a potentially serious illness that occurs naturally in the United States. It is caused by the bacterium Francisella tularensis and is found in animals (especially rodents, rabbits, and hares). People can contract tularemia in many different ways. The most common include:
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• Being bitten by an infected tick, deerfly, or other insect. • Handling infected animal carcasses. • Eating or drinking contaminated food or water. • Breathing in the bacteria, F. tularensis. Symptoms of tularemia usually appear 3 to 5 days after exposure to the bacteria, but can take as long as 14 days. Tularemia may include these symptoms: • Sudden fever • Chill • Headaches • Diarrhea • Muscle aches • Joint pain • Dry cough • Progressive weakness Other symptoms of tularemia depend on how a person was exposed to the tularemia bacteria. These symptoms can include ulcers on the skin or mouth, swollen and painful lymph glands, swollen and painful eyes, and a sore throat. People can also catch pneumonia and develop chest pain, bloody sputum, trouble breathing, or even cessation of breathing. Tularemia is not known to be spread from person to person. People who have tularemia do not need to be isolated. People who have been exposed to the tularemia bacteria should be treated as soon as possible. The disease can be fatal if it is not treated with the right antibiotics. Diagnosis—Rapid diagnostic testing for tularemia is not widely available. Physicians who suspect inhalational tularemia in patients presenting with atypical pneumonia, pleuritis, and hilar lymphadenopathy should promptly collect specimens of respiratory secretions and blood and alert the laboratory to the need for special diagnostic and safety procedures. F. tularensis may be identified through direct examination of secretions, exudates, or biopsy specimens using Gram stains, direct fluorescent antibodies, or immunohistochemical stains. Microscopic demonstration of F. tularensis using fluorescent-labeled antibodies is a rapid diagnostic procedure performed in designated reference laboratories in the National Public Health Laboratory Network; test results can be available within several hours of receiving the specimens, if the laboratory is alerted and prepared. Growth of F. tularensis in culture is the definitive means of confirming the diagnosis of tularemia. It can be grown from pharyngeal washings, sputum specimens, and even fasting gastric aspirates in a high proportion of patients with inhalational tularemia. It is only occasionally isolated from blood. Treatment—The clinical laboratory will determine which antibiotics are best suited for the treatment (800) 423-9737
of tularemia. A vaccine for tularemia is under review by the Food and Drug Administration, but it is not currently available in the United States. Tularemia as a Weapon—Francisella tularensis is very infectious. A small number (10–50 or so organisms) can cause disease. If F. tularensis were used as a weapon, the bacteria would likely be made airborne for exposure by inhalation. People who inhale an infectious aerosol would generally experience severe respiratory illness, including life-threatening pneumonia and systemic infection, if they are not treated. The bacteria that cause tularemia occur widely in nature and could be isolated and grown in quantity in a laboratory, although manufacturing an effective aerosol weapon would require considerable sophistication (Prevention, 2006). BRUCELLOSIS Brucellosis is an infectious disease caused by the bacteria of the genus Brucella. These bacteria are primarily passed among animals, and they cause disease in many different vertebrates. Various Brucella species affect sheep, goats, cattle, deer, elk, pigs, dogs, and several other animals. Humans become infected by coming in contact with animals or animal products that are contaminated with these bacteria. In humans, brucellosis can cause a range of symptoms that are similar to the flu and may include fever, sweats, headaches, back pains, and physical weakness. Severe infections of the central nervous system or lining of the heart may occur. Brucellosis can also cause long-lasting or chronic symptoms that include recurrent fevers, joint pain, and fatigue. Humans are generally infected in one of three ways: eating or drinking something that is contaminated with Brucella, breathing in the organism (inhalation), or having the bacteria enter the body through skin wounds. The most common way to be infected is by eating or drinking contaminated milk products. When sheep, goats, cows, or camels are infected, their milk is contaminated with the bacteria. If the milk is not pasteurized, these bacteria can be transmitted to persons who drink the milk or eat cheeses made from it. Inhalation of Brucella organisms is not a common route of infection, but it can be a significant hazard for people in certain occupations, such as those working in laboratories where the organism is cultured. Inhalation is often responsible for a significant percentage of cases in abattoir (slaughterhouse) employees. Direct person-to-person spread of brucellosis is extremely rare. Mothers who are breast-feeding may transmit the infection to their infants. Sexual transmission has also been reported. For both sexual and breast-feeding transmission, if the infant or person at risk is treated for brucellosis, their risk of becoming infected will probably be eliminated within 3 days. Although uncommon, transmission may also occur via contaminated tissue transplantation.
s Neutrophil with Anthrax
s Smallpox
s Brucellosis
s Tularemia
s Brucella
s Scanning electron micrograph depicting a mass of Yersinia pestis bacteria (the cause of bubonic plague) in the foregut of the flea vector
Summer 2008 THE FORENSIC EXAMINER 65
Diagnosis—Brucellosis is diagnosed in a microbiology section of a clinical laboratory by finding Brucella organisms in samples of blood or bone marrow. Also, blood tests in the immunology section of the clinical laboratory can be done to detect antibodies against the bacteria. If this method is used, two blood samples should be collected 2 weeks apart. Treatment—Treatment can be difficult. Doctors can prescribe effective antibiotics as identified by the clinical laboratory. Usually, doxycycline and rifampin are used in combination for 6 weeks to prevent reoccurring infections. Depending on the timing of treatment and severity of illness, recovery may take a few weeks to several months. Mortality is low (less than 2%) and is usually associated with endocarditis (Prevention, 2006). GLANDERS Glanders is an infectious disease that is caused by the bacterium Burkholderia mallei. Glanders is primarily a disease affecting horses, but it also affects donkeys and mules and can be naturally contracted by goats, dogs, and cats. Human infection, although not seen in the United States since 1945, has occurred rarely and sporadically among laboratory workers as well as those in direct and prolonged contact with infected domestic animals. However, it is still commonly seen among domestic animals in Africa, Asia, the Middle East, and Central and South America. Burkholderia mallei is an organism that is associated with infections in laboratory workers, because so very few organisms are required to cause disease. The organism has been considered as a potential agent for both biological warfare and biological terrorism. Glanders is transmitted to humans by direct contact with infected animals. The bacteria enter the body through the skin and through mucosal surfaces of the eyes and nose. The sporadic cases that have been documented are in veterinarians, horse caretakers, and laboratorians. Along with animal exposure, cases of human-to-human transmission have been reported. These cases included two suggested cases of sexual transmission and several cases in family members who cared for the patients. There is no vaccine available for glanders. In countries where glanders is endemic in animals, prevention of the disease in humans involves identification and elimination of the infection in the animal population. The symptoms of glanders depend upon the route of infection with the organism. 66 THE FORENSIC EXAMINER Summer 2008
The types of infection include localized, pus-forming cutaneous infections, pulmonary infections, bloodstream infections, and chronic suppurative infections of the skin. Generalized symptoms of glanders include fever, muscle aches, chest pain, muscle tightness, and headache. Additional symptoms have included excessive tearing of the eyes, light sensitivity, and diarrhea. Localized infections: If there is a cut or scratch in the skin, a localized infection with ulceration will develop within 1 to 5 days at the site where the bacteria entered the body. Swollen lymph nodes may also be apparent. Infections involving the mucous membranes in the eyes, nose, and respiratory tract will cause increased mucus production from the affected sites. Pulmonary infections: In pulmonary infections, pneumonia, pulmonary abscesses, and pleural effusion can occur. Chest X-rays will show localized infection in the lobes of the lungs. Bloodstream infections: Glanders bloodstream infections are usually fatal within 7 to 10 days. Chronic infections: The chronic form of glanders involves multiple abscesses within the muscles of the arms and legs or in the spleen or liver. Diagnosis—The disease is diagnosed in the laboratory by isolating Burkholderia mallei from blood, sputum, urine, or skin lesions. Serologic assays are not available. Treatment—Because human cases of glanders are rare, there is limited information about antibiotic treatment of the organism in humans. Sulfadiazine has been found to be effective in experimental animals and in humans. Burkholderia mallei is usually sensitive to tetracyclines, ciprofloxacin, streptomycin, novobiocin, gentamicin, imipenem, ceftrazidime, and the sulfonamides. Resistance to chloramphenicol has been reported (Prevention, 2006).
Conclusion A report by the Lewin Group found that laboratory results influence 60% to 70% of objective medical decisions (Group, 2005). This is because the clinical laboratory serves as a bridge between the basic sciences and clinical care via the patient’s clinician. The selection, generation, and translation of biological activity into a meaningful form of basic information for diagnosis, prognosis, and management of patient care is critical. Emphasis must be placed on accuracy, precision, and specificity of laboratory results so that clinicians can assess and treat patients appropriately. In the event of a biological attack, multiple body systems are affected. For example, the circulatory system may experience abnormal bleeding while the respiratory system experiences stress. Very quickly these could lead to kidney and liver involvement resulting in a patient who is gravely ill and requires significant resources that are already in short supply. If the attack involves radiation, the issues remain the same. Multiple bodily systems are involved, and without laboratory data to provide accurate evaluations of system functioning (or damage), the clinician can do no more than provide first aid. A successful response to a bioterrorist attack hinges on sufficient clinical laboratory services being available and medications to treat the sustained injuries in an effort to treat and prevent the spread of infections.
References
Archives, T.N. (2006). America’s historical documents, U.S. Government. Group, T.L. (2005). The value of diagnostics: Innovation, adoption and diffusion into health care. Washington, D.C.: 209–212. Prevention, C.f.D.C.a. (2006). Division of Bacterial and Mycotic Diseases. n Earn CE Credit To earn CE credit, complete the exam for this article on page 59 or complete the exam online at www.acfei.com (select “Online CE”).
About the Author Isaac D. Montoya, PhD, CHS, CLS, CMC, is a clinical professor in the College of Pharmacy at the University of Houston. He is also a senior research scientist at Affiliated Systems, a health-care “think tank” located in Houston. Before his current position, Dr. Montoya served as Director of Clinical Laboratories at several major teaching hospitals.
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CE ARTICLE 4: BULLET TRAJECTORIES (pages 68-70) ATTENTION ACFEI MEMBERS: CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE
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LEARNING OBJECTIVES
KEY WORDS: Pythagora’s Theorem, trajectory, convergence
After studying this article, participants should be better able to do the following:
TARGET AUDIENCE: medical investigators, crime scene investigators
1. Correctly use the Pythagorean Theorem at shooting scenes. 2. Avoid making critical mistakes in calculating the position of the shooter in multiple gunshot scenes.
PROGRAM LEVEL: update DISCLOSURE: The authors have nothing to disclose.
3. Recognize that converging lines alone cannot establish the position of a shooter.
PREREQUISITES: none ABSTRACT Pythagora’s Theorem is the basis for establishing the area of origin in blood pattern analysis and is commonly used in shooting reconstruction for establishing bullet trajectories. In part, this method of triangulation works well in blood pattern analysis, because a specific blood pattern is created by a hemorrhaging event from a single source that casts spatter in directions away from the source point. By dissecting the central axis of the stains to find an area of convergence, and taking the arc sine of the ratio of representative stains, one may derive the degrees of the angle of incidence or impact. Converting that integer to its tangent and multiplying by the linear distance to the Area of Convergence allows one to ascertain the area of origin. The adjacent of the right triangle that is thereby created approximates the trajectory of the drop of blood that created the stain under consideration. By retracing the flight path of several stains, an area of origin can be fairly accurately isolated in three-dimensional space. The theorem works well for ascertaining the origin of blood patterns that are created as the result of a single event. However, in shooting reconstruction, there is no guarantee that the bullet holes at a scene were fired by a stationary shooter, hence, the establishment of an area of convergence based on Pythagora’s Theorem is unreliable without independent supporting evidence to establish the position of the shooter. Plainly put, trajectories calculated from bullet holes by using trigonometry alone may create false Areas of Convergence where the trajectories intersect in flight. Using Pythagora’s Theorem to calculate the area of origin from a false convergence would lead to an erroneous conclusion.
POST CE TEST QUESTIONS
(Answer the following questions after reading the article, pages 68-70)
1. What is the danger in using Pythagora’s Theorem alone to establish the position of the shooter in a multiple gunshot scene? a. Pythagora’s Theorem does not take into account the possibility that the lines may have converged by accident or coincidence. b. Pythagora’s Theorem generally can’t be used in shooting reconstructions. c. Shooting reconstructions and blood spatter reconstructions must be done by different experts. 2. What difference does it make if the shooter was moving as he was firing shots? a. It doesn’t make any difference since people bleeding may also move as they bleed and the calculations are done the same. b. If the lines converge, the Pythagora’s Theorem can still be used to calculate where the shooter was when he fired the shots. c. By shifting his position, the lines of fire may cross and give a false reading of where the shooter was when he fired. 3. If the shooter was standing in one place when he fired all the shots, could Pythagora’s Theorem be used to establish his position? a. Yes. b. No c. All of the above.
4. Without other evidence, is Pythagora’s Theorem enough to establish the position of the shooter? a. Yes b. No c. None of the above 5. What other evidence might help to establish the shooter’s position? a. Eyewitness testimony. b. Statistical probabilities. c. Averaging the results of the calculations for the area of origin. 6. If there is witness testimony or physical evidence to help establish the shooter’s position, could Pythagora’s Theorem be helpful in establishing the shooter’s position? a. Yes, it could help pin down a more specific area. b. Yes, if the theorem is applied by a qualified law enforcement agent. c. Yes, if it is calculated prior to asking witnesses to comment on the shooter’s position.
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Summer 2008 THE FORENSIC EXAMINER 67
CE Article: (ACFEI, CMI) 1INVESTIGATOR, CE credit for this article CE Article: (CERTIFIED MEDICAL CMI) 1 CE credit for this article
ythagora’s Theorem is the basis for establishing the area of origin in blood pattern analysis and is commonly used in shooting reconstruction for establishing bullet trajectories. In part, this method of triangulation works well in blood pattern analysis, because a specific blood pattern is created by a hemorrhaging event from a single source that casts spatter in directions away from the source point. By dissecting the central axis of the stains to find an area of convergence, and taking the arc sine of the ratio of representative stains, one may derive the degrees of the angle of incidence or impact. Converting that integer to its tangent and multiplying by the linear distance to the Area of Convergence allows one to ascertain the area of origin. The adjacent of the right triangle that is thereby created approximates the trajectory of the drop of blood that created the stain under consideration. By retracing the flight path of several stains, an area of origin can be fairly accurately isolated in three-dimensional space. The theorem works well for ascertaining the origin of blood patterns that are created as the result of a single event. However, in shooting reconstruction, there is no guarantee that the bullet holes at a scene were fired by a stationary shooter, hence, the establishment of an area of convergence based on the Pythagora’s Theorem is unreliable without independent supporting evidence to establish the position of the shooter. Plainly put, trajectories calculated from bullet holes by using trigonometry alone may create false Areas of Convergence where the trajectories intersect in flight. Using Pythagora’s Theorem to calculate the area of origin from a false convergence would lead to an erroneous conclusion.
Establishing a Linear Trajectory from a Single Bullet Hole Diagram 1, below, illustrates a correct use of trigonometry in calculating the angle of the trajectory of a single bullet at a shooting scene. In this case, a shooter standing in front of the chair in a motel room fires a single shot that strikes the south wall in the bedroom just past the open door. The bullet strikes the wallboard and leaves a clean 2 x 3 mm elliptical hole. Dividing the width by the length of the hole, 2/3, would give a ratio of 0.66, of which the arc sine is 41.8 or 42 degrees out from the plane of the wall. Tracing back from the hole in the wall in the bedroom will establish a linear (nonricocheting) trajectory that leads to the chair in the seating room. The bullet, however, could have been fired anywhere along that trajectory line. Suppose that, in this instance, the first two feet from the wall may be ruled out as the shooter’s position due to a lack of gunshot residue. The area behind the chair could be ruled out as inaccessible or inconveniently accessible. Most probably, the shot would then 68 THE FORENSIC EXAMINER Summer 2008
have been fired in an area between the chair and the bedroom doorway. More evidence is needed to establish a more specific area. If the bullet hole in the wall is low, using Pythagora’s Theorem—based on an imaginary adjacent side of a right angle suspended in space at the height of the hole—may help in approximating the position of the firearm when it was discharged. It would be based on the height of the hand of an average person holding a gun, but it cannot be established with any degree of certainty.
Establishing an Area of Origin Using Theorem and Corroborating Evidence The reconstruction becomes more complicated when there are multiple bullet holes. If there is no direct or other evidence to establish an area of convergence, it may not be possible to do so. Suppose that in Diagram 2 we have witnesses who say that the shooter fired from two positions, P1 and P2. By making calculations from the bullet holes in the seating room and the bedroom, the
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area of convergence for each burst pattern can be determined and the areas of origin estimated. The angles are calculated to be approximately 15, 20, and 30 degrees and form an area of convergence just inside the entrance door to the room. When the angles are strung and the area of convergence established, the height of the weapon may even be estimated with relative accuracy. The same calculations can be made from the bullet holes in the north and east walls of the bedroom, and the area of convergence can be established there as well. What has to be noted, however, is that the area of convergence is not ascertained by the trigonometric calculation of the trajectories alone. The calculations of the angles of impact established only the linear trajectory, a line along which a bullet traveled for an undetermined distance. The witness testimony established that the points at which the trajectories crossed were the two positions of the shooter. From there, the Pythagoraâ&#x20AC;&#x2122;s Theorem can be used to calculate an area of origin. The mistake to be made in calculating the area of origin is in assuming that the area where the bullet trajectories converge establishes a de facto area of convergence as is done in blood pattern analysis. In fact, without corroborating or otherwise confirming supportive information, neither the area of convergence nor the origin can be ascertained.
MCT photo by Terrence Antonio James
Multiple Bullet Hole Scenes with Crossing Trajectories It helps to illustrate the point by using an example of non-converging trajectories that cross each other and give a false reading of an area of convergence. In this scene (see Diagram 3), the shooter moves and fires from five different positions. The first shot is fired from the doorway leading into the seating room. The second shot is from a foot or two to the shooterâ&#x20AC;&#x2122;s left and slightly forward of the first position. The third shot is fired from a foot or two further to the shooterâ&#x20AC;&#x2122;s left and slightly forward of the second position. Clearly, the shots cannot be traced (800) 423-9737
Summer 2008 THE FORENSIC EXAMINER 69
P1
back to a single firing position, because the shooter was moving laterally and forward. Yet if the reconstructor used Pythagora’s Theorem to calculate the point of origin at the false area of convergence, the reconstruction would seem plausible, perhaps even convincing, but it would not be accurate. The same scenario is repeated in the bedroom with two shots fired from positions in line with each other. P4, FC, P2, FCA, P5, P3, P1
Conclusion Although Pythagora’s Theorem is fundamental to blood pattern analysis in which several stains may be created by a single source in a blood-letting event, its use in shooting reconstruction is limited, because the shots that created the bullet holes may have been fired from different positions that created trajectories that cross by mere coincidence. Therefore, any time an area of convergence is established by the use of the blood pattern formulas, there must be independent corroborating evidence to support the trigonometric finding before it can be considered reliable. n
s Diagram 1. Single bullet hole trajectory from chair to bedroom wall.
s Diagram 2. Multiple bullet holes with trajectory areas of convergence established by independent corroborating evidence.
Earn CE Credit To earn CE credit, complete the exam for this article on page 67 or complete the exam online at www.acfei.com (select “Online CE”).
About the Author
P1 P5 FC
P2 P3
P4
s Diagram 3. Multiple bullet holes with crossing directories.
70 THE FORENSIC EXAMINER Summer 2008
Louis L. Akin, LPI, is an ACFEI Certified Medical Investigator, TCDIA Certified Criminal Defense Investigator, crime scene reconstructionist, and magazine editor in Austin, Texas with 25 years experience in investigations. He engineered the Crime Scene Command blood pattern and bullet trajectory analysis software produced by On Scene Forensics. He has written articles for The Forensic Examiner in the past.
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CE ARTICLE 5: A Tale of Two Countries (pages 72-78) ATTENTION ACFEI MEMBERS: CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE
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After studying this article, participants should be better able to do the following:
KEY WORDS: red-collar crime(s), white-collar crime(s), fraud, motive, detection, homicide, murder, Perri's Red-Collar Matrix
1. Understand that a difference between the method of fraud-detection homicide in the United States and the former Soviet Republics exists.
TARGET AUDIENCE: forensic accountants
LEARNING OBJECTIVES
2. Consider that contract killings may explain why no suspects are arrested in the foreign homicides versus the United States homicides. 3. Consider forensic accountants and examiners as members of a homicide investigation team.
PROGRAM LEVEL: update DISCLOSURE: The authors have nothing to disclose. PREREQUISITES: none
ABSTRACT This study examines whether there is a behavioral difference between fraud detection homicides as they occur in the United States versus similar cases in the former Soviet Republic. The descriptive data and the literature reviewed by the authors suggest that the evidence trail the red-collar criminal leaves behind in the United States enables law enforcement to successfully prosecute defendants either when the red collar criminal performs the killing themselves or when they hire a “hit man” to do the killing for them. In contrast to the cases of the former Soviet Republics, the evidence trail does not necessarily lead law enforcement to potential suspects for a particular reason. The descriptive data of the murders from the former Soviet Republic strongly suggest efficient contract killings which conceal who the killers are, who ordered the killing and reveals little in terms of incriminating evidence. The murder cases presented herein can be found in the first article that laid the foundation for the concept of fraud detection homicide which was featured in the Winter 2007 edition of the Forensic Examiner. The authors are pleased to include new fraud detection homicide cases in addition to the ones that were illustrated in the Red Collar Crime Matrix. Although the number of former Soviet Republic fraud detection homicide cases are not as numerous due to the difficulty in finding such unique cases from this region, the sharp contrast to the American murders in terms of holding individuals responsible for their crimes is remarkable.
POST CE TEST QUESTIONS
(Answer the following questions after reading the article, pages 72-78
International Fraud Detection Homicide Questions 1. Red-collar criminals are: a. Non-violent b. Violent c. a & b d. None of the above
4. In which case was the victim a bank teller? a. Burnett b. Petrick c. Kozlov d. Bernal 5. In which American murder was there a contract killing. a. Johnson b. Farraj c. a & b d. None
2. Murder for hire red-collar criminals are more apt to: a. Be found guilty at a trial b. Give statements to the police c. Avoid detection d. Provide the weapon to commit murder
6. Many of the victims in the former Soviet Union are a. Accountants b. Doctors c. Neither a nor b d. Government Officials
3. Klebnikov was a a. Doctor b. Lawyer c. a & b d. Reporter
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Summer 2008 THE FORENSIC EXAMINER 71
CE Article: (ACFEI, CFC, CMI) 1 CE credit CMI) for this article CE Article: (CERTIFIED MEDICAL INVESTIGATOR, 1 CE credit for this article
A Tale of Two Countries:
International Fraud-Detection Homicide By: Frank S. Perri and Terrance G. Lichtenwald
I
n contrasting the American murders with the former Soviet Republic murders, a strong inference can be made from the facts that these foreign murders were committed solely on a contract basis, also known as murder-for-hire. The former Soviet Republic murderers had the markings of skilled professionals who were capable of avoiding detection by developing and executing a quality murder plan with surgical precision. It is not a coincidence that such murders go unsolved. In contrast, the American murders had the traits of incompetence and carelessness in terms of when red-collar criminals performed the murders themselves and when the criminals attempted to remove themselves from the killing by hiring someone to do the killing. Although the method of killing the victim differs when comparing the American murders to the former Soviet Republic murders, all had fraud detection as the motive to kill (Perri & Lichtenwald, 2007). However, what is interesting to examine is what accounts for the behavioral distinctions between these groups of red-collar criminals. We will first examine American cases to see if there is a behavioral pattern that develops supporting the authorsâ&#x20AC;&#x2122; position that the red collar criminalsâ&#x20AC;&#x2122; psychopathic tendencies actually inhibit their ability to successfully carry out a homicide without being caught and prosecuted. Fortunately, red-collar criminalsâ&#x20AC;&#x2122; psychopathic traits contribute to their inability to successfully transfer their white collar-crime skill set into competent violent criminals (Perri & Lichtenwald, 2007). 72 THE FORENSIC EXAMINER Summer 2008
However, it is important to understand that their incompetence is not the result of being mentally ill in the sense that they experience delusions, hallucinations, or intense distress that characterizes most other mental disorders. They are rational and aware of what they are doing and why. Yet, because of their psychopathic natures, red-collar criminals have behavioral deficiencies (i.e., grandiosity and egocentricity) hindering their ability to foresee the consequences of their behavior. We can observe from the homicide case facts how narcissistic immunity is illustrated at a crime scene by the amount of evidence that is left behind that points to the red-collar criminal as the primary suspect and also by the statements they make that are incriminating. Their egocentric nature and poor behavioral controls, coupled with poor planning abilities, produce an overconfident perception of their ability to avoid detection by not bothering to conceal incriminating evidence (Perri & Lichtenwald, 2007). Keep in mind
that the evidence that is left behind is not just the physical evidence that is tangible to our senses, but also includes incriminating evidence of fraud that pre-dated the murder. As we shall discuss later in the article, it may be imperative to include forensic accountants as members of a homicide investigation team.
AMERICAN RED-COLLAR CRIME CASES The Edward Leak Case The case of Edward Leak involves a police officer committing white-collar crimes that turned violent. Leak was a Chicago officer who worked part time in the family funeral home business, where he was known to have fraudulently embezzled more than $400,000 (Main, 2005). It was thought that the victim, Fred Hamilton, who worked at the business, was a co-conspirator with Leak. After the discovery of the fraud by the accountant, Hamilton was terminated. The company
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vent the disclosure of the fraud that was perpetrated on the family business (Parker, 2007).
The Fredric Tokars Case
apparently pursued fraud charges against Hamilton, but not Leak. In order to buy Hamilton’s silence, Leak showered Hamilton with five luxury vehicles, along with jewelry and furs for Hamilton’s girlfriend (Main). Hamilton, however, anonymously called the police disclosing Leak’s fraud. The police eventually discovered that it was Hamilton who made the call, and when Leak found out about the disclosure, he began to threaten Hamilton’s life. Leak hired two hit men, Alfred Marley and John Brown, to silence Hamilton. Eleven days before the murder, Leak used his police computer to run the license plate of Hamilton’s Jeep. Over a span of 5 weeks before the murder, Leak had spoken to Brown about 600 times on his cell phone. Initially, Leak denied knowing Brown until he was confronted with the phone records that showed that he had called Brown on numerous occasions. In fact, cell phone tower records show that Leak’s phone was in use near the shooting (Ahmed, 2007). (800) 423-9737
Before killing Hamilton, Brown and Marley went to Hamilton’s home and punctured the tires of his Jeep so that he could not drive away. After the tow truck arrived, John Brown chased Hamilton around the Jeep wearing a ski mask and shot him. Marley then approached Hamilton as he lay on the ground, and while standing over him, he fired two more bullets. Hamilton had been shot nine times. The two killers were apprehended, as well as the weapon and ski mask. The cell phone that the killers used to coordinate the murder with Leak was also recovered. Marley pleaded guilty to the murder in exchange for a reduced sentence coupled with testifying against the other defendants. Interestingly, Brown and Marley were not paid up front for the killing. In fact, they were not paid at all. It was unclear how much Marley was promised, but Brown was to receive $1,500 when the job was completed (Ataiyero, 2007). The prosecution indicated that Leak’s motive for the killing was to pre-
Fredric Tokars, a former Atlanta prosecutor and prominent criminal defense attorney, was found guilty of murdering his wife in a murder-for-hire scheme in April 1994. In the process of going through her husband’s office, she discovered documents that indicated that he was involved in money laundering and tax evasion activities. In fact, Tokars had a booklet that detailed plans for money laundering drug money together with tax evasion advice. After detecting that his wife, Sara, was rifling through his business affairs, he told a woman with whom he was having an affair that Sara “knows too much. … I’m going to have to have her taken care of ” (McDonald, 1998). In fact one of the prosecutors had stated that Sara could have destroyed Fredric because of the fraud she had discovered. Sara, he went on to state, posed a threat to him and would have made a valuable witness for the government. As the prosecutor later stated, “Sara was a ticking time bomb” (McDonald). The issue for Sara was that she did not fully comprehend what she had found. She did not realize that the information that she had uncovered could make her husband not merely a suspect, but a defendant in a federal grand jury investigation involving narcotics trafficking and fraud offenses. Once Fredric learned that Sara knew of his fraudulent business activities, in 1992, Fredric contacted one his criminal associates, Eddie Lawrence, and contracted to have his wife killed for $25,000. Lawrence, however, did not have the nerve to kill Sara, so Fredric in turn hired a street thug, Curtis Rower, to do the killing for $5,000. Lawrence did mention to Fredric that his two boys would be without a mother and Fredric’s response was, “They’ll be all right. … They’re young, they’ll get over it” (McDonald, 1998). After coming home from a Thanksgiving vacation in Florida, Sara was confronted by Rower, who was armed with a sawed-off shotgun. The two boys were in the back seat of the car. Rower put the barrel of the shotgun about a foot away from Sara’s head and pulled the trigger. Afterwards Rower bragged to people in his neighborhood of the kill. What Fredric did not know was that, although Sara was dead, she had already taken documents tying Fredric to fraud and had them safely hidden in the event anything should happen to her, so that the individuals who knew of the documents could bring them to light. Summer 2008 THE FORENSIC EXAMINER 73
The Michael Burnett Case
Although none of the former Soviet Republic cases have held anyone responsible for the murder, one case that has produced defendants is the Andrei Kozlov case. Andrei Kozlov was the Deputy Chairman of the Russian Central Bank back in the early 2000s. He played a leading role in efforts to stamp out white-collar crime, such as fraud and money laundering in Russian Banks. As he stated in the earlier part of this century in regards to his duties of rooting out fraud, “I am being observed very closely and very seriously right now” (Chazan, 2006). Andrei was not exaggerating or being paranoid. While playing soccer in one of Moscow’s public areas with his colleagues, an unknown gunman shot both Kozlov and his driver to death. The murder is widely seen as connected to Kozlov’s efforts to investigate and close down banks involved in money laundering. To date, Alexei Frenkel, the head of a private bank in Moscow, has been charged with, but not yet convicted for, the murder of
Kozlov. Frenkel is accused of hiring gunmen to kill Kozlov to silence his fraud detection and prevention duties. As a government official in charge of rooting out fraud in the banking system, Kozlov ordered that one of Frenkel’s banks be closed because of the bank’s fraudulent behavior. Prosecutors insist they have solved the murder case with the arrest of Frenkel, the CEO of VIP-Bank, which was shut down by Kozlov. According to investigators at the general prosecutor’s office, because Frenkel had no contacts within criminal circles, the banker asked an acquaintance, Liana Askerova, to organize a hit on Kozlov. Askerova, who met Frenkel when he patronized her restaurant, is said to have mentioned her ties to prominent underworld figures in Frenkel’s presence more than once. Aiding Ms. Askerova in organizing the murder of Kozlov was her business partner, a Ukrainian businessman named Boris Shafray. It was he who found, according to investigators, a middleman from the Ukraine named Bogdan Pogorzhevsky, who is known among the town’s criminal elements as “Bonya.” Law enforcement officials think that Askerova’s criminal “authorities” with whom she was in contact turned out to be a far cry from Godfather-style gangsters, and she failed to secure the services of any professionals for Frenkel’s job (Sergeev, 2007). After negotiations, it was decided that the killing of Kozlov was worth only $10,000; half of that sum went to Pogorzhevsky himself, while the other half was used to buy two pistols and to hire the killers, unregistered Ukrainian cab drivers Alexei Polovinkin, Maxim Proglyad, and Alexander Belokopytov (Sergeev). Detectives believe that the stinginess of the organizers and the killers’ unprofessionalism played a large role in the quick unraveling of the case. The killers set out to murder Andrei Kozlov in a car belonging to Alexander Belokopytov, which they tried to drive straight into the parking lot of the Spartak sports complex where the Central Bank deputy was playing soccer. Guards at the gate refused to let the three men through, and one of the guards wrote down the license plate number of the suspicious vehicle. One of the killers contacted the police voluntarily because they were being followed after they demanded payment from the intermediary. All three suspects are cooperating with the investigation. They have described their roles in the crimes and explained how they prepared to carry them out. The information they have provided has been confirmed by forensics experts working at the sports complex. The sus-
74 THE FORENSIC EXAMINER Summer 2008
For more than 40 years, Michael Burnett was a confidence man, stock swindler, and a suspected murderer. At times he was the criminal, and at times he was an informant for the authorities disclosing corrupt elected officials and those who embezzled millions. In 1993, he and a female bank teller, Ms. Vassell, were co-conspirators in a bank fraud scheme. After the authorities had detected the fraud scheme, Vassell agreed to testify as a witness against Burnett (Fried, 1996). According to prosecutors, while imprisoned in the Brooklyn House of Detention, Burnett had planned a $100,000 murder scheme to kill Vassell (Sexton, 1995). He used his attorney, Howard Krantz of Manhattan, as an intermediary in organizing the contract killing (Sexton). On the evening of January 14, 1994, two of the recruits forced their way into Vassell’s apartment and shot her as she sat down to dinner with her family. In this case, Burnett, Krantz, and the other two coconspirators were found guilty of murder. Other forensic evidence that was collected and used against these killers included shoe print evidence, DNA, incriminating statements made by the defendant(s) or other witnesses, the murder weapon, fingerprints, blood-splatter evidence, and eye-witness evidence.
FORMER SOVIET REPUBLIC RED-COLLAR CRIME CASES The Kozlov Case
pects admitted to working for hire and have confessed to their parts in the killings. Ultimately, Askerova gave herself away: Upon learning of Mr. Shafray’s arrest, she became nervous and began to look for a lawyer for him, which brought her to the attention of the police. She was put under surveillance and her phone was tapped, and it became clear to investigators that she was the last intermediary, the one who would lead police to the person who had ordered the killing. During questioning, Askerova was told that her accomplice, Boris Shafray, had betrayed her in a confession, a tactic that convinced her to give up Alexei Frenkel to the police.
The Klebnikov Case The victim, journalist Paul Klebnikov, was known to expose fraud in government. At the time of his death, he was thought to be investigating a complex money laundering fraud scheme involving Chechen reconstruction projects. The investigation appears to reveal that Klebnikov had discovered that the fraud reached deep into the centers of power in the Kremlin, elements involving organized crime, and also the former KGB, which is now known as the FSB (Weiss, 2007). He was gunned down outside of his apartment. As stated by Russian prosecutors in the Klebnikov case, the killing was “carefully planned” (Yasman, 2004). Two Chechens were put on trial, but they were found not guilty. However, the prosecution has appealed the case, and it is set for retrial. Interestingly, the Russian authorities had stated that Paul’s death was ordered by Khozh-Akhmed Nukhaev, a Chechen separatist leader and an organized crime boss (Weiss, 2007). When journalist Don Bolles was murdered for investigating and detecting land fraud schemes in Arizona, his death created what is known as the Arizona Project, which carried on Bolles’ work and assisted in investigating the murder. Unfortunately, the Russian authorities resent having any private pressure applied in the Klebnikov case.
Analysis of International Red-Collar Criminal Behavioral Distinctions The American cases are illustrative of true psychopathic behavior that reinforces what forensic psychologists observe and the narcissistic immunity the criminals harbor. The defendants could not understand how they were being perceived by others by the statements they made, incriminating physical evidence left behind, and how their own behavior could be used against him. There is a disconnect bewww.acfei.com
tween their version of reality and what actually occurred. Psychopaths perceive themselves to be highly intelligent, exceptional criminals even though all they did was take advantage of someone perceived as weak. For example, we can see the overlap of psychopathic and narcissistic tendencies in some of the red-collar criminals. Initially Edward Leak denied knowing the killers, but later he recanted his statement when the police confronted him with the hundreds of calls that were made between him and the killers. We can see how the incriminating statements red-collar criminals make and the evidence they leave behind exposes them as suspects. The other American cases that have been previously represented in the Perri Red-Collar Matrix had this same behavioral overlap that exposed the red-collar criminal’s intentions and incompetence (Perri & Lichtenwald). American red-collar criminals also use the services of amateur contract killers to silence the victim who detected their fraud schemes and may be in a position to testify against them in a court of law. Murder for hire, also known as contract killing, appeals to these criminals because of the belief that it somehow offers an airtight alibi for the person who takes out the contract at the time of the killing. What is interesting about the American murder-for-hire cases is that the incompetence is not limited to the hit man but to the red-collar criminals doing the hiring, because they decide to hire cheap amateurs instead of a professional hit men. We say “hit man” because the great majority of contract killers are men (Black et al., 2000). Moreover, because psychopaths have an intense need to control, they often hire someone they can micromanage instead of hiring professionals and actually producing a buffer between themselves and the murder. The amount of money they pay for the contract is small, but it may appear quite attractive to people who are “down on their luck.” For example, in the Edward Leak case, Brown was promised $1,500. In the Tokars case, Curtis Rower was promised $5,000. What is interesting is that there was no upfront payment to these amateurs including the killers in the Michael Burnett case. Furthermore, the American red-collar criminals who contract-kill parallel the findings of amateurs in general, by hiring the wrong people who talk to too many people exposing their criminal acts (Black, 2000). For example, in the Tokars case, the actual killer bragged about his kill to acquaintances who revealed the killer’s account of the kill(800) 423-9737
ing to the police (McDonald, 1998). In the Edward Leak case, one of the killers confessed and later testified against Leak. The anecdotal evidence suggests that the red-collar criminals in the former Soviet Republics are willing to leave the killing to others so that there are enough buffers to shield them from being accused of murder. These red-collar criminals are motivated to kill for the same reasons as the American killers, but the difference appears to rest in the fact that professionals are more likely used to kill in the former Soviet Republics and not amateurs. In the Kozlov murder, it will be interesting to observe whether the criminal justice system is willing to hold Alexei Frenkel responsible for the murder, when he allegedly attempted to establish buffers between the murder and its traceability to him. It is not coincidental, in the authors’ opinion, that some of the same dynamics of amateurish contract killings in the Kozlov case parallel the case dynamics in the American contract killings. This parallel would explain why the former Soviet Republic law enforcement officers were able to find and charge suspects they believed were responsible for the murder. The former Soviet Republic murderers also go beyond silencing the victim who detected their fraud. The murders were committed in such a way as to send a message to other potential victims who are in a position to detect and reveal fraud. As stated, the Kozlov murder was committed in public in front of the victim’s peers who worked with him in investigating bank fraud. Except for the Adamson and Dunlap cases, this trait is not evident in the American murders, where the killers want to silence the victim in a private setting. Moreover, there was nothing in the review of the facts of the American murders that indicated that the killer wanted to send a message to others. It appears that individuals are targeted because of the red-collar criminals’ perception that their fraud has been detected by a particular individual and the threat of fraud disclosure by their victim is a possibility. The red-collar criminal kills as a solution to a perceived problem only if a perceived problem arises. The American redcollar criminal does not kill indiscriminately for the sake of killing or to send a message to anyone else. Along with sending a message to others, in some cases, the red-collar criminals from the former Soviet Republic purposely left behind key forensic evidence to make it clear that the death was not an accident nor some innocuous random act.
The Death of Enron Executive Clifford Baxter The fall of Enron probably stands out as one of the quintessential cases of corporate debauchery. Not only was the level of fraud incomprehensible, but the level of devastation to workers, families, and investors was immeasurable. To date, some of the defendants have been found or pleaded guilty, such as Jeffrey Skilling (CEO), Andrew Fastow (CFO), and Kenneth Lay. However, one of the unresolved aspects of the Enron story is the mysterious death of Cliff Baxter, a former top Enron executive. Baxter was probably one of the few top executives at Enron who knew about the accounting scandal and actually vocalized his criticisms of Enron’s accounting methodologies. As corporate whistle-blower Sherron Watkins commented about Baxter: “Cliff Baxter complained mightily to [then-Enron President and CEO Jeff ] Skilling and all who would listen about the inappropriateness of our [accounting] transactions” (Chernoff, 2002). Baxter was quoted as stating: “He’s [Fastow] a goddamn master criminal” (McLean & Elkind, 2003). Baxter resigned from Enron after he refused to take part in Enron’s shady financial practices (Carreon, a, n.d.). So powerful was Enron with its political connections that there was belief in certain circles that Baxter was murdered—the target of a carefully staged hit aimed at silencing Baxter from disclosing Enron’s fraud. There is even the belief that the Sugar Land Police Department is under suspicion due to the way Baxter’s death was quickly labeled a suicide and the mismanagement of the crime scene (Hopsicker, 2002). Baxter agreed to testify before Congress and provide documents in the Enron case even though he was not a target in the investigation (CBS, 2002). Baxter expressed concern about his personal safety, and a former business associate of Baxter encouraged him to get a body guard the day before Baxter’s death (Irvine, 2002). In fact, the day before his death, his lawyer was negotiating with a congressional committee as to what Baxter could expect in return for his testimony about employees at Enron. Unfortunately, on January 25, 2002, Baxter was found in his car, shot dead, with a sleep aid known as Ambien in his system. The police claim to have found a suicide note, but the contents of the note were never disclosed until there was a protest over its secrecy. Baxter allegedly stated: Summer 2008 THE FORENSIC EXAMINER 75
I am sorry for this. I feel I just can’t go on. I have always tried to do the right thing but where there was once great pride now is gone. I love you and the children so much. I just can’t be any good to you or myself. The pain is overwhelming. Please try to forgive me. Cliff (McLean & Elkind, 2003) Police were criticized for calling it a suicide before an investigation in spite of the fact that there was the strong motive for homicide. Police did not know what caliber of gun was involved, the make of the car, or whether a bullet had been found, yet they concluded foul play was not involved before investigating. The Sugar Land Police spokesperson, Patricia Whitty, did say, “Trust us. We’re really, really sure that he took his own life” (Hopsicker, 2002). The judge overseeing Baxter’s death would not order an autopsy until there was public pressure to do so. The authors agree with the other experts who believe that the circumstantial evidence points to murder as a possible cause of death. It is highly probable that the death of Baxter is a classic fraud-detection homicide with a “professional hit” to silence Baxter before he “divulged incriminating information to a congressional committee investigating the Enron scandal and in which he was due to testify” (Carreon, b, n.d.). To support the authors’ position, former homicide detective William Wagner stated, “Murder can be made to look like a suicide ... someone who is knowledgeable about forensics can very well have the ability to stage a murder, commit a murder and stage it to look as if it was a suicide” (CBS, 2002). The criticism from experts of how the Baxter death was handled is not without justification. For example, the ammunition used did not consist of bullets, but instead what is known as “rat shot.” Rat shot consists of small pellets used to kill rats, rodents, etc. This kind of ammunition cannot easily or readily be traced back to the gun in which it was fired. It is extremely difficult, if not impossible, to make a comparison between the markings left on “rat shot” and the gun that it may have been fired from. Furthermore, if the police did find rat shot in Baxter’s home, they are unwilling to talk about it. Moreover, the spread of the rat shot on Baxter indicates that the gun would have had to have been fired from a distance of about two feet from his head (Martin, n.d.). The gun technician indicated that as a rule of thumb, pellet shot fired from a .38 caliber gun revolver is one inch of spread for one
foot of distance from the target. Why would a person killing himself not put the barrel of the gun against his head, as opposed to risking suicidal failure by holding the gun out two feet from the head? Independent coroner Cyril Wecht was interviewed by CBS, where he stated the gun used is not “something that a person is likely to have and use if they intend to kill themselves” (CBS, 2002). One of the interesting aspects of the case that, although subtle, may have been overlooked by those investigating a possible motive is the type of ammunition that Baxter allegedly used to kill himself. “Rat shot” may not only have something to do with what killed Baxter but also why he was killed with rat shot. Being called a “rat” in common street language refers to someone that is snitching on someone else by disclosing their illicit behavior. The authors find it highly unusual that an executive would have chosen this type of ammunition to kill himself, when there were other types of ammunition that would have assured that the suicide would have been successful. Furthermore, the police narrative is vague, and there does not appear to be a timeline of the events that took place through the course of the investigation. Without a timeline, it is difficult to understand how the events unfolded. The authors were not able to find any evidence that law enforcement ever spoke to the higher echelon at Enron concerning Baxter, or whether or not there was any merit to Baxter’s belief that fraud occurred at Enron.
76 THE FORENSIC EXAMINER Summer 2008
The Crucial Role of Forensic Investigators in Uncovering Motive The authors recommend that forensic accountants or fraud investigators be considered part of a homicide investigation team if the evidence infers that fraud detection may have been the motive for the murder. Many of the murders reveal little in terms of motive until the evidence exposes an underlying fraud scheme that pre-dated the murder. However, in many cases, the uncovering of a fraud scheme was not the result of an intentional investigation, but of an inadvertent discovery. Although other types of physical evidence may assist in developing possible suspects, these examiners may be in a unique position to uncover a motive that the physical evidence does not reveal. Furthermore, by uncovering fraudulent behavior that predated the murder, forensic examiners may be able to narrow the potential field of suspects that other evidence is not capable of doing.
This aspect may be particularly true if the red-collar criminals’ narcissistic qualities do not allow them to perceive that their fraud might be discovered. However, an important aspect of the case can be lost if fraud detection is not considered a risk factor because investigators are not aware of its implications to a case. But it not just the fraud exposure that the forensic examiner would capitalize on, it is exposing the demeanor and pathological lying of the suspect as he or she is placed in a position of conflict with known fraud facts when confronted during an interview (Perri & Lichtenwald, 2007). However, being a fraud investigator may have its own set of risks, especially if one is a fraud investigator in the former Soviet Republic. On September 27, 2007, a top Russian fraud investigator was shot dead, in an apparent contract killing, as he walked out of a restaurant in Moscow (AFT, 2007). Nazim Kaziakhmedov was shot twice in the chest and once in the head by an attacker dressed in black and wearing a baseball cap. Kaziakhmedov was working as a member of a newly formed investigative committee of the Russian prosecutor’s office on an important fraud case involving an investment group. Although motive is not a necessity to prove murder, many cases that are based on circumstantial evidence would benefit from suggesting a motive so that the evidence of the case is not perceived as sterile by a jury, void of human influence. The link to the fraud detection is crucial in establishing a motive for a murder if the prosecution has weak direct evidence, but supportive circumstantial evidence of guilt. The case facts reveal that it would behoove forensic accountants and fraud examiners to consider why the victims were in a unique position to detect fraud and become a threat to the criminal, which explains why they were the homicide targets. It is important to consider forensic accountants and fraud examiners who are also trained in interviewing white-collar criminals as members of the homicide investigation team. The savvy fraud examiner is able to recognize when the answers a suspect gives in an interview display implausibility or incredibility. The examiner can also evaluate the suspect’s demeanor during the interview. In this way, fraud examiners with interviewing skills can collect evidence that is intangible and also reveals the human quality of deceit. The fact that a juror, for example, may not totally understand the intricacies of the fraud may not be as important as understanding www.acfei.com
the human quality of fraud and the pathological lying of a defendant. Evidence that appears intangible becomes tangible for different reasons. Consider the devastating impact a fraud examiner can make when he or she reveals deceitful evidence that pre-dated the murder. The prosecution may not have even broached the specific facts of the murder during a trial, and the suspect is left having to explain away the deceit of his or her fraud before even addressing the murder facts themselves. The work of a fraud examiner or forensic accountant revealing the pathological lying of a killer during an interview can be extremely important when the murder case itself is purely circumstantial. Although circumstantial evidence is as good as direct evidence from a legal perspective, potential jurors who are skeptical of circumstantial evidence may not readily accept this evidence as enough to find someone guilty. For example, the public who followed the Christopher Porco case, in which Porco killed his father with an ax when his father discovered his son’s fraud, participated in debates as to whether Christopher Porco was guilty or not, because the case was purely circumstantial (Perri & Lichtenwald, 2008). Although the commentary below is retrieved from blog cites that discussed the Porco case, the authors believe that it does illustrate the importance of having forensic accountants and fraud examiners involved in these types of murder cases so that these experts can help the prosecution reveal a motive and connect the evidentiary dots for the benefit of a jury who may view direct evidence as being more persuasive than circumstantial evidence. We can observe that there are those who are skeptical of circumstantial evidence and who somehow believe that direct evidence is also needed to support circumstantial evidence, when in fact that is not the case. For example, one commentator stated about the Porco case, “circumstantial evidence should not have been enough to send him to jail for the rest of his life. ... [N]o matter how compelling that evidence may have been, without physical proof you cannot directly link him to the murder. Circumstantial evidence can be distorted and manipulated either way” (Times Union, n.d.). The leading author interprets the commentator’s use “physical proof ” as being synonymous with “direct evidence.” Somehow, without a confession or an eye witness, which is considered direct evi(800) 423-9737
dence, the circumstantial evidence was perceived as less persuasive by this commentator even though it was in fact powerful. However the leading author believes that coupled with deceitful behavior that predated the murder, accepting circumstantial evidence for culpability purposes becomes more digestible for skeptical jurors because they understand the human behavioral aspects behind the homicide that may otherwise not exist if fraud detection is not advanced as a motive for the homicide.
Conclusion Although fraud detection homicide applies to other countries besides the United States, the case studies comparing the United States and the former Soviet Republics does produce evidence that the manner in which the murder takes place is different. Data derived from this study suggests that the former Soviet Republic’s murders had the markings of contract killings, while the American murders had the markings of both contract killings and non-contract killings. Furthermore, unlike the American murders, the foreign murders appear to not just silence the intended victim, but to send a message to others who engage in fraud detection. It would behoove investigators to include forensic accountants and fraud examiners as part of a homicide investigation team if the case facts reveal fraud detection as a motive to kill. In this way, it will be possible to reveal the pathological lying of the defendant.
Methods and Sources Information came from fraud-related murder documents posted on the World Wide Web. The documents used in this study are included in the reference section. Only open source information is included in this study.
References
Ahmed, A. (2007, November 29). Ex-Chicago officer gets 75 yrs for murder plot. Retrieved from www. policeone.com AFT. (2007, September 28). Top Russian fraud investigator shot dead in Moscow. Retrieved from www. freerepublic.com Ataiyero, K. (2007, November 15). Chicago man gets 50 years for arranging murder. Retrieved from www. chicagotribune.com. Berry, J. (2004, April 7). Suspect in killing of couple turns herself in. The Press-Enterprise. Berry, J. (2005, September 15). Real estate fraud related murder trial begins. The Press-Enterprise. Carreon, H.(n.d.), Enron corporation executive found shot to death. La Voz de Aztlan. Carreon, H.(n.d.), Enron scandal: was John Clifford Baxter murdered? La Voz de Aztlan.
CBS, (2002, April 10), The mysterious death of an Enron exec. www.cbsnews.com. Chazan, G. (2006, September 15). Central banker is murdered in Moscow. Wall Street Journal. Chaney, K. (2007, October 12). Former cop, son of prominent family on trial for murder. Retrieved from www.chicagodefender.com Chernoff, A.(2002, January 26), Former, enron exec dies in apparent suicide. www.cnn.com. Cook, J. (2005, June 25). Guilty verdicts in slaying case. The Macomb Daily. Credit card theft led police to homicide suspect. (2005, October 25). Credit Cards Magazine. Cruz, M. (2006, April 14). Woman plead guilty in highland double slaying. San Bernadino Sun. Retrieved from www.sbsun.com Cruz, M. (2006, September 28). Jury hears closing arguments in highland murder case. San Bernadino Sun. Retrieved from www.sbsun.com Curtis, K. (2006, August 7). Why did he do it? The Sacramento Union. Devine, R. (2005, July 15). Murder charges announced against Chicago police officer. Retrieved from www.statesattorney.org Douglas, J. et al. (1992). Crime Classification Manual,. New York: Lexington Books. Fried, J. (1996, November 2). Michael Burnett, 67, criminal who exposed city corruption. The New York Times. Glenn, S. (2005, December 11). Life sentence for man convicted in highland killings. Retrieved from www. TheRedLandsDailyFacts.com Goad, B. (2003, March 15). Murder trial ordered in slaying of couple. Retrieved from www.ThePress-Enterprise.com Greene, B. (1976, July 23). A place in journalism history. The Arizona Project. Gribben, M. (2005, May 24). The high cost of greed. Retrieved from www.markgribben.com Halcom, C. (2005 June 22). Defense continues in slaying case. The Macomb Daily. Hare, R.D. (1993). Without conscience: The disturbing world of the psychopaths among us. New York: The Guilford Press. Hopsicker, D. (2002, February 11). Like Chinatown but in Texas. Retrieved from www.apfn.org Irvine, R. (2002, February 6). Baxter death looks a lot like Foster’s. www.aim.org. Kelly, C. (2006, May 28). Reverberations felt 30 years after Don Bolles’ death. The Arizona Republic. Korecki, N. (2005, May 6). Jury convicts podiatrist of killing witness in medicare fraud case. Retrieved from www.suntimes.com Main, F. (2005, July 16). Cop accused of ordering killing. Retrieved from www.suntimes.com. Martin, D. (n.d.) Baxter autopsy points to murder. www.whatreallyhappened.com. Mauk, C. (2006, May 28). Would Bolles have survived today? Retrieved from www.azcentral.com May, A. (n.d.). The bull becomes a rat. Retrieved from www.crimelibrary.com McDonald, R. (1998), Secrets never lie. Avon Books. McLean, B., & Elkind, P. (2003). The smartest guys in the room. Penguin Books. La RussoPhobe. (2006, October 12). Now, with politovskaya’s blood in the water, the feeding frenzy begins. Parker, M. (2007, November 28). Leak, Jr. sentenced for murder-for-hire. Retrieved from www.CBS2chicago.com Perri, F., & Lichtenwald, T. (2008). The arrogant chameleons: Exposing fraud detection homicide. The Forensic Examiner, 17(1), 26–33.
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Perri, F., & Lichtenwald, T. (2007). A proposed addition to the FBI criminal classification manual. The Forensic Examiner, 16(4), 18–29. Quinsey, V.L., Harris, G.T., Rice, M.E., & Cormier, C.A. (1998). Violent Offenders: Appraising and Managing Risk. Washington, D.C.: American Psychological Association. Rush, K. (2005, September 13). HedLine Trial. San Bernadino County Sun. The Russian Political Weekly. (n.d.). Russia: High profile killings, attempted killings in the post-soviet period. Sexton, J. (1995, April 19). Longtime informer is accused in killing. The New York Times. Shuter, I. (2004, February 9). Murder suspects appear in court in what may be mortgage fraud related murder. The Mortgage Fraud Blog. Times Union. (n.d.). www.blogs.timesunion.com Yasman, V. (2004, July 13), Analysis: American Journalist Klebnikov Gunned Down In Moscow, Radio Free Europe. Vaknin, S. (1999). Malignant Self Love. Narcissus Publications. n
Earn CE Credit To earn CE credit, complete the exam for this article on page 71 or complete the exam online at www.acfei.com (select “Online CE”).
About the Authors Frank S. Perri, the lead author of this research project, has worked as a trial attorney in the criminal law field for more than 10 years. Areas of concentration include white-collar crimes, homicide, and narcotics. Mr. Perri received his Juris Doctor from the University of Illinois in 1991. He received his Master in Business Administration from Case Western Reserve University and his Bachelor’s of Arts in Economics from Union College. In addition, Mr. Perri is a Certified Public Accountant. He may be contacted at frankperri@hotmail.com.
Terrance G. Lichtenwald, PhD is a Life Fellow and Diplomate in the ACFEI. As part of the pre-trial preparation, the second author of this study completed a behavioral science study of George Hansen. He earned his Doctorate in Clinical Psychology from an American Psychological Association (APA) approved program and completed an APA approved internship. He has a Masters degree in Clinical Psychology and a second Masters in School Psychology. He earned his Bachelors degree in Broad Field Social Studies and Psychology. Dr. Lichtenwald has spent 18 years completing forensic, behavioral, psychological and security evaluations as well as threat assessments. Research interests are in smuggling, white-collar crime and security/threat assessments.
ACFEI NEWS
ACFEI’s daily connection to fascinating forensics news The Forensic Examiner is scouring the Internet every day to bring you the latest information relating to forensic science. The Forensics in the News Web site, www. forensicsinthenews.com, features links selected by Examiner editors to provide a concise look at news involving forensic science professionals. More than a month’s worth of links will be kept on the site at all times. The daily news links are also posted on the Examiner’s Web site, www.theforensicexaminer.com. Forensics in the News links are also available by a free subscription to an RSS news feed. For instructions on how to use RSS, simply send an e-mail to the Examiner editor at editor@acfei.com. Here are just a few highlights of the news reported on Forensics in the News: How Not to Commit Cyber Crime: Lessons from the Craigslist Bandits — This article describes how computer forensics techniques led to the quick capture of a couple who posted a phony Craigslist adver-
tisement inviting people to ransack a home and take its contents. First thought to be a prank, the incident is now being investigated as a way to cover up the alleged theft of saddles from a barn on the property. Laramie Coroner Wants Morgue Out of Tire Shop — In Wyoming, the Laramie County coroner is tired of taking family of the deceased to a cooler inside of a quonset hut that is shared by a tire shop. It’s a shocking example of how states and communities have underfunded and inadequate forensic science facilities. Two Guns Used in RFK Assassination, Experts Say—Nearly 40 years after Robert F. Kennedy was assassinated, two forensic scientists say that two guns were used in the assassination—and convicted gunman Sirhan Sirhan could not have fired the fatal shot. After a Nuclear 9/11 — In his chilling column for the Washington Post, Jay Davis reports that there have been 1,014 incidents involving trafficking of nuclear bomb components. If the unthinkable happens, and terrorists detonate a nuclear device in a major
city, it will be up to nuclear forensics experts to trace the origin of the terrorist bomb. Forensic Project to Fight Terrorism—In Australia, a massive new project is designed to fast-track police access to massive amounts of electronic evidence. The project will use data mining to help counter-terrorism agencies identify terrorism-related information in massive amounts of data. High-tech Forensic Mortuary Opens— London has opened its first ever purpose-built forensic mortuary, which will give police and pathologists access to the latest technology to aid homicide investigations. The mortuary features a bio-hazard post-mortem room, an equipment and evidence store, and a CCTV viewing area with a live link to the post mortem room so senior investigating officers can watch forensic pathologists at work.
78 THE FORENSIC EXAMINER Summer 2008
Updated Monday through Friday The Forensic in the News site is updated every weekday, usually before 9 a.m. Central Time. n www.acfei.com
Case Study
Falsely Accused Prosecutor, Forensic Experts Take Heat for Mississippi ‘Disaster’
K
ennedy Brewer and Lavon Brooks are free men today, and now it’s the turn of the prosecutor and expert forensic witnesses who convicted them to draw fire. The Mississippi criminal justice system is on trial, with some activists calling for the review of scores of convictions, and many raising questions about the state’s most prolific medical examiner and a fellow controversial forensic expert. The lapses that led to one man being sentenced to die and another to life for crimes they didn’t commit have been called part of a “forensic science disaster” (Balko, 2007). They have provoked action in the Mississippi Legislature (Innocence Project, 2008), and they have inspired a public information request relating to hundreds of autopsy records (Associated Press, 2008). s For 10 years, Kennedy Brewer lived in Mississippi’s death row, awaiting an appointment with a lethal execution gurney. He was moved off death row in 2001, after DNA analysis proved that someone else raped the toddler he was convicted of killing. But the DA in the case refused to drop charges and Brewer spent 5 more years in confinement. This year another man, who matched the DNA found on the body and who reportedly confessed to the murder, was arrested in the case. That man is also a suspect in a similar rape and murder that sent convicted Levon Brooks and sent him to prison with a life sentence. Brooks was freed this year after spending 15 years in prison for a crime he didn’t commit. The two cases have placed a spotlight on the criminal justice system in Mississippi. MCT PHOTO
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Today’s headlines have their origin in two brutal killings that were striking for their similarity. Both occurred in the rural and economically disadvantaged Noxubee County in eastern Mississippi— with fewer than 4,500 households and a per capita income of a little more than $12,000. In 1990, 3-year-old Courtney Smith was kidnapped, raped, and murdered. In 1992, 3-year-old Christine Jackson was kidnapped, raped, and murdered. • The bodies of both little girls were tossed into bodies of water (one in a creek, the other in a pond). • Forensic experts eventually identified bite marks on both bodies. • The residences from where the girls were taken were just a few miles apart. Should those coincidences have been enough to raise suspicions that the killings were linked? Perhaps. But the similarities only continued. • The same sheriff’s officer investigated both killings.
• The same medical examiner conducted the forensic autopsies. • The same forensic odontologist gave consultations. • The same prosecutor examined the evidence and filed charges. • The conclusions reached by the prosecutor in both cases were the same. In each case, the boyfriend of the mother of the slain child was arrested and charged with murder. Investigators were so confident in the cases against Levon Brooks and Kennedy Brewer that they didn’t pay much attention to Justin Albert Johnson, a middle-aged man who had earlier pleaded guilty to assaults against women and young girls, and who happened to live near both murder scenes (Innocence Project, 2008). Dr. Michael West, the controversial forensic odontologist who once said from the witness stand that he made fewer errors than “my savior, Jesus Christ” (Newsweek, 2001), confidently linked what he called human bite marks on the bodies with Brooks and Brewer. Faced with such damning evidence, it wasn’t hard for juries to convict Brooks and sentence him to life and to convict Brewer and sentence him to death. Fortunately, for Brewer, the wheels of capital punishment ground slowly. As he lived for more than a decade on death row in Parchman State Penitentiary, two factors united to shed new light on his case—improvements in forensic technology and increased advocacy for the rights of the falsely accused.
DNA Sheds Light DNA fingerprinting has been around since the mid1980s, but in the early 1990s, the methods of the time were not able to analyze the trace evidence in the Brooks and Brewer cases. If it had, the DNA found on the bodies would not have matched the DNA of the accused, which would have likely dealt fatal blows to the prosecution’s cases. With the improvement of DNA technology came a powerful new way to look back and evaluate the results of criminal trials. Armed with that technology, high-powered defense attorneys Barry Scheck and Peter Neufeld formed the Innocence Project with the mission of freeing inmates who could be proved innocent by DNA. In 2001, a test showed that DNA recovered from Christine Jackson’s body did not come from Summer 2008 THE FORENSIC EXAMINER 79
Brewer (New York Times, 2007). Such a finding has produced more than 200 overturned cases across the nation, but it wasn’t good enough for Forrest Allgood, the prosecutor. He changed his theory that Brewer had killed the girl in her bedroom and instead hypothesized that Brewer had been an accomplice. “I perceive that Kennedy Brewer assisted someone else in the killing of the child,” Allgood told The New York Times in 2007. “Whether he actually penetrated that child or not functionally doesn’t make any difference if he was aiding, assisting, and encouraging in her death.” Instead of releasing Brewer, Allgood said he would seek a retrial as a capital murder case, which would preclude the possibility of Brewer being able to post bail and get out of prison. The negative DNA test was, however, enough to get Brewer taken off death row, at least temporarily. In March 2006, a former attorney for Brewer joined Allgood’s staff, and the prosecutor recused himself from the case. The new prosecutor decided not to seek the death penalty and did not oppose bail, allowing Brewer to be released in 2006 pending trial. In 2006, The New York Times pointed out the similar case in which Brooks was convicted, but Allgood and the original investigator insisted the cases were not related. In 2007, the Innocence Project had tests performed on blood and hair samples taken from Justin Albert Johnson during the investigation of the Christine Jackson murder. The samples matched DNA taken from both Courtney Smith and Christine Jackson. When confronted by the evidence, Johnson reportedly confessed and was arrested in February of 2008 (New York Times, 2008). In March, Levon Brooks was formally cleared of all charges and released from prison.
Hayne continues to perform thousands of forensic autopsies a year for Mississippi, a fact that has drawn fire from some critics. Hayne has testified to performing more than 1,500 autopsies a year, well in excess of the 250 autopsies recommended as a limit by the National Association of Medical Examiners (Balko, 2007). Critics also charge that Hayne has a relationship that is too close to prosecutors and has offered controversial opinions, such as his contention that autopsy results suggested that two people had participated in firing the fatal shot in a murder case (Balko, 2006). West is even more controversial. He has been the target of investigative reports by 60 Minutes and ABC News. The Clarion-Ledger newspaper of Jackson, Mississippi, reported in February that West resigned from the American Academy of Forensic Science in 1994 when the organization began an ethics investigation against him because of some of his testimony (Clarion Ledger, 2008). West uses a technique he calls the “West Phenomenon” to analyze suspected bite marks through use of iridescent light and yellow goggles. The technique can’t be photographed, he says, nor can it be reproduced by other forensic experts (Balko, 2007).
Reform in Mississippi
The ACFEI’s Position The American College of Forensic Examiners Institute supports reform efforts that raise the standards of the forensic science profession and make wrongful convictions less likely. The ACFEI works to educate and raise standards through such certifications as Certified Forensic Consultant (CFC), Certified Medical Investigator (CMI), Certified Forensic Nurse (CFN), and Certified Forensic Accountant (Cr.FA). The ACFEI calls on Mississippi officials to fully examine the recent cases in Mississippi and analyze where standards should be raised relating to prosecution of cases and investigations relating to forensic science. The Clarion-Ledger’s call for greater funding of forensic testing, including improved crime labs, a full-time state medical examiner ,and improving forensic training and investigation statewide should be heeded.
References Balko, R. (2007, November). CSI: Mississippi. ReasonOnline, Retrieved March 6, 2008, from http://www. reason.com/news/printer/122458.htm Byrd, S. (2008, March 6). Mississippi autopsies being questioned. Associated Press, Retrieved March 6, 2008, from http://ap.google.com/article/ALeqM5g7RUmWyf4TNm8IrnMGHrHvCkZQwwD8V7JIL80 Clarion-Ledger. (2008, March 17). Innocence: Miss. crime scene prowess lacking. ClarionLedger.com, Retrieved March 18, 2008, from http://www.clarionledger.com/apps/pbcs.dll/article?AID=/20080317/ OPINION01/803170316/1007 Clarion-Ledger. (2008, March 17). Bite-mark expert’s findings scrutinized. ClationLedger.com, Retrieved March 18, 2008, from http://www.clarionledger.com/apps/pbcs. dll/article?AID=/20080217/NEWS/802170380/1002 Dewan, S. (2007, September 6). Despite DNA test, a case is retried. NYTimes.com, Retrieved March 18, 2008, from http://www.nytimes.com/glogin?URI=http://www.nytimes. com/2007/09/06/us/06dna.html&OQ=_ rQ3D1&OP=2eeec972Q2Fg8EDgiQ25@f6Q25Q2 5qQ7BgQ7BMM1gM2gMbgQ51fgMbiLYs(qra Dewan, S. (2008, February 8). New suspect is arrested in 2 Mississippi killings. NYTimes.com, Retrieved March 18, 2008, from http://www.nytimes.com/2008/02/08/us/08dna. html?ei=5088&en=310c8850d1d4f8de&ex=1360126800& partner=rssnyt&emc=rss&pagewanted=print Franescani, C., & Baram, M. (2008, Feb. 20). Did ‘bite mark’ expert fabricate evidence?. ABCNews.go.com, Retrieved March 18, 2008, from http://abcnews.go.com/ TheLaw/story?id=4311309 Innocence Project. (2008). Levon Brooks exonerated in Mississippi, forensic reforms underway. InnocenceProject.org, Retrieved March 18, 2008, from http://www.innocenceproject.org/Content/1207.php Newsweek. (2001, August 1). A dentist takes the stand. Newsweek.com, Retrieved March 18, 2008, from http://www.accessmylibrary.com/coms2/summary_0286-27083779_ITM n
The fallout from the Brewer and Brooks cases has been significant, especially for the medical examiner, Dr. Steven Hayne, and the forensic odontologist, Dr. Michael West, who participated in both autopsies and whose testimony was key to the convictions. Hayne attended medical school at Brown University and completed his medical internship in 1976 at the Letterman Army Medical Center in San Francisco. He served as Mississippi’s interim state medical examiner from 1987 to 1988, but he was forced to step down because he was not certified in forensic pathology by the American Board of Pathology, as required by state law. Hayne has also served as medical director of the Rankin Medical Center and as director of the Renal Lab.
The Mississippi Senate recently passed a law to create a DNA evidence task force, and the bill was sent to the House. The Innocence Project calls the law “a critical step forward for Mississippi—one of just eight states in the nation that does not have a law granting post-conviction DNA testing” (Innocence Project, 2008). The Innocence Project has sent letters to the Mississippi crime lab director and the 22 state district attorneys seeking documents related to Hayne, including official reports on autopsies he conducted and crime lab time logs that would detail his presence during examinations. However, District Attorney Ben Creekmore told the Associated Press that he won’t comply with the request because of Open Records Law provisions prohibiting the release of documents that contain personal information about victims. In an editorial published in March, the ClarionLedger called for several reforms, including: • Fully staffing and equipping a more modern state crime lab with greater DNA testing capabilities. • Hiring a full-time state medical examiner. • Improving forensic training and investigation statewide.
80 THE FORENSIC EXAMINER Summer 2008
Forensic Experts Criticized
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CE ARTICLE 6: LITIGATION SUPP0RT & THE FORENSIC ACCOUNTANT (pages 82-85) ATTENTION ACFEI MEMBERS: CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE
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LEARNING OBJECTIVES After studying this article, participants should be better able to do the following:
(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates. (Cr.FA) The American College of Forensic Examiners International provides this continuing education credit for Certified Forensic Accountants. (CFC) The American College of Forensic Examiners International provides this continuing education credit for Certified Forensic Consultants.
KEY WORDS: Forensic Accountants, Litigation Support, Expert Report, Defensible, Specialized Knowledge, Trier of Fact
1. Identify the right time to issue an expert report.
TARGET AUDIENCE: forensic accountants
2. Be able to distinguish between necessary and superflous information when compiling an expert report
PROGRAM LEVEL: update
3. Be able to pinpoint discrepancies in opposing counsel’s expert analysis when necessary.
DISCLOSURE: The author have nothing to disclose. PREREQUISITES: none
ABSTRACT Forensic accountants are frequently retained to provide litigation support services. These services provide assistance for accounting and financial matters in existing or pending litigation. Within the scope of each service the role of the forensic accountant can range from consultant to expert witness. Despite the function, the chief task remains to communicate specialized knowledge that will assist the trier of fact in understanding the evidence; that is why almost all engagements require the preparation of an expert report. This article addresses techniques for compiling an expert report that will impact the compilation of a well written and defensible report.
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1. Expert reports for civil cases in Federal Court are only necessary if counsel believes it will be helpful for settlement negotiations, to support a summary judgment, or to be relied on as evidence by a jury. a. True b. False 2. An expert report should be compiled by the retained expert no matter what the scope of their assignment, i.e. consultant, expert witness, etc.: a. True b. False 3. The amended Federal Rule of Evidence (FRE) 702, also known as the reliability test for expert testimony, includes all of the following guidelines except: a. Whether the theory used by the expert can be and has been tested b. Whether the theory used by the expert has been used in prior cases of similar nature. c. The known or potential rate of error of the method used. d. Whether the theory or technique has been subjected to peer review.
4. When an expert is ascertaining an opinion, the best descriptive term to rely on amongst the following is: a. Always b. Never c. Minimal d. Total lack of 5. The guidelines followed by an expert in the compilation of an expert report are discretionary and can change from instance to instance. a. True b. False – Major national accrediting bodies have issued standards that cover required content in the compilation of a report (AICPA, ASA, IBA, NACVA) 6. All reports should be prepared as drafts initially, and marked as “Confidential” and/or “Privileged” in order to disallow discoverability. a. True b. False – Experts need to assume that anything that is written will be discoverable and will ultimately end up in the hands of a jury and/or opposing counsel; furthermore, by stamping “Confidential”, “Privileged” or the like draws more negative attention forming the assumption that there is something to hide.
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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.
Summer 2008 THE FORENSIC EXAMINER 81
CE Article: (Cr.FA, ACFEI,INVESTIGATOR, CFC) 1 CE creditCMI) for this CE Article: (CERTIFIED MEDICAL 1 CEarticle credit for this article
Litigation and Support the Forensic Accountant: ASSEMBLING A DEFENSIBLE REPORT By James DiGabriele orensic accountants are frequently retained to provide litigation support services. These services provide assistance for accounting and financial matters in existing or pending litigation. Within the scope of each service the role of the forensic accountant can range from consultant to expert witness. Despite the function, the chief task remains to communicate specialized knowledge that will assist the trier of fact in understanding the evidenceâ&#x20AC;&#x201D; that is why almost all engagements require the preparation of an expert report. This article addresses techniques for compiling an expert report that will impact the compilation of a well written and defensible report. 82 THE FORENSIC EXAMINER Summer 2008
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Introduction Forensic accountants are frequently retained to provide litigation support services. These services provide assistance for accounting and financial matters in existing or pending litigation. Typical litigation support services include: • Valuation of business interests in shareholder and partnership disputes • Calculation of economic damages resulting from a personal injury • Medical malpractice • Wrongful termination and discrimination matters • Business interruption, inventory losses, matrimonial disputes • Losses from contract disputes, and trademark and patent infringements. Within the scope of each service the role of the forensic accountant can range from consultant to expert witness. Despite the function, the chief task remains to communicate specialized knowledge that will assist the trier of fact (judge, jury, arbitrator, etc.) in understanding the evidence. That is why almost all engagements require the preparation of an expert report.
Defending your Report When planning the extent of work for a particular engagement, the expert should always obtain a sufficient understanding of the nature of the dispute and the events that have given rise to the claim. The expert should also investigate whether there will be sufficient relevant data to afford a reasonable basis for the conclusions reached and/or recommendations offered. Once an expert is confident that the analysis or conclusion can be sufficiently supported, expectations for the end work product must be agreed upon as well. Counsel may want an expert report for various reasons including: • Court requirements (upon pending litigation—written reports are required in all civil cases in Federal court under Federal Rule of Civil Procedure 26(2)(B) unless otherwise directed by the court) • For settlement negotiations • To support a summary judgment • To be relied on as evidence by a jury However, no matter what the circumstances are, an expert should not create any written report unless specifically instructed to do so by counsel. A telephone or in-person conference should be held for the expert to determine whether a report is being requested, the type of report that is sought after, the scope of issues the report will cover, the factual assumptions to rely on, the scope of the opinions the expert will offer and any questions the expert might have. (800) 423-9737
Earmarking logistics before the compilation of a report will avoid future problems with respect to credibility. The reality is that forensic accountants regularly offer to the litigation community expert analyses and testimony services, which is both scrutinized and at times excluded by the court because the principles of objectivity have transformed to biased advocacy. For example, if opposing counsel can show that the retaining counsel influenced the expert’s report, the expert will lose credibility. This is easily accomplished if an expert drafts a report that counsel in turn marks up or makes suggested changes to. Experts need to assume that anything that is written will be discoverable and will ultimately end up in the hands of a jury and/or opposing counsel— even, and perhaps especially, draft reports. Once it is clear that the expert will provide a written report, as well as the scope of the issues to be addressed, there are an abundance of techniques that will impact the compilation of a well written and defensible report. Those strategies highlighted are born of previous blunders and their negative outcomes in court case proceedings.
When planning the extent of work for a particular engagement, the expert should always obtain a sufficient understanding of the nature of the dispute and the events that have given rise to the claim.”
Start with standards Major national accrediting bodies have issued standards that cover required content in the compilation of an expert report, and it is crucial to adhere to those standards. For example, in cases where the scope of the engagement includes a business valuation, The American Institute of Certified Public Accountants, American Society of Appraisers, Institute of Business Appraisers and National Association of Certified Valuation Analysts have issued business valuation standards that address the required content. Those valuation standards provide an objective roadmap against which to benchmark an expert’s valuation report. The first line of attack by the opposing counsel’s retained expert is to reveal any ill conformity with the set standards. An example would be the failure to fully discuss key factors that impact value, such as a company overview, facts about management, ownership, the valuation methodology, supporting adjustments, etc. If opposing counsel can reveal ill conformity with the standards, those findings can be used to prove noncompliance and discredit the expert.
Simple math Review mathematical computations with a finetooth comb, and identify all inputs, methods and assumptions, fully understanding all calculations. Computations are mostly made on computer programs that may have preset formulas that are copied and pasted from spreadsheet to spreadsheet. The range of errors can vary from minor mistakes, to present value Summer 2008 THE FORENSIC EXAMINER 83
The amended (FRE) 702 became known as the reliability test for expert testimony, aimed at curbing expert testimony that appeared to push a client’s verdict preference. As a result, the U.S. Supreme Court recruited judges as the gatekeepers of expert testimony on the basis of four criteria: • Whether the theory used by the expert can be and has been tested. • Whether the theory or technique has been subjected to peer review. • The known or potential rate of error of the method used. • The degree of acceptance of the method or conclusion within the relevant scientific community. Although it is not common for testimony to be rejected on one criterion alone, if the expert cannot pass the FRE 702 threshold then the expert will be limited to what he or she can say at trial if permitted to testify at all.
Be careful with boilerplate language
Terms to Avoid Absolutes, ys” lwa such as “a er” and “nev
calculations skewed by hundreds of thousands of dollars—the result is a major blow to the retaining counsel’s case.
Avoid Bias Lack of objectivity or the selective use of data to support a theory will be discredited. For example, experts who offer strong opinions may overstep their role as an expert and begin to show signs of partisanship, bringing their lack of prejudice into question.
Personal Research
Red Flag Words: “Draft”
ial”
“Confident
“Privileged
”
“Obviously”
Be wary of introducing your own research as the basis for any opinion. Relying on self-authored works born of personal experiences as a consultant to a particular company does not deem that opinion universal to industries alike. Therefore, by introducing personal research the expert becomes an advocate of his or her private experiences and views rather than his or her ability to apply the most relevant assumptions and findings to the engagement. Beyond the risk of appearing less credible or as an advocate, the introduction of one’s own research is subject to legal scrutiny. A critical ruling in Daubert v. Merrell Dow Pharmaceuticals in 1993, along with Kumho Tire Co. v Carmichael in 1999, contributed to the amendment of Federal Rule of Evidence (FRE) 702, which altered the way experts testify in court.
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Although it is common to use template reports and boilerplate language when issuing a report, the failure to customize and review carefully can result detrimentally. For example, when a report’s language indicates that “no warranty or guarantee, express or implied, is made,”such language may be distracting. When an expert is cross-examined and asked whether he or she can guarantee that the report is accurate and truthful and the expert answers “yes,” the boilerplate language can then be used against the expert. Warranties are not meant for expert reports—that type of boilerplate language only proves to be distracting.
Steer clear of absolute terms Terms such as “by no means,” “constantly,” “always,” and “never” make an expert vulnerable. In order to devalue an expert’s report, opposing counsel has to find only one occurrence to negate an absolute claim. The result is diminished credibility. Example: “Absolutely no experience”—An expert report that makes a statement such as “at the time of her divorce, Mrs. Doe had absolutely no experience in the areas of investment and finance” or “at the time of her divorce, Mrs. Doe had a total lack of investment experience or knowledge” is a ticking timebomb when it comes time for cross examination. Opposing counsel can simply ask whether a deposit in a savings account is an investment or if a mortgage is a method of finance—clearly they are, and only a few instances when Mrs. Doe made a deposit into her own savings account or made monthly mortgage payments negates the expert’s absolute affirmation. The claim then becomes an exaggeration to make a point rather than the state-
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ment of a truth. The end result is that the expert is forced to admit that they embellished; that willingness to overstate damages credibility. The scenario is avoidable by using the phrase “minimal experience” rather than “absolutely no” or “total lack of ”.
Maintain consistency If an expert has submitted more than one report, the multiple reports need to be consistent. Inconsistencies translate to wavering opinions, unreliable assumptions, and a lack of credibility. Example: “Different assumption to yield different results”—It is more likely today that opposing counsel can obtain an expert’s reports from other cases to check for inconsistencies. For example, if an expert relies on a 5-year average rate of inflation as a growth rate for projecting factors in a personal injury wage loss analysis, and opposing counsel finds similar reports for different cases that rely on just the most recent year’s rate of inflation, that type of discrepancy may express the use of subjective inputs and pierce the expert’s credibility.
Avoid ‘red flag’ words Various terms have been earmarked as being particularly vulnerable to attack by opposing counsel, whose job it is to undermine the expert, his or her opinions and credibility: “Draft”—the use of the term “draft” immediately raises questions such as if there were any changes made subsequent to the issuance of a draft report. If so, why did the retaining counsel have any influence on the changes? It is best to simply avoid such questions altogether by avoiding use of the term. “Confidential” or “Privileged”—the words “confidential,” “privileged” and the like give a reader the impression that there is something to hide. Stamping the affirmation on a report rarely affects whether or not the report is discoverable—therefore, avoid the speculation by not labeling reports. “Probable”—when providing on an opinion that is based on a cause/effect relationship, avoid the use of the word “probable.” In law, “probably” means less than 51%; therefore an assumption that is based on a “probable cause” is an assumption that relies on a cause that may be legally insufficient for an opinion that negates the assumption and outcome. “Obviously”—What is apparent to one may be ambiguous to another, therefore the use of the word “obviously” indicates that an expert is patronizing and presumptive. Rather than summarizing an opinion as “obvious,” an ex(800) 423-9737
pert should stress the basis for the opinion; for example, “based on a reasonable degree of certainty.”
Do not assume Always rely on supporting information accurately—never assume that because a document is disclosed as the source of information that it will not be scrutinized. Opposing counsel, when retaining an expert to provide a critique, will oftentimes examine all supporting documents to reconcile the information that is specified as support for the actual inputs provided in their report. For example, by relying on specific information from a source but disregarding other pertinent facts that could alter the outcome will discredit the expert’s opinion.
Organization of supporting documents/ information The counterpart to accurately using supporting information is the necessity of preserving notes on the calculations, formulas and measurements that support your opinions. The time elapse from the compilation of a report to providing expert testimony or being deposed often allows one to forget the thought behind an assumption or decision. Organized notes avoid duplicating the work in the future. Furthermore, when questioned, a quick response, rather than a reply intertwined with “umms” or long periods of thought before answering expresses confidence and is less likely to create doubt.
Conclusion Techniques for compiling an expert report are
developed with time by a seasoned expert. The importance of a well-written, well-supported expert report is two-fold; not only will the expert’s report become a crucial document in the legal matter it affects, but it will also become a permanent fixture of the expert’s record. Therefore, a poorly written report, lacking support and successfully attacked by opposing counsel can negate the creditability of the expert for years to come. On the other hand, a carefully drafted and properly supported end product will lead to future referrals. Unfortunately, there is not an expert report on Earth that is invulnerable. Considering that fact, it would be prudent to categorically go over the strengths and weaknesses of your report with the attorney. Litigation support is an area of accounting that is both challenging and fascinating. The skill of analyzing numbers, providing sound advice and defining the financial merits of a case is in high demand. A forensic accountant’s end product is a valuable tool for the retaining attorney. The challenge lies in preparing a report that is comprehendible to non-financial persons. A report that follows a fluid sequence and clearly describes and addresses the events being investigated, that provides the resources and materials relied on and an unambiguous and brief statement of each opinion will prevail against opposing expert analyses both on paper and against any cross examination time and time again. n Earn CE Credit To earn CE credit, complete the exam for this article on page 81 or complete the exam online at www.acfei.com (select “Online CE”).
About the Author James A. DiGabriele, D.P.S., CPA/ABV, CFSA, FACFEI, Cr.FA, CVA, is an Assistant Accounting Professor at Montclair State University and the Managing Director of DiGabriele, McNulty & Co., LLC, West Orange, New Jersey; an accounting firm specializing in forensic/investigative accounting and litigation support. He is a Certified Public Accountant (CPA) licensed in New Jersey, is accredited in Business Valuation, Certified Financial Services Auditor (CFSA), Certified Forensic Accountant (Cr.FA), a Certified Valuation Analyst (CVA) and is a Fellow of the American College of Forensic Examiners Institute (FACFEI). He holds a Master of Science in Taxation from Seton Hall University, a Master of Science in Management with a concentration in Finance from the New Jersey Institute of Technology and a Doctorate of Professional Studies with concentrations in Economics and Management from the Lubin School of Business at Pace University in New York. He has published in various journals including the Journal of Forensic Accounting, the Journal of Business Valuation and Economic Loss Analysis, The Forensic Examiner, The Value Examiner, The Journal of Legal Economics, and The CPA Expert.
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ACFEI News
ACFEI launches online version of popular CFC course For years, Marc Rabinoff has been wowing students at annual ACFEI conventions through his lectures in the Certified Forensic Consultants (CFC) course. Now Rabinoff teaches CFC students 24 hours a day, wherever they may be around the world. The CFC course is online, and it is making a big splash with its multimedia content and video presentations of Rabinoff’s fiery lectures. The online version of the CFC course is a milestone for the ACFEI’s online education department, which is working at a furious pace to bring quality forensic education to the Internet. The ACFEI is producing online versions of all its certification programs, and it is inviting qualified professionals to submit their own forensic courses. The ACFEI is working to be the online leader for forensic certification and continuing education.
Online education is coming into its own as a way to make training more accessible than ever. A student in the CFC course can pause the video to take notes, rewind to catch something that was missed, and can view the lecture at any time, day or night. Written class materials are provided through downloadable PDF files. Students can enroll by going to the ACFEI’s Web site, www.acfei.com. Even the examination for the course can be taken online, and it is not necessary to go to a proctoring facility. Among the security features the examination uses is a timer that controls how long a student has to provide answers— which makes it difficult to look up information during the test. Every aspect of the CFC certification can now be conducted completely online, from enrollment to paying fees, taking the course and exam, and receiving results from the test. Official certification will be promptly mailed as soon as the certification application is verified by ACFEI staff.
Still the best in forensics The CFC online version covers the same ground as the live course. Students learn about many aspects of setting up a successful consulting practice including: • Adhering to professional ethics • Following proper documentation procedures • Writing error-free reports • Preparing interrogatories and deposition testimony and assisting counsel to do the same • Presenting testimonial evidence and opinions • Providing courtroom testimony • Comporting with jurisdictional rules, including the Federal Rules of Evidence (FRE) and the Federal Rules of Civil Procedure and Evidence (FRCPE). • Preparing a professional resume/curriculum vita, retainer agreements, contracts, and other documents necessary for a consultant’s protection. n
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Commentary
The many cases for quality certifications By John Lechliter Editor in Chief In 1982, author and futurist John Naisbitt predicted in his best-selling book, Megatrends, that the world was being transformed from an industrial to an information society. He also accurately forecast the shift toward economic globalism and the growth of diversity in the United States. Even Naisbitt may be surprised by the scope and speed with which the Internet and Information Age have revolutionized our society. For many of us, the professions we worked in just 5 years ago bear little resemblance to what we are doing today, and what we will be doing in 5 years is hard for us to even imagine. This climate of constant change is revolutionizing the meaning and methods of higher education. A college degree is rapidly becoming only the starting point of a lifetime of education. For most professionals in the Information Age, to stop learning is to start falling behind. For this reason, certifications have been growing in importance as a way to keep up with developments and technology that college professors could not have been expected to anticipate. A certification testifies to a professional’s experience and training, and good certifications require professionals to constantly learn about changes in their field. Through certification, someone who studied computer punch cards in college can acquire today’s cutting-edge software skills, which may themselves be antiquated in just a few years. Certification is higher education that doesn’t become outdated. The fields of forensic science and evidence technology exist on the cusp of innovation, so forensic and law enforcement professionals are finding that certification keeps them abreast of change and demonstrates that they are committed to continuing their education. The American College of Forensic Examiners Institute (ACFEI) is a leader in the forensic science certification field, offering certifications to such professionals as forensic consultants, medical investigators, forensic nurses, and forensic accountants. Associations such as the ACFEI produce certifications based on the guidance of thousands of professionals who work in the fields, understand the unique needs of the professions, and provide direction into the compe(800) 423-9737
tencies that are needed and the instruction that is required. A certification often develops out of a marketplace need. ACFEI’s newest certification, Sensitive Security Information, Certified was the result of a conversation that Dr. Robert O’Block, ACFEI founder and CEO, had with member Dickson Diamond, who was concerned about the lack of training opportunities for government and private employees who work with sensitive information, ranging from civil and criminal evidence, to corporate databases, to trade secrets, and more. Members of the American Board for Certification in Homeland Security (ABCHS) joined ACFEI experts to determine the competencies needed for a certification, and then to create a course and examination. The result was the most comprehensive course on the handling of sensitive information yet produced. Because there are more certifications than ever to choose from, it’s important to be careful in selecting the certifications you seek. Many certification programs surpass university-level classes in scope, and especially in providing current information. But some companies that offer certifications do not maintain high standards necessary to safeguard the value of the certification. In other words, if anyone can become certified with little or no effort, then the value of that certification is low.
What to look for Keep these factors in mind when considering whether to apply for a certification: • Is the certification relevant to your career path? Will certification make your work more valuable? • Does the company offering the certification have strict requirements on experience and education? Does it offer training courses and examinations that must be passed? • Does the certification require continuing education on an annual basis for recertification? • Have experts in the field participated in the development of the certification program? • Does the certification require membership in a professional association? Association membership connects you to many other quality professionals in your field, and it can open doors in your career.
• Is the certification organization accredited or approved of by other organizations? For example, ACFEI is an approved continuing education provider by the following organizations: • Accreditation Council for Continuing Medical Education (ACCME) • National Association of State Boards of Accountancy (NASBA) • National Board for Certified Counselors (NBCC) • California Board of Registered Nursing (CBRN) • American Psychological Association (APA) • California Board of Behavioral Sciences (CBBS) • Association of Social Work Boards (ASWB) • American Dental Association (ADA) • In final stages of application for American National Standards Institute (ANSI) approval.
ACFEI certifications The ACFEI, www.acfei.com, is a great place to find more information about several forensic science and justice-related certification programs. The forensic nursing profession is growing rapidly, and its members are gaining the respect they deserve as trained professionals and expert witnesses. The Certified Forensic Nurse (CFN) program is the industry standard for comprehensive forensic nursing certification. Forensic consultants are playing increasingly important roles in both civil and criminal trials. The Certified Forensic Consultant (CFC) program sets standards for education and experience, and it provides training on being an effective and ethical expert witness. Medical investigators often play a crucial role in investigations. The Certified Medical Investigator (CMI) program offers five levels of certification for medical investigators, and it has high professional standards. Forensic accounting is one of the fastestgrowing fields in the accounting profession. The Certified Forensic Accountant (Cr.FA) program offers extensive real-world training and a rigorous examination. n Summer 2008 THE FORENSIC EXAMINER 87
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