The Forensic Examiner - Winter 2009

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The Commission on Forensic Education would like to congratulate its partner association, LeadAmerica, on the successful completion of their three CSI summer camps in San Francisco, CA, at the University of California at Berkeley; Boston, MA, at Bentley University; and New York, NY, at Fordham University. The students who successfully completed these programs were awarded an official certificate of completion, compliments of COFE. The COFE Board meeting at the National Conference in Las Vegas, NV was a complete success. With the support of loyal members, we will continue to provide free lesson plans and forensic courses to high school teachers and students. s CSI Mock Crime Scene at LeadAmerica Camp

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Winter 2009 THE FORENSIC EXAMINER速 3

THE

FORENSIC

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

EXAMINER

®

VOLUME 18 • NUMBER 4 • Winter 2009

66

COVER STORY

16 FEATURES 10

Principles and Approaches to Criminal Investigative Analysis: Part 3 of 4

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

16

THECRIME-TERRORNEXUS 4 THE FORENSIC EXAMINER® Winter 2009

Evil Twins:The Crime-Terror Nexus

By Frank S. Perri, JD, MBA, CPA; Terrence G. Lichtenwald, PhD; and Paula M. MacKenzie, PsyD

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ALSO IN THIS ISSUE 08 Letters to the Editor 81

New Members

83

Book Review

CASE STUDIES/OTHER FEATURES Opinions Count in Pennslyvania 24 Nurses’

By William Martin Sloane, JD, LLM, PhD, DABFC, FACFEI, CMI-I, CHS-III Accidental Asphyxial Deaths 38 Unusual

By Dr. Cheryl Loewe, MD; and Dr. Francisco Diaz, MD Pinkerton: America’s First Private Eye 42 Allan

By Russell A. Hunt, MA, CHS-III

55 74

Falsely Accused:The Wrongful Conviction of Alan Beaman

By Frank S. Perri, JD, MBA, CPA

62 An Interview with Dr. Larry Crumbley 64 An Interview with Brad Sargent Measure of a Man: Cesare Lombroso and the 70 The Criminal Type

By Katherine Ramsland, PhD, CMI-V

Detective’s Corner: How Does Your Garden Grow?

84 The

By Laird Long

Fallability of Forensic 48 The Interviewing: Understanding the Michaels Decision and the Taint Hearing

By Kenneth E. Blackstone, MS, DABFE, CFA

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Witnessess Have to 58 Expert Keep Draft Documents and

Records of Communication

By Dr. Larry Crumbley, CPA, Cr.FA, CFF, DABFA

Winter 2009 THE FORENSIC EXAMINER® 5

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THE

FORENSIC

EXAMINER

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

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

®

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

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EDITOR IN CHIEF: Christopher Powers (cpowers@acfei.com) EXECUTIVE ART DIRECTOR: Brandon Alms (brandon@acfei.com) ASSOCIATE EDITOR: Tanja Kern (tkern@americanpsychotherapy.com) ASSOCIATE EDITOR: Teresa Hernandez (teresa@abchs.com) ADVERTISING: Christopher Powers (cpowers@acfei.com) (800) 592-1399, ext. 116

ACFEI EXECUTIVE ADVISORY BOARD CHAIR: Cyril H.Wecht, MD, JD, CMI-V, CFP, FACFEI, DABFE, DABFM VICE CHAIR: Michael Fitting Karagiozis, DO, MBA, CMI-V, CFP MEMBERS: Cam Cope, MS, DABFET, DABFE; Chair, American Board of Forensic Engineering and Technology Dianne Ditmer, MS, RN, SANE, CFN, CMI-III, CHS-III, FACFEI, DABFN, CMI-III; Chair, American Board of Forensic Nursing Douglas E. Fountain, PhD, LCSW, DABFE, DABFSW; Chair, American Board of Forensic Social Workers Raymond F. Hanbury, PhD, FACFEI, DABPS, DABFE, CHS-III, ABPP; Chair, American Board of Forensic Psychological Specialties Lee Heath, DABLEE, CHS-V; Chair, American Board of Law Enforcement Experts Brian L. Karasic, DMD, MScFin, MOA, MBA, CMI-IV, FACFEI, DABFD, DABFM, DABFE, FAAIM; Chair, American Board of Forensic Dentistry Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE; Chair, American Board of Forensic Accounting Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP; Chair, American Board of Forensic Counselors Thomas J. Owen, BA, FACFEI, DABRE, DABFE, CHS-V; Chair, American Board of Recorded Evidence

Gregory M.Vecchi, PhD, CFC, CHS-V, DABLEE, DABCIP; Chair, American Board of Critical Incident Professionals

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ACFEI EXECUTIVE ADVISORY BOARDS American Board of Critical Incident Professionals Chair of the Executive Board of Critical Incident Professionals: Gregory M.Vecchi, PhD, CFC, CHS-V, DABLEE, DABCIP Monica J. Beer, PhD, DABCIP Sam D. Bernard, PhD, DABCIP, CHS-III Marie Leeds Geron, PhD, CHS-V, DABCIP Raymond H. Hamden, PhD, FACFEI, DABPS, DABCIP, DABCHS, DAPA, CFC, CMI-V, CHS-V Tina Jaeckle, PhD, LCSW, DABCIP, CFC Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Rev. Roger Rickman, ThD, MBA, ACC, CFC, CHS-V, CMI-III, SSI, CRS, DABCHS, DABCIP, DAPA, FABI, PI, SCS, FAAIM Debra Russell, PhD, CMI-V, CHS-III, CRC, CISM, DABCIP Dorriss “Ed” Smith, Col. US Army, CHS-V, DABCIP Vincent B.Van Hasselt, PhD, DABCIP Alan E. Williams, MS, CHS-V, DABCIP American Board of Forensic AccountING Chair of the Executive Board of Accounting Advisors: Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE Chair Emeritus: J. Bradley Sargent, CPA, CFS, Cr.FA, FACFEI, DABFAI Stewart L. Appelrouth, CPA, CFLM, CVA, DABFA, Cr.FA, ABV, FACFEI Gary Bloome, CPA, Cr.FA Alexander Lamar Casparis, CPA/ABV/CFF/CITP, CVA, MBA,Cr.FA D. Larry Crumbley, PhD, CPA, DABFA, Cr.FA, CFFA, FCPA June M. Dively, CPA, DABFA, Cr.FA Michael W. Feinberg, CPA, Cr.FA David Firestone, CPA, Cr.FA Mark S. Gottlieb, CPA/ABV/CFF, CVA, CBA, DABFA, MST David H. Glusman, CPA, FACFEI, DABFA, Cr.FA Eric A. Kreuter, PhD, CPA, CMA, CFM, FACFEI, DABFA, SPHR, CFD, CFFA, BCFT Robert K. Minniti, CPA, MBA, Cr.FA Dennis S. Neier, CPA, DABFA, FACFEI Kim J. Onisko, CPA, Cr.FA Joseph F. Wheeler, CPA, Cr.FA, CHS-III, CFF, CAMS American Board of Forensic Counselors Chair of the Executive Board of Forensic Counselors: Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Vice Chair: Steven M. Crimando, MA, CHS-III, CDP-1 Chair Emeritus: Dow R. Pursley, EdD, FACFEI, DABFC Irene Abrego Nicolet, PhD, DABFC, MA George Bishop, LPC, LAT, LAC, FACFEI, DABFE Laura W. Kelley, PhD, LPC, DABFC, FACFEI Robert E. Longo, FACFEI, DABFC Kathleen Joy Walsh Moore, FACFEI, DABFC, CHS-II Hirsch L. Silverman, PhD, FACFEI, DABFC, DABFE, DABFM, DABPS William M. Sloane, JD, LLM, PhD, FACFEI, DABFC, CHS-III, CMI-I, DACC, DCPC, FAAIM, FACC, MTAPA Gary Smith, MEd, FACFEI, DABFE Ava Gay Taylor, MS, LPC, DABFC, FACFEI American Board of Forensic Dentistry Chair of the Executive Board of Forensic Dentistry: Brian L. Karasic, DMD, MScFin, MOA, MBA, CMI-IV, FACFEI, DABFD, DABFM, DABFE, FAAIM Members of the Executive Board of Dental Advisors: Ira J. Adler, DDS, DABFD Bill B. Akpinar, DDS, CMI-V, FACFEI, DABFD, DABFE, DABFM Stephanie L. Anton-Bettey, DDS, CMI-V Jeff D. Aronsohn, DDS, FACFEI, DABFD, CMI-V Susan Bollinger, DDS, CMI-IV, CHS-IV Michael H. Chema, DDS, FACFEI, DABFD, DABFE James H. Hutson, DDS, CMI-V, DABFD, FACFEI John P. Irey, DDS, CMI-V, LLC Chester B. Kulak, DMD, CMI-V, CHS-III, CFC, DABFE, DABFD Morley M. Lem, DDS, FACFEI, DABFD, DABFM, DABFE, DABPS John P. LeMaster, DMD, DABFD, CMI-V, CHS-III, DABFM, FACFEI Jeannine L. Weiss, DDS American Board of Forensic Examiners Chair of the Executive Board of Forensic Examiners: Michael Fitting Karagiozis, DO, MBA, CMI-V, CFP Members of the Executive Board of Forensic Examiners: Jess P. Armine, DC, FACFEI, DABFE, DABFM Phillip F. Asencio-Lane, FACFEI, DABFE

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

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

American Board of Forensic Nursing Chair of the Executive Board of Nursing Advisors: Dianne T. Ditmer, MS, RN, SANE, CFN, CMI-III, CHS-III, FACFEI, DABFN, CMI-III Heidi H. Bale, RN, CFN, CCHP Marilyn A. Bello, RNC, MS, NYSAFE, CHS-III, CMI-IV, CFC, CFN, SAFE, DABFN, DABFE

Winter 2009 THE FORENSIC EXAMINER® 7

LETTERS

AN OPEN LETTER TO SCOTTISH JUSTICE SECRETARY KENNY MACASKILL

Have something you would like to say? E-mail your thoughts and comments to editor@acfei.com

Dear Mr. MacAskill: My father was born in Glasgow, so I’m no stranger to “Scottish values.” I have tried to live my life in accordance with the principles of courage, honor and integrity that I learned from him. On the other hand, Scottish values certainly have never included the cowardice, gullibility, stupidity and treachery that you revealed in August.

How much is a human life worth to you, Mr. MacAskill?

More to the point, how much is an American life worth to you? Never mind; I’ve done the math. The answer is eleven (11) days. That’s how long Abdelbaset al-Megrahi spent in your custody: eleven days per murder.

What do you think a Scot’s penalty would have been under Sharia law in Libya?

Obviously you regard Americans as inferior colonials, ignoring our sacrifice in bailing your helpless island out—not once, but twice—in the previous century. Were it not for the United States Armed Forces, your second language would not be Gaelic; it would be English. For those of you still alive, your first language would be German.

Yet when our children are thrown from the sky over Lockerbie, screaming God’s name as they crash to the ground in a giant ball of fire . . . all that you and your gluttonous English masters can think about is capitalizing on the opportunity for expanded trade with Libya (at least Baby Qaddafi is candid about this). To pile insult upon injury, one is then subjected to your perfidious doublespeak that this blood-stained commercial barter was a “compassionate” act.

How could I have supported Scottish independence all these years? SNP can’t even run a jail, much less a country. And now, by returning this killer to the safe haven from which he operates, the Scottish Government has made itself a state sponsor of terrorism. I’ll not set foot there again as long as the party of sycophantic thumb-sucking appeasement remains in power.

In the unlikely event that you care anything about the portfolio of “Justice,” then I suggest you volunteer to serve out the balance of Mr. Megrahi’s sentence yourself. Since this should be less than three months, according to your expert calculation, the fairness more than outweighs the inconvenience.

—William Martin Sloane, PhD, CHS-III, FACFEI Attorney at Law, Maryland and Pennsylvania Good Morning, Dear Friend and Colleague, Thank you for supporting the Forensic Nursing Program. The article in the Forensic Examiner featuring the CFN program [in the fall 2009 issue] is exciting and certainly provides valuable information to all nurses interested in pursuing a rewarding career caring for the most vulnerable populations. Everyone needs a voice, thank you for being one of our champions! Looking forward to meeting at the conference.

—Dianne Ditmer, MS, RN, DABFN, CFN, FACFEI Hello Dr. O’Block, (CC to Marianne) Thank you for your sponsorship for my presentation at the Missouri Sheriffs’ Association. A very pleasant group of law enforcement executives. The Branson area and the Ozarks are incredibly beautiful, the folks are congenial. I felt as if I was back in time, where folks were more at ease, friendly and polite. Being in Missouri did a lot of good for my psyche. It is refreshing to know that there is somewhere in the U.S. where America seems like the America I remember…Back to the conferenceMarianne and Dwayne are tremendous ambassadors for the organization. You are blessed to have special people as they working with you. Thanks very much, and God Bless!

—E.R. Bertolli, OD, CHS-V, CMI-V, FACFEI

8 THE FORENSIC EXAMINER® Winter 2009

www.acfei.com

(800) 592-1399

Winter 2009 THE FORENSIC EXAMINER速 9

CASE STUDY

F

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

The purpose of this article series is to provide information on the entire spectrum of investigative processes that is useful for all individuals involved in investigations: the responding officer, detectives/investigators, police supervisors, lawyers, judges, and other criminal justice professionals. This article examines crimes against persons (e.g., homicide, rape, assault, and robbery), property crime (e.g., larceny, burglary, housebreaking, unlawful entry, arson, etc.), and specialized methods for investigating them.

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

Principles and Approaches to Criminal Investigation,

Part 3

The views expressed in this article do not necessarily represent the views of the FBI. 10 THE FORENSIC EXAMINER® Winter 2009

Crimes Against Persons The violent and personal nature of crimes against persons makes them headline grabbers.

It has been determined that bio-psycho-social factors, weapon availability, developmental factors, and the victim-offender relationship have influenced the development of violent crime typologies (Criminology Today, 1995-2002). The following comprise 13 general reasons why people become violent (Connor, 2002; Criminology Today, 1995-2002): • To punish others (to obtain justice or revenge, or is the result of victim’s rage) • Freedom (threat or loss of freedom) • Control (fear of losing control or anger over losing control) • Carry-over (ongoing aggression or violence of the moment) • Contempt (expression of contempt or sadism) • Blaming (blaming others or taking out own problems on others) • Image, status, role, reputation (to defend, change, or establish reputation) www.acfei.com

• Protection or survival reaction (to protect one’s self, property, family, or friends) • Threat reduction or aggressive precaution (violent or threatening behavior is seen as a way to warn others and reduce risk of violence) • Self-punishment or guilt relief (becoming violent results in a violent response from others that meets a desire to be punished or to reduce feelings of guilt) • Civil or rationalized disobedience (form of protest that can be rationalized to serve a purpose) • Exposure to violence and diffusion of individual responsibility (exposure to violent people creates perception that violence is justifiable with no fear of being singled out for one’s own violent behavior) • Mental illness or medical condition (result of impaired thinking and judgment or strange or bizarre beliefs that are caused by illness, disease, drugs, toxic chemicals, or a severe medical or psychological problem) Often imbedded within violent crimes is domestic violence and at times, these types of crimes are associated with larger criminal patterns such as mass, spree, and serial murder.

Domestic Violence Against Women Violence against women is an immense problem in the United States (Domestic Violence, 2009; Walker, 2000). Battering is the leading cause of hospitalization for women and it is estimated that every nine seconds a woman is abused by her significant other, which translates to almost 4,000,000 injuries per year (Connor, 2002).

Furthermore, women are victims of domestic violence more often than for burglaries and muggings combined and 42% of murdered women are killed by their significant others (Connor, 2002). For criminal justice professionals, domestic abuse of women is the most frequently reported incident.

Domestic abuse includes physical abuse, mental and emotional abuse, sexual abuse, and economic abuse (Connor, 2002; Domestic Violence, 2009). Physical abuse is hands on and can include hitting, shoving, slapping, punching, burning, bruising, twisting, choking, pulling hair, preventing access to an exit, or using weapons.

Mental and emotional abuse involves harming a partner’s ability to think, reason, or have (800) 592-1399

feelings; intimidation; degradation; and humiliation. This type of abuse may include withholding of affection, name-calling, put-downs, making threats, abusing pets, discussing love affairs, refusing to talk, and extreme jealously.

Sexual abuse can be both physical and mental. Physical abuse may include forced sex, attacks on the breasts or genital area, or rape with objects. Mental-sexual abuse may include sexual name-calling, threatening remarks during sex, unwanted sexual advances, and forbidding birth control.

Economic abuse is more structural in nature and much harder to define than other more obvious forms of abuse. Economic abuse may include preventing women from making financial decisions, having to justify every expense, blame for financial problems, withholding access to financial resources, or not allowing the woman to work outside the home.

Battering is defined as a series of attacks that occur repeatedly over time. For our purposes, battering can be subdivided into physical battery and psychological battering (Connor, 2002; Domestic Violence, 2009; Walker, 2000).

Physical battering includes hands-on physical and sexual assaults, whereas psychological battering comprises non-violent abuse that can be mental, emotion, or economic in nature, which has shown to be just as devastating as a physical attack.

These violent relationships continue because of the dependency involved on the part of the victim (Connor, 2002; Domestic Violence, 2009, Walker, 2000). Although the perception of control of the abuser is only illusionary, as long as a woman believes there is hope for the relationship, she will remain in the relationship even if she or her children continue to be battered. Oftentimes, women put up with the abuse because they feel their situation would be hopeless or helpless if they left the relationship (Connor, 2002; Domestic Violence, 2009).

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

Winter 2009 THE FORENSIC EXAMINER® 11

“.”

Moreover, these women believe they need the resources of the person who is abusing them and they falsely believe that there will be no further acts of violence (Walker, 2000). This last point is worth expanding on because after a severe beating, the abuser often apologizes and asks forgiveness, promising not to do it again (Connor, 2002; Domestic Violence, 2009; Walker, 2000).

This causes the victim to focus on how nice and loving the abuser can be, which triggers the desire to stay in the relationship only to be battered again.

Domestic Violence Against Men Violence against men has only recently begun to be noticed; however, it is estimated that roughly 300,000 to 400,000 men are treated violently by their spouses or girlfriends (Connor, 2002).

The lack of attention to this problem is due to several reasons (Connor, 2002; Domestic Violence, 2009): • Reporting is so low that it is difficult to obtain reliable estimates • Culturally, men are not encouraged to report abuse • Little investment in resources to address and understand the issues of abuse against men • Impact of domestic violence is less apparent • Few people believe that men can be abused by women There are both similarities and differences between the dynamics of the abuse of women versus the abuse of men (Connor, 2002; Domestic Violence, 2009). In both cases, physical and economic abuse is similar in nature. For both, physical abuse may include pushing, slapping, 12 THE FORENSIC EXAMINER® Winter 2009

hitting, or using a weapon and economic abuse may include control over finances or over justification of expenses.

Sexual abuse is different in that women usually can’t physically force sex as can men. The most noticeable difference concerns the dynamics of mental and emotional abuse, as most men are more deeply affected by emotional abuse than by physical abuse (Connor, 2002; Domestic Violence, 2009; Walker, 2000). For example, unkind or cruel words may hurt both men and women, but research indicates that men who are berated and called “coward,” “impotent,” and “failure” suffer severe emotional trauma. Overall, it seems that women are more “brutal” than men when it comes to mental or emotional abuse and men are more “brutal” then women with respect to physical abuse.

Mass Murders, Spree Murders, and Serial Murders Although homicide in general is rare in comparison to other types of violent crime, mass murder, spree murder, and serial murder spark headlines and interest because of the terror they inspire and the macabre nature of their processes.

These types of investigations can be very lengthy and costly, due to their nature.

Generally, mass murder involves three or more victims, usually one offender and one location, and a single event lasting minutes, hours, or days.

The 1995 Oklahoma City bombing is an example of a mass murder (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009).

Spree murders are multiple murders committed during a single event within a time period that may be short or long with no “cooling off ” period (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009). The 1999 Columbine School murders incident is an example of a spree murder, as well as the murders committed by Charles Manson and his gang.

Spree murders are also oftentimes associated with family matters, such as when a man consecutively kills his wife, children, and mother.

Spree murders often involve much anger and hate on the part of the perpetrator (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009).

Serial murders involve three or more murwww.acfei.com

ders as separate events with emotional “cooling off ” in between the killings, which may involve planning and victim selection, and may be either sexual or nonsexual in nature (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009). Dennis Rader, Ted Bundy and Jeffrey Dahmer are examples of modern day serial killers.

The “profiling” of serial killers can be an effective way to generate investigative leads. Profiling has many names: psychological profiling, offender profiling, criminal personality profiling, criminal personality assessment, and investigative profiling; however, the preferred current name is criminal investigative analysis (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009).

In solving a serial murder, analysis of the crime scene and victim is usually the key to determining the mindset of serial killers, simply because it has been shown that the best indicator of future behavior is past behavior (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009). For example, trauma to the victim that is excessive to that which would be necessary to cause death suggests highly personalized anger and that the killer and victim most likely knew each other.

There have been instances where serial killers hate women, usually as a result of some trauma experienced as a child, such as physical or sexual abuse by their mother. This hatred is sometimes acted out, such as in post-mortem mutilation of the breasts and genitals using a knife.

Crime scenes usually exhibit elements of being either organized or disorganized (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009). Organized crime scenes have the following characteristics: • Contain little evidence • Exhibit controlled rage • Involve multiple scenes • Indicates the victim was a stranger • Indicates premeditation • May occur at any time • Victim often transported • Weapon of choice • Sexual activity with a live victim • Body concealed or positioned to degrade (800) 592-1399

Disorganized crime scenes exhibit the following characteristics: • Contain lots of evidence • Exhibit a frenzied attack • Involve single or clustered scenes • Indicates the victim was not a stranger • Indicates spontaneous attack • Assault and disposal site of the body the same • Weapon of opportunity • Postmortem sexual activity • Symbolic positioning of the body Sometimes in organized crime scenes, the murder victim’s body is moved in an attempt to cover up the location of the murder (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009). In one case, the movement of the body from a lying position to a seated position was obvious. The investigation determined that the victim had originally died lying down and the blood had pooled in the back, buttocks, and the back of the legs (lividity). If the victim had actually died in the chair, then the pooling would have occurred in the legs and buttocks; however, this was not the case.

From the analysis of crime scenes, taxonomies can be constructed of offenders (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009). For example, the organized crime scene corresponds to the organized offender—one who is above average intelligence, socially competent, a skilled worker, sexually competent, and controlled. The disorganized crime scene corresponds to the disorganized offender—one who is below average intelligence, socially immature, has a poor work history, sexually incompetent, and anxious and confused.

Victimology is another aspect of serial killer investigations, as many serial killers prey on certain types of victims such as female prostitutes or young males. Information concerning the victim is used to better understand and predict the behavior of serial killers and it is also used to warn potential victims (Hazelwood & Burgess, 2009; Hoffer, 1951; Kellerman, 1999; McCrary & Ramsland, 2003; Turvey, 2008, 2009). Victimology concerns issues such as risk level, lifestyle, and the degree to which victims expose themselves to injury. Victims are classified Winter 2009 THE FORENSIC EXAMINER® 13

as either high or low risk. High risk victims are more susceptible than other victims to being the victim of violent crime, usually as a result of their lifestyles and behavior (e.g., prostitution or driving in dangerous areas with the door unlocked).

Property Crimes Crimes against property comprise activities, such as larceny, burglary, stolen property, and arson. Property crimes are committed both professionally and ad hoc. Professional thieves are characterized by greater planning and financial rewards, whereas ad hoc thieves, also known as “persistent” or “occasional” thieves, characterize the vast majority of petty crime. An example of occasional thieves would be those who steal from others as opportunities present themselves, such as wallets being accidentally left out in the open or ATM cards with their PIN information written on them being left exposed and unattended.

Larceny Larceny is an umbrella term for several types of property crime that include theft, shoplifting, pilferage, fraud, and embezzlement (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg & Ward, 2007). Generally, each type of larceny requires the wrongful acquisition of, or assumption or exercise of dominion over, the property of another (Department of the Army, 1985). Furthermore, each includes the intent of the accused to permanently deprive the owner of the property.

Fraud includes the elements of larceny, but it also requires the property to be obtained by a designed misrepresentation of an existing fact or condition on which the victim relied. Embezzlement involves a person who lawfully receives the property of another through his or her position of trust and then intentionally and unlawfully keeps it.

Larcenies make up a large part of most investigator case loads. Larcenies are difficult to investigate, not because they are exceptionally complex cases, but because they 14 THE FORENSIC EXAMINER® Winter 2009

are often not discovered or reported soon after they occur. Moreover, victims oftentimes are not able to accurately describe the property that has been taken.

Burglary, Housebreaking, and Unlawful Entry Burglary, housebreaking, and unlawful entry involve entry onto or into property without permission or authorization (Department of the Army, 1985). There are various technical differences with regards to the definitions and syntax, depending on the jurisdiction and specific statutes. The following explanations are derived from federal law and only serve as a point of reference (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg & Ward, 2007).

Burglary is generally a crime of stealth that is usually committed under the cover of darkness against the personal dwelling of another and with the intent to commit a crime. The terms “breaking” and “entering” are often associated with burglary.

“Breaking” means entering by force or trickery. Walking through a hole in the wall is not breaking, but gaining access by opening a cracked door or breaking a window would qualify as such. “Entering” occurs as soon as any part of the body is inserted into the dwelling. Inserting a pole or other object into the dwelling to extract property would also qualify as entering.

Housebreaking is similar to burglary in that the intruder enters a structure unlawfully with the intent to commit a criminal offense within the structure (Department of the Army, 1985). Housebreaking differs from burglary in that the place entered does not have to be dwelling. Unlawful entry onto lands or structures without force but by means of fraud or other willful wrong is similar to housebreaking; however, the intent to commit an offense within the place entered is not needed.

The following are some general questions to keep in mind when investigation a burglary or housebreaking (Department of the Army, 1985; Fisher, 2004, Lyman, 2008, Ogle, 2007, Osterburg & Ward, 2007):

• Is the structure entered a residence, store, office, building, warehouse, or garage?

• Where were the owners or occupants at the time of the crime?

• When did they leave? Were all the doors and windows secured?

• Where were the keys? Did other burglaries and housebreakings occur in the same area? Was the same modus operandi used?

• Have there been any recent visitors to the premises? What about tradesmen and utilities inspectors?

• Was the crime committed by someone inside or outside the premises?

Were the premises occupied at the time? Was entry gained by force? If it was an outside job, how did the suspect enter?

• Was entry accomplished by picking a lock, by taking wax impressions, or by using skeleton keys, picks, or other burglar tools?

• Does the completed list of property that was stolen include a detailed description with identifying data?

• Where, when, and how was any property recovered? Did the owner identify it?

• Did the thief limit the theft to one kind of property, or take other valuable items?

• Did the suspect conduct a systematic search? Did the search indicate knowledge of the area? Were alarm wires cut?

• Have pawnshops and secondhand shops been checked for the stolen items?

Have shipping offices been checked for evidence of recent shipments?

• Did the suspect do anything besides search and steal? Did the suspect eat, smoke, or mess up the premises?

Were any cigarette butts or matches found? What brand were they?

• Were any tools recovered at the scene?

Were any tools recovered from the person of the suspect or his/her dwelling?

• Has any person been seen loitering about the premises? Did anyone obwww.acfei.com

serve the criminal leaving the premises? Were any clues observed in or around the premises?

Arson Arson is the willful burning of another person’s property. Statistically, arsonists are creatures of habit who generally continue to set fires until they are caught (Department of the Army, 1985). Arson investigations are very complex and require the investigator to process large amounts of crime scene information in a short period of time, as valuable and perishable evidence is easily lost or overlooked. As such, investigators should develop good liaison with the local fire marshals.

Fire investigations involve finding out five things (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg & Ward, 2007): 1), time, 2) temperature, 3) point of origin, 4) fuel, and 5) ignition source. First of all, the investigator must know how long the fire has burned before it was brought under control and assess the amount of damage compared to the time involved. A great deal of damage in a relatively short period of time indicates the possibility of accelerants, multiple fire sets, or a deliberately arranged draft. Secondly, the investigator must learn the degree of heat in various areas during the fire, as the amount of heat given off by a fire is governed by the fire in that area. Indicators of extremely high heat with little fire load may indicate the use of accelerants. Third, the investigator must determine the point of origin of the fire, as this will reveal the cause and ultimately determine why it was started. Fourth, the investigator must determine what material was first ignited in order to learn if the material is found naturally at the point of origin or, if not, why it was there. Finally, the investigator must determine what caused the fuel to ignite.

Again, was the heat source natural to the area or, if not, why was it there?

The following are suggested steps to take when investigating a potential arson (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Ogle, 2007; Osterburg (800) 592-1399

& Ward, 2007): • Asses the amount of damage in relation to the length of time the fire has burned.

• Note indicators of extremely high temperatures in the presence of a small fire load.

• Locate the fire’s point of origin.

• Find the source of heat and note the kind of fuel.

• Note signs of fire behavior not explained by principles of burning.

• Eliminate natural causes.

• Look for evidence of multiple unconnected fires.

• Look for and link ignition devices, accelerants, and “trailers” to the fire’s point of origin.

• Look for evidence that valuables have been removed, fuel stockpiles, drafts created to enhance oxygen supply, or other special preparations have been made for the fire.

• Establish proof of incendiary fire.

• Process the crime scene, identify suspects, and complete the investigation.

Conclusion Crimes against persons and property affect victims and their families in the most personal ways. Domestic violence is often an underlying factor in murders, rapes, and assaults, which adds to the complexity of solving them. The nature of mass, spree, and serial murders add another dimension to crimes against persons, which requires a special investigative approach. The successful investigation of property crime requires the investigator to constantly ask pertinent questions in order to drive the investigation to a successful conclusion.

References Connor, M. G. (2002). Abuse violence. Retrieved August 28, 2009, from http://www.crisiscounseling.com.

Criminology Today. (1995-2002). Crimes against persons. (chap. 10). Retrieved August 23, 2008, from http://cwx.prenhall.com/crim2day/chapter10/ Department of the Army. (1985). Law enforcement investigations. Washington, DC: Author.

Domestic Violence. (2009). Retrieved August 28, 2009 ,from http://www.domesticviolence.org.

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

Hazelwood, R. R., & Burgess, A. W. (2009). Practical aspects of rape investigation: A multidisciplinary approach (4th ed.). Boca Raton, FL: CRC Press.

Hoffer, E. (1951). The true believer: Thoughts on the nature of mass movements. New York: HarperPerennial.

Kellerman, J. (1999) Savage spawn: Reflections on violent children. New York: Ballantine Publishing Group.

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

McCrary, G. O., & Ramsland, K. (2003). The unknown darkness: Profiling the predators among us.

New York: Harper Collins.

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

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

Turvey, B. E. (2008). Criminal profiling: An introduction to behavioral evidence analysis (3rd ed.).

Burlington, MA: Academic Press (Elsevier).

Turvey, B. E., & Petherick, W. (2009). Forensic victimology: Examining violent crime victims in investigative and legal contexts. Burlington, MA: Academic Press (Elsevier).

Walker, L. E. A. (2000). The battered woman syndrome (2nd ed.). New York, NY: Springer Publishing. n

Winter 2009 THE FORENSIC EXAMINER® 15

CE ARTICLE: 3 CE CREDITS

THECRIME-TERRORNEXUS

By Frank S. Perri, JD, MBA, CPA; Terrance G. Lichtenwald, PhD; and Paula M. MacKenzie, PsyD. his article explores the symbiotic relationship between organized crime and terrorist organizations including when there is evidence that such relationships have become indistinguishable.The authors examine the symbiotic relationships detected within the United States of America and other areas of the world. Both groups focus on cigarette diversion, narcotics, and illegal immigrant smuggling. Specific groups such as Hezbollah, the Irish Republican Army, and other crime-terror organizations are used to illustrate these collaborations. This article outlines tools that can be used to identify crime-terror nexus points. Recommendations derived from the importance of using multi-agency working groups coupled with the emerging importance of forensic examiners in the fight against the crime-terror nexus are offered.

Introduction When the FBI transported Ramzi Yousef by helicopter over Manhattan following his capture for the 1995 bombing of the World Trade Center’s Twin Towers, an FBI agent pulled up Yousef ’s blindfold and pointed out that the lights of the World Trade Center were still glowing. “They’re still standing,” the FBI agent stated. Yousef is reported to have responded, “They wouldn’t be if I had enough money and explosives” (Dickey, 2009).

The problems of organized crime and terrorism were often considered separate phenomena prior to 9/11 (Shelley, n.d.).

Security studies, the military, and law enforcement seminars discussed the emerging threat of transnational organized crime or terrorism, but the important links between the two were rarely made. Part of the reason for the lack of linkage may be due to the fact that organized crime and terrorism 16 THE FORENSIC EXAMINER® Winter 2009

are usually viewed as two different forms of crime. Organized crime’s main focus is economic profit, while terrorism is said to be motivated by ideological aims and a desire for political change (Bovenkerk & Chakra, n.d.). Not connecting the two organizations may be realistic given that Yousef indicated that the lack of financial and logistical support prevented him from running a high-scale terrorist operation with a bigger bomb than what he had used in 1993 (Levitt, 2002).

Since the end of the Cold War and the subsequent decline in state sponsorship for terrorism, while building on the precedent set by narco-terrorism as it emerged in the 1980s in Latin America, the use and imitation of organized crime tactics has been an important factor as methods to produce revenue for terrorist groups. Consequently, the 1990s can be described as the decade in which the crime-terror nexus was con-

solidated and the two separate organizations identifiable by their distinct motives began to reveal operational and organizational similarities (Makarenko, 2004). In fact, organized crime and terrorism appear to be learning from one another and adapting to each other’s successes and failures (Makarenko, 2004). Yet as the above quote illustrates, September 11th has changed how nations view the interrelationship between these organizations, especially since terrorist groups now use the services of organized crime to assist their activities, and terrorists themselves engage in organized crime activities to support themselves financially.

For example, both organizations operate on network structures that at times intersect, such as using smuggling and other illicit means to raise cash and then employ similar fraud schemes to move their funds.

According to Robert Charles, former U.S. assistant secretry of state for International Narcotics and Law Enforcement Affairs, “Transnational crime is converging with the terrorist world (Kaplan, Fang & Sangwan, 2005). These authors quote Vindino from his book on al Queda, “Crime is now the main source of cash for Islamic radicals.” According to the United States Drug Enforcement Agency (DEA), nearly half of the 41 groups on the government’s list of terrorist organizations have ties to organized narcotics trafficking syndicates (Lormel, 2002). This statistic does not include other types of trafficking such as human or alien smuggling.

The authors caution, however, that the link between these groups, although evident, is not always clear. The problem may be partly due to the fact that there are different types of organized crime and terrorists groups. There are organized crime groups that use violence or the threat thereof to commit extortion to enforce “business agreements” where the state fails partially or completely from enforcing contracts such as in Sicily and the former Soviet Republic (Bovenkerk et al., n.d.).

Then there is the type of organized crime that would rather operate clandestinely so smuggle narcotics or people and avoid contact with the authorities.

Although terrorist groups have a common goal of frightening people by using extreme violence in their efforts to influence political developments, studies of terrorist groups www.acfei.com

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

After studying this article, participants should be better able to do the following: 1. Illustrate some of the contributing factors that make the crime-terror link possible.

2. Recognize the common criminal tactics and activities that both terrorists and criminals engage in to fund their organizations.

3. Consider different strategic methods to identify where a crime-terror link might exist.

4. Recognize the benefits of forensic examiners and interagency cooperation as tools to combat the crime-terror link.

KEY WORDS: organized crime, terrorist financing, Hezbollah, Irish Republican Army, fraud, hybrid terrorist, cigarette smuggling, black hole syndrome TARGET AUDIENCE: Criminal investigators PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose.

PREREQUISITES: None

and their activities tend to support the position that their differences may be equal to more than their similarities (Cronin, 2002).

Despite the fact that the nuances between these groups and their relationships may not be precisely defined, the authors believe that the war against terrorism cannot be separated from the fight against organized crime. The fight against terrorism is being undermined by a critical lack of awareness about terrorists’ links with organized crime, and crime analysis must be central to understanding the patterns of terrorist behavior. Criminal analysis cannot be viewed as a peripheral issue.

In this article the authors examine factors that make collaboration more likely, case studies illustrating the interaction, tools available to identify where there may be an overlap between these groups, how legitimate organizations may be directly involved in terrorist funding, and recommendations for professionals involved in the detection of these two groups working together.

Identifying Crime-Terror Interaction “They’re not al-Qaeda, they’re just a Mafia.”

Majib Benhamiche–Algerian Militiaman Organized crime groups and terrorists function where the control of the central state is least and where there are porous borders and ineffective law enforcement. For example, terrorists in Europe are engaging in human smuggling both with and without the help of organized crime— especially in Sicily. Italian authorities suspect that one (800) 592-1399

s Ramzi Ahmed Yousef, MCT Photo

gang of terrorists made over 30 landings in Sicily and moved thousands of people across the Mediterranean at some $4,000 per head (U.S. News & World Report, 2005). The national news story (WHDH-TV, 2006) included a statement from a retired FBI official: “I am aware of a high-level Mafia figure, who was cooperating with authorities, being asked if the Mafia would assist terrorists in smuggling people into Europe through Italy…The retired agent is reported to have advised that he understood the high-level Mafia boss to have said, “The Mafia will help whoever can pay.”

In fact, al-Qaeda has been using the Naples-based Camorra Mafia for expertise in forging documents, extensive networks, and to move al-Qaeda operatives through Europe to safe houses (Chepsiuk, 2007).

According to Italy’s political crimes unit, the number of al-Qaeda operatives passing through Naples many have exceeded a thousand. If Camorra should experience

any problems, they will send the operatives off on one of the many trains leaving the city or via speed boats that Camorra uses to traffic drugs, cigarettes and other contraband. The Camorra al-Qaeda alliance is just one of many examples where the distinct line between organized crime and terrorism has blurred rapidly.

Others provide the home base for terrorist groups where a cooperative or even symbiotic relationship exists between the crime group and the terrorist group operating within the region. Our research indicates that organized crime tends to flourish most when groups in society see their own interests as separate from that of the system of government and the norms promulgated from that system.

They flourish where the law enforcement standards are low and there is limited respect for legal authority. They also flourish where local law enforcement cannot successfully police ethnic sub-communities within the predominant community.

Winter 2009 THE FORENSIC EXAMINER® 17

In conflict zones and certain urban areas, for example, criminals are less constrained by respect for political systems and the rule of law, less intimidated by regulation and law enforcement, and are often motivated by a desire to subvert or disregard the established order. Organized crime is also growing in the heart of many major cities, in penal institutions, and in democratic societies where sub-groups do not share the norms of the larger society. It is not just terrorists who benefit from adopting tactics from organized crime; cooperation with terrorists and adoption of their tactics may benefit organized crime by destabilizing the political structure, undermining law enforcement and limiting the possibilities for international cooperation so that they can maximize their profits (Makarenko, 2004). For example, traditional Mafia groups learned to use the magnifying glass of symbolic violence to reach a wider audience when the Sicilian Mafia executed a series of car bombings in the Italian mainland, specifically Rome and Florence, in the early 1990s (Makarenko, 2009). The goal was to intimidate the public by openly challenging the political structure so that Parliament would renounce the anti-Mafia legislation.

Patterns of criminal behavior generated overseas are transferred to the United States through U.S.-based cells of foreign terror group—and tend to persist once transferred. For example, Hezbollah involvement in cigarette trafficking was observed first in Latin America then subsequently prosecuted in North Carolina. Chechen terrorists’ involvement in the sex trade industry in Russia has been noted by Los Angeles law enforcement. In developing countries, criminals and terrorists tend to spawn more collaborative relationships that are closer knit.

In the developed world, organized crime is more likely to coexist with terrorism at arm’s length through business transactions.

Some terrorists have benefited from the participation of legitimate businesses and some of the most serious terrorism cases detected have not involved organized crime groups at all—the terrorists have acted alone using the methods of organized crime. Similarly, a terror group may traffic drugs to fund its violence campaign, but it remains first and foremost a terrorist organization.

While the motives of terrorists and organized criminals offen differ, our research indicates this is not always the case, and such a general approach has become too restrictive and can be misleading since the inter18 THE FORENSIC EXAMINER® Winter 2009

actions between terrorism and organized crime is complex. The question becomes, “How do we take this complexity and organize data to quickly identify interaction between these two groups?” The approach developed by Shelley, which is briefly summarized below, is derived from a standard intelligence analytical framework and has already proven its utility in law enforcement investigations by analyzing the points of convergence between organized criminals and terrorists to draw useful conclusions for investigators.

Using this approach, the next stage for investigators is to organize all available information and data about a crime-terrorist link. Acknowledging that almost all investigators have access to data, but lack effective means to analyze it, a more efficient methodology is needed to eliminate irrelevant avenues of inquiry and use limited resources more prudently. Drawing on a military intelligence method called Intelligence Preparation of the Battlefield (IPB), the proposed method, Preparation of the Investigation Environment (PIE), allows investigators to identify the areas where terrorism and organized crime are most likely to interact. Such areas are expressed not only in geographic but in circumstantial terms as well. For example, the report identifies the way groups organize themselves, communicate, use technology, employ their members and share cultural affinities as points for overlap. Within each of these areas, we attempt to identify watch points where investigators can then identify specific indicators that suggest whether or not cooperation between known terrorists and a specific criminal group is actually taking place.

The goal of PIE is similar to that of IPB—to provide investigators and analysts a strategic analytical method to identify areas ripe for locating terror and crime interactions, confirming their existence, and then assessing the consequences of these collaborations. Indicators within watch points assist analysts in looking for data that suggests tangible crime-terror interactions, such as communications between a known criminal and a known terrorist. As analysts and investigators undertake the construction of a case, they can use PIE to frame further investigation in a way that assesses the data, either confirming that collaboration exists or dismissing the data.

The PIE methodology shows how insights can be gained from analysts to help practitioners identify problems and orga-

nize their investigations more effectively.

Rather than simply organizing data more efficiently, investigators need analytic techniques that help reduce the time spent locating potential interactions and better focus their activities on the most relevant evidence about terror and crime groups.

The application of PIE is an efficient tool for analyzing the behavior of criminal and terrorist groups because it focuses on evidence about their operational behavior as well as the environment in which they operate. The evidence is plentiful: communications, financial transactions, organizational forms, and behavioral patterns can all be analyzed using a form of IPB. By identifying watch points of crime-terror collaboration potentia, the goal is to generate intelligence for the development of early warning on planned terrorist activity.

The Theoretical Basis for the PIE Method Shelley cites Donald Cressey’s study of organized crime in the United States, drawing upon the analogy of an archeological dig as the starting point for the model of crime-terror cooperation. As Cressey analogized the scenario, archeologists first examine documentary sources to collect existing knowledge and use it to develop a map.

That map allows the investigator to focus on the unknown areas—that is, the archeologist uses the map to focus on where to dig. The map also serves as a context within which artifacts discovered during the dig can be evaluated for their significance. For example, discovery of a bowl at a certain depth and location can provide information to the investigator concerning the date of an encampment and who established it.

An important reason to collect data about the interactions between criminal and terrorist groups is to provide law enforcement and intelligence agencies with actionable information. This data, organized with the help of PIE, helps reduce uncertainties concerning the enemy, focuses investigations, reduces time wasted by analysts reviewing useless information, improves warning time, and reveals vulnerabilities by identifying watch points.

Adapting the three components of IPB to PIE, the organizational composition of criminal and terrorist networks, the environment where they meet, and the behavioral patterns of each group, the combination of these three components results in a series of watch points, or areas where anawww.acfei.com

lysts and investigators might find crimeterror cooperation.

Crime-terror connections are more likely to occur in areas of the world where the state has little presence and means of control, which is often exemplified by shadow economies, corruption, and regional conflicts.

Territory outside the control of the central state, which is seen in failed or failing states; poorly regulated or border regions (especially those regions surrounding the intersection of multiple borders); and parts of otherwise viable states where law and order is absent or compromised, including urban quarters populated by diaspora communities or penal institutions; are favored locations for crimeterror interactions.

Application of the PIE Approach: The Republic of Georgia The first application of PIE, according to Shelley, focused on the Republic of Georgia to identify a specific crime-terror interaction—namely money laundering. The ability to organize the financial records from a major money launderer allowed the construction of a significant network that allowed understanding of the linkages among major criminal groups whose relationship has not been previously acknowledged. The PIE approach provided Georgia—a country with limited expertise in transnational crime, terrorism or money laundering—the possibility to achieve a successful prosecution and to assist other countries identified through subsequent network analysis to receive significant assistance in their investigations.

A preliminary analysis applied information to the PIE watch points and found strong evidence to suggest crime-terror interactions could be operating in or facilitated by operations within the Republic of Georgia. Some of the most relevant information to Georgia included but was not limited to: 1) Corrupt Georgian officials held high law enforcement positions prior to the Rose Revolution and maintained ties to crime and terror groups that allowed them to operate with impunity; 2) Similar patterns of violence were found among organized crime and terrorist groups operating in Georgia; 3) Numerous banks, corrupt officials, and other providers of illicit goods and services assisted both organized crime and terrorists; and 4) Regions of the country supported criminal infrastructures useful to organized crime and terrorists alike, including Abkhazia, Adjaria, and Ossetia.

If the interaction between the pieces of information triggered an indication that (800) 592-1399

would warrant further exploration, the next step would be to determine what would be the watch points to examine for patterns of interactions between crime-terror groups.

Combined with numerous other pieces of information and placed into the PIE watch point structure, the resulting analysis triggered a sufficient number of indicators to suggest that further analysis was warranted to attempt to locate a crime-terror interaction. An analysis of the watch points examined suggested that the financial environment would facilitate the link between crime and terrorism—specifically money laundering.

Numerous banks had developed within Georgia, a country which has a huge shadow economy coupled with a decline of the Georgian economy at the time of the analysis. This would indicate that there was not enough business to support several banking institutions. Consequently, within the context of specific PIE watch points, a bank would appear suspicious if it was small, had few commercial clients, yet appeared to be doing a very significant volume of transactions when other banks were struggling economically. A six-month analysis of such a bank and its transactions enabled the development of a massive network analysis that facilitated prosecution in Georgia. Using PIE allowed a major intelligence breakthrough by locating a large facilitator of dirty money, identifying connections between crime and terror groups, and revealing the enormous role that purely “dirty banks” housed in countries with small economies can provide as a service for transnational crime and terrorism. It was learned that the Georgian bank serviced a Russian crime group with links to South American terror groups. Moreover, the analysis illustrates the importance for U.S. investigators and analysts to look overseas for sites of crime-terror operations that could come to our shores.

The Crime-Terror Interplay with Cigarette Smuggling It is not surprising that terrorist cells within the United States have used cigarette smuggling as a method to fund their operations.

Specifically large quantities of cigarettes are sold on the black market at below retail cost by avoiding paying tobacco tax rates or by paying lower tax rates in certain states.

For example, the information regarding the Mohamad Hammoud Terrorist Cell and the Hassan Moussa Makki Terrorist

Cell was taken from a congressional senate report from September 11, 2007, addressing the issue of cigarette trafficking.

The Hammoud business model involved moving large amounts of cigarettes across state lines, where they would be sold for a substantial profit in states with higher tobacco tax rates. In North Carolina, where they purchased the cigarettes, the tax was 50 cents per carton. They would then load the cigarettes onto large trucks and and vans and drive them to Michigan, where they would sell them to local convenience store owners.

In Michigan, the tax was $7.50 per carton, but those taxes were never paid. By avoiding Michigan’s tobacco tax, it is estimated that these individuals were able to make anywhere from $3,000 to $10,000 on each trip. According to court documents, “the conspiracy involved a quantity of cigarettes valued at roughly $7.5 million and that the state of Michigan was deprived of $3 million in tax revenues.” Hammoud transferred funds generated by the cigarette trafficking scheme, as well as money raised from other sources, back to Lebanon to support Hezbollah, a designated foreign terrorist organization. That support included cash and dual-use equipment, such as night vision goggles, high-end computers, ultrasonic dog repellents, and global positioning systems.

In September 2003, Hassan Moussa Makki plead guilty to charges of cigarette smuggling, racketeering, and providing material support to a foreign terrorist organization. From 1996 to 2002, Makki and his coconspirators would obtain low-tax cigarettes from the Cattaraugus Indian Reservation in New York and North Carolina and sell them for a substantial profit in Detroit. According to the ATF, Hassan Makki was trafficking between $36,000 and $72,000 of contraband cigarettes per month between 1997 and 1999. It was later discovered that one of Makki’s sources for cheap cigarettes was Hammoud’s North Carolina smuggling ring.

Like Hammoud, Makki would then remit the proceeds from these illegal tobacco sales to Hezbollah. This is only one example of a vast, interstate conspiracy engaged in cigarette smuggling operations inside the United States and funnel the proceeds to a foreign terrorist organization. It has been reported that cigarette smuggling investigations have been linked to Hamas, Hezbollah, al-Qaeda, the Taliban, and other designated foreign terrorist organizations in recent years.

Winter 2009 THE FORENSIC EXAMINER® 19

Legitimate Businesses Interact with Terrorists “A society that applauds innovation in the world of business can hardly expect to escape innovation in the world of crime.”

Criminologist Sir Leon Radzinowicz The next case involves a for-profit corporation that was caught, but not convicted of, aiding terrorist organizations. This case reached national attention when a number of foreign governments referred to as the European Community (EU), filed a lawsuit against RJ Reynolds Nabisco, the parent company of RJ Reynolds Tobacco Company (RJR), alleging money laundering activities conducted by RJR during cigarette diversion smuggling operations.

Because RJR could not directly market and sell their cigarettes in Iraq, they bypassed the restriction by using a Cyprusbased company to sell in Iraq. This case was not investigated by U.S. law enforcement but was the result of long-term investigations by the EU, who presented in U.S. court significant evidence that a major American company had violated both U.S. law and the UN embargo on sales to Iraq and had done this with the complicity of a recognized terrorist organization (Shelley & Melzer, 2008). The RJR case illustrates that the behavior defined as organized crime is not necessarily restricted to commonly known organized crime groups.

The smuggling was accompanied by other illegal acts such as document fraud, false invoicing, and money laundering. RJR even paid protection money to a terrorist group to achieve their large volume of sales (Shelley & Melzer, 2008).

Legitimate businesses that decide to conspire with crime-terror links should be aware that such liaisons are risky. The authors caution that it should come as no surprise that corporate employee deaths may result from the interaction between legitimate businesses and crime-terror groups, especially if there are fraud detection issues a forensic examiner may disclose so that accomplices (crime-terror links) are not revealed (Perri & Lichtenwald, 2007, 2008). Fraud detection homicide is not uncommon, and white collar criminals who engage in fraud will kill co-workers who may be tempted to disclose their fraudulent and conspiratorial behaviors. Interestingly, these white collar criminals who do kill appear to have the same personality disorder of psychopa20 THE FORENSIC EXAMINER® Winter 2009

thy as many of the crime-terror individuals they assist; they do not hesitate to kill those who interfere with their schemes (Perri & Lichtenwald, 2007, 2008). Conversely, it would be possible for a corporate employee to be killed by crime-terror groups that do not want what appears to be a legitimate corporate employee who is conspiring with them to cooperate with authorities and reveal their plans and identities.

The RJR case illustrates that a legitimate business can function in ways that are similar to a criminal organization. The corporation committed wire fraud, produced fraudulent documents, evaded taxes, deliberately violated trade embargos, cooperated with identified terrorists to increase profit and market share—traits that are no different from other organized crime entities. In many respects the cost-benefit analysis to corporations makes their association with terrorist appear riskless because the probability of criminal or civil prosecutions is so low and the monetary returns are enormous. Unfortunately, the failure to punish corporations such as RJR only encourages other corporations to engage in similar behavior while further exposing the United States and our allies to terrorist attacks.

It appears that corporations must police themselves because the U.S. government has failed to back decisive action against cigarette smuggling; “The failure to address cigarette smuggling in a comprehensive manner is part of a larger failure of most of American law enforcement to address the links between crime and terrorism” (Shelley & Melzer, 2009).

The Lebanese-Mexican Symbiotic Smuggling Network Salim Boughader Mucharrafille, a Mexican of Lebanese descent, was owner of Cafe La Libanesa in Tijuana, Mexico, catering to customers of some of Tijuana’s more affluent citizens, including workers at the U.S. Consulate located a short distance away.

However, it was not the customers who came to the café to dine and socialize that lead to Boughader’s arrest in December 2002. It was his founding and leadership of the Lebanese-Mexican smuggling network that smuggled 200 illegal Lebanese immigrants and an unknown number of whom were sympathetic to, financial supporters of, or linked to known terrorists with Hezbollah. Boughader’s total disregard for any crimes the illegal Lebanese immigrants would commit while hiding in the United

States, including his backing of their support for terrorist activities of Hezbollah, was an major problem. “If they had the cedar on their passport, you were going to help them…What’s the crime in bringing your brother so that he can get out of a war zone?” Boughader told The Associated Press from a Mexico City prison, where he faces charges following a human-smuggling conviction in the United States (Arrillaga & Rodriguez, 2005).

Of interest with respect to Shelley’s crimeterror link was that Boughader had no difficulty both structuring and justifying the double deception involved in both the nature of his legitimate business front (café) and the justification for the criminal business (smuggling) with links to Hezbollah.

In addition, the café also allowed a means for money laundering. “For us, Hezbollah are not terrorists,” said Boughader, echoing the feelings of most Lebanese”…I regret that what I was doing is against the law, but I don’t regret what I did to help people.” The statement goes directly to the issue which is for individuals like Boughader and the unknown number of individuals he smuggled into America, the belief that murder committed in the name of Hezbollah (including the murder of the marines stationed in Beirut in 1982) is justified. The treachery is that the very country the Lebanese infiltrated considers Hezbollah a terrorist organization, and the murders and hate crimes committed by Hezbollah are regarded as a crime. Nevertheless, the Lebanese Boughader smuggled want to live in America with all the rights of citizenship but with none of the responsibilities; for example, not supporting an enemy of America who has as part of his terrorist philosophy the right to murder American citizens.

Another major deception was the cover story offered by Boughader when interviewed by the Associated Press. Boughader attempted to cast himself in the hero role by claiming that his only crime might be helping people who had found their way to his café to escape from a war zone in the Middle East. Such statements by smugglers whose contraband is people is suspect and are designed to mislead the listener about the malice inherent in human smuggling. Thus, it was no surprise that those who were smuggled through the Lebanese-Mexican smuggling network were just the reverse of what Boughader claimed. Another reversal of facts presented by Boughader was that contrary to not www.acfei.com

making a profit, it was only after receiving a large profit up front that he would hand his clients over to organized criminals in Mexico, who did not ask about the background or motives of the Lebanese they were bringing into the U.S. Boughader’s Lebanese-Mexican smuggling network is a clear example of a symbiotic relationship between a criminal organization (Mexican Smugglers) and Boughader, who was running human contraband (Lebanese)—many who were enemies of the United States.

A review of the people who paid Boughader for the use of the LebaneseMexican smuggling network offered two examples of Hezbollah supporters. One of the individuals who paid to be smuggled worked for a Hezbollah-owned television network that glorifies suicide bombers.

This individual developed propaganda against America during a period in which American soldiers died while serving in the Middle East. In another case, a Lebanese carpenter, Mahmoud Youssef Kourani, who Boughader arranged to be smuggled using the Lebanese-Mexican smuggling network in California, admitted spending part of his time in the United States raising money to support Hezbollah—at least $40,000, according to an FBI affidavit.

However, a further check of court records indicated that Kourani told the FBI his brother is the group’s (Hezbollah) chief of military security in southern Lebanon (Fox News, 2005). Prosecutors alleged the brother directed Kourani’s U.S. activities. Thus, Shelley’s crime-terror link and data imputed in a PIE analysis would show terrorists rich with cultural loyalties and family ties. Again we observe that the criminal-terrorist spectrum includes many people who wish to destroy America while simultaneously claiming the freedom and civil rights as citizens.

Hezbollah Hezbollah is using the same southern narcotics routes that Mexican drug kingpins use to smuggle drugs and people into the United States and reaping money to finance its operations and threatening U.S. national security. The Iran-backed Lebanese group has long been involved in narcotics and human trafficking in South America’s triborder region of Paraguay, Argentina, and Brazil. However, it increasingly is relying on Mexican narcotics syndicates that control access to transit routes into the United States; Hezbollah relies on “the same criminal weapons smugglers, document traffick(800) 592-1399

ers and transportation experts as the drug cartels,” said Michael Braun, former assistant administrator and chief of operations at the U.S. Drug Enforcement Administration (Carter, 2009).

“They work together,” Braun said. “They rely on the same shadow facilitators. One way or another, they are all connected.

They’ll leverage those relationships to their benefit, to smuggle contraband and humans into the U.S.” (Carter, 2009). His comments were confirmed by six U.S. officials, including law enforcement, defense, and counterterrorism specialists. In October, U.S. and Colombian law enforcement agencies broke up a Hezbollah drug trafficking ring that was funneling profits to markets in Europe, the United States, and militias in Lebanon, according to Department of Justice reports. The ring’s director was Shukri Mahmoud Harb, a money launderer who was arrested with 130 Hezbollah colleagues (Sale, 2009). While Hezbollah appears to view the United States primarily as a source of cash, and there have been no confirmed Hezbollah attacks within the U.S., the group’s growing ties with Mexican drug cartels are particularly worrisome at a time when a war against and among Mexican narco-traffickers has killed thousands of people in the past year and is destabilizing Mexico along the U.S. border (Lichtenwald, Perri & MacKenzie, 2009).

Two U.S. law enforcement officers familiar with counterterrorism operations in the United States and Latin America, said that “it was no surprise” that Hezbollah members have entered the U.S. border through drug cartel transit routes. “The Mexican cartels have no loyalty to anyone…They will willingly or unknowingly aid other nefarious groups into the U.S. through the routes they control” (Gedalyahu, 2009).

A senior U.S. defense official, who spoke on the condition of anonymity because of ongoing operations in Latin America, warned that al-Qaeda could also use trafficking routes to infiltrate operatives into the U.S. “If I have the money to do it …I want to get somebody across the border— that’s a way to do it…Especially foot soldiers…somebody who’s willing to come and blow themselves up,” according to the defense official (Carter, 2009). Hezbollah smuggles weapons, document traffickers, narcotics, and alien and human contraband along routes used by drug cartels—enlisting Lebanese Shiite expatriates to negotiate contracts with Mexican crime bosses.

The Black Hole Syndrome Although some terrorist groups maintain the public façade that their goals are political, the evidence no longer supports their statements. No longer driven by political agendas, but rather by the quest for profit, groups that were solely terrorist groups use terror tactics for several reasons. First of all, the terror tactics keep governments and law enforcement officials focused on political issues as opposed to initiating criminal investigations and secondly, terror tactics are a tool these groups use to assert themselves against rival criminal groups (Makarenko, 2004). Groups that illustrate their evolution from a terrorist organization into a group that is primarily engaged in criminal activity include Abu Sayyaf of the Islamic Movement of Uzbekistan and the Revolutionary Armed Forces of Colombia (FARC). There is little indication that Abu Sayyaf remains driven by its original political motive, which was to establish an independent Islamic republic in the territory comprising Mindanao, surrounding islands, and the Sulu Archipelago. In 2000, Abu Sayyaf’s kidnapping deals have brought in about $20 million. (Makarenko, 2004).

FARC has lost its revolutionary zeal and has turned to the development of criminal cartels; It is believed that FARC controls 40 percent of the Colombian territory (Makarenko, 2004).

The inability to distinguish the two groups may lead to what Makarenko (2004) refers to as the “black hole” syndrome. The black hole syndrome encompasses two situations: first, where the primary motivations of the group engaged in a civil war evolves from a focus on the political aims to a focus on the criminal aims, and secondly, it refers to the emergence of a black hole state—a state that has been successfully taken over by a crime-terror group. Although this position reveals the extreme consequence of the crime-terror nexus ultimately blending into an indistinguishable entity, what is born is a scenario of constant civil or regional wars to secure economic and political power. These types of scenarios are not just theoretical considerations; they exist today in Myanmar, North Korea, Somalia, Sierre Leone, Angola, and in Pakistan’s Northwest Frontier Province. Wars that were originally fought for ideological and religious reasons have morphed into wars that are fought to advance criminal interests secured by terrorist tactics. Today ideological, political, and religious rhetoric is the guise used to seWinter 2009 THE FORENSIC EXAMINER® 21

cure legitimacy and as a recruiting tool. The Taliban, for example, once an organization of seminary students seeking to establish a caliphate, the Islamic form of government representing the Muslims, embraces Mafialike activities that feed on insecurity for financial gain (Kunduz, 2009). Together with poor governance, ineffective policing, and a weak justice system, “the nexus between the Taliban and crime has become dangerously entrenched in Afghan society…the Taliban are acting like a broad network of criminal gangs that enables them to utilize different sources of income” (Kunduz, 2009).

The authors agree with Makarenko (2004) that the country of Afghanistan has the characteristics of a black hole state. Even though the media coverage on the war does not efficiently address the crime-terror nexus and the true motives of those who are trying to take over the country, it would not be unreasonable to argue that the motive for the United States to be involved in the war is to reverse Afghanistan’s black hole condition that gave rise to groups such as al-Qaeda who organized and waged war on the United States. Unfortunately, an obstacle to reversing Afghanistan’s black hole condition is the fact that Afghanistan supplies the world’s opium with the assistance of transnational organized crime groups.

The drug trade creates the type of political destabilization that creates weak states; a perfect recipe for the birth of a black hole country. To date, after being at war

22 THE FORENSIC EXAMINER® Winter 2009

in Afghanistan for over seven years, there still does not appear to be a centralized authority capable of bringing stability to the country; rather it is a country of drug war lords dividing the country into local fiefdoms.

The authors would extrapolate Makarenko’s thesis of the black hole syndrome to the current crime-terror war that is being waged in Northern Mexico on the border with the United States, which was not as pronounced when Makarenko published her article in 2004. Although Mexico cannot be considered a failed state in technical terms, the narcotics war in Northern Mexico where thousands of people have died in the last two years appears to have the qualities of an emerging black hole region similar to Pakistan’s Northwest Frontier Province. There is evidence that the war in Mexico is spilling over in the United States (Bricker, 2009). It is premature to conclude whether the Mexican government can restore a sense of order to this region of the country or whether the United States will have its own black hole region referred to as the Southwest Frontier Province that overlaps Northern Mexico and the Southwestern U.S. The recent diplomatic talks between the United States and Mexico on how to address this issue cannot have come soon enough; organized crime here has borrowed fear tactics from terrorists including the murder of innocents, police officers, government personnel, beheadings, and torture.

The Irish Republican Army Islamist terrorist are not the first to resort to organized crime to help fund their operations, and they will not be the last. Both the Provisional Irish Republican Army and the militant splinter group Real IRA have used cigarette smuggling to finance their operations. While both groups seek the unification of the island of Ireland, the Provisional IRA announced in 2005 that it would henceforward use only peaceful means. The Real IRA continues to employ terrorist tactics including robbery, bombings, and assassinations, most recently shooting dead two British soldiers in Northern Ireland in March in order to undo the renunciation of violence by the Provisional IRA. “Cigarette smuggling has definitely been a major source of funding for the Provisional IRA—not only the Real IRA (RIRA)—and other terrorist groups in Northern Ireland,” said Rogelio Alonso Pascual, an IRA expert teaching at Madrid’s Universidad Rey Juan Carlos. In addition to RIRA and the Continuity IRA (CIRA) are committed to unraveling the Provisional IRA’s renunciation of violence and are not likely to stop in response to public pressure.

The Real IRA has flooded Ireland with contraband cigarettes and imported counterfeit versions of popular brands.

Authorities say the group is responsible for nearly all the smuggled tobacco seized in Northern Ireland, and they say cigarette smuggling has emerged as a top funding

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source for the organization. Combined, the IRA groups reaped an estimated $100 million in proceeds from cigarette smuggling over a five-year period, according to a 2004 report by William Billingslea, an analyst for the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives. Recently, a Miami man was indicted in connection to a cigarette smuggling ring with ties to the Real IRA. The arrest comes after a seven-year investigation stretching from the Canary Islands to Panama, through the port of Miami, and on to Ireland and the UK. Stratfor Global Intelligence (2009) reports that the IRA consists of four main splitter groups and that each group has specific behaviors that define it. This article asserts that those behaviors could also define each terrorist splinter group as a database set or object. The four groups and the specific behaviors are as follows: IRISH REPUBLIC ARMY SPLINTER GROUPS

*In bold red type are organized crime activities of the IRA

Another crime associated with the IRA is tiger kidnapping, in which criminals take hostage(s) or imply that they have hostage(s) who are typically a target’s family member(s). Tiger kidnappings entail stalking the target, gathering detail intelligence prior to the kidnapping, and then using a hostage scenario to force an employee to bypass an institution’s security system, commit the robbery, and give the money to the kidnappers (Control Risks, 2009). On February 27, 2009, criminals told a bank employee that they were going to kill a 5-year-old child, his mother and his maternal grandmother unless the bank employee produced money (Pogatchnik, 2009). This instance of a tiger kidnapping has been reported by one source to be related to members of an IRA faction. It is not clear whether it was the RIRA or the CIRA (Stratfor Global Intelligence, 2009), but tiger kidnappings have been completed by both IRA terrorist and sophisticated criminal groups (Control Risk, 2009).

The model proposed below serves as a method for studying terrorist-criminal activities based not only on the dynamics of the individual terrorist cells, but the interaction between the cells— in essence, a social network based on terrorist splitter groups.

Social network models allow law enforcement the opportunity to identify individual members of a cell as well as the princi(800) 592-1399

pal behaviors of the cell such as the type of crimes committed, types of smuggling they engage in and cells that commit fraud, violence as examples. Law enforcement officers will recognize that the model proposed below is simply a method based on what they already do during criminal investigations with one notable exception, the model is understood to mutate into different types of network structures in response to law enforcement pressure such as when arrests are made on a particular cell, the other cells may change their methods, sources of funding, contingency plans, etc.

For example, like a chess game where it is necessary to think multiple moves ahead, law enforcement must be prepared to anticipate the mutation and strike again before the mutated cells can converge. Conversely, law enforcements goal may be that they want the cells to converge after a mutation because they want to track who the criminal and terrorist reach out to in the social network. Nevertheless, forensic examiners specialize in working in the overlapping lines as well as the various organizational structures would not find the areas blurry because they are cognizant that criminals engage in terrorist acts and vice versa.

SOCIAL NETWORK TERRORORGANIZED CRIME MODEL The social networking model might take into account other factors such as the age of the cells members, level of education, personality traits such as callousness that are

unique to certain cell memberships, and the presence or absence of a charismatic leadership. This resolves the issue of not being able to distinguish actors in the crime-terror nexus because of the perception that the lines have been blurred between terrorist groups that engage in criminal activities to generate profit and those that do not. The authors propose that the benefit of the analysis of the social networking interactions between different cells is that such analysis identifies and clarifies the players and identifies opportunities for infiltration, disruption and dismantling the cells.

The benefit to law enforcement is the flexibility in perceiving who they are investigating which then generates the benefit of removing ambiguity from the nexus. For example, a terrorist who bombs might now be considered a member who also commits fraud. The behaviors that occur in the overlap between the cells illustrated above are part of behavioral science and the evidence (bullets, notes, fiber etc.) are part of crime scene investigations and social networking analysis all of which have made significant breakthroughs since the last time the IRA was active back in the 1998.

The overlapping lines between the different splinter factions in the Terror-Criminal Operations Model illustrated above suggest that different terrorist cells may increase, decrease, or even terminate their overlap, depending on a number of factors, including the personalities and preferences for specific types of crime of the individuals Winter 2009 THE FORENSIC EXAMINER® 23

involved in the cell. Although the INLA is considered to be responsible for organized crime to support the IRA, it is possible that an individual CIRA cell may engage in crime to support its individual terrorist cell.

Therefore, it is critical that the investigating agency identify which splinter faction has engaged in the criminal activity and begin the forensic process of documenting their findings and tracing both their behavior as well as the money back to the source and vice-versa.

The IRA reactivation offers an opportunity to study organized crime acts run by the same terrorist group: smuggling weapons, tiger kidnappings, and the murder of law enforcement. Thus, there is an opportunity to compare two criminal activities in a “within groups” type of research design for example comparing the criminal methods of the CIRA versus the OIRA or the RIRA versus the OIRA. The cross comparisons between the groups is important.

By isolating behavioral patterns, law enforcement will be more apt to identify the group and also strategy to infiltrate, disrupt, and dismantle the group. Also, knowing where the overlap lies between groups assists in determining how to further use the social network to get to the ultimate goal.

For example, if the goal was to ultimately infiltrate the OIRA, one method would be to identify a CIRA or RIRA cell that has a social network coming into the OIRA. Keep in mind that in the above example infiltration of the OIRA does not necessarily mean physically being part of the OIRA; it could mean gathering OIRA intelligence from one of the CIRA or RIRA cell.

Moreover, once the data is collected on one terrorist group such as the IRA, it will be possible to begin cross-cultural analysis that is a comparison between two different terrorist groups that engage in smuggling.

For example, the data regarding the terrorist groups operating in the United States (i.e. cigarette smuggling operation funding Hezbollah) can be compared against the IRA sources and methods. Moreover, once this information is collected, a cross comparison can be made between smuggling organizations that engage in terrorist acts (Cali and Felix drug cartels) and terrorist organizations that engage in smuggling (i.e. Hezbollah and IRA etc.) on a number of variables such as which terrorist organizations use certain types of smuggling techniques, what type of contraband is smuggled, how money is moved, types 24 THE FORENSIC EXAMINER® Winter 2009

of weapons used, how their counter intelligence operations work in identifying us, and so on.

The Role of the Forensic Examiner A myriad of fraud-based crimes, such as financial fraud, tax fraud, wire fraud, mortgage fraud, counterfeiting, identity theft, and document fraud, normally associated with organized crime has been adopted by terrorist with and without the assistance of organized crime. For example, a terrorist organization in Germany attempted to raise about a $1 million from insurance fraud to fund a suicide mission in Iraq (US News & World Report, 2005).

Al-Qaeda’s financial network in Europe, dominated by Algerians, is largely reliant on credit card fraud illustrating how these groups have manipulated economic globalization (Makarenko, 2004). According to Collins (2003), “All acts of terrorism enacted against the United States have been facilitated with the use of a fake or stolen identity.” Collins indicates that 5 percent of all identity thieves are connected to terrorism and 2 percent, specifically to alQaeda. In fact, the al-Qaeda terrorist involved in the September 11, 2001, attacks had opened 14 bank accounts using several different names, all of which were fake or stolen. Terrorists often use stolen or fabricated Social Security numbers, credit cards and passports to create false identities and pay for their operations, FBI officials say.

The men who financed the Sept. 11, 2001, terrorist attacks used fake IDs, and the FBI suspects that members of al-Qaida cells in the United States and abroad will engage in identity theft to help them carry out future plots as stated by Dennis Lormel, chief of the FBI’s Terrorist Financing Operations Section (Scott, 2003).

American’s premier organizations such as the FBI, ATF, ICE, and DEA have a long tradition in striving for high success in identifying, infiltrating, disrupting, and dismantling criminal organizations. An operating assumption on the part of these authors is that as these agencies continue to strive for success in apprehending members of such crime-terror organizations, the role of the forensic examiner will continue to become increasing more significant in such pursuits.

The blurring of the line between terrorist activities and organized crime presents an opportunity to more easily identify some of these groups and individuals due to the risks involved in partaking in traditional fraud re-

lated crimes and common street level crimes such as robberies. Specifically, criminal activities such as the jewelry store or bank robberies potentially increase the probability of a better evidence trail than ones that simply involve pure-play terrorist activity.

As cases illustrate, terrorists do engage in crimes that one would normally associate with street level criminals. For example, Moslem militants robbed a jewelry shop in West Java province of Banten to help fund the October 2002 Bali blasts that left 202 people dead, mostly foreign visitors (Bangkok Post, 2006). Jemaah Islamiyah, leader of an Indonesian terrorist organization, has engaged in bank robbery and credit card fraud. Indonesia’s 2002 Bali bombings were financed in part through jewelry store robberies that netted over 5 pounds of gold. (U.S. News & World Report, 2005) “A police spokesman said the suspect, Idris, was among 11 members of the Jemaah Islamiyah terrorist group arrested for a bank robbery in Sumatra” (Voice of America, 2003). Furthermore, the skills required to be an effective terrorist may not necessarily be transferable to organized crime; there are opportunities for mistakes for forensic examiners to analyze, and thus, the increase in detection of these terrorist organizations.

Given that there are risks attached to terrorist organizations expanding their operations to included organized crime tactics, their expansion also presents an excellent opportunity for United States agencies to better identify and dismantle these organizations. Delli-Colli (2006) of ICE believes that financial crimes are a direct threat because they also sustain and support the illicit activities of terrorists. These organizations often resort to white-collar crime tactics to raise cash, launder money, etc.; in many cases, white-collar crimes leave a paper trail that can be used to track people who are involved. Bender (2005) reports that officials say, “Cracking the car theft rings and tracing the cars could help identify the leaders of insurgent forces in Iraq and shut down one of the means they use to attack the U.S.-led coalition and the Iraqi government.” Agencies such as the FBI and ICE, who have forensic financial investigative expertise, could use their skills to combat these organizations. As stated above, one of the power strategies that terrorism enjoys is the clandestine quality of non-delectability: to strike at any moment and disappear. Yet, by partaking in regular crimes, mistakes are made, evidence trails www.acfei.com

become more apparent, and agencies can capitalize on such mistakes.

In addition, both the Bombay (1993) and Madrid (2008) attacks were not purely terrorist attacks; they also had criminals assisting in the preparation of the attacks.

Although the Bombay attacks were reported to be related to terrorist activity, the funding was connected to Dawood Ibrahim (a.k.a.

Dawood Ebrahim and Sheikh Dawood Hassan), who is identified as an organized crime figure. He is reported to be an Indian crime lord who has found common cause with al-Qaeda, sharing his smuggling routes with the terror syndicate and funding attacks by Islamic extremists aimed at destabilizing the Indian government (United State Treasury Department Press Release, October 16, 2003). Some terrorists operate their own criminal activities that may provide forensic analysts with further opportunity to anticipate attacks by focusing on the type of crime that is being used to fund their operations.

For example, if law enforcement knew which criminal activities terrorist cell members were using to obtain money, they would have an opportunity to infiltrate, disrupt, or arrest the cell members for the criminal acts prior to the terrorist acts. The Madrid bombing serve as a case in point because one member of the terrorist group, Jamal Ahmidan, used his skills as a drug smuggler and dealer to obtain explosives. The March 11, 2004, Madrid train bombings, consisted of 10 explosions aboard four commuter trains, killing 191 victims from 17 countries. The drug traffickers took charge of obtaining money, weapons, phones, cars, safe houses and Ahmidan rented a rural cottage turning it into a bomb factory while enlisting Spanish jailhouse contacts to arrange the exchange of 66 pounds of hashish for 220 pounds of dynamite stolen from a mine in the Asturias region (Rotella, 2004).

The terrorist’s plot behind the Madrid attacks was orchestrated by drug dealers with a network stretching from North Africa to Northern Europe in addition to the investigation uncovering about $2 million in cash and narcotics (Kaplan, 2005).

Identity theft is possibly one of the most lucrative enterprises which terrorists have engaged in, and they get much more than money from this crime. Identity theft facilitates terrorist goals of avoiding watch lists, obscures their whereabouts, assist in terrorist funding activities and gaining unauthorized access to entry points such as air(800) 592-1399

line gates, border crossings, or other facilities (Gartenstein & Dabruzzi, 2007). One critical aspect of identity theft, according to Denis Lormel of the FBI’s Terrorism Review Group, is the “cloak of anonymity” that it provides; identities are often stolen in order to carry out such violations of federal law as bank fraud, credit card fraud, wire fraud, mail fraud, bankruptcy fraud, and computer crimes. Moreover, this cloak of anonymity means that “[t]he use of a stolen identity enhances the chances of success in the commission of almost all financial crimes,” which again enhances the importance of forensic examiners to unravel identity mysteries (Gartenstein & Dabruzzi, 2007). The 9/11 Commission Report established that terrorists have committed identity fraud noting that “travel documents are as important as weapons. Terrorists must travel clandestinely to meet, train, plan, case targets, and gain access to attack.”

Counterfeit goods have become another illegal source of revenue for terrorists. The FBI’s 1996 confiscation of 100,000 counterfeit T-shirts that had fake Nike and Olympic insignia organized by the followers of Sheikh Omar Abdel Rahman, who was sentenced to life in prison for his involvement in a 1995 plot to bomb New York City landmarks (Emerson, 2002). Fake goods range from power tools to “designer” clothes to pharmaceutical products. Stratfor—a leading private intelligence firm that provides corporations, governments, and individuals with geopolitical analysis and forecasts—reports that Hezbollah has even supported past operations by selling knockoff designer products on New York City street corners (Gartenstein & Dabruzzi, 2007).

Recommendations “Transnational crime will be a defining issue of the 21st century for policymakers­—as defining as the Cold War was for the 20th century and colonialism was for the 19th.

Terrorists and transnational crime groups will proliferate because these crime groups are major beneficiaries of globalization.

They take advantage of increased travel, trade, rapid money movements, telecommunications and computer links, and are well positioned for growth.”

Louise I. Shelley During the Cold War, concerns about the crime-terror nexus were relatively insignificant, and it was relegated to insurgent groups in Latin America and regional drug

cartels; however, the international environment that emerged at the end of the Cold War together with the fall of the Soviet Union, created conditions that supported the development of criminal and terrorist entities (Makarenko, 2004). The development of these two entities has now resulted in the emergence of transnational organized crime and international networked terrorist groups as exemplified by al-Qaeda with these types of groups creating a state of heightened insecurity within the world of governments that are accustomed to military threats by known, identifiable state players now forced to react to economic and social destruction perpetrated by unknown non-state players (Makarenko, 2004).

In essence, what is considered a state under attack has been redefined, and the tools used by the state have to be reexamined. What is clear is that the old methods of fighting a new type of war will not work; the enemy has used the new tools of globalization to its benefit, and therefore governments must quickly retool its agencies to fight a new type of war. Just as the crime-terror players use their social networks to advance their goals, the fight cannot be waged solely by the United States.

It will take diplomatic international social networking by legitimate governments to pool their resources together to fight this well organized international enemy.

The authors outline some recommendations, however they caution readers that the list is far from exhaustive. They do offer an opportunity to critically examine areas that could be improved with agencies that already examine the crime-terror nexus and those areas that directly facilitate the work of organized crime and terrorists that appears to have fallen by the wayside for political reasons such as immigration reform and the porous border between Mexico and the United States. Growing reliance on cross-border criminal activities, facilitated by open borders, weak states, immigration flows, financial technology, and an intricate and accessible global transportation system, coupled with an interest to establish political control have contributed to the rise of the crime-terror nexus (Makarenko, 2004). In essence, international crimeterror groups are challenging legitimate governments, possibly for the first time in history, because they realize that first of all they have the power to do it now and secondly they realize that economic and political power enhance one another. The rise Winter 2009 THE FORENSIC EXAMINER® 25

of hybrid groups as opposed to two distinct groups is not unforeseeable as outlined in the black hole syndrome and as previously mentioned the current scenarios of Afghanistan and Mexico.

Resources taken away from the transnational and organized crime arena in the post 9/11 era are giving criminals a greater chance to operate and even provide services to terrorists. After all, there are striking similarities between terrorists and individuals engaged in organized crime. Both criminal types commit fraud, theft, violent street crime, traffic in drugs and human beings, extort, intimidate, and bribe. Both do business in the legitimate economy as witnesses by the R.J. Reynolds case. Although their motives at times appear different, organized crimes focusing on making money and terrorism aiming to undermine political authority, the perpetrators have similar profiles, and are often the same individuals.

For example, the problem of cigarette smuggling is an area that can be addressed even though the profits rival those of narcotics and the relative cheapness of the goods that are being smuggled. A shipping container containing 10 million cigarettes costs as little as $100,000 to produce in China, but can bring as much as $2 million in the United States. Cigarette smuggling bolstered the entire economy of Montenegro during the 1990s. Contrast that with the small amounts it takes to conduct a terrorist attack. “Part of the problem is that it takes so little to finance an operation,” said Gary LaFree, director of the University of Maryland’s National Consortium for the Study of Terrorism and Responses to Terrorism. British authorities, for example, estimated the 2005 London subway bombing that killed 52 people succeeded on a budget of less than $15,000. Al-Qaeda’s entire 9/11 operation cost between $400,000 and $500,000, according to the final report of the National Commission on Terrorist Attacks Upon the United States (Willson, 2009).

To end the flow of criminal money to terrorist groups and insurgencies, experts say, will mean cutting off the flow of contraband—whether narcotics or tobacco.

Terrorism and criminal finance investigator Larry Johnson, with BERG Associates, notes that it’s much easier to crack down on the flow of legal products like tobacco. “You need to ensure that the products are being sold through legitimate channels through legitimate distributors—that they’re not committing willful blindness,” he says.

“The contraband is fairly easy to deal with 26 THE FORENSIC EXAMINER® Winter 2009

because it’s in the power of the distributors and producers to control the process. This is actually one of those few problems that is fixable (Willson, 2009).”

Another area that the authors believe needs to be addressed is the problem of immigration violations and how it facilitates the entry of terrorists into this country. Several kinds of document fraud can occur during the immigration process through forgery, lying, false statements, or the misuse of visas. For many terrorists, immigration violations are the first acts taken in a long line of criminal activities. Michael Cutler, a fellow at the Center for Immigration Studies, has written that when an alien acquires immigration benefits through fraud and deception, the security of the system is breached and it leaves the door open to criminal and terrorists to game the system (Cutler, 2006). Individuals who have planned acts of terror against the United States or raised money for terrorist organizations have engaged in immigration violations such as Ramzi Yousef, the mastermind of the first World Trade Center attack in 1993, used an altered passport and fraudulent documents (Eldridge, 2004).

Janice Kephart, former counsel to the 9/11 Commission, recently authored a report titled Immigration and Terrorism that examines the histories of 94 foreignborn terrorists who operated in the United States between the early 1990s and 2004 and concluded that “about two-thirds (59) committed immigration fraud prior to or in conjunction with taking part in terrorist activity” (Kephart, 2005). Because of these widespread terrorist violations of U.S. immigration law, Kephart suggests that the “lax immigration system” poses a danger, and recommends “strict enforcement of immigration law—at American consulates overseas, at ports of entry, and within the United States.” The fact that terrorists have in the past obtained entry to the United States and even became naturalized U.S. citizens through fraudulent means has national security implications.

Furthermore, the authors recommend government agencies develop methods to share information to create synergistic outcomes in identifying the crime-terror link.

In some cases, agency regulations forbid intelligence services from gathering and sharing specific types of information that might lend clarity to the nature of the crime-terror act under investigation. Frequently when law enforcement and intelligence cultures

clash, it is based on law enforcements tradition of enforcing the rule of law and justice and the pursuit of criminals where as the intelligence community tradition is the security of the nation. Terrorist plots and smuggling actions transverse both criminal and intelligence worlds and can set the cultures of law enforcement and intelligence against each other. Of note is that terrorist and criminals have linked and profited from the synergy of their shared abilities and knowledge; a similar linking that will create synergy between law enforcement and intelligence will be required.

Although there may be legitimate concerns in sharing information, one solution to the lack of communication and organized effort among the different national law enforcement agencies that serve on the edges of the blurred lines is the development of memorandums of understanding between agencies. For example, an interagency operation led to the arrests of several dozen people in Colombia associated with a Hezbollah-connected drug trafficking and a money-laundering ring. One of the affiliates to the operation indicated that identifying, monitoring and dismantling the financial, logistical, and communication linkages between illicit trafficking groups and terrorist sponsors are critical to not only ensuring early indications and warnings of potential terrorist attacks directed at the United States and our partners, but also in generating a global appreciation and acceptance of this tremendous threat to security.”

Other recommendations are that the business community should work more closely with law enforcement to detect patterns that may identify a crime-terror link.

More detailed analysis of the operation of illicit activities around the world would help advance an understanding of terrorist financing. Corruption overseas, which is so often linked to facilitating organized crime and terrorism, should be elevated to a U.S. national security concern with an operational focus. A joint task force composed of analysts from the FBI, Department of Homeland Security and Federal intelligence agencies should be formed immediately to create an integrated system for data collection and analysis. Finally, a broader view of today’s terrorist and criminal groups is needed, given that their methods and their motives are often shared.

WHDH-TV National News (October 14,2006) reported on a contract study recently completed for the Pentagon, which www.acfei.com

states, “Although terrorism and organized crime are different phenomena, the important fact is that terrorists and criminal networks overlap and cooperate in some enterprises. The phenomenon of the synergy of terrorism and organized crime is growing because similar conditions give rise to both and because terrorists and organized criminals use similar approaches to promote their operations.” Constructing multidisciplinary working groups allows different agencies to come together not only to discuss ways to combat these organizations, but also to create win-win scenarios for agencies that cooperate.

For example, ICE’s Migrant Smuggling and Trafficking Interagency Working Group (O’Connell, 2006), which includes the Department of Justice, the Intelligence Community, The FBI, and other federal, state, and local law enforcement agencies, has a targeting subgroup whose role is to identify the most dangerous international alien-smuggling networks, especially those that have links to terrorism. Since 2002, the Working Group efforts have resulted in the apprehension of more than 15 leaders of major smuggling organizations. ICE recognizes that there is a blurred line between terrorism and organized crime and that interagency cooperation is imperative to achieve operational success.

ICE is one agency that appears to understand that unless synergistic value is created to combat these organizations, successes may be limited. For example, according to O’Connell (2006), commenting on one of her agency’s many initiatives, “Operation Last Call exploits the intelligence value of hundreds of thousands of individuals who enter our detention and removal system annually. This highly effective operation collects, evaluates, analyzes, and disseminates information from detainees in ICE custody. Customers for Operation Last Call are ICE operational units, DHS, I&A, the Intelligence Community, the FBI, and other federal agencies. This program focuses on relevant collections in the areas of force protection, anti-terrorism, ongoing criminal enterprises, human trafficking and smuggling, contraband smuggling (weapons of mass destruction, drugs, etc.) threats to critical infrastructure, and the movement of money that support illicit activities.”

Operation Watchtower, working in coordination with the U.S. Coast Guard, analyzes international movements of vessel and cargoes to provide timely intelligence and (800) 592-1399

risk assessment for investigative and threat detection support. Furthermore, O’Connell (2006) states, “Business plans and performance metrics based on objective customer evaluations must support all our work.

From these markers, the ICE Intelligence strategic plan proposes the development and acquisition of advanced technologies, new techniques, new processes, and additional integration into multi-agency and multi-national operations.” ICE’s Human Smuggling and Trafficking Center works toward dismantling criminal travel networks that are engaged in human smuggling and trafficking. In order to cripple such networks, Clark (2006) stated, “Interagency cooperation and information exchange are of the utmost importance. The Center brings together federal agency representatives from the policy, law enforcement, intelligence, and diplomatic arenas to work together to achieve increased progress in addressing the problems of human smuggling, human trafficking, and clandestine terrorist mobility.”

The staffs of intelligence and law enforcement agencies in the United States are already overwhelmed, and a common complaint is that they do not have the time to analyze the evidence they possess, or to eliminate unnecessary avenues of investigation. The problem is not so much a lack of data, but the lack of suitable tools to evaluate that data and make optimal decisions about when and how to investigate further.

The authors recommend the PIE approach developed by Shelley, along with other investigation tools offers a practical solution to organizing the data in a meaningful way.

Shelley also outlined recommendations to combat the crime-terror link and one can observe that she also favors sharing information to create synergistic value to investigations. Valuable time and resources are not wasted in constantly having agencies reinventing the wheel by duplicating information when important information is available to all parties (Lichtenwald, Perri & MacKenzie, 2009). Some of Shelley’s recommendations include: For policy analysts: 1. More detailed analysis of the operation of illicit economies where criminals and terrorists interact would improve understanding of how organized crime operates, and how it cooperates with terrorists. Domestically, more detailed analysis of the businesses where illicit

transactions are most common would help investigation of organized crime— and its affiliations. More focus on the illicit activities within closed ethnic communities in urban centers and in prisons in developed countries would prove useful in addressing potential threats.

2. Corruption overseas, which is so often linked to facilitating organized crime and terrorism, should be elevated to a U.S. national security concern with an operational focus. Many jihadists are recruited because they are disgusted with the corrupt governments in their home countries. Corruption has facilitated the commission of criminal acts such as the Chechen suicide bombers who bribed airport personnel to board aircraft in Moscow.

3. Analysts must study patterns of organized crime-terrorism interaction as guidance for what may be observed subsequently in the United States. For instance, Hezbollah smuggling of cigarettes in the Tri-Border Area was subsequently found in North Carolina.

4. Intelligence and law enforcement agencies need more analysts with the expertise to understand the motivations and methods of criminal and terrorist groups around the globe, and with the linguistic and other skills to collect and analyze sufficient data.

For investigators: 1. The separation of criminals and terrorists is not always as clear cut as many investigators believe. Crime and terrorists groups are often indistinguishable in conflict zones and in prisons. They also have overlaps such as in the recent large-scale IRA attack on a bank.

2. The hierarchical structure and conservative habits of the Sicilian Mafia no longer serves as an appropriate model for organized crime investigations.

Most organized crime groups now operate as loose networked affiliations. In this respect they have more in common with terrorist groups.

3. The PIE method provides a series of indicators that can result in superior profiles and higher-quality risk analysis for law enforcement agencies both in Winter 2009 THE FORENSIC EXAMINER® 27

the United States and abroad. The approach can be refined with sensitive or classified information.

4. Greater cooperation between the military and the FBI would allow useful sharing of intelligence, such as the substantial knowledge on crime and illicit transactions gleaned by the counterintelligence branch of the U.S. military that is involved in conflict regions where terrorcrime interaction is most profound.

5. Law enforcement personnel must develop stronger working relationships with the business sector. In the past, there has been too little recognition of possible terrorist-organized crime interaction among the clients of private-sector business corporations and banks. In the spirit of public-private partnerships, corporations and banks should be placed under an obligation to watch for indications of organized crime or terrorist activity by their clients and business associates and pass on their assessment to law enforcement.

6. Law enforcement must work more with different sectors of the business community which are emerging sectors for money laundering connected with terrorist financing, i.e., real estate and art.

Credit card fraud is becoming a major funding source for international terrorists. Law enforcement analysts should work more closely with corporations to understand the trends that highlight organized crime-terror involvement in this emerging area.

7. Law enforcement personnel posted overseas by federal agencies such as the DEA, the Department of Justice, the Department of Homeland Security, and the State Department’s Bureau of International Narcotics and Law Enforcement should help develop a better picture of the geography of organized crime and its most important features (i.e. the watch points of the PIE approach).

8. Training for law enforcement officers at federal, state, and local level in identifying authentic and forged passports, visas, and other documents required for residency in the U.S. would eliminate a major shortcoming in investigations of criminal networks.

28 THE FORENSIC EXAMINER® Winter 2009

Conclusion A report titled “Feds worry that terrorists, mobsters might collaborate” (WHDH-TV, October 14, 2006) referenced the apprehension about the collaboration between a mobster and a terrorist organization. As this article has pointed out, mobsters and terrorists have been collaborating well before this report was disclosed in 2006. What is crucial in the fight against this link is the need to consider how information is gathered, analyzed and shared by intelligence agencies. It is through the interagency workgroups approach that the PIE method will produce the most effective results. Just as criminals and terrorists pool their talents to achieve synergistic outcomes to fulfill their motives, U.S. government agencies and our allies must be in a position to pool their talents to combat this scourge. Moreover, traditional difficulties often experienced across intelligence agencies may be minimized by accessing the wealth of knowledge possessed by forensic examiners across disciplines especially since terrorists risk exposure by engaging in traditional criminal activities that leaves a trail of evidence.

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Lichtenwald, T.G., Perri, F. S., MacKenzie, P, (2009) Multi-consignment contraband: isolated incidence or a new trend? Inside Homeland Security, Volume 7, Issue 2.

Lormel, D. (2002, July 2), Testimony before the senate judiciary subcommittee on technology, terrorism and government information, available at http://www.investigativeproject.org/documents/testimony/234.pdf Mandel, R. (2009, February 15). Dark logic: Transnational criminal tactics and global security. Paper presented at the annual meeting of the ISA’s 50th Annual Convention Exploring the Past, Anticipating the Future, New York Marriott Marquis, New York City, NY. Available at http://www.allacademic.com/meta/ p312299_index.html Makarenko, T. (2004, February), The crime-terror continuum: tracing the interplay between transnational organized crime and terrorism, Global Crime, Vol.6, No.1, pp.129-145.

Mauro, R. (2005, August 17). Terrorism’s tripleborder sanctuary: Islamist world terror from Argentina, Brazil & Paraguay. Available: <http://www/ worldthreats.com/latin_america/Terrorism’s%20Triple-Border%20Sanctuary.htm> Metz, Steven (2007) Rethinking Insurgency Strategic Studies Institute, U.S. Army War College, 122 Forbes Ave, Carlisle, PA 17013-5244.

Mincheva, L. & Gurr, T., (2008), Unholy alliances: how transnational terrorists and crime make Common Cause”, in Rafael Reuveny and William R. Thompson (eds.), Coping with Contemporary Terrorism: Origins, Escalation and Responses. New York: SUNY Press.

O’Connell, C. (2006). Statement of Cynthia O’Connell before the Subcommittee on Intelligence Sharing, and Terrorism Risk Assessment. Washington, DC: U.S. Immigration and Customs Enforcement.

Perri F.S., & Lichtenwald, T.G., (2007), Fraud detection homicide, a proposed addition to the fbi criminal classification manual, The Forensic Examiner, 16(4), 18-30.

Perri F.S., & Lichtenwald, T.G., (2008), A tale of two countries: international fraud detection homicide, The Forensic Examiner, 17(2), 18-29.

Pogatchnik, S. (2009, Feb. 28). Bank of Ireland employee robs bank to free his family. The Settle Times Online. Available at http://settletimes. nwsource.com/html/nationworld/2008795991_ heist28.html (800) 592-1399

Rotella, S. (2004, Feb. 23). Holy Water, Hashish, and Jihad, Available at http://articles.latimes. com/2004/may/23/world/fg-terrcrime23.

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Sale, R, (2009, Feb. 6). U.S. Officials: Hezbollah Gaining in Latin America, Middle East Times, Available at www.metimes.com/Politics/2009/02/06/us_officials_hexbollah_gaining_in_latin_america/56857 Scott, K.H. (2003, March 11). MSU lab helping FBI hunt down terrorists. Lansing State Journal Available: www/lsj.com/news/local/p_030311_id_ theft_la_5a.html.

Shelley, L.I., Picarelli, J.T., Irby, A., et al. (2005).

Methods and motives: Exploring links between transnational organized crime and international terrorism.

Retrieved from http://www.ncjrs.gov/pdffiles1/nij/ grants/211207.pdf Smith, L. (2002, June 17). Piracy in cyperspace.

Congressman Lamar Smith: 21st District of Texas website. Retrieved from http://lamarsmith.house. gov/News.asp?FormMode=Detail&ID=99%0D Stratfor Global Intelligence (2009, March 11).

Northern Ireland: More militant activity. Retrieved from http://www.statfor.com/analysis/20090310_ northern_ireland_more_miliant_activity Terror-linked migrants channeled into U.S. (2005, July 3), Foxnews.com Tupman, W.A. (1998a). The business of terrorism. Journal of Money Laundering Control, 1, 303311.

Tupman, W.A. (1998b) Where has all the money Gone? The IRA as a profit making concern. Journal of Money Laundering Control, 1(4) 303-311.

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Tupman, W.A. (2002b). The business of terrorism - Part 2. Intersec - The Journal of International Security, 12.

U.S. designates Dawood Ibrahim as terrorist supporter: Indian crime lord has assisted Al Qaida and supported other terrorists in India. (2003, Oct. 16).

U.S. Treasury Department Press. Retrieved from http://www.usteas.gov/press/releases/js909.htm United States of America Department of Treasury, (2004, June 10). Treasury designates Islamic extremist, two companies supporting Hizballah in tri-border area . Office of Public Affairs.

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The authors would like to acknowledge Attorney Wendell Coates for his assistanceinsights. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 78 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHORS

FRANK S. PERRI, JD, MBA, CPA, lead author of this research project, has worked as a trial attorney in the criminal law field for over 14 years. Areas of concentration include white-collar crimes and homicide. As an ACFEI member, Mr. Perri received his Juris Doctor from the University of Illinois, his master’s degree in business administration from Case Western Reserve University, and his bachelor of arts from Union College. In addition, Mr. Perri is a Certified Public Accountant. Mr. Perri’s interests include fraud detection homicide and the application of the developmental smuggling model. You may contact Mr. Perri via e-mail at frankperri@hotmail.com.

TERRANCE G. LICHTENWALD, PhD, ACFEI member, earned his doctorate in clinical psychology from an American Psychological Association (APA) approved program and completed an APA-approved internship. He has a master’s degree in clinical psychology and a second master’s in school psychology. He earned his bachelor’s degree in broad field social studies and psychology. Interests include fraud detection homicide and the application of the developmental smuggling model.

Dr. Lichtenwald has spent 20 years completing forensic, behavioral, psychological, and security evaluations as well as threat assessments.

PAULA M. MACKENZIE, Psy.D, earned her BS from Bradley University where she majored in psychology and social services. She earned a master’s of science in education from Northern Illinois University, where she majored in counseling psychology. Dr. MacKenzie went on to complete her doctorate degree (Psy.D) in clinical psychology with a specialization in forensic psychology. Dr. Mackenzie’s areas of expertise include using behavioral science to conduct threat assessments and assessments of psycho-legal competencies (competency to stand trial and sanity examinations). Dr. MacKenzie’s other areas of expertise include emergency services, analysis of extremist and cult group behavior, assessment of psychopathy as well as general psychological testing and assessment. Contact her at paula_mackenzie_126 @comcast.net.

Winter 2009 THE FORENSIC EXAMINER® 29

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LEGAL MATTERS

By William Martin Sloane, LLM, PhD, DABFC, FACFEI, CMI-I, CHS-III

NURSES’ OPINIONS COUNT IN PENNSYLVANIA

The fact that a nurse may not engage in medical diagnosis as part of his or her practice does not preclude the nurse from testifying as an expert in court. Testifying in court is not the same as practicing a profession. In Pennsylvania, an expert witness “need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or expertise.”

Thus, ordinarily, “the test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation.”

The case was remanded for trial with the directive that the nurse be allowed to testify.

In the Supreme Court of Pennsylvania Middle District Middle District Castille, C.J., Saylor, Eakin, Baer, Todd, McCaffery, J.J. Rodger A. Freed, Appellee v. Geisinger Medical Center and Healthsouth Corporation, formerly known as Healthsouth Rehabilitation Corporation, and Healthsouth of Nittany Valley, Inc., T/D/B/A/Healthsouth Nittany Valley, Rehabilitation Hospital, Appellants No. 77 MAP 2007 Appeal from the order of the Superior Court dated September 29, 2006, at No. 819 MDA 2005 reversing the order of the Court of Common Pleas of Centre County at No. 200-2612 910 A.2d 68 (Pa. Super.

2006) ARGUED: May 14, 2008

C

an a registered nurse give a professional opinion on the nursing standard of care with regard to the treatment and prevention of bedsores on an immobilized patient? Overruling prior caselaw, the Supreme Court of Pennsylvania has said “yes” and applied its decision retroactively.

In Freed v. Geisinger Medical Center, 2009 WL 1652856, 77 MAP 2007 (Pa. 2009), the court found that the nurse was not being called on to testify about the medical diagnosis. The parties agreed that [a] the diagnosis was pressure wounds (bedsores) on the patient’s buttocks and sacrum, which ultimately became infected, requiring surgical debridement and therapy, and that [b] “by definition, the cause of pressure wounds is unrelieved pressure on a part of the body.”

(800) 592-1399

Was the unrelieved pressure in turn caused by a breach of a duty, i.e., the nursing standard of care? More precisely, is a nurse qualified to offer an opinion with regard to medical causation?

Previous decisions did not allow such testimony on the grounds that the state’s Professional Nursing Law prohibited nurses from “acts of medical diagnosis...” In Freed, however, the court overruled these precedents.

OPINION MADAME JUSTICE TODD DECIDED: June 15, 2009 In this negligence action, Geisinger Medical Center (“Geisinger”) and HealthSouth Corporation, formerly known as HealthSouth Rehabilitation Corporation and HealthSouth of Nittany Valley, Inc., t/d/b/a HealthSouth Nittany Valley Rehabilitation Hospital (“HealthSouth”), appeal the order of the Pennsylvania Superior Court reversing the trial court’s grant of a compulsory nonsuit in their favor and against Appellee Rodger A. Freed. Although on a basis different from that expressed by the Superior Court, we affirm.

Winter 2009 THE FORENSIC EXAMINER® 31

On November 6, 1998, Freed was involved in a single-vehicle accident during which he suffered spinal cord injuries and was rendered paraplegic. Following the accident, Freed was hospitalized at Geisinger.

On December 3, 1998, Freed was transferred to HealthSouth Nittany Valley Rehabilitation Hospital for rehabilitation therapy. While there, Freed developed pressure wounds, also known as bedsores, on his buttocks and sacrum. The pressure wounds ultimately became infected and, on January 10, 1999, Freed was returned to Geisinger for surgical debridement and therapy. He remained at Geisinger until February 24, 1999, when he was again transferred to HealthSouth. On May 10, 1999, Freed was discharged to home.

On December 21, 2000, Freed filed a complaint against Geisinger and HealthSouth, alleging that the nursing staff of both institutions failed to meet the nursing standard of care with regard to the treatment and prevention of pressure wounds on an immobilized patient. At a jury trial over which the Honorable Charles C. Brown, Jr. presided, Freed presented as an expert witness Linda D. Pershall, a registered nurse, to testify regarding the relevant nursing standard of care, as well as to causation. During direct examination, when Freed’s counsel asked Pershall her opinion as to the cause of Freed’s bedsores, Geisinger objected, and the trial court sustained the objection on the basis that Pershall was not a medical doctor and, therefore, was not qualified to give a medical diagnosis. After Freed presented his case, Geisinger moved for a compulsory nonsuit on the basis that Freed failed to present a prima facie case of negligence by not offering competent evidence of a causal connection between the alleged breach of the nursing standard of care and the development or worsening of Freed’s pressure wounds, and the trial court granted the motion. In its opinion written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial court, citing this Court’s decision in Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997), reasoned that Pershall was not qualified to offer an opinion as to the cause of Freed’s pressure wounds because an opinion regarding the specific cause and identity of an individual’s medical condition constitutes a medical diagnosis, which a nurse is prohibited from making under the Professional Nursing Law, 63 P.S. §§ 211 et. seq. [63 P.S. § 212(1) and (4). “Board” 32 THE FORENSIC EXAMINER® Winter 2009

means the State Board of Nursing. 63 P.S. § 212(2).]

On appeal to the Superior Court, Freed argued, inter alia, that the trial court erred in precluding Pershall from testifying as to the cause of Freed’s pressure wounds. In a published opinion, the Superior Court reversed the trial court’s grant of a nonsuit, holding that Pershall was competent to provide expert testimony on both the standard of nursing care and the issue of causation.

Appellants now argue that the Superior Court’s holding is in conflict with this Court’s holding in Flanagan, and, therefore, must be vacated.

Preliminarily, we note that in order to establish a cause of action for medical malpractice, a plaintiff must demonstrate (1) a duty owed by the physician to the patient; (2) a breach of that duty by the physician; (3) that the breach was the proximate cause of the harm suffered; and (4) that the damages suffered were a direct result of the harm. Hightower-Warren v. Silk, 548 Pa. 459, 463, 698 A.2d 52, 54 (1997). Expert testimony generally is required in a medical malpractice action in order to establish the proper standard of care, the defendant’s failure to exercise that standard of care, and the causal relationship between the failure to exercise the standard of care and the plaintiff ’s injury. Id. In order to qualify as an expert witness in a given field, a witness normally need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 481, 664 A.2d 525, 528 (1995)). Thus, ordinarily, “the test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation.” Id. at 480, 664 A.2d at 528 (emphasis original).

In Flanagan, the appellant filed a medical malpractice action against the appellee, John F. Kennedy Memorial Hospital, alleging that he received substandard nursing care when he went to the hospital for treatment of a collapsed lung. The treatment involved the insertion of a tube into Flanagan’s chest wall. According to Flanagan, following the insertion of the tube, the hospital’s nursing staff failed to document his complaints of pain and responses to medication, and failed to monitor his breathing and palpate his chest, measures which would have led to earlier detection of the onset of subcutane-

ous emphysema. He asserted that the nursing staff ’s negligent care caused his condition to worsen.

At trial, Flanagan planned to introduce expert testimony of a registered nurse, who, in accordance with her expert report, intended to testify that “it is my nursing expert opinion, to a reasonable degree of nursing certainty, that all of the nurses . . . did not meet the standard with respect to their nursing care of Stephen Flanagan and as such were a substantial contributing factor in his progressively worsening subcutaneous emphysema.” 547 Pa. at 256, 690 A.2d at 184-85. The hospital filed a pre-trial motion in limine to preclude the nurse from testifying as to the identity of Flanagan’s medical condition and the causes thereof. The trial court granted the motion, concluding that the nurse’s testimony went not only to the proper standard of nursing care — an appropriate subject for her testimony —but also to a medical opinion regarding the ultimate effect of that care, which the court determined called for a medical diagnosis that the nurse was statutorily precluded from rendering under the Professional Nursing Law. Finding that the exclusion of this testimony prevented Flanagan from establishing a prima facie case of malpractice, the trial court granted summary judgment in favor of the hospital.

The Superior Court subsequently affirmed the trial court’s order.

In affirming the Superior Court’s decision on appeal, we first acknowledged that the nurse was well educated, highly experienced, and competent to provide expert testimony regarding applicable standards of nursing care. We also determined the nurse was qualified to offer opinion testimony regarding whether the nursing procedures followed in Flanagan’s case were substandard. Id. at 257, 690 A.2d at 185. We held, however, that she was precluded from offering a medical opinion on the effect of the alleged substandard nursing procedures because “the normal test of competency is constrained by [the Professional Nursing Law] limiting the deemed competency of nurses.” Id. In the instant case, the Superior Court distinguished Flanagan on the basis that Pershall’s testimony did not constitute a medical diagnosis. In doing so, the Superior Court found that the parties (1) agreed on the relevant medical diagnosis, i.e. pressure wounds; and (2) agreed that “by definition, the cause of pressure wounds is unrelieved www.acfei.com

pressure on a part of the body.” Freed v.

Geisinger Med. Ctr., 910 A.2d 68, 74 n.5 (Pa. Super. 2006). The Superior Court thus opined that the only issue in dispute was “whether a breach of the standard of nursing care for an immobilized patient proximately caused the unrelieved pressure that in turn caused Appellant’s pressure wounds to develop and/or worsen,” an issue on which Pershall should not have been precluded from testifying. Id. Upon review, we conclude that the Superior Court’s holding is, in fact, in conflict with Flanagan.

In concluding that Pershall’s “education and experience provide her with ‘more expertise than is within the ordinary range of training, knowledge, intelligence, or experience’ concerning the cause of pressure wounds,” and, as a result, that she was “competent to provide expert testimony not only on the standard of nursing care, but also on the causative relationship between breaches in the standard of care and [Freed’s] pressure wounds,” Freed, 910 A.2d at 75, the Superior Court relied on this Court’s holding in Miller, supra, and its own decision in McClain v. Welker, 761 A.2d 155 (Pa. Super. 2000).

In McClain, the parents of two minor children filed a negligence action against their landlords, alleging the children suffered toxic lead poisoning as a result of ingesting leadbased paint from their rental home. The landlords filed a motion in limine to preclude the parents’ expert, a scientist who had a Ph.D., but was not a medical doctor, from testifying as to the causal relationship between ingestion of lead and cognitive defects. Purportedly relying on Flanagan “for the proposition that only medical doctors could testify as to causation,” 761 A.2d at 157, the trial court concluded that because the scientist did not have a medical degree, he was not qualified to testify as to medical causation, and granted the landlords’ motion in limine. Thereafter, the trial court granted the landlords’ motion for a compulsory nonsuit.

The Superior Court reversed on appeal, finding the trial court’s reliance on Flanagan misplaced, in that, unlike the parents’ proffered expert, “the nurse in Flanagan never asserted that she had any pretension to specialized knowledge related to medical causation.” McClain, 761 A.2d at 157.

Concluding that the scientist, like the coroner in Miller, supra, “‘possesse[d] more knowledge than is otherwise within the (800) 592-1399

ordinary range of training, knowledge, intelligence or experience,’ in his specialized fields of study,” the McClain court held the scientist should have been permitted to render an expert opinion “within the guise of Pa.R.E. 702 as to the causation of cognitive disorders.” Id. at 157-58.

We question the McClain court’s rationale for distinguishing Flanagan in two respects. First, the Superior Court’s characterization of the reason the proffered testimony in Flanagan was rejected is inaccurate: this Court in Flanagan held that the nurse was precluded from testifying not because she did not possess specialized knowledge regarding the cause of Flanagan’s condition, but because the “normal test of competency is constrained by a statutory provision limiting the deemed competency of nurses.” Flanagan, 547 Pa. at 257, 690 A.2d at 185. In addition, it was unnecessary for the McClain court to distinguish Flanagan on the basis of the difference between the proffered witness’ expertise; indeed, Flanagan did not preclude the scientist’s testimony in McClain because the scientist was not a registered nurse.

Notwithstanding our concerns with the Superior Court’s analysis in McClain, the distinction between Miller and McClain and the instant case is the fact that the expert witnesses in both Miller and McClain were not nurses who, according to this Court’s holding in Flanagan, are expressly prohibited from making a medical diagnosis by the Professional Nursing Law. Accordingly, we find merit to Appellants’ argument that the Superior Court’s decision is in conflict with this Court’s decision in Flanagan because it allowed Pershall, a registered nurse, to testify as to medical causation regarding Freed’s pressure wounds.

Nevertheless, after a thorough review of the relevant case law, as well as the Professional Nursing Law, we conclude, for the reasons discussed below, that this Court’s decision in Flanagan, to the extent it prohibits an otherwise competent and properly qualified nurse from giving expert opinion testimony in a court of law regarding medical causation, is flawed and must be overturned.

As noted above, in order to qualify as an expert witness in a given field, a witness need only possess greater expertise than is within the ordinary range of training, knowledge, intelligence, or experience.

Miller, 541 Pa. at 481, 664 A.2d at 528. In Miller, the decedent was killed in an automobile accident following a day of con-

suming alcoholic beverages with friends.

The decedent’s estate filed an action under the Dram Shop Act6 against the owner of a tavern the decedent had patronized for several hours shortly before the fatal accident, alleging the tavern had served the decedent alcohol while he was visibly intoxicated. At trial, the estate called the county coroner, who was not a physician and did not have a medical degree, to testify based on his investigation of the accident scene. The tavern owner objected to the portion of the coroner’s testimony that would have constituted 6 47 Pa.C.S.A. §§ 4-493, 4-497. expert opinion, including his opinion as to the time of the decedent’s death, and the trial court sustained the objection. At the conclusion of trial, the trial court entered judgment in favor of the tavern owner, noting that even though the estate had proven by a fair preponderance of the evidence that the tavern had served the decedent while he was visibly intoxicated, by failing to establish the time of death the estate failed to establish a causal link between the negligence of the tavern owner and the fatal accident.

The Superior Court affirmed, noting an absence of case law to support a finding that a lay coroner could be qualified to render an opinion as to time of death.

This Court reversed the Superior Court’s decision, explaining: the standard for qualification of an expert witness is a liberal one. The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine. It is also well established that a witness may be qualified to render an expert opinion based on training and experience. Formal education on the subject matter of the testimony is not required, nor is it necessary that an expert be a licensed medical practitioner to testify with respect to organic matters.

It is not a necessary prerequisite that the expert be possessed of all of the knowledge in a given field, only that he possess more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience.

Id. at 480-81, 664 A.2d at 528 (emphasis original and citations omitted). We concluded: We . . . believe that a mortician of twenty seven years, duly licensed by this Winter 2009 THE FORENSIC EXAMINER® 33

Commonwealth, who has also served in the dual capacity as county coroner for fifteen years, may have specialized knowledge regarding the time of death which would not otherwise be known to a lay individual. Consequently, we hold that the refusal to qualify Coroner Wetzler as an expert witness based solely upon his lack of formal medical training was an abuse of discretion.

Id. at 483, 664 A.2d at 529.

Two years after Miller, however, in Flanagan, this Court narrowed the wellestablished liberal standard for expert testimony in those cases involving nurses offered as experts.

In a brief opinion authored by then-Chief Justice Flaherty, this Court determined that “a well educated and highly experienced nurse who is competent to provide expert testimony regarding applicable standards of nursing care” was nonetheless prohibited from offering an expert opinion regarding the ultimate effect of substandard nursing care: [A]lthough the [Professional Nursing Law, 63 P.S. § 212,] permits nurses to diagnose human responses to health problems, it expressly prohibits them from providing medical diagnoses.

Hence, it recognizes a firm distinction between a nursing diagnosis and a medical diagnosis.

The proper scope of a nursing diagnosis is set forth through statutory definitions of the terms employed in 63 P.S. § 212(1), supra. “Diagnosing” is defined as “identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen.” 63 P.S. § 212(4).

“Human responses” are defined as “those signs, symptoms and processes which denote the individual’s interaction with an actual or potential health problem.”

63 P.S. § 212(6). Thus, a nursing diagnosis identifies signs and symptoms to the extent necessary to carry out the nursing regimen. It does not, however, make final conclusions about the identity and cause of the underlying disease.

Id. at 257, 690 A.2d at 185-86 (emphasis omitted and footnote omitted).

Significantly, the Court in Flanagan did not provide any support for its conclusion that the restrictions contained in the Professional Nursing Law apply in a court of law, or, more specifically, that a single provision of that law operates to limit the 34 THE FORENSIC EXAMINER® Winter 2009

well established liberal standard for qualification of expert witness testimony that exists in this Commonwealth. Indeed, the title of the statute is the “Professional Nursing Law,” and the first words of the statute refer to the “Practice of Professional Nursing.” 63 P.S. § 212(1). This practice is defined as “diagnosing and treating human responses to actual or potential health problems.” 63 P.S. § 212(1) (emphasis added). Furthermore, “diagnosing” is defined under Section 212(4) as the “identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen.” (emphasis added). Thus, it is in the context of the practice of nursing in which a nurse is precluded from making a medical diagnosis. Expert testimony offered in a court of law does not implicate a nursing regimen; there is no patient under treatment, no actual or potential health problem, no diagnosis or treatment, and no care is affected.

Rather, the expert is offered merely to opine on past events or hypotheticals with respect to a case before the court.

Moreover, there is no language whatsoever in the statute to suggest that the principles governing the actual practice of nursing are applicable in the distinct legal arena of malpractice or negligence actions, which is governed by the Rules of Evidence and the Rules of Civil Procedure. Had the legislature intended that the Professional Nursing Law supersede the common law and duly enacted rules with regard to the standard for admission of expert testimony, it could have expressly indicated this intention, as it subsequently did in its enactment of the Medical Care Availability and Reduction of Error Act (“MCARE Act”), 40 P.S. §§ 1303.101-1303-910, which, inter alia, made substantial changes in the requirements for qualifying an expert witness in medical professional liability actions.

See, e.g., 40 P.S. § 1303.512(a) (“No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.” (emphasis added)).

With this language, the MCARE Act expressly raised the standard for qualifying an expert witness in a medical professional liability action from that which existed under common law.

Finally, as we recognized in Miller, in the context of legal proceedings, if a witness has any reasonable pretension to specialized knowledge on the relevant subject, he may be offered as an expert witness, and the weight to be given his testimony is for the trier of fact to determine. Rule 702 of the Pennsylvania Rules of Evidence also provides that “a witness qualified as an expert by knowledge, skill, experience, training or education may testify.” Pa.R.E. 702. Under Flanagan, however, a nurse duly qualified under Rule 702, but licensed under 63 P.S. § 216, is precluded from offering expert testimony on medical causation, while presumably a non-licensed nurse, or any other individual, with the same knowledge or experience would be permitted, under the broad common law standard for expert testimony, to offer such testimony. Neither the legislature nor this Court could have intended such an incongruous result.

Perhaps in an attempt to deal with this incongruity, the lower courts of this Commonwealth repeatedly have distinguished and/or carved out exceptions to Flanagan. As noted above, for example, the Superior Court in the instant case determined, erroneously, that Pershall’s testimony was not precluded under Flanagan because the parties agreed on the relevant medical diagnosis, namely, pressure wounds. Most recently, in Commonwealth v. Jennings, 958 A.2d 536, 540 (Pa. Super. 2008), the Superior Court held that the trial court properly allowed a sexual assault nurse examiner who performed a rape kit on a victim the morning after a sexual assault to offer at trial her opinion as to the cause of the victim’s vaginal redness. The appellant maintained at trial that his sexual relations with the victim were consensual; the nurse, however, testified that the victim’s vaginal redness was consistent with forced vaginal intercourse from behind. The Superior Court distinguished Flanagan, holding the nurse’s testimony constituted a nursing diagnosis that “was essential to the effective execution and management of the nursing regimen,” as opposed to a medical diagnosis. Id. at 540. The Jennings court cited its own decisions in Freed and McClain as support for its holding, and further stated: “We find persuasive the decisions of the respected courts of other states [which] have held that sexual assault nurse examiners are qualified to testify as expert witnesses to the causation of injuries to victims of sexual crimes.” Id. at 541. www.acfei.com

Despite our conclusion that Flanagan is inherently flawed, we are loathe to reverse our own prior decisions, as such action necessarily implicates the great principle of stare decisis. The “rule of stare decisis declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.” Commonwealth v. Tilghman, 543 Pa. 578, 588 n.9, 673 A.2d 898, 903 n.9 (1996). As the United States Supreme Court explained in Hohn v. United States, 524 U.S. 236 (1998), stare decisis is “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Id. at 251 (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).

However, as Chief Justice Castille explained in his opinion in support of affirmance in Commonwealth v. Persichini, 558 Pa. 449, 737 A.2d 1208 (1999): “the doctrine of stare decisis is not a vehicle for perpetuating error, but rather a legal concept which responds to the demands of justice and, thus, permits the orderly process of the law to flourish.” . . . We should not follow a governing decision that is unworkable. . . . Moreover, the policy considerations supporting stare decisis are less compelling when the issue involves a question of procedure. See Hohn v. United States, [524 U.S. 236 (1998)] (“The role of stare decisis. . . is . . . reduced in the case of a procedural rule which does not serve as a guide to lawful behavior.”).

Id. at 456-57, 737 A.2d at 1212.

With due consideration to the doctrine of stare decisis, and upon reflection, we conclude: (1) the ruling in Flanagan conflicts with the Commonwealth’s well established liberal standard regarding expert testimony; (2) Flanagan contains no support for the application of the Professional Nursing Law to the rules governing expert testimony in a court of law; and (3) Flanagan’s incongruous holding has led to ill-supported attempts by lower courts to distinguish and carve out exceptions to the rule. Furthermore, Flanagan concerns an evidentiary issue, analogous to a question of procedure, the answer to which does not favor one class of litigants over another. Cf. George v. Ellis, 911 A.2d 121 (Pa. Super.

(800) 592-1399

2006) (delineation of qualifications that a medical expert is required to possess under the MCARE Act does not affect the substantive rights of a party, but merely affects the procedural avenue by which a party may attempt to enforce those rights), appeal denied, 592 Pa. 767, 923 A.2d 1174.

Accordingly, the role of stare decisis is diminished. See Hohn, 524 U.S. at 251-52.

For these reasons, we hold that our decision in Flanagan, to the extent it prohibits an otherwise competent and properly qualified nurse from giving expert opinion testimony regarding medical causation, must be overruled.

We must now consider the impact of our decision to overrule Flanagan on the instant case. We have explained that “[w]hen this Court issues a ruling that overrules prior law, expresses a fundamental break from precedent, upon which litigants may have relied, or decides an issue of first impression not clearly foreshadowed by precedent, this Court announces a new rule of law.”

Fiore v. White, 562 Pa. 634, 643, 757 A.2d 842, 847 (2000). Our decision to overrule Flanagan necessarily constitutes a new rule of law, as it overrules prior law and expresses a fundamental break from precedent.

Thus, we must next determine whether the new rule applies retroactively or prospectively. See, e.g., Kendrick v. District Atty. of Philadelphia Cty., 591 Pa. 157, 172, 916 A.2d 529, 539 (2007). Whether a state court decision announcing a new rule of law should be applied retroactively or prospectively is a matter within the judicial discretion of the court. Id. In resolving this issue, the major considerations must be: (1) whether the holding involves an interpretation of a statute or some other source of law; and (2) whether the issue is substantive or procedural. Logically, courts have greater control over questions of retroactivity or prospectivity if the “rule” is of the court’s own making, involves a

procedural matter, and involves common law development. On the other hand, courts should have the least flexibility where . . . the holding at issue both: (a) involves an interpretation of a statute; and (b) far from involving a mere procedural matter, is a statute which defines criminal conduct.

Id. at 172-73, 916 A.2d at 539.

Although based on an interpretation —which we deem to be flawed—of a statute, the Professional Nursing Law, the Flanagan rule prohibiting an otherwise qualified licensed nurse from testifying as to medical causation nevertheless served only to alter the existing common law with regard to expert testimony, akin to a procedural ruling. Moreover, the holding in Flanagan did not purport to define criminal conduct. As a result, under Kendrick, we find that the instant decision in which we overrule Flanagan may properly be applied retroactively to Freed’s case, and, in our discretion, we decide to do so.

Accordingly, although we conclude the Superior Court’s decision in the instant case conflicts with Flanagan, we nonetheless hold that Appellants are not entitled to relief because we hereby overrule Flanagan and apply our decision retroactively. Therefore, we affirm the Superior Court’s order reversing the trial court’s grant of a compulsory nonsuit in favor of Appellants and remanding for trial. On remand, the trial court should assess the competency of any expert witness under the standards previously set forth by this Court in Miller, supra, or under the MCARE Act, if applicable.

Order affirmed.

Mr. Justice McCaffery did not participate in the consideration or decision of this case.

Mr. Chief Justice Castille and Mr. Justice Baer join the opinion.

Mr. Justice Eakin files a dissenting opinion in which Mr. Justice Saylor joins. n

ABOUT THE AUTHOR

An attorney since 1976 and an Anglican priest, Dr. Sloane chairs the American College of Counselors, AAIM’s College of Pastoral Counseling, and ABCHS’s Clergy/ Pastoral Division. He is a legal officer in the U.S. Air Force Auxiliary (CAP) and has taught for 27 years at the undergraduate, graduate, and law school levels.

Winter 2009 THE FORENSIC EXAMINER® 35

Call for Presentations You have spent years honing your skills as a forensic professional. Now, share your experience and knowledge with others by presenting at the 2010 National Conference.

The conference provides high-quality education and networking opportunities for forensic professionals. Presentations should be designed to include all industry sectors and should focus on current and emerging developments in forensic science, proper practices, and challenges faced by forensic professionals. Presentations may be intended for all levels of experience â&#x20AC;&#x201D; from fundamental to intermediate to advanced topics. We strongly encourage that presentations be in the form of hands-on demonstrations, panel discussions, tabletop exercises, etc. All presentations will last 1.5 hours.

The deadline for presentation submissions is November 30, 2009. Please submit your abstract and contact information including name, address, phone numbers, and e-mail address. All abstracts should be submitted via e-mail to conference@acfei.com. If you have any questions, please contact the Conference Department at 800-423-9737 ext. 168.

While ACFEI welcomes submissions on a variety of forensic topics, below are some presentation ideas generated by the general ACFEI membership through the 2010 Educational Needs Assessment Survey. We are open to new, cutting-edge topics as well.

Bite mark analysis Prediction of criminal behavior Tracking serial killers Forensic psychological assessments White collar fraud schemes Maintaining evidence integrity Report writing Determining competence Assessment of juvenile and adult sex offenders Professional ethics Innocence project

36 THE FORENSIC EXAMINERÂŽ Winter 2009

Childrenâ&#x20AC;&#x2122;s death investigations Personality profiling Expert witness testimony DNA technology practices Ballistics Computer forensics Legal liability for the forensic expert Forensic nursing Competency to stand trial Forensic medicine

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Call (800) 592-1399 for more information.

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Winter 2009 THE FORENSIC EXAMINER® 37

CASE STUDY

By Dr. Cheryl Loewe, MD, and Dr. Francisco Diaz, MD The landfill was a large man-made hole, measuring approximately 20 feet deep and one half mile long. He, along with the driver of another vehicle, was dumping fecal matter in the landfill. The hatch on the rear of the dumping trailer did not open properly and he got out of his vehicle to work on it. The hatch unexpectedly opened, and the subject was buried in sludge. He was later found at the base of the hole.

Autopsy Findings Examination of the body revealed thick black sludge coating the entire body, including his face. Sludge was present in the nostrils and oral cavity. Sludge could be traced into the pharynx, larynx, and into the mainstem bronchi. The lungs displayed edema and congestion. Toxicology was negative for alcohol and drugs.

UNUSUAL ACCIDENTAL ASPHYXIAL DEATHS

W

e present seven unusual cases of accidental asphyxiation in adults, autopsied over a five-year period at the Wayne County Medical Examiner’s Office (WCMEO) in Detroit, Michigan. The underlying causes and manners of each death are similar in these cases, but the circumstances surrounding death are unique. These seven avenues to accidental asphyxiation include the following: two cases in which individuals were “buried alive” (cases 1 and 2), a case of traumatic asphyxia in an individual “squeezed to death” in a trash compactor (case 3), a case of high altitude hypoxia/hypobaria coupled with hypothermia in a “stowaway” attempting to flee his native country in the passenger jet wheel well of an airplane (case 4), a case of asphyxia caused by choking on a foreign object after a subject was taken into custody by police (case 5), a case of postural asphyxia in a “squatter” found decomposed and mummified in a machine shop (case 6), and a case of accidental hanging in an alcoholic who, while acutely intoxicated, attempted to climb stairs in an unusual restraint scenario (case 7). The current literature offers an array of the world’s reports citing accidental asphyxiation as a cause and manner of death; those similar to the following seven cases are discussed in tandem.

MATERIALS The seven accidental asphyxiation deaths were investigated and autopsied between the years 2000–2004 at the the Wayne County Medical Examiner’s Office. Complete toxicology testing—including analysis for alcohol, commonly abused drugs, and prescription drugs—was performed on all cases, except for those in which biological fluids could not be retrieved secondary to advanced decomposition (case 6).

38 THE FORENSIC EXAMINER® Winter 2009

DISCUSSION Cases 1 and 2: MECHANICAL ASPHYXIA The following two cases are examples of workers who were “buried alive” at the workplace.

Case 1 A 38-year-old male truck driver was the operator of a vehicle used to carry and haul sludge such as human waste. The loaded truck was preparing to empty at a landfill.

Case 2 A 29-year-old male plumber was working on a pipe that was inside a 15-foot-deep hole at a construction site. The walls of the hole collapsed and he was buried in a deep pile of dirt. The body was unrecovered for at least 40 minutes.

Autopsy Findings Examination of the body revealed deposits of dirt in the eyes, nostrils, oral cavity, outer ear canals, umbilicus, and groin areas.

There were multiple skin abrasions noted on the upper extremities and face, while no significant internal injuries were present. Toxicology was also non-contributory in this case.

Discussion of Mechanical Asphyxia These two cases represent accidental asphyxial deaths caused by a combination of mechanical asphyxia and a component of upper airway occlusion. Mechanical asphyxia occurs when pressure on the outside of the body prevents respiration. The autopsy findings are minimal at best and quite often there is no evidence of any injury, thus making the need for good scene investigation paramount. It is also reasonable to assume that the nostrils and oral cavity would be occluded as a result of the entire body being submerged in a semisolid or particulate matter, which is confirmed by the deposition of said material into the nostrils, oral cavity, and airway. www.acfei.com

s Case #1: nostrils and mouth covered by sludge

Asphyxia is a result of chest compression combined with homicidal smothering. It has been historically recorded in the nineteenth century and was known as burking (Dimaio & Dimaio, 2001). Maxeiner and co-authors reviewed 11 cases in which death occurred because of suffocation caused by occlusion of the respiratory tract by sand (without thoracic compression—3 cases) or by being buried alive (8 cases) (Maxeiner & Schneider, 1985). The question of vital reaction during aspiration of sand was investigated through microscopic examination of the contents of the air passage and by destroying parts of the lungs with sulphuric acid. Histological examinations in some cases were remarkable for mobilization of alveolar cells, but there were no typical or unanimous findings among the cases and the authors concluded that minimal aspiration of sand had occurred in the cases (Maxeiner & Schneider, 1985).

Case 3: TRAUMATIC ASPHYXIA A 42-year-old female was caught shoplifting in a store. She tried to flee after being confronted, and the security guards locked the doors in an attempt to trap her inside the store. The woman then ran into a storage room where she jumped inside of a large trash compactor. The trash compactor was inadvertently turned on, and she was heard crying out “You’re killing me.”

(800) 592-1399

Autopsy Findings The body was found wedged between the compactor plunger and some compacted cardboard boxes. The decedent’s head and shoulders were the only parts visible as one looked down the compactor shaft.

Upon removal, the body displayed multiple bruises and patterned linear abrasions.

A crack pipe and a syringe and needle were found in the clothing. The head and neck displayed marked congestion. Pinpoint petechial hemorrhages were present in the eyelids and on the upper chest. A few fractured ribs were present internally, but all of the visceral organs were intact. Other findings include petechiae and ecchymoses on the epiglottis and severe congestion of the thyroid gland, posterior tongue and tonsils.

Toxicology was positive for heroin by-products (postmortem heart blood 0.11 mcg/ ml) and cocaine metabolites. Death was certified as traumatic asphyxia. Investigation revealed that the employee who turned the switch on was unaware of the presence of the woman in the device. The death was ruled as accidental.

Discussion Traumatic asphyxia occurs when a heavy weight falls onto or presses down on an individual’s chest or abdomen, making respiration impossible (Dimaio & Dimaio, 2001). In this particular case, it was the external squeezing force of the compactor plunger against the the woman’s chest that prevented respiration. The findings of intense facial cyanosis and congestion and the petechial hemorrhages seen in the conjunctivae and upper chest are typical findings seen at autopsy. It was reported that an individual who survived an episode of traumatic asphyxia described a severe crushing pain and suffusion of his face followed by immediate unconsciousness (Feldman, 1969). An unusual case of traumatic asphyxia was reported in a 5-month-old infant who was killed by a python. The snake wrapped its body around the infant and tightened its coils when the child exhaled (Dimaio & Dimaio, 2001). The petechiae and ecchymoses on the epiglottis are similar to those reported in a case in which a tractor-trailer driver was trapped in an inverted position between the wheel of a tractor trolley and some stones (Wankhede & Dronge, 2002).

An example of traumatic asphyxia from published reports resembles this case. A man suffering from a diagnosed identity

s Case #4: wheel well of airplane with decendent

disorder jumped into the drum of a garbage truck and was traumatically asphyxiated when the iron roller compressed his body (Hayase et al., 1995).

Case 4: ASPHYXIA DUE TO HYPOBARIA A deceased adolescent male from the Caribbean was discovered in the wheel well of a passenger airplane that landed at Metropolitan Airport in Detroit. This adolescent had attempted to run away from home in the past. His family was unaware of his plan to stow away on a passenger jet, and was also unaware of his death for over two months. According to the investigation, the flight originated from the Dominican Republic; stopped in Miami, Florida; and continued to Detroit, Michigan. There was a mechanical fault in the landing gear of the plane and the deceased was found by the technical ground staff suspended in the wheel well.

Scene and Autopsy Findings Dominican money was found in his pocket.

The body was frozen, and no injuries were present. Some parallel linear scars were found on the inner aspect of both wrists consistent with remote healed “hesitation” scars from a previous suicide attempt. The lungs displayed congestion and edema and multiple subpleural bullae, measuring up to 3 cm. Air bubbles were also noted in the right coronary artery.

Discussion on Hypobaria Collectively, the scenario and autopsy findings support the theory that hypobaria, hypothermia, and hypoxia took place, which has been documented in the literature as fatal environmental factors faced by wheelwell stowaways (Perry, 2002). There were Winter 2009 THE FORENSIC EXAMINER® 39

10 wheel well stowaways retrieved from planes grounded in New York between the years 1947 and 1993, almost half of which were found dead (Veronneau et al., 1996).

In high-altitude hypoxia deaths, exposure to high barometric pressure occurs in the unpressurized wheel well, especially on ascent and descent from altitudes exceeding 30,000 feet. Hypoxia associated with altitude exposure occurs when oxygen partial pressure in the lung falls below the sea level equivalent of 100 mm Hg., but is not relevant until alveolar oxygen tension falls below 60 mm Hg. (Pimanis & Sears, 2003). Most commercial flights operate at a cruising altitude of 25,000 to 40,000 feet.

At 20,000 feet and 30,000 feet, the partial pressure of oxygen and atmospheric temperature falls to 73 mm Hg. and 47 mm Hg., and -25 degrees Celsius and -45 degrees Celsius, respectively (Veronneau et al., 1996). Bartsch P. and co-authors describe the entity of high-altitude pulmonary edema (HAPE) in rapidly ascending nonacclimated healthy individuals at altitudes above 9,000 feet due to increased microvascular hydrostatic pressure in the presence of normal left atrial pressure, which results in leakage of larger molecular-weight proteins and erythrocytes across the alveolar capillary barrier (Bartsch et al., 2005).

Digital pictures sent to a Dominican newspaper along with the case history identified the decedent. The family made contact with the newspaper and sent several pictures. A tentative identification was made comparing the teeth with previous pictures of the decedent as well as using face reconstruction software. Several characteristics of the decedent’s face were matched with previous pictures. Family members did definitive identification. After that was accomplished, the body was expatriated.

Case 5: CHOKING A 39-year-old male was discovered unresponsive in a detention cell. He had been taken into custody after being charged of criminal sexual conduct. During his admission to the detention cell, he informed the personnel that he had no medical problems.

Scene and Autopsy Findings He was last seen alive late in the night and was discovered unconscious and face down after an estimated unsupervised time frame of approximately 10 minutes. The decedent was alone in his cell and there were bits of bread and pieces of ham, partially chewed, 40 THE FORENSIC EXAMINER® Winter 2009

placed inside one of his shoes. At autopsy, there were no injuries or natural disease processes present. The salient autopsy finding was the presence of foreign body aspiration; a plastic sandwich bag filled with paper napkins and ketchup packets was impacted in his airway. Toxicology was positive for phencyclidine (PCP) (0.13 mcg/ml in postmortem heart blood). Death was certified as asphyxia due to choking. The manner of death was debated because it was learned upon further investigation that the subject was suicidal in the past, and the forensic issue in this particular case was whether or not an individual could cause himself to intentionally choke to death.

Discussion on Choking Choking is the blockage of the respiratory tract by any foreign material. Children and adults who have an impaired gag reflex are at the greatest risk for choking. Children commonly choke on hot dogs, nuts, candies, grapes, and seeds, as well as non-food items such as balloons, coins, beverage tops, pills, safety pins, ball bearings, marbles, and even baby powder (Lifschultz & Donoghue, 1996).

Choking in adults is usually accidental and occurs with food while under the influence of alcohol and or drugs, mental retardation/psychosis, or significant neuromuscular dysfunction. It was suggested in this particular case that the presence of PCP was the underlying cause and that the death was accidental since the authors believe it would be much less likely for an individual to intentionally choke.

Reports of choking on other unique objects include a bizarre case of choking on a mouse in a paranoid schizophrenic patient (Achneider & Rossel 1988). The head of the mouse was stuck in the laryngeal inlet. In the large bowel, many metal objects

were found. There is also a case published in the literature which describes a man who accidentally suffocated while attempting to swallow a pool ball cue (Fernando, 1989).

Case 6: POSITIONAL ASPHYXIA An unknown middle-aged adult male in an advanced stage of decomposition was found suspended in an inverted position inside of an aluminum telescope lift in a factory.

His shoe and lower leg were caught inside of a pulley track. It appeared that the decedent was attempting to strip the telescope lift when it collapsed, wedging him upside down inside of the lift. The factory workers complained of a foul odor, which finally led to the discovery of the body.

Autopsy Findings Examination of the remains revealed a completely mummified body with a partially skeletonized upper torso and no residual internal organs. The external appearance of the mummified body had a “stretched-out” appearance. No toxicology could be performed on the available remains. No pre-mortem dental records were available for identification purposes and the man was not an employee who worked in the factory.

Discussion on Positional Asphyxia Death was attributed to positional asphyxia, the diagnosis of which is based essentially on three criteria: the body’s position must obstruct normal gas exchange, it must be impossible to move to another position, and other causes of natural or violent death must be excluded (Belviso et al., 2003).

The mechanism of death was probably similar to that described during crucifixion, in which the weight of the body in an outstretched position would interfere with exhalation by maintaining the intercostal muscles in an inhalation state, resulting in

s Case #6: mechanical lift where the body was found hanging upside down

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exhaustion, impaired respiration, and hypoxia (Dimaio & Dimaio, 2001).

Iannaccone S. and co-authors reported a death due to positional asphyxia of an unknown male who was found dead in a wooded area, hanging in a head-down position secured to the branch fork of a tree by his right foot (Iannaccone et al., 2001).

Case 7: UNUSUAL CASE OF HANGING A 57-year-old male was found hanged in a partially suspended sitting position at the top of a basement staircase. A 40-foot-long chain link dog leash was padlocked around his neck. The chain was caught over the tip of the banister and the opposite end was padlocked to his bed in the basement. The remaining length of the chain was laid out in the staircase and basement. Leather belts were also secured to the decedent’s bed.

Autopsy Findings The autopsy was remarkable for a patterned abrasion which was consistent with the chain encircling the neck and facial and conjunctival petechial hemorrhages. The liver displayed advanced micronodular cirrhosis. Chemical analysis of postmortem specimens revealed elevated quantities of ethanol: 0.28 g/dl heart blood, 0.40 g/dl urine and 0.34 g/dl vitreous fluid. The cause of death was certified as asphyxia by hanging secondary to acute alcohol intoxication. The manner of death was suggested to be accidental since it appeared that the subject, while acutely intoxicated, climbed the stairs and the chain accidentally looped over the banister, hanging him.

The decedent was a chronic alcoholic who had repeatedly failed inpatient rehabilitation for his addiction. His brother, who was a physician, was responsible for restraining the decedent in a crude attempt to prevent him from seeking out and ingesting alcohol after finding him intoxicated earlier in the day. The elderly and demented mother of both men also resided in the dwelling.

Discussion on Accidental Hangings Virtually all hangings are suicidal. Accidental hangings are uncommon and homicidal hangings are extremely rare (Dimaio & Dimaio, 2001). Accidental hangings have been described in children particularly. In adults, some accidental hangings occur when people are engaged in autoerotic practices. Bowen reviewed 201 cases of hanging deaths and found that 95% were suicidal, 5% were accidental, and one case was judicial in nature (Bowen, 1982).

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A case of accidental asphyxia from the literature involved a woman riding as a passenger on the back of a motorcycle who was wearing a long head scarf that got caught and tangled in the wheel of the motorcycle (Gupta et al., 2004). Similar incidents have been reported with snowmobiles.

It is noteworthy that the individual responsible for chaining the decedent as described was criminally prosecuted.

CONCLUSION The incidence of accidental asphyxial deaths from 1997 to 2004 at the Wayne County Medical Examiner’s Office in Detroit, Michigan was 0.6% (96 cases out of 16,257 cases autopsied). The cases discussed embody the most unusual deaths in this category. Specific accidental asphyxiation determinations in Wayne County were categorized as follows (in order of incidence from high to low): mechanical, compression, positional, traumatic, airway obstruction/choking, hanging, sexual, and overlay in infants.

References Achneider, V., Rossel, U. (1988). A special case of bolus fatality. Arch Kriminol, 182(3-4), 65-74.

Bartsch, P., Mairbaurl, H., Maggiorini, M., Swensen, E.R. (2005). Physiological aspects of high altitude pulmonary edema. Journal of Applied Physiology, 98(3), 1101-1110.

Belviso M, DeDonno A, Vitale L, Introna Jr. F. (2003). Positional asphyxia: Reflection on two cases.

American Journal of Forensic Medicine and Pathology, 24(3), 292-297.

Bowen DA. (1982). Hanging: A review. Forensic Science International, 20(3), 247-249.

Dimaio, V. & Dimaio, D. (2001). Mechanical asphyxia. Forensic Pathology. 2nd ed. Boca Raton, FL: CRC Press.

Feldman, E.A. (1969). Traumatic asphyxia: Report of three cases. Journal of Trauma, 9, 345-353.

Fernando GC. (1989). A case of fatal suffocation during an attempt to swallow a pool ball. Medicine, Science and the Law, 29(4): 308-310.

s Case #7: pattern abrasions on the neck created by metallic chain

Gupta, B.D., Jani, C.B., & Datta, R.G. (2004) Case Reports: Accidental strangulation. Medical Science Law, 44(4), 359-62.

Hayase, T., Matsumoto, H., Ojima, K., Matsubayashi, K., Nakamure, C., Abiru, H. & Fukui. (1995).

Autopsy Cases Among Patients with Mental disorders: An unusual case of asphyxia caused by the iron roller of a garbage truck. Journal of Forensic Science, 40(5), 896-899.

Iannaccone, S., Grochova, Z., Bobrov, N., Longauer, F., & Szabo, M. (2001) Death in an unusual body position. Soud Lek, 46 (4), 58-61.

Lifschultz, B.D. & Donoghue, E.R. (1996). Deaths due to foreign body aspiration in children: the continuing hazard of toy balloons. J Forensic Sci, 41(2), 247-251.

Maxeiner, H. & Schneider, V. (1985). Suffocation death by occlusion of the airways with sand. Rechtsmed, 94(3): 173-189, 184-189.

Perry, G. (2002). Wheel-well and cargo compartment temperatures of large aircraft in flight:Implications for stowaways. Aviat Space Environ Med, 73(7), 673-676.

Pilmanis, A.A. & Sears, W.J. (2003). Physiological hazards of flight at high altitude. Lancet, 362, s 16-7.

Veronneau, S.J., Mohler, S.R., Pennybaker, A.L., Wolcox, B.C., Sahiar, F. (1996). Survival at high altitudes: Wheel well passengers. Aviation, Space, and Environmental Medicine, 67(8): 784- 786.

Wankhede, A.G., Dongre, A.P. (2002). Head injury with traumatic and postural asphyxia: A case report.

Medicine, Science and Law, 42 (4), 358-9. n

ABOUT THE AUTHORS

Dr. Cheryl Loewe, MD, is the chief deputy medical examiner for Wayne County in Detroit, Michigan. Dr. Loewe has been with the WCMEO for over 13 years and is also the program director of the forensic pathology fellowship program.

Dr. Francisco Diaz, MD, has been a medical examiner for WCMEO since 2001, after completing his training at the Philadelphia Medical Examiner. Dr. Diaz is a member of the American College of Forensic Examiners.

Winter 2009 THE FORENSIC EXAMINER® 41

HISTORICAL PROFILE

By Russell A. Hunt, MA, CHS-III

ALLAN PINKERTON: AMERICA’S FIRST PRIVATE EYE (1819-1884)

I

recently watched a couple of movies about Jesse James and his gang and noticed that the Pinkerton Detective agency and Allan Pinkerton himself were portrayed in a very negative light. I wrote this article to remind people of his important contributions to private security and law enforcement.

Allan Pinkerton was born in the Gorbals area of Glasgow, Scotland, which was one of the most crime- and vice-ridden, polluted, and poorest areas in Europe (Jones, 2005).

This area was so notorious that Sir John Fielding, leader of the famed Bow Street Runners––the first detectives in England, once said that his detectives could track a thief anywhere in the United Kingdom unless they made it to the Gorbals (Mackay, 1996).

The Pinkerton family was one of the oldest families in the Gorbals (Mackay, 1996). In the 1790’s, a minister from the Gorbals remarked sadly that many children 42 THE FORENSIC EXAMINER® Winter 2009

born to depraved parents were abandoned in the community, where they became involved in crime and deviant behavior with no fear of God or respect for other people.

In this community, there was a great deal of alcohol consumption, with approximately one drinking establishment for every 12 families, not including the unlicensed ones (Mackay, 1996). The community had many brothels and many of the prostitutes hung out in the pubs. This was the part of Scotland where honest law abiding citizens went for fun.

Pinkerton was born to William and Isabell Pinkerton on August 25, 1819,

during the worst of times in the Gorbals’ community (Mackay 1996). The wars with France caused widespread unemployment in the area. Also, there were many crop failures as well as changing technology, both of which contributed caused high unemployment. There were a number of strikes and violent confrontations in this period of time between the workers and the manufacturers. There was a huge influx of immigrants.

The immigrants were from Ireland, but over time many people emigrated to the Gorbals from Eastern Europe. Today the community is largely Pakistani (Mackay, 1996).

Pinkerton’s father worked as a handloom weaver, making him more skilled and educated than most in the community, though still poor. Later he worked as a jailer and was injured on the job. He eventually died from the injuries. Many sources report that Pinkerton’s father was a police sergeant who was injured during the Chartist riots. However, this widely reported rumor is untrue, after an examination of the Glasgow police force records revealed the truth. It was Pinkerton’s older half-brother, also named William, who served as a police sergeant with the Glasgow force (Mackay, 1996).

Not much is known about Pinkerton’s early childhood. He left school at the age of 10 after his father’s death. His mother taught him right from wrong and insisted he read anytime he could. Pinkerton read voraciously and was largely self-educated.

Like his father, Allan Pinkerton learned a trade through apprenticeship. He became a cooper and made barrels for a living (Jones, 2005). During this time, Pinkerton became active in a radical political group called the Chartists. This group believed in temperance, women’s rights, abolishing slavery, and workers’ rights to organize and negotiate for better wages and working conditions. He also met a 14-year-old girl, Joan, who was singing at one of the political rallies he attended. Pinkerton and Joan married when she was 15. They had four daughters and three sons (Jones, 2005).

There are many stories about why Pinkerton moved to America. One is that some of his close friends moved to America and told him there were many business opportunities for him. Some say his speeches www.acfei.com

and activities in the Chartist movement made him a threat to the government, and he feared arrest. This is possible because some of his associates in the Chartist movement were arrested and convicted of treason. Another story suggests that he and his wife were smuggled into Canada on a ship, while another version claims that he bought his wife a ticket and he was hired as a cooper on the ship––which paid for their transportation. While in Canada, Pinkerton learned that America indeed had more career opportunities, so he and his wife moved to a small town near Chicago named Dundee (Jones. 2005).

Pinkerton started his own barrel-making business. He worked incredibly hard; waking at half past four every morning and working until six in the evening, seven days a week. He enjoyed taking long walks in the country and reading for a couple hours each night before going to bed. Pinkerton’s cooper business expanded to the point that he hired eight more men to help him. He hired German men from the other side of the river. Many people in the community resented these new immigrants. However, Pinkerton had a strong belief that all men were equal—a novel idea for the times, when many others held more racist views (Mackay, 1996).

Pinkerton’s life and career drastically changed one day as he was looking for wood to use at his shop. He found some trees on a small island and discovered that a group of people had been there. Although he wasn’t sure what they were doing, he was sure it was illegal! He returned at night and watched the men but still was not certain what they were doing. The next day he contacted the sheriff, who put together a posse. They arrested the men, who turned out to be counterfeiters. This arrest brought Pinkerton a great deal of publicity. Everyone who came to the store wanted to hear Pinkerton tell the story––until he got tired of telling it (Mackay, 1996).

Later a group of local businessmen wanted Pinkerton to investigate a man in town whom they believed was a counterfeiter.

At first Pinkerton refused, saying he was a cooper, not a detective, but later agreed to help them (Mackay, 1996).

Pinkerton arranged to meet the man, and agreed to buy counterfeit money from him. He knew he could get a conviction only if the man had the counterfeit money on him at the time of his arrest. They met in the lobby of a hotel, and Pinkerton (800) 592-1399

bought $4,000 in counterfeit money from the man. He made a prearranged signal, and a deputy sheriff moved in for the arrest. Pinkerton testified before the grand jury and the man was indicted. However, he later escaped from jail. Allegedly a deputy sheriff had been bribed and allowed the man to escape. Pinkerton said it was his first encounter with police corruption, but it would not be his last (Mackay, 1996).

Soon after he was offered a part-time position as a deputy sheriff, but he still did his job as a cooper full-time. As a deputy sheriff he earned a reputation as being tough, smart, and honest.

Pinkerton had been opposed to slavery since his days in the Chartist movement.

He felt compelled to take a more active role in fighting slavery after he read speeches by Frederick Douglass. He helped runaway slaves get to Canada. He also taught some of the runaway slaves carpentry and barrelmaking so they would know a trade when they were free (Mackay, 1996). Pinkerton ran for sheriff on the Abolitionist ticket, but was portrayed in an unflattering light in newspaper articles and letters by people who felt he was unfit for office. He was accused of being an atheist. He lost many friends, and his business suffered as a result of the election. After the election he moved to Chicago to become a deputy sheriff in Cook County (Mackay, 1996).

In 1849, the newly elected mayor of Chicago reorganized the police department, and Pinkerton became the first de-

tective in the Chicago Police Department.

He quit the job only one year later because of political interference (Mackay, 1996).

Pinkerton later stated that the reason he left the Chicago police was because he was offended by the corruption and didn’t like taking orders. Mackay (1996) suggested the real reason was because the mayor was opposed to Abolitionism and had learned of Pinkerton’s beliefs. Pinkerton then became a special mail agent for the U.S. Postal Service. His first assignment was to investigate a theft of checks and money orders. The Postmaster General believed it was occurring in the sorting room in Chicago. Pinkerton went to work as a mail sorter and later arrested the postmaster of Chicago and two of his nephews. In 1849, Pinkerton’s fame grew when he rescued two kidnapped girls and shot one of the kidnappers (Josephson, 1996).

In 1850, Pinkerton created his own detective agency––The Northwest Police Agency––with attorney Edward Rucker.

One year later Rucker left to be a judge, so Pinkerton created his own agency–– The Pinkerton National Detective Agency.

The agency used a large unblinking eye as its trademark, and its motto became, “We Never Sleep.” The term “private eye” came from the slogan. Pinkerton’s agency filled a very large void in law enforcement during this period (Mackay, 1996).

Up until now, law enforcement in the United States was carried out largely at the local and county levels. Police officers and sheriffs were often untrained and limited by their jurisdiction. There were outlaws who traveled long distances after their crimes.

America was unable to deal with these offenders at a national level. Pinkerton recognized the problem and stepped in to help (Mackay, 1996). He worked alone at first, but three years later he had eight employees (five detectives, a secretary, and two clerks).

He hired many more detectives over the next three years, including America’s first female detective—Kate Warne, an attractive 23-year-old widow. Warne proved to be an exceptional detective. She was resourceful, daring, steadfast, and intelligent. By 1860, Pinkerton had hired several women to work for him, and Warne became the leader of the “Female Detective Bureau” (Mackay, 1996).

Many of Pinkerton’s original agents (he called them operatives) had no previous police experience or training. He believed that honesty, common sense, and instinct were Winter 2009 THE FORENSIC EXAMINER® 43

s Allan Pinkerton, President Abraham Lincoln, and Major General John A. McClernand. This photo was taken not long after the Civil War’s first battle on northern soil in Antietam, Maryland on October 3, 1862.

more important than training and experience. Pinkerton wrote a code of conduct for his employees (Josephson, 1996). His operatives communicated with him through reports, letters, and telegrams. He used this information to create his Rogues Gallery of wanted men (Josephson, 1996). Some believe this is where the FBI got the idea years later for their Ten Most Wanted list.

Pinkerton had some sympathy for the men he arrested. He believed that once a criminal was relased from prison they deserved a second chance, and he helped many get jobs upon their release (Josephson, 1996).

Pinkerton was always willing to diversify when the need arose. In 1860, he created a uniformed guard service to protect 44 THE FORENSIC EXAMINER® Winter 2009

meat-packing plants and other companies in Chicago. These uniformed guards were a much different group than his agents who wore disguises and rode trains (McKay, 1996). As the railroads traveled further west, they were attacked more frequently and viciously (McKay, 1996). Pinkerton obtained contracts with most of the railroad companies. Through the railroads, he met two people who had a significant impact on his career—George McClellan and Abraham Lincoln (Jones, 2005).

Pinkerton learned of a plot to kill Lincoln on his trip to Washington prior to his inauguration. Pinkerton worked with the railroad to improve security and re-routed the inauguration train. Jones (2005) stat-

ed that if it had not been for Pinkerton, it is unlikely that Lincoln would have become President. After the Civil War started, Lincoln convinced McClellan to leave the railroad (he was Vice President of the Illinois Central) and serve as a Major General in the Union Army. Both McClellan and Lincoln realized the need for spies and intelligence gathering during the war, and they contacted Pinkerton. He and his agents were called “the Secret Service.” In the North, Pinkerton agents searched for and arrested Confederate spies. In the South, his operatives watched troop movements. Pinkerton’s 15-year-old son went up in a balloon to see troop movements. This was the first time balloons were used by the military.

Pinkerton’s greatest success during the Civil War was the arrest of Rose Greenhow, the leader of an extensive Confederate spy network. Greenhow lived in Washington, D.C., and was famous for throwing parties attended by many powerful men–– and where she gathered information for the South. She warned the South about the North’s plan to attack at Bull Run. The South was prepared for the attack and won the first major battle in the Civil War. Pinkerton kept her under 24-hour watch and recorded her location and contacts.

When she was arrested, so were a number of military officers, doctors, lawyers, senators, and military aides. While she was in prison, Pinkerton continued to arrest traitors. President Lincoln released Rose from prison after two years, but she drowned in 1864 while smuggling supplies from Europe to the South (Josephson, 1996).

This period was very difficult for Pinkerton. He lost some of his best operatives during the war (Tim Webster, his best agent, was hanged for spying) and Pinkerton took the deaths very hard. Pinkerton begged President Lincoln to stop the execution of Webster, so Lincoln sent Jefferson Davis a letter stating, “if you don’t hang our spies, we won’t hang yours.” Webster was hanged anyway.

When General Burnside took over the Army of the Potomac, Pinkerton and his agents left government service. One of Pinkerton’s biggest regrets was not providing security for Lincoln, who relied on the Washington D.C. police to protect him.

Pinkerton and his sons were working in New Orleans when Lincoln was assassinated. Pinkerton always insisted that if he had provided security for President Lincoln at Ford’s Theater, the assassination wouldn’t www.acfei.com

have been successful (Jones, 2005). The Civil War allowed Pinkerton to meet a number of powerful, successful people, and his agency expanded. The agency took pictures of those arrested, and it is believed this led to the creation of the first “mug books” in American law enforcement.

Following the war, Pinkerton faced some setbacks. In 1866, other security agencies began forming and they competed with his agency. By 1868, Pinkerton was the most famous detective in America and Europe. However, that same year, he suffered a stroke that left the right side of his body partially paralyzed for the rest of his life. After two years of painful physical therapy, he was able to walk again. In 1871, he faced another problem. The Chicago fire destroyed his office, which was formerly his main headquarters. The office was rebuilt in a year. After the fire, the Pinkertons were hired to guard buildings that had burned or were being rebuilt. The Chicago police at the time had only 310 police officers and could not handle the additional work (Josephson, 1996).

Pinkerton’s agency would go on to be involved in two very significant investigations in the years following the Civil War––investigating and apprehending the James Gang, as well as breaking the Molly Maguire strikes against the mines. After the war, new crimes and criminals emerged. In 1866, the first train robbery occurred in America. Bank and train robberies became a major concern for the Pinkertons, and they pursued the most famous outlaws of that time––Jesse James, Cole Younger, Butch Cassidy and the Sundance Kid, “Black Jack” Tom Ketcham, and the Reno brothers. By the turn of the century, the Pinkertons had either arrested or assisted in the arrests of them all (Geringer, n.d.).

The detective agency was very popular until 1871. Outlaws such as the James gang became folk heroes in the press, and Pinkerton’s detectives became villains. In 1871, a Pinkerton agent infiltrated the James gang, but was discovered to be a private detective. The operative was murdered and his body mutilated. In a later incident, a Pinkerton detective died in a shootout with the Younger brothers (members of the James gang). The deaths of these men outraged Pinkerton, and he vowed he would bring the James gang to justice (Jones, 2005). In 1875, the Pinkertons surrounded Jesse James’ mother’s house, where the gang was believed to be hiding.

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However, the outlaws had learned of the raid and were already gone. The detectives shouted for Jesse and Frank to come out.

When they didn’t, an incendiary device was thrown into the house. It rolled into the fireplace and exploded, killing James’ halfbrother and crippling his mother. The raidmade the Pinkerton Detective agency very unpopular in the press. The sheriff of Clay County tried to indict them for murder.

Pinkerton denied that his son William led the raid, but refused to name the detectives who were responsible (Mackay, 1996).

When the James gang attempted to rob a bank in Northfield, Minnesota, they found the town had prepared for them. The Pinkertons warned towns in the area of the gang’s presence. Dozens of citizens shot the gang to pieces. The Younger brothers were wounded and arrested, but Jesse and Frank escaped––they were now the most hunted men alive! (Nash, J. 1994). Jesse James was later killed by Bob Ford, a member of the gang who wanted the reward money. Frank, after his prison sentence was over, retired to his farm in Missouri.

From 1874–75, the Molly Maguires performed a series of devastating strikes against the mines (Sifikis, 1982). The Mollies wre a secret society of Irish coal miners founded in Pennsylvania in 1845. Their mission was to intimidate English, German, and Welsh miners, and to rid the area of police and mine supervisors. Mackay (1996) described the group as “gangsters and hoodlums, without any redeeming features” (p.

9). The group was condemned by both the labor unions and the Catholic Church.

The Molly Maguire case was one of the Pinkerton Agency’s most historically significant investigations.

In 1875, the Maguires controlled the mines and started a strike. When they started sabotaging and derailing trains, they became a concern for Pinkerton (MacKay, 1996). The general manager of the Chicago and Alton railroads, who served in the Civil War, was well-acquainted with Pinkerton, and hired his agency to deal with these domestic terrorists. They were thugs and killers who had terrorized the mining industry for many years. Pinkerton believed that infiltrating the group was the best approach, even though that approach had not worked with the James gang.

James McParland was chosen as the best man for the assignment. He was born in Ireland and had worked as a coal company wagon driver before becoming a private de-

tective for the Pinkertons. He had distinguished himself in many cases before being selected for the Molly Maguire case (Sifikis, 1982). In October 1873, McParland got a job as a miner and worked there for two and a half years. Only six men in the Pinkerton Agency knew his true identity. Over time, McParland became friends with two of the men in the Molly Maguires. The gang tested him many times. In one case McParland was asked to kill a man who had shot and wounded a Molly. McParland was able to talk his way out of it (Mackay, 1996). James McParland’s work on the Molly Maguire case caused him to be more hated by radical labor unions than any other private detective of his time (Sifikis, 1982).

During McParland’s undercover assignment, wages for the miners were cut, and non-union workers were brought in from Wyoming who were willing to work for less money. A strike dragged on for months and tensions mounted. The Mollys planned to destroy a bridge to prevent the “scab coal” from being shipped. McParland convinced them it was too dangerous––the bridge was under constant watch by railroad police– –and that they would quicky be arrested.

McParland set up a “flying squad” of six Pinkerton detectives and six hand-picked railroad police, all under the command of a Pinkerton lieutenant, who would have sole contact with McParland. Now McParland had help and an ally—Lt. Robert Linden–– but this also increased the chances of blowing his cover (Mackay, 1996).

When the strike collapsed in May, the violence increased. The Mollys shot and wounded one of the Wyoming miners, and McParland was later blamed for not warning the agency that this was about to occur. McParland began to suffer from serious illnesses. He was very frustrated and angry about his inability to gather enough evidence for arrests. When masked gunmen had broken into one of the Molly Maguire’s houses and shot one of the terrorists (and his mother), McParland tried to resign. He said shooting a woman was something he could not condone. Pinkerton was able to convince McParland that the agency was not involved in the murder. In September 1875, the Mollys were arrested for the murder of the mine superintendant (MacKay, 1995).

At the trial, the prosecuting attorney begged Pinkerton to let McParland testify, even though this was not the deal they had made. McParland became the chief Winter 2009 THE FORENSIC EXAMINER® 45

witness at the trial (Mackay, 1996). The series of trials lasted from 1875-1877. His testimony convicted more than 60 members of the group, and 19 were hanged for murder (Sifikis, 1982). McParland was criticized by defense attorneys for his knowledge of murders before they were committed and doing nothing to prevent them.

He explained that he believed he would be killed if he tried to warn police of the plans to commit murder. These allegations would haunt the rest of his career. A number of books and articles were written about McParland, the most significant being Sir Arthur Conan Doyle’s book “The Valley of Fear,” which was based loosely on the Molly Maguires and McParland’s work (Sifikis, 1982). Throughout the 20th century, there were many attempts to prove the Molly Maguires were innocent. In 1979, a century after his execution, Jack Kehoe, the leader of the group, was granted a full pardon by the Governor of the state (Sifikis, 1982).

Pinkerton continued to work despite his handicap. He wrote 18 books throughout his life. On July 1, 1884, he died. Three weeks prior to his death he fell and bit his tongue, which became gangrenous. After his death, the company continued to thrive under his sons. Robert headed the New York office, and William became an expert on organized crime (Josephson, 1996).

However, over time, much of the work done by the Pinkerton Detective agency was now handled by the FBI, Secret Service, and other police agencies (Roth, 2001). His sons wanted to take the agency in a new direction, and became involved in strike breaking and fighting labor unions. Many felt the agency’s image was tarnished by his sons’ leadership.

In 2003, the Pinkerton Detective Agency and the William J. Burns Detective Agency were purchased by Securitas AB, and created the new company Securitas Security Services USA––one of the world’s largest security companies. Although Pinkerton’s was purchased by Securitas, a Swedish company, it still retains the name Pinkerton Government Services (PGS) which provides security, fire, and emergency services for government agencies and contractor companies that are obligated to meet federal government security, fire, and emergency services requirements.

Pinkerton hired a number of detectives who were later famous, including Dashiell Hammett. Hammett was a detective for 46 THE FORENSIC EXAMINER® Winter 2009

Pinkerton from 1915 to 1921, and he wrote a number of crime novels and short stories using the character Sam Spade. A number of Hammett’s books were made into movies, such as The Maltese Falcon. He also wrote The Thin Man and a comic strip.

Allan Pinkerton’s legacy is a memorable one. He was “one of the most effective and innovative detectives of his day” (p.17).

He was the classic type A personality––it was not uncommon for him to work 1820 hours per day. He quickly adopted new technology, such as photography. He created wanted posters for all the offenders he sought. This was long before the FBI thought of creating a Ten Most Wanted list. Pinkerton was successful because he was not limited by jurisdiction. He recognized how important the railroad industry was to America, and the threat posed by outlaws. He recognized that there was no federal agency equipped to effectively deal with them. Although he was an excellent businessman, he had a tendency to be a micro-manager (Jones, 2005). It should also be remembered that his agency and his employees were so successful, that when the FBI was created in 1908, it used Pinkerton’s agency as a model (Geringer, n.d.)

Pinkerton had a Machiavellian attitude about fighting crime, “The ends justify the means if the ends are for the accomplishment of Justice” (Mackay, 1996, p. 76).

However, he did caution his employees not to obtain confessions using means that would hurt the case in court. For example,

he warned them not to take statements from witnesses or suspects that were under the influence of alcohol. It is interesting that he caught criminals, while at the same time breaking the law––by helping escaped slaves (MacKay, 1996).

The Pinkerton Agency slogan, “We never sleep,” is the title of Geringer’s article ‘Alan Pinkerton and his Detective Agency: We Never Sleep,’ which can be found at crimelibrary.com.

References: Flanagan, M. (1999). The complete idiot’s guide to the Old West. Indianapolis, IN. Alpha Books, a Pearson Publishing Company.

Jones, M. (2005). Criminal Justice Pioneers in U.S. History. New York: Pearson Publishing Company.

Josephson, J. (1996). Allan Pinkerton: The Original Private Eye. Minneapolis, MN: Lerner Publications Company.

Mackay, J. (1996). Allan Pinkerton: The First Private Eye. New York: John Wiley & Sons, Inc. Nash, J. (1994). Encyclopedia of Western Lawmen and Outlaws. New York: Da Capo Press.

Sifikis, C. (1982). The Encyclopedia of American Crime. New York: Smithmark Publishing Company.

Geringer, J. (n.d.). Alan Pinkerton and his detective agency: we never sleep. http://www.crimelibrary. com (retrieved July 30, 2009).

Roth, M. (2001). Historical dictionary of law enforcement. Westport, CT. Greenwood Press n

ABOUT THE AUTHOR

RUSSELL A. HUNT, MA, CHS-III, has a bachelor’s degree in psychology from Wichita State University and an MA in criminal justice from Wichita State University. He also has practical experience in the field, having served as an EMT; a corrections officer for the Sedgwick County Sheriff’s Department in Wichita, KS; a law enforcement specialist in the United States Air Force; and as an intelligence specialist in Force Protection/Anti-Terrorism with the United States Air Force Reserves. He also served briefly in the Army Reserves as a platoon leader for a medical unit. Professor Hunt taught at Central Texas College while he was stationed in England and has been teaching criminal justice classes at Dodge City Community College for more than 10 years. He teaches Introduction to Criminal Justice, Introduction to Corrections, Introduction to Law Enforcement, Juvenile Delinquency, Juvenile Corrections, Parole/Probation/Community Corrections, Criminology, Terrorism/Extremist Groups, Organized Crime, White Collar Crime, Street Gangs, Serial Killers, Criminal Procedure, Sociology, Psychology, and Leadership in Criminal Justice. Professor Hunt also teaches online criminal justice classes though Edukan, a consortium of community colleges in western Kansas. Russ is a member of Alpha Phi Sigma Honor Society and has been featured in both Who’s Who of Professional Educators, 2001-2002 and Montclaire Who’s Who Among Executives and Professionals, 2009.

Note—Thanks to Kevin Stueven, professor of history at Dodge City Community College, for editing this article for me. I could not have done this without his help.Thanks also to my fiance Lynn Foster for helping me edit this article. www.acfei.com

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Winter Fall 2009 THE FORENSIC EXAMINER® 47

CE ARTICLE: 1 CE CREDIT

By Kenneth E. Blackstone, MS, DABFE, CFC

D

ue to allegations of physical, emotional, and sexual abuse, millions of American children are interviewed each year by law enforcement, child protective services, mental health, and other professionals. The outcome of these interviews is frequently tendered as uncorroborated, yet compelling evidence in a criminal trial, increasing its significance and the need for dependability. With 30 years of experience in this field, this author realizes that child sexual abuse (CSA) is a horrific crime and this paper is not an attempt to minimize its importance. The purpose of this short report is to 1) review an investigative case of child abuse biased by flawed interviewing that resulted in a wrongful jury verdict and 2) outline one of few existing remedies; the taint hearing.

CAPTA and NCCAN Until 1961, when the medical field first recognized “Battered Child Syndrome,” child sexual abuse was a relatively silent issue in American society. Paradoxically, within two decades, medical opinions were of no great importance and almost anything was considered a sign of abuse. In 1974, the passage of the Child Abuse Prevention and Treatment Act (CAPTA) (Federal law, P.L. 93-247) established a National Center on Child Abuse and Neglect (NCCAN).

CAPTA aimed to start child maltreatment programs and establish standards by which states could become eligible for federal money to help them establish their own child protection agencies. One of the measurable effects of CAPTA was the increase in abuse reports: In 1976, about 6,000 confirmed reports of abuse were made to child protective agencies. By 1985, the number had risen to about 113,000 each year.

In 1993, the number had risen to about 152,000 (Besharov, 1994).

48 THE FORENSIC EXAMINER® Winter 2009

The Flood of Unfounded Allegations Douglas Besharov, the first director of NCCAN (1975-1979), reported in 1994 that depending on the community, as many as 65% of all CSA reports were closed after an initial investigation revealed no evidence of maltreatment (Besharov, 1994). The former director wrote in an article: “We now face an imminent social tragedy: the nationwide collapse of child protective efforts caused by a flood of unfounded reports.” In testimony before Congress, Besharov stated: “For fear of missing even one abused child, workers perform extensive investigations of vague and apparently unsupported reports . . . As a result children in real danger are getting lost in the press of inappropriate cases” (Besharov, 1994). And, in my opinion, the notion of ‘innocent until proven guilty’ has gone out the window in child sexual abuse cases.

Innocent Until Proven Guilt y or Guilt y Until Proven Innocent?

The presumption of innocence, an ancient principle of criminal law, is actually a misnomer. According to the U.S. Supreme Court, presumption of the innocence of a criminal defendant is best described as an assumption of innocence that is “indulged in the absence of contrary evidence” (Taylor v. Kentucky, 1978). Nonetheless, what some see as a righteous attempt to protect children is seen by others as a disregard for the presumption or assumption of innocence.

So, are we looking at a Catch-22? How many falsely accused people must be sacrificed to protect innocent children?

According to Blackstone’s formulation, the legal system should be more concerned with the accused than the children. A powerful example of this dilemma comes from 25 years ago:

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

After studying this article, participants should be better able to do the following: 1. Explain the fallibility of forensic interviewing.

2. Illustrate the concept of the taint hearing.

3. Demonstrate the need for a specialized forensic examiner to aid defense and prosecution.

KEY WORDS: child sexual abuse, forensic interviewing, Michaels decision, taint hearing TARGET AUDIENCE: PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose.

PREREQUISITES: None

The Kelly Michaels Case In September 1984, 25-year-old Margaret Kelly Michaels was hired by Wee Care Day Nursery in Maplewood, New Jersey.

Located in St. George’s Episcopal Church, Wee Care served approximately 50 families with an enrollment of about 60 children, aged three to five. Michaels had recently moved from Pittsburg, was a few credits short of a degree in drama and planned to get into the theater business in nearby Manhattan. She started as an aide at Wee Care and within three weeks became a teacher. Her classroom was located in the church basement—separated from an adjacent class by a vinyl curtain. Michaels resigned on April 22, 1985, and later told how she disliked taking children up and down stairs to the bathroom at Wee Care.

On April 26, 1985, the mother of fouryear-old “Jonathan” was preparing him for Wee Care and noticed that he was covered with spots and took him to his pediatrician to be examined. During the examination, a pediatric nurse rubbed the boy’s back as she took his temperature rectally.

In the presence of the nurse and his mother, the boy stated, “this is what my teacher does (to) me at nap time at school.”

Whether he was referring to the back rubbing or rectal penetration was unclear. He indicated that his teacher (Kelly Michaels) did this to him and two other boys at Wee Care daily. The pediatrician was not told of the remark and no further examination was done.

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The Investigation Jonathan’s mother took him home, questioned him further, and then contacted his grandfather—a prominent local judge.

Both Wee Care and the Department of Youth and Family Services (DYFS) were contacted and Jonathan was soon repeating his allegations to Sara McArdle, an assistant District Attorney (D.A) at the Essex County Prosecutor’s Office.

McArdle and Lou Fonolleras, an investigator with the DYFS, then interviewed the other two boys, “Evan” and “Sean.” Evan denied that Michaels had put anything in his rectum or had abused him in any other way and Sean also denied having his temperature taken. But Sean, described as “agitated, hostile, rushing around the room, almost trapped,” during questioning, came up with a new charge—he alleged that Kelly Michaels had touched his penis (State v Michaels, 1993).

The news of these allegations spread like wildfire in the Maplewood community and parents were concerned, despite the fact that Michaels no longer worked at Wee Care. At the onset of this firestorm Dr. Susan Esquilin, a child therapist, presided over two heavily attended parent meetings. Esquilin suggested group therapy for the children and stated that her goal was to induce the children to discuss sexual abuse. In the first group therapy session, she told the children that they were assembled together “because of some of the things that had happened at Wee Care and with Michaels.” She conducted five group therapy sessions with the Wee Care children and eventually assessed or treated 13 of the 20 child witnesses. Based on courtroom testimony, it seems that four children made allegations after their contacts with Esquilin (Campbell, 1998). Consequently, there were repeated interviews of children by their parents, by DYFS, and by investigators for the prosecution.

On May 1, 1985, the Essex County Prosecutor’s office officially took over the investigation. The Prosecutor’s office interviewed several Wee Care children and their parents, concluding their initial investigation on May 8, 1985. Michaels also submitted to approximately nine hours of questioning and took a polygraph examination. The prosecution found there had been no prior complaints about Michaels and the polygraph test verified her denial of sexual molestation at Wee Care.

The only incriminating “evidence” was gathered during interviews with parents

and children. The week after Kelly was first questioned, Peg Foster of the Child Abuse Diagnostic and Treatment Center at Children’s Hospital of New Jersey, in Newark, met with Wee Care parents. In her presentation Foster warned parents that their children would probably deny being molested “until they trusted the interviewer.” Foster then provided the parents with “symptom charts” —a listing of “behavioral indicators” such as stomach aches and bedwetting, which children might display if they had in fact been sexually abused.

Subsequently, when children denied being sexually abused by Kelly Michaels, the concerned parents now had reason to believe that this was a scientifically proven indicator of the opposite.

In his book, Smoke and Mirrors, Campbell describes the “leveling and sharpening” that takes place when concerned parents compare notes during an investigation.

When Foster met with parents during the Michaels investigation and showed them her 32 behavioral indicators their memories improved and they began to recall ordinary behaviors and realized they were actually symptoms of abuse. (Campbell, 1998) This phenomenon can also apply to the interviewer who listens to a policeman, a parent, and then to one or more children.

The interviewer sees that stories differ, reinterviews the children and by “leveling and sharpening” is able to put the proverbial “square peg in a round hole.”

While forensic interviewers are capable of avoiding this by limiting communications with third parties and maintaining objectivity within the interview, the social structure outside the interview is likely to increase susceptibility to suggestive interviewing techniques (Poole, 1998).

On June 6, 1985, Michaels was charged in a three-count indictment involving the alleged sexual abuse of three Wee Care boys. The interviewing continued with Lou Fonolleras, the DYFS investigator, conducting 82 interviews with Wee Care children and 19 interviews with Wee Care parents between May 22 and July 8, 1985.

It is also important to note that Fonolleras was himself abused as a child, and in at least one recorded interview he used this to lead the child’s testimony. His personal background may explain his bias and pursuit of a single hypothesis. At least 10 children made initial allegations after their interviews with Fonolleras (Campbell, 1998).

Winter 2009 THE FORENSIC EXAMINER® 49

ume of testimony (the actual number is unknown to this author) accumulated over a 28-month period (April 1985–June 1987).

Initial interviews were not recorded, only half of the interviews were recorded, and the state had neither witnesses nor corroborating physical evidence. Coarse behavior that reportedly took place behind a vinyl curtain was never witnessed—alleged acts such as urination on the piano bench or eating a cake made of feces had left no physical evidence. Disclosures like “she cut off my penis”, “she stuck a sword in my rectum”, and “she made us eat boiled babies” were also unsupported by physical evidence.

The Trial

By June 22, 1987, the prosecution had dismissed 72 counts and Kelly Michaels was prosecuted on the remaining 163 counts in what was a 10-month long trial.

The state’s main expert witness, Eileen Treacy, testified for eight days. Treacy worked as a therapist in New York at a clinic for sexually abused children. She was eight years away from obtaining her PhD in psychology and was not licensed as a therapist, either in New York or New Jersey. In a gross conflict of interest, Treacy helped the prosecutor choose which of the children would testify and then presented herself as an “independent” expert as to their credibility.

During the resultant trial, another 32 counts were dismissed, leaving 131 counts.

On April 15, 1988, after thirteen days of deliberation, the jury returned guilty verdicts on 115 counts, including aggravated sexual assault (38 counts), sexual assault (31 counts), endangering the welfare of children (44 counts), and terroristic threats (two counts).

The trial court sentenced Kelly Michaels to a term of 47 years with a minimum of 14 years of incarceration.

During these interviews the children were repeatedly told that “Kelly is in jail because she was bad.” They were also given specifics as to “what the other kids told us she did.”

During the upcoming trial Fonolleras justified his telling children about other children’s allegations with . . . (The children) needed some reassurance . . . (that) they were not alone” (State v Michaels, 1995).

Positive reinforcement was then provided when children made statements about Kelly Michaels. For example, they were told that the investigators “needed their help,” that they could be “little detectives,” and were 50 THE FORENSIC EXAMINER® Winter 2009

given mock police badges when they cooperated. Children were also introduced to the police officer who had arrested Kelly, shown the handcuffs used during her arrest, and told that “this is what happens when you don’t cooperate.”

A second indictment was returned July 30, 1985, containing 174 counts of various charges involving 20 Wee Care boys and girls. A third indictment on 55 counts was filed November 21, 1985, involving 15 Wee Care children.

The bulk of the State’s evidence supporting these charges consisted of a high vol-

The Appeal Kelly Michaels was incarcerated and an appeal was immediately pursued. Attorneys were aided by 45 social scientists: they studied the forensic interviewing and demonstrated the link between suggestive interview techniques and the malleable memories of children. In an amicus brief these social scientists (Ceci, 1995) wrote: In the past decade, there has been an exponential increase in research on the accuracy of young children’s memories and the degree to which young children’s www.acfei.com

memories and reports can be molded by suggestions implanted by adult interviewers. As will be explained, these same interview conditions, which have a high risk of contaminating young children’s reports, characterize the available investigative interviews carried out with the 20 child witnesses in the Kelly Michaels case . . .

The Appellate Court’s decision was consistent with the amicus brief. “Our decision today should make clear that the investigatory techniques employed by the prosecution in this case are unacceptable and that prudent prosecutors and investigatory agencies will modify their investigatory practices to avoid those kinds of errors . . . “ In its ruling the court noted numerous faults in interviews of Wee Care students; for example, a failure on the part of the interviewer to challenge outrageous claims.

Another cited weakness was an obvious lack of objectivity and impartiality on the part of the interviewer. For example, Investigator Fonolleras testified that his interview techniques had been based on the premise that the “interview process is in essence the beginning of the healing process” and that it was his “professional and ethical responsibility to alleviate whatever anxiety has arisen as a result of what happened to them.”

On January 6, 1993—after five years in prison—with 18 months in solitary confinement for her own safety—the Appeals Court of New Jersey reversed the conviction of Kelly Michaels without prejudice. In effect, the New Jersey Courts ordered that if the state decided to retry the Michaels case, a pretrial “taint hearing” would be necessary to determine whether the statements and testimony of the alleged victims were contaminated.

New Jersey’s Appeal On January 31, 1994, the State of New Jersey appealed to the State Supreme Court, seeking review of the Appellate Division’s adverse rulings. The Appellate Court’s ruling was upheld on June 23, 1994. Essex County chose to drop the indictments and Kelly Michaels was freed. On February 27, 1995, she filed a tort claim against several defendants and her claim was denied. This effort ended with the U.S. Supreme Court rejecting her claim on January 16, 2001.

Taint Hearings The New Jersey Supreme Court held in the Michaels decision that (1) interroga(800) 592-1399

tions of alleged child sex abuse victims were improper and (2) given substantial likelihood the evidence derived from them was unreliable, a pretrial hearing was required.

At that “taint hearing” the state would be required to prove by clear and convincing evidence that statements and testimony retained sufficient degree of reliability to warrant admission at trial. (State v. Michaels, 1994, p. 1372).

The court laid out the following parameters for a taint hearing: 1. When a defendant has made a showing of “some evidence” that the alleged victim’s statements were a product of suggestive or coercive interview techniques, a taint hearing will be held.

2. At the taint hearing, the burden of proof will be on the state to prove the reliability of the proffered statements by clear and convincing evidence.

3. Such proof may include the testimony of experts which many be countered by defense expert testimony. Such testimony may not extend to the ultimate issue––the credibility of the child.

4. If under the totality of the circumstances the statements do not retain a sufficient degree of reliability, they will not be admissible at trial.

5. If under the totality of the circumstances the statements retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques, then the statements may be introduced at trial. The responsibility will fall to the jury to weight the statements’ probative value and credibility.

6. If the statements are introduced at trial, experts may be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed (Underwager & Wakefield, 1997).

These parameters show that the ultimate issue of credibility is not to be addressed at the taint hearing. The court was clear that the issue was one of reliability and the purpose of the taint hearing was to establish the reliability of evidence admitted at trial.

“Experts may thus be called to aid the jury by explaining the coercive or suggestive propensities of the interviewing techniques employed, but not of course, to offer opinions as to the issue of a child-witness’s credibility, which remains strictly a matter for the jury” (State v. Margaret Kelly Michaels).

Precursors to Taint Hearings The United States Supreme Court has long recognized that a pretrial inquiry may be made when certain challenges are asserted to the reliability of evidence for which the government seeks introduction at trial. The Supreme Court has acknowledged that once an identification has been ascertained by coercive or suggestive police action, such perception is unlikely to be changed or altered at a later date: “Once the witness has picked out the accused . . . he is not likely to go back on his word later” (U.S. v. Wade, 388 U.S. 218, 229, 1967).

Hawaii v. McKeller (1985) In this case, Judge Klein, the trial court judge, stated that he doubted whether the alleged incident ever happened and that the girls’ accusations more likely were the result of “layers and layers of interviews, questions, examinations, etc., which were fraught with textbook examples of poor interview techniques.”

Idaho v. Wright (1990) In this case the prosecution sought the admission of statements made by a two-anda-half-year -old child to a pediatrician. The trial court admitted the statements by finding that the doctor’s testimony of the child’s statements satisfied the requirements of the residual hearsay exception. The United States Supreme Court affirmed the state Supreme Court’s finding that the child’s statements did not fall within a traditional hearsay exception and lacked “particularized guarantees of trustworthiness.” The admission of such a statement was concluded to be in violation of Wright’s confrontation clause guarantees.

Minnesota v. Huss (1993) In this case, after the mother made allegations of sexual abuse during a custody dispute, she took her three-year-old daughter to a psychologist. The psychologist questioned the child about the alleged abuse and used a book and tape about sexual abuse.

The mother then checked out the book and the tape from the library, used it often, and encouraged her child to say that her father had abused her. After six months, the child made an allegation of abuse. The Minnesota Supreme Court held that because of the highly suggestive book and tape and inappropriate interview techniques, there was sufficient reason to question the reliability and validity of the statements. The evidence was insufficient to be sent to the jury.

Winter 2009 THE FORENSIC EXAMINER® 51

Felix v. Nevada (1993) The Nevada Supreme Court held that statements of children about alleged sexual abuse in a day care center were unreliable because of numerous interviews, the use of leading questions, allegations never being made to the child’s parents but only to a therapist, and several of the allegations being clearly false or incredible. The Court determined that the trial court had failed to adequately assess the reliability of the statements before allowing their admission.

Taint Hearings—Advantages and Disadvantages A taint hearing is intended to provide a forum to review potentially flawed interviews. Many people believe that these hearings provide a much-needed safeguard to defendants. Dugas (1995) reported that the Due Process Clause of the Fourteenth Amendment protects the defendant by ensuring he or she receives a fair trial. Dugas (1995) used the due process concept to show how the procedures used against Kelly Michaels violated her fundamental fairness rights. Another advantage to a taint hearing is that the knowledge of the possibility of a taint hearing may increase the quality of interviews by decreasing the likelihood of coercive interviews, assuming the interviews are documented by audio or video.

Some, however, worry about possible negative effects. Myers (1995, 1996, 1996), for example, fears taint hearings will be overused by defense attorneys and generate unwarranted skepticism. This would, in his opinion, weaken the state’s ability to protect children. He believes that they will create new and unnecessary avenues for appeals since the defense has ample opportunities to challenge suggestive interviews in trial.

Experts and Taint Hearings Taint hearings involve expert testimony by investigators and mental health professionals. As in all evidentiary hearings, the success or failure of the taint hearing will normally rest with the quality of the expert who offers testimony. The burden of proof and rules of evidence differ among jurisdictions. Some states follow the Daubert standard, some pursue the Frye rule, and some have their own version or mixture of the two (Kelly). In any case, the expert must be knowledgeable as to the technique used, whether it has been “subjected to peer review and publication, its known or potential error rate, and the existence and mainte52 THE FORENSIC EXAMINER® Winter 2009

nance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community” (Daubert, 1993).

The Analysis of Child Interviews The New Jersey Supreme Court found nine factors sufficient to justify a pretrial taint hearing: (a) Absence of spontaneous recall (b) Interviewer bias against the defendant because of a preconceived idea of what the child should be disclosing (c) Repeated leading questions (d) Multiple interviews (e) Incessant questioning (f ) Vilification of the defendant (g) Ongoing contact with peers and references to their statements (h) Use of threats, bribes, or cajoling (i) Failure to videotape or otherwise document the initial interview sessions.

The above factors were to be considered, if a hearing is held, in determining whether a child’s testimony is tainted and should be suppressed. Other indicators of faulty interviewing not only exist, but they can be quantified —allowing for an objective analysis.

The Schreiber Analysis One of the more recent studies on child interviewing is a 2006 paper entitled “Suggestive Interviewing in the McMartin Preschool and Kelly Michaels Daycare Abuse Cases: A Case Study.” The Schreiber analysis compared two of the most notorious cases in child sexual abuse to unrelated CPS interviews. Both were day care cases that happened during the Satanic Scare of the 1980s and both were based on forensic interviewing that generated a mass of allegations and alleged victims (Nathan, 1995).

The most costly criminal case in the history of the United States, the McMartin case, was based on the multiple interviews of 400 former students––384 of whom were diagnosed by the same Los Angeles agency (Children’s Institute International) as sexually abused. The Michaels case was based on multiple interviews of over a 28-month period. This analysis reviewed and compared a total of 54 transcripts—20 from the Michaels case, 14 from the McMartin Preschool case, and 20 from the Child Protective Service of a city in the western United States. The ages of the 14 children in the McMartin sample ranged from 4 to

9.5 years. The mean age was 6.89. A total of 36% (5) of the sample was male and 64% (9) was female. The ages of the children in the Michaels sample are unknown, although apparently all or nearly all were less than 7 years old. A total of 50% (10) of the sample was male and 35% (7) was female. The gender of the remaining three children was not clear from the interview transcripts (Schreiber, 2006).

Scores in this quantitative analysis fell into three previously researched categories: interview length, form of questions, and suggestive techniques (Schreiber, 2006; Warren, 1996; Ceci, 1993; Myers, 1996).

Interview Length The length of interview time studied in the Schreiber analysis was only an estimate becasue transcripts were used, but it is interesting to note how the McMartin interviews were more than three times as long (1 hour, 14 minutes) as the Michaels (24 minutes) and CPS (22 minutes) interviews (Schreiber, 2006). This difference can be explained by the unusual “let’s have fun and play with puppets” atmosphere in the McMartin interviews.

Form of Questions The form of questions used in the McMartin, Michaels and CPS interviews can be categorized as (1) open-ended questions, (2) yes/no questions, (3) multiplechoice questions, and (4) focused/specific questions. These four categories partially reflect the way that an interviewer has exerted control and influence during the interview by limiting the conversation to certain topics and constraining responses to questions (Schreiber, 2006). In the Schreiber study it appeared that the McMartin interviewers used a significantly higher proportion of yes/no questions and a lower proportion of focused/specific questions than the Kelly Michaels and Child Protective Services (CPS) interviewers. Other differences regarding the form of question used in each group were not statistically significant (Schreiber, 2006). While studies have shown that law enforcement and CPS personnel tend to rely heavily on yes/ no, choice, and focused/specific questions, open-ended questions are deemed more desirable because they are less likely to be suggestive than other forms of questions and are more likely to be answered accurately by children (Campbell, 1998; Underwager, 1990). www.acfei.com

Suggestive Interviewing When compared to the CPS interviews, the McMartin and Michaels interviewers were significantly more likely to use five suggestive interview techniques. These interviewers were more likely to (a) introduce suggestive information into the interview, (b) provide reinforcement (negative or positive), (c) repeat questions that have been asked and answered, (d) exert conformity pressure, and (e) invite children to pretend or speculate about supposed events.

Schreiber compared the two daycare cases and found that they introduced information identically. The McMartin interviewers were more likely to use positive reinforcement, conformity pressure, and invitation to speculate, while the Michaels interviewers used more repeated questions and more negative reinforcement. (Schreiber, 2006) It has also been suggested that a high ratio of interviewer words to child words may serve as a rough indicator of unskilled or suggestive interviewing (Sternberg, 1996). The ratio of interviewer words to child words was approximately twice as high for the McMartin (ratio = 4.60) and Michaels (ratio = 4.67) as for the CPS interviews (ratio = 2.31) (Schreiber, 2006; Hershkowitz, 1997; Lamb 1996).

Has the Climate Changed Since 1985?

The National Child Abuse and Neglect Data System (NCANDS) is a national data collection and analysis system created in response to the amended Child Abuse Prevention and Treatment Act (Public Law 93-247) and it serves as an excellent source of statistics. The number of reported child abuse incidents in the United States is now roughly approximately 3.6 million assaults per year (Pangborn 2009) and child sexual abuse is one of the greatest problems in today’s society. In 2007 CPS agencies received an estimated 3.2 million referrals, involving the alleged maltreatment of approximately 5.8 million children. NCANDS reported that 794,000 children were confirmed victims of abuse in fiscal year 2007, 7.6% (6,034) were victims of sexual abuse. All 50 states have mandatory reporting laws and over 57% of these referrals came from professionals (teachers, doctors, police, and social service). Nonetheless, approximately 38% of the initial referrals were screenedout. Of the remainder, approximately 25% of the investigations or assessments found at least one child who was a victim of abuse or neglect. (Child Maltreatment, 2007) (800) 592-1399

Remember, CPS may act as an arm of the police, but being screened out or “unfounded” by an agency does not erase the possibility of prosecution. The greater majority of child sexual abuse cases I am involved with started with a CPS investigation and more than half of them were ruled as “unfounded.” This, however, does not stop the police from making an arrest and interviewing the child again.

Conclusion As a result of faulty interviewing, Kelly Michaels was convicted and served five years in prison. Everyone who has seen the transcripts from these interviews after the conviction agrees that the children’s statements were unreliable because of suggestive and coercive interviews. The conviction was overturned.

Why Was This Not Seen Before Her Trial?

While the Kelley Michaels case was a horrible miscarriage of justice, it was not exclusive; anyone can be falsely accused of a sexual offense against a child. No falsely accused person is immune to poor interviewing techniques. In Joseph Heller’s novel “Catch 22” the catch was that “anyone who wants to get out of combat duty isn’t really crazy.” (Heller, 1999) Today, the “catch” is that anyone accused of child sexual abuse is guilty if they deny it.

Are Interviewers Improving?

The training of police and child protective investigators has improved with the decrease of overt, heavy-handed questioning and badgering that was common only a decade ago, but confirmatory bias, while less obvious today, continues. Innocent persons continue to be charged.

Do Defense Attorneys Need to Be Specialized in This Area?

Whether in a criminal or civil matter, child sexual abuse cases require a specific expertise to develop both a case theory and a defense with the goal of reaching a favorable outcome. It is this author’s opinion that child sexual abuse cases are unique in that they require a special burden of proof of the defense and the defense must be aggressive. In these cases, the accused must show: • That the alleged victim’s testimony is false.

• How the false allegations were developed.

• Why the false allegations were made.

While all interviews will have some elements of suggestiveness in them, defense attorneys must persuade the judge that the interview was so unnecessarily suggestive that the child’s statements cannot be considered reliable, while prosecutors must present evidence that the interview was not so suggestive as to make the child’s statements unreliable. To provide the best possible representation, defense teams need to incorporate specialized forensic examiners.

How Common Are Taint Hearings?

While the practice of taint hearings started in New Jersey, it has spread into federal and military courts as well as into a number of other states. Several states have considered the propriety of conducting a pretrial taint hearing. Some states have adopted and some declined the procedure and rely on preliminary hearings to afford due process. In Fishbach v. Delaware (1996), for example, the court declined to adopt the formal procedures mandated in Michaels.

In the Fishbach decision, however, the court determined that if the witness’s statement was obtained by use of impermissible interviewing techniques, the trial court must determine whether the statement is reliable after considering the totality of the circumstances.

While there is a dearth of statistical information specific to taint hearings, it appears that states with legislation supporting taint hearings are a minority. However, attorneys in all states are able to address forensic interviewing either in a taint hearing or in a preliminary hearing that concentrates on motions to exclude evidence.

Can Interview Errors Be Eliminated?

With proper videotaping (Ceci, 2000, Davies, 1995, McGough, 1995) errors such as suggestive questioning can be categorized, quantified, and therefore controlled.

Confirmatory bias, in this author’s opinion, is the source of all interviewing errors because it prompts an interviewer to become a “validator” on a mission to extract information necessary to successfully prosecute the accused. (Pangborn, 2009) In doing so the interviewer takes on the role of interrogator and ignores information that does not fit into a preconceived notion.

For example, I recently watched an interviewer who repeated the same question 11 times during an 18-minute interview, even though she got a clear “No” answer each Winter 2009 THE FORENSIC EXAMINER® 53

time. The interviewer later reported that “based on scientifically-based techniques” she had “concluded that the child was in denial because she was afraid.”

Why Do Children Make False Allegations?

There is no universal answer. However, when you combine the biological, cognitive, and social immaturity of children with suggestive, repetitive and otherwise contaminating questioning techniques, you have a constellation of factors that can damage, sometimes greatly, the ability of a child to disclose the truth. When you multiply these factors by society’s hatred for perpetrators of child sexual abuse the likelihood of a false accusation increases even more.

Investigators should be able to screen out allegations that are untrue, but the above -mentioned factors tend to encourage false allegations that misdirect investigators and eventually lead to a fraudulent conviction.

Although some professional organizations have produced guidelines for proper child interviewing (Carnes, 2000, 2001), there is neither a consensus in these guidelines nor a mechanism beyond integrity to enforce their use. Today, the legal system’s only quality assurance mechanism is the taint hearing and defense attorneys should request a taint hearing whenever they believe suggestive and coercive interviews may have destroyed the child’s ability to testify truthfully or when they believe that the child’s statements to others are unreliable because of defective interviewing.

Case Law Cited • Commonwealth v. Callahan, 1998 WL 808850 *5 (Mass.Super. 1998).

• Felix v. State. 849 P.2d 220 (Nev. 1993).

• Fishbach v. Delaware, 1996. DE. 19415 • Hawaii vs. McKellar (1985, January 15).

Circuit court of the first circuit, State of Hawaii. Criminal No. 85-0553.

• Idaho vs. Wright (110 S. Ct., 3139, 1990).

• Jackson v. Denno, 378 U.S. 368 (1964) • Manson v. Brathwrite, 432 U.S. 98, 114 (1977).

• Minnesota v. Huss. No. C4-92-282.

(Sup. Ct. Oct 1, 1993).

• New Jersey v. Michaels (1994, June 23). 642 A.2d 1372 (N.J. 1994).

• Pennsylvania vs. Delbridge, No. 150 MAP 20012 PA Sup. Ct. 2003 Filed September 25, 2003. 2003. LEXIS 1754 54 THE FORENSIC EXAMINER® Winter 2009

• United States v. Wade, 388 U.S. 218, 230, 87 S. Ct., 1926, 1932, 18 L.Ed.2d 1149, 1158 (1967).

• State v. Margaret Kelly Michaels (264 N.J.Super. at 629, 625 A.2d 489. 1993).

• Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 [1978].

• Washington vs. Doggett. Court of Appeals Division III, State of Washington, 15014-3-III, 12/09/97.

References Besharov, D.J. (1994). The Future of Children.

Sexual Abuse of Children, 4(2 ).

Campbell, T.W. (1998). Smoke and Mirrors: The devastating effect of false sexual abuse claims. NY: Perseus.

Carnes, C.N. (2000). Forensic evaluation of children when sexual abuse is suspected,(2nd ed.). Huntsville, AL: National Children’s Advocacy Center.

Carnes, C..N., Nelson-Gardell, D., Wilson, C., & Orgassa, U.C. (2001). Extended forensic evaluation when sexual abuse is suspected: A multisite field study.

Child Maltreatment, 6, 230-242.

Ceci, Bruck, et al., New Jersey v. Michaels (1995) Amicus brief presented by Committee of Concerned Social Scientists.

Ceci, S.J., Bruck, M. (1993). Suggestibility of the child witness: A historical review and synthesis. Psychological Bulletin, 113, 403–439.

Ceci, S.J. & Bruck, M. (Spring 2000). Why judges must insist on electronically-preserved recordings of child interviews. Court Review, 37, 10-12.

Davies, G.M., Wilson, C., Mitchell, R., & Milsom, J. (1995). Videotaping children’s evidence: An evaluation. London: Home Office.

Dugas, C. (1995). State of NJ v Michaels: The due process implications raised in interviewing child witnesses. Louisiana Law Review, 1205-1234.

Heller, Joseph (1999). Catch-22: A Novel. New York: Simon and Schuster. p. 52.

Hershkowitz, I., Lamb, M.E., Sternberg, K.J., & Esplin, P. W. (1997). The relationships among interviewer utterance type, CBCA scores, and the richness of children’s responses. Legal and Criminological Psychology, 2, 169–176.

Lamb, M. E. (1994). The investigation of child sexual abuse: An interdisciplinary consensus statement.

Child Abuse & Neglect, 18(12), 1021-1028.

Lamb, M.E., Herschkowitz, I., Sternberg, K.J., Esplin, P.W., Hovav, M., Manor, T., et al. (1996). Effects of investigative utterance types on Israeli children’s responses. International Journal of Behavioral Development, 19, 627–637.

McGough, L. S. (1995). For the record: Videotaping investigative interviews. Psychology, Public Policy, and Law, 1(2), 370-386.

Myers. J. E. B. (1996). Taint hearings to attack investigative interviews: A further assault on children’s credibility. Child Maltreatment, 1(3), 213-222.

Myers, J. E. B. (1995). Taint hearings for child witnesses? A step in the wrong direction. Baylor Law Review, 46, 873-945.

Myers, J. E. B., Saywitz, K. J., & Goodman, G. S. (1996). Psychological research on children as witnesses: Practical implications for forensic interviews and courtroom testimony. Pacific Law Journal, 28, 3–9112.

Nathan, D., & Snedeker, M. (1995). Satan’s silence: Ritual abuse and the making of a modern American witch hunt. New York: Basic Books.

Pangborn, K. (2009).Identifying and Correcting Problems with Forensic Interviews of Alleged Child Sexual Abuse Victims: A Holistic Environmental Approach. IPT Journal, 18.

Schreiber, Nadja, et al (2006). Suggestive interviewing in the McMartin pre-school and Kelly Michaels day-care abuse cases: a case study. Social Influence. 1(1) 16-47.

Sternberg, K.J., Lamb, M.E., Hershkowitz, I., Esplin, P.W., Redlich, A., & Sunshine, N. (1996).The relation between investigative utterance types and the informativeness of child witnesses. Journal of Applied Developmental Psychology, 17, 439–451.

Underwager, R., & Wakefield, H. (1990). The real world of child interrogations. Springfield, IL: Charles C. Thomas.

Underwager, R., & Wakefield, H. (1997) The Taint Hearing, presented at the 13th Annual Symposium in Forensic Psychology, Vancouver, B.C. (April 17, 1997) U.S. Department of Health and Human Services, Administration on Children, Youth and Families. Child Maltreatment 2007 (Washington, DC: U.S. Government Printing Office, 2009). found at: http://www.acf. hhs.gov/programs/cb/pubs/cm07/cm07.pdf Warren, A. R., & McGough, L. S. (1996). Research on children’s suggestibility: Implications for the investigative interview. Criminal Justice & Behaviour, 23, 269–303.

Other suggested readings available upon request. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 79 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHOR

A Life member of ACFEI and a Diplomate of the ABFE, Mr. Blackstone is recognized as an expert in the field of sexual offense investigation, proper forensic interviewing techniques, pre-conviction testing of alleged offenders, and post-conviction management of sex offenders. A certified forensic consultant, Mr. Blackstone is licensed in several states as a polygraph examiner and has testified as an expert witness in federal and state courts regarding the proper use of polygraphs in civil, clinical, and criminal testing settings—with a focus on child molestation and other sexual offenses. With over 30 years of experience, involvement in over 20,000 examinations and over one hundred court appearances as an expert witness, Mr. Blackstone’s expertise is well respected. www.acfei.com

FALSELY ACCUSED

By Frank S. Perri, JD, MBA, CPA

FALSELY ACCUSED: THE WRONGFUL CONVICTION OF ALAN BEAMAN Thirteen years after being sentenced to 50 years in prison, Alan Beaman is a free man.

The Illinois Supreme Court overturned his murder conviction because the prosecution failed to turn over evidence, proving there was a viable alternative suspect who had ample opportunity to kill Jennifer Lockmiller, an Illinois State University student found dead in her apartment in Normal, Illinois, on August 28, 1993. A clock radio electrical cord was wrapped around her neck, and she had been stabbed in the chest with scissors. Her shirt and bra were pushed up around her neck, and her shorts and underwear were pulled down.

A box fan was lying across her face. Seven fingerprints were recovered from the clock radio. Two of the fingerprints were left by Alan Beaman, four belonged to Jennifer’s boyfriend Michael Swaine, and one was unidentifiable. Based on the crime scene and Jennifer’s class schedule, the prosecution argued that the time of death was shortly after noon on Wednesday, August 25.

However, at the time of the homicide, Beaman was in Rockford, Illinois, which is over 120 miles north of Normal.

According to the prosecution, Beaman drove to Normal after leavning a Rockford bank at 10:11 a.m., arriving around noon.

When he walked into Jennifer’s apartment, he saw Swaine’s property and at that point he “snapped,” murdering her. Beaman left the apartment by 12:15 p.m. and drove back to Rockford, arriving around 2:10 p.m. There was no other forensic evidence such as DNA or contradictory or inconsistent statements from Beaman that revealed deception of his whereabouts, or occurrence witnesses who placed him at her apartment at the time of the murder.

Basically, the prosecution argued that he killed her because he was jealous of these other men and that had the opportunity to kill as he could drive to Normal and commit the murder.

Before the jury trial, the prosecutor and defense counsel discussed Jennifer’s rela(800) 592-1399

tionship with a person identified as John Doe, since Beaman observed both the victim and Doe at the victim’s apartment.

The prosecutor informed the court that Doe had “nothing to do with this case.”

The prosecutor informed the court that they possessed no evidence of a third-party suspect. As for Swaine’s involvement, the prosecution presented evidence that Swaine was working at his former high school’s bookstore in Elmhurst, Illinois, on August 25. Jennifer’s former long-term boyfriend, Stacey Gates, testified that he was employed as a teacher in Peoria, Illinois, and he worked that day.

Retired Normal Police Lieutenant Tony Daniels testified about the undisclosed Doe evidence. Doe and Jennifer had previously been involved in a romantic relationship.

He lived in Bloomington, approximately 1.5 miles from Jennifer’s apartment. Daniels testified that it would take Doe four to six minutes to drive to Jennifer’s apartment and back. Doe told police officers that he and Jennifer were about to renew their relationship before her death. Jennifer and Michael Swaine came to his apartment a few days before the murder. Doe stated that he had supplied Jennifer with marijuana and other drugs—and that she owed him money.

Daniels interviewed Doe twice in early September 1993 and found him to be “somewhat evasive” and “very nervous.” In his first interview, Doe stated that he went out of town on August 24, the day before the murder. In the second interview a few days later, Doe informed Daniels that he did not leave Bloomington until 4 p.m. on August 25 and that he was in his apartment until 4 p.m. that day. Doe’s girlfriend stated that she was with him from just after 1 p.m. until 4 p.m. that day. Doe did not provide any verification of his location before his girlfriend arrived around 1 p.m.

Daniels explained that he asked Doe to take a polygraph examination, but the examiner was unable to begin the test because Doe failed to follow his directions.

The polygraph examiner testified that Doe’s failure to follow the instructions could have been an intentional avoidance tactic. He further testified that Doe was being examined as a suspect in the murder. Daniels asked Doe to try again and Doe initially agreed, but the polygraph examination never occurred due to Doe’s lack of cooperation.

Daniels further testified that Doe was charged with domestic battery and possession of marijuana with intent to deliver prior to the petitioner’s trial. A witness to the domestic battery indicated that Doe had his girlfriend on the floor and was elbowing her in the chest. Doe’s girlfriend stated that Doe had previously abused her on numerous occasions. Additionally, she stated that Doe was using steroids, which caused him to act erratically. Daniels testified that he considered Doe a viable suspect in the murder at the time of Beaman’s trial, and he believed that Doe remained a viable suspect.

In summary, the undisclosed evidence to Beaman consists of four points: (1) John Doe failed to complete the polygraph examination; (2) was charged with domestic battery and possession of marijuana with intent to deliver prior to the petitioner’s trial; (3) had physically abused his girlfriend on numerous prior occasions; and (4) his use of steroids caused him to act erratically.

Beaman’s attorney testified that he did not receive this evidence. The prosecution does not dispute that it knew of the evidence and failed to disclose it; in fact, the prosecution refers to the evidence as “withheld.”

The Illinois Supreme Court concluded that the undisclosed evidence is clearly favorable to Beaman, establishing Doe as an alternative suspect. First, the circumstances of the polygraph examination indicate that Doe intentionally avoided the test. He did not comply with the polygraph examiner’s instructions during the first attempt and failed to cooperate in scheduling a second attempt. Furthermore, the polygraph examiner testified that the police had identified Winter 2009 THE FORENSIC EXAMINER® 55

Doe as a suspect in the murder. Although the prosecution argued that “the tenor of the police questioning supports the inference that police viewed Doe as a suspect,” the prosecution did not contend that the disclosed statements specifically identified him as a suspect. The undisclosed polygraph evidence would have supported a claim by Beaman that Doe was a viable suspect not only because the circumstances may be viewed as evasive, but also because the polygraph examiner indicated that Doe was specifically identified as a suspect.

The evidence that Doe was charged with domestic battery and had physically abused his girlfriend on many prior occasions also could have been used by Beaman to establish Doe as a viable suspect. That evidence is relevant regarding Doe’s likelihood to commit a violent act against his girlfriend. The evidence that Doe had physically abused his girlfriend on numerous occasions, together with the evidence that he was in the process of renewing his romantic relationship with Jennifer prior to her death, provided additional support of Doe as a viable suspect.

The undisclosed evidence of Doe’s steroid abuse may have explained his violent outbursts toward his girlfriend and supported the inference of his tendency to act violently toward others. Finally, the undisclosed evidence that Doe had been charged with possession of marijuana with intent to deliver could have been used by Beaman as part of Doe’s motive to commit the murder. That evidence tends to establish Doe as a drug dealer and, with evidence of Jennifer owing Doe money for drugs, it could have been offered to support a motive to commit the murder.

The court concluded that the prosecution’s evidence against Beaman was weak and that all they did was present evidence of motive, evidence of opportunity that was strongly disputed by Beaman, inferences from Beaman’s statements to police officers that he knew the date of the murder, and the fingerprints on the clock radio which were explained by Beaman’s relationship with Jennifer and made less important by the prosecution’s concession that it would not have been necessary to touch the clock radio in committing the murder.

Furthermore, Tony Daniels testified that Doe was “somewhat evasive” and “very nervous” during his interviews. The polygraph examiner testified that Doe was viewed by police as a suspect. Doe initially gave a false alibi, stating he left town the day before the 56 THE FORENSIC EXAMINER® Winter 2009

murder. That false statement could be used as proof of consciousness of guilt.

The Supreme Court of the United States has ruled that the prosecution violates an accused’s constitutional right to due process of law by failing to disclose evidence favorable to the accused and material to guilt or punishment. In this case, the evidence of Doe as an alternative suspect was crucial for Beaman because it countered the prosecution’s circumstantial evidence against him and countered the prosecution’s argument that all other potential suspects had established that they could not have committed the murder because they were elsewhere at the time. The Illinois Supreme Court does not have confidence in the verdict finding Beaman guilty of this crime given the tenuous nature of the circumstantial evidence against him, along with the nondisclosure of critical evidence that would have countered the state’s argument that all other potential suspects had been eliminated from consideration.

Beaman may be eligible for about $170,000 of compensation for wrongful accusation. Unfortunately, one of the bigger questions raised more often than it should be is why, despite no evidence of guilt and clear evidence of innocence, do individuals such as Beaman face such charges and are convicted? As Northwestern University’s Center on Wrongful Convictions indicates, the prosecutor holds a uniquely powerful position in the criminal justice process that at times rivals that of the judge. Supreme Court Justice Robert H. Jackson stated, “The prosecutor has more power over life, liberty, and reputation than any other person in America.” When information surfaced that supported Alan’s position that he was in Rockford, the police were directed to refute it instead of also seeking alternative suspects. Keep in mind that there is nothing improper in trying to refute a suspect’s

statement that he or she was elsewhere if there is other evidence to support the prosecution’s position such as forensic evidence, contradictory statements given by a suspect about their whereabouts, occurrence witnesses, etc. However, that simply was not the case here.

Faced with a high profile case in a college town, the elected prosecutor was probably under pressure to “solve” the crime instead of leaving it “unsolved” as is the case, unfortunately, with thousands of homicides throughout the country. At the time of trial, the prosecutor hid evidence that supported Alan’s innocence and misled the jury about the strength of the prosecution’s case. Thus, the jurors convicted Alan Beaman on incomplete information and probably felt compelled to hold someone responsible for the crime. Societal and individual perceptions of underhanded prosecutorial behavior can be difficult to reverse, casting doubt on the character of all those in law enforcement and prosecution offices who work hard to uphold the Constitution. Fortunately, Beaman did not have to face the prospects of the death penalty and the prosecution has dismissed the charges against him.

References The People of the State of Illinois, Appellee, v. Alan Beaman, Appellant. Retrieved September 9, 2009 from http://www.law.northwestern.edu/wrongfulconvictions/exonerations/documents/BeamanOpinion.pdf Terzano, J., Mcgee, J., & Holt, A. The justice project, Retrieved September 9, 2009 from http://www. thejusticeproject.org/wp-content/uploads/pr-improving-prosecutorial-accountability1.pdf n

ABOUT THE AUTHOR

Frank S. Perri, JD, MBA, CPA, has worked as a prosecutor and currently as a criminal defense trial attorney. Areas of concentration include white-collar crimes and homicide. Mr. Perri received his Juris Doctor from the University of Illinois, his Master in Business Administration from Case Western Reserve University and his Bachelor’s of Arts from Union College. In addition, Mr. Perri is a licensed Certified Public Accountant. Scholarship interests include fraud detection homicide.You may contact Mr. Perri via e-mail at frankperri@hotmail.com.

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Winter 2009 THE FORENSIC EXAMINER速 57

By Heidi Bale, RN, CFN

CE ARTICLE: 1 CE CREDIT

By Dr. Larry Crumbley, CPA, CFF, Cr.FA, CFFA, FCPA

they would like to have the ESI produced.

Discovery may not be made of these privileged matters:

• Attorney–client.

• Husband–wife.

• Physician–patient.

• Government secrets.

• Ordained clergyman–parishioner.

• Attorney work product.

The federal expert witness disclosure requirements are found in the liberal FRCP 26 (a)(2)(B):

DO EXPERT WITNESSESS HAVE TO KEEP DRAFT DOCUMENTS AND RECORDS OF COMMUNICATION?

I

n federal courts and many state courts, an expert witness must prepare a written report. Due to the practice of electronically preparing draft reports, these drafts are often not recorded on paper. Not retaining draft copies is quite common among litigation experts and consultants.

Is an expert required to save all drafts?

Saving a new version of every keystroke is extremely burdensome. However, each time an expert makes a revision to an original draft, there is a “write over” of the initial draft document. Usually, if a consultant’s report is provided to the expert, these draft reports will be requested by opposing counsel. Since draft reports provide a glimpse into an expert’s understanding of a dispute, opposing counsel use these draft reports in order to cross-examine the expert with respect to the input provided by counsel and the evolution of the final opinion.

There are Rules of Civil Procedure which apply to the discoverability of any attorney work products provided to experts and draft 58 THE FORENSIC EXAMINER® Winter 2009

reports of experts. These rules apply to both the majority and minority positions but are inconsistently enforced. Due to a split in the federal courts, there are no clear-cut answers, so the result is lack of agreement about this major problem.

Rules of Civil Procedures During the discovery process, Federal Rules of Civil Procedure (FRCP) 26 (b)(1) allow parties to a dispute to obtain discovery regarding any unpriveleged matter that is relevant to the subject involved in the pending action. Effective December 1, 2006, electronically stored information (ESI) was included with this, and the requesting party may specify the format in which

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony..., be accompanied by a written report prepared and signed by the witness.

The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at a trial or by deposition within the preceding four years.

There is a work product protection doctrine provided in FRCP 26 (b)(3): Subject to the provisions of subdivision (b) (4)..., a party may obtain discovery of documents...prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s...consultant,...) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental www.acfei.com

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

After studying this article, participants should be better able to do the following: 1. Understand different policies with respect to consultants and expert witnesses.

2. Identify tips for obtaining the most protection under the work product privilege.

3. Understand the varous types of communication priveleges.

KEY WORDS: expert witness, draft reports, Rules of Civil Procedures, work product privilege, Trigon Insurance Company TARGET AUDIENCE: Expert witnesses, litigation consultants, forensic accountants PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose.

PREREQUISITES: None

impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Attorneys try to use this work product privilege to avoid sharing the work of consultants (non-testifying) and expert witnesses (testifying). In general, to obtain protection under this privilege, a non-testifying consultant should follow these tips:

• An attorney should directly retain the consultant.

• The agreement should be between the attorney and expert.

• An expert should obtain facts through, or at the direction of, the attorney.

• An investigation should be done at the direction of the attorney.

• The attorney should be present when meeting with a client.

There is a split in the federal courts about the discoverability of an attorney’s work product provided to an expert and draft expert reports. A majority holds that any materials provided by an attorney to an expert (including draft reports) are discoverable. This bright-line approach is outlined by the Sixth Circuit.

The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the “overwhelming majority” of (800) 592-1399

courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.

A minority of courts have held that opinion work product (as opposed to fact work product) is not discoverable, even if the communication is given to a testifying expert. A minority of courts believe that an attorney’s opinion or core work product (e.g., mental impressions, opinions, legal opinions, and conclusions) as stated in FRCP 26(b)(3) are not discoverable unless there is substantial need. Hickman v. Taylor stated in 1947 that the work product doctrine generally protects parties from disclosing documents prepared by or for an attorney in anticipation of a court battle. Further, a Michigan District court held that an attorney’s work product is not discoverable merely because the material is shared with a testifying expert.

Trigon Insurance Company In a case of first impression, Trigon Insurance Company brought action against the U.S. government to recover Federal income taxes and interest assessed and collected over a seven-year period. Under FRCP 26(a)), the government retained experts to provide opinions on the taxation issues.

The testifying experts sent and received some e-mails from the government’s consultant, Analysis Group/ Economic (AGE), including several drafts of the experts’ reports. When Trigon requested production of all documents reviewed by the testifying experts under Rule 26(a)(2), the government found that many of the e-mails and draft reports were destroyed.

Trigon filed a motion to force the U.S. to hire an independent computer forensics expert to recover these deleted documents under a claim of spoliation. Spoliation refers to the act of destroying or suppressing evidence. Remedies for spoliation may be a harsh dismissal, adverse inference, or monetary damages against the party destroying the evidence. In general, a showing of bad faith is necessary before an adverse inference for spoliation is appropriate. Sanctions can be imposed on third parties. This court directed personnel from Deloitte & Touche to search the network files and hard disks of the consultants and experts for the U.S. to recover the exchanged draft reports. Trigon was allowed to recover the $179,725 cost of the computer forensics work from the government.

Presiding Judge Robert Payne said this about the duty to preserve draft copies versus the firm’s record retention policies: AGE holds itself out to have expertise in litigation consulting. AGE is the agent of the United States in arranging for the expert testimony to be given in their action on behalf of the United States. As such, AGE is charged with knowing that materials reviewed by a testifying expert must be preserved and eventually produced to the opposing party. The document retention policies of AGE do not trump the Federal Rules of Civil Procedure or requests by opposing counsel, even if the requests primarily are informal. Moreover, AGE’s execution of a document retention policy that is at odds with the rules governing the conduct of litigation does not protect the United States from a finding of intentional destruction.

In this case, documents and communications were willfully and intentionally destroyed by the United States’ non-testifying experts. The documents destroyed should have been produced and would have been admissible at trial for cross-examination and Daubert purposes.

The judge did not stop AGE from further communicating with the experts or keep the experts from participating in the trial.

However, he did say that it was appropriate “to draw adverse inferences respecting the substantive testimony and credibility of the experts.” The judge’s critical position against these experts probably was caused by the ghost-writing aspects of the report.

Judge Payne felt that the expert report was ghost-written by a combination of the attorneys and the non-testifying consultants.

The expert was “an alter ego of the attorney who will be trying the case.”

The Trigon case does not hold that an expert must retain and provide all drafts of his or her reports. In the words of the judge in a footnote: There is no need to decide in this case whether a testifying expert is required to retain, and a party is required to disclose, the drafts prepared solely by that expert while formulating the proper language in which to articulate that experts’ own, ultimate opinion arrived at by the expert’s own work or those working at the expert’s personal discretion. There are cogent reasons which militate against such a requirement, but the issue is not presented here because the testifying experts worked, not alone, but Winter 2009 THE FORENSIC EXAMINER® 59

cooperatively with other experts and under the auspices of AGE. In summary, the Trigon decision did not require an expert to disclose those draft documents prepared internally while formulating conclusions. However, those drafts shared with attorneys or others outside the expert’s business were discoverable.

A Ninth Circuit judge in San Francisco has adopted Case Management Orders whereby parties to a dispute may agree in writing that drafts of expert reports need not be retained.

Judge William Alsup suggests: Counsel shall preserve all drafts of expert reports and evidence of communications with experts (or with any intermediaries between counsel and the expert) on the subject of their actual or potential testimony and shall instruct their experts and any intermediaries to do likewise. All such materials shall be produced for inspection and copying upon expert designation.

Some Other Decisions The Sixth Circuit in a ruling of first impression held in 2006 that all information shared with a testifying expert witness is discoverable and admissible in evidence. They adopted the bright-line principle requiring disclosure of all documents given to an expert witness, including attorney opinion work products.

The Fourth Circuit agrees that work product shared with testifying experts is discoverable to test the weight of the expert’s testimony. Counsel can not “properly and fully cross-examine” an expert without access to this material. An adequate crossexamination of an expert witness requires “that the adverse party be aware of the facts underlying the expert’s opinions, including whether the expert made an independent evaluation of the facts, or whether he instead adopted the opinions of the lawyers that retained him.”

The Seventh Circuit requires production of an expert’s notes even if he or she did not rely on them. The Sixth Circuit upheld the exclusion of an expert’s testimony for failure to disclose conversations with a deceased third party that were considered in forming the expert’s opinion. The Tenth Circuit upheld the lower court’s exclusion of an expert’s documents and testimony for failure to produce expert’s complete report by the discovery deadline.

The minority position was more recently taken in a Tennessee District Court dispute.

60 THE FORENSIC EXAMINER® Winter 2009

In University of Pittsburgh v. Townsend, the defendant asked the court to exclude two expert witnesses under the evidence spoliation principle. The experts did not retain previous drafts of their reports or emails between the employing counsel and experts. The experts would e-mail drafts to counsel and counsel would e-mail the drafts back with revisions. Once a subpoena was issued regarding their depositions, no documents were destroyed. Counsel suggested that e-mails between them could be destroyed, however, before the subpoena.

The judge said this about the obligations of an expert to retain documents: Contrary to the defendants’ assertion, the Court does not read Rule 26(a)(2) to impose an affirmative duty upon an expert to preserve all documents, particularly draft reports, and the defendants do not cite any support for such a sweeping obligation. Nor does Rule 26(a)(2) require that draft reports be disclosed as part of any expert disclosure.

The defendants made an early request for production of documents in the discovery stage. The judge stated: The Court finds this request, served well over a year prior to the date that any expert disclosures were required to be made, to be an unreasonable request, essentially imposing a continuing obligation on a party to disclose any document from an expert— whether it be a letter or a draft report—as it is received throughout the consultation process. Such a requirement would essentially nullify the expert disclosure deadline established by the Court.

This judge was careful to state that all drafts or documents must be retained once the subpoenas were submitted. “Only at that point were the experts under a duty to retain any drafts and produce them at their depositions.”

In another decision, the Seventh Circuit reversed the lower court’s exclusion of an expert’s testimony for the failure to disclose interview notes because lesser sanctions were more appropriate.

The judge did not impose sanctions on counsel for suggesting to the experts to destroy any e-mails because…the Court does not find that this action was done with any fraudulent intent. … The Court finds that the defendants have not been prejudiced by the destruction of these communications, as the defendants have been able to fully cross-examine the witnesses, both during

depositions and at the Daubert hearing, on the substance of these communications and particularly, counsel’s input into their respective reports.

American Bar Association Resolution In 2006, the ABA’s House of Delegates voted 207-137 to recommend an amendment to FRCP 26(a)(2) for draft reports and communications between experts and attorneys. The privilege was outlined as follows: RESOLVED, that the American Bar Association recommends that applicable federal, state and territorial rules and statutes governing civil procedure be amended or adopted to protect from discovery draft expert reports and communications between an attorney and a testifying expert relating to an expert’s report, as follows:

• (i) an expert’s draft reports should not be required to be produced to an opposing party; • (ii) communications, including notes reflecting communications, between an expert and the attorney who has retained the expert should not be discoverable except on a showing of exceptional circumstances; • (iii) nothing in the preceding paragraph should preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his or her opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches or into the validity of the expert’s opinions.

FURTHER RESOLVED, that the American Bar Association recommends that, until federal, state, and territorial rule and statutory amendments are adopted, counsel should enter voluntary stipulations protecting from discovery, draft expert reports and communications between attorney and expert relating to an expert’s report.

D. Paul Regan, President of Hemming Morse, Inc., in San Francisco adds the following to their standard engagement letter: It is not our practice to retain superseded work papers, e-mails or data files that have been updated or superseded, unless shared www.acfei.com

with you or a third party working with you.

However, we will retain copies of e-mail, analyses, draft reports or other materials provided by you or any third party, or provided by us to you or any third party.

If you wish us to follow a retention practice that differs from those described in the above paragraph, please indicate your specific request(s) in writing when returning a copy of this engagement letter. We reserve the right to decline the engagement depending upon the nature of your request(s).

At the close of this engagement, we will require your instruction for the disposition of documents that we have accumulated.

Conclusion Electronic preservation rules for draft expert reports, e-mails, and other communications are inconsistent around the country and vary by jurisdiction and judge. Until the Supreme Court settles this issue or the Federal Rules are changed, expert retention policies will be a contentious discovery issue.

The ABA suggests that attorneys should instruct their experts in writing to preserve draft documents and communications.

Once an expert or consulting expert has printed a preliminary draft and sent it to counsel for review, the expert should preserve that version and create a new document for any revisions. The same practice should be followed for each subsequent draft. Counsel also should save each draft in both electronic and hard-copy formats.

A failure to preserve drafts and e-mails may result in sanctions, such as exclusion of the expert’s report and testimony, as well as adverse inferences.

Some final suggestions for experts in all fields include:

1. Unless both sides can agree in writing that draft documents will not be requested, expert witnesses are advised to retain all draft documents.

2. Experts are well advised to limit written communications with attorneys, including e-mails.

3. When drafting written communications, experts should consider how such communications will appear to opposing counsel.

4. Counsel should avoid giving opinion work product to the testifying expert, as these opinion work products are discoverable..

(800) 592-1399

5. Avoid ghost-written reports.

6. Maintain a clear delineation between the functional roles of consultants and those experts who will be called upon to testify.

References FRCP 34(a) and (b). ESI include e-mail, e-mail attachments, instant messages, word processing files, spreadsheets, database files, internet files, and so forth.

Zeph Telpner and Michael Mostek, Expert Witnessing in Forensic Accounting, Boca Raton, FL: CRC Press, pp. 209-237.

Fed. Rul. Civ. Proc. 26 Advisory Committee Notes; In re-Pioneer Hi-Bred International, Inc., 238 F. 3d 1370 (Fed. Cir. 2001). See footnote 12 in M.W. Tindall and S.D. Fried, “Protecting Attorney Work Product in Communications with Testifying and Consulting Experts,” Environmental Litigation Committee Newsletter, Summer/ Fall 2006, for a list of decisions.

Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, 460 F. 3d 697 (CA-6, 2006). 329 U.S. 510 (1947).

Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 292 (W.D. Mich. 1995). See also Toledo Edison Co. v. GA Techs., Inc., 847 F.2d 335 (CA-6, 1988).

Trigon Insurance Co. v. U.S., 204 F.R.D. 277 (E.D. Va. 2001).

See for example, Cole v. Keller Industries, 132 F.3d 1044 (CA-4,1998); Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (CA-4,1995).

One Beacon Ins. Co. v. Broad Dev. Group, Inc., 147 Fed. App. 535 (CA-6, 2005).

D. Paul Regan, “Witnesses: Do They Have to Keep Draft Reports? Look Smart, http://findarticles.com/p/ articles/mi_m0ICC/is_9_72/ai_n6152997/print Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697 (CA-6, 2006).

Elm Grove Coal Co. v. Director, Office of Workers’ Compensation Program, U.S. Dept. of Labor, 480 F.3d 278 (CA-4, 2007).

Fidelity National Title Ins. Co. of N.Y. v. Intercompany Nat’l Title Ins. Co., 412 F.3d 745 (CA-7, 2005).

Smith v. Botsford General Hospital, 419 F.3d 516 (CA-6, 2005).

Kern River Gas Transmission v. 6.17 Acres of Land, 156 Fed. App. 102 (CA-10, 2005).

WL 1002317 (E.D. Tenn., 2007).

Fidelity National Title Ins. Co. of N.Y. v. Intercountry Nat’l Title Ins. Co., 412 F.3d 751 (CA-7, 2005).

Resolution of the ABA House of Delegates, adopted August 7-8, 2006.

D. Paul Regan, “Witnesses: Do They Have to Keep Draft Reports? Look Smart, http://findarticles.com/p/ articles/mi_m0ICC/is_9_72/ai_n6152997/print.

J. T. Pinnell, “Does Your Litigation Expert ‘WriteOver?’” E-Discovery Bytes, http://ediscovery.quarles. com/2008/01/articles/practice-tips/does-you...

M. W. Tindall and S. D. Fried, “Protecting Attorney Work Product in Communications With Testifying and Consulting Experts,” Environmental Litigation Committee Newsletter,” Summer/Fall 2006. n Earn CE Credit To earn CE credit, complete the exam for this article on page 80 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHOR

Dr. Larry Crumbley, CPA, CFF, Cr.FA, CFFA, FCPA, is a KPMG Endowed Professor at Louisiana State University. He is author of more than 350 articles and 55 books, including CCH’s Forensic and Investigative Accounting textbook. He is the author of 12 educational novels, some with the main character a forensic accountant. His latest novel, Trap Doors and Trojan Horses: An Auditing Action Adventure, is published by Carolina Academic Press.

Winter 2009 THE FORENSIC EXAMINER® 61

INTERVIEW

DR. LARRY CRUMBLEY, FORENSIC AUTHOR

s Dr. Larry Crumbley

Tell me about your experiences as a forensic accountant.

As you know, I’m a professor. In the late 1980s I wrote an educational novel called The Ultimate Rip-Off: A Taxing Tale, published by Thomas Horton & Daughters. It’s now in its fourth edition and has been used by a number of tax professors at universities and colleges. Anyway, I decided to write more novels, but I needed an exciting accountant as the main character. The term “forensic accounting” was beginning to appear in the literature, so I started using Lenny Cramer, a forensic accountant and professor, as my exciting character in my novels. I have published a total of 12 novels, some with the pen name Iris Weil Collett.

Why did you use a pen name?

Interesting story. After I had written my first novel while at Texas A&M, I sent a draft copy to LSU for someone to review. My boss heard about the novel, called me into his office, and told me not to write a novel. He said that if I decided to write a novel, I should not write a single word on campus. My middle daughter, Dana, and I sat down and came up with the pen name. You need to say Iris Weil Collett.

Think taxation. Of course, the next year Texas A&M was put on some kinds of sports probation with some negative press. My novel release received a bunch of favorable press in the Wall Street Journal, Washington Post, Business Week, and more.

Any other experiences?

Well, my Forensic and Investigative Accounting textbook is in its third edition. Likewise, although I am not aggressive, I do work on a few forensic accounting cases each year, and I teach a two-day forensic accounting course in the U.S. and internationally—such as Malaysia, Vietnam, and Guam. I like to teach.

Why is forensic accounting so important and how does it fit into the big picture of business and accounting?

Gordon Brown said it best when he was Chancellor of the Exchequer in 2006: “What the use of fingerprints was to the nineteenth century and DNA analysis was to the twentieth, forensic

62 THE FORENSIC EXAMINER® Winter 2009

accounting will be to the twenty-first century.”

Few people realize how important forensic accountants are after a fraud is discovered. Take the Bernie Madoff ’s ponzi fraud, ripping off $50 to $64 billion. That’s billions, not millions.

The cost to society is even worse after the fraud is discovered because accountants have to follow the money trail and put the books back in order. For example, Fannie Mae got into trouble cooking the books even before they caused the real estate crisis. They engaged in “wrong-way accounting.” They got caught pushing revenue into the future. Their Board of Directors hired forensic accountants who cleared the new management of knowingly participating in the abusive earnings management. The report took 17 months––616 pages plus 2,000 plus pages of supporting documents at a cost of $60 million to $70 million. The fraud was estimated to be $11 billion. Former N.H. Senator Warren Rudman used The Huron Consulting Group.

We heard that you have created a new Forensic & Investigative Accounting section within the American Accounting Association (AAA). What was the impetus for this new section?

Through some of my research I found there was a disconnect between the academic and professional perceptions of forensic accounting.

Professors seem to think that forensic accounting is fraud detection, whereas practitioners understand that fraud is only a small part of forensic accounting. James Edwards, publisher of the Journal of Forensic Accounting, believes that forensic accountants are employed to seek, interpret, and communicate transactional and reporting event evidence in an objective, legally sustainable fashion, not only in situations where there are specific allegations of wrongdoing, but also in situations where interested parties judge that the risk of loss from wrongdoing is such that proper prudence requires legally sustainable evidence to support the conclusion that no wrongdoing is occurring. I hope to train professors to teach this broad approach to their students, rather than the narrow impression. In other words, we need to be proactive because once the money or asset goes out the door, most companies do not get it back. www.acfei.com

s A collection of books by Dr. Larry Crumbley

Earlier you mentioned that you write novels about forensic accountants.

Tell me about your latest novel.

My latest novel teaches auditing. It’s titled Trap Doors and Trojan Horses, published by Carolina Academic Press, Durham, N.C. In this educational novel, the famous forensic accountant Lenny Cramer has joined the accounting faculty at Georgia State University. In addition to his professional duties, he is conducting an operational audit for the international soft drink company Coca-Cola. Espionage and fraud place Lenny’s life on the line as he uncovers a scheme to steal Coke’s secret formula. The story features a variety of settings, from Washington, D.C. to Poland.

Another of my novels is The Big R: A Forensic Accounting Action Adventure. 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.

Describe your involvement with the Cr.FA program.

My association with ACFEI and the Cr.FA (800) 592-1399

was instrumental in my overall development in forensic accounting. I had focused much of my attention on taxation until I joined ACFEI. I had written several educational novels in which the main character was a forensic accountant (e.g., Trap Doors and Trojan Horses and Costly Reflections in a Midas Mirror). You can go to Amazon and get any one of my 12 novels. I had also done some expert witnessing work.

Once Dr. O’Block asked me to develop the marketing materials and prepare the exams for the Cr.FA certification, I devoted a great deal of time to forensic accounting. I then embarked on developing a study guide so practitioners could pass the exam. I then went around the U.S. teaching a day-anda-half preparation course.

Much of the groundwork led to my successful textbook, Forensic and Investigative Accounting published by Commerce Clearing House. Many Cr.FA candidates have used my study guide and textbook to pass the Cr.FA examination.

What is your overall goal with respect to forensic accounting?

Oh, I would like to find a producer to develop a movie about a forensic accountant.

I have written two movie scripts. I would also like to work with some TV people and develop a TV series about the exciting life of a forensic accountant. What about a reality TV show dealing with forensic accountants?

In the immediate future, what do you see as the prospects for the demand for forensic accountants?

The sky is the limit. Economic recessions of-

ten increase fraud, since executives may engage in more “cooking the books” techniques to improve financial results, and financially strapped employees will steal business funds or commit other types of fraud and abuse. In April 2009, Audit Analytics predicted that 3,589 companies (nearly 25%) will report that their auditors doubt they will continue as going concerns. In 2001, the percentage was only 19.2 percent.

The Federal Government’s $787 billion economic stimulus and bailout programs will be breeding grounds for fraud, waste, and abuse. Dan Weil estimates that up to $50 billion of the total (or 5 to 10 percent) will be susceptible to fraud. FBI Director Robert Mueller warns of fraud stemming from the stimulus packages. There should be much work for forensic accountants. n

FORENSIC ACCOUNTANTS For more information on the Certified Forensic Accountant program, visit http://www.acfei. com/forensic_certifications/crfa/ Winter 2009 THE FORENSIC EXAMINER® 63

By Heidi Bale, RN, CFN

INTERVIEW

THE SCG DIFFERENCE:

AN INTERVIEW WITH BRAD SARGENT OF SARGENT CONSULTING GROUP

s J. Bradley Sargent

J. Bradley Sargent, CPA, CFS, Cr.FA, DABFA, is a Fellow of ACFEI, serves on ACFEI’s Editorial Advisory Board, and is the founder and Managing Member of Sargent Consulting Group, LLC. Sargent Consulting Group (SCG) is an independent firm that provides management advisory and litigation consulting services to attorneys, creditors, government agencies, individuals, and other advisors.

SCG pride themselves in creative solutions and employing the “big picture” mentality as they aid in accounting, investigative, operational, and technical arenas of a client’s financial problems. Bradley states, “We are in the business of finding facts. Clients know there’s a problem, but may not know the nature, scale, or scope.

Today’s ‘consultant’ has the skills to identify problems, but shows little regard for a client’s economic realities. We provide answers in a manner that makes economic sense. We apply ethics, honesty, integrity, and quality in everything we do.”

SCG strive to provide quality service to clients. Their goal is not to serve corporate means or to attain status as a rank-rising company— their commitment is to justice, and their devotion is to their clients. SCG applies a personal connection to enhance the effectiveness of consulting, and the company embodies ACFEI’s dedication to integrity and service.

For more information, SargentConsultingGroup.com

visit

www.

Tell me a little about your background and what led you to forensic accounting.

I have a strong background in sales, operations, and logistics. I returned to school mid-life to pursue accounting. It was a very natural migration from auditing to forensics. A large part of my work as a forensic accountant involves getting into the motives that drive behaviors and, having served as a regional director in a corporation, I am very familiar with financial reporting, incentives, and the unique pressures to perform.

As a CPA and Cr.FA, I have the background to 64 THE FORENSIC EXAMINER® Winter 2009

understand the implications of a journal entry on financial reports and tax documents.

What are some of the challenges you’ve had to face in starting Sargent Consulting Group?

The current economic climate has created some interesting market factors for a small business.

The primary challenge has been identifying the sources of work. Traditional litigation has declined as entities seek to settle differences and avoid the cost of attorneys and accountants.

However, there are numerous “non-traditional” clients who need forensic accounting now more than ever and are willing to pay for it.

What types of cases do you usually take on at SCG? Our clients are in distress and/or turmoil and need facts: a creditor that has loaned millions of dollars in good faith, only to find the money is gone and the loans were predicated on “faulty” information; a mid-sized business that needs critical information about their own personnel and processes; a stakeholder in an entity who has reason to question business operations.

How is SCG different from other firms?

We are a consulting firm that is unique in our approach to our work. Our group averages 20 years of experience, and we understand the critical nature of our clients’ problems and the economic pressures they face as business owners and managers. In the past six months, I have heard many, many times that firms know they have dishonest employees, but will not allocate the funds to investigate their activities. Talk about open season for fraudsters! We “get” this simple fact and by creating an extremely low overhead structure, and we offer great value to our clients right up front.

Has the Cr.FA or your involvement with ACFEI made a difference in your career?

Absolutely! The Cr.Fa is a unique credential that a select few have earned. Since many clients and www.acfei.com

attorneys have never seen the Cr.FA, it always spurs questions about my background.

The network of contacts I have developed through my ACFEI membership gives me access to forensic professionals in a wide variety of specialties, around the country— and the world.

Why do you think forensic accounting is important today, and how does it fit into the larger picture for businesses/individuals?

The federal government is allocating serious monies to prosecuting fraud and this will have a major impact on the private sector.

The U.S Department of Justice is luring young, aggressive attorneys from some of the largest law firms in the world to beef up the fraud section of the Criminal Justice Division. The message is: the government intends to keep a close eye on all of the program funds it is allocating. Businesses and individuals will have to defend themselves.

What are some of the common indicators you find when investigating company fraud?

One of the first assessments I make is the “Tone at the Top.” A hands-off attitude by ownership/management is very common. A lack of segregation of duties, poor financial reporting, and unreconciled cash accounts are also indicators. Here’s the rub: in today’s economy, filled with distressed businesses, this is the modus operandi for small and mid-sized business around the country.

Have you worked any unique cases you can share?

I have been fortunate enough to have participated in some very interesting cases.

I am currently seeing a lot of asset tracing work. As a young boy, I would go to great lengths to avoid doing my chores. As the father of five kids, I have seen my own children do the same. It is remarkable how hard they will work to NOT work! Well, the same holds true for people’s assets. I have seen Herculean efforts to hide “stuff ” from others that far outweigh the actual value of the “stuff.”

What changes have you seen in the forensic accounting sector over the past few years? What areas need further developing?

Increasing public awareness of forensic accounting has created a huge demand for (800) 592-1399

s A screenshot of www.sargentconsultinggroup.com

more content at the college level. Students are graduating with degrees in accounting and specializing in forensics. Several years ago, there were not enough qualified people for the work. Recently, the larger firms have all gone through some dramatic “right-sizing” and there are resumes everywhere. Smaller, more agile firms are now being considered on much larger projects.

Competency still the number one factor considered, but rates are a close second.

Documents are always a critical component in any forensic accounting exercise and the average forensic accountant is learning all about e-discovery, computer forensics, and document management systems. This is the most rapidly developing area that I see.

Describe SCG’s well rounded approach to business and involvement in the community. Why do you think making connections outside of the usual investigative accounting duties is important?

We deal with people, first and foremost.

Our work often entails uncovering extremely disturbing facts about love ones, trusted business associates, and employees. Unlike other firms in our “space,” we emphasize the human element of our work. We are parents, spouses, coaches, church mem-

bers, board members, and business owners. This well-rounded philosophy helps us empathize with individuals from all walks of life. Additionally, SCG wants our clients to know who we are and what makes us tick. n

FORENSIC ACCOUNTANTS For more information on the Certified Forensic Accountant program, visit http://www.acfei. com/forensic_certifications/crfa/ Winter 2009 THE FORENSIC EXAMINER® 65

The Late Dr. David Rosengard, Second Chair of the American College of Forensic Examiners

The American College of Forensic Examiners would like to remember Dr. Rosengard and honor him as the man who dedicated his life to the ideals and people in whom he believed.

When the first chair of ACFEI, Vincent J. Scalice, passed away, Dr. David E. Rosengard took on this prestigious role. Dr. David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, CMI-V, CHS-V, CFP, DABFE, DABFM, DABECI, FACA, FAPA, MTAPA, FAAIM, passed away on September 13, 2009. Dr. Rosengard played a key role in the foundation and development of both the American College of Forensic Examiners (ACFEI) and the American Association of Integrative Medicine (AAIM).

He was an extraordinary doctor and a loyal supporter of science, integrity, and justice. He was also an adored husband, father, grandfather, brother, uncle, and friend.

The American College of Forensic Examiners would like to remember Dr. Rosengard and honor him as the man who dedicated his life to the ideals and people in whom he believed.

Dr. Rosengard had an exemplarity background that allowed him to realize a vast amount of impressive achievements. This background included specialties in pharmaceuticals, medicine, public health, forensic psychiatry, and neurology. His dedication was not only to his science, but to his country—he served in the United States Navy, the Marines, and even made Lieutenant Colonel in the Air Force.

Dr. Rosengard was the Chairman of the American College of Forensic Examiners and was a loyal force in building the American College of Forensic Examiners into the reputable organization it has become. He helped build a sturdy foundation for the organization through his captivating writings and vision for the future.

ACFEI was developed and well established; Dr. Rosengard assisted with an ambitious new project. Late in 2000, Dr. Rosengard helped Dr. Robert O’Block launch the American Association of Integrative Medicine (AAIM). AAIM was the embodiment of a vision for a twenty-first century medical association. He dedicated his expertise and experience in his role as the head of AAIM. Dr. Rosengard described AAIM in his own words during an interview published in The Forensic Examiner®: “Often traditional approaches to medicine, in which I was Rosengard at an ABCHS trained, do not fully utilize alternative remedies and treatments. sDr. Conference held in Washington, We, at AAIM believe traditional and complementary approaches D.C. Spring of 2004 can work together to help patients safely, quickly, and affordably. That’s what this organization was created to promote.”

Along with his long term of service as chairman of the Executive Advisory Board, he was also the first historian of the organization. He contributed to the history book, United for Truth, and was an effective spokesman, advocate of the organization, and he wrote many articles in The Forensic Examiner®. He was a loyal supporter who consistently and tirelessly advocated the American College of Forensic Examiners. He served the organization he loved in many ways, and will be dearly missed.

Announcing!

The American College of Forensic Examiners Institute has been blessed to have two former Board Chairs who were the utmost models of science, integrity, and justice. With the recent passing of our Board Chair, Dr. David Ely Rosengard, we looked for someone to fill the position to continue Dr. Rosengard’s legacy of exemplary loyalty and leadership. We are proud to announce Dr. Cyril H. Wecht of Pennsylvania as the new Chair of ACFEI. Dr. Wecht will be fill66 THE FORENSIC EXAMINER® Winter 2009

ing the position of Chair of the Executive Advisory Board and Chair of the American Board of Forensic Medicine.

Dr. Wecht was first announced as Chair at the 2009 ACFEI National Conference in Las Vegas, NV, on October 15, 2009.

Dr. Wecht is a Life Fellow of the American College of Forensic Examiners Institute and is a Diplomate of the American Board of Forensic Medicine and the American Board of Forensic Examiners. He is a Certified

Medical Investigator, Level Five, and is a former instructor of this program. He is also a Certified Forensic Physician and recently wrote the exam for the CFP program. He has been a dedicated member since 2002.

Cyril H. Wecht received his MD from the University of Pittsburgh and his JD from the University of Maryland. He is certified by the American Board of Pathology in anatomic, clinical, and forensic pathology. He is a Fellow of the College of www.acfei.com

sDr. Cyril Wecht, MD, JD, with Dr. Rosengard at the ACFEI Conference in Chicago, IL. (fall of 2004).

American Pathologists, the American Society of Clinical Pathologists, and the National Association of Medical Examiners.

Dr. Wecht is a Charter Diplomate of the American Board of Disaster Medicine and has served as Vice Chairman of that Board. He is also a Charter Diplomate of the American Board of Legal Medicine and has served as Chairman of that Board.

Dr. Wecht was formerly the Chairman of the Department of Pathology and President of the Medical Staff at St. Francis Central Hospital in Pittsburgh. He is actively involved as a medical-legal and forensic science consultant, author, and lecturer. He served as the elected coroner of Allegheny County for 20 years.

Dr. Wecht is a clinical professor at the University of Pittsburgh School of Medicine and Graduate School of Public Health; an adjunct professor at Duquesne University School of Law, Pharmacy, and Health Sciences; Distinguished Professor of Anatomy and Pathology at Carlow University; professor of law at Aristotle University School of Law; and chairman of the Advisory Board of the Cyril H. Wecht Institute of Forensic Science and Law at Duquesne University School of Law. He has served as President of the American College of Legal Medicine and the American Academy of Forensic Sciences, and also as Chairman of both the Board of Trustees of the American Board of Legal Medicine and the American College of Legal Medicine Foundation.

Dr. Wecht is the author or co-author of 530 professional publications; an editorial board member of 16 national and international medical-legal and forensic scientific (800) 592-1399

publications; and an editor or co-editor of 44 books, including the five-volume set Forensic Sciences (Matthew Bender), and two 3-volume sets—Handling Soft Tissue Injury Cases and Preparing and Winning Medical-Negligence Cases.

Dr. Wecht has organized and conducted postgradutate medical-legal seminars in more than 50 countries as director of the Pittsburgh Institute of Legal Medicine. He has personally performed approximately 16,000 autopsies and has supervised, reviewed, or consulted on approximately 36,000 additional several post-mortem examinations, including several cases in foreign countries.

Dr. Wecht has testified in more than 1,000 civil, criminal, and workers compensation cases in state and federal courts in more than 30 states. He has also testified in several foreign countries.

Dr. Wecht has appeared as a frequent guest on numerous national TV and radio shows, discussing various medicolegal and forensic subjects, including medical malpractice; alcohol and drug abuse; the assassinations of President John F. Kennedy, Senator Robert F. Kennedy, and Reverend Martin Luther King; the death of Elvis Presley; the San Sheppard case; the O.J. Simpson case; the JonBenét Ramsey case; the Diallo case; the Chandra Levy death investigation; Jayson Williams; and the Laci Peterson homicide. These cases, as well as those involving Mary Jo Kipechne, Sunny von Bulow, Jean Harris, Dr. Jeffery McDonald, the Waco Branch Davidian fire, Vincent Foster, O.J. Simpson, Scott Peterson, Anna Nicole Smith, Daniel Smith, and many others are discussed from the perspective of Dr. Wecht’s personal professional involvement in his books, Cause of Death, Grave Secrets, Who Killed JonBenét Ramsey?, Mortal Evidence, Tales from the Morgue, and A Question of Murder.

Dr. Wecht has received numerous awards and honors from various professional, community, and governmental organizations, including the County Detectives Association of Pennsylvania, the Deputy Sheriffs’ Association of Pennsylvania, Vectors, the New York Society of Forensic Sciences, the American College of Legal Medicine, National Junior Chamber of Commerce, the American Legion, and the Pittsburgh Shriners.

He has been invited as a Distinguished Professor to lecture in several foreign countries and is an Honorary Life Member of the National Academies of Legal Medicine

The American College of Forensic Examiners is pleased to have an esteemed professional such as Dr. Wecht lead our association into the new decade of forensic science. of France, Spain, Belgium, Yugoslavia, Mexico, Columbia, and Brazil.

Dr. Wecht has lectured at numerous law, medical, and other graduate schools; at many colleges and universities; and numerous professional organizations and governmental agencies, including Harvard Law School, Yale Medical School, the FBI Academy, and the Medical Division of the CIA. The American College of Forensic Examiners is pleased to have an esteemed professional such as Dr. Wecht lead our association into the a decade of forensic science. In the wake of the National Academy of Sciences report on forensic science, Dr. Wecht is exactly the leader needed to help ACFEI respond to the imminent changes in the field. We welcome Dr. Wecht and look forward to an exciting future for ACFEI! n

Winter 2009 THE FORENSIC EXAMINER® 67

Find the crime they’re trying to hide.

Forensic Accountants track the money and solve the crimes. The best of the best belong to an elite organization that has rigorous standards and works constantly to advance the important profession of forensic accounting. Becoming a Certified Forensic Accountant, Cr.FA® puts you in good company, helps you to hone your skills, and recognizes your training, experience, and dedication.

Log on to www.acfei.com/crfa for details.

Call (800) 592-1399 to talk to member services.

Act now to start enjoying the benefits of certification.

YOUR SECURITY IS AT STAKE! An Essential Certification for All Who Handle Sensitive Information

Information theft, corporate espionage, and trade secret compromises are at all-time highs.

Are you armed with the training to protect your sensitive personal and business documents? ®

The Sensitive Security Information, Certified program, developed by the American Board for Certification in Homeland SecuritySM, will train you to be an effective guardian of sensitive information in all its forms. Certification shows your present and future employers that you are well-trained and dedicated to protecting information security—a sought-after skill in today’s public and private sectors.

Become Sensitive Security ® Information, Certified Today!

Call Toll-free (800) 592-1399 or visit www.acfei.com/forensic_certifications/ssi to register!

68 THE FORENSIC EXAMINER® Winter 2009

www.acfei.com

(800) 592-1399

Winter 2009 THE FORENSIC EXAMINER速 69

FORENSICS IN HISTORY

By Katherine Ramsland, PhD, CMI-V

THE MEASURE OF A MAN:

CESARE LOMBROSO AND THE CRIMINAL TYPE

I

n 1876, Cesare Lombroso published a slim volume about his work in criminal anthropology, which grew through successive editions into the classic multi-volume study L’uomo delinquent (The Criminal Man). He’d made systematic measurements of numerous offenders to develop his notion that criminality was inherited, its propensity apparent in the physical body. Unlike normal people, the “born criminal” was genetically defective. While Lombroso’s ideas have long been discredited, he was nevertheless instrumental in shifting the study of criminal behavior into the realm of science. He founded the Italian School of Positivist Criminology, worked on a rudimentary lie detector, and advocated for a cautious approach to the death penalty.

Described by his daughter as a “born collector,” Lombroso was always studying something, “thus amassing or buying a wealth of curiosities.” Not particularly tidy, his work space resembled a junkyard, yet out of this chaos he established one of the earliest professional museums dedicated to crime.

s Cesare Lombroso

70 THE FORENSIC EXAMINER® Winter 2009

Truth in Observation Born into a wealthy Jewish family in 1835 in Verona, Italy, Lombroso studied medicine at three prominent universities before he served in the Military Medical Corps.

There he took an interest in soldiers’ tattoos, believing that their choice of detail reflected their dispositions—more obscenities were evident on those he deemed dishonest. Lombroso realized the tattoos were just the tip of the iceberg, so he watched for other consistent clues of character as he collected skulls, skeletons, brains, and objects associated with lunatics and criminals. As an asylum physician during the 1870s, he conducted anthropometric measurements, assembled a portfolio of illustrations, and worked out his theory of the criminal type.

When he became a professor of psychiatry at the University of Pavia, his publications attracted professionals across Europe who were interested in anthropology. To support and assist him, many sent him crime-related items from their institutions.

According to Lombroso’s early ideas, multiple physical abnormalities set criminals apart from ordinary men. He labeled these markers “stigmata,” and on his list were bulging or sloping brows, asymmetrical features, abnormal crania, broad noses, dusky skin, eyebrows that met over the nose, large jaws, and abnormally long arms. In other words, criminal deviance could be seen in physiological traits that suggested a throwback to apelike ancestry. In addition, the born criminal was less susceptible to pain

and lacked moral sense (not visible but apparently testable).

Lombroso eventually admitted the existence of other criminal types, such as “criminaloids” who committed crime only occasionally, as well as offenders inspired by passion or circumstance. Yet he focused on establishing clinical descriptions of the genetic factors that predisposed a person to habitual crime, with the ultimate goal of improving risk assessment and crime control.

Among Lombroso’s subjects were a man who strangled prostitutes for sport, a man who dismembered a child and carried her forearm in his pocket, and a man who had torn out his victims’ intestines. This person’s cranium was found to be asymmetrical and large. His penis, too, was “greatly developed” and some of his ancestors had been “defective.”

Lombroso’s disciples—La Scuola Lombrosiana—collectively propelled an international movement to make anthropology a totalizing science. “Our theories,” Lombroso wrote, “are based on a mass of facts there for all to see; it has proved that despite the opposition from distinguished men, our school has attracted and convinced the best scientists in Europe who did not disdain to send us…the most valuable documents in their collection.”

Unfortunately, his efforts lacked control groups and because he seemed set on proving rather than disproving his hypotheses, he fell short of his lofty goals. Nevertheless, for several decades he enjoyed international celebrity and endured few challenges. www.acfei.com

Lombroso’s ideas proved popular among scientists and lay people alike. As Professor of Forensic Medicine at the University of Turin he established the Archive for Psychiatry, Anthropology, and Criminal Science in 1880, which opened to the public four years later. He participated in the earliest conferences on criminal anthropology. In 1892, his growing collection of exhibits officially became the Museum of Psychiatry and Criminology.

The relationship between insanity and artistic genius also attracted Lombroso’s attention as he assembled an impressive collection of art from asylum inmates. In his usual systematic style, he compiled a list of “typical features” available to the observant professional and his research on the subject was the most comprehensive in Europe.

In addition, Lombroso commented on female criminals. Among his cases were a woman who had bitten off the flesh of her victim, a woman who had shoved scissors into her victim’s brain, and a serial killer who had strangled several children for erotic pleasure. He believed that such “monstrous” women were biologically akin to men and would inevitably be wrinkled and hairy, with overdeveloped heads. He measured a number of female skulls to determine how atavism, or primitive reversion, showed up.

Since he found few such indicators, he decided that female criminals were rare and even normal women were lower than men on the evolutionary scale. They did not possess the intelligence or initiative to carry on a criminal life, and like all “savages,” they lied easily. Their supposed resistance to pain and inability to experience pleasure also confirmed their lower status. Simply put, females were organically inferior to males, so the physical signals of atavism would not be as obvious.

In 1908, the New York World asked Lombroso to comment on a singularly shocking case of a American serial killer— a woman.

The Monster A fire on April 28 gutted the Indiana farmhouse of Belle Gunness, a NorwegianAmerican widow. Reportedly, she was inside with her daughter and two sons, and once the fire was extinguished, four corpses were found in the charred ruins. At first no one doubted that the adult corpse was Belle, although the figure was smaller than the six-foot pig farmer...and missing its head. The fire had been intentionally set (800) 592-1399

and the prime suspect, former hired hand Ray Lamphere, was arrested.

As the embers cooled, investigators searched the property for the remains of a man named Andrew Helgelein, who’d been missing for three months. Belle had written letters imploring him to sell everything he had and come to her, and afterward no one heard from him. His brother had insisted on an investigation.

From a freshly filled hole, the authorities shoveled dirt and turned up a stinking gunny sack. Inside were the dismembered parts of the missing man. His legs had been sawed off above the knees, his arms disarticulated, and his head removed. How he had come to this fate was a mystery, but diggers found another soft spot in the ground nearby. This one yielded the skeletal remains of a girl, and more digging turned up the decayed remains of a man and two children.

The area became a massive crime scene, and before it was over, the authorities had pulled out an estimated twelve to thirteen sets of remains, mostly male. They wondered if Belle Gunness, a woman, could possibly have been such a vicious killer. Lamphere vehemently denied any involvement.

It turned out that there were a startling number of deaths in Belle’s background.

In 1900, her husband Mads Sorensen had died. Belle had insured him for $8,500.

Two of her adopted children (also insured) had died from conditions consistent with poisoning, and several of her insured establishments had burned down. Belle’s second husband, Peter Gunness, didn’t last a year.

She reported that a meat grinder and a jar of scalding water had somehow fallen on his head. In short order, Belle placed matrimonial ads in newspapers to lure men with money—many of whom had been at the farm for a brief stay before they disappeared. Some had left their personal effects behind.

Lamphere told detectives that Belle was still alive. He claimed he had taken her to the train himself before her house burned down. People recalled that Belle had recently brought in a woman whose physical dimensions resembled the headless corpse, so a debate ensued over whether Belle had pulled a fast one, deciding to fake her death after Andrew Helgelein’s brother warned her he was coming. Her nearly empty bank account supported this possibility, as a calculation of the funds she’d taken from her many “visitors” totaled over $50,000.

Back in Italy, Lombroso reviewed the case and offered his statement. He asserted that among deviant types, females were worse than males. “It is not enough for a woman to murder an enemy,” he said, “she wants to make him suffer, and she enjoys his death.”

A true female degenerate like Belle Gunness lacked any maternal instinct and found pleasure in torturing others, even her children.

Still, Lombroso was convinced that one or more male accomplices had assisted Belle, since dismembering bodies and digging holes was difficult work—and that she’d probably rewarded them with sex. “Knowing [that] the feminine criminals always mix eroticism with crime,” he said, “Mrs. Gunness must have used the attraction of sexuality in addition to the temptation of personal gain to obtain her accomplices.” Like other female criminals, he added, she probably suffered from either epilepsy or hysteria.

A jury decided that Lamphere was guilty of arson but that there was a lack evidence for a murder conviction. Gunness was allegedly sighted numerous times around the country, and the best candidate was a woman named Esther Carlson. She was arrested in 1931 in Los Angeles for fraud and murder. Before her trial began, she died, so nothing was proven.

This was the last sensational case to which Lombroso applied his theory. Just before his 64th birthday in 1909, he died at home from angina. In any event, his star was already fading; Charles Goring discredited the idea that physical features signaled a criminal nature. In a publication, “The English Convict,” Goring presented the results of his own measurements of criminal and non-criminal types, indicating that there were no significant differences.

Criminal Museums Positivist theories of criminology in the late nineteenth century emphasized the notion that what you see is what you get, inspiring the first criminological museums.

They were annexed to scientific laboratories, with the first exhibit of prison products (things made by prisoners) in 1885 for the International Penitentiary Congress in Rome. There in Italy, the Zanardelli Code of 1889 granted the right to remove body parts from dead inmates for scientific study to university chairs, which added more material. Contrary to Lombroso’s theory, the code emphasized free will and criminal responsibility, with penal sanctions proportionate to the seriousness of a crime.

Winter 2009 THE FORENSIC EXAMINER® 71

s Monument to Cesare Lombroso, Verona Italy

Lombroso’s persistence in shifting the legal focus from personal moral responsibility to the level of danger an individual actually posed helped him to launch a countrywide prison reform. While lawmakers did not fully accept his ideas, they did institute a compromise—retributive sentences were given to criminals considered responsible for their acts while security measures were developed for the mentally incompetent dangerous offender.

During this time Austrian criminologist Hans Gross attested to how the evolving field of criminology was making books obsolete before they were even printed.

This too helped the museum movement.

Developers (Lombroso among them) believed that contact with actual objects helped to establish a visual history as well as provide a more complete education than a book ever could. Microscopes, weapons, poisons, blood samples, penal instruments, crime tools, photographs, handwriting samples, criminal disguises, and even human remains went into these museums. As Lombroso’s collection in Turin expanded in scope and content, it was accorded scientific status. His student Salvatore Ottolenghi established a smaller collection in Rome.

However, Italy’s prison administration was developing its own museum there; it was first displayed in a school for prison guards.

These officials launched a bitter dispute with Lombroso over who should acquire material from the prisons and courts. Since 72 THE FORENSIC EXAMINER® Winter 2009

Lombroso had higher professional status, most items went to him.

Years later, after Lombroso’s museum had closed, the museum in Rome received more support. The Ministry of Justice Department of Prison Administration decided to open its exhibits to the public.

Currently housed in a three-story building on the Via del Gonfalone, Rome’s Criminology Museum spans several centuries (including an exhibit that pays homage to Lombroso). Few tourist books mention it, and compared to other museums in Rome it is humble and unobtrusive.

However, consistent with the goal of educating the public, it offers plenty: items related to forgery, espionage, organized crime, illegal weapons, and of course, murder. Several sensational crime scenes are described alongside a display of the evidence.

This museum also contains quite a few torture instruments (iron maidens, spiked collars, gossip bridles), as well as red executioners’ cloaks and their implements for execution.

Partly due to the current popular interest in forensic science, a number of these older museums are being refurbished around Europe.

Afterlife Most accounts about Lombroso focus on his criminal work, but occasionally one mentions his most startling book, After Death, What? In spite of himself, Lombroso developed a passionate interest in the paranormal. “If ever there was an individual in the world opposed to spiritism by virtue of scientific education… I was that person,” he wrote. Having steadfastly believed that everything was reducible to physical matter, including the soul, he began to observe things that changed his mind.

In 1891, Lombroso attended a daytime séance with other professionals and witnessed objects traveling inexplicably

through the air. Surprised, he resolved to look into the phenomenon of teleportation, and thereafter he watched famous medium Eusapia Palladino perform this feat time and time again. During one séance Lombroso saw a short figure that resembled his deceased mother. It spoke to him, removed a veil, and kissed him. He wrote that he saw her over a dozen times afterward and felt ashamed at having so firmly opposed the possibility of psychic phenomena.

Against the recommendations of his colleagues, he published his book about spirit mediums, but because he died that year he suffered little professional backlash.

After the autopsy he had requested, his skull, skeleton, brain, and internal organs went to his museum, along with his writing desk and research materials. Even in death he was devoted to knowledge. Despite his many objectionable assertions and questionable methodology, Lombroso’s intense curiosity and systematic approach were inspiring to future scientists.

References: Colaizzi, Janet. (1989). Homicidal insanity, 18001985. Tuscaloosa, AL: University of Alabama Press.

Horn, David G. (2003). The criminal body: Lombroso and the anatomy of deviance. New York: Routledge.

Lombroso, C. Lombroso, Cesare. (1876). L’uomo delinquente. Milan: Hoepli. ---(1887) L’homme criminal. Etude anthropologique et med. legale. Parigi: Alcan. (1899) Le crime, causes et remèdes With Gina Lombroso-Ferrero (1911) Criminal Man, According to the Classification of Cesare Lombroso. New York: Putnam; (1972) Montclair, N.J.: Patterson Smith.

Regener, Suzanne. (2003). “Criminological museums and the visualization of evil.” Crime, History and Societies. Vol. 7, no. 1.

Shepherd, Sylvia. (2001). The mistress of murder hill. www.1stbook.com.

Traverso, G. B. (2000). The treatment of the criminally insane. International Journal of Law and Psychiatry, Vol. 23, No. 5-6, 493-508.

Museo Criminologico. www.museocriminologico. it. n

ABOUT THE AUTHOR

Katherine Ramsland, Ph.D., CMI-V has published over 900 articles and 36 books, including The Devil’s Dozen: How Cutting Edge Forensics Took down 12 Notorious Serial Killers and Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation. Dr. Ramsland is an associate professor of forensic psychology and the department chair at DeSales University in Pennsylvania. She has been a member of the American College of Forensic Examiners International since 1998.

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Winter 2009 THE FORENSIC EXAMINER速 77

Law CEEnforcement ARTICLE 1: Evil Twins:The Crime-Terror Nexus (Pages 16-29) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online.Visit www.acfei.com.

TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

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

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

1. Read the continuing education article.

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

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

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

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

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

1. Illustrate some of the contributing factors that make the crime-terror link possible.

2. Recognize the common criminal tactics and activities that both terrorists and criminals engage in to fund their organizations.

3. Consider different strategic methods to identify where a crime-terror link might exist.

4. Recognize the benefits of forensic examiners and interagency cooperation as tools to combat the crimeterror link.

KEYWORDS: Organized Crime, Terrorist Financing, Hezbollah, Irish Republican Army, Fraud, Hybrid Terrorist, Cigarette Smuggling, Black Hole Syndrome TARGET AUDIENCE: Criminal investigators PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose.

PREREQUISITES: None

ABSTRACT This article explores the symbiotic relationship between organized crime and terrorist organizations including when there is evidence that such relationships have become indistinguishable. The authors examine the symbiotic relationships detected within the United States of America and other areas of the world. They focus on cigarette diversion, narcotics, and illegal immigrant smuggling. Specific groups such as Hezbollah, the Irish Republican Army, and other crime-terror organizations are used to illustrate these. This article outlines tools that can be used to identify crime-terror overlaps. Recommendations derived from the importance of using multi-agency working groups coupled with the emerging importance of forensic examiners in the fight against the crime-terror nexus are offered.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1. Terrorists fund their operations in various ways.They include: a. fraud b. robbery c. drug and human trafficking d. legitimate business activities e. All of the above 2. Although terrorist organizations claim to be religious organizations, they have been caught engaging in a. armed robbery b. narcotics c. human trafficking d. all of above e. none of above.

3. This article found that terrorist organizations financed their organizations primarily by a. criminal activities b. direct sponsorship by states c. contributions and donations 4. The crossing of the line between terrorist activities to organized crime presents

a. overwhelming obstacles as American agencies have never teamed up to create a synergistic energy b. an opportunity for forensic examiners to follow clues left as a result of criminal behavior c. an opportunity for forensic examiners to identify the terrorist cell and the individual members of the cell (e.g. matching ballistics between crime scenes) 5. A commonality between terror organizations, criminals and smugglers is that they all believe that it is beneficial to have access to a. forge documents. b. safe houses. c. violence for resolving conflict. d. ways to hide their money. e. all of the above 6. The phenomenon of the synergy of terrorism and organized crime is growing for the reasons given EXCEPT a. Criminals have decided to forgo their profits to meet Jihad goals. b. Terrorists and organized criminals use similar approaches to promote their operations. c. Similar conditions give rise to both activities.

7. The following crime lord shared his smuggling routes with a terror syndicate and funded attacks by Islamic extremists: a. Jemaah Islamlyah b. Cesar Augusto Perez-Parra c. Wan Min Wan Mat d. Dawood Ibrahim 8. The following agency recognizes the blurring of the lines between terrorism and organized crime and has initiated setting up interagency Working Groups, which cooperate to combat these deviant activities: a. DEA and ICE b. ICE and FBI c. FBI and CIA 9. Terrorist organizations are resorting to white-collar crime tactics to raise cash, launder money, create false identities, etc. By partaking in these regular crimes, terror cells a. enjoy the clandestine quality of non-delectability. b. no longer rely on state-sponsorship. c. make mistakes which result in a paper trail that can be used to track them. d. none of the above

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

PAYMENT INFORMATION: $15 per test (FREE ONLINE)

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

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 authorâ&#x20AC;&#x2122;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

licensure level.

10. Instructional materials were useful.

78 THE FORENSIC EXAMINERÂŽ Winter 2009

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Phone Number:

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Address:

City:

State:

Zip:

E-mail:

Credit Card # Circle one:

check enclosed

Name on card: Signature

MasterCard

Visa

American Express

Exp. Date: Date

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

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CE ARTICLE 2: The Fallibility of Forensic Interviewing: Understanding the Michaels Decision and the Law Enforcement Taint Hearing (Pages 48-54) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online.Visit www.acfei.com.

TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

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

This article is approved by the following for 1 continuing education credit:

1. Read the continuing education article.

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

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

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

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

LEARNING OBJECTIVES

KEYWORDS:

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

TARGET AUDIENCE: Psychological professionals

1. Illustrate the fallibility of forensic interviewing.

2. Understand the concept of the taint hearing.

3. Fully understand the need for a specialized forensic examiner to aid defense and prosecution.

Child Sexual Abuse, Forensic Interviewing, Michaels Decision, Taint Hearing

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

PREREQUISITES: None

ABSTRACT Due to allegations of physical, emotional, and sexual abuse, millions of American children are interviewed each year by law enforcement, child protective services, mental health, and other professionals.

The outcome of these interviews is frequently tendered as uncorroborated, yet compelling evidence in a criminal trial, increasing its significance and the need for dependability. With 30 years of experience in this field, this author realizes that child sexual abuse (CSA) is a horrific crime and this paper is not an attempt to minimize its importance. The purpose of this short report is to 1) review an investigative case of child abuse biased by flawed interviewing that resulted in a wrongful jury verdict and 2) outline one of few existing remedies; the taint hearing.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1. What Court Decision provided the foundation for Taint Hearings? a. U.S. v Wade b. U.S. v Michaels c. New Jersey v. Michaels d. U.S. v. Harris

5. Four-hundred children were interviewed by CII prior to the McMartin trial. How many of them were diagnosed as “sexually abused.” a. 3 b. 100 c. 384 d. 255

2. Of the following, which is not a common defect in child interviewing? a. repetitive questioning b. objectivity c. play therapy d. failure to challenge illogical responses

6. The taint hearing is intended to a. focus on mitigating circumstances. b. determine competency. c. determine reliability. d. determine credibility.

3. How long did it take for Kelly Michaels to have her conviction overturned? a. It wasn’t b. Fifteen years c. One year d. Five years 4. How many social scientists signed the Amicus Brief that preceded Kelly Michael’s appeal? a. 7 b. 10 c. 25 d. 45

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

PAYMENT INFORMATION: $15 per test (FREE ONLINE)

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

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

12345 12345 12345 12345 12345 12345 12345 12345 12345

10. Instructional materials were useful.

12345

licensure level.

(800) 592-1399

State License #:

Phone Number:

Member ID #:

Address:

City:

State:

Zip:

E-mail:

Credit Card # Circle one:

check enclosed

Name on card: Signature

MasterCard

Visa

American Express

Exp. Date: Date

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

Winter 2009 THE FORENSIC EXAMINER® 79

Law CEEnforcement ARTICLE 3: Do Expert Witnesses Have to Keep Draft Documents? (Pages 58-64) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online.Visit www.acfei.com.

TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

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

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

1. Read the continuing education article.

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

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

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

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

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1. Understand the different policy with respect to a consultant and an expert witness.

2. Identify tips for obtaining the most protection under the work product privilege.

3. Understand the various types of communication privileges.

KEYWORDS: Expert witness, Draft reports, Rules of Civil Procedures, Work product privilege, Trigon Insurance Company TARGET AUDIENCE: Accounting professionals PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose.

PREREQUISITES: None

ABSTRACT Due to a split in the various courts there is no clear-cut answer whether draft copies and communication records must be maintained by an expert witness. Unless both sides agree in writing that draft documents will not be requested, expert witnesses are advised to retain all draft documents and communication records.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1. Which item is discoverable during the discovery process? a. Conversation between a husband and a wife. b. E-mail between a physician and a patient. c. An attorney’s work product. d. A chart prepared by an expert witness. e. None of the above.

2. An expert witness must present a listing of all court appearances and depositions within the preceding number of years? a. 4 years b. 5 years c. 6 years d. 10 years e. Do not have to disclose such information.

4. ______________ is the legal term that refers to the act of destroying or suppressing evidence. a. Ghost-writing b. Sanctions c. Spoliations d. Destructions

5. Which Circuit requires production of experts notes even if he or she did not rely on them? a. Fourth Circuit b. Fifth Circuit c. Third Circuit d. Seventh Circuit e. Ninth Circuit

3. Which statement is false? a. An expert must provide a list of all authored articles within the preceding 10 years. b. A report prepared by a non-testifying consultant is always discoverable. c. A majority of the courts hold that any material provided to an expert witness is discoverable d. Trigon Insurance Company brought action against the U.S government to recover Federal income taxes.

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

PAYMENT INFORMATION: $15 per test (FREE ONLINE)

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

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

12345 12345 12345 12345 12345 12345 12345 12345 12345

10. Instructional materials were useful.

12345

licensure level.

80 THE FORENSIC EXAMINER® Winter 2009

State License #:

Phone Number:

Member ID #:

Address:

City:

State:

Zip:

E-mail:

Credit Card # Circle one:

check enclosed

Name on card: Signature

MasterCard

Visa

American Express

Exp. Date: Date

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

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NEW MEMBERS

Welcome New ACFEI Members!

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Winter 2009 THE FORENSIC EXAMINER® 81

PRESS RELEASE

By Carl N. Edwards, JD, PhD

BEHAVIORAL SCIENCES CENTRAL TO LAW AND FORENSICS

s Carl N. Edwards

A new Encyclopedia of Forensic Science just released by publisher John Wiley & Sons, also to be available as an online resource, reflects the central role the behavioral sciences play in law and forensic science. The landmark work contains entries on all of the forensic disciplines including criminalistics, medicine, toxicology, and trace evidence.

It is prepared in 12 editorial sections with the individual topics distributed alphabetically throughout five full-color illustrated volumes.

The largest section, constituting 29 percent of the Encyclopedia’s 3,104 pages, is the behavioral sciences.

Boston-area attorney and psychologist Carl N. Edwards assembled, edited, and wrote many of the 108 behavioral sciences articles’ 900 printed pages. “The authors are the world’s who’s who in this field,” Edwards says, “and every one of the several hundred experts I invited to contribute accepted.” While the behavioral sciences receive little attention in law school, their importance becomes quickly evident to anyone practicing criminal law or preparing a for a jury trial.

“America is often seen as a nation obsessed with psychological excuses, but our history and constitutional structure is unique in many ways,” Edwards observes. Under English and most of the world’s legal systems, juries simply decide whether a defendant committed a particular act. If that party then believes that he or she deserves some form of dispensation, an appeal must be made to royal authority such as the English Chancery, or to religious leaders as in most Muslim nations. “The United States was the first and is still among only a few nations that reject religious and royal authority,” Edwards explains. “Consequently, even the most complex moral and societal issues in America are

82 THE FORENSIC EXAMINER® Winter 2009

left to our peers. Trials constitute a public forum, from which the term “forensic” gets its name, so it is the open and often contentious public debate of trial outcomes and other issues of justice and equity that shape our laws and evolving customs.”

American laws do not simply specify punishments for criminal acts. They are filled with qualifiers such as “willful,” “premeditated,” “knowingly,” and “malice,” which are psychological concepts. “America is unique in the extraordinary level of freedom it affords its citizens, but also in the extent to which these complex concepts are left to the interpretation of ordinary people,” Edwards points out. “For these reasons, behavioral testimony is by far the court’s most frequently sought expertise, and behavioral disciplines are relevant to everything from corrections and criminal penalties to social and public policy.”

This often leads to the criticism that America and its behavioral ‘experts’ have made the U.S. a nation soft on crime and overly introspective—at the expense of decisive action. Edwards, a fellow of the American Academy of Forensic Sciences and holder of a post-doctorate in pharmacology, who has written extensively about behavior and legal history, would argue that the evidence does not support this understandable belief.

“American justice has waxed and waned as we have dealt with new behavioral theories,” Edwards has said, “but we have really seen very little that was new even a thousand years ago.

You can argue that everything anyone does has at least some psychological roots, but this has to be balanced against the need for social order. Freedom carries responsibilities, and the American concept of justice today has arrived at a balance remarkably similar to that reached in other nations well before there even was a United States.” n

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BOOK REVIEWS

Recognizing the Mental Disorders that Power Serial Killers: Psychopathy, Perversion, and Lust Homicide

Wiley Encyclopedia of Forensic Science

Duane L. Dobbert

This five-volume encyclopedia is the most comprehensive, up-todate reference guide to forensics available. The A to Z entries begin with an authoritative history to provide a foundation for learning, then progress into detailed discussions of the applications, developments, and concerns of the varied forensic topics. Each volume includes a table of contents for easy reference, and there is a full index in the final volume. Entries are clearly organized to provide in-depth coverage of topics pertinent to forensic professionals and the articles include full-color photos as well as a detailed reference list with suggested supplementary readings from the contributors. The contributing editors are clearly annotated on their articles to add credibility to the entries so you can identify which experts are offering their experience in the various fields.

More than 350 contributors—including sizeable contributions to the behavioral sciences secion by ACFEI fellow Carl Edwards, JD, PhD—lend their expertise as top professionals in their fields to the articles, ranging from the psychological aspects of Stockholm syndrome, to bloodstain pattern analysis, to the evolution of investigative credentials. Not only do the articles provide great information on an extensive range of topics, but they also delve deeper into some of the more controversial and cutting-edge aspects of forensics and particularly behavioral science evidence and “truth” determination. Wiley’s Encyclopedia of Forensic Science is the go-to reference source for professionals in the field and those even remotely interested in forensics. n

Dobbert’s book discusses in detail some of the most famous serial killer cases and the mental disorders and sexual paraphilia that fueled their actions. This work focuses on those who have committed premeditated multiple murders over a period of time and were motivated by intense sexual desire.

Sexual paraphilia disorders apply when someone is recurrently and consistently aroused by a specific type of stimulus; the person cannot be aroused without this stimulus. They are also cognizant of their behavior—it is not a product of mental illness.

Each criterion on the psychopathy checklist has behavioral manifestations that are readily observable. Of the 22 serial killers discussed in the book, 18 exhibit behavior symptomatic of antisocial personality disorder (or psychopathy). Most of them also had one or more sexual paraphilia or disorders.

Dobbert uses H.H. Holmes as one example. Holmes confessed to 27 murders around 1893 and was implicated in nearly 200 murders.

Ed Gein was the basis for the titular character in Psycho and the Buffalo Bill villain in The Silence of the Lambs.

Aileen Wuornos is the only female serial killer discussed. Female offenders are a rarity, almost an oxymoron. However, Wuornos was was never sexually aroused by her murders, so she doesn’t exactly fit the profiles of these other serial killers. Wuornos’s troubled youth and emotional impairment led to sexual promiscuity, prostitution, a failed suicide attempt, and criminal record of fraud and robbery.

She was responsible for six killings beginning in 1989, claiming they were clients who tried to rape and kill her.

The patterns of Dobbert’s book follow a sound investigative pattern: definitions create a solid foundation for the initial discussion, then specific cases are included that exhibit these ideas. Dobbert includes numerous cases and only discusses them briefly in a few pages (much like shorter articles), and then he concludes with a very brief summary to tie everything together. The result is a fascinating and informative read for both the forensic and investigative professional as well as the layperson interested in behavior and crime.

There is always a pattern. The psychopathy allows them to do whatever they please without thoughts of consequence or empathy, and the sexual pathology is the motivation towards their modus operandi to fulfill their twisted psychological needs. Recognizing this pattern and knowing the signs will help stop these individuals before they commit their first lust-driven homicide. n (800) 592-1399

Editors in Chief Allan Jamieson, Andre Moenssens

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Winter 2009 THE FORENSIC EXAMINER® 83

THE DETECTIVE’S CORNER—A FICTION MYSTERY

By Laird Long

How Does Your Garden Grow?

The Forensic Examiner is proud to announce its new fiction mystery feature, The Detective’s Corner. Read the mystery and make your predictions.

Then go online to www.acfei.com to find the solution.

As deputy sheriff Vance Castle stared at Cyrus King’s backyard vegetable garden, he duly noted that the rich, dark soil was missing something— vegetables.

“That no-good neighbor of mine—Buford Sheldrake—stole ‘em!” Cyrus hollered. He pointed at the empty ground, his bony finger shaking. “He’s jealous of my green thumb. Always has been.”

Vance rolled his eyes skyward. The only thing with more local history than the KingSheldrake feud was the town library. The two neighbors had been at one another’s throats for what seemed to the county police force like an eternity, each too stubborn to move away from the other.

“My carrots, onions, and potatoes were comin’ in bigger than ever this year,” Cyrus bragged and lamented. Everyone in town knew—and heard—how proud he was of his gardening abilities. “First row there was the carrots, second the onions, and last the potatoes. All gone.

Stolen.”

84 THE FORENSIC EXAMINER® Winter 2009

“Uh-huh.” Vance went down onto one knee, examining the soil. Holes which had obviously once held vegetables dotted the ground, the sprayed earth cresting the holes evidence of someone, or something, having torn the vegetables out. He looked up and down the plucked rows, seeing nothing that provided any sort of clue as to the identity of the culprit.

“Strange for a garden not to have any footprints in it,” he thought out loud.

“That two-legged varmint was careful, all right,” Cyrus groused. “Covered his tracks pretty darn well. But I know it was Sheldrake.”

Vance stuck his forefinger into one of the vacant holes in the first row. He went down to the third knuckle, then hit bottom. He grunted and got to his feet, brushing off his finger. “Let’s go talk to Buford.”

The deputy sheriff had to use his bulk to keep the two combative neighbors separated. Especially when Cyrus spotted Buford’s kitchen table through the back porch screen door—loaded with vegetables, carrots and onions and potatoes.

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“I knew he stole ‘em!” Cyrus exploded.

“There’s your evidence, Sheriff. Lock the no-good garden-raider up.”

Vance stepped into Buford’s kitchen, keeping Cyrus bottled up behind him.

“Where’d you get all the vegetables, Buford?” he asked.

The 80-year-old shook his head and shrugged his shoulders. “Found them on the back porch this morning. Someone left them there in this box here.” He picked up a cardboard box from a kitchen chair.

“A likely story,” Cyrus snorted from the rear.

Vance took the box from Buford. He turned it over, spilling dirt onto the kitchen tile. “Fresh-picked, huh?” he mused.

“You don’t grow any vegetables yourself, Buford?”

The man stared sullenly down at the floor. “Didn’t seem to have much luck with my garden this year. Especially with that late frost and all.”

“Got a black thumb is the problem,” Cyrus sneered. “Well, what’re you waitin’ for, Sheriff? Arrest him. Take him to jail. The evidence is right there in front of you.”

“Without any footprints or eye witnesses, it might be kind of tough proving Buford pulled these particular vegetables out of your particular garden, Cyrus,” Vance said.

The idea of hauling an old man off to jail

for an unauthorized garden party didn’t appeal to the deputy sheriff much. “Could’ve happened like he said.”

“It did,” Buford proclaimed. “Cyrus is just trying to make trouble for me, Sheriff.

I don’t know where these vegetables came from. Honest.”

“They came from my garden,” Cyrus retorted. “No one grows ‘em as good as I do.

Look at the size of those vegetables.”

Vance picked a couple of carrots up off the table and hefted them in his hand. “Big ones, all right. Foot-longs, at least.”

He thought for a moment, then suddenly swung around and faced Cyrus, pointing a carrot at the man’s chest. “These vegetables didn’t come from your garden,” the deputy sheriff pronounced. “Buford never raided your patch.”

“Sure they did. Sure he did,” Cyrus protested, turning pale.

“No, sir. That early frost hit your crop as bad as Buford’s, so you dug them up yourself. Then planted these store-boughts on your neighbor to cause him some grief. Too proud of your ‘green thumb’ to use your own vegetables.”

A quick survey of Cyrus’s composter turned up the actual harvest from the man’s garden, while a trash can yielded a receipt from the local supermarket for his purchase of a large quantity of carrots, onions, and potatoes.

How did Deputy Sheriff Castle know Buford Sheldrake was innocent? n

Go online to read the solution! www.acfei.com

ABOUT THE AUTHOR

The Forensic Examiner® Call for Submissions

Laird Long pounds out fiction in all genres. Big guy, sense of humor.Writing credits include: Blue Murder Magazine, Handheldcrime, Orchard Press Mysteries, Plots With Guns, Hardboiled, Thriller UK, Bullet, Robot, The Dark Krypt, Albedo One, Baen’s Universe, Sniplits, Woman’s World, 5 Minute Mystery, and stories in the anthologies The Mammoth Book of New Comic Fantasy,The Mammoth Book of Jacobean Whodunits, and The Mammoth Book of Perfect Crimes and Impossible Mysteries.

Share your expertise—submit an article on a forensic topic for potential publication in future issues of The Forensic Examiner®!

No matter what your specialty or interest in the forensic science arena, we’re sure you have important insight and information to share with fellow forensic professionals. The Forensic Examiner® includes scientific articles, case studies, new research in the areas of forensic information, and interviews with forensic professionals, and we will accept article submissions on any topic of interest to our diverse membership base.

Share your knowledge and experience with our readers!

Submit your articles to The Forensic Examiner® editorial department by e-mailing them to editor@acfei.com.

Visit www.theforensicexaminer.com or call (800) 423-9737 for more information. Any suggestions on improvements to The Forensic Examiner® publication? Please let us know; we are always open to suggestions!

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Winter 2009 THE FORENSIC EXAMINER® 85

STATEMENT OF OWNERSHIP, MANAGEMENT, AND CIRCULATION 1. Publication Title: The Forensic Examiner 2. Publication Number: 1084-5569 3. Filing Date: August 13, 2009 4. Issue Frequency: Quarterly 5. Number of Issues Published Annually: 4 6. Annual Subscription Price: $29.95 7. Complete Mailing Address of Known Office of Publication: 2750 E Sunshine, Springfield, MO 65804-2047, Greene County 8. Complete Mailing Address of Headquarters of General Business Office of Publisher: 2750 E Sunshine, Springfield, MO 65804-2047, Greene County 9. Full Names & Complete Mailing Addresses of Publisher, Editor, & Managing Editor: Publisher: Robert L. O’Block, 2750 E Sunshine, Springfield, MO 65804; Editor: Karissa Scott, 2750 E Sunshine, Springfield, MO 65804-2047 Managing Editor: Karissa Scott, 2750 E Sunshine, Springfield, MO 65804-2047 10. Owner: The American College of Forensic Examiners International, 2750 E Sunshine, Springfield, MO 65804-2047, Greene County 11. Known Bondholders, Mortgages, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None 12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) The purpose, function, & nonprofit status of this organization & exempt status for federal income tax purposes: Has Not Changed During Preceding 12 Months 13. Publication Title: The Forensic Examiner 14. Issue Date for Circulation Data Below: Fall 2009 15. Extent & Nature of Circulation: Average No. Copies Each Issue During Preceding 12 Months a. Total # of Copies (Net Press Run) b. Paid and/or Requested Circulation (1) Paid/Requested Outside-County Mail Subscriptions Stated on Form 3541 (Include advertiser’s proof & exchange copies) (2) Paid In-County Subscriptions Stated on Form 3541 (Include advertiser’s proof & exchange copies) (3) Sales Through Dealers & Carriers, Street Vendors, Counter Sales, & Other Non-USPS Paid Distribution (4) Other Classes Mailed Through the USPS c. Total Paid &/or Requested Circulation [Sum of 15b. (1), (2), (3), & (4)] d. Free Distribution by Mail (Samples, complimentary, & other free) (1) Outside-County as Stated on Form 3541 (2) In-County as Stated on Form 3541 (3) Other Classes Mailed Through the USPS (4) Free or Nominal Rate Distribution Outside the Mail e. Free Distribution Outside the Mail f. Total Free Distribution (Sum of 15d. & 15e.) g. Total Distribution (Sum of 15c. & 15f.) h. Copies not Distributed i. Total (Sum of 15g. and 15h.) j. Percent Paid &/or Requested Circulation (15c./ 15g. x 100)

No. Copies of Single Issue Published Nearest to Filing Date

12,433

10,800

6,961

6,730

17

23

3.483

3,388

217

223

10,678

10,364

27 79

28 77

151 20 277

230

0 335

625 10,955 1,478 12,433

600 10,699 101 10,800

97%

97%

16. Publication of Statement of Ownership: Publication required. Will be printed in the Winter 2009 issue of this publication.

17. Signature & Title of Editor: (Signed) Karissa Scott, Editor in Chief (Date) 08-14-09. I certify that all information furnished on this form is true & complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

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