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Principles and Approaches to Criminal Investigative Analysis Dr. Gregory M. Vecchi Explores the Art of the Crime Scene

The Relationship Between Virtual and Actual Aggression: Youth Exposure to Violent Media

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The American College of Forensic Examiners InstituteSM (ACFEI) is an independent, scientific, and professional society that serves as the national center for the continued advancement of forensic examination and consultation across the many professional fields of forensic science. There are five levels of membership and 13 different specialty boards designed to benefit you in your forensic specialty. Earn Continuing Education credits, receive The Forensic Examiner® in the mail, network with other members across disciplines, and take advantage of the membership credit card service and insurance benefits available to members today. Members can also market their services, works, or products on the ACFEI Web site or in The Forensic Examiner® at a reduced rate. Don’t wait to become a valued member of this growing and nationally recognized professional organization committed to benefiting you.

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ARE YOU A SOURCE EXPERT IN YOUR FIELD? Do you have experience, insight, and perspective about issues important to the American College of Forensic Examiners? Consider applying for a leadership position on one of the ACFEI Advisory Boards to set the direction for the future development of ACFEI. Your service on the board is an important contribution to the forensic profession. It is a distinct honor to be appointed to the advisory board position, but it is also a position that carries responsibility and dedication. Every board member must participate in the discussion of issues, as your expertise and advice is vital in creating an association that is most responsive to the needs of the membership that you represent. Each board member’s opinion and perspective is valuable in reaching a final decision that benefits thousands of ACFEI members. Board members are required to: • Attend annual meetings • Assist in developing the National Conference con-

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Currently, we are accepting submissions for board positions on the following ACFEI advisory boards: • American Board of Forensic Examiners • American Board of Forensic Accounting • American Board of Forensic Dentistry • American Board of Forensic Nursing • American Board of Forensic Medicine • American Board of Critical Incident Professionals • American Board of Recorded Evidence • American Board of Forensic Counselors • American Board of Forensic Social Workers • American Board of Forensic Dentistry • American Board of Forensic Engineering & Technology • American Board of Psychological Specialties

If you are interested in serving on any of the above boards for the 2009 term, please submit your resume to Bob Philibert, Chief Association Officer, at bob@acfei.com. Please do not hesitate to call (800) 423-9737, ext. 177 with any questions. (800) 592-1399

Summer 2009 THE FORENSIC EXAMINER® 3

THE

FORENSIC

EXAMINER

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

VOLUME 18 • NUMBER 2 • Summer 2009

COVER STORY

CONFERENCE PREVIEW: Forensic Science in Las Vegas!

FEATURES 8

Principles and Approaches to Criminal Investigative Analysis: Part 1 of 4 By Gregory M.Vecchi, PhD, CFC, CHS-V

Ethics, and Advo26 Disability, cacy:The Duty of Clinicians to Their Disabled Patients By Randy Noblitt, PhD, FACFEI, and Pamela Perskin Noblitt

32 The Relationship Between

Virtual and Actual Aggression: Youth Exposure to Violent Media By Monique Levermore, PhD, and Gina Salisbury, PsyD

4 THE FORENSIC EXAMINER® Summer 2009

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ALSO IN THIS ISSUE 89 Book Reviews 92

An Interview with Michael Kessler

94 Falsely Accused

CASE STUDIES An Atypical Autoerotic Accidental 70 “Plasterman”: Death by Mechanical Asphyxiation By Norman R. Goodman, DABFE, DDS, and Gary Hartung Insurance Claim Denied: Justly or Unjustly? 74 Disability By Larry Schneider

77 77

Fishbowl the Forensic Accountant: A Closer Look at the Skills Accounting Education Should Emphasize By James DiGabriele, DPS, CPA/ABV/CFF, CFSA, FACFEI, Cr.FA, CVA

Francis Camps: Inside the Palace of Truth By Katherine Ramsland, PhD, CMI-V

The Battle of the Sexes: The Nature of Female Delinquincy By Bruce Gross, PhD, JD, MBA

Monitors 46 Activity aka: Cell Phone and Com-

puter Eavesdroppers By Louis L. Akin, LPI

When Worlds Collide: Criminal Investigative Analysis, Forensic Psychology, and the Timothy Masters Case

By Frank S. Perri, JD, MBA, CPA, and Terrence G. Lichtenwald, PhD, LF, DABFE, DABFM

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Summer 2009 THE FORENSIC EXAMINER® 5

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

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

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

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ACFEI EXECUTIVE ADVISORY BOARD CHAIR: David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, CMI-V, CHS-V, DABFE, DABFM, DABECI, FACA, FAPA, MTAPA, FAAIM VICE CHAIR: Michael Fitting Karagiozis, DO, MBA, CMI-V, CFP MEMBERS: John H. Bridges III, DSc (Hon), CHS-V, CHMM, CSHM, DABCHS, FACFEI Cam Cope, MS, DABFET, DABFE; Chair, American Board of Forensic Engineering and Technology Dianne Ditmer, MS, RN, CFN, CMI-III, CHS-III, FACFEI, DABFN, CMI-III; Chair, American Board of Forensic Nursing Douglas E. Fountain, PhD, LCSW, DABFE, DABFSW Raymond F. Hanbury, PhD, FACFEI, DABPS, DABFE, CHSIII, ABPP Lee Heath, DABLEE, CHS-V Brian L. Karasic, DMD, MScFin, FACFEI, DABFD, DABFM, DABFE, MOA, CMI-IV, FAAIM Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Thomas J. Owen, BA, FACFEI, DABRE, DABFE, CHS-V Dennis Thibodeaux, MCSEm CHS-V; Chair, American Board of Information Security and Computing Forensics 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 for Certification in Homeland Security Executive Committee: Chairman of the Executive Board for Certification in Homeland Security: John H. Bridges III, CHS-V, CHMM, CSHM, DABCHS, FACFEI Andrew J. Jurchenko Sr., Col US Army (Ret), CHS-V, DABCHS, MMA-HRD, IT, ASPI, FIT, OCIT, BSLI Rev. LZ Johnson, Col. US Army (Ret), BS, BA, CHS-V, DABCHS Members of the Executive Board for Certification in Homeland Security: Nick Bacon, CHS-V, DABCHS E. Robert Bertolli, OD, BS, FACFEI, DABCHS, CHS-V, CMI-V Brig. Gen. (Ret) J. Ronald Carey, PhD, DABCHS, CHS-V Barbara B. Citarella, RN, BSN, MS, CHCE, CHS-V Barry S. Dembo, JD, CHS-III Henry L. Homrighaus, Jr., CHS-V, DABCHS, PSNA Billy Ray Jackson, ATS, CSC, DABCHS, CHS-V David L. Johnson, US Army (Ret), CHS-V, DABCHS, AAS, MSG Robert L. McAlister, BS, CHS-V, CUSA, ARM, US Marine Corp (Ret), OASI-IM Janet M. Schwartz, PhD, FACFEI, DABFE, DABFM, DABPS, DABCHS, CHS-V, DAPA, NCC, NCP, CDP-I Edward W. Wallace, CHS-V, Detective 1st Grade (Ret.), MA, DABCHS, SCSA, LPI, CFI I & II, CDHSI Eric White, BS, CHS-V, DABCHS American Board of Critical Incident Professionals Chair of the Executive Board of Critical Incident Professionals: Gregory M.Vecchi, PhD, CFC, CHS-V, DABLEE, DABCIP Vice Chair: Kent A. Rensin, PhD, DABCIP Monica J. Beer, PhD Sam D. Bernard, PhD, DABCIP, CHS-III Marie Leeds Geron, PhD, CHS-V, DABCIP Raymond H. Hamden, PhD, FACFEI, DABPS, DABCIP, DABCHS, DAPA, CFC, CMI-V, CHS-V Tina Jaeckle, CFC Marshall A. Jones, MS, DABCIP Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Rev. Roger Rickman, ThD, MBA, ACC, CFC, CHS-V, CMI-I, SSI, CRS, DABCHS, DABCIP, DAPA, FABI, PI, SCS, FAAIM Debra Russell, PhD, CMI-V, CHS-III, CRC, CISM, DABCIP Dorriss “Ed” Smith, Col. US Army, CHS-V, DABCIP Vincent B.Van Hasselt, PhD, DABCIP Alan E. Williams, MS, CHS-V, DABCIP American Board of Forensic AccountING Chair of the Executive Board of Accounting Advisors: Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE Chair Emeritus: J. Bradley Sargent, CPA, CFS, Cr.FA, DABFA, FACFEI Stewart L. Appelrouth, CPA, CFLM, CVA, DABFA, Cr.FA, ABV, FACFEI Gary Bloome, CPA, Cr.FA Alexander Lamar Casparis, CPA, CVA, MBA,Cr.FA D. Larry Crumbley, PhD, CPA, DABFA, Cr.FA, CFFA, FCPA June M. Dively, CPA, DABFA, Cr.FA Michael W. Feinberg, CPA, Cr.FA David Firestone, CPA, Cr.FA Mark S. Gottlieb, CPA/ABV/CFF, CVA, CBA, DABFA, MST David H. Glusman, CPA, FACFEI, DABFA, Cr.FA Eric A. Kreuter, PhD, CPA, CMA, CFM, FACFEI, DABFA, SPHR, CFD, CFFA, BCFT Robert K. Minniti, CPA, MBA, Cr.FA Dennis S. Neier, CPA, DABFA Kim J. Onisko, CPA, Cr.FA Joseph F. Wheeler, CPA, Cr.FA, CHS-III, CFF, CAMS American Board of Forensic Counselors Chair of the Executive Board of Forensic Counselors: Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Vice Chair: Steven M. Crimando, MA, CHS-III Chair Emeritus: Dow R. Pursley, EdD, DABFC Irene Abrego Nicolet, PhD, DABFC, MA George Bishop, LPC, LAT, LAC, FACFEI, DABFE Laura W. Kelley, PhD, LPC, DABFC, FACFEI Robert E. Longo, FACFEI, DABFC Kathleen Joy Walsh Moore, DABFC, CHS-III DeeAnna Merz Nagel, MEd, LPC, CRC, DCC, CFC Hirsch L. Silverman, PhD, FACFEI, DABFC, DABFE, DABFM, DABPS William M. Sloane, JD, LLM, PhD, FACFEI, DABFC, CHS-III, CMI-I, DACC, DCPC, FAAIM, FACC, MTAPA Gary Smith, MEd, FACFEI, DABFE Ava Gay Taylor, MS, LPC, DABFC, FACFEI American Board of Forensic Dentistry Chair of the Executive Board of Forensic Dentistry: Brian L. Karasic, DMD, MBA, MScFin, FACFEI, DABFD, DABFM, DABFE Members of the Executive Board of Dental Advisors: Ira J. Adler, DDS, DABFD

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

American Board of Forensic Nursing Chair of the Executive Board of Nursing Advisors: Dianne T. Ditmer, MS, RN, CFN, CMI-III, CHS-III, FACFEI, DABFN, CMI-III; Chair,American Board of Forensic Nursing Heidi H. Bale, RN, CFN, CCHP Marilyn A. Bello, RNC, MS, CMI-IV, CFC, CFN, SAFE, DABFN, DABFE Wanda S. Broner, MSN, RN, FNE, CEN Cynthia J. Curtsinger, RN, CFN Linda J. Doyle, RN, CLNC, CFN, CMI-III L. Sue Gabriel, EdD, MSN, MFS, RN, Diane L. Reboy, MS, RN, CFN, LNCC, FACFEI, DABFN, CNLCP Elizabeth N. Russell, RN, BSN, CCM, BC, DABFN, FACFEI LeAnn Schlamb, MSN, RN-BC, CFN, DABFN Sharon L. Walker, MPH, PhD, RN, CFN Carol A. Wood, RN, CFN, BS, NHA American Board of Forensic Social Workers Chair of the Executive Board of Social Work Advisors: Douglas E. Fountain, PhD, LCSW, FACFEI, DABFE, DABFSW Chair Emeritus: Karen M. Zimmerman, MSW, DABFSW, DABFE Susan L. Burton, MA, MSW, LMSW, DABFSW, DABLEE Judith V. Caprez, MSW, ACS, LCSW, DABFSW Peter W. Choate, BA, MSW, DABFSW, DABFE Judith Felton Logue, PhD, FACFEI, DABFE, DABFSW, DABPS, DABFM Michael G. Meacham, PhD, LCSW, DCSW, FACFEI, DABFSW Kathleen Monahan, DSW, MSW, CFC, DABFE Susan P. Robbins, PhD, LCSW, DCSW, BCD, LDC, DABFSW Steven J. Sprengelmeyer, MSW, MA, FACFEI, DABFSW, DABFE, LISW American Board of Law Enforcement Experts Chair of the Executive Board of Law Enforcement Experts: Lee Heath, DABLEE, CHS-V Vice Chair: Darrell C. Hawkins, JD, CHS-III, DABLEE, DABFE, CMI-V Chair Emeritus: Michael W. Homick, PhD, CHS-V, DABCHS Alan Bock, CHS-III, DABLEE Tom Brady, CHS-V, DABLEE Gregory M. Cooper, MPA, DABLEE Dickson S. Diamond, MD, CHS-III, DABLEE, DABFM John E. Douglas, EdD, FACFEI, DABFE, DABLEE Les M. Landau, DO, CHS-III, FACFEI, DABLEE, DABFE, DABFM Ronald G. Lanfranchi, PhD, DC, CMI-IV, FACFEI, DABLEE, DABFE, DABFM Leonard Morgenbesser, PhD, DABFE, FACFEI Hank Paine III, PhD, CHS-IV, DABLEE, DABFC, FACFEI John T. Pompi, BA, DABLEE, DABFE, CHS-III Stephen Russell, BS, DABLEE, CMI-II, CHS-III Gregory M.Vecchi, PhD, CFC, CHS-V, DABLEE, DABCIP Oscar Villanueva, CHS-V, DABLEE David E. Zeldin, MA, CHS-III, FACFEI, DABFE, DABLEE American Board of Psychological Specialties Chair of the Executive Board of Psychological Advisors: Raymond F. Hanbury, PhD, FACFEI, DABPS, DABFE, CHS-III, ABPP Vice Chair: Raymond H. Hamden, PhD, FACFEI, DABPS, DABCIP, DABCHS, DAPA, CFC, CMI-V, CHS-V Chair Emeritus: Carl N. Edwards, PhD, JD, FAAFS, FICPP, FACFEI, DABPS, DABFE Carol J. Armstrong, PhD, LPC, DABPS Robert J. Barth, PhD, DABPS Monica J. Beer, PhD John Brick III, PhD, MA, FAPA, FACFEI, DABFE, DABPS Alan E. Brooker, PhD, FACFEI, DABPS, DABFM, DABFE, CMI-III, ABPP-Cn Brian R. Costello, PhD, FACFEI, DABPS, DABFE Ronna F. Dillon, PhD, DABPS, DABFE, CMI-V, CHS-III Brent Van Dorsten, PhD, FACFEI, DABFE, DABFM, DABPS Douglas P. Gibson, PsyD, MPH, DABPS, CMI-V, CHS-III Mark Goldstein, PhD, DABFE, DABPS, FACFEI Thomas L. Hustak, PhD, FACFEI, DABPS, DABFE Richard Lewis Levenson Jr., PsyD, FACFEI, DABPS, DABFE, CTS, FAAETS Stephen P. McCary, PhD, JD, FACFEI, DABFE, DABFM, DABPS, FAACP, DAPA Helen D. Pratt, PhD, FACFEI, DABPS Douglas H. Ruben, PhD, FACFEI, DABPS, DABFE, DABFM Richard M. Skaff, PsyD, DABPS Zug G. Standing Bear, PhD, FACFEI, DABFE, DABFM 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

Summer 2009 THE FORENSIC EXAMINER® 7

CASE STUDY

PART 1

For purposes 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 format 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. Introduction Criminal investigations are analogous to a jigsaw puzzle, where investigators have only some of the jigsaw pieces and no picture on the box to guide them to where the pieces belong. Therefore, in order to complete the investigation, investigators have to go to many sources to collect as many of the pieces as possible in order to put them together to form the finished “picture” of the crime. Unfortunately, the investigator rarely has all the pieces, so he or she must collect them from many different sources, such as victims, witnesses, complainants, suspects, the crime scene, and document archives. Some of these sources willingly give up the pieces, while others purposely hide the pieces or don’t even realize they have them. Some of the pieces are never found. Sources of information and criminal intelligence assist the investigator in finding these pieces and putting them together to prove or disprove a criminal offense.

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

Principles and Approaches to Criminal Investigation, Part 1 The views expressed in this article do not necessarily represent the views of the FBI. 8 THE FORENSIC EXAMINER® Summer 2009

Nature of Investigations Investigations can be complaint-driven or intelligence-driven in nature. Complaint-driven investigations are reactive in nature and are the result of a person or entity that brings an alleged crime to the attention of law enforcement authorities. www.acfei.com

Individual complainants may include victims of crimes, witnesses to crimes, informants, or even the perpetrators themselves. Victims of property crimes are by far the most common complainants. Entity complainants may include other law enforcement agencies that refer various criminal allegations to other agencies outside of their jurisdictions or health-care institutions that refer child abuse allegations to law enforcement agencies (Lyman, 2008; Osterburg & Ward, 2007). Intelligence-driven investigations are proactive in nature and require investigators to ferret out the elements of the crime on their own. These crimes are often “victimless” or covert in nature, such as investigations involving drugs, gangs, organized crime, vice, terrorism, or foreign counter-intelligence. Intelligence-driven investigations often involve the tasking of cooperating witnesses, informants, and assets to obtain intelligence and conduct operations. Elements of the Crime All criminal investigators have one overall goal in mind: to find the truth! It is important that the investigator remains neutral and lets the facts drive the investigation, not the other way around. If the facts do not support the allegations, then the investigator must clear the allegations and shut down the case. However, if the facts do support the allegations, then the investigator must put the best possible case together for prosecution based on the facts of the case proving the elements of the crime (Department of the Army, 1985; Lyman, 2008; Osterburg & Ward, 2007). All criminal statutes, whether they are local-, state-, or federal-based, contain certain elements that must be proven and presented in a court of law in order to convict a person or entity of a crime. For example, to charge first degree murder, it must be proved that the perpetrator caused the death of another person (element one) with either the intent or knowledge that his or her actions would result in death (element two). In this definition, the investigator has to prove both elements of the crime in order for a court to hear the case as first degree murder. If the investigator could not uncover enough facts to prove element two (intent or knowledge), then the same set of circumstances may be charged as a lesser crime, such as second degree murder or negligent homicide.

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Investigative Plan Once the investigator understands the nature of the investigation (complaint- or intelligencedriven) and determines the alleged crime and its elements, it is necessary to compile an investigative plan. The investigative plan should detail the direction of the case, types of investigative techniques to be employed, and the resources needed to complete and prosecute the investigation (Department of the Army, 1985). The direction of the case involves intermediate goals or tasks that are logical from a given point in the investigation. It is important to remember that these goals or tasks often change as additional facts are uncovered. For example, an investigator may begin an arson investigation by planning to interview the victim-owner of the burned building, canvassing the area for witnesses, and processing the crime scene. As the investigation unfolds and facts are developed, the investigative plan may change to include interrogating the “victim.” This may involve checking his insurance policies as a result of finding a cigarette lighter with the “victim’s” fingerprints and an eye-witness report that the “victim” started the fire himself to collect the insurance proceeds (Lyman, 2008; Osterburg & Ward, 2007). The direction of the case determines the logical investigative techniques to be employed, which triggers specific procedures and protocols. In the example above, processing the arson crime scene may involve finding the point of origin; eliminating natural causes; and the identification of ignition devices, accelerants, and trailers. Obtaining latent prints off the lighter will require powder and lifting tape or a superglue chamber (Lyman, 2008; Osterburg & Ward, 2007). Resources are critical to a thorough investigation and are necessary to carry out investigative techniques. Manpower availability, compensation, equipment, and supplies are critical

The Forensic Examiner is proud to begin a series of articles on criminal investigation by Dr. Gregory M. Vecchi, Unit Chief of the Behavioral Science Unit at the FBI Academy in Quantico, Virginia.

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

Summer 2009 THE FORENSIC EXAMINER® 9

“the most important consideration with regards to human sources is reliability. if a source cannot be proved reliable, then everything he or she says or does becomes questionable and suspect, especially in court.”

to meeting the goals and tasks of the investigative plan, as they enable the completion of investigative techniques. In our arson example, it will take the commitment and compensation of crime scene technicians aided by special equipment and supplies to properly process the arson crime scene (Lyman, 2008; Osterburg & Ward, 2007). Selling the Case to Your Agency and the Prosecutor Investigators compete for limited resources that include money and manpower. As a result, many investigations end up not being as thorough as intended because of this competition for limited resources. As such, it is crucial that the investigator demonstrate an understanding of the nature of the investigation, the elements of the crime, and the development of a well-conceived investigative plan in order to pave the way for the completion of a thorough investigation. This is accomplished by ensuring that the agency heads understand and approve the resources needed beforehand or as soon as needs arise. Agency managers are the gatekeepers of conducting a thorough investigation. No matter how well conceived and successful the investigation, the investigator must be able to articulate the facts of the case in a manner that enables prosecution. Prosecutors are the gatekeepers of the courts who ultimately determine whether a case is accepted and prosecuted. As such, it is essential that the investigator coordinate and collaborate with the prosecutor early on in the investigation in order to provide the prosecutor with a sense of ownership and participation throughout the investigation. In this way, the prosecutor becomes a stakeholder in the success of the investigation and will be more willing to see it through even if weaknesses exist. Sources of Information Sources of information can generally be either documentary or human in nature. Documentary sources of information include any sort of paper or electronic sources, such as criminal and DMV histories, financial documents, old case files, court files, court testimony, transcripts, mail covers, trash pulls, medical or psychological records, licenses, corporate indices, telephone or utility records, or other archival information. The Internet and Internet-based archival servic-

10 THE FORENSIC EXAMINER® Summer 2009

es afford investigators a wide array of archival sources of information. Human sources are by far among the most valuable sources of information available to investigators. Human sources are known by many different terms: informants, assets, and cooperating witnesses. Whatever their label, all human sources voluntarily provide specific information of value for a particular case. This information may be nothing more than background information, or it may be operational “street” information (Billingsley, Nemitz, & Bean, 2001; Mallory, 2000; Morris, 1983). The most important consideration with regards to human sources is reliability. If a source cannot be proved reliable, then everything he or she says or does becomes questionable and suspect, especially in court. Many cases have been lost in court due to unreliability. One method of testing a source’s reliability is to ask the source questions to which the investigator already knows the answer or by verifying the veracity of the source’s information through prior knowledge (Billingsley, Nemitz, & Bean, 2001; Mallory, 2000; Morris, 1983). For example, without the source’s knowledge, park a car at a specific location and then ask the source to travel to that location and obtain the license plates of all cars parked in the parking lot. If the source is reliable, the tag from the car parked there should be among the other tag numbers. A policy of “trust but verify” should be used with all human sources as a way to check the veracity of the information and continually assess reliability. Motive is another important factor in determining reliability and continued cooperation of human sources. People will provide information for a number of reasons. The most common reasons for cooperating are money and making deals with the prosecutor (Billingsley, Nemitz, & Bean, 2001; Mallory, 2000; Morris, 1983). Other reasons can be political or altruistic. Frequently, sources are not truthful as to their real motivations, as many claim altruistic motivations when their real motivation is money. Some will claim money as their motivation when their real reason is to inform on their competition, especially in drug investigations. It has been said that informants, drug evidence, and money are among the investigator’s biggest problems with regards to accountability and temptation. There have been several sensational headlines concerning the misuse of huwww.acfei.com

man sources. For example, Mark Putnam, an FBI agent in Kentucky, strangled an informant in 1989 after she threatened to expose their sexual affair and her pregnancy (Associated Press, 1990). In April 2003, authorities in Los Angeles arrested a Chinese-American informant and alleged that she carried on sexual affairs with two FBI counterintelligence agents who supervised her activities. The informant, Katrina Leung, allegedly passed classified information to the Chinese government (Lichtblau, 2006). Because of the inherent risks associated with handling human sources, they must be managed very carefully to protect the integrity and reputation of the investigator, the investigative agency, and the source. Behavior must be avoided that could lead to the appearance of misconduct or sloppy investigative practices. Human sources can be open or confidential. The investigator should strive to protect the identity of all confidential human sources. This not only protects the integrity of the investigation, but it provides safety to the source as well. In most cases, numbers or pseudonyms are used in place of the source’s true name on reports and audio recordings, and these identifiers are cataloged and kept confidential by only those who have a need to know (Lyman, 2008; Osterburg & Ward, 2007). A control investigator (the primary handler) and one alternate investigator (secondary handler) should be assigned to each human source. These individuals develop the source and control all contacts. In this way, the confidentiality of the source and the integrity of the investigation can be maintained. This arrangement also results in better rapport and cooperation between the handlers and the source. When dealing with human sources, handlers should maintain rapport by keeping appointments, not becoming anxious, and showing appreciation for all services no matter what their value. In addition, the handlers should not make promises they cannot keep. One common rapport-destroying mistake made by handlers is to promise a source that he or she will never have to testify. It is ultimately up to the judge as to whether or not a source will be compelled to testify in court, and it is important to relay this information to the source (if asked about it by the source) so the source can make an informed decision with regards to cooperation. A common method to reduce the likelihood of a (800) 592-1399

source testifying in undercover investigations is to have the source introduce an undercover officer to the suspect in order to “cut the source out” of the deal as soon as possible (Billingsley, Nemitz, & Bean, 2001; Mallory, 2000; Morris, 1983). Criminal Intelligence Criminal intelligence obtained from various sources drive the direction of the investigation, especially with regards to cases where a suspect has not been identified or in cases where certain indicators point to a specific person but no concrete evidence has been obtained to either charge or clear that person. Through talking with many people (i.e., victims, witnesses, complainants, accusers, suspects, etc.) and looking through documents (i.e., old cases, court testimony, criminal histories, background information, etc.), criminal intelligence is obtained. It is up to the investigator to take each piece of criminal intelligence and weigh its value against other criminal intelligence pieces and evidence obtained in the case thus far (Lyman, 2008; Osterburg & Ward, 2007). Sometimes criminal intelligence doesn’t make sense until later on in the investigation and only after new pieces of information are gleaned. Here’s an example: In the initial stages of an investigation, a strand of human hair is obtained at a murder scene involving the death of a prostitute. This trace evidence is determined not to be that of the victim. However, later, through a canvass of the neighborhood, witnesses describe a car that was present at the victim’s house near the time of death. A partial license plate check leads the investigator to the home of John Smith. A subsequent search of Smith’s vehicle reveals human hair that matches the DNA of the hair found at the victim’s residence. Subsequently, Smith provides a hair sample, which matches the two other hair samples. This leads to an interrogation of Smith, who confesses to killing the prostitute with a knife, which is later found at Smith’s residence. The blood on the knife is tested, which matches that of the victim’s blood. As you can see, this building of criminal intelligence and comparing its value against the totality of the investigation is the key to completing the “jigsaw puzzle.”

Summer 2009 THE FORENSIC EXAMINER® 11

Introduction to Physical Evidence The “evidence” coin consists of two sides. One side is physical evidence and the other side is testimonial evidence. Physical evidence is important because, unlike testimonial evidence, it alone can establish the guilt of a person in a court of law. For example, a person cannot usually be convicted on the basis of an uncorroborated confession, as there must be either direct or circumstantial evidence that raises an inference of the truth of the essential facts of the confession. Conversely, a person can be convicted of a crime without testimonial evidence as long as the physical evidence is strong enough. There are two classifications of physical evidence: direct and circumstantial. Direct evidence is evidence that stands on its own in proving or refuting the facts at issue. Circumstantial evidence is evidence that indirectly proves facts from inference. Most forensic crime scene evidence is circumstantial. Physical evidence can be useful in many ways. Tool mark evidence may link a person who uses a certain tool with the crime scene. For example, a tool mark from a crime scene can be compared with a tool mark found on the property of a suspect. Laundry marks may be left behind in violent crime scenes. Examples include laundry marks torn from a suspect’s clothing and left at the crime scene or a victim being identified through laundry marks found on the street. Soils, rocks, and minerals from the crime scene are valuable as sample comparisons when compared with like samples on the suspect’s clothes. For physical evidence to be the most useful, the investigator must not only collect it skillfully but be careful in its handling and preservation for laboratory analysis and storage. In order for physical evidence to retain its evidentiary integrity, the investigator must strive to keep the item as near as possible to its original condition. In addition, a chain of custody must accompany the evidence from the time it is collected to the time it no longer is considered evidence. The chain of custody is a chronological, written record of who has had control of the item at any given time. 12 THE FORENSIC EXAMINER® Summer 2009

It is important that the investigator who first receives, recovers, or discovers physical evidence be able to identify such evidence positively at a later date in court. In doing so, the evidence must be marked and tagged. If possible, the investigator should place his or her initials directly on the evidence. If the evidence cannot be marked, then the initials and all identifying data should be placed on the container in which the evidence was placed. Physical evidence should be evaluated in light of the circumstances and conditions found at the crime scene. Each piece should be evaluated individually and collectively in relation to all other evidence. If in doubt about a particular item, the investigator should secure it as evidence until its value can be determined later. It is always better to take potentially valuable evidence \as it may not be available for collection later. Crime Scene Processing At the heart of collecting physical evidence is crime scene processing. Crime scene processing involves helping victims; safeguarding the scene; recording the scene in notes, sketches, and photographs; searching the scene for evidence; and collecting, processing, and preserving evidence that is found. Preserving the Crime Scene Upon arriving at the scene, the investigator should have the scene secured so it can be preserved. If there are any victims at the scene, they must be helped and moved from the scene as soon as possible (Department of the Army, 1985; Fisher, 2004; Ogle, 2007). It is important to determine the boundaries of the scene before securing it. The best physical evidence is found most often at or near the site of the most critical action, such as near a dead body or the site of forced entry of a building. The boundaries are sometimes hard to define because oftentimes valuable evidence is discarded or mistakenly left by the suspect some distance from the area of critical action (Department of the Army, 1985; Fisher, 2004; Ogle, 2007).

Once the scene is secured, it is important not to aimlessly walk about the scene for fear of destroying impression evidence on the ground, touching doorknobs and light switches that may have valuable fingerprints, or using the toilet or towels that may have valuable trace evidence or bodily fluids. It is critical that nothing is disturbed or removed from the crime scene without the lead investigator’s knowledge and approval. Keep all witnesses, victims, and suspects separated from each other until they can be interviewed. Inform them not to discuss the case with anyone, especially the media. Also make note of the condition of all doors, windows, lights, blinds, and odors (Department of the Army, 1985). Searching the Crime Scene Under most circumstances, there is only one chance to search the scene properly. As such, it is important that the investigator make a good preliminary survey before embarking on the search. First, the investigator should take into consideration all the information and opinions that preceded him or her on the scene. Second, without entering the scene, make a note of items, conditions, and locations that seem to be of greatest importance. Photograph the scene if possible. Third, obtain statements from witnesses and background information on any victims. Finally, decide on what order to process and collect items of evidence (Department of the Army, 1985; Fisher, 2004; Ogle, 2007). Once search assignments have been made, the investigator should ensure that only one person is assigned to collect the evidence. As evidence is located, it must be protected until it is collected. The search pattern can be a circle search, strip search, grid search, or zone/sector search, depending on the type of crime scene. In small areas, a circle search usually suffices, whereas in larger areas, a strip search followed by a grid search may be preferred. Both small and large areas may be searched using the zone/sector searches.

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Processing and Collecting Evidence The following general rules apply to processing and collecting evidence (Department of the Army, 1985; Fisher, 2004; Ogle, 2007): • Give first priority to fragile evidence that can be altered by time or the elements. • Collect items that could impede the search of the scene. • Have the investigator’s initials and the date and time of discovery on each piece of evidence or container of evidence. • Examine, photograph, sketch, record, and collect major evidence in the order that is most logical. • In death scenes, process the evidence between the point of entry to the scene and the body. Then make a detailed search of the body and remove it. • After processing major evidence, search for and collect trace evidence. • Make elimination prints of investigators and others who had access to the crime scene. The following specific rules apply to processing the crime scene (Department of the Army, 1985; Fisher, 2004; Ogle, 2007): • Respond to notification (record time, date, and location; identify persons related to incident; learn who, what, when, where, how, and why of incident). • Take initial actions on arrival at scene (weather, security, decide search method). • Scan the scene (view central items and their location, check for injured persons, note fragile evidence). • Check seemingly dead victims for signs of life (pulse, skin color, responses, wounds, bleeding). • Respond to arrival of the doctor (identify doctor, name of facility where victim will be taken). • Record the actions of the doctor (time pronounced dead, opinion of cause of death, copy of death certificate, time and date of autopsy). • Begin drawing rough camera sketch to depict camera positions and distances. • Record overall observations, actions, and descriptions in notes. For the scene, describe floor, walls, ceiling, entrance, exit, windows and screens, (800) 592-1399

natural lighting conditions, appliances and utilities, ashtrays, trash cans, furniture and damage, and visible personal items and clothing. For evidence, describe the quantity, item, color, type of construction, approximate size, identifying features, and condition. • Begin drawing a rough sketch showing placement of evidence and citing measurements and triangulation of scene and evidence. • Make a first re-check of the scene. • Begin collecting and preserving evidence (check each item for trace evidence, note marks or features, mark and tag each item). • Ready the body for release (check under the victim for evidence and hidden wounds, bag the hands, wrap body in linen and place into clean body bag, release body to ambulance driver, take photographs of where body was located). • Make a second re-check (dust for prints, perform exploratory searches of furniture, process and collect any new evidence). • Make additional re-checks until evidence results are negative. • Check beyond the scene (search beyond the scene, expand scene if evidence is found, take more photographs and prepare another sketch). • Release or secure the scene (obtain full identification of the person who scene released or determine further security requirements). Preserving the Evidence It is the responsibility of the lead investigator to ensure that all precautions are taken to preserve the evidence in its original state until its disposition. The main requirement is to protect the evidence and minimize its potential for change. It is important to wear protective gloves and handle the evidence as little as possible, being mindful to use clean containers and watching for cross exchange and cross contamination. Once the evidence is carefully collected, the investigator must execute a chain of custody and store the evidence in the proper environment (Department of the Army, 1985; Fisher, 2004; Ogle, 2007).

Conclusion The level of success an investigator enjoys is a function of the expertise and resources of the criminal investigator, the extent to which criminal justice agencies allow the criminal investigator to do his or her job, and the ability of the investigator to sell the case to prosecutors. Sources of information and the criminal intelligence they produce are critical elements to successful investigations. It is important that investigators have a clear understanding of how to properly assess and handle sources of information so that the resultant criminal intelligence is accurate and useful in furthering the investigation. Physical evidence is crucial to proving the elements of a crime, and it alone can establish guilt. On the contrary, physical evidence can also clear a person or disprove a crime. The way evidence is handled, processed, and preserved has a direct effect on the value of the evidence in determining the truth of the matter under investigation. As such, it is critical that the investigator have a clear understanding of how to properly secure and search the crime scene, as well as properly processing, collecting, and preserving relevant physical evidence. References Associated Press. (1990). Ex-FBI agent admits slaying and gets 16 years. Retrieved April 14, 2009, from http://www.nytimes.com/1990/06/13/us/ex-fbiagent-admits-slaying-and-gets-16-years.html Billingsley, R., Nemitz, T., & Bean, P. (Eds.). (2001). Informers: Policing, policy, practice. Portland, OR: Willan Publishing. Department of the Army. (1985). Law enforcement investigations. Washington, DC: Author. Fisher, B. A. J. (2004). Techniques of crime scene investigation (7th ed.). Boca Raton, FL: CRC Press. Lichtblau, E. (2006). FBI missed many ‘red flags’ on key informer, review finds. Retrieved April 14, 2009, from http://www.nytimes.com/2006/05/25/ washington/25spy.html?_r=1 Lyman, M. D. (2008). Criminal investigation: The art and science (5th ed.). Upper Saddle River, NJ: Prentice Hall. Mallory, S. L. (2000). Informants: Development and management. Incline Village, NV: Copperhouse Publishing. Morris, J. (1983). Police informant management. Loomis, CA: Palmer Enterprises. Ogle, R. R. (2007). Crime scene investigation and reconstruction (2nd ed.). Upper Saddle River, NJ: Pearson Prentice Hall. Osterburg, J. W., & Ward, R. H. (2007). Criminal investigation: A method for reconstructing the past (5th ed.). Newark, NJ: Lexis-Nexis. n Summer 2009 THE FORENSIC EXAMINER® 13

2009 NATIONAL CONFERENCE

National Conference Features Forensic Information in an Animated Setting

erious forensic science professionals, networking opportunities, and lively Las Vegas—they’ll all go together at the 2009 National Conference of the American College of Forensic Examiners. The Las Vegas venue offers numerous forms of entertainment, attractions, and economical accommodations that will allow attendees to experience everything the city has to offer, including the appealing programs offered at the Conference. The ACFEI programs, running from October 14th through October 16th, offer members the chance to meet and network with fellow professionals, as well as make the National Conference a must-attend meeting for hundreds of forensic science experts from across the nation and around the world. The ACFEI meeting coincides with annual meetings of its sister associations— the American Board for Certification in Homeland Security (ABCHS), American Psychotherapy Association (APA), and the American Association of Integrative

14 THE FORENSIC EXAMINER® Summer 2009

Medicine (AAIM)—making it a great opportunity to establish cross-discipline contacts with other professionals and to take in programs offered by the other organizations. Outstanding Programs The schedule for the conference begins on Page 15, and a conference registration form appears on Page 25. Registration is even easier online at www.acfei.com or by calling (800) 423-9737. Central to the conference is the opportunity to learn from the best. October 15th will feature two presentations by the legendary Frank Abagnale, who is one of the world’s most respected authorities on forgery, embezzlement, and secure documents. For over 30 years, he has worked with, advised, and consulted with hundreds of financial institutions, corporations, and government agencies around the world. October 16th boasts a new addition to the presentation schedule: world-renowned speaker and journalist Brigitte Gabriel. Ms. Gabriel will speak on her personal story of survival and determination to overcome the

tragedies of Lebanon’s Civil War, sharing her knowledge of growing security threats and subterfuge within the United States. In addition, attendees will be able to choose from a variety of other presentations by some of the top forensic professionals on topics including forensic alcohol evidence, the forensic nurse and the criminal defense team, computer forensics investigations, and using deposition and discovery forums to spark settlement negotiations. Attendees will also have the opportunity to participate in certification update courses: • Certified Forensic Consultant, CFC, taught by Dr. Marc Rabinoff; • Certified Medical Investigator, CMI, taught by Dr. Michael Karagiozis; • Certified Forensic Accountant, Cr.FA, taught by Joseph Wheeler; • and Certified Forensic Nurse, CFN, taught by Dianne Ditmer. The purpose of the certification update courses is to update current holders of designations and others with all levels of expertise on the latest issues and trends in the respective fields.

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SCHEDULE-AT-A-GLANCE

Wednesday, October 14 Registration and Exhibitors...............................................................12:00pm-8:00pm CHS Pre-Conference Session.............................................................3:00pm-5:00pm Keynote Speakers: John Bridges, III, FACFEI, DABCHS, CHS-V, and LTC DE Smith, CHS-V Welcome Reception..............................................................................5:00pm-7:00pm Thursday, October 15 Exhibit Hall Opens/Continental Breakfast.......................................................7:00am General Session.......................................................................................8:00am-9:00am Catch Me if You Can, Presenter: Frank Abagnale Morning Break.........................................................................................9:00am-9:30am Breakout Session..................................................................................9:30am-11:30am The Art of the Steal, Presenter: Frank Abagnale Lunch on Own......................................................................................11:30am-1:00pm Breakout Sessions..................................................................................1:00pm-4:45pm Annual Banquet......................................................................................5:30pm-7:30pm Keynote Speaker: Peter S. Probst Friday, October 16 Exhibit Hall Opens/Continental Breakfast.......................................................7:00am General Session.......................................................................................8:00am-9:00am They Must Be Stopped, Presenter: Brigitte Gabriel Morning Break.........................................................................................9:00am-9:30am Breakout Sessions.................................................................................9:30am-11:00am Lunch on Own....................................................................................11:00am-12:30pm CHS Working Luncheon (Additional Registration Required)....12:00pm-1:30pm Keynote Speaker: Steven G. King, Deputy Director, Infrastructure Collection Division, US Department of Homeland Security Breakout Sessions..................................................................................12:30pm-5:30pm

Hotel Information The 2009 National Conference will be held at the Rio All-Suite Hotel. If any casino hotel embodies the rhythm and spirit of Las Vegas, it is the Rio All-Suite Hotel & Casino, where the atmosphere pulses with activity, color, and uninhibited excitement. Get swept up in the Rio’s vibrant backdrop: every room a suite, every turn a new adventure, every need fulfilled. A special discounted group rate has been established for conference attendees. For room reservations, call (888) 746-6955, choose option #1 to connect to Suite Reservations, and reference the group code SRACFE9. Rooms are limited, so call today. The cut-off date to receive the group rate is Friday, September 11, 2009.

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ACFEI NATIONAL CONFERENCE

PRESENTERS

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ABCHS NATIONAL CONFERENCE

PRESENTERS

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FRIDAY, OCT.

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APA NATIONAL CONFERENCE

OCT.

15 & 16

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AAIM NATIONAL CONFERENCE

OCT.

15 & 16

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NATIONAL CONFERENCE / FEATURED SPEAKERS

BRIGITTE GABRIEL: NEW SPEAKER COMING TO LAS VEGAS! The American College of Forensic Examiners Institute welcomes Brigitte Gabriel as a keynote speaker at the 2009 national conference in Las Vegas. Ms. Gabriel’s authority on terrorism comes from the tragedy of personal experience. Raised as a Christian, she lived through the Islamic occupation of Lebanon as a child, narrowly surviving a bombing that destroyed her family’s home. She and her family were forced to live in a one-room bomb shelter for years as the religious attacks raged around them. She escaped to Israel as a teenager, eventually becoming the news anchor for an Arabic evening news broadcast. In 1989, she immigrated to America and began her own television production and advertising company. Fluent in four languages, Ms. Gabriel has since become a prominent speaker, writer, and activist. After the tragedy of September 11, 2001, Ms. Gabriel turned her experiences as a persecuted Lebanese Christian into an emotional, emphatic testimony to raise awareness on the threat of radical Islam to world peace and national security. A member of the board of Advisors of the Intelligence Summit, her New York Times best-selling books include Because They Hate: A Survivor of Islamic Terror Warns America and They Must Be Stopped: Why We Must Defeat Radical Islam and How We Can Do It. Ms. Gabriel is a prominent speaker, regular guest on worldwide news and radio stations, and the founder of American Congress for Truth. She admonishes our politically correct tolerance and lack of knowledge of Islam, asserting that their cultural invasion can do as much damage as bombs and head-on attacks. Though she regularly receives death threats from terrorists for speaking out about her experiences, Ms. Gabriel has devoted her life to educate and inspire Americans to stand up against radical, militant Islam. “In the afternoon of September 11th, 2001, I was like all Americans, glued to my TV screen in the family room, tears in my eyes, feeling utter pain, sorrow, and helplessness over what transpired that morning . . . I knew that the same cancer that was confined to the Middle East had now spread throughout the world’s body. That’s when I knew I had to speak up because my past is America’s future unless Americans wake up in time to see what is coming our way.” –Brigitte Gabriel

“A compelling and captivating personal story with a powerful lesson about threats to freedom in our time.” —R. James Woolsey, Director of Central Intelligence, 1993-95

From Ms. Gabriel: This Is The New Reality (Information retrieved from www.americancongressfortruth.com) We are in for the fight of our lives. That we have not yet had another terrorist attack in the United States is remarkable, but it will happen. Al Queda keeps its promises. How do I know this? I was born in Lebanon and raised as a Christian. When the Lebanese Civil War broke out, our family, and our Maronite community came under vicious attack by Islamic extremists. They promised to destroy us, and as you know from the recent war in Lebanon, the country is now nearly Islamic. I was nearly killed by a mortar. Our home was destroyed. We lived in a bomb shelter for seven years. Most of my childhood friends were killed. That’s how I know. We must make the connection between individual safety and a strong national defense, increase civic preparation and political responsibility, and train all Americans to become defenders of our community safety and national security.

22 THE FORENSIC EXAMINER® Summer 2009

Anguish struck the citizens of the United States of America on 9/11 as a handful of hateful men murdered nearly 3,000 innocent people. A heavy pall of grief covered our nation. Many of us wondered if we’d ever laugh again. But 9/11 wasn’t the only act of terrorism. Bali, London, Madrid, Jerusalem... the list goes on and on. Yet the West does not fully realize the bloodthirsty intentions of the menace of fundamental Islam. This enemy—is relentless. It is determined.

Why Does Our Struggle Matter? It Matters Because . . . If we don’t win the war against Islamofascism, other issues won’t matter at all. We won’t have an economy to worry about. We won’t have equal rights for all. We won’t have our cherished freedom. And we will live under Sharia Law.

www.acfei.com

FRANK ABAGNALE: ACFEI FEATURED SPEAKER IN LAS VEGAS! The American College of Forensic Examiners is proud to announce that Frank Abagnale will be the keynote speaker at this year’s National Conference in Las Vegas, Nevada. Frank W. Abagnale is one of the world’s most respected authorities on forgery, embezzlement, and secure documents. For over 30 years he has worked with, advised, and consulted with hundreds of financial institutions, corporations, and government agencies around the world. Mr. Abagnale’s rare blend of knowledge and expertise began more than 40 years ago when he was known as one of the world’s most famous confidence men. This was depicted most graphically in his best-selling book, Catch Me If You Can, a film of which was also made, directed by Steven Spielberg and starring Leonardo DiCaprio and Tom Hanks. Between the ages of 16 and 21, he successfully posed as an airline pilot, an attorney, a college professor, and a pediatrician. Additionally, he cashed $2.5 million in fraudulent checks in every state and 26 foreign countries. Apprehended by the French police when he was 21 years old, he served time in the French, Swedish, and U.S. prison systems. After 5 years he was released on the condition that he would help the federal government, without remuneration, by teaching and assisting federal law enforcement agencies. Mr. Abagnale has now been associated with the FBI for over 30 years. More than 14,000 financial institutions, corporations, and law enforcement agencies use his fraud prevention programs. In 1998, he was selected as a distinguished member of “Pinnacle 400” by CNN Financial News—a select group of 400 people chosen on the basis of great accomplishment and success in their fields. In 2004, Mr. Abagnale was selected as the spokesperson for the National Association of Insurance Commissioners (NAIC) and the National Cyber Security Alliance (NCSA). He has also written numerous articles and books including The Art of the Steal, The Real U Guide to Identity Theft, and Stealing Your Life. For more information on ACFEI’s National Conference or to register, please contact ACFEI Member Services at (800) 592-1399.

“Abagnale’s lecture may be the best one-man show you will ever see.” —Tom Hanks

Accomplishments (Information retrieved from www.abagnale.com)

• Standard Register Company—since the early 1980s worked with and developed security features used on car titles, birth certificates, doctors’ prescription pads, negotiable instruments, packaging, and luxury items.

• Audemars Piguet—designed the anti-counterfeiting technology incorporated in one of the world’s most luxurious watches.

• Leigh-Mardon (Australia)—one of the world’s most sophisticated secure document printers and manufacturer of credit cards and smart cards.

• Novell—helped

develop identity management software used by thou-

sands of corporations, governments, and financial institutions.

Helped design the Australian passport, Australian postal money order, and numerous official international bank checks.

• Affinion Group—helped develop PrivacyGuard, a credit monitoring ser-

• The 41st Parameter—partnered with and helped develop ImageMask—

vice now used by over 6 million Americans, as well as in Canada and

software that digitally blocks information on checks and documents from

the United Kingdom.

being seen online. This technology is used by some of the nation’s larg-

• ADP—designed their current payroll check issued more than 800 million times a year for the payrolls of thousands of corporations.

• First Data Corp (FDC)—designed the Integrated Payment Systems (IPS) Check, which is currently the official bank check of over 3,000 financial institutions.

• Safechecks, Inc.—designed the SuperCheck and SuperBusiness Check considered to be the most secure checks in the world and used by thousands of municipalities, mortgage companies, title and escrow offices, and corporations.

• Appleton

Papers—designed the Frank W. Abagnale signature water-

mark paper, one of the most secure papers in the world with numerous

est banks.

• Staples, Inc.—partnered with the world’s largest office supply store bringing security products and solutions to their consumer and business customers.

• Sanford

uni-ball—helped develop the uni-ball 207 writing instrument.

The only pen in the world that cannot be altered by chemicals or solvents. Over 20 million sold annually in the United States alone.

• In the past 31 years Mr. Abagnale has worked with 65% of the Fortune 500 Companies in America.

• Author of three books on white collar crime and identity theft—The Art of the Steal, The Real U Guide to Identity Theft, and Stealing Your Life.

• Designed

SequrZ secure number font used by thousands of corpora-

security features built into the paper stock and distributed exclusively by

tions, government agencies and financial institutions to secure the writ-

Standard Register Company, USA.

ten and dollar amounts on negotiable instruments.

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Summer 2009 THE FORENSIC EXAMINER® 23

“Abagnale’s lecture may be the best one-man show you will ever see.” —Tom Hanks

Frank Abagnale’s rare blend of knowledge and expertise began more than 40 years ago when he was known as one of the world’s most famous confidence men. This was depicted most graphically in his best-selling book, Catch Me If You Can, a film of which was also made, directed by Steven Spielberg and starring Leonardo DiCaprio and Tom Hanks. Mr. Abagnale has now been associated with the FBI for over 30 years. More than 14,000 financial institutions, corporations and law enforcement agencies use his fraud prevention programs. Make plans now to attend his featured presentation at the 2009 National Conference!

To Register: Call Toll-Free (800) 592-1399 or visit www.acfei.com

CE ARTICLE: 1 CE CREDIT By Randy Noblitt, PhD, FACFEI, and Pamela Perskin Noblitt

The Social Security Administration (SSA) has established procedures whereby disabled claimants can apply for Social Security Disability (SSD) and Supplemental Security Income (SSI) benefits. This article addresses the criteria by which this agency makes determinations and why helping professionals are duty-bound to provide advocacy and support for their legitimately disabled patients. Furthermore, it provides guidance regarding definitions and processes involved in disability determination. Finally, this article challenges helping professionals to rise to the defense of their disabled clients and patients to provide the support and advocacy consistent with professional ethics.

DISABILITY, ETHICS, AND ADVOCACY: The Duty of Clinicians to their Disabled Patients

26 THE FORENSIC EXAMINER速 Summer 2009

www.acfei.com

This article is approved by the following for continuing education credit: 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. Incorporate Social Security terminology into their documentation in order to be more effective advocates for their disabled patients. 2. Gain a better understanding of the application and determination processes for Social Security Disability. 3. Respond knowledgably to requests for documentation of disability. KEY WORDS: disability, Social Security, ethics, health care professionals TARGET AUDIENCE: Health care professionals PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose. PREREQUISITES: None

Licensed health care professionals are required to keep records that document their patients’ health problems and treatment. These record-keeping practices are regulated by federal and state laws and by state licensing boards. The purpose of these requirements is to facilitate continuity of care and provide documentation that is needed for other legitimate reasons. Under state and federal law, patients have a right to their medical records, and professionals have an ethical duty to respond in a timely way with relevant, accurate, and comprehensible information. Most health care professionals will inevitably have some patients who develop disabling health conditions that render them unable to work. Being incapacitated by illness or injury places patients in a double bind where they are often unable to obtain needed care for their medical problems because of a lack of financial resources caused by their unemployment, but they are unemployed because of their disabling illness. It is for these patients that the federal government through the Social Security Administration (SSA) devised procedures for disability determination as a possible remedy. Two programs under the Social Security Administration provide disability benefits. The first is Social Security Disability (SSD) under Title II of the Social Security Act. When a worker has paid sufficiently into the Social Security system, the worker may be entitled to benefits if he/she becomes disabled. SSD is not dependent on financial need. It is available to people who have been in the workforce and who meet the durational and disabling qualifications (800) 592-1399

under Social Security. Individuals who receive a favorable decision in their applications for SSD receive a monthly payment based on their earnings, a retroactive lump sum payment based on their monthly stipend multiplied by the number of months from the time of onset of their disabling condition until the award is granted, and Medicare. Supplemental Security Income (SSI) under Title XVI of the Social Security Act provides for a monthly income for individuals who have not been employed for a sufficient period to meet regulatory requirements, who have never been employed, or who have been employed but not paid into the Social Security system. This population includes younger-aged individuals, children, individuals who may have been employed in the distant past but have not earned enough recent credits, and domestic or other workers whose employers did not file Social Security taxes. Individuals who qualify for SSI receive a monthly income, a retroactive lump sum payment, and Medicaid. With this in mind, it is also important to note that the remedy offered by disability benefits is far from complete and sometimes does not even provide for all the claimant’s

basic needs. The average income generated by Social Security Disability benefits is $862 a month (Social Security Administration [SSA], 2004), well below the SSA’s own established criteria for a substantial gainful activity level of $940 a month (SSA, 2008). This monthly stipend is only slightly higher than the Federal Poverty Guidelines. Even this amount is insufficient to ensure safe and adequate housing, nutrition, and medical expenses for most people. Having been employed, becoming disabled, and making application for benefits does not guarantee approval for Social Security Disability benefits. The application process is complicated and arduous and extremely difficult to complete for individuals who are sick, in pain, stressed, or medicated. Assuming that the Initial Application and subsequent Reconsideration are denied, the Appeals process can take more than 2 years to complete (Ekholm, 2007). Because the system for processing Social Security Disability claims is overburdened, approximately 65% of initial applications for Social Security Disability benefits are denied nationally, despite the supporting evidence attached to the claimant’s initial application. The numbers of Summer 2009 THE FORENSIC EXAMINER® 27

denied claims vary substantially state by state, with Tennessee denying over 77% of initial applications, while New Hampshire denied approximately 41% in 2006 (FY 2006 DIODS). Reconsideration of these applications almost invariably results in denial since the same process for review is utilized. It is at the Appeals level that claimants have the opportunity to appear before an Administrative Law Judge and tell their story, either pro se (“for myself ”—without an attorney) or with representation. It is at this point that the claimant can present detailed, medically supported documentation that proves their disability and makes a favorable decision more likely. The Social Security Administration has the right, which it often exercises, to have claimants examined by a Consulting Examiner (CE). This medical professional is contracted by the Social Security Administration to review the claimant’s treatment records, examine the claimant, and provide an extensive report. The CE does not have the benefit of a long-term relationship with the patient. As any helping professional can attest, patients are not always open and forthcoming on initial meetings. They are often shy, anxious, and even ashamed of their medical or mental condition. Some claimants may not fully understand the CE’s role and may not have the degree of trust and rapport needed to candidly describe their personal circumstances. This may result in a CE report that minimizes the claimant’s complaints and a determination that the claimant’s condition does not rise to the standard of disability as defined by SSA. The treating provider often has a more thorough knowledge of the claimant and a more comprehensive understanding of his or her circumstances. The claimant’s health needs typically represent only a portion of the constellation of issues regularly addressed by the primary health care giver. Patients are more likely to reveal their anxieties, fears, concerns, and hopes to their physicians and therapists. Many medical professionals have a lengthy relationship with their patients, providing them with the opportunity for longitudinal observation of their patient’s lifestyle, personality functioning, interpersonal relationships, health issues, pain tolerance, stress response, work life, and financial status. Therefore, Social Security rules provide that the treating professional’s opinion is given greater weight than the opinion of the consulting examiner. 28 THE FORENSIC EXAMINER® Summer 2009

Why would medical personnel be uncooperative with the process of assisting their patients’ in applying for disability benefits? Medical professionals are sometimes unfamiliar with the Social Security Administration’s regulations and criteria, and thus the importance of providing documentation, including records, reports, and other related materials, may not be apparent to them. Medical professionals are not required to appear at hearings, testify, or otherwise engage in the disability determination process. Their participation is limited to providing treatment records and possibly compiling a narration supported by the claimant’s medical record that is consistent with the language of Social Security Disability and that addresses that agency’s core concerns. At the Appeals level, the only participants in the hearing are the Administrative Law Judge, his or her clerk, the claimant, the claimant’s advocate, and either a Medical Examiner (ME) or a Vocational Examiner (VE), although occasionally both an ME and VE are present. The ME may be asked to offer a professional opinion on the claimant’s condition based on the available medical evidence, while the VE may be requested to provide an opinion as to whether the claimant can either resume past relevant work or is appropriate for other jobs in the national economy. Adequately responding to claimants’ requests for narrative reports requires a tacit understanding of Social Security Administrative rules and definitions. Under the Social Security Act, disability means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months” (SSA, 2007a). Thus, it is not only a matter of identifying a diagnosis, past treatment, or course of a disease process that is acceptable as evidence of the above. Rather, it is also a description of the symptoms, effects of medicines, and state of mind and body that affects the individual’s capacity to engage in substantial gainful activity that is essential to disability determination. The Social Security Administration has established a set of Medical Listings to various classes of disabling conditions and requires that in order to be found disabled, an individual’s condition must meet or equal at least one of those listings. An individual who may not meet a specific listing may still be found disabled as the result of the cumu-

lative effects of multiple impairments, the experience of severe pain on exertion, and/ or the effects of the medications necessary to treat the condition(s). It is therefore the responsibility of the practitioner to become acquainted with the process and terminology in order to appropriately respond to the claimant’s needs. These listings and full explanations are available online through the Social Security Administration Web site at www.ssa.gov. The applicant must meet another test of disability: that of residual functional capacity (RFC). Work is divided into categories of heavy, medium, light, and sedentary. A manual laborer would likely be categorized as heavy, a firefighter or police officer as medium, a bus driver as light, and a secretary as sedentary. Of course, different jobs require different levels of exertion at different times. However, the Dictionary of Occupational Titles is referenced by the Social Security Administration as the arbiter of work definitions. Each work level corresponds to the amount of exertional and non-exertional effort required of the worker. The treating professional is asked to consider the capabilities of the claimant as they relate to performance in a competitive work environment. Thus, the medical professional will be asked to predict, in consideration of a patient’s disabling condition(s), the number of hours a claimant can sit, stand, and walk in the course of an 8-hour work day; how much can be lifted or carried in the course of that day; how often the claimant may require breaks or rest periods or position or postural change in the course of an 8-hour work day; and how many days the claimant would likely be absent from work per month as a consequence of the disabling condition. The mental health professional is asked to consider the applicant’s capacity to concentrate, persist, memorize, and attend. Thus, the helping professional should consider the claimant’s work experience, age, education, and level of disability when composing the narrative report as well as completing impairment questionnaires frequently requested by Social Security as a means of measuring residual functional capacity of claimants. Next, the Social Security Administration wants to know whether the claimant is capable of performing past relevant work. For example, a 45-year-old teacher may have sustained an injury that has left her confined to a wheelchair. However, she retains her cognitive abilities and can continue to www.acfei.com

fulfill all the duties and responsibilities of teaching. Therefore, she is not disabled and is capable of engaging in her past relevant work. If an individual is incapable of his or her past relevant work, the question arises as to whether age, education, and experience lends itself to other work in the national economy. For example, a 40-yearold plumber at a medium exertional level, with a high school diploma, has sustained a back injury that precludes him from bending, crouching, lying on his back, reaching, carrying heavy tools, etc. However, he is capable of applying other skills that may have been a part of his work regimen such as using a computer, record-keeping, estimating, calculating, sales, etc., which would qualify him for work at a light or sedentary level. Therefore, he is not considered disabled. On the other hand, if that plumber is 60 years old, he is considered to be approaching retirement age. Job retraining at his educational and experiential level would be difficult and could create hardships, and, therefore, he would be considered disabled. Thus, it is imperative for the practitioner to understand the nature of the claimant’s past relevant work and to what extent his ability to perform that work has been compromised by a medical or mental condition. Unfortunately, it is clear that many medical practitioners have no interest in performing disability evaluations, or they complete the forms in a haphazard fashion in an attempt to clear off their desk. Claimants do not benefit from assessments that are inflated, exaggerated, or that do not reflect the objective evidence based on medically accepted diagnostic testing (x-rays, MRIs, CT Scans, EMGs, etc.) or progress notes recording patient complaints, symptoms, and clinical findings. This is especially true in the case of evaluating the subjective complaint of pain, in the absence of quantifiable medical tests. One test that may interject a level of objectivity—because it may meet the Daubert criteria for admissibility as evidence in Federal Court (medical testimony based on published articles in the peer-reviewed medical literature)—is the Pain Validity Test, recently described in this journal. Some health care professionals attach fees to their compliance for requests for records and documentary support for their patients. Sometimes these fees are excessive and unrealistic. These fees, which may be legal, may also be skirting the ethical duty of the caring professions. Some licensing boards (800) 592-1399

or state regulations may limit the amount that may be charged for copying records. The patients who are often most in need of medical and psychological support are also likely to be among the most impoverished segment of society, and charging them for cooperation and support creates a significant hardship on people who are already experiencing serious medical and psychological complications. The imposition of fees may impede the ability of the claimant to provide the medical evidence necessary to prove a case for disability benefits, thus denying them the opportunity for relief. If a claimant cannot afford the fee for records, the Administrative Law Judge has the authority to subpoena these records. While medical professionals may balk at providing patient records at no fee to patients or their advocates in a disability claim, most regularly provide copies of records free of charge to medical specialists to whom their patients are referred or to other practices if the patient relocates or changes insurance programs. Furthermore, in some states, providing medical records at no charge to patients or in support of their applications to public programs, including disability programs, is mandatory. In California, for example, the California Health and Safety Code section states: (d) (1) Notwithstanding any provision of this section, and except as provided in Sections 123115 and 123120, any patient or former patient or the patient’s representative shall be entitled to a copy, at no charge, of the relevant portion of the patient’s records, upon presenting to the provider a written request, and proof that the records are needed to support an appeal regarding eligibility for a public benefit program. These programs shall be the Medi-Cal program, Social Security Disability insurance benefits, and Supplemental Security Income/State Supplementary Program for the Aged, Blind and Disabled (SSI/SSP) benefits. For purposes of this subdivision, “relevant portion of the patient’s records” means those records regarding services rendered to the patient during the time period beginning with the date of the patient’s initial application for public benefits up to and including the date that a final determination is made by the public benefits program with which the patient’s application is pending. (Legislative Counsel of California, 2008)

It further states that medical providers may not refuse requests for provision of medical records because of outstanding charges and that failure to provide medical records is considered unprofessional conduct, can result in a fine of no more than $100, and can be considered as grounds for disciplinary action by the provider’s licensing agency, board, or commission. Ethically, a physician should feel obliged to provide these records without cost. It is a sad commentary that very often they have to be compelled to do so. In some instances, fees for documentation are contingent on the patient’s retention of legal advocacy in the effort to obtain benefits under Social Security. Some health care professionals may harbor suspicion that advocates and law firms may be exploiting the claimant and thus assess exorbitant fees for records and other documentation to discourage this activity. It should be noted that the Social Security Administration recognizes that legal advocacy is often necessary as a means of navigating its complex system and has established payment criteria for advocates. Social Security Disability advocates (attorneys or non-attorney representatives) are paid directly by the Social Security Administration only upon a favorable decision on the case: A claimant may appoint a qualified individual to represent him or her in doing business with Social Security. If the claimant appoints a representative, the representative cannot charge or collect a fee for those services without first getting written approval from the Social Security Administration, even if the claim is denied. (SSA, 2007b) The fee is based on either a 25% portion of the retroactive payment of benefits (based on the date the claimant became disabled and the date on which their benefits are awarded) or $5,300, whichever is less. Thus, the legal advocate who may represent a claimant for 2 years or more receives payment that is strictly regulated by the government, despite the amount of effort necessary to obtain a favorable decision. For this reason, most law firms require that the claimant be responsible for payment for records, reports, or fees for an independent medical evaluator (IME) (an objective medical professional not affiliated with the Social Security Administration). A review of narrative reports submitted by helping professionals is revealing in the differences by which clinicians define disSummer 2009 THE FORENSIC EXAMINER® 29

ability as opposed to the SSA definition. Frequently, reference is made to the character of the patient: that he is a good person or she is an excellent mother. Mental health professionals may discuss the patient’s fragility or provide background information that is irrelevant to the matter at hand. Disability determination is not based on deservedness; it is based on qualification. For SSD, the following questions are considered: has a person worked sufficiently to qualify for benefits? Does that person’s impairment meet the standard of SSA? Can the claimant perform past relevant work? Can the claimant perform any work in the national economy? For SSI, does the claimant meet the financial limitations as well as the disabling conditions? Clearly, the provision of additional documentation in support of patients’ disability claims represents one more burden on the helping professional. Health care professionals are already being required to do more for less compensation than ever before. However, the cost to the health care provider is less than the cost to the disabled claimant. It is therefore incumbent on the helping professional to establish practice policies that facilitate compliance with Social Security Disability requirements and serving patient needs while minimizing the hardship to the professional and his practice. One way of accomplishing this task would be providing copies of progress notes to patients at the time of service, advising the client to create a file in the event that they must see another health care provider or demonstrate disability. The client should be advised to create a checklist documenting their diagnoses; diagnostic criteria; diagnostic procedures utilized (with dates); pain level; range of motion restrictions; limitations for standing, walking, lifting and carrying; prescribed medications; and, if a psychiatric case, Global Assessment of Functioning scale (GAF). The incorporation of such a list would be beneficial to both the professional’s documentary process and the patient’s claim. Another consideration would be to spend a few extra moments with patients to determine their potential for needing Social Security Disability benefits and preparing for the process. This can be accomplished by creating a narrative report addressing the onset of symptoms and equating them with the appropriate Medical Listing. The narrative should include an assessment of residual functional capacity: how many hours out of a competitive 8-hour day can the claimant sit, stand/walk; how much can he/she lift/carry; will he/she require unscheduled breaks and 30 THE FORENSIC EXAMINER® Summer 2009

for what duration; how often will he/she likely be absent as a consequence of impairments or their treatment, etc. Responding to the demands of the Social Security Administration, managed care, and other mandated agencies is not addressed as part of the professional’s education, but it is as relevant and necessary as meeting any other professional standard of practice. It is in the best interests of helping professions, society, and the disabled for healthcare professionals to become educated in the policy and language of Social Security Disability. If we accept that helping professionals have a primary duty to “first do no harm,” then we must consider the effect of non-compliance with respect to requests for documentation in support of legitimate applications for Social Security benefits or for charging unreasonably high fees for such cooperation. Certainly, to reduce the claimant’s opportunity for a favorable decision and to thus contribute to the claimant’s distress, impoverishment, and denial of adequate medical relief, is to do harm in the most fundamental way. Fully educated and informed helping professionals will hopefully result in greater compliance with the claimant’s requests. Health care providers have a duty to not only support their clients and patients by providing the highest standards of care, but to provide advocacy and social support as well. Disabled people who legitimately receive appropriate benefits will likely be a lesser burden to society and will have the ability to live out their lives in dignity.

References Code of Federal Regulations. (2007). Title 20, Vol. 1, US Government Printing Office. Eckholm, E. (2007). Social Security disability cases are taking longer: Most win social security benefits —if they persist. The New York Times, December 10, 2007. FY 2006 DIODS. (2006). Social Securiaty disability denial rates. Retrieved from http://www.ultimatedisabilityguide.com/ssdi_ssi_denial_rates.html Kelly, F. (2007). A long, painful wait: Too sick to work, many face delays for help from disability judges. Some die waiting. Retrieved October 5, 2007, from http://www.charlotte.com/local/story/251546.html Social Security Administration. (2004). Annual statistical report on the social security disability insurance program, 2003. Retrieved December 30, 2007, from http://www. ssa.gov/policy/docs/statcomps/di_asr/2003/index.htm Social Security Administration. (2007a). Listing of impairments. Retrieved December 30, 2007, from http://www.ssa.gov/disability/professionals/bluebook/ AdultListings.htm Social Security Administration. (2007b). Representing claimants. Retrieved December 30, 2007, from http://www.ssa.gov/representation/index.htm Social Security Administration. (2007c). Substantial gainful activity. Retrieved December 30, 2007, from http://www.ssa.gov/OACT/COLA/sga.html Social Security Administration. (2008). What’s new in 2008? Retrieved December 30, 2007, from http:// www.socialsecurity.gov/redbook/eng/whatsnew.htm United States Department of Health and Human Services. (2007). Federal poverty guidelines. Retrieved December 30, 2007, from http://www.workworld.org/ wwwebhelp/poverty_federal.htm United States Department of Labor. (1992). Dictionary of occupational titles. Author. Legislative Counsel of California. (2008). Health and safety code section 123100-123149.5. Official California Legistaltive Information. Retrieved from http://www.leginfo.ca.gov/cgibin/displaycode?section=hsc&group=123001124000&file=123100-123149.5 n Earn CE Credit To earn CE credit, complete the exam for this article on page 31 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHORS

Randy Noblitt, PhD is currently Professor and Core Faculty Member in the Clinical PsyD Program at the California School of Professional Psychology at Alliant International University in Los Angeles. He was an Air Force Institute of Technology Scholar and was awarded a PhD in Clinical Psychology by the University of North Texas in 1978. He has 28 years of practice as a clinical psychologist in the USAF and in private practice. Dr. Noblitt is the principle author of Cult and Ritual Abuse: Its History, Anthropology, and Recent Discovery in Contemporary America (Rev. ed., 2000). He is also the co-author and editor of Ritual Abuse in the Twenty-first Century: Psychological, Forensic, Social, and Political Considerations (2008). He has been a consultant and expert witness in both criminal and civil cases involving the victimization of children and allegations of cult and ritual abuse. Pamela Perskin Noblitt spent 23 years as practice administrator for the Center for Counseling and Psychological Services in Dallas, Texas. She is co-author of Cult and Ritual Abuse: Its History, Anthropology, and Recent Discovery in Contemporary America (Rev. ed., 2000) and co-author and editor of Ritual Abuse in the Twenty-first Century: Psychological, Forensic, Social, and Political Considerations (2008). She was recognized as one of Eckerd’s 100 Women of 2000 for her victim advocacy efforts. She is currently working for a national Social Security Disability Advocacy firm, Binder & Binder, where she is a nonattorney representative. Dr. and Ms. Noblitt are also collaborators in their personal lives and have been married for 38 years. They have 2 children and 5 grandchildren. www.acfei.com

Law CEEnforcement ARTICLE 1: Disability, Ethics, and Advocacy (Pages 26-30) 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.

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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: disability, Social Security, ethics, healthcare professionals

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

TARGET AUDIENCE: Health care professionals

1. Incorporate Social Security Administration terminology into their documentation in order to be more effective advocates for their disabled patients. 2. Gain a better understanding of the application and determination processes for Social Security Disability. 3. Respond knowledgably to requests for documentation of disability.

PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose. PREREQUISITES: None

ABSTRACT The Social Security Administration (SSA) has established procedures whereby disabled claimants can apply for Social Security Disability (SSD) and Supplemental Security Income (SSI) benefits. This article addresses the criteria by which this agency makes determinations and why helping professionals are duty bound to provide advocacy and support for their legitimately disabled patients. Furthermore, it provides guidance regarding definitions and processes involved in disability determination. Finally, this article challenges helping professionals to rise to the defense of their disabled clients and patients to provide support and advocacy that is consistent with their professional ethics.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 The Social Security Administration defines disability as: a. an impairment that is expected to last for 12 months or result in death. b. the inability of an individual to engage in substantial gainful activity. c. the inability of the individual to perform past relevant work. d. the inability of the individual to perform any work in the national economy. e. all of the above.

4 A finding of disabled hinges on a claimant meeting or equaling a a. Medical Listings category. b. ICD-10 diagnostic category. c. DSM-IV-TR diagnostic category.

2 Claimant’s applying for Social Security Disability benefits are most likely to obtain a favorable decision at the: a. Initial Application level. b. Reconsideration level. c. Appeals level.

5 Substantial Gainful Activity (SGA) for 2008 is a. $24,000 annually. b. $1,200 monthly. c. $940 monthly.

3 The opinion of the treating medical provider a. is irrelevant. b. is the only relevant opinion. c. is given greater weight than a non-treating medical opinion.

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Summer 2009 THE FORENSIC EXAMINER® 31

CE ARTICLE: 2 CE CREDITS By Monique A. Levermore, PhD, and Gina L. Salisbury, PsyD

The Relationship between

Virtual&actual

AggRession: YOUTH EXPOSURE TO VIOLENT MEDIA

32 THE FORENSIC EXAMINER速 Summer 2009

www.acfei.com

This article is approved by the following for continuing education credit: The American College of Forensic Examiners International provides this continuing education credit for Diplomates. After studying this article, participants should be better able to do the following: 1. Identify the extent to which children and young adults are exposed to violent media. 2. Have a deeper understanding of the adverse nature of violent media in the sample provided. 3. Recognize the psychological theories most relevant to the understanding of attitudes toward aggression. KEY WORDS: exposure to violence, violent video games, aggression, adolescents, religion TARGET AUDIENCE: Psychological professionals PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose. PREREQUISITES: None

Table 1 Demographic Characteristics of Sample Population (n = 127) Age x = 17.2 SD = 0.83 Gender Male 50 (39.4%) Female 77 (60.6%) Education Level 9th Grade 10th Grade 11th Grade 12th Grade

1 17 46 63

(0.8%) (13.4%) (36.2%) (49.6%)

Ethnicity Caucasian African American Hispanic Asian American Native American

95 12 12 7 1

(74.8%) (9.4%) (9.4%) (5.5%) (0.8%)

Table 2

n the current research investigation, an effort was made to determine whether there was a relationship between virtual aggression and actual aggression in youth exposed to the various forms of violent media. The participants in the current study consisted of one hundred and twenty-seven (127) high school adolescents between the ages of 14 and 17. They were interviewed about their exposure to violence, beliefs about aspects of aggression, frequency of participation in verbally aggressive or physically aggressive acts and constructive extracurricular activities, and aspects of their exposure to virtual aggression in the form of violent media. Findings revealed that Grand Theft Autoâ&#x201E;˘ was positively correlated with total aggression, physical aggression, and verbal aggression. Results indicated that a history of neglect was correlated positively with aggression, and that the amount of videogame play was correlated positively with verbal aggression. Participation in constructive extracurricular activities was correlated negatively with lifetime totals of aggressive acts. Finally, multiple regression analyses indicated that active involvement in a religious activity, such as church, explained significant variability in total aggression. The findings suggest that there is a relationship between exposure to violent media and aggression. These findings suggest that future research should attempt to address the etiology of the relationships identified and further examine the predictive qualities of media type and of religious affiliation and aggression.

(800) 592-1399

Correlations Among Aggression Measures AQ PA VA A H LAQ AQ .80** .57** .82** .67** .53** PA .28** .58** .30** .67** VA .30** .18* .16 A .51** .30** H .31** LAQ LHA LSRP Note: * p < .05; ** p <. 01.

LHA .64** .67** .33** .50** .28** .47**

LSRP -.62** -.54** -.32** -.53** -.35** -.53** -.57**

AQ: Aggression Questionnaire PA: Physical Aggression VA: Verbal Aggression A: Anger H: Hostility LAQ: Legitimacy of Beliefs about Aggression Questionnaire LHA: Lifetime History of Aggression Questionnaire LSRP: Levenson Self-Report Psychopathy Scale

Table 3 Correlations Among Demographics MIH FIH CHN MIH .14 -.19* FIH -.08 CHN CHT CHA CHB LHA

CHT .12 -.30** .43**

CHA -.36** -.12 .70** .38**

CHB -.02 -.03 .49** .16 .31**

LHA -.12 -.15 .18* .15 .09 .01

Note: * p < .05; ** p <. 01. MIH: Mother in Home FIH: Father in Home CHN: Childhood Experiences -Childhood History of Neglect CHT: Childhood History of Trauma CHA: Childhood History of Abuse CHB: Childhood History of Bullying LHA: Lifetime History of Aggression Questionnaire

Summer 2009 THE FORENSIC EXAMINERÂŽ 33

“Violent media increases aggression by teaching observers how to aggress by priming aggressive cognitions, increasing arousal, or creating an aggressive affective state.” s MCT image by Laura Pearl

Aggression is a form of behavior that involves the intention of harming or intimidating another individual (Anderson & Bushman, 2001). In essence, individuals learn aggressive responses in much the same manner as they learn other social behaviors, either by observation or through direct experience (Anderson & Bushman, 2002; Bandura, 1978). This assertion of social learning theorists was demonstrated in Bandura, Ross, and Ross’s (1961; 1963) famous Bobo doll experiments where children imitated aggression toward dolls just after they had witnessed an adult being aggressive toward the dolls, either in person or on film (Hayes, Rincover, & Volosin, 1980). Children are exposed to ever-increasing amounts of actual violence in their communities as well as virtual violence in the media (Hill, Levermore, Twaite, & Jones, 1996). We as a scientific community have moved away from the parsimonious explanation of learned behavior—to our detriment. We constantly seek elaborate explanations to the reasons why individuals commit violent and aggressive acts when we should simply invest in the elegant explanation that social learning theorists have already provided.

34 THE FORENSIC EXAMINER® Summer 2009

The children involved in the first of the famous experiments and who observed models in person acting aggressively “later reproduced a good deal of physical and verbal aggression (as well as non-aggressive responses) substantially identical to that of the model,” and this was “in contrast to the subjects who were exposed to non-aggressive models, had no previous exposure to any models, and who only rarely performed such responses” (Bandura, Ross, & Ross, 1961, p. 580). Moreover, Bandura and colleagues’ (1963) subsequent study, which elaborated on the first study by exploring the effect models on film would have on observers, showed that the effects found in the first study generalize to human and cartoon models. The effect was such that those individuals who witnessed the aggressive behavior on film “exhibited nearly twice as much aggression than did subjects in the control group who were not exposed to the aggressive film content” (Bandura, Ross, & Ross, 1963, p. 9). Moreover, “violent media increases aggression by teaching observers how to aggress by priming aggressive cognitions, increasing arousal, or creating an aggressive affective state” (Anderson & Bushman, 2001, p. 355; Eron et al., 2003; Panee & Ballard, 2002). This is a critical finding; it implies that individuals are delivered a set of norms to follow in the act of teaching someone to commit virtual violence and aggression. Approximately 75% of programming aimed toward children has been found to contain violence, and the majority of these programs do not show the reality of the serious consequences that would most likely result if these events occurred in real life, such as pain, physical harm, or even death (Wilson et al., 2002). Anderson and Dill (2000) conducted a study examining the relationship between video games and aggression, and their results indicated that individuals who were allowed to play violent video games subsequently showed more heightened aggression in a later laboratory task. After playing the game Wolfenstein 3D™, heightened aggression was defined as the “intensity and duration of noise blasts the participant chooses to deliver to their opponent” (Anderson & Dill, 2000, p. 15). Aggression viewed on television also tends to be associated with an increase in aggression on the part of the viewer, and this increase is thought to have a much greater effect on children (Hogben, 1998). Additionally, this effect is shown more strongly in “societies with ready access to lethal weaponry” (Hogben, 1998, p. 239). Hogben’s (1998) findings also showed that individuals who stopped viewing television, and as a result stopped being exposed to televised aggression, showed a 10% decrease in aggressive www.acfei.com

behaviors. This finding suggests that continuous exposure or chronic exposure, such as the type documented in video game play, produces a different and stronger result than occasional exposure. As a result of this study, Hogben (1998) concluded that exposure to televised violent media seems to play a “consistent and practically significant role in predicting viewer aggression” (p. 239). The findings regarding aggression, which have been reported in the literature, have led others to assert that exposure to violent media serves to increase aggression through cueing cognitive effects (Anderson & Bushman, 2002). These cues, or scripts as they are sometimes referred, are stored and may be enacted when an individual is presented with a situation they feel may merit aggression (Shanifar & Kupersmidt, 2001; Zelli, Dodge, Lochman, & Laird, 1999). Viewer’s motives may also play a role in the relationship between exposure to violent media and aggression. Haridakis (2002) examined this possibility and noted that when an individual was exposed to violent media for the sole purpose of entertainment, they tended to behave more aggressively. In addition, in college-aged individuals with a mean age of 20 years, Haridakis (2002) declared that the amount of exposure to violent media had a positive correlation with aggression, including aggressive behavior and verbal aggression. As a result, he concluded that it would be necessary to determine specific viewer characteristics that are associated with exposure to violent media and aggressive behavior, something that should be addressed in future research (Haridakis, 2002). Viewer motivation is also proven to be a factor in social learning from violent media. This is further evidenced by the fact that the Department of Defense, and specifically the United States Army, has developed video games that train individuals to become soldiers, with an emphasis on using a variety of violent weaponry (Kennedy, 2002). These videogame tools are user friendly and are even available for free download off the Internet. Anyone with access to a computer with Internet service can download the game called America’s Army™, rated “T”™ for Teen, free of charge from various Web sites. Even more interesting is how the player essentially becomes the soldier appearing in the game, and subsequently has to pass basic training and marksmanship courses before they are permitted to go out on virtual maneuvers. This requires the player to inherently become the virtual image they see in the game, further blurring boundaries and contributing to the realistic nature of the exercise. (800) 592-1399

Table 4 Correlations Among Direct Exposure to Violence and the Aggression Measures DEV VVA AQ LAQ LHA DEV .11 .30** .25** .40** VVA .21* -.06 .36** AQ .53** .64** LAQ .47** LHA LSRP

LSRP -.19* -.11 -.62** -.53** -.57**

Note: * p < .05; ** p <. 01. DEV: Direct Exposure to Violence VVA: Being a Victim of a Violent Acts AQ: Aggression Questionnaire LAQ: Legitimacy of Beliefs about Aggression Questionnaire LHA: Lifetime History of Aggression Questionnaire LSRP: Levenson Self-Report Psychopathy Scale

Table 5 Correlations Among Videogames MTK REV FPS GTA AVP LAQ MTK .31** .29** .52* .19* .09 REV .52** .32* .15 -.02 FPS .25** .20* .11* GTA .18* .27** AVP .05 .03 LAQ LHA LSRP Note: * p < .05; ** p <. 01.

LHA .10 -.02 -.03 .24** .03 .47**

LSRP -.09 -.09 -.08 -.27** -.06 -.53** -.57**

MTK: Mortal Kombat™ REV: Resident Evil™ FPS: First Person Shooter Games GTA: Grand Theft Auto™ AVP: Amount of Videogame Play Aggression Measures (LAQ, LHA, and LSRP)

Table 6 Correlations Among Videogames REV FPS GTA AQ PA VA MTK .31* .29** .52** .07 .16 .18* REV .52** .32** -.03 .03 .17 FPS .25** .15 .11 .24** GTA .19* .26** .18* AQ .80** .57** PA .28** VA A H

A -.13 -.16 -.05 -.01 .82** .58** .30**

H -.11 -.13 .08 .07 .67** .30** .18* .51**

Note: * p < .05; ** p <. 01. MTK: Mortal Kombat ™ REV: Resident Evil ™ FPS: First Person Shooter Games GTA: Grand Theft Auto™ Aggression Questionnaire (AQ and the subscales PA, VA, A, and H)

Summer 2009 THE FORENSIC EXAMINER® 35

Virtual Training Other areas of industry in the United States have found that video games are useful tools for training individuals to perform their jobs more effectively and to practice in ways not previously possible. Pilots and astronauts are often trained using games or virtual simulators in order to gain the required knowledge and expertise before they are permitted to conduct their jobs with the general public. In these virtual training simulations, individuals are faced with equipment malfunctions in order to be prepared for these situations if they were to happen to them in real life. Gopher, Wiel, and Bareket (1994) conducted a study to determine whether or not skills obtained through a computer game trainer would transfer to flight. They acknowledged that “although the elements and the parameters of the computer game were physically remote from those of the flight situation, the game provides a useful training context for developing flight-relevant skills.” The results of this study indicated that skills do transfer from computer simulations to real life: the pilots who were trained through computer games showed significantly better performance on their first flights than those not trained using video games (Gopher, Wiel, & Bareket, 1994). In fact, their skill level was superior. Studies show that we readily accept the notion that positive skill attribution from virtual training is possible, but doubt negative skill attribution from negative interactive games. The belief that aggression is a legitimate behavior choice has led individuals to behave aggressively, while at the same time misinterpreting the benefits they will gain from their aggressive actions (Zelli, Dodge, Lochman, & Laird 1999). Demographic Variables Related to Aggression The following factors have also been noted as contributors to adolescent delinquency: divorced or single parents who leave the child alone a great deal, in addition to a father’s prolonged absence; lack of male role models; and lack of emotional support (Baer, 1999). These factors lead to a lack of attachment to parents on the part of the children, as well as parental lack of control and supervision over their children (Scholte, 1999). Many of these adolescents have a peer group that includes deviant individuals. Also, Anderson and Bushman (2002) noted that “aggression-related beliefs sig36 THE FORENSIC EXAMINER® Summer 2009

nificantly predict future levels of aggressive behavior and the source of such beliefs in children is often the family”(p. 36). Scholte (1999) noted that it is important for further investigation of “risk factors involved in the development of serious problem behavior in order for mental health professionals to provide effective treatment”(p. 17). Although there are a great deal of debates related to aggression, one aspect about aggression is certain: Once an individual develops aggressive tendencies, he/she is prone to keep these tendencies for the rest of his/ her life. This is the reason why early and chronic exposure can be so detrimental. Huesmann, Eron, Lefkowitz, and Walder (1984) conducted a longitudinal study that involved over 600 subjects who were evaluated for aggressiveness at age 8 and subsequently at age 30. They found that aggression is a stable construct; over 22 years, “the stability of aggression as a construct is about .50 for boys and .35 for girls” (Huesmann et al., 1984, p. 1131). They also noted that “it is easy for a youngster to justify aggressive solutions to problems by referring to norms for such behavior promulgated by the media and others” (Huesman et al., 1984, p. 1133). Futhermore, “the notion that violence in the media contributes to the development of aggression has been supported by recent meta-analyses of the data” (Paik & Cornstock, 1994, as cited in Browne & Hamilton-Giachritsis, 2005, p. 702). This is important to note due to the current nature of television programming. Results from this study have implications for understanding the relationship between exposure to violent media and aggression. This is important because “knowledge about possible influences in the development of adolescent aggressive behavior eventually might prove useful in curbing aggression and more dangerous antisocial behavior” (Simons, Paternite, & Shore, 2001; Weisner & Silbereisen, 2003). Based on this review of the existing literature concerning exposure to violent media and aggression, it was hypothesized that there would be a relationship between exposure to violent media and aggression. It was hypothesized that the constructs of aggression, lifetime history of aggression, and psychopathy and legitimacy of beliefs about aggression would be interrelated constructs. We were most interested in whether exposure to violent media such as videogames increased our ability to predict aggression.

Participants The sample for this study consisted of 127 participants from a local high school within the public school system in Central Florida, which included 50 males and 77 females. All participants were adolescents aged between 14 and 18 and were required to complete the six self-report instruments in the battery. Detailed characteristics of the obtained sample are reported in the Results section. Measures Six instruments were utilized in the current research investigation: the Exposure to Violent Media Questionnaire (Levermore, 2003); the Legitimacy of Aggression Questionnaire (Erdley & Asher, 1998); Levenson Self-Report Psychopathy Scale (Levenson, Kiehl, & Fitzpatrick, 1995); the Aggression Questionnaire (Buss & Perry, 1992); the Lifetime History of Aggression Questionnaire (Coccaro, Berman, Kavoussi, & Hauger, 1996); and the Children’s Interview on Community Violence (Hill, 1991). Exposure to Violent Media Questionnaire: The Exposure to Violent Media Questionnaire is a 30-item questionnaire designed by Levermore (2003) to assess an adolescent’s amount and type of exposure to violent media. Aggression Questionnaire: The Aggression Questionnaire (AQ) (Buss & Perry, 1992) assesses personality traits and beliefs related to different aspects of aggression including physical aggression, verbal aggression, anger, and hostility. Legitimacy of Aggression Questionnaire: The Legitimacy of Aggression Questionnaire (LAQ) is a 16-item questionnaire originally designed by Erdley and Asher (1998) to measure children’s beliefs about the legitimacy of aggression. Levenson Self-Report Psychopathy Scale: The Levenson Self-Report Psychopathy Scale (LSRP) (Levenson, Kiehl, & Fitzpatrick, 1995) is a 26-item self-report inventory that provides statements that describe people’s likes and attitudes. Lifetime History of Aggression: Lifetime History of Aggression (LHA) (Coccaro, Berman, Kavoussi, & Hauger, 1996) is a nine-item scale designed to assess the frequency with which an individual is engaged in a number of verbally or physically aggressive acts. The Children’s Interview on Community Violence: Children’s Interview on www.acfei.com

Community Violence (Hill, 1991) is a measure consisting of 27 items that assess the level of exposure to violence that children have observed or experienced, as well as how violence was responded to by the child in his/her environment. Procedure Upon meeting the participants, the researcher briefly described what was involved in the study and obtained informed consent. The consent forms were filed separately from the questionnaire responses and demographic information, and thereafter each questionnaire was only identified by a participant number. These actions were taken in order to ensure complete anonymity. Analyzing the data for the purpose of this study, which was to look at the relation between amount of exposure to violent media and selfreported aggression, was accomplished through correlational analyses between certain variables on the exposure to violent media questionnaire and the other measures utilized in this study. The researchers sought to determine the relationship between childhood experience of violence and aggression, demographics and aggression, violent video game play and aggression, and extracurricular activity and aggression. Finally, an examination of whether or not exposure or demographic variables could predict aggression was also conducted. Results Demographic Characteristics of the Sample Of the 127 participants who took part in this study, all 127 provided answers to all of the questions regarding demographic information. Demographic characteristics of the obtained sample can be found in Table 1. The average age of the students sampled was 17 years, with the sample consisting of 1.6% of individuals aged 14, 0.8% of individuals aged 15, 15.0% of individuals aged 16, 44.1% of individuals aged 17, and 38.6% of individuals aged 18. Of the students who participated in this study, 0.8% were in the ninth grade, 13.4% were in the tenth grade, 36.2% were in the eleventh grade, and 49.6% were in the twelfth grade. The ethnic backgrounds of the students were comprised of Caucasians (74.8%), AfricanAmericans (9.4%), Hispanic Americans (9.4%), Asian Americans (5.5%), and Native Americans (0.8%). Findings revealed that 2.4% of the participants reported a history of commitment placement, either in a juvenile detention facility or in an inpatient psychiatric hospital setting, while 97.6% did not report any such history. Only (800) 592-1399

Table 7 Correlations Among Extracurricular Activities and Videogames EA RA AIC MTK REV EA .15 .17 .02 .04 RA .56** -.08 -.19* AIC -.10 -.08 MTK .31** REV FPS GTA Note: * p < .05; ** p <. 01.

FPS .21* -.25** -.15 .29** .52**

GTA -.08 -.10 -.15 .52** .32** .25**

EA: Extracurricular Activities RA: Religious Affiliation AIC: Active Involvement in Church MTK: Mortal Kombat™ REV: Resident Evil™ FPS: First Person Shooter Games GTA: Grand Theft Auto™

Table 8 Correlations Among Extracurricular Activities and the Aggression Questionnaire EA RA AIC AQ PA VA EA .15 .17 -.08 -.12 -.18* RA .56** -.29** -.31** -.21* AIC -.23** -.29** -.24** AQ .80** .57** PA .28** VA A H Note: * p < .05; ** p <. 01.

A .07 -.20* -.08 .82** .58** .30**

H .05 -.09 -.01 .67** .30** .18* .51**

EA: Extracurricular Activities RA: Religious Affiliation AIC: Active Involvement in Church AQ and its subscales PA, VA, A, and H: Aggression Questionnaire

Table 9 Regression Analysis for Aggression by Active Involvement in Church and Direct Exposure to Violence Aggression Predictor

r2part

Active Involvement in Church Direct Exposure to Violence

.05* .08*

-.21** .18**

Note: The r2part is the proportion of variance accounted for when controlling for all other predictors. Betas represent unique effects in each step of analyses. * p < .05. ** p < .01. N = 127.

Summer 2009 THE FORENSIC EXAMINER® 37

4.8% of the study population reported having violent charges listed on their respective juvenile justice face sheets, while 95.2 % did not report any such charges. Of the 4.8% of individuals who did have violent charges listed on their respective juvenile justice fact sheets, 1.6% were for assault, 0.8% were for resisting arrest with violence, 0.8% were for battery, 0.8% were for unlawful use of a weapon, and 0.8% were for violation of probation through violent means. A majority (85.8%) of the study population reported having a mother living in the home, while 14.2% reported not having a mother living in the home. This is compared to 70.9% who reported having a father living in the home, while 29.1% reported not having a father living 38 THE FORENSIC EXAMINER® Summer 2009

in the home. Only 5.5% reported having a parent with a history of incarceration, while 94.5% did not report any parental history of incarceration. Only 2.4% reported having a parent with a history of mental illness, while 97.6% did not report any parental history of mental illness. While 3.1% reported being neglected as a child, 96.9% did not report any history of neglect. Only 8.7% reported suffering some type of trauma during childhood, while 91.3% did not report any childhood history of trauma. While 6.3% reported being abused as a child, 93.7% did not report any childhood history of abuse. Finally, 9.4% reported having a childhood history of bullying, while 90.6% did not report any childhood history of bullying. Of the individuals sampled, 42.5% reported playing videogames at home, while the other 57.5% did not. While 29.9% of individuals reported playing videogames alone, 52% reported playing videogames with friends, and 18.1% of the sample reported they did not play videogames at all. Of those who did report playing videogames, 54.3% reported playing videogames at someone else’s home, while 45.7% did not. Twenty-six percent of the sample reported playing Mortal Kombat™, 11% reported playing Resident Evil™, 19.7% endorsed playing any number of first-person shooter games, 47.2% endorsed playing Grand Theft Auto™ (either Grand Theft Auto III™, Grand Theft Auto: Vice City™, or Grand Theft Auto: San Andreas™), and 45.7% endorsed playing any number of sports-related video games. Of those individuals who endorsed playing video games, they played an average of 1.9 hours per day, with a range of 1 hour to 20 hours. A total of anywhere from 693.5 to 7,300 hours of video game play were reported per year. Of the individuals involved in this study, 53.5% reported a violent movie as the last movie they saw in the theater, and 33.1% reported a violent movie as the last movie they saw at home. A percentage of 24.4 of the individuals surveyed reported playing laser tag, and 14.2% reported playing paintball. Those individuals who endorsed playing paintball reported a range of playing the game one to four times per month, with an average of paintball play two times per month. Individuals also reported 4.2 hours of music listening per day, with a range of zero to 18 hours per day. Relationships Between Aggression Measures Correlational analyses were conducted to investigate the nature of the relationship between aggression as measured by the Aggression Questionnaire by Buss and Perry, and the www.acfei.com

other measures utilized in this study including the Lifetime History of Aggression Questionnaire (LHA), Legitimacy of Beliefs about Aggression Questionnaire (LAQ), and the Levenson Self-Report Psychopathy Scale (LSRP). The Aggression Questionnaire was significantly correlated with totals from the LHA, LAQ, and LSRP at r = .64, .53, and -.62, p <.01, respectively. Further correlation analyses were conducted to determine the relationship between the other measures in the study, including the LHA, LAQ, and LSRP. The LHA was significantly correlated with the LAQ and the LSRP at r = .47 and -.57 respectively, p<.01. The LAQ was also significantly negatively correlated with the LSRP at r = -.53, p<.01. All of these values can be found in Table 2. Correlational analyses were also utilized to examine the nature of the relationships between the different aggression scales produced by the Aggression Questionnaire, including physical aggression, verbal aggression, anger, and hostility, and the different measures used in this study. Physical aggression showed a significant positive relationship with total aggression (r = .80), the LAQ ( r = .67), and the LHA (r = .67), and a significant negative relationship with the LSRP (r = -.54), p<.01. Verbal aggression showed a significant positive relationship with total aggression (r = .57) and the LHA (r = .33), as well as a significant negative relationship with the LSRP (r = -.32), p<.01. Total anger showed a significant positive relationship with total aggression (r = .82), the LAQ (r = .30), and the LHA (r = .50), as well as a significant negative relationship with the LSRP (r = -.53), all with p<.01. Hostility showed a significant positive correlation with total aggression (r = .67), the LAQ (r = .31), and the LHA (r = .28), as well as a significant negative correlation with the LRSP (r = -.35), all with p<.01. Demographics, Childhood Experiences, and Aggression While examining specific demographic variables, childhood history of neglect was found to be positively correlated with childhood history of trauma (r= .43, p<.01), childhood history of abuse (r = .70, p<.01), and childhood history of bullying (r = .49, p<.01). Moreover, the individuals in this study who reported experiencing trauma in their childhood showed a significant positive correlation with a childhood his(800) 592-1399

tory of abuse (r = .38, p<.01), but not with a childhood history of bullying (r = .16, p<.01). In addition, those who reported being abused as children showed a significant positive correlation with a childhood history of bullying (r = .31, p<.01). These values can be found in Table 3. Examination of the race of the subjects in this study and total aggression did not reveal any significant findings (r = .14, p<.05). There was, however, a negative correlation between school dropouts and a mother living in the home (r = -.22, p<.05), while there was no significant correlation between school dropouts and a father living in the home (r = -.14, p<.05). Furthermore, there was a significant negative correlation between a father living in the home and a childhood history of trauma (r = -.30, p<.01). A significant positive correlation was found between total lifetime history of aggressive behavior and a childhood history of neglect (r = .18 p<.05). A significant negative correlation was found between a mother living in the home and a childhood history of neglect, with a correlation of r = -.19, p<.05. Additionally, a mother living in the home was also significantly negatively correlated with a childhood history of abuse (r = -.36, p<.01). Direct Exposure to Violence and Aggression Many subjects reported observing violent acts in their neighborhoods, including witnessing someone being shot who subsequently died, someone being shot who subsequently did not die, someone being stabbed, gang violence, someone getting beat up, and a robbery that involved someone getting beat up. Direct exposure to these violent acts showed a significant positive relationship with total aggression, as measured by the Aggression questionnaire (r = .30), total positive beliefs about aggression, as measured by the LAQ (r = .25), and total history of aggression, as measured by the LHA (r = .40), with all having p<.01. It also showed a significant negative correlation with the LSRP in the psychopathic direction (r = -.19, p<.01). Furthermore, the total number of violent acts witnessed was significantly positively correlated with the Aggression Questionnaire (r = .20, p<.05) and the LAQ (r = .24, p<.01) and the LHA (r = .40, p<.01). Individuals who reported having had violent acts committed against them, such as

being stabbed, a group of children beating them up, someone beating them up, someone stealing something from them and then beating them up, as well as someone raping them, showed a significant positive correlation with total aggression (r =.21, p<.05), and total lifetime history of aggression (r =.36, p<.01). All of these findings can be found in Table 4. Videogames and Aggression The specific types of videogames these adolescents reported playing, which included Mortal Kombat™, Resident Evil™, any number of first-person shooter games, Grand Theft Auto™ (including Grand Theft Auto III™, Grand Theft Auto™: Vice City, and Grand Theft Auto™: San Andreas), as well as any number of sports-related games, were examined for relationships. Correlation analyses were run to determine the nature of the relationship between the different types of games surveyed. It was found that individuals who reported playing Mortal Kombat ™showed a significant positive correlation with Resident Evil™ (r =.31, p<.01), first-person shooter games (r =.29, p<.01), and Grand Theft Auto™ (r =.52, p<.01). They also had a positive correlation with total amount of video game play in hours (r =.19, p<.05). Those adolescents who endorsed playing Resident Evil™ also showed a significant positive relationship with first-person shooter games (r = .52, p<.01) and Grand Theft Auto™ (r =.32, p<.01), but not with the amount of video game play (r =.15). Those adolescents who endorsed playing first-person shooter games showed a significant positive correlation with Grand Theft Auto™ (r =.25, p<.01) and with the amount of video game play (r =.20, p<.05). Individuals who endorsed playing Grand Theft Auto™ also showed a significant positive relationship with amount of video game play (r =.18, p<.05). Consequently, correlational analyses were conducted and detailed in Table 5 to determine the nature of the relationship between the different types of videogames sampled and the other measures of aggression included in this study. Grand Theft Auto™ was the sole videogame found to be correlated with positive beliefs about aggression (r = .27, p<.01), lifetime acts of aggression (r =.24, p<.01), and increased psychopathy (r = -.27, p<.01). Next, correlational analyses were conducted between the different video games Summer 2009 THE FORENSIC EXAMINER® 39

The Video Game/Violence Controversy The relationship between video games and violence is a controversial, highly debated issue. Numerous studies have been conducted on the subject, with varying results. A shocking 90% of U.S. children partake in video game play, spending an average of 13 hours per week on this pastime. A recent Iowa State University study tried to answer the perplexing question: Are more aggressive children attracted to violent games or do the actual games make the children violent? The study focused on the video game habits of children and teens and how these habits related to their behavior 3 to 6 months later. Researchers studied three groups of adolescents: 181 Japanese students ages 12 to 15; 1,050 Japanese students ages 13 to 18; and 364 U.S. kids ages 9 to 12. Researchers studied the types of games the children played and how often they played them. They asked participants to rate their own behavior in terms of physical aggression and also took into account reports from their peers and teachers. Because aggressiveness is a strong predictor of future bad behavior, researchers took into consideration how aggressive the children were prior to the start of the survey. The results of the study revealed that children who were exposed to more video game violence became more aggressive over time than their less-exposed counterparts, evidence that video games quite possibly cause aggressive behavior. Dr. L. Rowell Huesmann, director of the Research Center for Group Dynamics at the University of Michigan’s Institute for Social Research in Ann Arbor, explains that there are two ways in which violent media can trigger violent action, the first of which is imitation. Children exposed to violence in the media often absorb the idea that the world is a hostile place and that aggressive behavior is an acceptable method of action for dealing with the hostility. The second trigger for violent action is that of children becoming desensitized to violence. “When you’re exposed to violence day in and day out, it loses its emotional impact on you,” says Huesmann. “Once you’re emotionally numb to violence, it’s much easier to engage in violence.” Dr. David Walsh, president of the National Institute on Media and the Family, argues that the incorporation of violence in the media has left us with a “culture of disrespect” in which children are taught that it is acceptable to treat others in an impolite and even combative manner. “It doesn’t mean that because a kid plays a video game they’re going to immediately go out and beat somebody up,” Walsh says. “The real impact is in shaping norms, shaping attitude. As those gradually shift, the differences start to show up in behavior.” Information retrieved from: http://www.cnn.com/2008/HEALTH/family/11/03/healthmag. violent.video.kids/index.html

40 THE FORENSIC EXAMINER® Summer 2009

sampled in this study and the different scales of aggression (physical aggression, verbal aggression, total aggression, anger, and hostility) that are measured in the Aggression Questionnaire. Grand Theft Auto™ was the sole videogame to show a significant positive correlation with total aggression (r =.19, p<.05), as well as the only one to show a significant positive correlation with physical aggression (r =.26, p<.01). Furthermore, Grand Theft Auto™ also showed a significant positive relationship with verbal aggression (r =.18, p<.01), as did Mortal Kombat™ (r =.18, p<.01). First-person shooter games also showed a significant positive correlation with verbal aggression (r =.24, p<.01). None of the video games sampled showed any significant relationship with anger or hostility. Verbal aggression was the only one of the aggression subscales to show a significant positive relationship with amount of video game play (r =.21, p<.05). These findings can be seen in Table 6. Moreover, those individuals who endorsed frequent video game play had a negative correlation with endorsement of non-violent movies as their favorite (r = -.26, p<.01). Extracurricular Activities, Videogames, and Aggression After-school activities, as well as religious-related activities, were examined in regards to their relationship with violent video game play. These findings can be found in Table 7. Individuals who endorsed participating in after-school activities in their neighborhood showed a significant positive relationship with the playing of first-person shooter games (r =.21, p<.01). Individuals who endorsed attending church showed a significant negative correlation with Resident Evil™ (r = -.19, p<.05) and first-person shooter games (r = -.25, p<.01). These after-school activities and religious-related activities were also examined in regard to the nature of their relationship with total aggression, as well as the various scales of aggression on the Aggression Questionnaire. It was found that individuals who reported participating in any extracurricular activities after school showed a significant negative correlation with verbal aggression (r = -.18, p<.05). Furthermore, those individuals who endorsed participating in any group activities in their neighborhood showed a significant negative relationship with the LHA (r = -.18, p<.05). Those who endorsed attending church showed a significant negative relationship with total aggression (r = -.29, p<.05) and a significant positive relationship with the LRSP (r = .27, p<.01). Finally, those individuals who endorsed participating in any activities at their church showed a significant negative rewww.acfei.com

lationship with total aggression (r = -.23, p<.01), the LAQ (r = -.29, p<.01), and the LHA (r = -.19, p<.05), as well as a significant positive relationship with the LSRP (r = .24, p<.01). Also, those individuals who endorsed playing laser tag showed a significant positive correlation with paintball play (r =.43, p<.01). These findings are summarized in Table 8. Influence of Demographic Variables on Aggression Finally, several simple multiple regression analyses were performed in order to examine whether the amount of exposure to violent media or certain other demographic variables, such as involvement in extracurricular activities or active involvement in church, would predict aggression. Scores on the Aggression Questionnaire were regressed onto the scores of several variables of the Exposure to Violent Media Questionnaire and the Children’s Interview on Community Violence. These findings are documented in Table 9. Active involvement in church, including any type of involvement beyond simply attending church, accounted for 5% of the variance in AQ scores, while total number of violent acts witnessed in one’s neighborhood added another 3%. The total variance on the Aggression Questionnaire that was accounted for by active involvement in church and number of violent acts witnessed was 8%. Importantly, each variable made statistically significant contributions to the prediction, betas = -.21 and .18, ts = -2.46 and 2.09, p<.05, respectively. Discussion The present study sought to assess the nature of the relationship between exposure to violent media and aggression by analyzing six self-report questionnaires designed to assess exposure to violent media, aggressive behavior, aggressive beliefs, psychopathy, and direct exposure to violence. These constructs of aggression, lifetime history of aggression, psychopathy, and legitimacy of beliefs about aggression are thought to be interrelated and were hypothesized to show such a relationship. In other words, if a person is aggressive, he or she is also likely to have a history of aggressive behavior, hold positive beliefs about aggression, and have a higher level of pyschopathy than the normal population. Future research must assess the etiology of such likelihoods. (800) 592-1399

Exposure to violent media does appear to have a significant relationship with aggression, lending credence to the belief that “viewers actually do pay attention to cues embedded within programming” and as a result adolescents are “learning from media programs.” Thus, programming policy could be altered in an effort to promote the concept that “television is influential in promoting prosocial behavior” (Hogben, 1998, p. 242). If viewers do learn from what they are exposed to on television or through other forms of media, it would be imperative to create more positive media for children and adolescents in order to teach them more constructive behaviors and attitudes. Moreover, both Mortal Kombat™ and other first-person shooter games did also show a significant relationship with verbal aggression, with first-person shooter games showing the highest correlation with this form of aggression. Additionally, those individuals who engage in one type of violent extracurricular activity, such as paintball or laser tag, are likely to engage in more than one of these activities. The findings of this study also showed a significant positive relationship between those individuals who reported being neglected in their childhood and also reported having been traumatized, abused, and bullied. If an adolescent reported being neglected as a child, he or she tended to endorse more aggressive behaviors.Therefore, it seems there is a relationship between neglect and aggression. Again, future research must assess the etiology of the relationship. Furthermore, there was a relationship between a mother being in the home and a child not dropping out of school, as well as a lower incidence of neglect and abuse. Also, if a father was present in the home, there was a lower reported history of trauma. These findings were interesting and lend credence to the argument of the importance of a twoparent household, and how essential it is to have both a mother and father in a child’s life. These findings are also consistent with previous research that suggests that when children are left unsupervised for periods of time, they are at a greater risk of delinquency (Scholte, 1999). Additionally, adolescents who reported participating in group activities in their neighborhood also showed a significant negative relationship with total aggressive acts in their lifetime. This would lead one to predict that if a child is involved in extracurricular activities, he or she is less likely

to engage in aggression, quite possibly because he or she does not have the time to do so, as time is filled with more socially conforming activities. One finding identified pertained to the nature of the relationship between church attendance, church involvement, and aggression. It was found that individuals who endorsed attending church showed a negative relationship with total aggression, including physical aggression, verbal aggression, and anger, as well as reportedly had engaged in less aggressive behaviors throughout their lifetime and were less psychopathic. Also, those whose involvement in the church was very active endorsed participating in other activities beyond worship services. They also showed a negative relationship with total aggression, including physical and verbal aggression. They also held fewer positive beliefs about aggression and had reportedly engaged in fewer aggressive behaviors throughout their lifetime.They were also less psychopathic. This could be due in part to the focus on character-building often taught in religious organizations, who teach children rules for living and devalue violence and aggression as a way to achieve goals. Future research must address the causal nature of this finding. This was a variable assessed by a measure used in this study and was not a specific hypothesis that was developed in the beginning of this study; it was identified after the fact only as a truly interesting effect. We were able to determine that there were significant relationships between the two constructs of exposure to violent media and aggression, but we could not attribute any causation to either of them due to the correlational nature of the study. The significant findings of this study have major implications for the video game industry and media corporations in general. Rockstar Games’ Grand Theft Auto™ is a widely popular game, but is also highly correlated with aggression, specifically physical aggression. Individuals who have filed lawsuits against Rockstar Games arguing that the game has trained their children to engage in violent acts may have some basis for their argument. Further, violent children appear to be drawn to violent media as illustrated in the present research investigation. Much care must be taken in order to account for this phenomenon. It is also difficult to tease out the impact of exposure to actual community violence in this sample. Future research may seek to control the variable of community violence in Summer 2009 THE FORENSIC EXAMINER® 41

order to increase the robust nature of the findings. However, until a true experiment is conducted examining this relationship, the causal nature of the argument cannot be confirmed. In addition, this study indicated religious affiliation and involvement is significantly negatively correlated with aggression and, as a result, has implications for religious organizations around the world and for further study. References Anderson, C. A., & Bushman, B. J. (2001). Effects of violent video games on aggressive behavior, aggressive cognition, aggressive affect, physiological arousal, and prosocial behavior: A meta-analytic review of the scientific literature. Psychological Science, 12, 353-359. Anderson, C. A., & Bushman, B. J. (2002). Human aggression. Annual Review of Psychology, 53, 27-51. Anderson, C. A., & Dill, K. E. (2000). Video games and aggressive thoughts, feelings, and behavior in the laboratory. Journal of Personality and Social Psychology, 78, 772-790. Baer, J. (1999). The effects of family structure and SES on family processes in early adolescence. Journal of Adolescence, 22, 341-354. Bandura, A., Ross, D., & Ross, S. A. (1961). Transmission of aggression through imitation of aggressive models. Journal of Abnormal and Social Psychology, 63, 575-582. Bandura, A., Ross, D., & Ross, S. A. (1963). Imitation of film-mediated aggressive models. Journal of Abnormal and Social Psychology, 66, 3-11. Bandura, A. (1978). Social learning theory of aggression. Journal of Communication, 28, 12-29. Bradley, E. (Correspondent). (2005, March 6). Can a video game lead to murder? [Television broadcast]. New York: CBS. Browne, K. D., & Hamilton-Giachritsis, C. (2005). The influence of violent media on children and adolescents: A public health approach. The Lancet, 265, 702-711. Buss, A. H., & Perry, M. (1992). The aggression questionnaire. Journal of Personality and Social Psychology, 63, 452-459. Coccaro E. F., Berman, M.E., Kavoussi, R.J., & Hauger, R.L. (1996). Relationship of prolactin response to d-fenfluramine to behavioral and questionnaire assessments of aggression in personality-disordered men. Biological Psychiatry, 40, 157-164. Erdley, C. A., & Asher, S. R. (1998). Linkages between children’s beliefs about the legitimacy of aggression and their behavior. Social Development, 7, 321-339. Gopher, D., Wiel, M., & Bareket, T. (1994). Transfer of skill from a computer game trainer to flight. Human Factors, 36, 387-405. Haridakis, P. M. (2002). Viewer characteristics, exposure to television violence, and aggression. Media Psychology, 4, 325-353. Hayes, S. C., Rincover, A., & Volosin, D. (1980). Variables influencing the acquisition and maintenance of aggressive behavior: Modeling versus sensory reinforcement. Journal of Abnormal Psychology, 89, 25462. Hill, H.M. (1991). Children’s Interview on Community Violence. Unpublished manuscript. Hill, H.M., Levermore, M., Twaite, J., & Jones, L.P. (1996). Exposure to community violence and social 42 THE FORENSIC EXAMINER® Summer 2009

support as predictors of anxiety and social emotional behavior among African American children. Journal of Child and Family Studies, 5(4), 399-414. Hogben, M. (1998). Factors moderating the effect of televised aggression on viewer behavior. Communication Research, 25, 220-247. Huesmann, L. R., Eron, L. D., Lefkowitz, M. M., & Walder, L. O. (1984). Stability of aggression over time and generations. Developmental Psychology, 20, 1120-1134. Huesmann, L. R., Moise-Titus, J., Podolski, C., & Eron, L. D. (2003). Longitudinal relations between children’s exposure to TV violence and their aggressive and violent behavior in young adulthood:1977-1992. Developmental Psychology, 39, 201-221. Joshi, P. T., & Kaschak, D. G. (1998). Exposure to violence and trauma: Questionnaire for adolescents. International Review of Psychiatry, 19, 208215. Kennedy, H. (2002). Computer games liven up military recruiting, training. National Defense, 87, 58-60. Levenson, M. R., Kiehl, K. A., & Fitzpatrick, C. M. (1995). Assessing psychopathic attributes in a noninstitutional population. Journal of Personality and Social Psychology, 68, 151-158. Levermore, M. (2003). The Exposure to Violent Media Questionnaire. Unpublished manuscript. Panee, C. D., & Ballard, M. E. (2002). High versus low aggressive priming during video-game training: Effects on violence action during game play, hostility, heart rate, and blood pressure. Journal of Applied Social Psychology, 32, 2458-2474. Scholte, E. M. (1999). Factors predicting continued violence into young adulthood. Journal of Adolescence, 22, 3-20. Shahinfar, A., Kupersmidt, J. B., & Matza, L. S. (2001). The relation between exposure to violence and social information processing among incarcerated adolescents. Journal of Abnormal Psychology, 110, 136-41. Simons, K. J., Paternite, C. E., & Shore, C. (2001). Quality of parent/adolescent attachment and aggression in young adolescents. Journal of Adolescence, 21, 182-203.

Weisner, M., & Silbereisen, R. K. (2003). Trajectories of delinquent behavior in adolescence and their covariates: Relations with initial and time-averaged factors. Journal of Adolescence, 26, 753-771. Wilson, B. J., Colvin, C. M., & Smith, S. L. (2002). Engaging in violence on American television: A comparison of child, teen, and adult perpetrators. Journal of Communication, 52, 36-60. Zelli, A., Dodge, K. A., Lochman, J. E., Laird, R. D., & Conduct Problems Prevention Research Group. (1999). The distinction between beliefs legitimizing aggression and deviant processing of social cues: Testing measurement validity and the hypothesis that biased processing mediates the effects of beliefs on aggression. Journal of Personality and Social Psychology, 77, 150-166. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 43 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHORS

Monique A. Levermore, PhD is listed in the Who’s Who of African Americans, Who’s Who in the World, Who’s Who in America, Who’s Who of Women, and the Who’s Who of Professionals and Executives. Her clinical psychology private practice has transitioned from the Central Florida region to South Florida. Dr. Levermore’s practice involves direct service to clients, seminar offerings and program development, as well as consulting to local, state, and international agencies. She has extensive experience in inpatient and outpatient psychology, which she earned at Howard University, Johns Hopkins Medical Institutes (Kennedy-Kreiger Family Center), and Harvard Medical School. Special thanks to Dr. Judith Logue and Dr. Nicholas Lim whose support was immeasurable. Visit www.levermore.com for inquiries. Gina L. Salisbury, PsyD is a clinical psychologist currently employed by Adult Admissions Services of Broughton Hospital, a state inpatient psychiatric hospital located in Morganton, North Carolina. Dr. Salisbury received her Bachelor of Arts degree (2003) in Psychology from the University of Kentucky. She went on to receive her Master of Science degree (2005) and Doctorate of Psychology degree (2007) in Clinical Psychology from Florida Institute of Technology. Dr. Salisbury completed her APA-Accredited internship and postdoctoral year at Broughton Hospital, and she obtained her license to practice independently in July 2008. The research included in this article was part of her Master’s thesis and any questions may be directed to her at gina.salisbury@ncmail.net.

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Law CE Enforcement ARTICLE 2: The Relationship Between Virtual and Actual Aggression: Youth Exposure to Violent Media (Pages 32-42) 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 2 continuing education credits:

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

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1. Identify the extent to which young children and young adults are exposed to violent media. 2. Have a deeper understanding of the adverse nature of violent media in the sample provided. 3. Recognize the psychological theories most relevant to the understanding of attitudes toward aggression.

KEYWORDS: exposure to violence, violent videogames, aggression, adolescents, religion TARGET AUDIENCE: Psychological professionals PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose. PREREQUISITES: None

ABSTRACT Previous research has examined exposure to violent media and the relationship between exposure and various forms of behavior. The predominant theory to explain these relationships is social learning theory made popular by Bandura (1978). The present research investigated the role of social learning theory through exposure to violent media and its’ relation to aggression. Demographic variables were researched in order to illustrate their relationship to aggression. One hundred and twenty-seven high school students from a public high school in Florida, between the ages of 14 and 18 participated in the current investigation. Several questionnaires were administered to determine perception about exposure and actual exposure to violent videogames. Perception about aggression was also assessed. Results revealed the nature of the relationship between exposure to violent media and aggression. One violent videogame was specifically shown to relate to total aggression. Religious affiliation was shown to be negatively correlated with aggression.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 Most psychological research about aggression is focused on a. treatment. b. assessment. c. exposure. d. cause.

4 Once an individual develops aggressive tendencies, a. he/she is prone to keep those tendencies for the rest of their life. b. he/she develops nasty attitudes. c. he/she is more likely to get arrested. d. none of the above.

2 Bandura and colleagues (1963) found that a. behavior could not be successfully modeled by film. b. children should be mentored by their parents. c. individuals who witnessed aggressive behavior on film exhibited twice as much aggression as those who were not exposed to violent film content. d. Bobo was rude to the children. 3 Violent media has been shown to affect an individual’s a. cognition. b. affect. c. arousal level. d. all of the above.

5 According to Browne and Hamilton-Giachritsis (2005), there is consistent evidence that violent media has substantial short-term effects on arousal, thoughts, and emotions, increasing the likelihood of a. aggressive behavior in younger children. b. aggressive attitudes. c. psychopathology. d. none of the above.

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ACTIVITY MONITORS AKA: Cell Phone and Computer Eavesdroppers

CE ARTICLE: 1 CE CREDIT

46 THE FORENSIC EXAMINER® Summer 2009

This article is approved by the following for continuing education credit: The American College of Forensic Examiners International provides this continuing education credit for Diplomates. After studying this article, participants should be better able to do the following: 1. Understand the various ways that eavesdropping can be accomplished by modern technology. 2. Guard against illegal eavesdropping. KEY WORDS: key loggers, wiretaps, bugs, transmitters, Trojans TARGET AUDIENCE: Security professionals PROGRAM LEVEL: Basic DISCLOSURE:The author has nothing to disclose. PREREQUISITES: None

By Louis L. Akin, LPI Thanks to the hefty law enforcement and civilian security budgets that drive the industry, eavesdropping technology has been booming for three decades, and invasions of privacy are easier to accomplish today than in any time in history. Cell phones can be turned on remotely to listen to live conversations, carrier current monitors can be attached to electrical house or office wiring to listen to what is being discussed inside, and keystroke loggers can be attached to or installed in computers to capture every password that is typed and every e-mail that is sent or even read. Small GPS locators can be placed on cars or motorcycles to monitor by remote computer every place the vehicle travels and record the exact address of each stop—and it’s all done in real time. It’s so easy to do that it’s hard to resist doing it, legally or illegally. Who is going to know? This article is for law-abiding people who would like to learn some of the technology available and how it is utilized. Just because you’re paranoid doesn’t mean someone isn’t eavesdropping on you. www.acfei.com

An attorney and an expert witness are sitting in a café having coffee while on recess in a major case. They turn off their cell phones so no one will interrupt them, and both lean forward for a serious tête-àtête about the expert’s testimony. But they are not the only ones interested in their discussion—unknown to them, a third party miles away remotely turns on the attorney’s cell phone and records every word of the conversation. When the conversation ends, the expert witness turns on his phone, calls his office, and gets the latest on what his assistant has developed on the case. The third party records that conversation too, and while she is at it, downloads all the text messages and e-mails the expert has on his cell phone. She also downloads the telephone numbers, dates, exact times, duration of the conversations, and the locations at which the expert was for every call that has been placed or received on his cell phone for the past month. Unbelievable? Not at all. It’s happening. Eavesdropping has been around as long as eaves, the beams that form the two long sides of an A-frame roof. Eavesdroppers supposedly used to climb to them to listen in on private conversations. Today, that kind of physical eavesdropping is no longer a credible threat. While it may be trespassing, or possibly burglary, the Omnibus Crime and Safe Streets Act (1968) doesn’t prohibit it. Technical surveillants, many of whom prefer to be addressed by the more Orwellian “Activity Monitors” appellation, have developed technical means of invading privacy. Common telephone taps are as old as the 1940s, but have grown progressively more sophisticated. The hook switch bypass was a device that circumvented the off button on the receiver of the old rotary dial telephones. In effect, the telephone microphone could be turned on remotely just as if it were off the hook and someone miles away could listen to what was being said in a room. In the 1950s, Manny Middleman devised a way to activate a hookswitch bypass by calling a telephone on which one was installed (which required a previous burglary to plant the hookswitch) and blowing a certain key on a harmonica into the phone. He could then listen to conversations for as long as he liked from wherever he liked. Taps are devices that are placed on telephone lines for purposes of covert eavesdropping. Bugs are devices placed in a room (800) 592-1399

or area for the same purpose. Transmitters are physical objects that are easy to hide because of their incredibly small size, but they still require entry into the target area to plant (Electronic Surveillance Counterterrorism, 1989a). San Francisco private investigator Hal Lipset waltzed around a cocktail party in the 1960s with a transmitter hidden in an olive in his martini (Holt, 1993). The toothpick was hollowed out for the antennae. This was a considerable feat, considering he did it around the time when color televisions were beginning to appear in American homes. Eavesdropping devices have kept abreast of the times, advancing from ultra-sophisticated electronics such as tiny frequencyhopping burst transmitters that compress and store conversations and then transmit them through the air in short bursts that hop about in a preset pattern amongst mul-

“Eavesdropping devices can be physically installed on cell phones or computers in a matter of seconds by an intruder.”

tiple frequencies (Electronic Surveillance Counterterrorism, 1989b). To receive the messages, the eavesdropper has to know not only when they are going to be transmitted, but the exact order of frequency hops they will make during the short burst of transmission. The eavesdropper’s receiver has to hop with the transmitter to capture the electronic bursts, then demodulate them. Eavesdropping devices can be physically installed on cell phones or computers in a matter of seconds by an intruder (who may be a cleaning person, inspector, customer, witness, sales person, acquaintance, or burglar) or the device might be sent to the “target” by e-mail or text message. When programs are installed in the latter manner, they are called Trojans, a kind of virus that is packaged as something attractive or expected. For instance, a consumer might get a text message on his cell phone saying “Call (314) 666-1234 to update your Verizon cell phone software,” or “Download free new ring tones or screen savers.” While these messages are usually genuine, they can be faked. When the consumer calls to get the fake update, he or she gets a Trojan that installs in the cell phone as a digital eavesdropping device. No burglary required. The phone will turn on so the eavesdropper can listen to conversations in the room or autodial the eavesdropper and give such private information as the telephone number, date and exact time of each call, and the location, within feet, of each incoming or outgoing call the cell phone owner makes or receives. It will also send any text messages or e-mail to the eavesdropper. Vervata’s $49.95 FlexiSpy Pro tap (“Vervata” and “FlexiSpy Pro” are pseudonames employed to describe an actual product) is one of the latest commercially available cell phone eavesdropping devices on the market, but it isn’t the only one. Many competitors produce similar programs. Anti-virus software companies and tech writers condemn the program as blatant spyware that can turn on a cell phone (just like Manny Middleman used to do) and allow an eavesdropper to listen in on every conversation that takes place within earshot of the cell phone while the owner of the phone thinks it is off. Vervata advertises its product as the “World’s Most Powerful Spy Software for mobile phones. [FlexiSpy Pro] is a mobile phone monitoring application that secretly records all activity on a mobile phone Summer 2009 THE FORENSIC EXAMINER® 47

Advances in technology provide companies with more opportunities to connect with clients and the global market to boost their revenues and awareness. Unfortunately, such communications also create more holes in a company’s security. Companies worldwide face these technological security threats. Web conferences are becoming more widely used for costeffective, efficient communication with multiple sites. The downfall is the difficulty in keeping invite lists private and offering adequate security for lengthy conference meetings. With many video conferencing software programs, companies might not even realize they might have a side channel active on their server. The security threats are even greater with using mobile devices like smart phones. As of last year, nearly half of Asian businesses used mobile devices to send and receive office e-mail, but most companies employed only 33% of the necessary security measures to keep the information confidential. The Symantec group of Asia Pacific offers these tips for keeping corporate mobile devices safe: 1. Put in place adequate protection measures Ensure that there are multiple layers of security such as a firewall or antivirus software and that they are able to run on different mobile platforms. 2. Encrypt data Companies need to implement encryption technology to protect their mobile devices, especially if the users are entrusted with confidential information. This is to prevent important or sensitive data from being stolen. 3. Administer network access control Identify access levels and classify users accordingly on a rigid basis to minimize the impact of data leakage. Information from ZDNet, http:// w w w. z d n e t a s i a . c o m / n ew s / security/0,39044215,62052457,00. htm

on which it is installed. Protect your children, catch cheating spouses—the possibilities are endless.” The possibilities for abuse are endless. According to the Vervata Web site, “You can listen in on calls and read SMS/MMS messages. What’s more, even when the phone is not in use, you can remotely activate the microphone and listen in on non-call conversations. Of course, the legality of this falls in a grey area.” Actually, it’s plainly illegal to use the tap on anyone but your minor children. Vervata adds the limp caveat on its Web site, “If you are the owner of your spouse’s (or child’s) cell phone, you are merely monitoring your property, but if you use FlexiSpy Pro on an unsuspecting neighbour, that’s a different story altogether.” Vervata adamantly denies that FlexiSpy Pro is a Trojan, stating that it has to be consciously installed by a live human. Yet the critics disagree: “This application installs itself without any kind of indication as to what it is. And when it is installed on the phone it completely hides itself from the user,” says Jarno Niemela (2006), a researcher for F-Secure. This is a case in which both parties may be right—at least, on the surface. A person has to consciously install the program, but that person doesn’t have to be the cell phone owner. On the other hand, if it is sent as a Trojan, the person installing it may not know that it’s spyware. The missing words are, “effective legal consent of the cell phone user.” Here’s how the FlexiSpy Pro model works when it is installed: When FlexiSpy Pro.A is installed on the phone it will hide from Symbian’s built-in process menu and it does not have any visible user interface or icon. After FlexiSpy Pro.A is installed on the phone, the only indication that it is installed is that the application removal menu has an additional application named “phones” in the list. This “phones” application cannot be removed with the application manager. FlexiSpy Pro.A has a hidden user interface that can only be accessed using a special code known to the person who has purchased the spying application and has installed it on the phone.

48 THE FORENSIC EXAMINER® Summer 2009

When FlexiSpy Pro.A is active on the device, it will record details of all voice call and SMS information, and then later send those details to the FlexiSpy Pro server. (Niemala, 2006) Law enforcement has a more limited but more easily installed cell phone tap. Once they get your cell phone number, they go to a Web site to find your service provider. Then they obtain a search warrant, call the service provider, and have the provider clone the phone on which they want to eavesdrop. The provider overnights them a chip and thenceforth each time the target uses his or her cell phone to call out or receive calls or text messages, the police receive the calls and record them. No need to pull a burglary, no need to convince someone to use a Trojan, no chance of getting caught. This technique is an update of the lease-line method of tapping land lines that was popular before cell phones came along. Digital cell phone taps may be the newest technology available to the general public, but plenty of the old gear is still around and it works well. FM radio frequency transmitters that sell for $20 in electronics stores make ideal drop bugs, or disposables. Disposables are transmitter bugs that can be left somewhere to transmit until their battery runs dry, and they are then forgotten. The eavesdropper doesn’t have to make a second entry to recover the devices. These bugs are cheap and untraceable, and nearly every law enforcement agency uses them. So do private investigators, persons getting divorced, partners terminating a business relationship, possessive spouses, and others. Carrier current devices are also available at electronics stores and are sold as baby monitor systems. Strip off the baby blue or pink plastic case and the device can be hidden anywhere in the house or building’s electrical system, inside or out. It will transmit conversations from inside the house or office along the AC wiring to a receiver down the line. Room-to-room plugs in intercom systems do the same thing and are used by eavesdroppers for the same purposes. They are also commonly available in electronics stores (National Commission, 1976). More sophisticated devices include light switches and wall plugs that really work to turn on the lights or run the vacuum, but they also work as transmitters when there is conversation in the room. www.acfei.com

Compromising Computers Activity-monitoring software, also known as key logger spyware, has been in circulation amongst amateur and professional eavesdroppers, mainly law enforcement, for at least a decade or more. The FBI was the first agency to acknowledge using it. There are two versions of key logger eavesdropping devices. The first is a hardware device that attaches to the back of the computer and blends in with the other cables. Its disadvantage is that it requires a physical installation and has to be retrieved at some point. The other version of a key logger is software that can be sent by e-mail as a Trojan. It is the more insidious implant. The key logger software programs sell in various stores for around $100-200. The software is easily concealed in e-mail or as a Trojan, and it installs within seconds. Once installed, it gives erroneous file name information and changes its name and position each time the computer boots. Forensic computer analysts are needed to find, identify, and remove them and to make a forensic copy of the hard drive for purposes of evidence and testifying in court. Key loggers give a third party access to every file and document on the target computer’s hard drive. Any strokes of the key will be replicated on the eavesdropper’s computer screen. What the target says in e-mails, instant messaging, documents, spreadsheets, or anything else that comes up on screen will all be revealed to the eavesdropper. Equally as disturbing, the eavesdropper can learn all of the target’s passwords, account numbers, and user names, including bank accounts and any credit cards the target uses online. One key logger software manufacturer advertises this way: WebWatcher is the most trusted name in Activity Monitoring Software, because we do what no one else can: • Monitor in real-time from anywhere • Block ANY webpage based on content or web address • Read Instant Message (IM or “Chat”) Conversations • Read Incoming and Outgoing E-mail • Log every keystroke • Take screenshots • Record online & offline activities • Quickly sift through data using unique keyword system You can watch over your target from anywhere. With WebWatcher’s web-based (800) 592-1399

monitor you can check your recorded data from any computer in the world. • Watch your target’s activities in REALTIME • See what your target is doing as they are doing it! • Using our secure servers, your data is uploaded instantly, giving you the ability to react to situations before they become problems. • It is completely invisible. Designed to meet the exacting standards of intelligence agencies engaged in the war on terror, WebWatcher is completely invisible. Whether you are trying to monitor your computer savvy spouse or the head of your tech department, you won’t be detected. WebWatcher doesn’t appear in the Registry, the Process List, the System Tray, the Task Manager, on the Desktop, or in Add/Remove programs. There aren’t even any visible files that can be detected (WebWatcher)! Anyone who uses computers should heed these advertisements and keep in mind that the sales of spy equipment are of a magnitude sufficient to support an industry. Levels of Surveillance and Sweeps There are four levels of technical surveillance and four levels of technical surveillance countermeasures. The level four “high tech” equipment used by the federal government may be so sophisticated that only the most advanced equipment can find it. On the other hand, federal and city law enforcement agencies are the biggest customers for disposable bugs and taps from electronics stores. So the fact that the federal or municipal governments are doing the eavesdropping does not necessarily mean they are using high tech equipment, but prudence would require a high tech sweep if they are suspected. Mid-level technical activity-monitoring involves the use of good surveillance equipment and an eavesdropper who has a working knowledge of technical surveillance

technology and strategy. Low-level, or level one, eavesdropping includes phone taps and recorders hidden in homes or offices by amateurs. Though they can sometimes be found by accident, they can be easily missed by a person who is conducting a sweep but has not had training in countermeasures. Conclusion Eavesdropping is probably more common today than any time in history. This article did not have room to cover the multitude of micro video cameras that fit inside the button of a shirt, a tie tack, the frame of an ordinary pair of eyeglasses, a wall clock, or baseball cap. And following a person can be done remotely by attaching a small GPS transmitter to his or her car and tracking via satellite. The technology is sophisticated and difficult to detect without using equally sophisticated search equipment. The toys are available to law enforcement as well the public at large. We used to say: “Just because you are paranoid does not mean that someone is not following you.” Now we can add: “. . . listening to every word you say and watching every word you type.”

References

Electronic surveillance countermeasures. (1989a). Advanced course, Jarvis International Intelligence Academy. Tulsa, OK. Electronic surveillance countermeasures. (1989b). Advanced course, Texas A&M Extension Services. Holt, P. (1993). The Bug in the Martini Olive. Random House Value Publishing. Niemela, J. (2006, March 29). “First Trojan spy for Symbian phones.” F-Secure Trojan Information Pages. Retrieved from http://www.f-secure.com/weblog/archives/archive-032006.html National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance. (1976). “Wiretapping and electronic surveillance.” Washington DC: GPO. Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d (1968). WebWatcher Computer Monitoring Software. (n.d). Retrieved from http://webwatchernow.com n Earn CE Credit To earn CE credit, complete the exam for this article on page 50 or complete the exam online at www.acfei.com (select “Online CE”).

ABOUT THE AUTHOR

Louis L. Akin, LPI, is a licensed professional investigator and member of ACFEI in Austin, Texas, with 23 years experience in crime scene investigation and reconstruction. Akin designed and engineered the On Scene Blood Spatter Calculator software that automates recording and calculating blood spatter and authored the pocket manual Blood Spatter Interpretation at Crime and Accident Scenes: Step by Step Field Guide for Medicolegal Investigators, which offers a simplified method of manually collecting, recording, and preserving blood spatter data on scene. www.akininc.com Summer 2009 THE FORENSIC EXAMINER® 49

Law Enforcement CE ARTICLE 3: Activity Monitors AKA: Cell Phone and Computer Eavesdroppers (Pages 47-49) 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:

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

LEARNING OBJECTIVES

KEYWORDS: key loggers, wiretaps, bugs, transmitters, Trojans

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

TARGET AUDIENCE: Security professionals

1. Understand the various ways that eavesdropping can be accomplished by modern technology. 2. Guard against illegal eavesdropping.

PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose. PREREQUISITES: None ABSTRACT Thanks to the hefty law enforcement and civilian security budgets that drive the industry, eavesdropping technology has been booming for three decades and invasions of privacy are easier to accomplish today than in any time in history. Cell phones can be turned on remotely to listen to live conversations. Carrier current monitors can be attached to electrical house or office wiring to listen to what is being discussed inside. Keystroke loggers can be attached to or installed in computers to capture every password that is typed and every e-mail that is sent or even read. Small GPS locators can be placed on cars or motorcycles to monitor by remote computer every place the vehicle travels and record the exact address of each stop—and it’s all done in real time. It’s so easy to do that it’s hard to resist doing it, legally or illegally. Who is going to know? This article is for law-abiding people would like to learn some of the technology available and how it is utilized. Just because you’re paranoid doesn’t mean someone isn’t eavesdropping on you.

POST CE TEST QUESTIONS 1

(Answer the following questions after reading the article)

Taps are devices that are placed a. on telephone lines for purposes of covert eavesdropping. b. on computer lines for keystroke capture. c. in rooms to capture conversations.

4 Eavesdropping devices can be physically installed on cell phones or computers a. in a matter of minutes by an intruder. b. by sending them to the target via regular mail or UPS. c. only if the computer or cell phone is taken in for repair.

2 Bugs are devices placed a. on telephone lines for purposes of covert eavesdropping. b. on computer lines for keystroke capture. c. in rooms to capture conversations.

5 Carrier current devices are a. illegal under federal law. b. sold as baby monitor systems in electronic sources. c. only legally available to law enforcement officers.

3 Transmitters are easy to hide because of their small size, but a. they require entry to the target area to plant. b. the distance they can transmit is limited by the small speakers. c. they have to be hard-wired to the target area and removed afterwards.

6 Key loggers give a third party access to a. every file and document on a target computer’s hard drive. b. any stroke of the key which can be replicated on the eavesdropper’s computer screen. c. what the target says in e-mails, instant messaging, documents, and spread sheets. d. all of the above.

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Summer 2009 THE FORENSIC EXAMINER® 51

CE ARTICLE: 3 CE CREDITS

By Frank S. Perri, JD, MBA, CPA, and Terrence G. Lichtenwald, PhD

When Worlds Collide Criminal Investigative Analysis, Forensic Psychology, and the Timothy Masters Case This article is approved by the following for continuing education credit: The American College of Forensic Examiners International provides this continuing education credit for Diplomates. After studying this article, participants should be better able to do the following: 1. Understand the difference between criminal investigative analysis and forensic psychology. 2. Consider ethical considerations when offering forensic psychological opinions. 3. Implement Daubert factors when evaluating the appropriateness of forensic testimony. KEY WORDS: Reid Meloy, Timothy Masters, criminal investigative analysis, forensic psychology, Roy Hazelwood, sexual homicide, motive fantasy, pseudo-profile TARGET AUDIENCE: Criminal investigators and psychologists PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose. PREREQUISITES: None

his paper offers an analysis of the series of events that occurred when a homicide detective contacted an international expert in forensic psychology to assist in the arrest process and the prosecution of a targeted sexual homicide suspect. The forensic psychologist developed a psychological profile of a killer using narrative and drawings made by the suspect to conclude that the suspect’s fantasy was the motive and behavioral preparation for the sexual murder, regardless of the fact that the forensic psychologist knew that there was no direct or physical evidence linking the suspect to the crime. In this article, the authors examine the case of Timothy Masters, who was arrested and convicted of sexual murder based on the testimony of a forensic psychologist while the opinion of a criminal investigative analyst was ignored.

52 THE FORENSIC EXAMINER® Summer 2009

Introduction It is not uncommon for lay persons to erroneously believe that criminal investigative analysis, commonly referred to as “criminal profiling,” is synonymous with forensic psychology, especially with the rise in popularity of television programs on profiling that incorporate psychological concepts. Further confusion may occur because practitioners in both fields read the same research, interview the same criminals, attend the same seminars, develop professional relationships, and cite one another’s scholarship. However, what happens when forensic psychologists advance opinions about criminal matters based on the extrapolation of academic research on psychological concepts involving sexual homicide cases and reject the opinions of professional criminal profilers who incorporate law enforcement analysis coupled with criminal evidentiary considerations into their work? Timothy Masters, who spent over 9 years in a Colorado prison for the murder of Peggy Hettrick, was released on January 22, 2008. Shortly thereafter, all homicide charges were dropped based on new DNA evidence pointing to other suspects. Masters, who always maintained his innocence, was convicted largely on the testimony of forensic psychologist, Dr. Reid Meloy. His violent sketches and stories produced when he was an adolescent were used as evidence to arrest and convict him in 1999 of killing Peggy Hettrick in 1987, a conviction that was upheld by the Colorado Court of Appeals and the Colorado Supreme Court. Masters’s prosecution raises troubling questions, primarily because it pivoted on the controversial opinions of a board certified forensic psychologist who analyzed Timothy’s sketches and con-

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s Timothy Masters at the age of 15

s Timothy Masters when released from prison

cluded the drawings reflected specific personality traits, a motive and behavioral preparation to commit sexual homicide. Masters was convicted without a single shred of direct evidence, such as a confession, or physical evidence such as DNA, and was sentenced to life in prison without parole. In this article, the authors review the sexual homicide investigation leading to the arrest of Timothy Masters, analyze the reasoning of the forensic psychologist’s theories used to justify the prosecution, include former FBI profiler Roy Hazelwood’s analysis of the sexual homicide that was never revealed to the defense, and provide an analysis of the legal implications of the case together with recommendations for forensic psychological practitioners. The Sexual Homicide Investigation In 1987, 15-year-old high-school sophomore Timothy Masters lived with his father in Fort Collins, Colorado, a university town on the plains east of the Rocky Mountains. On February 11, 1987, the murdered body of Peggy Hettrick was found in a field not far from his residence. Hettrick’s private areas were mutilated; with surgical precision, her killer removed her left nipple, areola, and part of her vulva. She was stabbed in the lower back causing a rib to break and then dragged into a field as evidenced by the drag marks in the soil. The body had been partially disrobed and positioned on its back with the legs slightly apart and arms over the head, exposing the

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right breast and pubic area. After the delivery of the fatal wound, a bloody trail indicated that the perpetrator dragged the victim’s body 103.5 feet into the field where it was found. According to law enforcement, Timothy Masters was an early suspect because he saw the body on the way to school but failed to report it. Without consulting an attorney, he and his dad allowed detectives to search their home and Tim’s school locker, where the police retrieved his writings, sketches, and survivalknife collection. Timothy’s school locker contained a hand-drawn map of what appeared to be the field where Hettrick’s body was found and a sketch of a person dragging a body. In his backpack were two Mother’s Day cards he had made years before, while his mother was still alive. The detectives also found a calendar with a date circled reflecting the date that Timothy’s mother died four years earlier. Peggy Hettrick had been murdered one day shy of the February 12th anniversary of the death of Timothy’s mother. Detective Francis Gonzales found Masters at school, and Masters told him he

Summer 2009 THE FORENSIC EXAMINER® 53

ction knife colle Timothy’s

had seen Hettrick’s body but assumed it was a mannequin put in the field by his friends in an attempt to trick him. Indeed, even the bicyclist who reported the body told police that he too thought it was a mannequin (Yager, Smith, & Goldbaum, 2008). The detectives also found what would become the most prejudicial of the prosecution’s evidence a decade later when Masters was put on trial for Hettrick’s murder: hundreds of extremely violent drawings and stories in his bedroom. Many of the pictures showed stabbings with knives and swords; much of the violence was directed at women. A sketch that would be particularly damning showed a figure that had been shot with arrows being dragged by another figure in the same manner police believe Hettrick’s killer dragged her. While Masters’s volume of drawings raised questions, they did not trigger his arrest because the bedroom and its contents were equally notable for what officers did not find. Officers found no blood and no body parts anywhere in the house. There was no fiber, hair, skin, fingerprints, or other physical evidence that linked Masters to Hettrick, or any eyewitness. The survival knives were tested at the Colorado Bureau of Investigation and found to have no trace of the victim’s blood or DNA. There were footprints, but he lived next to the field and walked through it every day, so his footprints would be present. The police also found a suitcase containing pornographic photographs and a large number of writings and drawings Masters had produced. Additional sets of drawings and writings were seized by police in 1998 when the defendant was arrested. In all, police seized approximately 54 THE FORENSIC EXAMINER® Summer 2009

“Officers found no blood and no body parts in the house. There was no fiber, hair, skin, fingerprints, or other evidence that linked Masters to Hettrick, or an eyewitness.”

2,200 pages of material produced by Masters; over 1,000 of these were admitted at trial. Drawings by Timothy Masters During His Adolescent Years During the interrogation, Timothy’s father sat outside the interview room. After reading Timothy his Miranda rights, officers prodded him to talk about killing, to think like a killer, to talk about what weapons he might use, and where he might put a body, yet Timothy did not confess. By the sixth hour, it was Detective James Broderick’s turn to tell Timothy to come clean about how he fulfilled a fantasy by killing Hettrick: “Why can’t you just say it? Why is it so hard for you to tell me? You got to admit it when it’s over. People get killed in battle, right? Their friends die! A piece in you just died just a minute ago. It’s over. You’re not free anymore” (Moffeit, 2008a). Timothy was interrogated for more than 10 hours without a lawyer. According to Broderick, Timothy failed a lie detector test, but the official report of the test results are lost (Yager et al., 2008). At age 15, Timothy Masters was not arrested, and after high school he joined the navy. In 1992, Detective Linda Wheeler-Holloway thought she had a break on the case when one of Masters’s friends said Masters had told him Hettrick’s nipple was missing. “That’s it. That’s holdback information that only the cops knew” (McLaughlin, 2008). Wheeler-Holloway and Detective Broderick interviewed Masters for 2 days while he was still in the navy, in what was called a “tag-team” interrogation. Timothy had known about the nipple, but a girl in his art class had told him about it (Moffeit, 2008a). www.acfei.com

The detectives checked out the story, and it turned out to be true. Broderick kept battering Masters with questions and at one point forced him to break down in tears (Moffeit, 2008a). The interviews were also witnessed by members of Naval Intelligence and the Federal Bureau of Investigation; a naval intelligence officer asked her, “You sure you got the right guy?” “I don’t know,” Wheeler-Holloway replied (McLaughlin, 2008). Wheeler-Holloway, however, was impressed that Masters disclosed the same story he had 5 years earlier—that he did not report Hettrick’s body because he thought it was a mannequin/ prank, and his stories and drawings stemmed from his ambition to write horror stories like Stephen King. According to court records, Wheeler-Holloway later wrote in a police report, “The FBI agents here believe Tim Masters is innocent, and so do I” (Campbell, 2007). Troubled by a seeming reluctance by the police department to pursue other suspects and to have the FBI perform a profile at her request, Wheeler-Holloway filed the case as cold and later left the department for the Colorado Bureau of Investigation. Even Detective Troy Krenning believed it improbable that a boy could have pulled off such a sophisticated, fetishistic killing. On the first anniversary of Hettrick’s death, Krenning was instructed to sit in a mobile home opposite Masters’s house to perform surveillance of the crime scene in case the killer came back. Krenning stated, however, “My perspective was to get off Masters and take a look at maybe someone else…We seem to be focused on one” (Moffeit, 2008a). Krenning recalled pressing his colleagues for evidence proving that Masters was a legitimate suspect and his colleagues challenging his position by stating, “Prove that Masters did not commit the crime” (Moffeit, 2007b). Krenning replied that his colleagues’ investigatory strategy was the exact opposite of how an investigation unfolds (Moffeit, 2007b). Yet, even with numerous law enforcement colleagues in his own department and the FBI not convinced that Timothy had anything to do with the murder, Detective Broderick was not satisfied with the belief that Timothy was innocent. Broderick said a search of Masters’s bedroom, school locker, and backpack revealed numerous drawings and narratives suggesting the teen was fixated on death and violence. Broderick felt the artwork and stories fit the axiom that sexual homicide suspects generally fantasize about what they are going to do before they do it; in essence, the “fantasy’s a template for the murder they actually commit” (McLaughlin, 2008).

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Timothy’s sketches

Summer 2009 THE FORENSIC EXAMINER® 55

Aerial view of Hettrick’s body

Undisclosed Evidence By the time the case went to trial in 1999, there were investigative and prosecutorial issues that related to exculpatory evidence that could be used to show that the alleged defendant was Hettrick’s body on the field not the culprit, but that was not revealed to the defense. Dr. Allen later For example, prosecutors nevfound the most puzzling wounds, uner told defense attorneys about a sex offender noticed by officers. They were “neatly” executand surgeon living near the field and close to ed cuts inside her genitalia that, like the one on Timothy’s residence where Hettrick’s body was her left breast, must have been made with an found. Police initially considered eye surgeon extremely sharp knife, an instrument different Dr. Richard Hammond as, at the very least, a from the one used to stab her. In 21 years of per“person of interest” in 1987 (Darst, 2007). In forming autopsies, Allen told colleagues, he had 1995, police confiscated more than 300 homenever seen wounds like these (Moffeit, 2008). made videos and over $10,000 worth of porBroderick stated that he never talked to Allen nography when a housesitter found a hidden about whether someone with surgical skill must camera positioned in Hammond’s bathroom have inflicted Hettrick’s wounds: “I can assure you where women’s private areas were videotaped if Dr. Allen’s finding was that only a surgeon could (Reed, 2007). Other cameras were found in have made those cuttings, that would have been a guest bedroom. After bonding out of jail, forensic information he would have certainly told Hammond checked himself in to the Mountain us” (Moffeit, 2008). Interestingly, Meloy also inCrest Hospital in Fort Collins for counseling, dicated that the wounds on Hettrick appeared to where he talked little but revealed on paper an be surgical, but Broderick never disclosed Meloy’s unhappy life, lonely childhood, and voyeurisover 250-page report (Yager et al., 2008). tic tendencies since his teen years (Moffeit, Dr. Warren James, prominent Fort Collins 2008a). OB-GYN, indicated that “the perpetrator would In addition, plastic surgeon Christopher not have been able to cut Ms. Hettrick’s upper Tsoi revealed to police investigator Marsha labia and clitoris if her jeans were pulled up Reed in early 1998 his belief that Hettrick’s above her knees as demonstrated by the crime genital wounds reflected the proficiency of a scene photos during the surgical procedure. Ms. surgeon (Darst, 2007). Though police released Hettrick would had to have been positioned a report showing that Reed set up an appointin a major frog leg position during the surgiment with Tsoi, no report detailing their concal procedure. Based on the surgical precision versation has ever been released (Darst, 2007). of the excision, a general physician would not In addition, during the autopsy of 1987 murhave been able to conduct this procedure, and der victim Peggy Hettrick, the medical exin fact, most surgeons would not be able to peraminer remarked, “A doctor could have done form this type of procedure given the precisethis” (Moffeit, 2007a). Coroner Dr. Patrick ness of the cut. I find it highly unlikely that Allen’s surprise at the surgical precision of her any 15-year-old could perform this precise surwounds was only recently recounted in an ingical procedure given the advanced anatomical terview with Masters’s defense team and fits the knowledge required and the skill necessary to defense’s contention that a 15-year-old could excise the skin tissue of the fraenulum, clitoral not have pulled off such a sophisticated slaygland, and nipple as most surgeons cannot pering (Moffeit, 2007a). form this procedure” (Moffeit, 2007b). 56 THE FORENSIC EXAMINER® Summer 2009

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In addition, Masters’s defense team indicated the police did not look hard enough into Hammond’s background, which included secret credit cards, a possible fake name, and a Denver residence where Hammond taped sexual encounters with another woman. Hammond was arrested for the illegal taping, but he committed suicide before Masters was convicted. Defense attorneys argued that Hammond was never really investigated because he was a social acquaintance of lead prosecutor Terry Gilmore. Prosecutor Gilmore initially denied the claim, but later indicated that he was indeed a social acquaintance of Dr. Hammond (Hartman, 2008). Prosecutor Gilmore and Dr. Hammond had been known to go out together and socialize (Hughes, 2008b). The authors comment on Dr. Hammond not to imply that he was the killer, but rather to indicate that the arguments used by the police and the prosecution against Timothy applied equally or more to Dr. Hammond in terms of investigating him as a possible suspect, especially with the belief that the murder was a sexual homicide. Yet Prosecutor Blair argued, “Who else could it possibly be? Nobody else had a motive, nobody else had the opportunity, nobody else had the weapon” (Hartman, 2007a). “It wasn’t just the fact that he had these drawings … but the number, the sheer number we found,” she said. Blair added, “What we needed to do is demonstrate that this wasn’t just a passing fancy of this kid, this was complete obsession with death, specifically the death of a woman, and try to draw parallels between the drawings and our crime scene” (Campbell, 2008). “We’re talking about fantasy that becomes obsessive” (Moffeit, 2008a). During the trial, the prosecution argued that it was Timothy’s familiarity with the area that the body was found and his love for knives that linked him to the crime. It is apparent that the prosecution was not interested in considering other suspects as possible culprits, especially when Dr. Hammond had his own links to the crime—familiarity with the area, an obsession with women’s private areas and an interest in sexual deviance, ownership of surgical tools that could be used to kill and mutilate, the skills to perform the type of cuts observed by other doctors, as well as the opportunity to commit the crime. Prosecutor Gilmore stated, “I had absolutely no reason to believe he [Hammond] was involved (800) 592-1399

in any way with Peggy Hettrick’s murder . . . it just never occurred to us” (Hartman, 2008). Prosecutor Blair indicated that “Dr. Hammond wasn’t even a blip on the screen . . . no one thought of him, no one talked of him . . . the crimes that he apparently perpetrated are so much different than the Peggy Hettrick homicide” (Hartman, 2008). However, Officer Jack Taylor disputed Blair’s comments, indicating that Hammond and his possibility as a suspect was common knowledge (Hartman, 2008). In addition, Broderick stated that there was no reason to investigate Hammond for Hettrick’s murder: “Where’s the violence? Show me that pattern of violence…We searched [Hammond’s] entire house, and there was nothing to link him to Hettrick’s murder” (Moffeit, 2008a). The special prosecutor reviewing the case indicated that there was no evidence tying Dr. Hammond to the murder because there was no evidence of blood, blood splatter, DNA, fingerprints, hair fibers, confessions, or persons to whom Hammond confessed the crime (Hartman, 2008). Who destroyed Hammond’s video tapes, and why? “I had a lot to do with that,” Broderick says. “It was an ethical decision. Should we re-victimize all these women by telling them they are victims? So it really was an effort to protect them, to preserve these victims’ rights” (Moffeit, 2008a). After viewing several of the videotapes, Officer Mickelson started making connections: the doctor’s close proximity to the Hettrick crime scene and his obsession with women’s genitalia and breasts. He told Detective Tony Sanchez that Hammond should be investigated for Hettrick’s murder. In August 1995, investigators had slated for destruction every piece of evidence they seized from Hammond. “Don’t do it, save the evidence,” Officer Mickelson recalls telling Sanchez after he heard about the plan, knowing that they had reviewed only a small portion of the tapes (Moffeit, 2008a). Mickelson wanted to see if Hettrick may have appeared in any of the tapes, but he tesClose-up of Hettrick’s body tified that at one point he was threatened with

the loss of his job if he continued to pursue the Hammond evidence issue (Hartman, 2008). Sanchez, without elaborating, said there were legal issues behind the destruction, even though Sanchez indicated that Hammond should be investigated; “The seized evidence burned for approximately 8 1/2 hours,” according to an August 15, 1995, report by Sanchez (Moffeit, 2008a). Detective Krenning could not believe they burned every piece of evidence, stating, “I can’t recall one other case where the evidence was taken to a landfill, mashed up with a grater, and then burned” (Moffeit, 2008a). Nine weeks after Hammond’s possessions were destroyed, Broderick phoned forensic psychologist Reid Meloy to have him study Masters’s artwork (Moffeit, 2008a). Also, newly discovered records not disclosed to the defense show that a witness reported seeing a man running in shorts expose himself near where Hettrick’s body was found; the woman who saw the man said he fit Hammond’s description and was seen going in a nearby house (Hughes, 2007c). Prosecutors and police stated in Masters’s trial that Hettrick’s killer could get sexual satisfaction from passing near where he posed her body (Hughes, 2007c). Tom Bevel, a 1999 prosecution witness and blood-spatter expert, told jurors he believed Hettrick was killed at Landings Drive and dragged or carried to the spot where she was found by a bicyclist the next day. Bevel later stated that police failed to provide him “a litany of items” that he had now seen and that led him to believe Hettrick was killed elsewhere and driven to Landings Drive before being dragged to where she was found (McLaughlin, 2008). Bevel was not aware of Hettrick’s clothing until August 2005 when he got a call from

Summer 2009 THE FORENSIC EXAMINER® 57

Barie Goetz, another forensic expert who headed a Colorado Bureau of Investigation crime lab from 1999 to 2004, who stated, “He was never given the physical evidence until I took it to him” (McLaughlin, 2008). Bevel added that Goetz also provided photos and reports he had not seen; “I was never aware all those were available” (McLaughlin, 2008). Bevel said he has never experienced a miscommunication of this level in more than 35 years of testifying as an expert (McLaughlin, 2008). Also, a defense expert recently identified at least a dozen tracks running alongside the blood drag-trail leading to Hettrick’s body as prints from Thom McAn manufactured shoes, not worn by Masters. Yet Broderick’s testimony at trial alluded to only one Thom McAn print and discounted the chance it was tied to the killing (Moffeit, 2007a). Moreover, Masters’s new defense counsel discovered that the FBI had made highquality casts of footprints in the “drag trail’’ leading to the spot where Hettrick’s body was found. The prints did not belong to Masters, nor was the defense notified of the FBI results (Banda, 2008). The Opinion of Forensic Psychologist Dr. Reid Meloy Honorably discharged in 1998 after serving eight years in the navy, Masters moved to California, bought a house in the desert town of Ridgecrest, and began work as an aircraft structural mechanic. Detective Broderick was less convinced of Masters’s in-

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nocence even after his colleagues and the FBI indicated that they believed Timothy was innocent. Broderick sought the opinion of forensic psychologist Dr. Reid Meloy, member of the American Board of Professional Psychology (ABPP). Dr. Meloy received details of the case along with more than 2,000 of Masters’s drawings, stories, crime scene videotapes, Broderick’s interpretation of Masters’s drawings, police interviews with Masters, photographs, maps, and transcripts in order to see if there was a relationship between Masters and the murder. Meloy would eventually conclude from Masters’s drawings and stories that Masters fit the profile of a killer because he was a loner, he came from an isolated or deprived background, he often had violent fantasies, and harbored hidden hostility toward authorities and women (Moffeit, 2008a). However, not turned over to the defense were Broderick’s own interpretations of Masters’s artwork that filled dozens of pages that were dated long before Meloy joined the prosecution’s efforts. On July 24, 1998, Detective Broderick updated prosecutors Gilmore and Blair on the status of Meloy’s work, and in his letter Broderick wrote that he sent Meloy a draft of Masters’s arrest warrant and was waiting for his “approval” (Vaughn, 2007). Meloy was so convinced that Timothy was the culprit that he sent a pretrial letter to then-Larimer County DA Stuart Van Meveren in which he hoped the work of “superb professionals” Gilmore and Blair “will result in a successful prosecution” (Vaughn, 2007). Besides the inclusion of Dr. Meloy as a prosecution witness, there was no new evidence to link Timothy to the murder. By this time, Timothy’s appearance as an adult helped the prosecution’s cause: he had grown into an imposing figure and looked

capable of committing the crime, as contrasted to a skinny 15-year-old adolescent (Yager et al., 2008). Meloy stated, “In my 18 years of doing this kind of work I have never seen such voluminous productions by a suspect in a sexual homicide; that tells us he was preoccupied with sexual violence, violence, sexually sadistic images, images of domination and degradation of women, and he was also fascinated by knives.” Meloy further stated, ‘“After spending six months on the case, I felt I understood the motivations for this homicide and that I had become convinced that Timothy Masters was the individual that had committed this homicide” (Banda, 2008). “Young Timothy killed Hettrick … and, by doing so, had symbolically killed his own mother. A classic case of ‘displaced sexual matricide’ brought on by feelings of abandonment” (Banda, 2008). In court, the prosecution bombarded the jury with Masters’s violent pictures that were shown on a large video monitor. Meloy pointed out features of the drawings that he testified showed a pairing of sex and violence, which was evidence of “picquerism,” the sadistic pleasure derived from stabbing. He also claimed that Masters was interested in the degradation of women and fascinated with weapons and death (Campbell, 2008a). Although Meloy was barred from giving his opinion about whether or not he believed Masters’s pictures and stories implicated him in Hettrick’s murder or that his productions reflected his belief that it was a displaced matricide, Meloy drew a very clear correlation between the circumstances of her death and Masters’s artwork as motive for the homicide. He testified about the characteristics of a sexual homicide and went into detail about how Masters’s productions could be considered a “fantasy rehearsal,” especially a doodle on Masters’s math homework of a knife-wielding hand cutting a diamond shape that Meloy interpreted as a vagina (see left), “which may have been a rehearsal of the genital mutilation” (Campbell, 2008a). According to Meloy, because some of Tim’s drawings were of stabbings, dragging, and so on, they were logically relevant to the defendant’s motive, intent, and plan to commit the crime. The psychologist defined a sexual homicide as one in which there is “primary sexual activity usually involving semen or ejaculation”; yet despite labeling this a sexual homicide, there was no semen found in, on, or near the body (Hartman, www.acfei.com

2007a). He showed how specific pictures could be interpreted to reflect the crime; several showed “blitz attacks,” depicted stabbings that Meloy interpreted as sexual in nature and depicted women as murder victims. He opined that Timothy’s retreat into a fantasy world combined to create a boiling kettle of latent violence just waiting to erupt; “A retreat into such a compensatory narcissistic fantasy world, replete with sexuality and violence, works for awhile, but at a great cost. The unexpressed rage continues, depression may ensue, and anger toward women as sources of both pain (abandonment) and erotic stimulation builds” (Campbell, 2008a). Equally prejudicial was Meloy’s interpretation of a picture Masters drew the day after he saw Hettrick’s body. It depicted one figure dragging another, which was apparently wounded or dead, from behind. The wounded figure was riddled with arrows and blood seemed to flow from its back (see above right). Entirely discounting the presence of the arrows, which had nothing to do with the murder, Meloy wrote in his report that this picture represented the crime as it actually happened. “This is not a drawing of the crime scene as seen by Tim Masters on the morning of February 11 as he went to school. This is an accurate and vivid drawing of the homicide as it is occurring. It is unlikely that Tim Masters could have inferred such criminal behavior by just viewing the corpse, unless he was an experienced forensic investigator. It is much more likely, in my opinion, that he was drawing the crime to rekindle his memory of the sexual homicide he committed the day before” (Campbell, 2008a). Meloy stated, “Sexual homicide represents the solution, particularly in the form it took in this case: If I kill a woman, she cannot abandon me; if I desexualize her (genital mutilation), she cannot stimulate me” (Banda, 2008). “These are not conscious thoughts for Tim Masters, but likely represent the unconscious beliefs that drove his behavior the night of Feb. 11, 1987, when he killed and sexually mutilated Peggy Hettrick, a victim of choice and opportunity. Ms. Hettrick represented all women to Tim Masters” (Banda, 2008). Meloy indicated that either a conflict with a woman in authority or grief over the death of a loved one triggered his murderous outburst (Banda, 2008). According to Meloy, “A trigger mechanism or precipitating event (800) 592-1399

is a particular occurrence in the life of the perpetrator which causes him to act out his fantasies in the real world” (Banda, 2008). Dr. Meloy testified that such an event could be conflict with one’s spouse or girlfriend, grief over the death of a loved one, or conflict with women of authority in a school or employment setting” (Banda, 2008). In this case, Meloy stated that Timothy’s trigger mechanism, which was the catalyst for Timothy to kill, consisted of the argument he had with a female teacher at school about a month prior to the murder. The argument ensued between the female teacher and Timothy because the teacher took away a military manual he possessed. Retired FBI Agent Roy Hazelwood’s Analysis The crux of Masters’s position during the post-conviction process was that Detective Broderick and Prosecutors Gilmore and Blair withheld information from the defense lawyers that could have been used to contradict their case that Masters was a killer; specially-appointed prosecutors agreed that the original prosecutors violated pretrial discovery rules. It was during the review of the violation of pretrial discovery rules that the defense learned that Hazelwood was a retired special agent with the FBI who specialized as an FBI profiler and also had published research on the specific type of crime in question. Moreover, it was learned that Hazelwood’s opinion contradicted the direction the investigation took, the theory of the prosecution, and testimony of the forensic psychologist who was the main prosecution witness. Specifically, among the material not disclosed that should have been were notes Broderick took after a conversation with Hazelwood (Hughes, 2007b)

as well as faxed memos from Hazelwood to Broderick (Goodbee, n.d.). Hazelwood told Broderick that tying the pictures to the crime, since none of them reflected what happened, was “overreaching” (Hughes, 2007b). Hazelwood eventually withdrew from the case after he had concerns over the prosecutors’ trial strategy and psychological theories to be used at trial (Campbell, 2008b.) He also told Broderick that “fantasy is not motive,” contradicting one of the pillars of Meloy’s testimony (Campbell, 2008a). Hazelwood’s opinion is crucial in understanding why Broderick and the police department did not employ Hazelwood or a profiler from the FBI to develop a profile, but instead used the services of a forensic psychologist. The differences between FBI profiles and the forensic psychologist hired for the Hettrick investigation cannot be overstated and the following quote is instructive: “The difference is really a matter of the FBI being more oriented towards investigative experience than [academic psychologists] are,” says retired FBI agent McCrary (Winerman, 2004). The investigative aspect and differentiation between disciplines that McCrary refers to includes trained and experienced law enforcement officers who understand practices and procedures of a criminal investigation, interview and interrogation, search and seizure, reviewing police reports, analysis of intelligence from both physical and witness evidence, evidentiary considerations as to how they impact courtroom testimony, and forensic laboratory reports. Academic forensic psychologists focus more on the offender class rather than attempting to solve an individual case. Academic forensic psychologists are more apt to look Summer 2009 THE FORENSIC EXAMINER® 59

at research of those who have already been caught, analyzing their characteristics and searching for patterns involving how they think, personality traits, and psychological/ social data. The study of the available records supports the observations of McCrary in that at some point Meloy believed that academic research on sexual homicide could replace solid law enforcement investigation protocol as evidence. The authors acknowledge that forensic psychologists can be involved in many different aspects of an investigation; however, one of the most overrated concepts of their work is criminal profiling, and this is where the investigation and prosecution of Timothy Masters strayed. Even University of Wyoming criminal justice professor George Blau considered the hidden Hazelwood commentary criticizing Meloy’s theories particularly troublesome, stating that “Hazelwood destroys the argument of psychological validity” when Meloy attempts to “link the crime scene to Masters’s drawings” (Moffeit, 2007a). In addition to the problems associated with the building of a psychological profile that would have to either ignore or counter the opinions of Hazelwood, Hazelwood stated in a 1997 memo that Hettrick’s death was a “crime of opportunity,” contrary to the prosecution’s theory that Masters snuck out of his trailer home, stalked Peggy, and killed and mutilated her without leaving a shred of evidence (Hughes 2007b). The court transcripts make it clear that Hazelwood never testified and that each of his cautions were rejected by the investigators, the prosecution, and the forensic psychologist. Hazelwood’s opinion about the relevance of Masters’s drawings to the crime directly contradicted Meloy’s eventual testimony, but the conclusions of Hazelwood’s report on the case were never introduced during the 1999 trial or disclosed to the defense (Hughes, 2007b). Masters’s attorney, Fischer, stated, “We would have called Hazelwood as fast as we could have called him…We’ve got it backed up by the leading expert in the world, and these guys hid it from us” (Hughes, 2007b). The formidable obstacle before the forensic psychologist is described by two veteran FBI agents who pioneered the bureau’s psychological profiling program. In the early 1970s, Howard Teten and Patrick Mullany developed the modern investigative approach for the Behavioral Science Unit, which helps trainees to solve crimes 60 THE FORENSIC EXAMINER® Summer 2009

by studying the offender, his or her behavior, and the motivation behind it. Teten stated, “People get the wrong idea of what profiling is…It’s not a psychic thing…You don’t pick out the perpetrator with a profile…Not the individual…You pick out a type of personality” (Banda, 2008). Absent physical evidence, Teten and Mullany said, it would be a mistake to rely on that analysis alone to build a case. Mullany stated that, ‘’We never intended that it would be the sole evidence that would move the case forward…We always intended that it could be a technique to ferret out a suspect… The only thing that should be in court is exact evidence: hair, fiber, DNA. Even if a guy confesses, these are things that need to be put in place’’ (Banda, 2008). Mullany’s comment on the evidentiary aspects of profiling supports McCrary’s observation that the FBI is oriented toward the investigative experience where evidence is still necessary for opinions of culpability to withstand legal scrutiny. The position of McCrary, Teten, and Mullaney is further supported in an article titled The Academic and the Practitioner: Pragmatists’ Views of Offender Profiling (Alison & Goodwill, 2004). Using personality traits as the main foundation for a psychological profile that masquerades as criminal investigative analysis is of significant concern to professionals in the field (Alison et al., 2004). “While it is acceptable to create a profile as an investigative tool, it is not acceptable to focus investigations on the presumption that the profile is wholly accurate, especially when the consequences of such action might have significant detrimental effects on an individual and/or an investigation” (Alison et al., 2004). It is necessary to “distinguish between information that directs an investigation and information that proves guilt, arguing that while offender profiles have been helpful in police investigations, extending their use to provide evidence of guilt is dangerous” (Alison et al., 2004). Moreover, as important as profiling is in terms of solving difficult cases, the reality is that professionals in the field should be aware that, to date, the empirical evidence does not support the scientific validity of profilers’s predictive abilities from crime scene evidence (Eastwood, Cullen, Kavanagh, & Snook, 2006). The authors acknowledge that profilers provide services in addition to predictions about offender characteristics; however, this is arguably the

most frequently requested type of service and the most important task that they perform because the profilers belief about the type of person who committed the crime influences all subsequent types of profiling advice (Eastwood et al., 2006). Analysis of Dr. Meloy’s Opinion

“There have been incidences where juries relied on my opinion and in the aftermath those [opinions] were not supported by evidence.” —Dr. Reid Meloy There are several problems in the way Meloy was employed in this case. Although forensic psychologists may conduct research on criminal profiling, that fact does not make them a profiler. The forensic psychologists who are profilers have had training as profilers and incorporate far more than personality trait theory into their analysis. Regardless of the lack of evidence linking Timothy to the case and the opinion of Hazelwood, Meloy continues to push his own reversed engineered psychological profile matching Masters to the murder. This reverse profiling exists when one first determines who they want the suspect to be and then continues to add characteristics to that individual of the type of person who would commit such a crime by the type of evidence that is collected—in this case drawings and narratives. Furthermore, Meloy did not reveal to the court that Hazelwood did not agree with his opinion, even though during Meloy’s testimony he cites Hazelwood’s scholarship as scholarship he would have relied upon. Meloy never employed any psychological tests to derive the assumptions of personality traits and was left to derive the assumption of Masters’s personality traits from his interpretation of Masters’s drawings, knife collections, and pornographic magazines. The authors believe that a serious ethical issue develops when a forensic psychologist offers a reason for the arrest warrant, assists in drafting the arrest warrant, and testifies on behalf of the prosecution as an expert in the same case he helped build. Criminal investigative analysis is employed as a specific method to analyze crimes and develop a hypothesis about the characteristics of the person who might have committed such a crime; practitioners www.acfei.com

of the field do not contend that such an analysis can identify the individual(s) who committed the offense. “In some ways, [profiling] is really still as much an art as a science,” says psychologist Harvey Schlossberg, PhD, former director of psychological services for the New York Police Department (Winerman, 2004). “We as psychologists do look at database sets on known criminal groups, and that indeed does assist in completing analysis of specific criminal behavior, but such analysis is very different from simply guessing ‘who did it’” (Winerman, 2004). There was no objective analysis in Meloy’s assessment of Timothy’s behavior because he violates his own forensic psychological protocol. For example, Meloy’s own scholarship emphasizes a protocol that, in addition to psychological testing as mentioned above, competent and thorough completion of the clinical interview and the gathering of independent historical data are critically important in arriving at a reliable, valid understanding of the individual (Meloy & Gacono, 1995). Meloy never interviewed Timothy, thus relying on speculation as to what the drawing and narratives signified (Hartman, 2007b). Because Meloy was not employed as a neutral party that would have been loyal to the court, there would have been no reason to subject Timothy to an evaluation by Meloy when Meloy already determined that Timothy was the culprit. According to ethical guidelines for forensic psychologists, “forensic psychologists realize that their public role as “expert to the court” confers upon them a special responsibility for fairness and accuracy in their public statements” (APA, 1991). It is incorrect to opine that fantasy is equivalent to motive when the forensic psychologist does not know the purpose or intent of the fantasy. Having fantasies is not synonymous with the intent to fulfill or perform those fantasies; one only needs to observe all the graphic horror films and novels available to the public. The behavioral science approach mandates that a mental health professional sticks to behavior analysis and never testifies or tries to project psychological theories on to the specifics of a given case. Thus, once a mental health professional abandons this approach as well, the prejudice to a suspect can be insurmountable. Given that one of the authors is a clinical psychologist and has spent the last 20 years working in the criminal justice system providing forensic psychological analysis, the point authoritatively may be made that once the mental health professional begins to champion a cause or a theory as Meloy espoused (either for or against the individual before the court), the objective analysis owed to the court is lost. (800) 592-1399

In fact, according to the American Psychological Association, a forensic psychologist does not take a side; his or her job is to translate psychological terminology in such a way that is acceptable to the legal system (Brodsky, 1991). The reader should be aware of the fact that if the forensic psychologist is testifying for the defense or the prosecution, this does not mean that they are taking sides; the forensic psychologist’s loyalty is to the court. Furthermore, what is interesting is that even Meloy indicated during his testimony that the research on sexual homicide was scant. Meloy testified that current scientific journals have reported that the relationship between sexual fantasies and sexual homicides is tentative and opined that no conclusions can be drawn linking fantasies to conduct. Indeed, the inconclusive nature of this research is apparent when one of the two studies relied upon by the prosecution’s expert is also relied upon for the proposition that “normal people,” that is, persons who do not commit criminal behavior, also engage in deviant sexual fantasies (MacCulloch, Snowden, Wood, & Mills, 1983). If both groups do engage in sadistic sexual fantasies, there is no one causative factor that explains why some act out their fantasies and others do not (MacCulloch et al., 1983). Surveys measuring sadistic fantasy make it clear that it is extremely common and the vast majority of it does not lead to sexual offending (Grubin, 1999). As to rehearsed sadistic fantasy, sadistic situations tend to be rehearsed many times in fantasy and at times are tried out in real life over a number of years (MacCulloch et al., 1983). There was no proof of rehearsal through Meloy’s testimony considering that Meloy never interviewed Timothy to validate his conclusion. Moreover, the defense did call a prominent forensic psychologist, Dr. John Yuille, who stated that the drawings meant nothing. Because research in sexual homicide is relatively new, Yuille does not believe that a correlation necessarily exists between fantasy and homicide; there is room for differing interpretations of the same evidence (Farrell, 1999). In his testimony regarding the current state of research on the relationship between fantasy and sexual homicide, Yuille stated, “the research is flawed” (Masters, 1999). In addition, he indicated that it is difficult to generalize about the link between fantasy and sexual homicide because the sample size in the research is small (Masters, 1999). Furthermore, the research on how frequently normal people engage in sexual fantasies and who do not commit sex crimes is inadequate (Masters, 1999). The research on sexual homicide and its purported application to Masters is simply incor-

Robert R. “Roy” Hazelwood, DABFE, DABLEE, has been regarded as one of the leading pioneers into the study of sexual predators. His work in criminal profiling helped to define the practice, and he has written several books about profiling. He was a supervisor for more than 20 years with the FBI Behavioral Science group, and he remains active as a member of the Academy Group, an organization of former FBI agents and law enforcement officers. He is now Affiliate Professor of Administrative Justice at George Mason University and has appeared as an expert on criminal investigations on numerous radio and television shows. Hazelwood is a commentator for The Forensic Echo. Before joining the FBI, he achieved the rank of Major in the Army Military Police Corp. Holding a Master of Science from NOVA University, he also studied forensic medicine at the Armed Forces Institute of Pathology in Washington DC. He has received numerous awards and certificates from universities, criminal justice associations, and law enforcement agencies around the country. Hazelwood’s early interest in autoerotic fatalities initiated a groundbreaking study that compiled the results of over 150 cases. He also conducted the largest known survey of police attitudes toward rape. With Drs. Park Dietz and Janet Warren, Hazelwood interviewed incarcerated men convicted of sexually sadistic crimes. They then did an involved study of the wives and girlfriends of sexual sadists. With Dr. John Hunter of the University of Virginia, Hazelwood is now researching juvenile sex offenders. Hazelwood is a Diplomate of the American Board of Law Enforcement Experts, and he spoke at the ACFEI 2005 National Conference as a featured presenter.

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rect. For example, research indicated that those who engage in sexual murder tended to be isolated and engaged in anti-social behavior (Grubin, 1994). There is a relationship between sexual abuse in childhood and the mutilation of murder victims. Sexually abused murderers are more likely to mutilate victims than are those offenders not sexually abused (67% versus 44%) (Ressler, Burgess, Hartman, Douglas, & McCormack, 1986). We also see a positive relationship between adolescent sexual victimization and the mutilation of the murder victim (78% versus 42%) (Ressler et al., 1986). Furthermore, early fantasies often give rise to behavior tryouts that are precursors to criminal behavior (Burgess, Hartman, Ressler, Douglas, & McCormack, 1986). Lastly, what is most revealing is a study that found that the frequencies of deviant sexual fantasies in control groups representing “normals” tended to be higher than sex offenders (Langevin, Lang, & Curnoe, 1998). In the Masters case we do not observe evidence of isolation, early try-out behaviors, or abuse. What is amazing is that Meloy relied on the very research that showed that someone like Timothy would be the least likely candidate to commit sexual murder to justify his belief that Timothy did in fact commit sexual murder. It is incorrect to assume that fantasy is a rehearsal to act out when it may serve a number of other purposes for the individual such as wish fulfillment, curiosity, or alleviation of sexual frustration (Langevin et al., 1998). Given that there are no certain behavioral indicators to exclusively confirm characteristics in sadistic sexual fantasy, fantasy does not appear to be associated toward a type of crime (Gray, Watt, Hassan, & MacCulloch, 2003). In addition to the problematic position that the drawings represent sadistic sexual fantasy, Meloy then takes the position that the drawings represent an illustration of displaced matricide, indicating that he killed Peggy Hettrick because Peggy represented Timothy’s deceased mother. The authors went to some length to gather research that would attempt to justify Meloy’s position that Timothy’s actions were a form of displaced matricide. The authors located what we believe to be the only study available prior to the trial, titled “Sexual Homicide by Adolescents,” of which Meloy would have been familiar. The study regards adolescents who commit sexual homicide and was based on the possibility that at least one 62 THE FORENSIC EXAMINER® Summer 2009

of the three cases of adolescent sexual homicide may have represented the adolescent’s displaced rage onto a female victim—rage caused by the mother’s threats of separation through suicide (Meyers, 1994). It is interesting to contrast Meloy’s views on a sexual homicide with what retired FBI profiler John Douglas states in his book The Mind Hunter (1995). Douglas describes a sexual homicide where the victim was found badly beaten. Her nipples had been cut off and placed on her chest, and there were bite marks on her legs and lacerations on her body; she was spread-eagled and tied with her belt and nylons, and an umbrella and pen were placed in her vagina (Douglas, 1995). One of the suspects was a 15-year-old boy who had found the victim’s wallet. However, Douglas dismissed the boy

“...Meloy relied on the very research that showed that someone like Timothy would be the least likely candidate to commit sexual murder to justify his belief that Timothy did in fact commit sexual murder.” as a suspect because the sexual fantasy that pertained to this killer would have taken years to develop (Douglas, 1995). However, Douglas goes on to comment about this particular case after the killer had been apprehended, candidly stating that acting out on fantasies to harm others is a crime, but that in themselves “bizarre and deranged fantasies are not a crime” (Douglas, 1995). Douglas’s insight supports Hazelwood’s commentary that fantasy is not necessarily motive, and MacCulloch et al.’s (1983) research that sadistic situations tend to be rehearsed many times in fantasy and at times tried out in real life over a number of years. Moreover, one year after Timothy was found guilty, Meloy published an article titled “The Nature and Dynamics of Sexual Homicide: An Integrative Review” (2000) where he, on several occasions, mentions

Timothy Masters as a case study of sexual homicide. What is interesting about the article is that he describes characteristics that are common in sexual homicide and cites risk factors that are associated with displaced matricide that would be attributable to Masters—namely 1) a history of mistreatment of women or fantasies of assaulting women, 2) fetishism for female underclothing and destruction of female clothes, 3) expression of hatred, contempt, or fear of women, and 4) confusion of sexual identity. The authors could not find any behavioral evidence to support the inclusion of the above criteria to the Masters case. Meloy’s article attempts to show that Masters would have fulfilled the criteria for the motivation model of sexual homicide as developed by Burgess, Ressler, Douglas, and McCormack and elaborated upon by Ressler et al. in their book Sexual Homicide (1988), but the authors’ next search for evidence to support this theory proved unsuccessful. The authors could not find evidence revealed by the police or Meloy that the criteria outlined in the sexual homicide model applied to Timothy; such evidence could include 1) an ineffective social environment, 2) formative traumatic events in their childhood such as abuse, 3) personality traits such as chronic lying, stealing, cruelty, and destroying property, 4) cognition processes entailing negativity and a desire to control and dominate others, 5) hyperarousal consistent with early trauma and hyperarousal consistent with psychopathy, 6) antisocial acts representing a displacement of aggression, and 7) a feedback filter (learning) where practice makes the crime more closely fit the perfect fantasy. Meloy is, without question, an expert on narcissism and psychopathic personality traits, having published many peer review articles and either authored or edited many books dealing in part or in whole on the topic. Thus, when Meloy stated that “virtually all sexual homicide perpetrators evidence narcissistic and psychopathic personality traits” (Meloy, 2000), these authors were troubled as the traits are not clearly evident in the Masters documents. In a study titled the “Characteristics of Sexual Homicides Committed by Psychopathic and Nonpsychopathic Offenders,” the authors offer empirical research that is at odds with Meloy’s findings that both psychopathic and non-psychopathic persons engage in sexual homicide (Porter, Woodworth, Earle, Drugge, & Boer, 2003). The authors found www.acfei.com

that about 82% of the psychopathic offenders are more likely to engage in sadistic violence during the sexual homicide as opposed to about 52% of the non-psychopathic offender (Porter et al., 2003). Furthermore, the authors of the study indicated that the psychopathic killers more likely tended to kill for thrill and lacked empathy/remorse, while non-psychopathic killers murder because of negative emotions, rage, and/or anger (Porter et al., 2003). By deduction, if Meloy states that Timothy’s drawings and narrative represent anger and rage toward women, the probability that Timothy is psychopathic according to Porter’s research lessens, which would cast doubt on Meloy’s position that all sexual homicide perpetrators evidence narcissistic and psychopathic personality traits. In addition, Meloy discusses how he used the Hazelwood and Warren (1995) components that violent sexual fantasies in sexual homicide cases can be inferred by the perpetrator’s productions, such as inanimate objects, dolls, videos, clothing, photos, drawings, or narratives (Meloy, 2000). Meloy fails to disclose, both in his trial testimony where he refers to Hazelwood and in his article, that Hazelwood indicated there was not enough evidence to suggest that Masters was the perpetrator. In addition, Meloy states that while adolescent sexual homicide perpetrators “are reared in chaotic family environments and are physically abused, most do not have a history of child sexual abuse” (Meloy, 2000). The authors could not find any evidence that Timothy was reared in a chaotic family environment or that he suffered from any type of abuse; in fact, the reports appear to show that he came from a stable household. There were other methods, although none of them are ideal in terms of validity and reliability, for a forensic psychologist to collect information about a person’s character and behavioral inclinations without interacting with the individual. Such methods appear familiar to Meloy as he has advertised that one of his specialties involves remote personality assessments—essentially assessments that do not involve meeting with and interviewing the person under analysis. The authors could not find evidence from Meloy’s trial testimony or any other records that he used a well-known remote personality assessment inventory called the Gittinger Personality Assessment System to assist in his opinion of what behavioral traits Masters harbored, even though it (800) 592-1399

was available prior to Masters’s arrest and trial. In addition, Professor Gerald Post of George Washington University considers other factors in remote personality assessment that have been known for years in the field, including cultural factors, social interaction factors, and peer group comparison factors. For those that do use remote personality assessments, the authors of these remote assessments go to great lengths to advise the reader of the research on their validity and reliability (Krauskopf, 1998). For example, Timothy was placed in a special education class after a teacher discovered some of his disturbing artwork. An article in the Denver Post describes, “In the margins of his notebooks were sketches of dinosaurs with arrows through them, gruesome war scenes described by his Vietnam veteran dad, and horror flicks such as Nightmare on Elm Street that father and son watched together” (Moffeit, 2008a). Timothy enjoyed writing, and his goal was to be another Stephen King. In fact, the authors researched, beginning with the year 1987 and back, for publications by Stephen King that Masters may have read. The authors cross-referenced the themes in King’s novels against themes in Masters’s drawings and stories and were able to find some parallels. For example, the correlations between his drawings depicting murder, Nazi death camps, Nazi sadistic killers, Jews, and an adolescent male student are found in the Summer of Corruption: Apt Pupil (1982). With respect to the psychological dynamics of a 12-year-old son of a dying mother who must fight evil, the authors direct readers to The Talisman (1984). With respect to a son who kills his mother, the reader is referred to the short story The Woman in the Room published in the Night Shift (1978). The authors could not find any evidence that Meloy cross-referenced the stories and drawings to what other adolescents produce, either at the national level or in the particular school Timothy attended. There was no evidence that there was any exploration as to the timing and manner of production of the narratives/drawings and what his thoughts and feelings were prior to, during, and following the productions. For example, Masters was never asked if through the use of his narratives/drawings he hoped to shock others, punish them, or ask for help; Meloy and the court system assumed that his pictures proved that he was a bigot and racist full of hatred for everyone. Judith Challes, the special edu-

cation teacher who knew him best, told his reading teacher, “You know, I’m not at all concerned about them [his writings and drawings],” because most of her kids scrawled horrific images (Moffeit, 2008a). There is no evidence that Meloy took the time to speak to family members or classmates about Timothy or whether they had ever seen his drawings and discussed their significance. Perhaps Meloy or one of his proxies could have asked Ms. Challes if she had any knowledge that Timothy hated women, that he had a desire to commit acts that were depicted in his drawings, if he had hurt others, or if there was a connection between what he said and what he did. Given that one of the authors performs forensic psychological services, this would have been a fertile area to investigate and assist in a remote personality assessment; Timothy spent so much time in the company of those teachers, they would probably know him best. Did Timothy actually possess adolescent psychopathic qualities as Meloy argues in his article? This is an area in which Meloy has written extensively; perhaps interviewing others who knew Timothy may have revealed a behavioral pattern that pointed to him as someone other than a psychopath. Legal Implications

“He admitted his guilt through pictures to us.” —a juror after convicting Timothy Masters What is introduced at a trial as evidence can have a profound impact on how lay persons serving on a jury perceive a person charged with a crime. Courts attempt to filter out evidence that may be inflammatory or prejudicial in order to assure that a defendant receives a fair trial and that he or she is not held accountable for an act because the jury does not like the individual’s character. Courts generally do not allow what is known as a defendant’s “other crimes, wrongs, or acts” to be used against them because of the fear that jurors would focus too much on these other matters and determine the culpability of the accused by how they perceive his/her character. However, there is an exception in the law where a person’s “other crimes, wrongs, or acts” can be entered as evidence in a trial to assist the jury in determining culpability if it goes to something other than a person’s Summer 2009 THE FORENSIC EXAMINER® 63

character, such as the ability to commit the crime, a person’s motive, state of mind, planning, identity, or if it reveals a modis operandi. Courts normally go through a balancing test to determine whether the probative value of letting in evidence of other crimes, wrongs, or acts outweigh the prejudicial effect that it may have on the accused. Thus, if the defendant’s other wrongs or acts reveal motive that can be linked to the charged offense, the court may decide to let the evidence of other wrongs and acts be heard by the jury; even though it is prejudicial to the defendant, the benefit to the jury in linking motive to other evidence is probative in understanding why the crime occurred. The judges on the Colorado Supreme Court that upheld Timothy’s conviction and believed that Meloy’s testimony was useful—known as the majority—opined that Timothy’s drawings and writings, as well as the testimony pertaining to them, were not being offered to prove his character, but to show that he acted in a way that proved his motive for the crime, his deliberation of the crime, his planning and preparation of the crime, his opportunity to commit the crime, and his subsequent knowledge of the crime. The judges who did not believe that Meloy’s testimony should have been allowed—referred to as the minority—opined that the tendency of juries to overvalue other crimes, wrongs, or acts as evidence disclosed at trial is supported by the findings of several empirical studies on jury behavior regarding a defendant’s past activities (Masters, 2002). For example, the studies found that the distaste jurors may have for the defendant’s past activities may tend to distort their perception of the degree of independent evidence necessary to meet the prosecution’s burden of proving guilt beyond a reasonable doubt (Masters, 2002). In other words, the jury disproportionately concentrates on a defendant’s past activities at the expense of considering if there is other evidence that does in fact prove the defendant guilty beyond a reasonable doubt. Yet, in this case there was no other independent evidence necessary to meet the prosecution’s burden unless you accept the majority’s belief of what constitutes incriminating evidence, such as the fact that the victim’s hair was red like Timothy’s mother, that Timothy was familiar with the area where the victim was found, or that Timothy had knives in his collection similar to the weapon possibly used against the victim. 64 THE FORENSIC EXAMINER® Summer 2009

The majority’s assurance that the prosecution did not emphasize or rely on the inadmissible evidence described, in part, as the “sporadic use of ethnic slurs,” mischaracterizes the nature of the inadmissible evidence and the trial proceedings. However, the prosecution emphasized to the jury numerous images drafted by the defendant that glorified the Ku Klux Klan; the Nazi party; killing; and torturing of people based on their racial, ethnic, and religious backgrounds, sexual orientation, and physical limitations, none of which had a connection to the Hettrick homicide but were used, through Meloy, to prove motive (Masters, 2002). The prosecution also highlighted many of these inadmissible, inflammatory examples of racial bigotry through the testimony of Broderick as being proof that the defendant committed this murder. For example, Broderick testified as to drawings that depicted the Nazi death camp welcoming “Each and Every Goddamn Jew” and the caption “Kill the Jew” (Masters, 2002). Broderick also testified as to another drawing that showed doctors using saws, machetes, and knives on people, with a caption stating “I’ve found the cure for AIDS” (Masters, 2002). Research by Bright and GoodmanDelahunty titled “Gruesome Evidence and Emotion: Anger, Blame and Jury DecisionMaking” (2006) concluded that when gruesome photographs, for example, are shown to a mock jury and while all other aspects of evidence remain the same, the rate of conviction increases dramatically as contrasted if no gruesome photographs are presented at trial. If those same gruesome photographs are accompanied by oral testimony describing the photograph, the rate of conviction increases even further (Bright & GoodmanDelahunty, 2006). The reason that the conviction rate dramatically increases just on the introduction of gruesome evidence is because there are emotional reactions that activate the desire to hold someone responsible for the gruesome acts (Bright & GoodmanDelahunty, 2006). Yet in a position contrary to Bright’s research, when the majority is confronted with the issue of the prejudicial impact the hundreds of depictions of drawings and narratives would have on the jurors, they reasoned that the jury’s exposure to violent images through admissible evidence is not substantially influencial; in other words, the jury is desensitized to the disturbing images because of their extensive exposure to them (Masters, 2002).

The lead author of this article works as a criminal trial attorney and has participated in countless criminal jury trials, including homicides. Prior to introducing gruesome evidence in homicide trials, the trial judge places the burden on the party wanting to introduce the evidence to explain its relevance, fully understanding that pictures carry great weight in a juror’s mind; as a result, trial judges frequently limit what jurors will be exposed to because the prejudicial impact of gruesome evidence that could be linked to the defendant is simply too prejudicial to admit. It has also been the experience of this author that jurors tend to stop listening to evidence when they are overcome with negative emotions. The volume of drawings and narratives that were introduced in the Masters trial resulted in the case being decided before it ever began. There was simply too much negative emotion to overcome to convince jurors, who have promised to listen to all the evidence before coming to a conclusion in order to maintain an open mind before deliberations. The Masters case overwhelmingly supports the research by Bright and Goodman-Delahunty (2006) that gruesome evidence can have a disproportionate impact on the willingness to convict and illustrates why it is crucial that the trial court filter evidence that can inflame jurors’ passions and convict based on how they feel about the defendant’s interests/lifestyle. What is equally amazing about the Masters case is that from a legal perspective, the circumstantial evidence was non-existent to extremely weak at best. According to Kevin Heller in his article titled “The Cognitive Psychology of Circumstantial Evidence,” when there is no direct or physical evidence linking a defendant to a crime and the circumstantial evidence is weak, jurors are more willing to find the defendant not guilty because they are capable of thinking of different scenarios that may have explained Hettrick’s death (Heller, 2006). The stronger the circumstantial evidence, meaning the fewer scenarios of alternative culpability, the stronger the probability of conviction based solely on circumstantial evidence (Heller, 2006). Given this author’s trial experience with circumstantial evidence cases, the author would agree with Heller’s position; yet interestingly, the Masters case tends to contradict Heller’s position in that the jurors still found the defendant guilty without direct or physical evidence and non-existent or weak circumstantial eviwww.acfei.com

dence. This observation further supports Bright’s research that the impact gruesome evidence has on juror perceptions cannot be overstated. Without admitting Timothy’s drawings and narratives describing violent, hate-filled racist views, there was no case against him; this is aptly evidenced by what one juror stated after returning a verdict of guilty: “He admitted his guilt through pictures to us” (Farrell, 2000). This is not arguing that gruesome evidence should not be admitted because, by definition, certain crimes inherently have gruesome evidence attached to their acts; however, it is critical that a legal connection linking gruesome evidence to a crime be established so that the justice system can ensure fair proceedings. Yet, the mere fact that a forensic psychologist was permitted to theorize about the defendant’s fantasies depicted in the drawings does not strengthen this weak evidentiary link. The logical relevance of the defendant’s uncharged fantasies is minimal when compared to the overwhelming power of these fantasies to depict the defendant as an evil and bad person (Masters, 2002). Even assuming that some of the drawings and writings would be admissible, there are hundreds and hundreds of pages that have nothing to do with this case. According to the minority, the writings and drawings are not even “acts” as contemplated by the law, but merely reflect, for the most part, a 15-year-old’s fantasies; not one of these 1,000 drawings and narratives concerns this victim personally or reflects the manner in which the victim was killed (Masters, 1999). However, the prosecution was allowed to end their closing argument by urging the jury to convict the defendant because his fantasies proved that he committed this crime: “Please take the time to look at those drawings, read the narratives, study this evidence. The evidence is there. Sometimes it’s hard to find. Sometimes you have to do a little thinking as to how the defendant could draw something like that unless he knew how it happened. Please look and read, study, dig into the paper bags. The evidence is there” (Masters, 1999). In addition, courts have an obligation to ascertain whether expert testimony that is disclosed to a jury actually rises to the standard that it is in fact generally accepted within the scientific community as reliable to support expert opinion under Daubert. The concern is that jurors may rely on information to determine culpability that is un(800) 592-1399

founded, creating a scenario where the prejudice to the defendant denies him/her of a fair trial under the Constitution. The majority indicated that the prosecution presented multiple theories of logical relevance to the Masters case and decided that the scientific principles underlying Dr. Meloy’s testimony were reasonably reliable and that they would aid the jury. According to the majority, Dr. Meloy’s testimony provided an explanation for the seemingly inexplicable, and without it, jurors cannot understand the defendant’s motivation for murder. The Court stated: Dr. Meloy relied on an objective, widely recognized psychological theory, one which was founded on research and study, and one which the trial court determined was generally recognized within the forensic community. His testimony consisted of an objective, complex, and highly developed analysis of the crime scene and Defendant’s productions that had been refined by years of research. As such, it was reliable and insightful information that assisted the jury by placing the crime in context and helping them to understand bizarre and deviant behavior that was unlikely to be within the knowledge of ordinary citizens; it helped the jury understand the significance of material facts in the case. (Masters, 2002) Unfortunately, in order to bolster their legal position on the appellate review of Masters, the majority opined the exact opposite of what the current research and Dr. Yuille indicated on the subject of sexual homicide, in that the role of fantasy is not generally accepted scientific fact in the forensic psychology community. The majority relies upon the prosecution’s expert to link the defendant’s fantasies to this crime, in spite of the failure of the fantasies to show a link to this specific victim and this specific crime. When there is genuine scientific debate over the validity of the expert’s propositions, the non-character purpose of the uncharged acts is much weaker and the danger of use by the forbidden character inference much greater. It is clear from the Masters case that the judicial ruling allowing Meloy to testify reflects the findings of the study titled “Asking the Gatekeepers: A National Survey of Judges and Judging Expert Evidence in a Post-Daubert World” (2001) that concluded judges, especially state court judges, do not know how to apply Daubert guidelines; do not understand scientific evidence; do not know how to ask experts the appropriate

questions, issues of statistical significance, distinctions between reliability, and validity of the hard sciences versus the behavioral sciences; and are in need of judicial education on frequent issues that are brought about by expert testimony such as error rates, validity, and reliability (Gatowski, Dobbin, Richardson, Ginsburg, Merlino, & Dahir, 2001). Moreover, research appears to suggest that jurors, perhaps nonconsciously, assume that all expert evidence admitted at trial has been “approved” by a judge, thus concluding too much about the quality of the evidence presented (Schweitzer et al., 2009). Specifically, jurors assume trial judges review expert evidence before it is presented to them and that any evidence presented to them must be above some threshold of quality (Schweitzer et al., 2009). If trial judges do adhere to Daubert standards, the jurors’ assumptions may make sense but the research indicates that trial judges do a poor job of screening expert evidence, which is unfortunate; the trial judge is implicitly lending credence to the testimony, thus increasing its persuasiveness (Schweitzer et al., 2009). Interestingly, as recent as March 2008, Meloy testified for the prosecution in a death penalty case and admitted under cross-examination and in reference to the Masters case that “there have been incidences where juries relied on my opinion and in the aftermath, those [opinions] were not supported by evidence” (Coberly & Campbell, 2008). Recommendations for Forensic Psychologists

“What gets us in trouble is not what we don’t know, it’s what we know for sure that just ain’t so.” —Mark Twain The introduction of Daubert standards changed the landscape for forensic psychology and as the Supreme Court of the United States stated, admissible expert testimony must be based on more than “subjective belief or unsupported speculation” (Daubert, 1993). The Daubert criteria encompass concerns within the psychological scientific community that expert testimony was at times admitted absent scientifically acceptable theories and methods to support the opinions expressed, and conversely that relevant expert testimony based on reliable, competent research was at times excluded. Judge Richard Posner characterized the Summer 2009 THE FORENSIC EXAMINER® 65

purpose of Daubert as “to protect juries from being bamboozled by technical evidence of dubious merit” (Lloyd, 2006). The authors recommend that practitioners consider the Daubert factors so that legal requirements are upheld and ethical considerations are considered when offering expert testimony. Although not an exhaustive list, some of the Daubert factors used by courts in evaluating the reliability of expert testimony are 1) whether a method consists of a testable hypothesis, 2) whether the method has been exposed to peer review, 3) whether the method is generally accepted with a given community, 4) whether the method is valid and reliable, 5) any known error rates, and 6) is the theory developed “for litigation only.” For example, Meloy uses Masters’s pictures as his measurement of the behavioral rehearsal of the Hettrick sexual homicide, yet there is no data to support his hypothesis. As to reliability, Meloy does not present research that a test used to measure the connection between fantasy and motive to commit sexual homicide produces consistent results that are reliable. As to error rates, how many times was a woman killed where it was argued to be displaced sexual matricide when in fact it was not a displaced sexual matricide? Meloy could not answer this question because there is no data on error rates on this issue. The authors believe that practitioners should consider the ethical implications of their testimony given the impact it may have on an individual’s liberty, and forensic psychologists do have American Psychological Association (APA) ethical guidelines to consider. Too often courts have admitted misleading psychological testimony with the explanation that it could be countered by testimony from opposing experts and by vigorous crossexamination. From the lead author’s trial experience, there are practical situations where vigorous cross-examination may not make juries aware of what, to sophisticated observers, were obvious defects in the testimony, thus ethical considerations should not be ignored just because legal requirements appear fulfilled. The APA, together with other professional organizations, established a set of ethical guidelines for forensic psychologists published in Law and Human Behavior (1991), and although the guidelines do not represent an official statement of the APA, they were endorsed by the American Academy 66 THE FORENSIC EXAMINER® Summer 2009

of Forensic Psychology. All of the guidelines are important, however, because when testifying, forensic psychologists have an obligation to all parties to a legal proceeding to present their findings, conclusions, evidence, or other professional products in a fair manner (APA, 1991). Forensic psychologists do not, by either commission or omission, participate in a misrepresentation of their evidence, nor do they participate in partisan attempts to avoid, deny, or subvert the presentation of evidence contrary to their own position (APA). For example, Meloy mentioned Hazelwood’s research during the trial, but he never disclosed Hazelwood’s opinion that attempting to stretch Timothy’s drawings into behavioral rehearsal and motive was over-reaching. The courtroom testimony clearly illustrates what can happen when opinions that do not support the position taken by the forensic psychologist are either avoided or subverted. The forensic psychologist’s responsibility to make sure that all legal parties understand the validity and reliability issues ensures that the checks and balances built into the legal system can function. Meloy committed a significant blunder by attempting to superimpose his expertise with the Rorschach test to bolster his testimony on the connection between Masters’s drawings and the homicide. In order to avoid undue influence from financial gain, the forensic psychologist maintains professional integrity by examining the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses (APA). In this case, the forensic psychologist made it clear, by way of his own scholarship, that he is interested in and supports psychoanalytic theories. It is evident that the desire to “push” the legitimacy of projectives techniques, at least as practiced by him, as a valid and reasonable method for assessing culpability lead to a tragic error accepted by the Colorado Supreme Court. For example, there is no evidence that Meloy tested a plausible rival hypothesis that the drawings did not reflect what the forensic psychologist projected into the drawings or that perhaps Timothy’s violent stories did not mean that his fantastical imagination gave him a motive to kill. In fact, Timothy indicated that, “My peers seemed to approve of them. . . . They liked those drawings . . . they would offer suggestions so that encouraged me to draw

even more. . . . We would draw horrible gruesome scenes and share it with a guy . . . ‘Oh, that’s cool,’ and pass it back” (Yager et al., 2008). Meloy had access to Timothy’s school records and knew the media adolescents were exposed to; he learned that Timothy was in a special education class, that his peer group liked to draw, and that many of them even thought Timothy’s drawings were cool. Meloy could have used all of this information to form an alternative hypothesis. Meloy was also provided information concerning what Timothy’s fellow students were exposed to by the media. Meloy testified during the trial that he categorized Timothy’s drawings into over thirty themes; however, these were themes that fit into a sexual homicide hypothesis. He never considered a military theme, even though he admitted that many of the drawings had a military theme to them. He never considered that the drawings had a Freddy Krueger horror movie theme or, as Timothy stated, were a reflection of the work of Stephen King— all possibilities that could have been used to form an alternative hypothesis as to why he wrote stories or drew pictures that were violent. Interestingly, in an article Meloy co-authored titled, “Investigating the Role of Screen Violence in Specific Homicide Cases,” he considered relevant the content of movies viewed by a sexual homicide defendant named Lucas Salmon (Meloy & Mohandie, 2001). Lucas Salmon, together with George Woldt, abducted a 22-year-old female, took turns vaginally raping her, and stabbed, cut, and smothered the woman to death as she lay naked on the pavement (Meloy & Mohandie, 2001). Meloy wrote of the common theme in the movies his client watched, such as Blood In, Blood Out . . . Bound By Honor and A Clockwork Orange to explain his pairing of sex and violence and how it would impact Lucas’s behavior. Compare and contrast how Meloy took Timothy’s drawings and cross-referenced the classifications used in sexual homicide such as blitz attack, mutilating etc., but not to any other type of classification that would have formed a different hypothesis. For example, Meloy would have known of Timothy’s books and movies that the police recovered from his home and his desire to write like Stephen King because Timothy revealed this to the detectives on several occasions. Meloy does not appear to extend the same analysis of developing theme consistencies for Timothy as alternative hypotheses. It www.acfei.com

is plausible Meloy did not develop alternative hypotheses because he knew that some of the major drawings would have more in common with non-sexual homicide themes as opposed to the voluminous military, horror movie, and Stephen King themes. The fatal error in not actively seeking information that will differentially test a plausible rival hypothesis is a caution that forensic psychologists should heed. The ACFEI code of conduct also forbids ACFEI forensic examiners from engaging in dual roles, not developing and considering alternative hypothesis, and from creating pseudo profiles. Consider that ACFEI members are not advocates for one side or the other and must maintain objectivity. Members should not intentionally withhold or omit any findings or opinions discovered during a forensic examination that would cause the facts to be misinterpreted or distorted. Moreover, forensic psychologists must avoid giving written or oral evidence about the psychological characteristics of particular individuals when they have not had the opportunity to conduct an examination of the individual as it pertains to conclusions to be drawn by the forensic psychologist (APA, 1991). Forensic psychologists must make every reasonable effort to conduct such examinations and when not feasible, they must make it clear the impact of such limitations on the reliability and validity of their professional testimony (APA, 1991). Meloy had the opportunity to uphold this guideline when he testified by disclosing that there were reliability issues as to his testimony because he did not conduct an examination on Masters, but he did not. Upon Timothy’s release from prison, Dr. Meloy stated that Detective Broderick and the prosecutors “intentionally manipulated his professional opinion by misrepresenting the physical evidence and providing him only a portion of the evidence necessary to make a judgment with respect to Mr. Masters’s psychological state” (Moffeit, 2008b). Meloy indicated that had he known of Dr. Hammond, then he would not have considered Masters to be the killer (Moffeit, 2008b). Meloy reversed his prior opinion believing that Timothy was the killer when he indicated that relative to Dr. Hammond’s likely perpetration, the “probability that Mr. Masters committed the Hettrick homicide was incredibly small” (Carroll, 2008). It was not until it was discovered that Timothy was telling the truth that Meloy offered to create yet (800) 592-1399

another reverse-engineered pseudo-profile that implicated Dr. Hammond as the more likely suspect, even though Dr. Hammond was irrelevant in terms of Meloy’s analysis of the drawings. Again, Meloy had no known direct, physical, or circumstantial evidence that pointed to Dr. Hammond as a more likely suspect. In addition, Meloy never disclosed Hazelwood’s position that is independent of what the police did or did not tell him about the evidence. Moreover, Meloy’s position that he was manipulated is flawed; he would have known that there was no direct or physical evidence used against Timothy, other than his own testimony, because he was present at the trial. The evidence or lack of evidence presented at trial put Meloy on notice as to what exactly was used against Timothy. Furthermore, it was Meloy, independent of what the police disclosed to him, that presented his credentialed testimony as “science” and defended the scientific nature of his testimony as reliable before the jury that used his testimony to find Timothy guilty. Conclusion Timothy’s drawings and their perceived significance to the case proved to be the fatal flaw that produced a series of disasters, the first of which began with a distorted criminal investigation leading to the hiring of a forensic psychologist. The second disaster occurred when the psychologist engaged in projective analysis of the drawings without sound research to support his opinion. This mistake led to the third disaster: a prosecution that ignored all other evidentiary considerations, resulting in the conviction of an innocent person. This conviction created the fourth disaster, which represented the Colorado Supreme Court upholding the flawed testimony of the forensic psychologist while ignoring the most fundamental aspects of Daubert. Forensic analysis clearly has its benefits, as we have seen with Timothy being excluded as a source of DNA on the victim’s clothing, leading to his freedom. However, we also observe that there is a precarious side to forensics that cannot be discounted, especially when we have lay persons who serve as jurors and can be swayed by an expert’s testimony involving drawings. It is critical that if law enforcement does rely on profiling services or forensic psychologists to assist in their investigation, the evidentiary aspects of an investigation should not be

ignored. As of 2008, Timothy appears to suffer from post-traumatic stress disorder (Moffeit, 2008c). His attorneys have encouraged him to see a psychologist, but he is weary, stating that “A psychologist helped put me away” (Moffeit, 2008c). References Alison, L., West, A., & Goodwill, A. (2004). The academic and the practitioner: Pragmatists’ views of offender profiling. Psychology, Public Policy and Law, 10(1/2), 71-101. APA. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15(6). Banda, P. (2008, April 6). Did a psychological profile go too far? Prince George Citizen Retrieved from http:// www.princegeorgecitizen.com/20080406125908/wire/ world-news/did-a-psychological-profile-go-too-farexperts-question-if-practice-is-reliable.html Bright, D., & Goodman-Delahunty, J. (2006, April). Gruesome evidence and emotion: Anger, blame, and jury decision making. Law and Human Behavior, 30(2), 183-202. Brodsky, S. (1991). Testifying in court, guidelines and maxims for the expert witness. Washington, DC: American Psychological Association. Burgess, A., Hartman, C., Ressler, R., Douglas, J., & McCormack, A. (1986, September). Sexual homicide. Journal of Interpersonal Violence, 1(3), 251-272. Campbell, G. (2007, July 15). Convicted man’s appeal puts a lot at stake. Greeley Tribune Retrieved from http://www.greeleytribune.com/article/20070715/ NEWS/107150120 Campbell, G. (2008a, January 5). Fort Collins police face questions in Masters case. Greeley Tribune Retrieved from http://www.greeleytribune.com/ article/20080105/NEWS/272599777 Campbell, G. (2008b, February 1). The Tim Masters case: Chasing Reid Meloy. Fort Collins Now Retrieved from http://www.fortcollinsnow.com/ article/20080201/NEWS/297958975 Carroll, V. (2008, October 23). Psychologist’s fantasy. Retrieved from http://www.rockymountainnews. com/news/2008/oct/23/carroll-psychologists-fantasy Coberly, A., & Campbell, G., (2008b, March 14). Expert in Tim Masters case admits his testimony was not supported by the facts. Greeley Tribune Retrieved from http://www.greeleytribune.com/ article/20080314/NEWS/704078416 Darst, K. (2007, August 24). Masters’s defense: Doctor could have done it. Coloradoan Retrieved from http://www.coloradoan.com/apps/pbcs.dll/ article?AID=/20071106/NEWS01/71107028 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 79. (1993). Douglas, J. (1995). The mind hunter. New York: Pocket Star Books. Eastwood, J., Cullen, R., Kavanagh, J., & Snook, S. (2006, Summer/Fall). A review of the validity of criminal profiling. The Canadian Journal of Police & Security Services, 4(2/3), 118-124. Farrell, J. (1999, March 25). Psychologists clash over meaning behind sexual homicide. Coloradoan Retrieved from http://www.coloradoan.com/apps/pbcs. dll/article?AID=/20071106/NEWS01/71107017 Farrell, J. (2000, April 13). Masters: Prosecution relied on character attacks. Coloradoan Retrieved http://www.coloradoan.com/apps/pbcs.dll/ article?AID=/20071106/NEWS01/71107020 Gatowski, S., Dobbin, S., Richardson, J., Ginsburg, G., Merlino, M., & Dahir, V. (2001, October). Asking the gatekeepers: A national survey of judges and Summer 2009 THE FORENSIC EXAMINER® 67

judging expert evidence in a post-Daubert world. Law and Human Behavior, 25(5), 433-458. Goodbee, F. M. (n.d). Special prosecutor’s offered stipulations. Retrieved from http://i.a.cnn.net/ cnn/2008/images/01/16/timothy.lee.masters.pdf Gray, N., Watt, A., Hassan, S., & MacCulloch, M. (2003, September). Behavioral indicators of sadistic sexual murder predict the presence of sadistic sexual fantasy in a normative sample. Journal of Interpersonal Violence, 18(9), 1018-1034. Grubin, D. (1994). Sexual murder. British Journal of Psychiatry, 165, 624-629. Grubin, D. (1999, March). Actuarial and clinical assessment of risk in sex offenders. Journal of Interpersonal Violence, 14(3), 331-343. Hartman, P. (2007a, June 12). Free Tim Masters because. Retrieved from http://freetimmastersbecause. blogspot.com Hartman, P. (2007b, September). Homegrown fiasco. Retrieved from http://freetimmastersbecause. blogspot.com/2007/10/homegrown-fiasco.html Hartman, P. (2008, March 11). The Hartman report on the special prosecutor’s report. Retrieved from http://freetimmastersbecause.blogspot.com/2008/07/ district-attorney-kenneth-t.html Hazelwood, R., & Warren, J. (1995). The relevance of fantasy in serial sexual investigation. In R. Hazelwood & A. Burgess (Eds.), Practical aspects of rape investigation (2nd ed., pp. 127-138). New York: CRC Press. Heller, K. (2006). The cognitive psychology of circumstantial evidence. Michigan Law Review, 105, 241-306. Hughes, T. (2007a, December 5). Masters’s attorneys focus on transcript. Coloradoan Retrieved from http://www.coloradoan.com/apps/pbcs.dll/ article?AID=/20071205/NEWS01/712050343/1002/ CUSTOMERSERVICE02 Hughes, T. (2007b, December 8). Expert questioned testimony in Masters’s case. Coloradoan Retrieved from http://www.coloradoan.com/apps/pbcs. dll/article?AID=/20071208/NEWS01/712080371 Hughes, T. (2007c, December 4). Prosecutor admits evidence destroyed in Masters’s case. Coloradoan Retrieved from http://www.coloradoan.com/apps/pbcs.dll/ article?AID=/20071204/NEWS01/712040343/1002/ CUSTOMERSERVICE02 Hughes, T. (2008a, January 3). Critical information left out in Masters’s original trial. Coloradoan Retrieved from http://www.coloradoan.com/apps/pbcs.dll/article?AID=/20080103/ NEWS01/801030366/1002/ Hughes, T. (2008b, Januar y 30). Judges investigated in their roles as prosecutors in Tim Masters case. Coloradoan Retrieved from http://www.coloradoan.com/apps/pbcs.dll/ article?AID=/20080130/NEWS01/801300319/1002/ CUSTOMERSERVICE02 Hughes, T. (2008c, Januar y 30). Masters case may have long reach. Coloradoan Retrieved from http://coloradoan.com/apps/pbcs.dll/ article?AID=/20080124/NEWS01/801240375/1002/ CUSTOMERSERVICE02 Krauskopf, C.J., (1998, Winter). The personality assessment system: a radical hypothesis. Applied and Preventative Psychology, 7(4), 235-245. Langevin, R., Lang, R., Curnoe, S. (1998, June). The prevalence of sex offenders with deviant fantasies. Journal of Interpersonal Violence, 13(3), 315-327. Lloyd, R.M. (2006). Proving lost profits after Daubert: Five questions every court should ask before admitting expert testimony. Universty of Richmond Law Review, 41, 379-424. MacCulloch, M., Snowden, P., Wood, J. & Mills, H. (1983). Sadistic fantasy, sadistic behavior and offending. British Journal of Psychiatry, 143, 20-29. 68 THE FORENSIC EXAMINER® Summer 2009

Masters v. People, 01 SC 291 (2002). Retrieved from www.courts.state.co.us/supct/supctcaseannctsindex.htm Masters v. People, 01 SC 291. (1999, March 24). Transcript of Meloy and Yuille, Retrieved from http:// freetimmastersbecause.blogspot.com McLaughlin, E. (2008, January 18). Police split over conviction in Colorado slaying. CNN Retrieved from http://www.cnn.com/2008/CRIME/01/18/masters.cops Meloy, J.R., & Gacono, C.B. (1995). Assessing the psychopathic personality. In J.N. Butcher (Ed.), Clinical personality assessment: Practical approaches (pp. 410-422). Oxford, U.K: Oxford University Press. Meloy, J.R. (2000). The nature and dynamics of sexual homicide: An integrative review. Agression and Violent Behavior, 5(1), 1-22. Meloy, J.R., & Mohandie, K. (2001). Investigating the role of screen violence in specific homicide cases. Journal of Forensic Science, 46(4), 113-118. Meyers, W. (1994, September). Sexual homicide by adolescents. Journal of Clinical Psychiatry, 51, 239-242. Moffeit, M. (2007a, December 20). Undisclosed masters evidence nags. Denver Post Retrieved from http://www.denverpost.com/news/ci_7764830 Moffeit, M. (2007b, August 1). Video: Sketchy evidence. Denver Post Retrieved from http://www.denverpost.com/news/ci_6369280. Moffeit, M. (2008a, January 21). Sketchy evidence raises doubt. Denver Post Retrieved from http://www. denverpost.com/headlines/ci_6373222 Moffeit, M. (2008b, October 21). Masters’s team plans federal suit. Denver Post Retrieved from http:// www.denverpost.com/specialreports/ci_10771564 Moffeit, M. (2008c, December 28). Mending Masters’s broken life. Denver Post Retrieved from http:// www.denverpost.com/popular/ci_11317809 Porter, S., Woodworth, M., Earle, J., Drugge, J., & Boer, D. (2003, October). Characteristics of sexual homicides committed by psychopathic and nonpsychopathic offenders. Law and Human Behavior, 27(5), 459-470. Reed, S. (2007, August 19). Opinions on Hammond as Hettrick’s killer mixed. Coloradoan Retrieved http://www.coloradoan.com/apps/pbcs.dll/ article?AID=/20071106/NEWS01/71107027 Ressler, R., Burgess, A., Hartman, C., Douglas, J., & McCormack (1986, September). Murderers who rape and mutilate. Journal of Interpersonal Violence, 1(3), 273-286. Ressler, R., Burgess, A., & Douglas, J. (1988) Sexual Homicide. New York: Lexington Books. Schweitzer, N. J. & Saks, M. J. (2009). The gatekeeper effect: The impact of judges admissibility decisions on the persuasiveness of expert testimony. Psychology, Public Policy and Law, 15(1), 1-18. Vaughn, K. (2007, December 1). Taking up Masters’s cause. Rocky Mountain News Retrieved from http://www.rockymountainnews.com/news/2007/ dec/01/taking-up-masters-cause West, A. (2000, August). Clinical assessment of homicide offenders. Homicide Studies, 4(3), 219-233 Winerman, L. (2004, July/August). Criminal profiling: The reality behind the myth. Retrieved from http:// www.apa.org/monitor/julaug04/criminal.html Yager, J., Smith, T., & Goldbaum., M. (2008, November 29). Drawn to murder. CBS News. Retrieved from http://www.cbsnews.com/ stories/2008/11/24/48hours/main4630559.shtml n Earn CE Credit To earn CE credit, complete the exam for this article on page 69 or complete the exam online at www.acfei.com (select “Online CE”).

About the Authors Frank S. Perri, JD, MBA, CPA, ACFEI member and lead author of this research project, has worked as a prosecutor and defense attorney in the criminal law field for over 12 years. Areas of concentration include violent and white-collar crimes. Mr. Perri received his Juris Doctor from the University of Illinois, his Master’s in Business Administration from Case Western Reserve University, and his Bachelor of Arts from Union College. In addition, Mr. Perri is a licensed Certified Public Accountant. Mr. Perri’s scholarship includes fraud-detection homicide and application of the developmental smuggling model.You may contact Mr. Perri via e-mail at frankperri@hotmail.com. Terrance G. Lichtenwald, PhD, is a Life Fellow and Diplomate in the ACFEI. He 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. Dr. Lichtenwald has spent 20 years completing forensic, behavioral, psychological, and security evaluations as well as threat assessments. Scholarship interests include fraud-detection homicide, the application of the developmental smuggling model, white-collar crime, and security/threat assessments.

Acknowledgements The authors would like to thank Attorney Wendell Coates and Attorney Susan Kalbantner for their review of the manuscript. www.acfei.com

CE ARTICLE 4: When Worlds Collide (pages 52–68) 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 three CE credits, each participant is required to

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

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

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following: 1. Understand the difference between criminal investigative analysis and forensic psychology. 2. Consider the ethical considerations when offering forensic psychological opinions. 3. Implement Daubert factors when evaluating the apprpriateness of forensic testimony.

KEY WORDS: Reid Meloy, Timothy Masters, criminal investigative analysis, forensic psychology, Roy Hazelwood, sexual homicide, motive fantasy, pseudo-profile TARGET AUDIENCE: Criminal investigators and psychologists PROGRAM LEVEL: Basic DISCLOSURE: The authors have nothing to disclose. PREREQUISITES: None

ABSTRACT This paper offers an analysis of the series of events that occurred when a homicide detective contacted an international expert in forensic psychology to assist in the arrest process and the prosecution as an expert witness against a targeted sexual homicide suspect. The forensic psychologist developed a psychological profile of a killer using narrative and drawings made by the suspect to conclude that the suspect’s fantasy was the motive and behavioral preparation for the sexual murder regardless of the fact that the forensic psychologist knew that there was no direct or physical evidence linking the suspect to the crime. In this article, the authors examine the case of Timothy Masters, who was arrested and convicted of sexual murder based on the testimony of a forensic psychologist while ignoring the opinion of a criminal investigative analyst.

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(Answer the following questions after reading the article)

1 Picquerism is a form of a. saddism. b. narcissism. c. psychosis. d. neurosis.

4 Timothy Masters was found guilty based on a. direct evidence. b. circumstantial evidence. c. physical evidence. d. character evidence.

2 Meloy is a a. medical doctor. b. forensic psychiatrist. c. forensic psychologist. d. investigator.

5 According to Meloy, which would not be a displaced matricide risk factor? a. history of mistreatment of women. b. fetishism of female clothing. c. lack of confusion over sexual identity. d. expression of hatred for women.

3 Masters desired to write like a. John Steinbeck. b. Plato. c. James Joyce. d. Stephen King.

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Summer 2009 THE FORENSIC EXAMINER® 69

CASE STUDY

70 THE FORENSIC EXAMINER速 Summer 2009

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An Atypical Autoerotic Accidental Death By Mechanical Asphyxiation By Dr. Norman R. Goodman, DDS, DABFE, Chief Deputy Coroner #1, and Gary Hartung, Deputy Coroner #2

he following case report is an atypical autoerotic death caused by an accidental mechanical asphyxiation due to autoerotic circumstances. In this case report, the decedent tried to emulate the titillating actions of a variety of pornographic videos, each of which involve the use of mud. Instead of mud, the decedent used a substance known as joint compound (similar to Plaster of Paris). The scene was set: a trash receptacle filled with plaster, a television set playing a pornographic VHS, and walls decorated with provocative posters. The decedent was nude as he entered a plaster-filled trash receptacle. He slipped on the wet joint compound and his head went under the plaster. He gasped for air and aspirated the liquid plaster, which resulted in death by mechanical asphyxia. The manner of death would be considered accidental.

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Summer 2009 THE FORENSIC EXAMINER速 71

s A collection of pornographic video tapes found in the victim’s home

s Petechial hemorrhage

t Trash receptacle with the victim’s hand up and head immersed

Introduction The following case is one that is unique when it comes to autoerotic deaths. The typical autoerotic death is one where the victim attempts to cause a partial anoxia by applying some means of pressure to the carotid arteries in order to produce the sensation of an “orgasm,” resulting in a mishap that causes the victim to expire (Knight, 2003). Dorland Medical Dictionary defines asphyxia as “caused by a lack of oxygen in respired air resulting in hypoxia and hypercapnia,” and autoeroticism as “a sexual feeling directed toward oneself ”(1999). Mechanical asphyxia refers to asphyxia caused by a “blockage of the upper airways by some foreign body” (Knight, 2003). This case of mechanical asphyxia is one with an autoerotic twist, yet it is accidental in manner of death.

72 THE FORENSIC EXAMINER® Summer 2009

Case History A concerned mother called the Pennsylvania State Police because it had been 2 days since her son had shown up to the local pizza shop where he was employed as a pizza delivery man. A Pennsylvania State Trooper and the manager of the trailer park where the man resided arrived to make a “well-being check” (Pennsylvania Police Incident Report). There had been a light snowfall the night before and there were no footprints or tracks to or from the trailer of the missing person. The trailer was an older two-bedroom residence. The subject’s vehicle was parked in the driveway; the doors were locked, and there were no signs of tampering or forced entry of the vehicle. Upon entering the enclosed porch of the trailer, it was noted by the State Trooper and manager that there were many stacks of pornographic magazines, DVDs, and VHS tapes. In the living area, they found many more stacks of pornographic magazines, DVDs, and VHS tapes such as Mud Eroticism, Young Lady—Deep Mud, and Mud Fun. The walls were decorated with provocative posters, and there were numerous empty five-gallon containers of joint compound (plaster) in the spare bedroom. In a bathroom located off of the master bedroom, the Pennsylvania State Trooper discovered a large trash receptacle covered with dry joint compound. In this container, they observed a hand and a submerged body encrusted with plaster. Clothes, money, a wallet, and keys for the vehicle were laid out neatly on the bed, suggesting that burglary was not a motive. The dressing table had many mugs full of coins that were the decedent’s tips, which we were told that he would save for a yearly trip to an adult entertainment/porn convention in Las Vegas. There was an empty joint compound container with a dried impression of a footprint near the trash receptacle and a plaster-covered countertop that would allow for easy access into the receptacle. The television set was on and a pornographic VHS tape was playing and running in continuous mode. The coroner’s office was called to the scene. The deputy coroner noted that the body was tilted to the left, the head and left shoulder were completely submerged in plaster, and the right hand and shoulder were extended as if reaching for assistance. There was no sign of life and the decedent was pronounced dead at the scene. The large trash receptacle containing the body was transported to the morgue for further study (Coroner Case Report). At the morgue, the trash receptacle was cut open with a Stryker saw, allowing the plaster from the receptacle and the plaster-coated decedent to pour onto a tarp on www.acfei.com

the floor. Much of the body was encrusted with plaster. Most of the plaster was peeled and chipped from the body, and the remaining plaster was washed off to reveal a nude body. The external examination noted extensive joint compound present in mouth; petechial hemorrhage of the eyes (Knight, 2003); multiple recent contusions on anterior aspect of both legs; no evidence of any penetrating, perforating, or blunt force trauma; and no evidence of any defensive wounds or bruising. The internal examination revealed extensive joint compound present in the upper aerodigestive tract to include the posterior pharynx, esophagus to the level of the gastroesophangeal junction, and level of the true and false vocal cords; and no evidence of significant natural disease, infection, or congenital abnormality. In his autopsy report, Dr. Richard T. Callery, Forensic Pathologist, cited mechanical asphyxia as the cause of death. The manner of death was classified as an accident. The body was identified by photo identification of a Pennsylvania driver’s license, visual identification by prior association with the Pennsylvania State Trooper, and by the location of scars consistent to the family’s descriptions. Conclusions The decedent was trying to emulate what he had seen in VHS tapes such as Mud Eroticism, except that he substituted joint compound (plaster) instead of mud. The decedent appeared to have slipped on the wet plaster, causing his head to be submerged below the liquid joint compound. When he was unable to upright himself, he tried to breathe, inhaling and aspirating the soft wet plaster and therefore causing the mechanical obstruction. References Callery, R.T. Autopsy Report. Chester County Coroner Case Report. Dorland Medical Dictionary (28th ed.). (1999). Philadelphia, PA: W.B. Saunders Co. Knight, B. (2003). Forensic Pathology (2nd ed.). New York: Oxford University Press, Inc. Pennsylvania Police Incident Report.

Further Readings Byard, R.W., & Bramwell, N.H. (1988). Autoerotic deaths in females: An undiagnosed syndrome? American Journal of Forensic Medical Pathology, 9, 252254. Curran, W.J., McGarry, A.L., & Petty, C.S. (1980). Modern Legal Medicine, Psychiatry, and Forensic Science. Philadelphia, PA: F.A. Davis Co. (800) 592-1399

Marquis de Sade (1740-1814). Justine or The Misfortunes of Virtue. Putnam, New York. Wesselius, C., & Bally, R. (1983). A male with autoerotic asphyxia syndrome: American Journal of Medical Pathology, 4, 341-347.

s Encrusted body on floor

Acknowledgements Dr. Robert O. Satriale, Coroner, Chester County, Pennsylvania Nancy Cheyne, Administrate Assistant to Coroner Tim Walsh, Office Assistant to Coroner Dr. Richard T. Callery, Forensic Pathologist Dr. Linda Edelson-Slocum Dr. Halbert Fillinger, Forensic Pathologist n s Plaster lining the esophagus

ABOUT THE AUTHORS

Dr. Norman R. Goodman is a graduate of Temple University, School of Dentistry. Following a tour of duty with the United States Army, he returned to New York University, School of Dentistry to receive his Post Graduate Certification in Orthodontics. He had a practice limited to Orthodontics in Phoenixville, Pennsylvania, until retiring in 1992. Upon retiring, Dr. Goodman became a full-time Deputy Coroner in Chester County, Pennsylvania. He was appointed as Chief Deputy Coroner in 1996, a position that he holds to this date. He is a member of the Disaster Mortuary Operational Response (DMORT, Region # 3). He served at the Office of the Chief Medical Examiner of New York during the World Trade Center Attack and did two tours of duty in New Orleans during Hurricane Katrina. Gary M. Hartung has been a Nationally Registered Paramedic since 1978. He joined the Chester County, Pennsylvania Coroner’s Office as a Deputy Coronor in 1999. He is a member of the Pennsylvania State Coroners Association. He has been trained in Medico legal Death Investigation.

Summer 2009 THE FORENSIC EXAMINER® 73

By Larry Schneider

CASE STUDY

Disability Insurance Claim Denied: Justly or Unjustly? Financial planners all say that protecting one’s income is the cornerstone of financial security, and no one who needs to protect their income should be without this form of protection. However, once the coverage is obtained and a claim is submitted, knowing how to pursue getting paid with the least amount of hassle becomes just as important! Many articles have been written on disability insurance, but to the best of my knowledge, none have focused on the ownoccupation definition for total disability as this has attempted to do. This focus will demonstrate the definition’s differences from definitions generally provided by the carriers and also will give the reader some insights as to why claims are denied, both appropriately and inappropriately. It’s important to realize that while attorneys are outstanding in their respective fields, unless they have the insights from hands-on experience, they are somewhat handicapped in their endeavors; again, this article will provide those necessary insights. Hiring a claims consultant can save your clients many thousands of dollars and help avoid unnecessary time and effort. Based on my qualified observations and activity, it is my strong belief that disability income insurance claims have increased dramatically over the last several years, along with a disproportionate number of inappropriate denials. The claims departments of too many insurance companies have been told to “tighten-up.” Claims that once would have been routinely paid are now being denied due to industry trends, contractual misunderstandings, and consumer lack of knowledge and inability to contest. The increase in claims partly has to do with the fact that policies routinely issued in the 1980s (with very little financial underwriting, e.g., no tax returns etc.), when carriers’ profits were high, have now come back to haunt them; as a result, many carriers exited the marketplace, and those that remained “tightenedup” on many levels. During my 35 plus years of experience as a disability income specialist and expert witness/consultant, I have been called upon by attorneys and claimants in dozens of cases to either testify or submit written opinions on denied claims. As a result, most were ultimately settled in favor of the claimant. 74 THE FORENSIC EXAMINER® Summer 2009

A claim could be judged invalid for a variety of reasons including, but not limited to, 1) elimination period not being satisfied, either due to the inadequate number of days, or days not being consecutive; 2) definitions, terms, and conditions for benefit payments not being satisfied; 3) renewability; and 4) exclusions. It seems that one of the biggest reasons for claims denial has to do with satisfying the definitions of total disability, some of which are commonly used by the industry and primarily based on occupation. These definitions include the following: • Own-occupation—This pure own-occupation definition allows payment to be made so long as the insured can’t do the duties of their original occupation, even if the insured is working elsewhere. As long as it is another occupation, then payment may be collected. Some carriers even offer an own-occupation medical specialty definition, based on specialties recognized by the American Medical Association (AMA). This definition could be for the FULL benefit period, or for part of the benefit period. See below for examples. • Own-occupation, not gainfully employed elsewhere—A policy with this type of split definition pays benefits (sometimes as per above for a period of time and then changes), but only if the insured can’t do the duties of his or her occupation and is NOT working elsewhere. Whether or not to work then becomes the choice of the claimant. If they do work elsewhere and there is a loss of income, residual benefits will then kick in (assuming this option is part of the contract and its terms/conditions are satisfied). • Own-occupation, unable to work elsewhere—This is another example of a split definition that gives true ownoccupation (see the first definition above) for a period of time, usually 2 to 5 years, then changes to unable to work elsewhere (by reason of education, training, experience, and sometimes prior economic status). This is one of the least desirable definitions of all because it gives the carrier some control in minimizing the impact of the claim.

• Loss of earnings—This is the same as a residual (proportionate) definition. An example might be if an insured has a 30% loss of income while disabled (and is under the care of a physician). Then they will be paid 30% of the monthly benefit. While this policy does pay proportionately, please note that the insured also starts off with an initial minimum 40% shortfall in view of the fact that the carrier’s participation tables only allowed approximately 40-60% of pre-disability income to be covered/issued. Issued amounts in many cases are currently capped at $10K-15K/month, depending on occupation and income. Note: Additional coverage past these amounts ($50K/month or higher) is available in a secondary market. Another major reason for claims denial other than contractual language has to do with misstatements and/or omissions made by the claimant on the application. I can safely say that in some cases, these misstatements and/or omissions have been unintentional due to the poor wording of the questions appearing on the application. In my extensive experience as an expert witness, I’ve stated several times that the claim starts with the application. Who then is at fault? Is it the carrier for poorly constructing the wording of the questions, or is it the fault of the applicant who intentionally withholds pertinent information that could negatively impact the underwriter’s decision as to whether or not issue a contract as applied for? Some critical areas of the application that affect a claim and could be inadvertently answered incorrectly or dishonestly have to do with occupation/duties, health, income, and other pertinent facts. Incidentally, when a claim has been submitted, some of the “honest” mistakes made by the applicant MIGHT be overlooked after 2 years as outlined in the contract’s incontestability clause, unless there is other wording or state statutes to override that clause. What may not be overlooked, however, are fraudulent misstatements or omissions such as health or income (see above). Can someone honestly say that they forgot they had a back operation or a heart attack 2 years ago? With the same view in mind, let’s not forget the agent’s role in completing the apwww.acfei.com

plication. Did the agent record all answers exactly as they were answered, or was there some hidden agenda or motive for writing them down in such a way so that the policy would be issued as “applied for” (without a declination, rating, or an exclusion)? In this case, did the agent really do the proposed insured a favor, or were these omissions for the personal gain of the agent? As you can see, the above (contractual language) comments are largely based on invalid claims, and as a result these fall into the category of being appropriately denied. What about those claims that have been inappropriately denied? Some of the denials I worked on were seemingly based on straightforward and uncomplicated reasons. Others, because of the contract’s convoluted language and integrating benefits/riders/exclusions/etc., were more complicated. One seemingly straightforward claim was submitted by an internist whose attorney asked me to evaluate the denied claim for recourse/damages. The policyholder had submitted a claim, unaware that the policy had lapsed due to a change of address. The claims department initially denied the claim due to the policy not being in force. What then was the basis for the claimant’s appeal? Upon closer scrutiny, the contract clearly stated that all policy changes must be submitted in writing. The claimant’s agent verbally made the change, and the submitted change was incorrect. Why then did the carrier initially continue to deny? That was for the carrier’s attorney to justify. However, as stated in my report, they had no basis for a denial (except wanting to escape the liability of a very “rich” contract). The report contained several additional reasons and analyses supporting the internist’s claim for substantial damages, which ultimately got the claim paid. I worked on another case relating to the definition of total disability. In this particular case, the agent’s client was a cardiologist who also did invasive procedures as a small part of his duties. To protect future income, he purchased a disability policy after reading the agent’s brochure (on which “your ownoccupation/specialty” was printed). After the policy was issued, the insured asked the carrier for an own-occupation specialty letter, since he wanted his sub-specialty as an invasive cardiologist to be part of the ownoccupation definition for total disability. This request, according to the plaintiff, was clearly stipulated to the agent. The specialty letter was finally issued; however, it only made mention of cardiology. When the cardiologist complained to the agent that “invasive cardiology” was not addressed as re(800) 592-1399

quested, he was told not to worry. To further compound a potential claim, his policy only had benefits covering total disability, i.e., no benefit for a residual claim. At some point in time, a claim was submitted and was paid even though the doctor was back to work and presumably on the basis of not doing invasive procedures. The doctor finally went off claim. Time went by and a new claim (same basis as before) for disability benefits was submitted but was denied! The carrier stated that his claim did not satisfy the definition for total disability. This is technically correct since the issued specialty letter didn’t address his sub-specialty. However, my report pointed out that because such a big issue was made of the sub-specialty, the carrier had an obligation to clearly state that the sub-specialty had to be AMA recognized. I worked with a dermatologist who went out under a claim using her group LTD certificate, which, due to its low cost, has many contractual restrictions and limitations protecting the carrier rather than the claimant. She was paid $6,000 a month; after only 24 months these benefits stopped even though the policy’s stated benefit period was to age 65. Why did the benefits stop? Again, definitions! In this case, the carrier invoked their split definition for total disability, which meant that after 24 months it changed to a more restrictive definition. The results of my report revealed that the claims department had misinterpreted their own definition, which allowed my client to finally receive her payment. What actually happens when a claim is submitted for payment? After the claim is reviewed for completeness, the initial application is pulled and compared with the information appearing on the claim form for any inconsistencies. To support the claim, APSs (Attending Physician’s Statements) will be ordered. Other pertinent application documentation (such as tax returns) will once again be reviewed and evaluated to determine if any inconsistencies exist. If the claim is valid and

approved, payment will follow. On the other hand, due to the terms of the policy, correspondence will address those issues if necessary. If the claim is invalid due to fraudulent statements/omissions, etc., and it is within the contestability period, the policy will usually be rescinded and all premiums from the policy’s inception will be refunded. If it is invalid and has passed the incontestability period, the claim might be paid unless the carrier strongly feels there was an intent to commit fraud; in this case rescission/denial is still likely. While fraud might be hard to prove, the courts have gotten more lenient in favor of the carrier, and the carriers have gotten more aggressive in protecting their rights. In any event, if it is a long-term appropriate claim, the claimant could expect possible surveillance and/or a possible buy-out of the claim. Conclusion I strongly believe that the denial of inappropriate claims must stop so that litigation is only for acts of bad faith (on the part of the carrier) and fraud (on the part of the claimant). All other disputes can usually be handled by arbitration. If the current method of disputing an inappropriately denied claim doesn’t stop, the insurance company, with its deep pockets, will surely win over the disadvantaged! It has been my experience that some carriers habitually take this approach by excessively denying legitimate claims. To minimize any delays in getting paid, the following steps should be followed: • Try to get all questions in writing. • Send all correspondence by registered mail. • Consult with a claims expert to assist with (at the very least) completing the claim form and in understanding the terms of the contract. • Delay seeking counsel unless it is very evident that the carrier is acting in bad faith, since many valid claims will ultimately be paid without the expense of an attorney. n

ABOUT THE AUTHOR

Larry Schneider is a disability specialist with over 35 years experience. Over the years he has had over 30 articles published, lectured many of the nation’s leading associations (CPAs etc.), and appeared on television to discuss the contractual differences between policies offered by the insurance industry. In addition, he is an expert witness/consultant for claims that have been inappropriately denied and a national resource for hard to place applicants, as well as a brokerage for standard cases. He has developed a TurnKey System for selling disability insurance, which is in use by many carriers. Additional information regarding Disability Insurance Resource Center and his full CV can be seen by visiting the DIRC website at www.di-resource-center.com. Schneider can also be contacted at info@di-resource-center.com or at 800-551-6211.

Summer 2009 THE FORENSIC EXAMINER® 75

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76 THE FORENSIC EXAMINER速 Summer 2009

www.acfei.com

By James A. DiGabriele, DPS, CPA, ABV, CFF, CFSA, FACFEI, Cr.FA, CVA

CASE STUDY

the Forensic Accountant: A Closer Look at the Skills Forensic Accounting Education Should Emphasize

Influenced by business, government, regulatory authorities, and the courts, there is evidence that a higher level of expertise is now required to analyze present-day complicated financial transactions and events. As a result, forensic accounting has emerged in the forefront of the crusade against financial deception (Rezaee, Crumbley, & Elmore, 2006). Currently, universities and colleges are offering forensic accounting courses or are considering adding them to their curriculum; this evolution has revealed a void in the significant skill set outcome that should be developed.

Introduction There is continuous validation that preventing fraud and uncovering deceptive accounting practices is in strong demand as companies respond to closer scrutiny of their financial activities by shareholders and government agencies (Kahan, 2006). In recent history, the Federal Bureau of Investigation estimated that white collar crime costs the United States more than $300 billion annually. Many of these crimes are difficult to identify because the perpetrators have concealed their activities through a series of complex transactions. Usually, large volumes of financial information are involved, and the complexity of these investigations can be a strain on a company’s resources. In addition, according to an American Institute of Certified Public Accountants (AICPA) discussion paper, the use of forensic accounting procedures to detect financial reporting fraud should be increased. The paper (800) 592-1399

argues that forensic accountants and financial statement auditors have different mindsets. Hence, audit teams need to be trained to incorporate more forensic accounting procedures into their audit practices as well as retain more forensic specialists to help detect problems (AICPA, 2004).

Forensic accountants currently apply their unique expertise to an array of diverse assignments and are often hired to determine whether there has been any intentional misrepresentation associated with a company’s financial records. A fraud examination can range from overvaluation of inventory and improper capitalization of expenses to misstatement of earnings and embezzlement (Messmer, 2004). Organizations also hire forensic accountants for guidance when evaluating potential business transactions. Forensic accountants assess a company’s true worth during a merger or acquisition, ensuring that a purchaser is knowledgeable of a target firm’s financial situation and value while simultaneously searching for suspicious accounting activity. Forensic accountants often provide accounting expertise during existing or pending litigation. This work is primarily focused on quantifying damages in cases of personal injury, product liability, contract disputes, intellectual property, Summer 2009 THE FORENSIC EXAMINER® 77

and uncovering hidden assets in complicated matrimonial law cases. These types of services may ultimately culminate in providing expert witness testimony (Ramaswamy, 2005). Forensic accountants also play an important role in government. They work for agencies such as the Federal Bureau of Investigation, Central Intelligence Agency, and Internal Revenue Service. Forensic accountants in this role look for signs of suspicious financial activity and fraud by individuals and businesses. In addition, forensic accountants have assumed a more visible role in helping the government evaluate accounting and banking records of suspected terrorists (Brookes, Riley, & Thomas, 2005). Preparing Future Forensic Accountants to Meet the Demand There have been many indications that the demand for forensic accounting services will continue to increase; that demand requires proper training to meet market challenges. The National Institute of Justice (2007) has prepared a model curriculum guide for education and training in fraud and forensic accounting to aid academic institutions, public and private organizations, practitioners, faculty, and prospective students. Practitioner articles have identified specialized skills and technical abilities of a forensic accountant. A forensic accountant is usually familiar with criminal and civil law, understands courtroom procedures and expectations, and embodies investigative skills that include the methods of recognizing fraud abuse. A forensic accountant thinks creatively in order to consider and understand the tactics a fraud perpetrator may use to commit and conceal fraudulent acts. Additionally, a forensic accountant needs to clearly and concisely communicate findings to various parties, including those with less knowledge of accounting and auditing. Successful forensic accountants must have analytical abilities, strong written and verbal communication skills, a creative mindset, and business acumen. A forensic accountant must be able to interview and elicit information from potentially uncooperative people and possess a strong amount of skepticism (Harris & Brown, 2000). Forensic accountants are distinctively positioned to be able to uncover financial deceptions. Prominent skills consist of an in-depth knowledge of financial statements with the ability to critically analyze them and a thorough understanding of fraud schemes. A forensic accountant should have the ability to comprehend the internal con78 THE FORENSIC EXAMINER® Summer 2009

trol systems of corporations and also be able to assess the risks. Finally, the knowledge of psychology helps forensic accountants to understand the impulses behind criminal behavior that motivate and encourage financial deception. Interpersonal and communication skills that aid in disseminating information about the company’s ethics, an understanding of criminal and civil law, as well as of the legal system and court procedures are also skills that aid forensic accountants (Ramaswamy, 2005). Rezaee, Crumbley, and Elmore (2006) surveyed opinions of practitioners and academics regarding the importance, relevance, and delivery of forensic accounting education. The results indicate that the demand and interest in forensic accounting will continue to increase. Both groups of respondents viewed accounting education as relevant and beneficial to accounting students. A View from the Field The results from a recent survey further validate the importance of a specific skill set inherent to forensic accountants. A questionnaire submitted to forensic accounting practitioners and accounting academics asked about their views of what skills are deemed necessary and important to a forensic accountant. Participants were e-mailed using www.surveymonkey.com and were asked the extent to which they agreed with the statements addressing each of nine competencies that were deemed important skills of a forensic accountant. The agreement ratings were made on a five-point Likert scale ranging from “strongly disagree” to “strongly agree.” The following scores were assigned to each response: strongly disagree, 0; disagree, 1; neither, 2; agree, 3; strongly agree, 4. Ten questions were asked to practitioners and academics that pertain to their views of what skills are deemed inherently important to a forensic accountant. The first question was, “An important skill requirement of a Forensic Accountant is deductive analysis—the ability to take aim at financial contradictions that do not fit in the normal pattern of an assignment.” In consideration of the barrage of recent financial reporting scandals, this skill appears to be necessary and essential for a forensic accountant to meet the objective of uncovering a potential financial fraud. Forensic accounting courses taking aim at financial misrepresentations should incorporate course objectives to meet this ability. Both groups agreed.

The next questions pointed toward more general, but no less important, skills. Question two stated, “An important skill requirement of a Forensic Accountant is critical thinking—the ability to decipher between opinion and fact.” The essence of the role of expert witness is the ability to perform the task of discerning fact from fiction in order to maintain a credible testimony. Courses developed in this area should emphasize to students the ability to remove any non-corroborated opinions from expert reports and testimony. Both groups agreed. Question three addressed the importance of “unstructured problem-solving—the ability to approach each situation (inherently unique) prepared to solve problems with an unstructured approach.” Accounting education has been based around concentrating on compliance with rules and procedures; this skill is a direct contradiction to this concept. It can be argued that a shortcoming of auditors is not seeing the proverbial forest beyond the trees. Again, practitioners and academics did not differ. The fourth question was, “An important skill requirement of a Forensic Accountant is investigative flexibility—the ability to move away from standardized audit procedures and thoroughly examine situations for atypical warning signs.” Practitioners and academics agreed on the importance of this skill, further emphasizing the need in accounting for a more open-minded skill set. The fifth question was, “An important skill requirement of a Forensic Accountant is analytical proficiency—the ability to examine for what should be provided rather than what is provided.” Considering the post-financial fraud regulatory environment, solving a financial puzzle with less than a complete set of pieces appears to be the direction in which the current business forum is heading. Practitioners and academics agree on the importance of this skill. Questions six and seven dealt with the significance of communication skills to a Forensic Accountant. The sixth question focused on “oral communication—the ability to effectively communicate in speech via expert testimony and general explanation the bases of opinion.” Both groups strongly agreed that oral communication is an important skill of a forensic accountant. The seventh question looked at the other side of the coin, stating “An important skill requirement of a Forensic Accountant is written communication—the ability to effectively communicate in writing via reports, www.acfei.com

charts, graphs, and schedules the bases of opinion.” All groups strongly agreed on the importance of this skill as well. The eighth question was, “An important skill requirement of a Forensic Accountant is specific legal knowledge—the ability to understand basic legal processes and legal issues including the rules of evidence.” Academics and practitioners agreed that specific legal knowledge is an important skill of a forensic accountant. The survey also addressed personal attributes for a Forensic Accountant in addition to pure knowledge or skill. The ninth question was, “An important skill requirement of a Forensic Accountant is composure— the ability to maintain a calm attitude in pressured situations.” The respondents did not differ in opinion of this skill, agreeing strongly that this is an important proficiency. The most prevalent area where this is necessary is expert testimony in either deposition or court. The composure of an expert can be an integral component to the ultimate case outcome. The final question asked the participants to identify themselves as a forensic accounting practitioner or academic. The results also illustrated two distinct areas of competency based on the items with high loadings in the principal component analysis knowledge/ability and performance. The knowledge/ability component relates to whether an individual has the background knowledge and thinking skills to be effective, while the performance component relates to the individual’s ability to turn this knowledge/ability into an effective presentation. The groups agreed on all six knowledge/ability items: deductive analysis, critical thinking, unstructured problem-solving, investigative flexibility, analytical proficiency, and specific legal knowledge. Both groups agreed on the performance items: oral and written communication and composure. Forensic accounting educators may also consider segregating course content based on these two distinct areas. The essence of an effective forensic accountant/expert witness is the ability to discern fact from fiction in order to maintain a credible testimony. Survey results indicated that this skill was rated as one of the more important proficiencies. Forensic accounting courses developed in this area should emphasize to students the ability to remove any non-corroborated hearsay opinions from expert reports and testimony. (800) 592-1399

Accounting education has concentrated on compliance with rules and procedures. Forensic accounting is different in that problem-solving becomes more of an improvised approach rather than a structured plan. This skill type is a direct contradiction to traditional accounting skills; it can be argued that a shortcoming of auditors is a narrow approach. Survey results indicate that practitioners and academics agree on the importance of a forensic accountant to move away from a narrow approach and apply a more holistic technique. These findings further illustrate the need in accounting for a more open-minded skill set. The appropriate skills of a forensic accountant illustrated in the results of this study contribute to the progress of the the literature in forensic accounting education by identifying the necessary proficiencies to be integrated in the course content. Conclusion The increasing demands in the current regulatory, legal, and business environments should serve as a stimulus for accounting programs to emphasize and embrace further attention to forensic accounting. The survey results indicate that practitioners and academics agree that critical thinking, unstructured problem-solving, investigative flexibility, analytical proficiency, legal knowledge, oral communication, written communication, and composure are important skills of a forensic accountant. The survey results show that there is an importance of skills that are relevant to the outcome of foren-

sic accounting education. These skills can be used as a guide to direct academic curriculum with the proper outcome objective. Future research in this area could progress to classifying skills to specific courses. For example, a course on forensic legal knowledge would be more likely to have an objective of written and oral communication rather than analytical proficiency. References AICPA Discussion Memorandum. (2004). Forensic services, audits, and corporate governance: Bridging the gap. New York: AICPA. Brooks, R.C., Riley, R. A. &, Thomas, J. (2005). Detecting and preventing the financing of terrorist activities: a role for government accountants. The Journal of Government Financial Management, 54(1), 12-18. Harris, C.K. & Brown, A.M. The qualities of a forensic accountant. (2000). Pennsylvania CPA Journal, 71(1), 2-3. Kahan, S. (2006). Sherlock Holmes enters accounting; Dramatic increase in fraud brings more CPA sleuths into the industry. Accounting Today, 20(8), 1. Messmer, M. (2004). Exploring Options in Forensic Accounting. National Public Accountant, Dec/Jan, 19-20. National Institute of Justice Special Report. (2005). Education and training in fraud and forensic accounting: a guide for educational institutions, stakeholder organizations, faculty and students. December (Draft). Ramaswamy, V. (2005). Corporate governance and the forensic accountant. The CPA Journal, 75(3), 68-70. Rezaee, Z., Crumbley, L.D., & Elmore, R.C. (2006). Forensic accounting education: a survey of academicians and practitioners. Advances in Accounting Education. Forthcoming. n For more information on forensic accountants or to learn more about ACFEI’s Certified Forensic Accountant, Cr.FA® program, please visit www.acfei.com or call (800) 423-9737.

ABOUT THE AUTHOR

James A. DiGabriele, DPS, CPA,ABV, CFSA, FACFEI, Cr.FA, CVA, is an Assistant Accounting Professor at Montclair State University and the Managing Director of DiGabriele, McNulty & Co., LLC, West Orange, New Jersey; an accounting firm specializing in forensic/investigative accounting and litigation support. James is a Certified Public Accountant (CPA) licensed in the State of New Jersey, is accredited in Business Valuation, a Certified Financial Services Auditor (CFSA), a Certified Forensic Accountant (Cr. FA), a Certified Valuation Analyst (CVA), and is a Fellow of the American College of Forensic Examiners Institute (FACFEI). James holds a Master of Science in Taxation from Seton Hall University, a Master of Science in Management with a concentration in Finance from the New Jersey Institute of Technology, and a Doctorate of Professional Studies with concentrations in Economics and Management from the Lubin School of Business at Pace University in New York. James has published in various journals including The Journal of Forensic Accounting, The Journal of Business Valuation and Economic Loss Analysis, The Forensic Examiner, The Value Examiner, The Journal of Legal Economics, and The CPA Expert.

Summer 2009 THE FORENSIC EXAMINER® 79

By Katherine Ramsland, PhD, CMI-V

CASE STUDY

Francis Camps: Inside the Palace of Truth As the chief pathologist at London Hospital and professor at the medical college, Francis Edward Camps performed an estimated 88,000 postmortems during his illustrious career. Practicing during the mid-twentieth century, when Britain’s reputation for investigative forensic pathology was at its height, Camps acquired considerable prominence. Although his nervous temperament made him an unpredictable witness in court, he was such a character that popular interest in him ran high. Thus, he became the world’s first “television pathologist.” Camps also contributed a great deal to the evolving science of forensic pathology.

Competing for Fame As the son of a wealthy surgeon, Camps grew up in a mannered but rigid household, with plenty of exposure to medicine. In his turn, he became a general practitioner with a specialty in obstetrics, but he gravitated toward pathology after he participated in police cases. In 1947, the great Bernard Spilsbury committed suicide, and in his shadow was a trio of up-and-coming pathologists: Donald Teare, Keith Simpson, and Francis Camps. During the early years of their careers, they often worked together and were even dubbed the “Three Musketeers.” However, the flamboyant Camps craved renown, and as he watched many high-profile cases go to Simpson, he came to resent his former friend. They soon became bitter rivals. Competition for forensic cases was fierce, but Camps worked hard to gain a reputation in the morgue he called the “Palace of Truth.” In 1950, he helped found the British Association of Forensic Medicine. He had a knack for persuading wealthy men to financially support his medical visions, enabling him to develop one of the finest departments of forensic medicine in the world. He also attracted an impressive team of competent specialists, although he was known to be a bully. A painstaking, ambitious professional, he tended to dismiss coworkers as “scabs” and reportedly enjoyed the notion that people feared him. Yet his team stayed with him, for his brilliance and for the unique opportunities. Camps’s practice was controversial; paid per autopsy, he worked fast, often dictating his notes from one or more previous 80 THE FORENSIC EXAMINER® Summer 2009

procedures while starting another. He had a knack for recalling the distinct details without confusing them, but his approach invited criticism that he missed evidence and overlooked sanitation standards. In fact, while he inspired solid research from others, his own was erratic and short-lived. Nevertheless, he sometimes seemed to work miracles. A Bloody Mess In 1949, a bundle found in the Essex marsh yielded a male torso sans head and legs; it was also weirdly squashed. Camps concluded that the corpse had been in the water between 2 and 3 weeks, placed there 48 hours after the stabbing death. To identify the dead man, Camps’s team used an innovative new technique: removing the skin from a finger to get a print. The deceased was 47-year-old Stanley Setty, a shady car dealer who’d been missing for over 2 weeks— directly after he’d cashed a large check. The autopsy indicated that he’d bled profusely from stab wounds, so Camps believed that, wherever the murder scene was, they might find a significant bloodstain. Even more mysterious were injuries to Setty’s body that suggested he’d fallen from a great height— after he was dead. Scotland Yard investigators checked small airports and learned that around the time of Setty’s disappearance, one of his business associates, Donald Hume, had hired a small plane and loaded two large packages on board. A search of this plane produced drops of blood. Hume was located via Setty’s missing money, which he’d been spending, but he said two men had hired him to fly the par-

cels over water and drop them. That explained the money (those “men” had robbed and killed Setty), and Hume’s tale was difficult to disprove. Seeking a better angle, the detectives went to Hume’s apartment, along with Camps and Dr. Henry Holden, a chemist and serologist. They knew that Setty’s blood group was O, and Holden soon found small type O bloodstains on three floorboards. But Camps sought a dramatic stain that would support his deduction from the autopsy. He noticed cracks between the floorboards that looked like dried liquid, so he ripped up the floor. Holden confirmed the blood, which amounted to only a cupful. Camps then devised an experiment. To calculate the amount of blood that would have to be spilled to yield the quantity they’d found in the cracks, they created a replica of Hume’s floor in the lab and poured varying amounts of blood on it. Keeping careful measure, they determined that three pints had lain on the boards. A man losing that much would be in bad shape, if not dead. This result cast doubt on Hume’s story, especially when detectives learned that Setty and Hume had been fighting that day over Hume’s wife. Still, the case proved to be a struggle in court, thanks to Donald Teare’s opposing testimony for the defense. Camps and Holden had no difficulty proving that a blood-leaking corpse had been in Hume’s home, but they could not prove that Hume had committed the murder. Thus, he was sentenced only as an accomplice, serving 12 years in prison. When he got out, he sold his confession to a tabloid, admitting he’d killed Setty exactly as the scientists had surmised. Hume then went on to kill three more people before he was finally incarcerated for good. CSI London A flamboyant figure, Camps liked to put on a show when he went out to elegant restaurants. It was important for him to be noticed, and he soon became a minor celebrity. Camps appeared on an early television program, perhaps the equivalent of our “Forensic Files,” called “The Hidden Truth,” which examined forensic science. Another series about a fictional pathologist—“the great professor”—was based on mistakes that Camps had made during his www.acfei.com

career—with his blessing. Anything for fame. He also consulted on fictional detective shows. But the actual cases got his full focus, and some earned him an international reputation. Teare, Simpson, and Camps all got involved in a sensational case in 1953. John Reginald Halliday Christie had killed six women, shoving three corpses into cupboards in his small London flat and burying two in his garden. He also strangled his wife and placed her corpse under the floorboards. After he sublet the flat, the new renter found the decomposing remains, so Camps was called to the gruesome scene. He directed the postmortems on the four intact bodies and the painstaking reconstruction of two mingled skeletons from the garden. He also proved Christie, who’d been quickly arrested, to be a liar when the killer offered a self-serving statement. Christie’s conviction was a foregone conclusion, but with an odd twist. Concerns arose that, in 1949, Christie might have murdered the wife and child of his upstairs neighbor, Timothy Evans, who’d been executed for the double homicide. In the interest of justice, Beryl Evans, the wife, was exhumed. Donald Teare was brought in to testify about his autopsy on Evans, while Keith Simpson came to affirm it. The case hung on the comparison of the pubic hair on the corpse with tufts of pubic hair found in a tin in Christie’s home. Camps believed that one hair tuft matched that of Beryl Evans, implicating Christie in her murder. But Simpson and Teare determined that this hair tuft had been trimmed on the outside edge 6 months before Christie had clipped it for his collection. Since Beryl had never trimmed hers, it was not a match. Evans’ conviction for Beryl’s murder stood, but he was granted a posthumous pardon in the case of his child. When Christie was hanged for the other women’s murders, Camps performed the postmortem. In some cases, despite his effort, his testimony was not enough. In 1956, Camps helped investigate a prominent physician, Dr. John Bodkin Adams, who was suspected of killing patients—mostly elderly women with money. That July, Adams had tried to arrange for a private postmortem for a patient, and the suspicious circumstances warranted a formal investigation. Camps suspected barbiturate poisoning, especially when investigators learned that the woman had left a questionable will giv(800) 592-1399

ing Adams some of her valuables. In fact, Adams had been named in over 100 of his patients’ wills. Camps set to work and identified 163 suspicious patient deaths, so Adams was arrested and charged with murder. He admitted he’d “assisted” by giving his patients morphine to “ease their passage,” but denied intentional murder. Although Camps testified, the prosecution failed to make a strong case; after a lengthy trial for the most suspicious death, Adams was acquitted. Other murder charges were withdrawn, although Adams was convicted of fraud. The Beginning of Decline It was a 1959 case in Canada, reopened in 1966, that threw Simpson and Camps at each other’s throats in a highly publicized showdown. On the evening of June 9, 12-year-old Lynne Harper left her home on the Clinton air base in Ontario to take a walk. She encountered a classmate, Steven Truscott, age 14, and readily got onto the handlebars of his bike to go for a ride. Another child reported seeing them around 7:10; yet moments later, a boy riding his bike on the same road claimed he’d seen no one, and someone else reported seeing Steven alone. Lynne failed to come home, so her parents called the police, who organized a search. No one found her that night. Truscott admitted he’d seen Lynne, but said he’d dropped her off on the road at 7:30, and she’d gotten into a gray Chevrolet with a yellow license plate. He arrived home an hour later. Two days later, Lynne’s body was found in the woods. She’d been sexually molested and seemingly strangled with her blouse. Her shoes, socks, and shorts were neatly arranged, and her panties were 30 feet away. Nearby were tire tracks from a bicycle and impressions from crepe-soled shoes. Dr. John Penistan did the autopsy and analyzed her stomach contents. Knowing what Lynne had eaten at 5:30, Peniston estimated from average digestion times that she’d died two hours later, around 7:30 P.M. that evening—when she might still have been with Steven. The tread impression matched Steven’s bicycle tire and he owned crepe-soled shoes that he failed to produce. In addition, a physician found marks on his penis that seemed consistent with rape, but Steven claimed it was a rash. Yet semen from the victim revealed a secreter with the same

blood type as Steven’s, so he was charged with murder. When another boy claimed that Steven had asked him to manufacture an alibi, Steven’s fate was sealed. He was convicted and given life in prison. A few years later, journalist Isabel LeBourdais investigated the story and wrote a book, The Trial of Steven Truscott. She argued that the police had rushed to judgment and had committed several significant errors, including that the blouse could not have been used to strangle Lynne Harper. Steven could very well be innocent. She then asked Simpson and Camps to get involved in the effort to get a new trial. Camps accepted her argument, while Simpson affirmed Penistan’s findings. Both pathologists traveled to Canada, taking opposite positions. With numerous experts, the prosecution went before a ninejudge tribunal to argue that the case was solid. Every piece of the original evidence had been preserved and experiments had been performed with blouses similar to the one Lynne had worn to prove it could have been the murder weapon. Since the sole indicator for her time of death had been the process of digestion, Simpson and Camps debated its accuracy. But Camps overreached, stating without evidentiary support that Lynne could have died as long as 10 hours after her last meal. It was such an incomprehensible notion that Simpson, with his calm, methodical demeanor, seemed more reasonable as he supported Penistan. On cross-examination, Camps had to concede that a 2-hour time frame was possible, a humiliation from which he never fully recovered. The judge declined to order a new trial. Yet Truscott was released 3 years later, as if the court could not truly decide, although the decision failed to vindicate Camps. Identifying the Ripper Besides pathology, Camps was fascinated with a series of unsolved crimes that had occurred not far from where he worked— the five Whitechapel murders in 1888 attributed to Jack the Ripper. Camps studied the crime locations, the evidence, the “Ripper” letters, and the primary suspects. He was inclined to believe that “Jack” was Montague John Drewitt (or Druitt), 31, who’d committed suicide in December 1888, about a month after the last victim was slain and mutilated. Montague’s mother had been institutionalized for paranoid psychosis, and his father, a doctor, had once Summer 2009 THE FORENSIC EXAMINER® 81

described Drewitt as “sexually insane.” In a suicide note, Drewitt hinted that he feared he would inherit his mother’s illness, so it was better to kill himself. Camps thought the murders were the work of an unhinged mind, and he believed the evidentiary support for this suspect was strong. He gave many lectures on the subject. Stubborn to the End Camps had driven himself so relentlessly that, after he retired in 1970 at the age of 65, his health quickly gave way. He suffered from stomach pains and, certain that surgery would produce no good result, he self-diagnosed cancer and decided to let it

take its course. As he lost weight, Camps had a premonition that he was dying— which inspired an irrational fear that his nemesis, Simpson, would perform his autopsy. Camps predicted the day he would die, and he was right; on July 8, 1972, he collapsed and was rushed to the hospital. Emergency surgery revealed the problem: Camps had been suffering from a treatable ulcer. Although he never had the satisfaction of knowing it, there was no need to call Simpson in for an autopsy. Among Camps’s legacies was his contribution to London Hospital’s Forensic Medicine Department. He’d donated his collection of medical papers, which includABOUT THE AUTHOR

Katherine Ramsland, PhD, CMI-V, has published 35 books, including The Devil’s Dozen: How Cutting Edge Forensics Took Down 12 Notorious Serial Killers and Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation. Dr. Ramsland is an associate professor of forensic psychology and the department chair at DeSales University in Pennsylvania. She has been a member of the American College of Forensic Examiners since 1998.

ed volumes of postmortem reports, a register of specimens, his analyses of famous cases, and the results of his studies on such subjects as head injuries, gunshot wounds, and battered babies. He also left a book of clippings and photographs of violent and sudden deaths. One could also argue that Camps inspired television producers of the future to cast forensic pathologists as investigative geniuses. References

Camps, F. E. (1966) More about Jack the Ripper. London Hospital Gazette Clinical and Scientific Supplement, LXIX(1). Camps, F. E. (1973). Camps on crime. London; David & Charles LTD. Evans, C. (2004). The second murder 2 casebook. New York: John Wiley & Sons. Jackson, R. (1983). Francis Camps: Famous case histories of the most celebrated pathologist of our time. London: Panther Books. Thorwald, J. ( 1964). The century of the detective. New York: Harcourt, Brace & World. Wilson, C. & Wilson D. (2003). Written in blood: A history of forensic detection. New York: Carroll and Graf Publishers. n

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By Bruce Gross, PhD, JD, MBA

CASE STUDY

Battle OF THE

SEXES:

The Nature of Female Delinquency

Content analysis of newspaper coverage of youth crime from the late 1800s to the early 1980s in England, the United States, and Canada shows striking similarities across time and location (Olivo, Cotter, & Bromwich, 2006). Newspapers have consistently exaggerated the frequency and severity of youth crime, especially that of violent crime. Coverage tends to be biased towards extreme and atypical examples of crime that, while perpetrated by a select few, are portrayed as being characteristic behavior of all youth. Both news and entertainment media generally overestimate the recidivism rates associated with juvenile crime, while underestimating the range of possible penalties and the actual punishments meted out for given crimes.

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Summer 2009 THE FORENSIC EXAMINER速 83

Over 75% of adults rely on news media reports for their knowledge of crime (Dorfman & Schiraldi, 2001). As a result of the way the public’s impression is informed by the media, opinion polls regarding youth crime conducted in various locations across decades obtain strikingly similar results (Olivo, Cotter, & Bromwich, 2006). Consistently, each generation tends to believe that children and adolescents were “better behaved” approximately “20 years ago.” In those “good ol’ days,” parents were thought to have done a better job controlling their children’s behavior, law enforcement was more effective, and the courts imposed appropriate punishments on youthful violators. Compared to their beliefs about “back then,” when “family values” were manifestly respected, at the time of any given opinion poll respondents believed that youth crime was much worse and that harsher punishments are required to curb the rising problem. Regardless of how the news and entertainment media present youth crime and violence, the fact is that, overall, youth crime is lower today than it was 20 years ago (Adams & Puzzanchera, 2007; Olivo, Cotter, & Bromwich, 2006). While youth crime is not worse, it is definitely different than it was 20 or even 10 years ago. Perhaps the most notable difference is in the area of female delinquency. Demonstrating the Difference Historically, the majority of juvenile arrests have been of males, yet over the past 20 years, the number of female teen arrests has increased dramatically (Zahn et al., 2008; Adams & Puzzanchera, 2007; Snyder, 2002). From the early- to mid1980s through the mid-1990s, the arrest rates of both genders increased steadily, with the male rate far exceeding that of females. In the mid- to late-1990s, a shift began in that while there was an overall decrease in the arrest rates for both boys and girls, the decrease for females was less than that for males (Snyder, 2008). In 1996, an estimated 2.9 million juveniles were arrested, 25% of which (or 723,000) were female (Snyder, 1997). By 2006, the number of juvenile arrests dropped to approximately 2.2 million, but the rate for female arrests increased to 29% (or 641,000) (Snyder, 2008). In some specific crime categories, the female arrest rate rose more substantially than did the male rate; in other categories the male rate declined while that of females 84 THE FORENSIC EXAMINER® Summer 2009

increased (Snyder, 1997, 2008). Between 1980 and 2006, the male arrest rate for aggravated assault rose by 13% while the female rate rose by 94% (Snyder, 2008). During that same time period, male arrests for simple assault doubled, but nearly quadrupled for females under the age of 18. Between 1996 and 2006, male teen arrests for violent crime declined 22%, while the female rate decreased by only 12%. In 2006, arrest rates of male teens for violent crimes decreased by 22% but only 12% for females. Within violent crimes, arrest rates for aggravated and simple assaults decreased 24% and 4% respectively for males. In contrast, the female arrest rate only decreased by 10% for aggravated assault and actually increased 19% for simple assault. Arrests for weapons crimes increased 5% for females while they decreased 11% for males. Between 1996 and 2006, arrests for property crimes decreased for both genders, but more so for males. By 2006, females represented 32% of all property crime arrests. During the same time period, male arrests for drug abuse violations decreased 14%, while the female arrest rate increased by 2%, with females representing 16% of all such arrests in 2006. Female DUIs went up by 39% so that in 2006, 23% of all juvenile DUI arrests were of females. Arrests of females on charges of disorderly conduct increased by 33% during the same time period. In other crime categories, by 2006, females accounted for 41% of arrests for larceny, 33% of arrests for forgery and counterfeiting, 34% of arrests for fraud, and 45% of juvenile embezzlement arrests. Most notably, females represented 57% of all runaway arrests. The increase in arrest rates for females has been attributed to a change in female teen behavior and/or a change in how law enforcement responds to female teen suspects (Hawkins et al., 2009; Zahn et al., 2008). The results of several studies (conducted in conjunction with the Office of Juvenile Justice and Delinquency Prevention) aimed at better understanding the nature of female delinquency determined that the increase in female arrests is primarily due to a change in arrest patterns and procedures (Hawkins et al., 2009; Zahn et al., 2008). These include lowered thresholds for reporting and classifying crimes, mandatory and pro-arrest policies, and the “zero-tolerance” practices implemented within school districts. While it would seem these changes should affect the arrest rates of males and females equal-

ly, the changes in statutes related to crimes against family and children affect females more, as a larger proportion of female offending is related to domestic issues. The Nature of Female Teen Crime While the largest percentage of female teen arrests is for property crimes, an increasing proportion of females are being arrested for crimes of violence. By 2006, 31% of juvenile assaults were committed by females; of all adult assaults, only 25% were perpetrated by females (Snyder & McCurley, 2008). Within the category of assaults, females committed 31% of all juvenile assaults on acquaintances and 21% of those on strangers. In domestic assaults, females committed 37% of those offenses against family and children, including 41% of parental assaults and 35% of assaults upon a child (Snyder, 2008). As suggested by news and entertainment media, and based on clinical evidence, boys appear to be the primary perpetrators and girls the primary victims of dating violence. However, the findings from empirical research originating from the Department of Justice and the Department of Health and Human Services reveal a different reality (Mulford & Giordano, 2008). Approximately 1,300 adolescents in the 7th, 9th, and 11th grades from Toledo, Ohio, participated in a study conducted from 2001 to 2005. Of those female respondents who reported being in a physically abusive relationship, more than half acknowledged the violence was mutual. One-third admitted they were the sole perpetrators of the violence, while 13% reported being the sole victims. In contrast, 50% of the boys in physically violent relationships reported the violence was mutual, while only 6% admitted to being the sole perpetrator and 50% claimed to be the sole victim. A second study looked at approximately 1,200 New York high school students who were in dating relationships at the time. Of those students whose relationship was characterized by violence, 66% of the boys and 65% of the girls reported the violence was mutual. Twenty-eight percent (28%) of the girls admitted to being the sole perpetrator and 5% the sole victim. In contrast, only 5% of the boys admitted to being the sole offender and 27% the sole victim. In a third study, in which teen couples were videotaped while they performed problem-solving tasks, 30% of all the couples demonwww.acfei.com

strated physical aggression by Table 1: Correlation between “developmental assets” and problem behaviors in youth. both parties. In 17% of the 0–10 Assets 11–20 Assets 21–30 Assets 31–40 Assets couples, only the females perProblem Alcohol Use 45% 26% 11% 3% petrated violence as compared Violence 62% 38% 18% 6% to the 4% in which only the Illicit Drug Use 38% 18% 6% 1% boys did. The researchers in Sexual Activity 34% 23% 11% 3% this study concluded the low percentage of male sole perpeTable 2: Correlation between “developmental assets” and positive attitudes and behaviors. trators was due to boys being 0–10 Assets 11–20 Assets 21–30 Assets 31–40 Assets less likely to demonstrate vioExhibits Leadership 48% 66% 78% 87% lence when being “watched” Maintains Good Health 27% 48% 69% 88% or observed. Values Diversity 39% 60% 76% 89% While the majority of vioSucceeds in School 9% 19% 34% 54% lence in teen relationships is mutual, the underlying motives appear to vary somewhat “Not only is there a difference in the manifesby gender. Based on self-report, both boys and girls cite anger as their primary motivatation of delinquency between males and fetion for initiating violence. Beyond that initial emotional provocation, girls frequently males, but also in its etiology and prevention...” reported “self-defense” as a motivating factor whereas boys reported the “need to exert control.” Of note, unlike adults, teens from 223,800 to 464,700, or by 108%, truancy cases outnumbered all other types reported a relatively equal balance of powwhile the male caseload only increased of female status offenses. er in their romantic relationships. When a by 32% (from 937,700 to 1,233,200). power imbalance was reported, both boys Although the number of male delinquenDelinquency: Causes and Cures and girls felt the girl had more power. Boys cy cases far exceeds that of females, the Not only is there a difference in the maniin violent relationships perceived themselves percentage of females in the juvenile jusfestation of delinquency between males as having less power than did their countertice system grew significantly faster. The and females, but also in its etiology and parts in nonviolent relationships. Females female caseload was 25% that of the male prevention. In an effort to identify those did not perceive a power differential regardcaseload in 1985 but had grown to 40% internal and external factors that protect less of whether the relationship was violent. that of males by 2005. In every crime catyouth against making poor personal and Unlike adolescent females, adolescent males egory, the female caseload outgrew that of interpersonal choices, a survey was conare apt to react to their partner’s violence males every year from 1985 to 2005, with ducted in 2003 of approximately 150,000 with laughter. Girls are more apt to show the most significant areas of growth being sixth through twelfth graders from 202 citlong-term negative consequences from teen in person (e.g., assault, robbery, homicide), ies in 27 of the United States (Benson et al., dating violence victimization, including public order, and drug offenses. 2006a). The study revealed 40 characterisdepression, suicidality, marijuana use and Case rates for property and drug offenses tics or “developmental assets” that differabuse, and addiction to cigarettes. tend to increase by the female’s age through entiate youth who make good life choices Aside from those assaults occurring withage 17, while the rate for female person from those whose choices are more destrucin the context of a dating or romantic reand public order offenses increases steadily tive to themselves and/or others. lationship, the victims of female offenders through age 16 followed by a slight decline. The assets were divided into two main are more likely to be female than are those Between 2001 and 2005, person offense categories. Internal assets include “commitof male offenders (Snyder & McCurley, cases for females ages 10-12 dropped by ment to learning” (achievement motivation, 2008). In 2006, 63% of assaults by males 8%, increased by 8% for females ages 13school engagement, homework, bonding to were against male victims while 78% of fe15, and increased 15% and 16% for females school, and reading for pleasure), “positive male assaults were against females. In doaged 16 and 17, respectively. Between 1991 values” (caring, equality and social justice, mestic assaults, both genders were likely to and 2005, the rate for drug offense cases inintegrity, honesty, responsibility, and revictimize females; that is, 66% of male ofcreased continuously for females of all age straint), “social competencies” (planning fenders had female victims as did 70% of groups, including a rise of 255% for ages and decision making, interpersonal comfemale offenders. The typical victim of ju10-12, 306% for those 13-15, 304% for petence, cultural competence, resistance venile domestic assaults was the juvenile’s those aged 16, and 281% for females aged skills, and peaceful conflict resolution) and mother. In 2006, 68% of males and 81% 17. As compared to delinquency offenses, “positive identity” (personal power, self-esof females assaulted their mother. between 1995 and 2005, female petitioned teem, sense of purpose, and positive view Just as the arrest rate for female juveniles status offenses (i.e., formally handled cases of personal future). External assets include has increased, so too has the female delinfor truancy, running away, ungovernability, “support” (family support, positive family quency caseload (Puzzanchera & Sickmund, curfew violations, or liquor law violations) communication, other adult relationships, 2008). Between 1985 and 2005, the numincreased 33% (while the male caseload rose caring neighborhood, caring school cliber of female delinquency cases increased 25%). During the same time period, female mate, and parent involvement in school(800) 592-1399

Summer 2009 THE FORENSIC EXAMINER® 85

ing), “empowerment” (feeling valued by their community, having a useful role in the community, service to others, and safety), “boundaries and expectations” (family, school, and neighborhood boundaries; adult role models; positive peer influence; and high expectations), and “constructive use of time” (3 or more hours spent in creative activities, 3 or more hours per week spent in youth programs, one or more hour per week spent in activities in a religious institution, and time at home or two or fewer nights per week “just hanging out” with friends). The degree to which assets were present or absent in a child’s life was found to be associated with negative or problem behavior as well as with positive or pro-social attitudes and behavior (see Tables 1 and 2). The more assets a juvenile possessed, the less likely they were to involve themselves with tobacco, drug or alcohol use, drinking and driving, or sexual activity. They were less apt to have problems at school, engage in antisocial behavior, or to behave violently. Emotionally, high-asset youth appeared to be “protected” from depression. Based on the results of their study, the researchers determined that youth possessing 31 or more assets experienced the most positive effects and greatest psychosocial developmental benefit. Of note, only 8% of the juveniles from the study group had 31 or more assets, while 59% possessed 20 or fewer. In an effort to identify those factors that contribute specifically to female delinquency, an exhaustive review of the literature was conducted by the Office of Juvenile Justice Delinquency and Prevention as part of its “Girls Study Group” (Hawkins et al., 2009; Zahn et al., 2008). Several factors found are highly predictive (or, in their absence, preventative) of female delinquency. One of the identified factors that increase the risk of delinquency in females (more so than in males) is early puberty, especially for females raised in a dysfunctional family and an impoverished neighborhood. While child abuse of all types is a risk factor for delinquency in both sexes, sexual abuse has a greater impact on future delinquency in females. Depression and anxiety are risk factors for both boys and girls, but as more females are diagnosed with the disorders, they appear as a more significant factor for females. Boys and girls are equally affected by romantic relationships as relates to more serious crimes; however, girls are more influenced by their boyfriends than are boys 86 THE FORENSIC EXAMINER® Summer 2009

by girlfriends as relates to less serious offenses. In addition to risk factors for delinquency, the “Girls Study Group” found several protective factors. Girls who have an actively caring adult in their life are less likely to join a gang or to commit a number of crimes, such as selling drugs, status or property offenses, or simple or aggravated assault. This protection appears to extend beyond adolescence, as they are less likely to commit simple assaults as young adults. Success in school (specifically as measured by grade point average) is a protective factor for boys and girls, but moreso for females. While there is not clear consensus, it appears that feeling connected to school (that is, having a positive perception of the academic environment and having positive interactions with staff and students) may be a protective factor for girls, especially for those whose home life is dysfunctional. Finally, adolescent females who value religion are less likely to sell drugs and appear to be protected against the commission of minor offenses. Empirical evidence demonstrates that the fewer risk factors and the more “developmental assets” a juvenile experiences in multiple contexts (home, school, neighborhood, workplace, extracurricular programs, religious institution, with peers), the fewer high-risk and the more health-promoting behaviors the youth will manifest (Benson et al., 2006b). These indicators of “developmental success” include such things as maintaining good health, succeeding in school, exhibiting leadership, valuing diversity, delaying gratification, resisting danger, overcoming adversity, and a tendency to help others. The introduction or development of a single asset (or resolving or ameliorating a single risk factor) in a juvenile’s life can have a profound and long-lasting positive effect. While protective factors and assets curb the development of delinquency in female and male juveniles, they do not completely obliterate the influence of risk factors. Youth who are seemingly on a positive development pathway may evidence a foray into delinquency. In the “Girl’s Study Group” sample, 90% of the female participants had committed some type of delinquent act. While most of these were status offenses, 22% committed more serious property offenses and 17% committed simple or aggravated assault. Of note, the delinquent behavior of those females who committed serious offenses was comparatively short-

lived. Most returned to committing less egregious delinquent offenses or the even less serious status offenses. Dealing with Female Delinquents Between 1990 and 1999, there was a 27% increase in the number of youth processed through the juvenile court system (growing from 1.3 to 1.7 million juveniles), resulting in an 11% increase in juveniles remanded to detention (for a total of 33,400 by 1999) (Harms, 2003). While the overall growth was comparatively small, there was a significant change in the juvenile population being processed. By the end of the 1990s, there had been a 50% increase in the number of females in public juvenile detention facilities but only a 4% increase for males. The number of juveniles charged and detained on drug and person offenses rose dramatically, including a 102% increase in females charged with crimes against people. More recently, between 1991 and 2003, there was a 52% increase in the number of female offenders in custody (Snyder & Sickmund, 2006). This reflects a 96% increase in females held on delinquency charges and a 38% decrease in those held for status offenses. Males and females enter the juvenile justice system and detention facilities with differing behavioral and emotional needs (Baerger et al., 2001; Lipsey, 1992). Males are more apt to present with (and have service needs related to) extensive histories of delinquency, more severe conduct and behavioral disorders, and with a higher prevalence of learning disabilities than do females. On the other hand, female detainees typically present with more severe histories of abuse (especially sexual), greater disruption in psychosexual development, and more significant symptoms of posttraumatic stress disorder than do males. Female detainees typically have highly dysfunctional and destructive families and cite their relationship with their parents as the impetus for their delinquent behavior (Pasko, 2006; Acoca & Dedel, 1998). In addition to being exposed to domestic violence, approximately one-third of female detainees were victims of parental/guardian neglect (which may have been severe enough to result in their entering the juvenile justice system as a dependent ward of the court). The caretakers of female detainees are less likely to have a clear understanding of the juvenile’s needs than are the caretakers of male detainees. www.acfei.com

Lederman, C.S., Dakof, G.A., Larrea, M.A., & Li,

Not only do female detainees have hisily counseling, although parent involveH. (2004). Characteristics of adolescent females in tories of significant and long-term childment has not been proven essential in the juvenile detention. International Journal of Law and Psychiatry, 27(4), 321-337. hood sexual abuse, they are apt to have treatment of female delinquents. Given Lipsey, M. (1992). Juvenile delinquency treatbeen sexually assaulted in early- to midthe vulnerabilities with which they enter ment: A meta-analytic inquiry into the variability of adolescence. Approximately 66% of dedetention, females benefit from programeffects. In T.D. Cook, et al (Eds.) Meta-Analysis for tained females were sexually active prior ming that teaches and empowers them in Explanation: A Casebook. New York, NY: Russell Sage Foundation. to admission (Lederman et al., 2004). Of decision-making, assertiveness, and leader Livsey, S., Sickmund, M., & Sladky, A. (2009). Juthose, approximately 33% had a “consenship. Ideally, female programming would venile residential facility census, 2004: Selected findsual” sexual relationship with a man who include wrap-around services and provide ings. [NCJ 222721]. Juvenile Offenders and Victims: was 5 years older than she. Prior to enterpractical services such as general health edNational Report Series Bulletin. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Ofing the system, female delinquents are likely ucation, job training, and finding safe and fice of Juvenile Justice and Delinquency Prevention. to have experienced the loss of a significant secure housing. Although gender-based de Mulford, C., & Giordano, P.C. (2008). Teen datloved one to either death or incarceration. linquency prevention and treatment proing violence: A closer look at adolescent romantic reAs a result of their family environment and grams are emerging, a great void remains. lationships. National Institute of Justice Journal, 261, 34-39. history of abuse, female delinquents have Olivo, L., Cotter, R., & Bromwich, R. (2006). more extensive histories of running away, References Youth and the law: New approaches to criminal justice and they enter detention with high levels of Acoca, L., & Dedel, K. (1998). No place to hide: and child protection (2nd ed.). Toronto, ON: Emond Understanding and meeting the needs of girls in the depression (and other affective disorders). Montgomery Publications. juvenile justice system. San Francisco, CA: National Pasko, L.J. (2006). The female juvenile offender As a result of the increased rate of females Council on Crime and Delinquency. in Hawaii: Understanding gender differences in arentering juvenile detention facilities and in Adams, B., & Puzzanchera, C. (2007). Juvenile rests, adjudications, and social characteristics of juverecognition of their differing needs, in 1992, justice system: A national snapshot. Pittsburgh, PA: nile offenders. Honolulu, HI: Research and Statistics National Center for Juvenile Justice. the U.S. Congress amended the Juvenile Branch, Crime Prevention and Justice Assistance Di Baerger, D.R., Lyons J.S., Quigley, P., & Griffin, E. vision, Department of the Attorney General. Justice and Delinquency Prevention Act of (2001). Mental health service needs of male and female Puzzanchera, C., & Sickmund, M. (2008). Juvenile 1974 (Public Law 93-415, 42 U.S.C. 5601 juvenile detainees. Journal of the Center for Families, court statistics 2005. Pittsburgh, PA: National Center et seq.). The law was amended to require Children & the Courts, 3, 21-29. for Juvenile Justice. Benson, P.L., Scales, P.C., Hamilton, S.F., & Sesma that states generate and provide delinquen Snyder, H.N. (1997). Juvenile arrests 1996. Juvenile A. (2006a). Positive youth development: Theory, reJustice Bulletin. [NCJ 167578]. Washington, DC: U.S. cy prevention and treatment services that search, and applications. In W. Damon & R.M. Lerner Department of Justice, Office of Justice Programs, Ofmeet the specific needs of females. Despite (Eds.), Handbook of Child Psychology, Vol. 1: Theoretfice of Juvenile Justice and Delinquency Prevention. this, gender-based programming is notably ical Models of Human Development (6th ed.) New Snyder, H.N. (2002). Juvenile arrests 2000. Juvenile York, NY: John Wiley & Sons, Inc. lacking (Chesney-Lind, Morash, & Stevens, Justice Bulletin. [NCJ 191729]. Washington, DC: U.S. Benson, P.L., Scales, P.C., Hamilton, S.F., Sesma, Department of Justice, Office of Justice Programs, Of2008; Pasko, 2006). A comprehensive analyA., Hong, K.L., & Roehlkepartain, E.C. (2006b). Posfice of Juvenile Justice and Delinquency Prevention. sis of intervention and treatment programs itive youth development so far: Core hypotheses and Snyder, H.N. (2008). Juvenile arrests 2006. Juvenile for juvenile delinquents revealed that 91% their implications for policy and practice. Search InJustice Bulletin. [NCJ 221338]. Washington, DC: U.S. stitute Insights & Evidence, 3(1), 1-13. “exclusively or primarily” served boys, while Department of Justice, Office of Justice Programs, Of Chesney-Lind, M., Morash, M., & Stevens, T. fice of Juvenile Justice and Delinquency Prevention. 5.9% “primarily” served girls and only 2.3% (2008). Girls’ troubles, girls’ delinquency, and gen Snyder, H.N., & McCurley, C. (2008). Domestic served girls “exclusively”(Baerger et al., 2001; der responsive programming: A review. Australian and assaults by juvenile offenders. [NCJ 219180]. Juvenile Lipsey, 1992). New Zealand Journal of Criminology; Special Issue: Justice Bulletin. Washington, DC U.S. Department of Current Approaches to Understanding Female Of A review of the available (albeit, limited Justice, Office of Justice Programs, Office of Juvenile fending, 41(1), 162-189. Justice and Delinquency Prevention. and localized) research reveals specific core Dorfman, L., & Schiraldi, V. (2001). Off balance: Snyder, H.N., & Sickmund, M. (2006). Juvenile elements of successful treatment programs Youth, race, & crime in the news. Retrieved from offenders and victims: 2006 national report. Washingfor female delinquents (Chesney-Lind, http://www.buildingblocksforyouth/media ton, DC: U.S. Department of Justice, Office of Justice Harms, P. (2003). Detention in delinquency casMorash, & Stevens, 2008). Certainly the Programs, Office of Juvenile Justice and Delinquency es, 1990-1999. Fact Sheet [OJJDP #07]. Washingthe Author Prevention, National Center for Juvenile Justice. specific causes of the female’sAbout delinquency ton, DC: U.S. Department of Justice, Office of Justice Zahn, M.A., Hawkins, S.R., Chiancone, J., & need to be addressed, but other more genPrograms, Office of Juvenile Justice and Delinquency Whitworth, A. (2008). The girls study group—charteral issues are essential to maximize the juPrevention. ing the way to delinquency prevention for girls. Girls Hawkins, S.R., Graham, P.W., Williams, J., & venile’s positive development through adoStudy Group: Understanding and Responding to Girls’ Zahn, M.A. (2009). Resilient girls—Factors that proDelinquency. Washington, DC: U.S. Department of lescence and into adulthood. These include tect against delinquency. Girls Study Group: UnderJustice, Office of Justice Programs, Office of Juvenile resolving issues related to the female’s ability standing and Responding to Girls’ Delinquency. WashingJustice and Delinquency Prevention. n to face and address racism, sexism, and/or ton, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency harassment. Certainly issues related to abuse Prevention. should be a focus of treatment, along with education regarding healthy sexuality and ABOUT THE AUTHOR intimacy. Similarly, delinquent girls need guidance in developing supportive relationBruce Gross, PhD, JD, MBA, is a Fellow of the American College of Forensic Examiners ships with pro-social friends and benefit and is an Executive Advisory Board member of the American Board of Forensic significantly from a long-term relationship Examiners. Dr. Gross is also a Diplomate of the American Board of Forensic Examiners with an adult mentor. and the American Board of Psychological Specialties. He has been an ACFEI member Given the dysfunction in their families, since 1996 and is also a Fellow of the American Psychotherapy Association. delinquent females may benefit from fam(800) 592-1399

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BOOK REVIEWS

Danger Between the Lines: A Reference Manual for the Profiling of Violent Behavior By Kimon S. Iannetta & James F. Craine, PhD Danger Between the Lines reflects Kimon Iannetta’s extensive knowledge and expertise regarding the close examination of various handwriting techniques. Respected by professionals nationwide, Iannetta has been called upon to assist in numerous cases, and her skills as a certified graphologist and document examiner have resulted in a plethora of positive outcomes. The text is saturated with examples both educational and engrossing. Profiles and handwriting samples of a legion of infamous murderers and serial and mass killers are explored, including Ted Bundy, Jeffrey Dahmer, Scott Peterson, Aileen Wuornos, and many more. The reader is allowed a brief glimpse into the background of these contemptible individuals, and is presented with an expertly analyzed handwriting sample for each. This book is skillfully divided and contains descriptions of different forms of violence in order to educate the reader prior to delving into the numerous forms of handwriting analysis. The authors explain the overall purpose of the book, “This manual is an attempt to condense and simplify years of experience into a form that can be readily utilized by psychiatric workers, law enforcement officers, and mental health officials to detect indicators of dangerousness or violence in handwriting.” While Danger Between the Lines is primarily designed as a reference tool for professionals, the text is easy to read and comprehend, making it a viable option for those simply looking for a thrilling read. Kimon Iannetta has over 30 years experience as a handwriting examiner. She has worked as a consultant to the Honolulu Police Department, Public Defender’s Office, Prosecutor’s Office, U.S. Army, and IBM as well as numerous companies in both the public and private sector. Other publications by Iannetta include Handwriting and Drawings of Death Row Prisoners, Forensic Profiling Cards, and Precision Personnel Placement for the Human Resource Professional. Iannetta is a Life Fellow and a Diplomate of the American Board of Forensic Examiners. James F. Craine, PhD (1920-2003) held a doctorate in clinical psychology. He was chief of the Neuropsychology Services Department at Hawaii State Hospital from 1972-1999. Dr. Craine, who specialized in testing and retraining people with brain damage, co-authored The Rehabilitation of Brain Function.

A Question of Murder By Dr. Cyril H. Wecht with Dawna Kaufmann A forensic pathologist, after completing over a decade in schooling and training, is expected to determine the cause, mechanism, and manner of death. As an expert witness, a forensic pathologist must also determine if any suspicions involved with an individual’s death warrant criminal action. Dr. Cyril Wecht is one of our nation’s top forensic pathologists, having worked on numerous high profile cases. A Question of Murder provides valuable insight into five highly publicized cases that captivated the public, presenting the reader with compelling information that otherwise would have remained private. Wecht explores the mysterious deaths of Daniel Smith and his infamous mother, Anna Nicole Smith. Also discussed are the deaths of Stephanie Crowe and Danielle van Dam, as well as the scandal that took place at a prominent New Orleans hospital in the midst of Hurricane Katrina, where several elderly patients were given injections that ultimately resulted in their premature, untimely deaths. Dr. Wecht begins each case with a biography of the victim, helping to paint a clear picture of the individual in life. He explains how he became involved in each case and how he used his expert knowledge and experience to analyze the death of each victim. This book provides a valuable observation of the arena of forensic pathology, allowing the reader to step into the daily life of one of the nation’s leading pathologists. Wecht illustrates the strong connection from the field of pathology to both the media and the legal system. A Question of Murder unfolds like a mystery thriller, making it easy to forget that you are reading about real cases and real people. Dr. Cyril H. Wecht, MD, JD, CMI-V, CFP, is the author of numerous books and hundreds of professional publications. He has served as president of both the American College of Legal Medicine and the American Academy of Forensic Sciences, and he has appeared on many television programs, including Dateline, Larry King Live, 20/20, and On the Record with Greta Van Susteren. Wecht is a Life Fellow of ACFEI and board member on the American Board of Forensic Medicine.

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NEW MEMBERS

Welcome New ACFEI Members! New Members April L. Breniser Joseph J. De Natale Michael A. Groff Lawrence A. London Smita Patel Danah L. Richards Thomas W. Walters Patrick Linnenbank Abdallah Amiri Zenaida T. Asuncion Rebecca Clegg John D. Dolan Nigel A. R. Graham Akeem A. Lasisi Christine R. McDonald Zubaida Zain Glenn W. Ahava Brad Apitz James Bearup Christa V. Billeaud Dale T. Bowen Virginia E. Braden Ric L. Braun Douglas A. Brush Davina K. Burns Mrutyunjaya Chittavajhula Christopher D. Coigne Joseph T. Czaja

Terry L. Donat Robert Donegan Susan M. Downs Marilee T. Elliott Timothy M. Etheridge Paul D. Friedman Curtis L. Funke Katherine A. Gilbert Thomas Gillmore Ildefonso Gonzalez Steven R. Graboff David L. Gray Shayna T. Guidry Linda A. Huber Lisa M. Johnson Leslie J. Kallus Dennis B. Keenan Jerri Kissel Cindy L. Knight Linda E. Lewis Evonne L. Lopez Wendy E. Lyttle Manuel Mendoza Jose J. Nava Robert Peck Gary M. Poole Leon Y. Que Lisa Routh Gregory H. Salerian

David T. Schultz Larry Settles William A. Seymour Charles D. Shamburger, Jr. Lisa D. Smith Andrew M. Smullen James R. Spear Gerald A. Strag Robert J. Telfer, Jr. Moises Toledo Caridad Vasallo Cheryl Ward James L. Warner Dana M. Way Ellen C. Weld Vadon M. Willis David A. Withrow Lori K. Woodbury Nichol K. Zimmermann Earlene M. O’Brien Arthur Peoples Jermaine T. Price Avrianna Bacchiocchi Scott N. Core Mark A. Dietrich Louise L. Greene Georg Grosse-Hohl Keisha S. Harris Jose A. Nieves Romero

Karina D. Parker Robert L. Robey Soheyla Zarandi New Diplomates Stanley Friedman Alex Kwechansky Ray W. London Emil Moldovan Carl Patrasso Douglas J. Taber Mark Withrow New Fellows Margaret M. Bailey Paul L. Bailey Richard H. Bloomer Sharon J. McNair Henry Rinder Kandiah Sivakumaran Deborah A. Stone Paul Tanners New Life Members Gary M. Klein Debra M. Russell Stephen M. Russell Ray T. Weeks

THE COMMISSION ON FORENSIC EDUCATION

Attention Forensic Educators The Commission on Forensic Education, developed by The American College of Forensic Examiners, emphasizes the importance of forensic science programs in education and is committed to their expansion. The Commission offers guidance on instruction, provides help to those who teach or study forensic science, and reviews professional certification programs. The Commission is an effective and essential network that helps educators and students stay informed of the latest innovations, breakthroughs, and important research in the field. Commissioner membership is open to college and university administrators and full-time, part-time, and adjunct professors; Associate Commissioner membership is SM open to high school science teachers. The Commission helps educators advance the field and inspire future forensic professionals through providing supportive services: • Helping educators network with fellow teaching professionals and top experts in the field. • Teaching potential students about the importance and the benefits of studying forensic science. To join the commission, apply • Giving members a highly visible forum to publish and distribute their research. online at www.forensiccommission.com • Helping members stay current in a constantly evolving field by providing quality or call Anna at (800) 592-1399 continuing education. • Providing certification programs that recognize achievement. 90 THE FORENSIC EXAMINER® Summer 2009

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UNITED FOR TRUTH: The ACFEI Story

Now Available! The book, United For Truth: The ACFEI Story, features nearly 200 full-color pages. It includes a narrative history of the organization and the men and women who built it. United for Truth also contains fascinating information about the highest profile cases our members have worked. The book commemorates 17 years of the ACFEI and will be a treasured addition to any office or home library.

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Summer 2009 THE FORENSIC EXAMINER速 91

INTERVIEW

Interview with Michael Kessler, FACFEI, DABFA, DABFE, Cr.FA, CICA Michael Kessler is a Certified Forensic Accountant, Fellow of ACFEI, Diplomate of the American Board of Forensic Examiners, and the Chair of the American Board of Forensic Accounting. He is also the founder of Kessler International, which offers clients a variety of forensic and investigative services. What led you to uncover the alleged Ponzi scheme called Agape World in Hauppauge? I began investigating Agape World last year in an effort to help a client understand his investment risk for a multi-million dollar investment. [O]ur investigation into the company’s president and the companies he operated raised many red flags. Finally, the background information we developed on the company shells revealed their questionable lifestyles, further painting a picture of fraud rather than legitimacy. When were you convinced that Agape World wasn’t just another investment company? Almost immediately. While the exorbitant high rate-of-return might be enough to make anyone question the legitimacy of Agape World, my investigation of the founder Nicholas Cosmo and his brokers confirmed my suspicions and revealed all the textbook criteria of a classic Ponzi scheme. . . [T]he contractual documentation appeared to have been written either by a poor lawyer or someone who had no knowledge of the law. The other literature given out by Agape World and its brokers was also found to be misleading and ultimately it was determined that an audit of the investments or the firm was never performed. Finally, the fact that the company, the president, and the brokers were all unlicensed clearly indicated that something was seriously wrong with the operation. What was the most surprising thing to you about this case? I’m surprised that so many investors did not take the time to do proper due diligence before making an investment. It was obvious that the brokers had no comprehension of finance or previous experience with an investment firm. They were unlicensed, and our investigation also revealed that several of them had previous criminal records, including Cosmo, who served time in jail for a similar offense. Additionally, I was surprised by law enforcement’s lack of concern. I finally referred it to the FBI in Hauppauge, and they, along with the US Postal Inspectors, did the tedious job of collecting the evidence needed to bring Mr. Cosmo to justice. What makes people vulnerable to get-rich-quick frauds? Typically people get involved in these schemes out of greed or desperation. In an economy like we have today, you can multiply those factors tenfold. The majority of the victims of Agape World were blue collar and middle class families, many of them struggling to make ends meet or just trying to save money for their future. Investing in Agape World seemed too good to be true, but desperation overrode common sense. 92 THE FORENSIC EXAMINER® Summer 2009

How will the U.S. Attorney General’s office and the FBI find the money that appears to be missing? Long and tedious tracing of bank account transactions will have to be performed following the trail of money. By now most of it is probably gone, and the assets that are left will never make the victims whole. What kind of frauds are companies dealing with these days and how can they try to prevent them? We are seeing major increases in accounting fraud, employee embezzlement, and the use of the computer to steal information. The simplest way to deal with these is by having preventative measures in place beforehand. Our forensic accountants and computer forensic examiners are routinely retained to assist companies dealing with these types of problems and to put into place preventative programs for the future. Tell me a little bit about Kessler International and what the company does. Kessler International has been in business for over 21 years, and we specialize in corporate investigations, forensic accounting, brand protection, computer forensics, and e-discovery, among other disciplines. Agape World lasted almost ten years. What do you think caused it to fail now? Ponzi schemes rely on a continual flow of investors in order to keep running. Eventually, it becomes harder to find investors, and the Ponzi scheme collapses. After our investigation, my client refused to reinvest a sizable investment, and the cards began to tumble. I began issuing press releases regarding Ponzi schemes. Additionally, the Bernard Madoff Ponzi scheme was all over the news, and this made investors scrutinize Agape World a little more closely than they had done before. What other notable cases has Kessler International investigated? To Kessler International, every case is notable and important to us and our clients. Some of the more notable cases I can discuss involve public entities. We have helped recoup millions of dollars for a school district that was cheated during a construction project, revealed fraud and abuse in the Clark County (Las Vegas) building and fire department complaint process, and documented financial weaknesses for the Prime Minister of a Caribbean Island. How will the Cr.FA designation add to the existing credentials of forensic accountants? Forensic Accounting has become a very competitive and crowded industry with many practitioners having no or little knowledge of the requirements and practices of the profession. . . The fact that [Cr.FA] designees have demonstrated commitment, experience, and knowledge of the industry by testing and are mandated to participate in continuing education for the purposes of maintaining their credentials, anyone hiring a Cr.FA can rest assured they have the requisite knowledge to competently complete the engagement. The Cr.FA designation is the pinnacle achievement forensic accountants can achieve and use to demonstrate their abilities to potential clients and their peers. n www.acfei.com

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.

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FALSELY ACCUSED

Falsely Accused: Kimberly’s Killer On September 19, 1985, authorities found the body of 16-yearold Kimberly Simon off an access road near Mohawk River in Whitestown, New York. She was raped and strangled. Steven Barnes, only 19 at the time, was in town with friends the night of her murder. Eyewitnesses thought they saw a man who looked like Barnes near where the body was found the next day and claimed Kimberly got into a maroon or brown truck resembling Barnes’s (Coin, 2008). These eyewitnesses couldn’t definitively testify seeing Barnes and Kimberly together or even that the two had ever met, yet Barnes was convicted in 1989, based on these “sightings” and forensic testimony implicating him. Chief prosecutor for the case, William Kernan, argued that though the case was circumstantial, there were just too many coincidences (Coin, 2008). DNA evidence from two unknown males was recovered from Kimberly’s body, but at the time of the 1989 trial, forensic science didn’t have the technology to draw conclusive results (LaDuca, 2009). Instead, the prosecution focused on the flimsy forensic testimony available. A soil sample taken from the tires of Barnes’s truck was similar to the soil of the area where the victim was found. A close inspection of Barnes’s truck also revealed a fabric imprint on the exterior that seemed to match Kimberly’s jeans (WKTV, 2009). This deficient forensic testimony against Barnes sealed his fate. Barnes has always maintained his innocence, and many Oneida County citizens stood behind him over the years. His family and his community were never ashamed and, like Barnes, held on to their hope that he would one day be released. Barnes admits, “When I was in prison, I would read about other people who were exonerated after 10, 15, or 20 years, and I wondered if my time would ever come” (WKTV, 2009). More than 2 decades later, he got his wish. The Innocence Project, a non-profit organization dedicated to exonerating the wrongfully convicted with DNA testing, appealed on Barnes’s behalf. When the results came back from the lab, District Attorney Scott McNamara joined Barnes’s cause for exoneration. The DNA evidence proved Barnes’s innocence, and the judge vacated his conviction and sentence. But with the indictment still standing, Steven Barnes could still be brought back and retried (WKTV, 2009). On January 9, 2009, he was officially exonerated and, as a free man, tearfully embraced his mother and sister in the courtroom. Barnes, however, has shown remarkable character and resilience throughout his ordeal; he does not seem darkened by the decades of freedom lost. Instead, he graciously accepted the DA’s apology and understands that mistakes can be made in the legal system. He said he held no grudge against investigators whom he knows were “just doing their job” (LaDuca, 2009). But he hopes what happened to him never happens again. Circumstantial evidence sealed Barnes’s fate simply because stronger evidence was not present. His case, among so many other instances of DNA exonerations, proves that shrugging “Who else could it be?” before slapping on a GUILTY stamp does not uphold our justice system’s tenets. New York is one of the leading states in numbers of wrongful convictions overturned with DNA testing, boasting 24 cases to date. Compensation and DNA Access laws are in place, though New York’s compensation 94 THE FORENSIC EXAMINER® Summer 2009

law does not maintain a minimum rate for each year of unjust incarceration (as many states do) (Innocence Project, 2009). If Barnes sues for compensation, the judge overseeing the claims case will determine fair compensation for damages. Most important for Barnes, however, is that he could celebrate his 43rd birthday on January 25, celebrating for the first time in 20 years as a free man. Barnes’s exoneration reopens the Kimberly Simon murder case, which now boasts a five-person task force investigating 100 leads (WSYR, 2009). Barnes will aid police investigators in any way that he can to find Kimberly’s killer. “I hope there’s closure in this someday soon for the Simon family,” he said. “What happened to me and what happened to her—two wrongs don’t make a right” (LaDuca, 2009). Both DA McNamera and Barnes assert that this case is really about finding justice for Kimberly. McNamara keeps Kimberly’s picture on his desk as an ever-present reminder to pursue truth, no matter what (WSYR, 2009). References Coin, G. (2008, November 25). After 20 years in prison, Marcy man walks free. The Post-Standard. Retrieved January 29, 2009, from http://www.syracuse.com/ news/index.ssf/2008/11/da_dna_clears_upstate_ny_man_j.html Innocence Project, The. (2009). News and information: National view. The Innocence Project. Retrieved January 28, 2009, from http://www.innocenceproject. org/news/National-View.php LaDuca, R. (2009, January 9). It’s official: Barnes exonerated on all charges. Utica Observer-Dispatch Retrieved January 28, 2009, from http://www.uticaod.com/ news/x497784091/Its-official-Barnes-exonerated-on-all-charges WKTV. (2008, December 4). Kimberly Simon murder: Case old but far from cold. WKTV News. Retrieved January 28, 2009, from http://www.wktv.com/news/ local/35561549.html WKTV. (2009, January 9) Steven Barnes fully exonerated for 1985 rape and murder charges. WKTV News. Retrieved January 28, 2009, from http://www.wktv. com/news/local/37333924.html WSYR. (2009, January 9). Barnes exonerated of charges in 1985 murder and rape. WSYR 9 News. Retrieved January 28, 2009, from http://www.9wsyr.com/news/ local/story/Barnes-exonerated-of-charges-in-1985-murder-and/aKrEXSlolUqTjSA28_uY2A.cspx n www.acfei.com

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