Convicted serial killer, Timothy Spencer, the Southside Strangler, appealed his death sentence. He claimed that he was factually innocent, scientists did not adequately perform the DNA testing in his case, and that DNA testing is a flawed science. Were Spencer’s claims wrong? Is DNA testing flawed?

Spencer also challenged the facility that performed the DNA testing. The court found no flaws in their procedures.

Landmark Case – 1st Death Sentence in the U.S. Based on DNA Evidence

Since so many writers craft stories involving serial killers and other murderers, I thought you would perhaps be interested in seeing a small part of the process involved in those cases as they make their way through the legal system.

* Spencer was the first person in the U.S. sentenced to death based on DNA evidence. This was a landmark case in the United States. I served as a witness to Spencer’s execution via electric chair. Patricia Cornwell’s first book, Post Mortem, was based on Spencer’s case and of the police investigation.

The following paragraphs are excerpts from Timothy W. Spencer’s appeal to The United States Court of Appeals, 4th Circuit. His argument – The DNA testing was flawed.

*WARNING – Parts of the text are quite graphic*

5 F.3d 758

Timothy W. SPENCER, Petitioner-Appellant,
v.
Edward W. MURRAY, Director, Respondent-Appellee.

No. 92-4006.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 28, 1992.
Decided Sept. 16, 1993.

J. Lloyd Snook, III, Snook & Haughey, Charlottesville, VA, argued (William T. Linka, Boatwright & Linka, Richmond, VA, on brief), for petitioner-appellant.

Donald Richard Curry, Sr. Asst. Atty. Gen., Richmond, VA (Mary Sue Terry, Atty. Gen. of Virginia, on brief), for respondent-appellee.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

1 – Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Debbie Dudley Davis. We affirm.

2 – The gruesome details of the murder of Debbie Davis can be found in the Supreme Court of Virginia’s opinion on direct review, Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). For our purposes, a brief recitation will suffice. Miss Davis was murdered sometime between 9:00 p.m. on September 18, 1987 and 9:30 a.m. on September 19, 1987. The victim’s body was found on her bed by officers of the Richmond Bureau of Police. She had been strangled by the use of a sock and vacuum cleaner hose, which had been assembled into what the Virginia Court called a ligature and ratchet-type device. The medical examiner determined that the ligature had been twisted two or three times, and the cause of death was ligature strangulation. The pressure exerted was so great that, in addition to cutting into Miss Davis’s neck muscles, larynx, and voice box, it had caused blood congestion in her head and a hemorrhage in one of her eyes. In addition her nose and mouth were bruised. Miss Davis’s hands were bound by the use of shoestrings, which were attached to the ligature device. 384 S.E.2d at 789.

3 – Semen stains were found on the victim’s bedclothes. The presence of spermatozoa also was found when rectal and vaginal swabs of the victim were taken. In addition, when the victim’s pubic hair was combed, two hairs were recovered that did not belong to the victim. 384 S.E.2d at 789. The two hairs later were determined through forensic analysis to be “consistent with” Spencer’s underarm hair. 384 S.E.2d at 789. Further forensic analysis was completed on the semen stains on the victim’s bedclothes. The analysis revealed that the stains had been deposited by a secretor whose blood characteristics matched a group comprised of approximately thirteen percent of the population. Spencer’s blood and saliva samples revealed that he is a member of that group. 384 S.E.2d at 789.

4 – Next, a sample of Spencer’s blood and the semen collected from the bedclothes were subjected to DNA analysis. The results of the DNA analysis, performed by Lifecodes Corporation, a private laboratory, established that the DNA molecules extracted from Spencer’s blood matched the DNA molecules extracted from the semen stains. Spencer is a black male, and the evidence adduced at trial showed that the statistical likelihood of finding duplication of Spencer’s particular DNA pattern in the population of members of the black race who live in North America is one in 705,000,000 (seven hundred five million). In addition, the evidence also showed that the number of black males living in North America was approximately 10,000,000 (ten million). 384 S.E.2d at 790.

5 – On September 22, 1988 a Richmond jury found Spencer guilty of rape, burglary, and capital murder. The jury unanimously fixed Spencer’s punishment at death, which was affirmed on direct appeal. Spencer then filed a petition for habeas corpus with the state trial court, which was dismissed. He appealed to the Virginia Supreme Court, but because his appeal was filed one day out of time, the Virginia Supreme Court refused the petition. Spencer then filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Virginia. The district court denied his petition. Spencer v. Murray, No. 3:91CV00391 (E.D.Va. April 30, 1992).

6 – On appeal, Spencer raises essentially five issues1: (1) the DNA evidence in this case is unreliable; (2) defense counsel was denied an opportunity to adequately defend against the DNA evidence because the trial court denied a discovery request for Lifecodes’ worknotes and memoranda, the trial court refused to provide funds for an expert defense witness,2 and the prosecution did not reveal evidence of problems with Lifecodes’ testing methods; (3) the trial court should not have admitted the DNA evidence; (4) the prosecution improperly struck Miss Chrita Shelton from the jury for racially-motivated reasons as prohibited by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (5) the future dangerousness aggravating factor in Virginia’s capital sentencing scheme is unconstitutionally vague.

* Spencer’s major attack was on the DNA testing. I’ve inserted photos of the same type DNA testing  (electrophoresis, or gel testing) that Spencer claimed was faulty.  These photos are mine—I was the photographer. These were not part of the appeal. 

Spencer’s argument boils down to an assertion that the DNA results were flawed and he was wrongly convicted. This is a claim of factual innocence. The errors he points to–potential errors in the results of the DNA test–are errors of fact, not law.

… Specifically, Spencer points to a laundry list of problems that might have occurred with his DNA test, including:

1 – Bandshifting that may have occurred because the tests were not run on same gel (list continues below images);

DNA testing by electrophoresis (gel testing) … the process

Weighing the agar gel.

Mixing the gel with water.

Gel in chamber.

Forensic Facts

Injecting DNA into the gel.

Attaching electrodes to the chamber.

Introducing electric current to the gel.

Completed gel is placed onto an illuminator for viewing.

 Gel on illuminator.

*My thanks to Dr. Stephanie Smith for allowing me to hang out in her lab to take the above photos.

Completed gel showing DNA bands

DNA bands

Spencer’s claims against DNA continue:

2 – Cross-contamination or bacterial contamination of the samples because Lifecodes’ procedures do not guard against these threats;

3 – Invalidity because of the lack of data on the reliability of DNA testing of degraded forensic samples;

4 – Incorrect matching because visual inspection, rather than computer calculations, were used to declare a match;

5 – Invalidity that may have resulted from potentially poor quality control or proficiency standards;

6 – Impossibility of verifying results because Lifecodes did not record what voltage they applied to gel;

7 – Inability to know whether Lifecodes properly performed tests because there are no standards for licensure or required tests that labs must complete;

8 – Improper testimony at trial about the statistical likelihood of finding someone else with same DNA type because of potentially improper application of the product rule;

9 – Lack of validation studies to prove reliability of DNA testing in forensic setting and of using sperm to DNA type; and

10 – Possible inaccuracies resulting from Lifecodes’ use of certain probes

Spencer repeatedly urged, in his brief and at oral argument, that the main reason the DNA evidence in this case was found to be admissible is because it was “too new” to have been criticized, because the criticisms were published after his trial, and because Spencer was, according to counsel, the first person ever convicted and sentenced to death, using DNA evidence, in Virginia.

The Virginia State Supreme Court ruled that the DNA testing had been performed properly and denied Spencer’s appeal.


I sat twenty-feet or so from Spencer as he was put to death in Virginia’s electric chair. The procedure was gruesome, to say the least.

A few minutes after the final burst of electricity surged through Spencer’s body, time to allow the body to cool enough to allow a physical examination, the attending physician checked for signs of life. After a moment or two he looked up from Spencer’s body and said to the warden, “This man has expired.”

It was over.

Later, an unmarked DOC van carrying Spencer’s body departed the prison, passing through a crowd of people lining the roadway outside the main gate—protesters, and the many officers from state and county agencies who were assigned to maintain peace between the pro and anti death penalty groups. Both groups went silent as the van exited the prison gates and passed by on its way to the state morgue in Richmond where an autopsy was scheduled to be performed.

I knew how it felt to stand there watching those vans pass because I’d been assigned to the protection detail several times in the past. One of those times was for the execution of Roger Keith Coleman, a man convicted and sentenced to death for the rape, murder, and beheading of his sister-in-law.

Tension was high the night of Coleman’s execution and the crowds on both sides of the death penalty debate were large and angry.

Coleman’s case drew international attention. He, a coal miner from the mountains of Virginia, pleaded his case on talk shows and in magazines and newspapers. He was even featured on the cover of Time magazine. Pope John Paul II attempted to intervene, pleading to block the execution, and thousands upon thousands of protestors from around the globe sent letters to the governor of Va. Many made phone calls to his office.

But, DNA tests proved that Coleman was indeed the perpetrator of his sister-in-law’s brutal rape and murder. He submitted to a polygraph on the day of his execution as a last attempt to prove that he’d not committed the horrible crime. He failed the test.

Coleman’s final meal was a dinner of pepperoni pizza, fudge cookies, and a 7-Up. He went to “the chair” still proclaiming his innocence.

After Spencer’s execution concluded, prison officials drove me out and away from the facilty to my unmarked car I’d earlier parked behind the state police area headquarters. They’d picked me up there and driven me to the prison to prevent onlookers from knowing that I was to be a witness, a standard procedure.

As the prison van containing Spencer’s body passed by the protesters, I was already on my way home.

Regarding DNA and saliva, I’d like to note that it is indeed possible to expel DNA when coughing or sneezing. However, the fact that it’s possible doesn’t mean it’s always found, just that it could be. And, if found, it could be the DNA of someone other than than a suspect or victim, such as cop or lab scientist who was involved in the collection or testing of the evidence. Here’s why …

First, in the lab, to tell the difference between saliva and sputum, scientists look for epithelial cells. These cells have a nucleus, and within a nucleus DNA is found. Saliva is almost always present in the mouth, especially when we are awake. When we sneeze saliva and the DNA contained within is expelled.

FYI – Lab scientist/techs scan collected sputum samples for the presence or absence of white blood cells. White blood cells, not red, indicate infection. The presence of epithelial cells from saliva indicates the sample is contaminated with saliva, which would result in improper test results. Sputum is tested for respiratory tract infections. 

By the way, red blood cells (erythrocytes) have/contain no nucleus nor do they contain mitochondria. Therefore, red blood cells do not contain DNA because there’s no nucleus in the cells.

Those of you who attended the WPA when world-renowned DNA expert Dr. Dan Krane presented a fantastic session on DNA evidence, may remember when he mentioned how DNA evidence is sometimes contaminated, such as using fingerprint brushes or gloves from one scene to process evidence in an entirely different location. DNA could be transferred using those items. He also pointed out instances where coughing or sneezing could distribute DNA to the surface of an item being processed. (Dr. Krane is a former colleague of my wife, Denene)

On with DNA and Sneezing

As an example of evidence contamination via sneezing, when discussing the Jon Benet Ramsey case, Dr. Krane says, “The DNA in tests could be there because of a contact that was weeks, months, even years before the crime occurred. It’s not possible to make inferences about the tissue source here. We can’t say that it came from semen or saliva or blood or anything. What if one of the medical examiners sneezed on one of these articles of clothing and it came into contact with the other one? There are just so many possibilities.”

Additionally, from another source, “It is extremely easy to contaminate biological samples; this can occur by failing to change gloves or clean instruments properly, failing to wipe down benches properly between testing, or by sneezing or even talking over a sample (Buckleton et al 2005:277).”

And, from the National Institute of Justice:

Contamination

Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary when identifying, collecting, and preserving DNA evidence. DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches the area that may contain the DNA to be tested.

To avoid contamination of evidence that may contain DNA, always take the following precautions:

  • Wear gloves. Change them often.
  • Use disposable instruments or clean them thoroughly before and after handling each sample.
  • Avoid touching the area where you believe DNA may exist.
  • Avoid talking, sneezing, and coughing over evidence.
  • Avoid touching your face, nose, and mouth when collecting and packaging evidence.
  • Air-dry evidence thoroughly before packaging.
  • Put evidence into new paper bags or envelopes, not into plastic bags. Do not use staples.

From the U.S. National Library of Medicine/National Institute of Heath/The National Center for Biotechnology Information (NCBI):

4.2. Contamination

For DNA studies, one of the greatest laboratory barriers is the contamination of genetic material from other sources (e.g., from the examiner and other biological evidence). Contamination may occur during the sexual contact (e.g., if there is more than one perpetrator), during the period between the sexual contact and the FME, during the FME, and in the laboratory. In order to avoid it, examiners should take special precautions to prevent cross-contamination between evidences. For this purpose, it is important:

  1. to work under aseptic conditions to avoid microbial contamination;
  2. to always use disposable supplies to ensure individual protection (e.g., gowns, powder-free gloves, mask, or other protective clothing) and to avoid direct contact with the samples;
  3. to ensure that the room where FME takes place is regularly cleaned before and after patient use;
  4. to avoid sneezing, coughing, or talking over the samples;

Dr. Krane is one of the world’s foremost DNA experts, testifying worldwide as an expert witness in well over 100 criminal trials, in which DNA evidence was presented, such as the Jon Benet Ramsey case. He’s been involved as a top expert in other high-profile cases such as the DC Snipers, OJ Simpson case, and the infamous Monica Lewinsky/Bill Clinton “blue dress,” to name only a few. Dan also developed software that’s used in genetic analyzers, the devices used by scientists who conduct DNA tests.

My other source, in addition to our good friend Dr. Dan Krane, is, of course, my resident renowned expert, Dr. Denene Lofland.

Denene received a Ph.D. in Pathology, with an emphasis in microbiology, from Virginia Commonwealth University School of Medicine. As a former biotech company director, Denene managed successful clinical projects that resulted in regulatory filings of four compounds and FDA approval for two new antimicrobial drugs for the treatment of pneumonia and cystic fibrosis. The drugs are currently on the market.

Denene supervised several projects, including government-sponsored research which required her to maintain a secret security clearance. Her areas of expertise include medical microbiology, bioterrorism, and new drug discovery development. She has published numerous articles in a variety of peer reviewed scientific journals, contributed to the thirteenth edition of Bailey and Scott’s Diagnostic Microbiology, a textbook standard used in colleges and universities, published an article about anthrax in Police One magazine, and she has an upcoming tale in the Writers’ Police Academy’s anthology, After Midnight, Tales From the Graveyard Shift (edited by Phoef Sutton with foreword by Lee Child) ~ Level Best Books, publisher

Currently, Denene is an Associate Professor of Medical and Molecular Sciences at the University of Delaware. She also taught medical microbiology to medical students at a medical college in California. In her early days, prior to becoming a mad scientist, she managed the lab in a large, major hospital.

Over the years, I was fortunate to have the experience of witnessing Denene and her teams, and Dr. Krane’s team, perform numerous DNA testings using both gel electrophoresis and DNA Sequencers/Genetic Analyzers. I was once treated to conducting a test of my own in one of Dr. Dan Krane’s labs, an entire DNA test from extraction of sample to final result. I ran the test on the DNA of a strawberry, but hey, the process is the same as when using human samples. The strawberry was innocent, by the way.

Again, the fact that DNA is present in saliva, it doesn’t mean DNA is always found when someone sneezes or coughs, or talks over evidence (it’s even been found in traces of saliva found on a public phone receiver), just that it’s possible and that it does occur.


DNA Testing: The Process

The first step in the testing process is to extract DNA from the evidence sample. To do so, the scientist adds chemicals to the sample, a process that ruptures cells. When the cells open up DNA is released and is ready for examination.

extract-dna.jpg

DNA is actually visible to the naked eye. The slimy glob in the center of the circle below is DNA.

new-picture-11.jpg

DNA is tested in devices like the one below. They’re called genetic analyzers. This particular device is located in one of Dr. Dan Krane’s laboratories.

new-picture-1.jpg

DNA is loaded into wells inside the genetic analyzer. There are 96 wells in the gray, rectangular block shown below (inside the analyzer).

new-picture-2.jpg

An electric current separates the DNA, sending it from the wells through narrow straw-like tubes called capillaries. During its journey through the analyzer, DNA passes by a laser. The laser causes the DNA loci (a gene’s position on a chromosome) to fluoresce as they pass by, which allows a tiny camera to capture their images.

The image below shows DNA’s path through the genetic analyzer (wells are on the left; capillaries are the arcing lines leading to laser and camera on the right).

new-picture-3.jpg

Capillaries

new-picture-4.jpg

Doctor Stephanie Smith points to the row of eight capillaries, one for each well in the corresponding line of wells (12 rows of 8 wells).

At the end of the testing, the equipment produces a graph/chart called an electropherogram.

Peaks on the graph depict the amount of DNA strands at each location. It is this unique pattern of peaks and valleys that scientist use to match or exclude suspects.

Or, in the case of paternity testing, to include or exclude someone as a parent.

The image below is an electropheragram showing the DNA of a strawberry.

new-picture-8.jpg

Electropheragams are printed and it is this document that’s examined by experts for use in the ID/comparisons of sample contributors, such as suspects and victims.

Remember above when we discusses sneezing, coughing, and/or talking over DNA evidence? Well, here’s a DNA test result (electropheragram) of a contaminated sample, a mixture of DNA found on the body of a rape victim. The evidence was contaminated to the point that it was impossible to tell/prove whether or not Contributors 1 or 2 were involved in the assault. Notice that the peaks in the mixture do not quite match either suspect’s DNA.

Electropheragram showing tested DNA of two subjects, and a mixture of DNA collected from a victim. Results showing a mixture make it difficult to point to any one suspect, or if someone other than the suspect and victim contaminated the sample.

The image below shows a clear match between the DNA of the victim and suspect. The suspect was clearly in contact, in some way, with the victim.

 

DNA Facts:

Identical twins have identical DNA.

Humans are genetically 99.9% identical. Only 0.1% of our genetic makeup is different.

It takes about eight hours for one cell to copy its own DNA.

Red blood cells do not contain DNA.

DNA is used to determine pedigree in livestock.

DNA is used to authenticate wine and caviar.

Detergent and Alcohol will not destroy DNA.

DNA can be transferred from article of clothing to another, even in a washing machine. This is called secondary and tertiary transfer.

DNA testing is not 100% accurate.

*My thanks to Dr. Stephanie Smith and Dr. Dan Krane for allowing me to hang out in their labs to take the above photos.

*Thanks, too, to the good folks at crimescenewriter for the idea for this post. 


Have you reserved your spot at MurderCon? If not, there’s still time to do. Sign up today to attend this rare hands-on training event!

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MurderCon Instructors

The last time you traveled by air, was it possible you were seated beside someone who had a pistol hidden somewhere beneath their jacket, other than an air marshal?

Before you burn away too many brains cells pondering the question, I’ll answer it for you. Yes, it is indeed possible that a passenger on your flight, in spite of the tough safety checks implemented by security, was carrying a loaded firearm.

This is so because the law permits certain law enforcement officers, other than air marshals, to carry their fully-loaded sidearms even while on typical, everyday flights.

Writers Want to Know

Are cops allowed to carry their weapons on airplanes? I’ve seen this question asked by writers, time and time again on various sites and Q&A groups, and I often see tons of those questions go unanswered, or worse still, answered incorrectly. So let’s set the record straight, today.

First of all, simply carrying a badge and police ID does not automatically grant an officer permission to “carry” while onboard a passenger aircraft. Certain conditions must be met before getting to that stage, and those conditions, set by the TSA, are extremely strict.

The mandatory conditions are spelled out in black and white in a document called the Law Enforcement Officers Flying Armed initiative. Of course, the document being official government paperwork, comes with an acronym all its own—LEOFA.

To receive approval to fly armed, the individual must:

  1. Be a government agency employee whose duties require and authorize them to carry a weapon.
  2. Be a sworn officer whose duties are to enforce criminal or immigration laws.
  3. Be a full-time and sworn, federal, state, county, municipal, or tribal officer. The officer must be a direct agency employee, not a volunteer, etc.
  4. Satisfactorily complete the LEOFA training course offered by the TSA.
  5. The officer’s agency must show a need for the officer to fly armed, such as transporting a prisoner, conducting dangerous surveillance (the person being surveilled is traveling on the plane, etc.), or that the officer must be ready for action the moment the plane lands.

Like everyone else who’s legally allowed to possess firearms, officers traveling for pleasure may transport firearms on airplanes simply by storing them (unloaded) in locked, hard-sided containers, and then declare those weapons at the ticket counter. Firearms may NOT be transported in carry-on luggage.

Travel Across State Lines with Concealed Firearms

The Law Enforcement Officers Safety Act (yes, another acronym—LEOSA) states that qualified active-duty and retired officers may carry concealed weapons, without special permit, in any U.S. state. This is regardless of any state law.

There are restrictions, though, and they are:

  1. The officer must be authorized by their agency to carry a firearm.
  2. The officer must not be under the influence of alcohol or any type of drug at any time while in possession of the firearm.
  3. Officers must qualify (at the range) to carry the weapon in their possession.
  4. Must not be involved in any disciplinary conditions that could result in the loss of their police powers.
  5. Must not be prohibited by federal law to carry a firearm.

Special Requirements for Retired Officers 

  1. Must have served at least 10 years of service prior to retirement.
  2. Must have left their department in good standing.
  3. Must not have been deemed unfit to carry a firearm (mental health issues/diagnosis).
  4. Must qualify with the firearm at the firing range within the past 12 months. Qualifying = meets the minimum standards set by their home state and/or agency.

In addition to the above, each officer, or retired officer, must carry a special photo ID with them at all times when possessing a firearm. The ID must certify that they’ve met all minimum standards set above.

*Source – National Sheriffs’ Association

I’ve heard the word entrapment spoken to or shouted at officers, including me, at least a thousand times over the years, especially when undercover ops came to a close and the bad guys discovered the true identity of a person, an undercover police officer, they’d admitted to their inner circle. That it was the undercover agent to whom they’d spilled their deepest secrets. And it was the sneaky cop to whom they’d trusted enough to sell mounds of illegal goods such as cocaine and/or guns. Those officers who, while during the course of their assignments, concealed their identities to infiltrate criminal enterprises.

And it doesn’t stop there, with undercover operations. No, not at all. I’ve had the word tossed at me during traffic stops and during investigations of murders, burglaries, white collar crimes, and even B&Es.

Entrapment is often a go-to word when a bad guy is caught with his hand in the cookie jar. It’s almost as if some people think it’s a “get out of jail free” card.

So what exactly is entrapment?

For starters, it’s more than simple trickery, such as when undercover cops grow long hair and beards, and wear jeans, t-shirts, and tennis shoes as part of a disguise so that they’ll fit in with a certain crowd. Or, when a female officer wears a tight, short skirt and 10-inch heels while parading along sidewalks pretending to be a hooker who’s fishing for “customers.”

A person is “entrapped” when he is persuaded by police, or their agents—someone acting on their behalf, such as an informant—to commit a crime that he had no previous intention of carrying out. In simpler terms, the officer or agent of the police convinced the person to commit a crime he otherwise would not have committed. Cops may not plant the “commit the crime seed” into the mind of an innocent person.

A defendant who is the victim of entrapment may not be convicted of the crime.

The DOJ – Entrapment

The Department of Justice details entrapment as …

“Entrapment is a complete defense to a criminal charge, on the theory that ‘Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.’ Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.

Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Sorrells v. United States, 287 U.S. 435, 451 (1932).”

Solicitation of a Crime is NOT Entrapment!

It’s perfectly legal for police officers to pretend to be someone they’re not in order to get to the bottom of a criminal case. For example, the undercover officer who pretends to be a an arms dealer who requests to purchase illegal firearms from a suspected criminal.

It is not entrapment when a person is ready and willing to commit a crime when approached by an officer, undercover or not.

The mere providing of an opportunity to commit a crime is not entrapment. In order to find entrapment, there must be persuasion to commit a crime by the entrapping party.

Entrapment is a legitimate defense. However, the burden of proof is squarely on the shoulders of the defendant. To claim inducement, a defendant must prove that police conduct absolutely created a situation where a law-abiding citizen (the defendant) would commit an offense. The defendant must prove to the court that he was unjustly persuaded, coerced, threatened, and/or harassed into a situation where he committed the crime for which he was charged.

Again, an undercover officer who merely approaches someone to ask if they’d be willing to sell the officer a quantity of drugs, and they do, this is not entrapment. The officer in no way unjustly persuaded, coerced threatened, and/or harassed the subject. Instead, he asked for a product and the subject delivered the goods.

For example, the case of Officer Ima Agent and cocaine seller Willie Deal:

Officer Ima Agent, dressed in jeans, a Grateful Dead t-shirt, and scuffed, red Chuck Taylors, sees Willie Deal, a suspected drug runner, standing on a street corner. She sees Deal make several exchanges with people—cash for small, pebble-shaped pieces of aluminum foil. So she approaches Deal and their conversation goes something like this.

“What’s up?” says Agent.

Deal gives the female undercover cop a head to toe once over. “Just chillin’. Know what I’m sayin’, Shorty?”

“I’m in town for the weekend visiting my boyfriend. He’s in the county lockup and one of his friends, Joe Blow, said I might be able to hook up around here. He point me in the right direction?”

“Depends, Shorty. Whatcha’ looking for?”

“Just a rock or two. All I got is thirty bucks, though.”

Deal gives her another look. Thinks for a minute. Looks around. Another look. “Okay, Shorty. Let me see the thirty and see what I can do.”

Officer Agent shows Deal a crumpled ten and twenty (undercover cops always wrinkle “buy money.)” New bills are dead giveaways to bad guys, that they’re dealing with a rookie undercover cop.

Deal produces two small foil-wrapped packages. Agent opens one to inspect the goods and determines that it is indeed crack cocaine. Then she signals to her partners with a quick a scratch to the right side of her head, the sign to move in to make the bust.

The scenario between Agent and Deal is a legal arrest. No entrapment.

Deal was absolutely ready and willing to sell drugs. Agent in no way unjustly persuaded, coerced, or threatened Deal to sell her the drugs.

 

Have you ever had one of those bosses who knows everything about everything? You know the type, no matter what you say or do, they know best, did it better, faster, and more cost efficient, all while walking uphill during a snowstorm while barefoot.

Well, as bad as it is for you guys to work for one of these know-it-all’s, imagine doing so while working as a police officer where split-second decisions could mean the difference between someone living or dying.

Add to that, the boss decides he wants to come out and play cops and robbers during an important operation, unannounced, making those split-second decisions for you … over the course of an hour or so without knowing details, background, the names of the bad guys and whether they’re armed, or not. Not a freakin’ clue.

Well, I once had one of those bosses, and …

The bust promised to be a good one—cocaine, heroin, and a boat load (just an expression) of shrooms and pills. I’d worked on the case for a couple of months, spending lots of undercover time hanging out with this group of doofuses, and I’d reached the point where I was ready to get warrants for everyone, including search warrants for two properties.

One residence was the single-story modest home of a guy, Carey D. Weight, who held most of the group’s dope. He also did most of the packaging and transporting. The other search warrant was for the home of the top dog in the operation.

In this case, the top dog was a female—a young, somewhat attractive female, Betty Bigbutt, who lived with her elderly grandmother and her grandmother’s full-time healthcare worker. Oh, and I should mention that the female’s family was very much a high-profile family. Quite well-to-do with a very famous relative.

So, the plan was for one team to search the packager’s home, which was basically a dump, while the other team was set to paw through some extremely expensive items inside an elegant and ornate southern mansion. However, just before executing the warrants, an emergency developed and members of one of the search teams were forced to respond to assist troubled patrol officers.

Therefore, left with only one entry team, I had to change my plans, deciding to go for the top dog first, sending one officer over to guard Weight’s home in case he decided to suddenly depart. I had no idea that the chief of police and one of his captains were out, together, snooping around and playing Junior G-Men.

Our team was in position, ready to knock and announce at the front door when a faint voice crackled in my earpiece. I held up my hand, indicating I wanted everyone to stand down. Thinking something had gone wrong I backed away from the house. I heard the voice again, but couldn’t make out what the person had said. So I turned up the volume.

The barely-above-a-whisper voice of our chief of police came through, and he said, “The groceries have landed.”

I turned toward the officer standing next to me to make sure I’d heard what I thought I’d heard. He shrugged, also not knowing the meaning of our fearless leader’s words.

So I keyed my mic and softly said, “Repeat your traffic.”

And again, “The groceries have landed.”

Remember, an entire entry team, all dressed in black and armed to the max, were hanging out, attempting to hide in a yard in a prestigious neighborhood. Our vehicles were parked a couple of streets over. And here we were, trying to figure out what message our chief was trying to convey, on a radio frequency monitored by everyone in the country who owned a police scanner. He hadn’t bothered to use the tactical channel.

Finally, the colonel says, in a loud bass voice, “Capt. Ding Dong and I are parked across the street from Carey D. Weight’s house, watching it for you until you finish serving the search warrant at Betty Bigbutt’s place. Somebody just showed up with a package. We think it’s drugs. The. Groceries. Have. Landed!”

So much for the element of surprise. He couldn’t have done more harm by using a megaphone to announce the operation and, as a result, it would be only a few minutes before every media truck in town would be parked in front of Weight’s house, hoping for an action-packed breaking story.

Well, since the entire city, county, and state had just learned of our location and plans, I told the team to back off and keep the house under surveillance until I got back. Then I made a beeline for the chief. My hands had already formed a tight circle, one I’m sure would have fit nicely around my bosses neck.

When I turned onto the street where Weight lived, the first thing I saw was the chief’s sparkling white car backed into a large group of head-high hedges, directly across the street from our target’s home, standing out like a sore thumb. The nose of the unmarked car was a mere six or seven feet from the sidewalk, almost close enough that passersby could slap its hood with the palm of a hand. Blue lights in the grill and in the front of the rear-view mirror glowed hotly, reflecting the light from the streetlamp they’d parked under. Yep, Barney and Gomer were incognito, big time.

Needless to say, the bust didn’t take place that night. And I learned to never, ever, tell the chief of my plans. He could learn about them like everyone else … film at 11:00.

 

 

All cops work cases that stand out above the others. The ones that seem a bit more senseless than others. The crimes that make no sense whatsoever. And these cases, well, they’re typically committed by criminals whose wiring is sometimes wildly cross-connected, or the ends of those wires are attached to wrong terminals inside a damaged mind—positives to negative posts or something of that nature.

Personally, I’ve investigated numerous murders where the killers lived in worlds all their own, including man who believed martians told him to kill. And there was another man who thought he was Jesus, the Son of God, a divine position that gave him license to kill at will.  These folks resided entirely within the confines of their unbalanced imaginations and the illnesses that fueled them.

The Briley brothers of Richmond, Va. were a pair of siblings who  assassinated  people for fun. The two, Linwood and James Briley, were responsible for nearly a dozen homicides during a seven month period.

Linwood, whom I had the “honor” of guarding once he was captured after an escape from death row, was the first of the brothers to kill. In 1971, while still a juvenile, he sat at his bedroom window with a rifle and took aim at his elderly neighbor through her kitchen window as she went about her daily routine. He shot and killed her. Just for fun.

The Brileys were nothing short of walking, talking, and breathing, evil, in every sense of the word.

But one of the most senseless and mind boggling of all murders I’d investigated over the years was perhaps a killing that occurred on a lazy, summertime Saturday morning, near the noon hour. The neighborhood kids were out in force, with a group of boys playing a game of baseball in a street marred by dozens of potholes. The asphalt road was lined with four-room houses of clapboard siding and rusty tin roofs. Front yards were mostly dirt of the southern red-clay variety. One or two gangly weeds clung to life here and there, but that was about it for vegetation.

Old people sat on front porch rockers or battered, old cloth couches, drinking iced tea from Mason jars. They were enjoying watching the children play, perhaps thinking back to the day when they played similar games in the era when the streets were nothing more than dirt paths that connected their area to downtown.

But this Saturday morning was a day I’ll always remember. It was a case that involved two brothers. Twins, they were, and the very much true story goes something like this ….

 

Dog Number Twelve: The Brothers Most Grim

 

Smoke,

Charcoal fire.

Sun,

Blue sky.

 

Balls,

Bats, gloves.

Swing,

A hit.

 

First,

Manhole cover.

Second,

Fire Hydrant.

 

Third,

Wood plank.

Home,

Old tire.

 

Kids,

Laughing, squealing.

Out!

No, safe!

 

Pop,

Apron on.

Cooking,

Hot dogs.

 

Sons,

Both alike.

Twins,

Teen boys.

 

Ah,

Delicious odors.

Wafting,

Mouths watering.

 

Lunch,

It’s ready.

Platter,

Piled high.

 

Seated,

At table.

Blessing,

Give thanks.

 

Amen,

Dig in.

Eating,

Chewing, swallowing.

 

Forks,

Clanging, clicking.

Then,

Eleven gone.

 

Only,

One dog.

Single,

On platter.

 

Mine!

No, mine!

I,

Said mine!

 

You’ll,

Be sorry.

I’ll,

Kill you!

 

Dog,

Number twelve.

Speared,

With fork.

 

Twin,

Number one.

Shot,

By Two.

 

Dead,

Eyes open.

One,

Grabbed dog.

 

From,

Lifeless Fingers.

Chewed,

And Swallowed.

 

Twin,

No more.

Alone,

In solitary.

 

Prison,

For Life.

All,

For dog number twelve.

 

 

The Exclusionary Rule keeps police officers in check while conducting searches. It prevents prosecutors from presenting illegally obtained evidence.

The rule states that any evidence siezed during an improper search cannot be used, no matter how incriminating it may be (see Fruit of the Poisonous Tree below).

And, if this improper evidence the key piece to the entire case—the smoking gun—the prosecution may be forced to drop the case, sending a very guilty crook back on the street. The defendant may also have grounds for a civil suit against the officers involved, as well as the police department and the city.

The Exclusionary Rule is basically the Supreme Court keeping watch over search-warrant-serving cops.

There are exceptions to the exclusionary rule, such as:

When officers rely on a warrant that later turns out to be invalid. For example, officers search a house and find a large cache of illegal weapons along with a guy who’s in the process of grinding off serial numbers from an AK-47. Later, the court learns that the address on the warrant was incorrect because the detective accidentally typed River Avenue instead of River Road. Or, the landmarks used to identify the property to be searched were improperly recorded.

“I meant the blue house on River Road, the first one on the right past the old oak tree, not the first one on the left. It was an honest mistake. Oops!”

The warrant may still be ruled valid and the seizure of the guns may still be legal. Or, the warrant may be ruled invalid but the seizure of the weapons could possibly stand. This is so because the officers were acting in good faith, believing they were on the property based on a constitutionally sound warrant (This is a weak example, but you get the idea).

However, if a police officer lies to the judge or magistrate, or if the judge or magistrate showed bias toward the officers when issuing the search warrant, the warrant is invalid and the exclusionary rule is in effect. The evidence recovered by the police may not be used. In fact, it will be tossed out of court, and possibly the officer too …


Did you know??

Fruit of the Poisonous Tree – Illegally obtained evidence cannot be used against a defendant. Evidence illegally obtained is “Fruit of the Poisonous Tree.”

Suicide by Cop was a theory that developed after the young man whose life ended shortly after he sent several bullets flying in my direction. He’d left his hometown possibly to avoid a sexual assault trial centered around a serious crime he’d been accused of committing. The trial was on the horizon, therefore, some believed he’d decided to skip town. So he packed clothing into a military duffel bag and loaded it and a small amount of fishing gear into a station wagon he’d borrowed from his father. Then he headed southeast from the upper mid-West state where he and his family lived.

If his wish had been to die at the hand of police officer, well, that wish came true a few weeks later when he and I met alongside I95 in Virginia. He’d just robbed a bank and during a police pursuit, crashed his car into a culvert at the end of an entrance ramp leading onto the busy highway. The pursuing officer was a rookie I’d trained in defensive tactics and officer survival during his time at the police academy.

Long story short, since many of you know the details, he came out of his car with gun in hand and after a few moments, came up shooting. After I’d returned fire, hitting him with all five of the rounds I fired, he leapt to his feet and charged with gun in hand, pointed at other officers who’d arrived after the initial shooting began.

I and a sheriff’s captain tackled him and handcuffed him. He died a few minutes later. I was the only officer whose rounds struck the robber and four of the five rounds I fired caused fatal wounds. The fifth, a shot to the side of the head, caused extensive damage but most likely, according to the medical examiner, would not have ended his basic life functions.

Whether or not he’d planned to kill himself by using my, or another officer’s bullets, will forever remain a mystery. He took those thoughts to his grave.

I’ve told this story again to bring to light an aspect of suicide by cop that’s often buried with the victim of police gunfire—the psychological trauma experienced by the officer who was forced to fire the fatal rounds that brought about the conclusion to someone’s quest to die.

It’s within our nature to feel guilty about our actions. After all, most of us are taught at very early stages of our lives to know right from wrong, and killing another human is certainly one of things that is so, so very wrong.

Along with the guilt comes a sense of anger at being used as a source of suicide. Killing people is not part of the reasons men and women sign up to become police officers. Most want to help their fellow citizen, not harm them. I used the word “most” in the previous sentence because as we all know, there are certain individuals in this world who are broken somewhere in their internal wiring and will kill for the sake of killing. Those people, unfortunately, come to us from all walks of life. But I think it’s safe to say that 99.99999% of all police officers would prefer to not kill, for any reason.

So to place an officer in a position where it’s either kill or be killed, or to prevent another innocent person from being seriously harmed or killed, well, the act forces them to totally goes against the grain of why police officers do what they day. Those officers often feel an overwhelming sense of guilt.

In the minutes, hours, days, months, and years, and decades after these shootings, it’s not at all uncommon that officers second-guess their actions. “What if I had” begins to play on a never-ending loop through their minds.

In my own situation I often think that perhaps I could’ve/should’ve somehow, during intense gunfire, attempted to circle around the man’s car and then try to capture him alive. This scenario was not an option nor was is feasible, but I still wonder. After all, I’d disarmed several people during my career and I’d done so without having to fire a single shot.

It’s a ridiculous notion that I could’ve left my position to try and take the man down. If I had there’s no doubt I’d have been killed in a matter of seconds after I took the first steps toward his car. But those “what-ifs” still bounce around inside my skull. I’m sure the same is true for the many, many officers out there who’ve been in similar situations.

Once these emotions and feelings set in, and they do, they firmly take root. The officer often starts reliving the incident, replaying it over and over and over again in their thoughts. They become overly irritable, anxious, they can’t sleep and when they do nightmares take over, and then come the flashbacks, in living, bleeding color.

Of course, in the meantime, the officer must deal with internal investigations by outside agencies and investigators who quite often drill them with questions that insinuate the officer meant to kill the suspect out of some sort of vendetta. They make the officer feel dirty and less than human.

Let’s not forget the administration who’s already hard at work seeking ways to prevent lawsuits against the agency and the county, city, state, etc. So the officers review the use of force policies over and over again, hoping to find that they’d done everything by the book, and even though they know their actions were wholly proper, they still worry. But the city/county/state/department lawyers are only after one thing, to protect their client whether that means helping the officer, or not.

Then comes the media with their agendas and clickbait headlines. The TV news media plastering their images and the images of their homes and families across every TV screen this side of Jupiter. The stories they offer add even more salt into open wounds …

“The victim was  only 22, in the prime of his life, when he was brutally gunned down in the street by Officer So-and-So.”

“With only 6-months to go before earning his degree from ABC Community College, Officer So-and-So, ended what could have been.”

“Teenager’s Life Taken By Veteran Cop”

“He Only Had a Knife!”

Those reporters don’t bother to mention the 63 rounds the 22-year-old fired first, all while the officer was begging him to stop shooting and to put down the gun. Nor do they mention the teenager was shooting at cops after they’d caught him robbing a convenience store.

Suspension from duty after an officer-involved shooting is inevitable, and it’s demeaning, to say the least. No matter the reason, it seems to the officer that they’d done something wrong, maybe even criminal. To add insult to injury, their weapon is taken away. Even though it’s for forensic testing, this is a huge deal to the officer. A weapon is a police officer’s safety line. It’s there for them each and every day. It provides comfort for them during extremely dangerous situations. It’s a part of them. And to have that taken away, especially during a situation that’s already an 11 on a scale of 1- 5, is traumatic within itself. It makes them feel even more vulnerable. It seems like a punishment.

So yes, having to hear and experience those things while undergoing a investigation into every single move the officer has made since the day they first set foot onto the floor of the basic academy, and while dealing with all the zigging and zagging of emotions, takes a huge toll on the officers.

Suicide by cop brings to mind the title of a blog article I once wrote—I Only Killed Him Once, But I’ve Died Many Times Since That Day. I wrote the piece in my typical staccato form of poetry and I did so because this is sometimes how the experience feels to me … like individual daggers striking my nerves, one at a time, day after day after day after night after night.

It’s true, suicide by cop shatters the lives of the officers involved. Not to mention the lives of the officer’s family, and the family of the person killed by the unfortunate cop who was forced to pull the trigger.

 

Arrest and Patrol Car

All officers hear it, and it’s most likely said many, many times each and every day all across this great land of ours.

It’s a phrase that’s spoken by the wisest of the wise—the soothsayers of the legal world. The top legal minds of the entire universe..

That famous line is typically delivered in a sing-songish manner. Gently and soothingly. Almost like a lullaby.

I’ve heard it more times than I could possibly begin to count. And, I can still hear those kind, soothing words today, and they are …

“I. Know. My. Rights, you fat pig! You gotta let me go ’cause you didn’t read me my rights! Now take off these cuffs … NOW!!!!”

Miranda

When is a police officer required to advise a suspect of the Miranda warnings?

I’ll give you a hint, it’s not like we see on television. Surprised?

Television shows often have officers spouting off Miranda warnings the second they have someone in cuffs. Not so. I’ve been in plenty of situations where I chased a suspect, caught him, he resisted, and then we wound up on the ground fighting like street thugs while I struggled to apply handcuffs to his wrists. And yes, words were spoken once I managed to get to my feet, but Miranda wasn’t one of them. Too many letters, if you know what I mean. Words consisting of only four letters seemed to flow quite easily at that point.

When Is Miranda Required?

Two elements must be in place for the Miranda warning requirement to apply. The suspect must be in custody and he must be undergoing interrogation.

Writers, this is an important detail – A suspect is in police custody if he’s under formal arrest or if his freedom has been restrained or denied to the extent that he feels as if he’s no longer free to leave.

The fellow wearing the handcuffs in the photo below is not free to leave. Therefore, should the officer wish to question him he must advise him of his right to remain silent, etc. However, if the officer decides to not ask questions/interrogate, then Miranda is not required.

arrest-take-down.jpg

I’ve arrested criminals, many of them, in fact, and never advised them of their rights. Not ever. And that’s because I didn’t ask them any questions.

Sometimes officers receive a stack of outstanding arrest warrants for a variety of cases and it’s their job that day to go out and round up those folks. Those officers have no clue as to the circumstances of the crime or case details, therefore they’d not know the appropriate questions to ask. All they know is that the boss handed them a pile of warrants and told them to fetch. This, by the way, is often one of the mundane duties assigned to rookie officers, along with directing traffic and writing parking tickets.

So, the warrant-serving officers locate the person named on the warrant and haul them to jail for processing. The officer who had the warrant issued may or may not question the arrested person at a later time. But the arresting officer, the one who played hide and seek  with the crook for a few hours on a Monday morning is most likely out of the picture from that point onward. So no questioning = no Miranda.

Interrogation

Interrogation is not only asking questions, but any actions, words, or gestures used by an officer to elicit an incriminating response can be considered as an interrogation.

If these two elements are in place officers must advise a suspect of the Miranda warnings prior to questioning. If not, statements made by the suspect may not be used in court. Doesn’t mean the arrest isn’t good, just that his statements aren’t admissible.

Officers do not have to advise anyone of their rights if they’re not going to ask questions. Defendants are convicted all the time without ever hearing that sing-songy police officer’s poem,  You have the right to …

Miranda facts:

Officers should repeat the Miranda warnings during each period of questioning. For example, during questioning officers decide to take a break for the night. They come back the next day to try again. They must advise the suspect of his rights again before resuming the questioning.

If an officer takes over questioning for another officer, she should repeat the warnings before asking her questions.

If a suspect asks for an attorney, officers may not ask any questions.

If a suspect agrees to answer questions, but decides to stop during the session and asks for an attorney, officers must stop the questioning.

Suspects who are under the influence of alcohol or drugs should not be questioned. Also, anyone who exhibits signs of withdrawl symptoms should not be questioned.

Officers should not question people who are seriously injured or ill.

People who are extremely upset or hysterical should not be questioned.

Officers may not threaten or make promises to elicit a confession.

Many officers carry a pre-printed Miranda warning card in their wallets. A National Sheriff’s Association membership card (same design and feel of a credit card) has the warnings printed on the reverse side.

Fact: The Miranda warning requirement stemmed from a case involving a man named Ernesto Miranda.  Miranda killed a young woman in Arizona and was arrested for the crime. During questioning Miranda confessed to the slaying, but the police had failed to tell him he had the right to silence and that he could have an attorney present during the questioning. Miranda’s confession was ruled inadmissible; however, the court convicted him based on other evidence.

Miranda was released from prison after he served his sentence. Not long after his release he was killed during a bar fight.

His killer was advised of his rights according to the precedent setting case of Miranda v. Arizona. He chose to remain silent.

*Some individual department/location policies requires their officers to advise of Miranda at the point of arrest. However, the law does not require them to do so.


 

The Writers’ Police Academy is pleased to present MurderCon, one of the most exciting opportunities ever made available to writers. In fact, the event is a rare one-of-a-kind event that’s never been offered before and may never be offered again.

MurderCon, presented by the Writers’ Police Academy, is a special hands-on training event for writers of all genres, with a specific focus on solving the crime of murder. It’s a unique juncture of fiction and fact at a major source of modern crime-scene investigation technology, Sirchie.

Attendees receive the same instruction that’s offered to, and attended by, top homicide detectives and investigators from around the world. First-hand experience will provide writers with the tools needed to portray crime scene details realistically, and to share with their readers the experience of what it’s like to investigate a murder.

MurderCon’s incredibly detailed and cutting-edge workshops, taught by some of the world’s leading experts, has never been available to writers, anywhere.

Yes, MurderCon is a “Killer” event, and you’re invited to attend!

Sign up today! Not a single crime writer should miss this event. It is that important to your work!

Interrogation classes at MurderCon taught by renowned expert, Paul Bishop.

Novelist, screenwriter, and television personality, Paul Bishop is a nationally recognized behaviorist and expert in deception detection. He spent 35 years with the Los Angeles Police Department where his high profile Special Assault Units regularly produced the highest number of detective initiated arrests and highest crime clearance rates in the city. Twice selected as LAPD’s Detective of the Year, he currently conducts law enforcement related seminars for city, state, and private agencies. Paul has written numerous scripts for episodic television and is the author of fifteen novels, including the award winning Lie Catchers and five books in his LAPD Homicide Detective Fey Croaker series.

* Paul’s appearance at the 2019 MurderCon event is sponsored by bestselling author Kendra Elliot.