Kansas v. Hendricks: Institutionalizing Sexual Predators

     While no one knows exactly how many pedophiles roam our streets and inhabit our institutions, anyone who is paying attention knows there are too many of them. Not only that, each pedophile is a serial offender with dozens of victims. They are serial offenders because pedophiles cannot be rehabilitated. For them there is no cure, no treatment.

     So what can be done to protect potential victims against these sexual predators? Just catching them and sending them to prison isn't enough because they eventually get out and go right back to seducing and sexually violating children. Laws requiring convicted pedophiles to register as sex offenders and restricting where they can live doesn't deal with the problem either. These measures are legislative window dressing to make us think our political leaders are dealing with the problem.

     In 1994 lawmakers in Kansas concerned about children passed a controversial law called the Sexually Violent Predator Act that allowed the state, following a pedophile's release from prison, to involuntarily commit violent sex offenders to mental institutions through a process known as civil commitment.

     The procedure for committing pedophiles and other violent sex offenders under the Kansas law required notifying the local prosecutor handling the case 60 days before the prisoner's release. The prosecutor, upon such notice, had 45 days to file a petition with a state court requesting the involuntary commitment of the offender. Under this law the prosecutor had the burden of proving that the person in question suffered from a "mental abnormality" that made him or her a "sexually violent predator." If a psychological professional found sufficient evidence to support civil commitment on these grounds, a trial would follow.

     If the defendant was found, beyond a reasonable doubt, to be a sexually violent predator, the trial judge would order his or her commitment to a mental institution. Following the commitment the law required the court to conduct annual reviews to determine if the committed person should remain in custody for another year.

Kansas v. Hendricks, 521 U.S. 347, (1997)

     In 1995, convicted pedophiles Leroy Hendricks and Tim Quinn were scheduled for prison release. Both men had extensive histories of sexually molesting children. As a result a Kansas prosecutor filed a petition under the Sexually Violent Predator Act to involuntarily commit Hendricks and Quinn to a state mental institution.

     At the Hendricks/Quinn commitment trial the defendants took the stand and agreed with the state psychiatrist's diagnosis that they were pedophiles who continued to experience uncontrollable sexual desires for children. Based on this testimony the jury found that Hendricks and Quinn qualified as sexually violent predators. The civil trial judge ordered both men committed to the state mental facility.

     Leroy Hendrick's attorneys asserted that the involuntary commitment of a man who had served his time in prison violated the ex post facto and double jeopardy clauses of the United States constitution. The circuit court judges ruling on the appeal did not address those specific issues but found the Kansas law unconstitutional on grounds the "mental abnormality" requirement was too vague to satisfy the constitution's due process clause.

     Attorneys representing the state of Kansas appealed the circuit court's ruling to the United States Supreme Court. In a 5-4 decision, the high court justices reversed the appellate court ruling, finding that the Kansas Violent Sexual Predator Act did not violate the U.S. constitution's ex post facto, double jeopardy or due process clauses.

     Because only a few states have violent sexual predator laws, and prosecutors in states that do don't have the time or will to go through the civil commitment process, only a few prison released pedophiles remain isolated from society. Moreover, even if there were more laws like this and prosecutors who cared enough to go through the process, there are fewer and fewer institutions where these predators can be confined. As a result, Kansas v. Hendricks was a hollow victory that has not solved the problem of what to do about our pedophiles. Children are still at risk.

     If our political leaders where serious about protecting children, convicted pedophiles would be subjected to mandatory life sentences.

Gary Irving: The Bail Jumping Rapist

     In 1978 a jury in Norfolk County, Massachusetts found 18-year-old Gary Irving guilty of three counts of rape with force, unnatural acts and kidnapping. Irving had knocked one of his victims off her bike, dragged her to a secluded area and viciously raped her. He had threatened a second rape victim with a knife. The convicted rapist faced up to life in prison.

     Immediately following Irving's guilty verdict and prior to his sentencing, the rapist's attorney asked Judge Robert Prince to extend his client's bail a couple of days so Irving could make final arrangements before being packed off to prison.

     The prosecutor in the case, Louis Sabadini, pointed out that if Gary Irving was not sent straight to prison he would flee. Extending bail to a convicted rapist who was facing at least 35 years in prison was simply out of the question. This young man was a violent sexual predator.

     Judge Prince shocked the prosecutor and the rape victims' families by granting Irving the weekend to settle his affairs before his incarceration. Irving took this opportunity to flee the state. Except perhaps for Judge Prince, Gary Irving's bail jump surprised no one.

     The convicted rapist would remain at large for 35 years.

     In trying to find this fugitive the police received plenty of help from reality television. The Irving bail jumping case was featured on "America's Most Wanted," "Unsolved Mysteries" and "Real Stories of the Highway Patrol." It seemed that Gary Irving had somehow left the planet.

     On Wednesday, March 27, 2013, local police and FBI agents arrested Irving at his home in Gorham, Maine where the 52-year-old had been living under the name Gregg Irving. He hadn't even bothered to change his last name.

     On July 14, 2014, Judge George Singal sentenced Gary Irving to 47 years in prison. The 57-year-old wouldn't be eligible for parole until he was 84.

     What can you say about a judge who made such a reckless decision? What was he thinking? Could he have been that stupid or were his motives more complicated and perhaps pathological? One can only hope that Mr. Irving, during his 35 years of freedom, didn't rape more victims. If he did, Judge Prince was his accomplice. (The judge has since died.)

Dr. Louise Robbins: The Shoe Print Expert From Hell

     Comparing a crime scene shoe print on a hard surface or an impression in dirt, mud or snow to the bottom of a specific shoe is not unlike the process of latent fingerprint identification. In many crime laboratories latent fingerprint examiners also handle footwear and tire-track evidence and occasionally deal with the identification of tool marks. Compared to DNA analysis, toxicology and various aspects of forensic pathology, the identification of shoe marks, latent fingerprints, crime scene bullets, tool marks and handwriting involves less science than it does informed observation.

     A crime scene shoe print or impression can be identified as part of a footwear group according to size, brand and model. In some cases an impression can be identified as coming from one shoe to the exclusion of all other footwear. Every year 1.5 billion pairs of shoes are sold in the United States. At any given time there could be as many as 100,000 pairs of size 10 Nike sneakers of a certain model and tread design. There could be, say, 5,000 pairs of these shoes in circulation in the Chicago area alone. The criminalistic or incriminating value of a group identification depends upon the size of the group. These group, or class identifications occur when the crime scene print or impression is not detailed enough for a match to a specific shoe or when the shoe that made the mark is not available for comparison.

     The most famous group identification of shoe prints came at O. J. Simpson's double murder trial in 1995 when FBI expert William Bodziak identified several crime scene prints in blood as having been made by a pair of size 12 Bruno Magli Lorenzo shoes, luxury footwear made in Italy. Bodziak's testimony tended to incriminate Simpson in two ways: the identification involved a relatively small footwear group, and Simpson, after denying that he owned Bruno Magli shoes was seen on television wearing a pair. The actual shoes that made the bloody murder scene prints were never located.

     An individual shoe, boot or sandal can be linked to a crime scene print or impression the way a latent fingerprint can be matched to its known counterpart. Instead of comparing ridge configurations the footwear examiner looks at a shoe's sole and heel for unique signs of wear that show up in the print or impression. Every shoe that has been worn for awhile is as unique as a fingerprint. The more wear the more potential for identification.

     Footwear identification, unlike fingerprint matching, does not require a minimum number of similarity points to be admissible in court. The credibility of a shoe identification depends upon the training, experience and objectivity of the examiner as well as the quality, clarity and uniqueness of the characteristics being compared. New methods and techniques are constantly being developed, for example, to lift footwear impressions from dust and even preserve shoe prints made in snow.

     Shoe prints left in dust, blood or soot are photographed (next to a reference ruler) then peeled off the surface the way a latent fingerprint is lifted. Footwear impressions are often preserved with plaster-of-paris casts of the depressions. Shoes and their crime scene prints and impressions can be compared side-by-side or through the use of transparent overlays. To connect a suspect to a crime scene through footwear evidence detectives need three things: a good print or impression; the shoe that made it; and a way to link the suspect to the footwear. In the O. J. Simpson case the detectives had shoe prints in blood but none of the footwear in Simpson's possession matched the murder scene evidence. The prosecution had to settle for a group identification.

Dr. Louise Robbins and her "Cinderella Analysis"

     Fortunately for O. J. Simpson the world's only footwear identification expert who might have identified the crime scene impressions as having been made by shoes worn by him without having access to the actual footwear had died eight years before his trial. Dr. Louise Robbins, an anthropology professor at the University of North Carolina at Greensboro wasn't interested in matching the bottoms of shoes to corresponding crime scene impressions. She would have claimed she could identify the crime scene prints in the Simpson case by examining other shoes in Simpson's possession. Robbin's method of identification, a process she called "wear pattern analysis," was based on her theory that no two people have the same shaped feet or walk in exactly the same way. According to her this unique feature revealed itself inside the shoes people wear and in the prints or impressions they leave behind.

     Dr. Robbins claimed she could look at a crime scene shoe print and determine it had been made by the wearer of shoes other than the shoe that left the crime scene mark. Her critics, and there were many, called this her "Cinderella Analysis." If a defense attorney had a client in a case in which Dr. Robbins was testifying for the prosecution, that defendant's foot always seemed to end up fitting the shoe that had made the crime scene print or impression. The jury, without access to the actual shoe that had made the crime scene mark simply had to take her word for it. It's not surprising that prosecutors with insufficient footwear evidence and weak cases loved this witness. Defense attorneys, on the other hand, called her the prosecution expert from hell.

     In her work as an anthropologist Dr. Robbins had frequently exhibited the ability to see things that her colleagues could not. When working in Africa she garnered worldwide publicity after identifying a 3.5 million-year-old fossilized footprint as made by a woman who was five and a half months pregnant. Dr. Timothy White, a professor of anthropology at the University of California at Berkeley, who had worked with Dr. Robbins in Africa characterized her conclusions as pure nonsense.

     If Dr. Robbins had confined her ideas to the classroom she would have been harmless and no one would have been greatly bothered by her patently ridiculous theories. But in 1976 when she took her nonsense into the courtroom as a forensic footwear identification expert people not only started to worry, defendants started going to prison. Between 1976 and 1986 Dr. Robbins testified, for fees up to $9,000 a case, in ten states and Canada. During this period at least 12 defendants were sent to prison on the strength of her expert testimony. Her career as an expert witness came to an end in 1987 when she died of brain cancer at the age of 58.

     In the year of Dr. Robbin's death the American Academy of Forensic Sciences sponsored a panel of 135 anthropologists, forensic scientists, lawyers and legal scholars to review her cases and work. The panel concluded that her identification methodology had no basis in science. Marvin Lewis, a law professor at John Marshall University called her work "complete hogwash." Lewis, who operated an expert witness referral service was dismayed that so many judges had qualified Robbins as an expert witness. Russell Tuttle, a professor of physical anthropology at the University of Chicago, in referring to Dr. Robbins, said, "Why do we allow this kind of rot, this pseudoscience, into our courts?" FBI expert William Bodziak, who had testified against Dr. Robbins in several murder trials, agreed: "Nobody else has ever dreamed of saying the kinds of things she said."

     Dr. Robbins not only wormed her way into courtrooms and the hearts of desperate prosecutors, she had impressed juries. She had a Ph.D, taught at a major university and had been written up in Time Magazine. In 1985 she published a book, Footprints: Collection, Analysis, and Interpretation. As a self-validating expert who used scientific terminology to advance an absurd theory, she came off as extremely confident and sure of her conclusions. Moreover, some prosecutors portrayed her as a pioneer in a new field of scientific identification. One prosecutor in defending Dr. Robbins against her critics reminded the jury that it had taken 400 years for Galileo's theories to gain acceptance in the scientific community. 

Pedophile Martin A. Petersime

     In 1992, 39-year-old Martin Alan Petersime, the owner of a successful music store in the northeastern Ohio town of Warren, was a prominent member of the local arts and music community. He had been president of the Warren Symphony Society and a member in good standing of the Fine Arts Council of Trumbull County. Over the years he had given lessons to hundreds of children at his store, Warren Music Center. Many of his students were pre-teen boys.

     Martin Alan Petersime, a married man, prominent citizen and pillar of the community was a serial sexual predator who had been victimizing boys who came unsuspecting to his place of business for music lessons. He committed most of his assaults in the basement of the Warren Music Center and had gotten away with it for years. Then, in April 1992 he was exposed and his life as a serial sex offender came to an end.

     On April 28, 1992, a partially clad 15-year-old boy ran from the basement of the Warren Music Center directly to the Warren Police Department. The distraught kid brought with him a videotape that showed him dancing nude to Van Halen's "Running With The Devil." Martin Petersime was also in the video stripping off his clothes to the music.

     Warren police officers used the videotape to acquire a search warrant for Petersime's music store which led to enough evidence to support a 20-count indictment charging the music teacher with the sexual abuse of seven boys. According to the indictment two of the victims,  an 11 and 12-year-old, had been raped.

     In December 1992, following Martin Petersime's guilty plea to the above charges, the Trumbull County judge sentenced him to ten to 25 years for the two rapes, and two to 15 years for the sexual crimes against the other boys. The sentences were to run one after the other. That meant if Petersime served out his full term he would not get out of prison until 2032 when he was 78.

     In 2009, while serving his time at the Ohio North Central Correctional Institute, Petersime filed his first motion for early release. The parole board denied his request.

     Two years later, while taking advantage of a prison outreach program that involved taking an online college course at Ashland University, prison authorities discovered child pornography on Petersime's computer.

     The incarcerated pedophile, in 2014, tried again for parole and was again denied being released before serving his full term.

     In August 2019, Martin Petersime, for the third time, filed a motion for parole in anticipation of the board's meeting the following month. The district attorney of Trumbull County who had handled Petersime's case wrote a letter to the Ohio Parole Board recommending that the convicted pedophile remain behind bars.

     In the letter to the parole board prosecutor Dennis Watkins wrote that Petersime "is wired differently and does not learn from his past mistakes." (Mistakes?) Watkins added that Petersime "has no shame." Watkins also pointed out that prison records revealed that Petersime had yet to complete the prison's comprehensive sex program.

     On a Youngstown television program, Prosecutor Watkins called Martin Petersime "a pervert's pervert."

     The parole board, in September 2019, denied Petersime's quest for early release. As of this writing he remains behind bars.

The Anthony Todt Family Murder Case

     In 2018 Anthony Todt, a physical therapist and owner of the Family Physical Therapy Clinic in Colchester, Connecticut was in deep financial trouble. He was also being investigated by the FBI for violating the federal False Claims Act. Todt was suspected of submitting fraudulent claims for physical therapy to Medicaid and private insurers for services not given to patients.

     Anthony Todt was behind in his rental payments to the owner of the building that housed his clinic and had outstanding civil court judgements against him in the amount of $63,000 in one case and $36,000 in another. He was also struggling to keep up his mortgage payments on a Condo he owned in Celebration, Florida, an upscale community four miles west of Disney World.

     In May 2019 Anthony Todt, his wife Megan and their three children, Alex, 13, Tyler, 11 and Zoe, 4, moved to Celebration, Florida where they took up residence in an expensive house he had rented for $5,000 a month. From Florida he commuted to Connecticut to operate his physical therapy clinic.

     By November 2019 Anthony Todt owed his Celebration, Florida landlord several months rent and had closed his clinic in Connecticut.

     On December 29, 2019 one of the Todt family neighbors called the Osceola County Sheriff's Office for a welfare check of the Todt residence. None of the neighbors had seen the Todt children since Thanksgiving. Sheriff's deputies went to the house and when no one answered the door the officers left.

     On January 13, 2020, FBI agents armed with a federal warrant for Anthony Todt's arrest for violating the False Claims Act entered the dwelling and made a gruesome discovery. Mr. Todt was living in the house with the decomposing bodies of his wife and three children. FBI agents took him into custody and notified the local authorities about the scene they had discovered.

     While being detained on the federal false claims charges Mr. Todt ingested a handful of pills and was rushed to a nearby hospital. Upon his discharge from the medical facility on January 15, 2020 deputies with the Osceola Sheriff's Office arrested him for killing his wife and three children. While in local custody Anthony Todt told detectives that he and has wife had decided to kill themselves and their children to avoid an upcoming apocalypse. He suffocated is 4-year-old daughter with a pillow and stabbed his sons to death. His wife stabbed herself in the stomach but when she didn't die he suffocated her with a pillow. Todt didn't explain why he hadn't killed himself. 

     Not long after his arrest Mr. Todt recanted his confession, claiming that he was not home when his family was murdered. 

     On January 16, 2020 an Osceola County prosecutor charged Anthony Todt with four counts of first-degree murder. The local magistrate denied him bail.

     Anthony Todt had a family history of violence and murder. In 1981, when he was a child, Anthony Todt's father Robert Todt, a special education teacher and wrestling coach at a Bensalem, Pennsylvania high school outside of Philadelphia, was convicted of hiring one of his students, a burglar and drug addict named John Charmonte, to murder his wife, Loretta Todt. In 1980 Charmonte broke into the Todt house and shot Loretta Todt in the face while she slept. Although blinded by the wound Mrs. Todt survived the shooting. John Charmonte pleaded guilty to burglary and attempted murder and in return for his plea received a ten-year sentence. Robert Todt, the murder-for-hire mastermind, only served ten years in prison. When he hired the student to murder his wife Robert Todt was having an affair with a 17-year-old girl.

     In April 2022, an Osceola County jury found Anthony Todt guilty of four counts of first-degree murder. The judge sentenced him to life without parole.

The William Simmons Murder Case: An Unlikely Conviction

     Kaelin Rose Glazier, a 15-year-old sophomore at South Medford High School in Rush, Oregon, disappeared on November 6, 1996 after watching a video in a house trailer with 16-year-old William Frank Simmons. The missing girl had skipped church that evening to meet her boyfriend, Clifford Ruhland, at Simmons' trailer. According to Simmons the boyfriend didn't show up, and after he and Glazier watched the video she departed.

     The local police, believing that the missing girl had run away from home, waited 21 days before investigating the case as an abduction and possible murder. Simmons, a big kid who had been in trouble with the law and was the last known person to have seen the girl alive became the first and only suspect in the investigation. Years passed, and without the girl's body, the case ground to a halt. Every once in awhile detectives would question William Simmons at the police station, and every time he would deny having anything to do with the girl's disappearance.

     People don't vanish into thin air. In 2008, 12 years after Glazier went to Simmons' trailer, a man mowing a field 80 feet from the place she was last seen uncovered skeletal remains. According to a forensic anthropologist the bones were consistent with the remains of a 15-year-old girl.

     At the recovery site investigators discovered a skull wrapped in duct tape, a tennis shoe, part of a bra, and some jewelry that had belonged to the missing girl. While the medical examiner officially identified the remains as Glazier's and ruled her death a homicide, the forensic pathologist could not determine the precise cause of death. The police theorized she had been suffocated or strangled. DNA evidence from the duct tape did not match the victim's boyfriend or William Simmons.

     On April 10, 2010 the local prosecutor charged William Simmons with murder, and as a backup charge, first-degree manslaughter. The motive: he had killed the girl after she had rebuffed his sexual advances. After killing the girl the suspect had supposedly dragged her body to the nearby field. 

     The Simmons murder trial got underway on February 14, 2012 in the Jackson County Circuit Court. The prosecutor, without an eyewitness, confession or physical evidence linking the 31-year-old defendant to the murder, had an extremely weak case. The state didn't even have a jailhouse informant or a murder weapon. All the prosecutor had was the defendant's so-called "motive, means, and opportunity," to commit the crime.

     William Simmons' attorney pointed out that motive, means, and opportunity did not comprise evidence. The defense lawyer reminded jurors that the murdered girl's boyfriend may also have had motive, means, and opportunity in the 16 year old case.

     The jury, after deliberating ten hours, voted 10 to 2 to find the defendant guilty of first-degree manslaughter. (The reckless killing of a person as opposed to an intentional murder.) In Oregon a defendant could be convicted of manslaughter on just 10 guilty votes. To find a person guilty of murder 12 votes are needed. The judge sentenced William Simmons to the mandatory 10 years in prison.

     At a hearing in May 2012 the convicted man's attorneys, Andrew Vandergaw and Michael Bertoff, in an effort to secure a new trial for their client, put a witness on the stand named Serena Beach. During the Simmons trial Beach had contacted the defense attorneys and said she had "vital information about the case." The lawyers, busy defending the accused man, didn't have time to investigate her allegations.

     According to Serena Beach, in 2003 or 2004, the murder victim's stepfather, Robert Glazier, told her that he "was there when Kaelin Glazier came into the world and was there when she went out." He allegedly said that he knew she was dead and that her body was "down the road."

     The 65-year-old stepfather, who had been questioned three times by detectives during the early stages of the missing persons investigation, took the stand at the hearing to determine if there was sufficient cause to convene a new trial. Mr. Glazier said he knew that some people considered him a suspect in the murder. 

     Judge Benjamin Bloom denied the defense motion for a new trial. The attorneys for William Simmons appealed the judge's ruling.

     It's surprising that Judge Benjamin Bloom even allowed this case to go to a jury in the first place. Motive, means, and opportunity, while a guideline for identifying criminal suspects does not rise to proof beyond a reasonable doubt. (As evidenced in this case by the two not guilty votes.) The evidence in this case was not even enough to sustain liability in a civil wrongful death suit where the standard of proof is merely a preponderance of the evidence. In any other state the Simmons trial would have resulted in a hung jury.

     By any legal standard the William Simmons case represented an odd and unlikely homicide conviction. While Simmons may have been a good suspect and may have committed the crime, that was not enough evidence to put him behind bars for 10 years. If this were the standard of proof in all murder trials a lot of innocent people would end up in prison.

     In April 2020 the United States Supreme Court, in Ramos v. United States, set aside the un-unanimous jury verdict rules in Oregon and Louisiana on grounds such verdicts violated the Sixth Amendment right to a jury. As a result the William Simmons homicide conviction was vacated. 

     William Simmons was not retried for the murder of Rose Glazier. No further arrests were made in this case.

Susan Cole: Prospective Juror to Perjury Defendant

     More than 90 percent of the criminal cases in American are not tried before a jury. Bargained guilty pleas have essentially replaced the cumbersome and costly trial process. Still, tens of millions of Americans receive jury duty summonses every year. (Our criminal justice system would collapse if just 20 percent of defendants demanded a jury trial. The entire system is set up for guilty pleas based on negotiated sentencing deals. Legislators often make maximum sentences for minor crimes high to give prosecutors more bargaining power.)

     In high-profile criminal trials the outcome of the case is pretty much determined by which side does the best job of jury selection. O. J. Simpson got off because his attorneys won the jury selection battle. To a certain degree trials are over before the first witness takes the stand. Wealthy defendants often hire juror picking consultants who help design a defense-friendly jury. These psychological profilers match jurors to defendants by analyzing such factors as body language, hair styles, clothing, gender, marital status, age, race, education and occupation. In high-profile cases the jury selection process, called voir dire, can go on for months.

     Juries, in general, do not represent a cross-section of American society. Entire categories of people never see the jury box. For various reasons, juries rarely include professors, police officers, physicians, nurses, small business owners, employees of small companies, college students, young mothers and lawyers. Most juries are made up of retirees, government workers, employees of large corporations and people who are unemployed.

     There are many ways for a prospective juror to get out of jury duty. People can be excused for poor health, a criminal record, an upcoming wedding, family demands, mental illness, various economic hardships and the stated inability to render an unbiased decision. In Michigan, lawmakers recently approved a bill that exempted breast-feeding mothers from jury duty. While prospective jurors are not above telling lies to get out of sitting on a jury, prosecutions for this form of lying under oath are extremely rare. That makes the following case so unusual.

Susan Cole

     In June 2011, Susan Cole, a 57-year-old beautician and Mary Kay Cosmetics saleswoman, received a summons for jury duty. She arrived at the court house in Denver with her hair in curlers and dressed according to her idea of how mentally ill people present themselves. She wore too much lipstick, reindeer socks and mismatched sneakers. She had put on a tee-shirt that read: "Ask Me About My Bestseller." (In 2007 under the pen name Char Cole, Susan Cole had self-published a relationship, self-help book/memoir called "Seven Institutions With El-Way Secrets.")

     When Judge Anne Mansfield asked Cole if she had a history of mental illness the prospective juror said, "Yeah, I have some mental issues. I broke out of domestic violence in the military [after her divorce she joined the Army] and have a lot of repercussions. I get very confused in the morning when I try to get ready." (Like forgetting to take out her curlers.) The prospective juror said that as a result of the domestic violence she suffered from Post Traumatic Stress Disorder (PTSD). Cole also told the judge she was homeless and living on the street. Judge Mansfield asked if anyone objected to the dismissal of this woman. No one did and Susan Cole went home.

     On October 17, 2011, on Denver's "Dave Logan Show," a radio call-in program, callers were telling stories about how they had avoided jury duty. Susan Cole joined in the fun by calling the show and telling how she had recently gotten out of jury duty by impersonating a mentally ill person. Obviously aware that she was admitting to a crime, Cole called in under her pen name, Char.

     In justifying her jury avoiding ploy, Cole told the radio audience that she was simply too busy for jury duty. Rather than being ashamed of having lied under oath to avoid a basic civic responsibility, Cole seemed quite proud of herself: "I put black eyebrows on. I put red lipstick on. I left my hair in my curlers, and I put on a tee-shirt that said, 'Ask Me About My Bestseller.' For about two weeks after, when my roommate and I would think about it, or I would tell my clients about it, we would cry we would laugh so hard."

     One of the "Dave Logan Show" listeners was Anne Mansfield, the judge Susan Cole had lied to. She didn't find Cole's story so funny. The judge knew exactly who this caller was and notified the prosecutor's office. The prosecutor initiated a criminal investigation.

     Detectives looking into the case found no mention of spousal abuse or PTSD in Cole's divorce records. Moreover, her military file contained no documentation supporting such a diagnosis. On March 22, 2012, police arrested Cole on charges of first-degree perjury and attempt to influence a public servant (the judge). If convicted she faced a maximum sentence of 6 years in prison, on each count.

     Before being hauled off to jail, Susan Cole told detectives that the military had lost her medical records. And the only person who had diagnosed her with PTSD, a Jefferson County court counselor, had since died. Cole said that in her book she writes of being imprisoned five days in a military mental institution. She also claimed that on the night before her jury duty appearance she had been traumatized by news that her cousin had been killed in a motorcycle accident. As it turned out her cousin hadn't been involved in a crash.

     In November 2012 Susan Cole pleaded guilty to the felony charge of attempting to influence a public servant. According to the plea deal the judge deferred her punishment. (A deferred judgment is a no-contest type of plea. Once the guilty party meets court-ordered requirements there is no formal conviction on record.) Cole also pleaded guilty to second-degree perjury. For this misdemeanor the judge sentenced her to two years probation and forty hours of community service.

     Had Cole gone to trial for lying under oath her fate would have been in the hands of people who had not lied to get off the jury. Now, with a criminal record involving dishonesty, this woman was no longer fit for jury duty.

The Serial Arsonist

     Robbers and thieves commit their crimes for financial gain. Arsonists, on the other hand, set fires for a variety of reasons. As a result, motive and criminal profiling is an important lead in an arson investigation. Regarding motive, unlawful fire setters generally fall into one of two categories: rational and irrational. The rational arsonists can be put into two groups: people who set fires for direct gain, and those who do it for indirect benefit or gain. Direct gain arsonists torch their homes, cars and businesses for the insurance money. The indirect gain fire is set, for example, as retaliation, revenge, competitor elimination or to cover-up another crime such as homicide. People who set fires for reasons that make sense are usually not repeat offenders. If they do repeat their crimes it's rarely more than twice.

     Arsonists who are irrationally or pathologically motivated are almost always young men. They are often powerless losers who are mad at the world. They set fires to get even with society, to experience feelings of power, to play the role of hero and in a small percentage of cases for sexual gratification. Many of them have had problems at school, with their parents and with the police. Some are mildly retarded, others have mental health problems. Older pathological fire setters often have drug and/or alcohol addictions. 

     Because the vast majority of serial arsonists are pathological fire setters who have no regard for human life, they are the most dangerous. Unlike rational fire setters they often hang around fire scenes soaking up the excitement they have created. When taken into custody they should be interrogated by arson investigators trained and experienced in questioning this type of suspect. For the pathological arsonist the bigger the fire the bigger the rush. Serial arsonists have been known to set several fires in one night.

The Dueling Expert Problem: The Rosa Jimenez Murder Case

     In a court of law a phony hired-gun forensic scientist can be more persuasive than his more qualified or ethical counterpart. This is possible because jurors make judgments based on how expert witnesses look, act and speak. They do not analyze their resumes. A court room charlatan who can act the part can be more believable than a real expert. Phonies like Dr. Ralph Erdmann, Dr. Louise Robbins, Dr. Pamela Fish, Dr. Michael West and Fred Zain, to name a few, testified in hundreds of cases before they were exposed and defrocked. There are hundreds of private sector hired-guns whose expert testimony is for sale for any side that will pay. Moreover, crime lab personnel working in the various levels of government are often incompetent, or tailor their findings to the needs of police and prosecutors. In general, the field of forensic science has not lived up to its potential, and to an alarming degree, is either useless or downright corrupt. The dueling expert problem is one of the symptoms of this reality.

     Vanderbilt law professor Rebecca Haw, in an article about dueling experts, discusses the "99 to 1 problem." Haw writes: "All but one out of 100 available experts testifies that the earth is round, and one out of 100 disagrees testifies that the earth is flat. To jurors, it appears that scientific consensus on the subject is divided roughly 50-50."

     As the author of two books on the Lindbergh kidnapping case I've encountered something like the 99 to 1 problem in connection with hack true crime writers who make the case that Bruno Richard Hauptmann, the man executed for the 1932 murder of the Lindbergh baby was innocent. More than a dozen highly qualified questioned document examiners had identified Hauptmann as the writer of all the ransom letters. Since the 1935 trial several modern handwriting experts have analyzed the evidence and drawn the same conclusion. While only one  recognized forensic document examiner has expressed doubt regarding these findings, those who believe that Hauptmann was innocent claim that the handwriting evidence in the case is in dispute. In reality, the question of who wrote the Lindbergh case ransom letters has been settled for a long time.

     In researching my 2008 book Forensics Under Fire I noticed that forensic pathologists often testify against each other in shaken baby syndrome and sudden infant death cases. Coroners and medical examiners also face off against opposing forensic pathologists in suicide versus homicide cases and trials featuring the issue of whether a victim was intentionally poisoned or died of an overdose. Forgery and disputed will cases almost always involve opposing handwriting experts, a forensic science on the verge of being destroyed by phony practitioners. (The JonBenet Ramsey case caused a serious rift among qualified forensic document examiners.) Experts regularly disagree over the crime scene identification of footwear and tire impressions, blood spatter analysis, bite mark identification and the cause and origin of suspicious structural fires. Even government fingerprint examiners are now being challenged in court. Twenty years ago this was unheard of.

     The fact that two expert witnesses are on opposite sides of a forensic science issue doesn't necessarily mean that one of them is either a phony or corrupt. But it does mean that one of them is wrong. When jurors find the scientist who is wrong more credible than the expert who is right, criminal justice has been subverted. Forensic science is supposed to be the solution, not the problem.

The Rosa Olvera Jimenez Case

     On January 30, 2003, 19-year-old Rosa Olvera Jimenez and the boy she regularly babysat were alone in the 21-months old's Austin, Texas home. Around noon, Bryan Gutierrez turned blue and collapsed. Although paramedics pulled a wad of 5 paper towels out of the boy's throat, he had slipped into a vegetative state. Four months later he died.

      Jimenez, suspected of murdering the child from the onset, said she had inadvertently left a roll of paper towels in the living room while she prepared lunch in the kitchen. Bryan, his face blue, staggered into the kitchen and pointed to his throat. A few minutes later he collapsed.

     Charged with murder, Rosa Jimenez went on trial on August 25, 2005 at the Travis County district court in Austin. The prosecutor put two physicians and a medical examiner on the stand. The three experts testified that it would have been physically impossible for Bryan to have accidentally swallowed all of that paper. His gag reflex would have prevented that from happening. The fact the towels were stained with blood, according to these expert witnesses, supported the theory that the obstructive mass had been pushed into his throat by force.

     The Jimenez defense put Dr. Ira Kanfer, a forensic pathologist, on the stand. Dr. Kanfer testified that the victim could have accidentally choked himself with the paper towels. According to this forensic pathologist, the blood on the towels did not come from the inside of the victim's mouth, but from his lungs.

     On August 31, 2005, after eight hours of deliberation, the jury found Rosa Jimenez guilty of murder. The judge sentenced her to 99 years in prison.
   
     Defense attorneys filed a motion for a new trial on the grounds the state had not given the defense team enough money to hire a battery of experts to counter the prosecution's expert witnesses. Following the trial, two physicians who were pediatric airway specialists, and a forensic pathologist who specialized in the deaths of children, studied the case. All three of these experts believed that despite the gag reflex, Bryan Gutierrez could have accidentally choked on the paper towels.

     To counter the post-conviction findings of these new defense witnesses the prosecutor presented the analysis of an expert who agreed with the three doctors who had testified for the prosecution at the trial.

     In November 2005 the Travis County district judge who had presided over the case denied the defense motion for a new trial. Jimenez's attorneys appealed this ruling. Several months later, a Texas appeals court reversed the district judge and ordered a new trial based on the new evidence. The Travis County prosecutor appealed this decision to the state's highest court and in April 2012 that court, in an 8 to 1 decision, denied Rosa Jimenez a new trial. According to the justices, the new scientific evidence was not enough evidence to legally reverse the trial jury's finding of guilt.

     In the Jimenez murder case forensic science failed to establish how Bryan Gutierrez had died. It didn't matter to him but it meant everything to his babysitter who will probably die in prison. We will never know for sure if justice was done in this case.

     In the 1930's forensic science advocates such as law school dean John Wigmore and police chief August Vollmer believed that science in the court room would some day eliminate verdicts based upon emotion, guess work and legal gymnastics. That day may come, but notwithstanding cutting edge science such as DNA analysis we are not there yet.

The Ryan Ferguson Murder Case: The Power of Perjured Testimony

     During the early morning hours of November 1, 2001, a person or persons attacked sports editor Kent Heitholt as he approached his car in the parking lot next to the Columbia Daily Tribune office in Columbia, Missouri. Around the time of the assault two young white men were seen in the vicinity. The attackers had beaten Mr. Heitholt with their fists then strangled him with his own belt. His watch had been stolen but his wallet was still in his car.

     In the months following the Heitholt murder, detectives with the Columbia Police Department ran down thousands of leads but came up empty handed. As time passed and the case remained unsolved, local criminal justice leaders felt building pressure to solve this brutal murder of a prominent citizen.

     In an act of investigative desperation the authorities in November 2003 published a composite police sketch of the two men seen near the newspaper office that night. (Police sketches are not only useless to crime investigators, they make things worse by generating false leads and false hopes of a case solution.)

     In March 2004 an anonymous caller to the crime stopper's hotline in Columbia reported that a 19-year-old local man named Chuck Erickson had been telling people that he may have been involved in the Heitholt murder.

     Chuck Erickson, in March 2004, had just come off a probated sentence related to a drug conviction. When Mr. Heitholt was beaten and strangled to death Erickson would have been seventeen. Detectives assigned to the case were thrilled to have such a promising lead.

     At police headquarters detectives put Chuck Erickson through an intense and prolonged interrogation that was only partially recorded. Erickson told his questioners that because one of the men depicted in the police sketches looked like him, he started wondering if maybe in a drug and alcohol blackout he had been involved in Mr. Heitholt's violent death. Perhaps he and his friend since childhood, Ryan Ferguson, had committed the murder. They had been drinking that night in a bar not far from the crime scene. Maybe they had robbed the newspaper man in order to keep drinking.

     Had the detectives grilling Erickson not been so desperate to solve the Heitholt case, they might have recognized several indications that Erickson and his friend were not good murder suspects. The robbery motive didn't hold water because Mr. Heitholt had been murdered one hour after the bars had closed that night. Moreover, Erickson had to be told that the victim had been strangled with his own belt, and shown exactly where in the parking lot Heitholt had been attacked.

     When detectives brought Ryan Ferguson in for questioning, he insisted that he had nothing to do with Mr. Heitholt's murder. He maintained that position throughout the interrogation. Not only did Ferguson strongly deny any involvement in the homicide, investigators didn't have a single piece of physical evidence linking him to the crime scene.

     Notwithstanding having nothing but the word of a former drug addict who had no memory of what he had done that night, detectives continued to press their case against both suspects.

     In the months that followed, Chuck Erickson, in return for the promise of a relatively light sentence, agreed to testify against his friend. This meant that Erickson's memory, colored by heavy coaching, would have to significantly improve. And of course it did.

     In October 2005, in Columbia, Missouri, Ryan Ferguson went on trial for the Heitholt murder. When prosecutor Kevin Crane put Chuck Erickson on the stand he testified that he and the defendant had attacked the victim that night in the newspaper office parking lot. Prosecutor Crane also produced a witness, a janitor named Jerry Trump, who said he had seen Erickson and the defendant that night not far from the murder scene. For some reason Mr. Trump had waited several years before coming forward with his information.

     Two men--a drug addict with a remarkably improved memory, and a witness who came forward at the last minute--comprised the sum total of the prosecution's case. In the name of justice, the trial judge should have directed a not guilty verdict based on the fact the government had not carried its burden of proof. But instead, the case went to the jury and Ryan Ferguson was found guilty as charged. The judge sentenced him to forty years in prison.

     In 2010, Missouri's Western District appellate court heard arguments regarding the Ferguson conviction. While the justices questioned the star prosecution witness' credibility, they declined to rule on the case. Instead, the appeals court judges recommended that the case be reviewed before a different lower court judge.

     The lower court hearing on the Ferguson conviction took place in April 2012. At this proceeding Chuck Erickson admitted under oath that he had lied at Ferguson's murder trial to save his own skin. Jerry Trump, the prosecution's miracle witness, took the stand and confessed that he had committed perjury as well.

     The lower court review judge, after hearing from Erickson and Trump, ruled that Erickson's testimony at Ferguson's 2005 murder trial was indeed credible. In other words, he was telling the truth then but lying now. Although the janitor's testimony was not reliable, the judge said it was an inconsequential factor in Ferguson's conviction. 

     On January 13, 2013 the Ferguson legal team appealed the review judge's ruling. In September, justices with the Western District Appeals Court considered the revised testimony of Chick Erickson and Jerry Trump. On November 5, 2013 the Missouri appeals court vacated Ryan Ferguson's murder conviction. After spending almost ten years behind bars Mr. Ferguson was a free man.

Who Murdered Jon Garner?

     In 2018, Jon Garner and his wife Sandra Louise Garner resided in the small Ellis County town of Maypearl, Texas. They were managers at the DHL Express and We Pack companies in nearby Paris, Texas. The couple had met in 2000 and two years later were married. Sandra, 13 years older than Jon, was twice-divorced with two children, Andrea and Wesley Miller.

     In 2014 Sandra Garner was diagnosed with Multiple Sclerosis. Two years after the diagnosis the couple moved from Paris, Texas to the house in Maypearl. Jon Garner, described by people who knew him as a bit "wild and crazy," also drank heavily and suffered bouts of depression.

     In the early morning hours of January 2, 2018, 58-year-old Sandra Garner called 911 and rather calmly said, "There was a man here and he shot him. Please help me."

     Responding deputies with the Ellis County Sheriff's Office found the 911 caller's 45-year-old husband in bed with two gunshot wounds to his head. He was pronounced dead at the scene. At the sheriff's office Sandra Garner told her questioners that when awaken by the sound of two gunshots she was confronted by the shooter, a naked man wearing a face-mask. All she could see were his eyes. When she screamed the intruder said, "Shut up!" Sandra pleaded with the masked intruder not to kill her. In response he said, "What I came to do is done. I didn't come here to shoot you."

     The gunman who had just shot her husband to death took the time to explain why he had murdered him. According to the killer, after Mr. Garner had fired him some years ago he lost his house, his wife and his children. He had lost everything.

     Sandra Garner informed the sheriff's deputy that the shooter knew that the couple kept cash in the house and he wanted it. She directed him to the closet where they had $18,000 in a lockbox. Before the killer left the house with the money he told Sandra to count to 100 before calling the police. If he heard sirens he'd come back and shoot her.
   
     A search of the Garner house revealed that Mr. Garner owned 49 pistols and twelve rifles. Sandra Garner's .38-caliber Taurus revolver was not in the dwelling and she said she had no idea where it was. A police search of Sandra Garner's iPad immediately made her a suspect in her husband's death. Four days before the murder, someone on her iPad had Googled: "How to kill somebody in their sleep" then clicked a link to: "16 ways to kill somebody and not get caught."

     When asked about the incriminating iPad Google search the suspect replied that her husband often thought about killing himself and must have made the Internet inquiry.

     On January 5, 2018 sheriff's deputies returned to the Garner house for a more thorough search for the .38-caliber Taurus revolver. The officers went to the attached garage to search Sandra Garner's Ford Mustang but the garage was locked. When asked for the key the angered suspect reluctantly complied with the request.

     Under the front seat of the Mustang deputies found the suspect's .38-caliber revolver. It was wrapped in wet towels inside a plastic bag.

     At the crime lab forensic scientists were unable to find latent fingerprints or DNA evidence on the gun. A forensic firearms identification expert, however, determined that the fatal bullets had been fired from this revolver. 

     On January 10, 2018 sheriff's deputies took Sandra Garner into custody on the charge of murder. The magistrate set her bail at $2 million. An Ellis County grand jury two months later brought a murder indictment against her.

     The Sandra Garner case went to trial on September 10, 2019 in the Ellis County Court House in Waxahachie, Texas. The defendant's attorney, Tom Pappas offered a three-pronged defense: His client had been framed--by her son Wesley Miller; the Ellis County Sheriff's Office had horribly bungled the investigation; and the prosecution had not established a motive for Sandra Garner to kill the man who loved her and had taken care of her.

     The defendant, looking older and unwell, took the stand on her own behalf and came off as a sympathetic witness who had been framed by her son who had made the Google searches on her iPad and planted the murder weapon in her car. According to the defense, Wesley Miller had murdered his stepfather because he was desperate for money. The defense attorney pointed out that Mr. Miller was in the Garner house the night of the incriminating Google searches. Moreover, contrary to what detectives believed, Wesley Miller did not have a solid alibi for the early morning hours of January 2, 2018.

     Regarding the bungled investigation, the defense attorney highlighted the fact deputies, immediately following the discovery of Mr. Garner, did not bag his wife's hands to preserve possible gunshot residue. If they had they might have found that she had not fired the murder weapon. Had investigators processed the Mustang's door handles for latent fingerprints they may have discovered that Wesley Miller had planted the murder weapon. Also, the sheriff's office lost the crime scene photographs and had done nothing to protect the murder scene from evidence contamination and removal.

     Throughout the trial defense attorney Pappas repeatedly referred to his client as the "60-year-old nana with MS."

     On October 10, 2019, after 25 witnesses and 400 exhibits, the jury, after deliberating three hours, returned to the courtroom with its verdict: Not guilty. The jurors did not think the prosecution had made its case beyond a reasonable doubt.