Category: Criminal Law

Criminal JusticeCriminal LawExpert Witness

The Staircase on Netflix: Lawyer and Expert Witness Costs of a Homicide Trial

Netflix’s hottest new true crime show gives us an excellent view of the financial costs of criminal justice.

A little over half-way through the second episode, the defendant Michael Peterson, is having a conversation with his brother, Bill Peterson. They had just been pitched a $35-40,000 idea for conducting a survey instead of a mock trial. Thereafter, the brothers have an open and frank discussion about the costs of defending Michael Peterson for killing his wife.

They have a conversation in which they realize they’ll be over-budget by about $300,000. Initially, they thought the defense and trial might cost somewhere between $500-550,000. No small sum. Now, after speaking with the lead attorney and some trial consultants, they realize they’re looking at a $750-800,000 of legal spend. With that money spent, there’s no guarantee he’s staying out of prison.

  • SPOILER ALERT: He doesn’t stay out of prison, but he does get out of prison after many years.

Michael Peterson asks his brother, “Then again, what do people do, who don’t have any money?” It is an excellent question! Michael Peterson follows that up with “the rich get off because they can afford to defend themselves. The poor go to jail because they can’t afford to defend themselves… not in every case.” This appears to be a reasonable assumption. Michael goes on to state, “American justice is, very, very expensive.”

Regardless of what you think about Michael Peterson, or The Staircase, he has brought up some really prescient issues. In reality, cost is a major access to justice issue. I discussed this with my access to justice panel members, at the ABA GPSolo / GLSA conference in Louisiana, earlier this year. Cost often prevents people from seeking legal assistance. What if you seek legal assistance, but you don’t have $50,000, $100,000, $800,000 or more, to throw at a defense? That may put your freedom in a perilous position.

Considering the financial strain a criminal trial might cause, I thought now was a good time to provide an assessment of the costs. Remember, the costs discussed in episode two of The Staircase, were based on costs from the early 2000’s. It would be fair to assume those costs have increased. If you are innocent of a crime, you’d still have to spend the money to defend yourself.

I’m going use a hypothetical homicide case to assess attorney, trial consultant, and expert witness costs, for the purposes of this blog. For the fact pattern, assume similar facts to those in The Staircase (i.e. a victim is found at the base of a staircase. The police think the defendant killed the victim. The defendant argues the victim fell down the stairs). Our hypothetical criminal trial is going to include an appeal.

Legal Costs for a Homicide Trial:

To get some insights on the legal costs for defending a homicide prosecution, I’ve reached out to our friend Walter M. Reaves, Esq. Walter is a friend and colleague I’ve met through the LegalMinds Mastermind Group. He is a criminal defense attorney located in Waco, Texas. To find more about his practice, visit waco-criminal-attorney.com. The following text is the full analysis provided by Walter Reaves:

There are several lessons you can learn from the “Staircase”, one of which concerns the cost of a vigorous defense. In one of the episodes, while they are totaling how much they have spent so far, Michael Peterson wonders how someone who doesn’t have the financial resources he has can defend themselves. It’s a fair question, and one that is asked regularly.

He’s not alone in believing the criminal justice system favors the wealthy. You can’t argue with the fact that they can afford the best lawyers, and the best experts.  Some people also believe they can buy their way out of trouble.  While there are rare instances where that has happened, it’s the exception. The benefit of money is in the “extras” that most defendants are not able to take advantage of.

You probably wonder how expensive a murder case is to try. Cases like the Peterson one are the exception. Most cases are not nearly as complex or complicated. Where the facts are fairly well established, there may not be a lot you can do. Even in cases that are fairly complex, there may not be a lot of experts involved.

For those dying to know, here’s an estimate on the potential costs you could incur in defending a murder case:

Defense attorneys – this is probably the biggest range you will find, because criminal defense lawyers generally don’t work on an hourly basis; instead, they charge flat fees. That is based on a number of factors, including the lawyer’s experience, as well as the amount of time the lawyer anticipates the case will take. It also depends on the location.  For the defense of a major murder case, you would expect a good lawyer to charge at least $100,000, and maybe a lot more. In a case like the Peterson case, the lawyer is probably going to be working only on that case, and will utilize most of his office in doing so. That means they aren’t going to have any other money coming in, so the fee they charge needs to account for that.

Investigators – most investigators charge by the hour. In Texas, it can range from $50.00 an hour, to $100.00 plus. The amount of investigation that is necessary can vary widely, but for a complicated case like this one, an estimate would be 200-500 hours.

Fortunately, most other experts do not have to do the same amount of work. A pathologist is a must in a murder case. You can expect a retainer of $5,000 – $10,000 to review the case, provide an initial opinion. If they have to testify, most experts charge a fee based on the amount of time they are required to be in court, which can be $1,500- $3,500 a day, plus their expenses.

A biomechanical expert is a specialized expert, that might be involved in a murder case. Their fees would generally be in line with the pathologist, although they are more likely to be paid by the hour, with rates ranging from $150 – $500.00.

Blood spatter experts can be expensive, because they are looking at all the evidence. While a pathologist may only be looking at the autopsy, the blood spatter expert is reviewing all the autopsy, as well as all the photographs. They also may want to visit the scene, and take more detailed measurements than the police did. They also will review all of the reports and statements, to determine whether they are consistent with the physical evidence. Normal fees would be in the range of $10,000 – $15,000. They will also charge an additional fee for testifying, based on the number of days they are required to spend away from the office.

In addition to the above experts, you might also have a crime scene expert, or an expert in crime scene re-construction. Like the blood spatter experts, they will review all the evidence, and the photographs, and will probably visit the scene and take their own measurements.  Their fees would be consistent with blood spatter experts. They may also provide additional services, such as producing re-enactments of the crime scene.

If you don’t that kind of money, what are you supposed to do? Fortunately, you aren’t completely out of luck. The Supreme Court has held that a defendant must be provided with the tools necessary to mount a proper defense. What those tools are is open to debate. However, courts have generally held experts such as a pathologist should be provided. These experts can be paid for through the court, even if the defendant is paying for his own lawyer. Just because someone can afford to hire a lawyer, doesn’t mean they can afford to pay for a full defense. Of course, you aren’t going to get everything you might want, but at least you can have someone in your corner.

Legal Costs for a Homicide Appeal:

My experience with appeals is limited to academic. I interned at the California 3rd District Court of Appeals, while in law school. For this blog post, we really needed someone who could provide more detailed information about the practice of criminal appeals. As such, I reached out to friend and colleague, Ryan C. Locke, Esq.

Ryan Locke, founder of the Locke Law Firm, practices personal injury and criminal appeals in Atlanta, Georgia. He is an Adjunct Professor at Emory University School of Law in their trial techniques program. Previously, he worked in the Atlanta Public Defender’s office. To find out more about his practice visit: thelockefirm.com.

The following are some questions I posed to Ryan followed by the answers he provided regarding the costs of criminal appeal.

Nick: Can you tell our readers a little about post-conviction appeals (i.e. general information on what items may be appealed; how many appeals might a defendant have in the State of Georgia; anything else you think is relevant to summarize the appeal process)?

Ryan Locke: The strategy in an appeal case is to find errors that are serious and made a difference in the trial. Our two biggest obstacles in an appeal is the harmless error doctrine and appealing issues that are not preserved.

If we find an error but it doesn’t make a difference in the trial, then it is harmless error and we will lose. For example, if the defendant had a credible alibi defense and his lawyer never investigated it—serious and would have made a difference, and we’ll probably get a reversal of the conviction. But if the court let a witness testify to some pretty harmless hearsay—not serious and would not have made a difference, even if it was error.

Issues that are preserved—the defense objected to them at trial and the judge made a ruling—can be appealed directly. But often issues are not preserved because the trial lawyer didn’t object. In order to appeal those issues, we must ask for a hearing in front of the trial judge and bring the trial lawyer in to testify about his mistake. We do this by filing a motion for a new trial.

This hearing is our last chance to enter evidence into the record. For example, in The Staircase the government introduced evidence of Peterson’s neighbor in Germany dying under similar suspicious circumstances in order to prove that he knew how to fake his wife’s accident. If the trial attorney doesn’t object to this evidence then the issue is waived—unless we assert that the trial attorney was constitutionally ineffective for that failure by calling the lawyer as a witness and asking him or her about it.

If the trial judge denies the motion for new trial, we then appeal that denial. Most cases go to the Court of Appeals, while some go directly to the Supreme Court. In either court, the process is straightforward: each side files briefs, we go to the court and have oral argument if they grant our request, and then we wait for the opinion.

If we lose the direct appeal, then the defendant can file a civil case asking for a writ of habeas corpus. You have the right to a lawyer for the direct appeal, but not in the habeas case, and there are some additional hurdles for raising issues in a habeas, so the direct appeal is usually your best shot at getting a conviction reversed.

Nick: In your experience, what is a common cost of post-conviction appeals in Georgia?

Ryan Locke: The cost of an appeal can really vary based on the length of the trial, the complexity of the evidence, whether any experts testified, and the complexity of the issues raised on appeal. The cheapest appeal may be a trial that only lasted a few days, no scientific evidence was presented, and no experts testified. On the other end, I worked on appealing a federal trial that lasted three weeks and involved a complicated conspiracy—it took me 60 hours just to review the trial transcripts.

The cost also depends on if the work requires experts. In our Staircase example, one issue may involve hiring experts to review all the scientific and forensic evidence. If there was a way to attach the government’s scientific evidence that the defense didn’t raise at trial, then we’ve got to bring our own expert to court and have him testify, just like he would have testified at trial. This can add considerable expense to an appeal.

I would ballpark most appeals between $15,000 and $25,000, unless there’s a complicating factor. Price can also vary depending on who you hire. The best lawyers in Georgia handling high-profile cases will start at $75,000 to $100,000.

Nick: If there are multiple appeals, how much might a defendant expect to spend on multiple appeals?

Ryan Locke: The reality is that most defendants rely on the public defender for their direct appeal and will then be pro se for their habeas case. Because habeas cases have more procedural hurdles to jump through before the court will decide a case on the merits, I will usually charge one fee to review the case first to see what the strategy should be and then a second fee to execute on the strategy. For me, habeas cases end up being a bit more expensive because of this.

Nick: For an entire appeals process, can you provide us with a low to high range of costs?

Ryan Locke: From free to as much money as you have. Where money makes the biggest difference is in experts. If the prosecution relied on scientific evidence and expert testimony to secure the conviction, you need to have everything reviewed by independent experts—even if the defense had experts testify at trial. My most recent appellate win relied on having a psychologist review almost a thousand pages of medical records and evaluate my client in prison. The report we got was persuasive both to the prosecutor and the court and provided the evidence we needed to win.

You also need quality experts to give you bad news. I had a case where we hired an out-of-state medical examiner to review the autopsy. He told us that the government’s conclusions were sound and most experts would agree with them. This allowed us to focus on other aspects of the appeal and not waste time or money on a losing issue.

Conclusions:

A huge thank you to Walter Reaves and Ryan Locke for participating in this effort. We wanted to give readers a modest idea of the costs associated with mounting a significant criminal defense.

To wrap up, I’m going to take the lowest costs provided by my co-authors to give our readers a basic understanding of the expense involved in criminal defense.

Defense attorney – $100,000.

Investigator – $50/hour times 200 hours = $10,000.

Pathologist – $5,000 retainer; $1,500 1 day of trial testimony = $6,500.

Biomechanics expert – per Walter Reaves these costs would be in line with Pathologist, so = $6,500.

Blood spatter expert – $10,000. Plus a fee for testifying. I had to search some of our data to see what they charge for testifying and we’re going to ballpark one day at $2,400 for a total =  $12,400.

Crime scene expert – per Walter Reaves, these costs would be in line with the blood spatter experts so we ballpark it as = $12,400.

Criminal appeal – per Ryan Locke, the low end cost = $15,000.

Again, these numbers are based on the lowest costs provided by my co-authors. We also factored in one day of testimony for most of the experts. We come up with a low cost for a criminal trial and appeal of $162,800.

We did not use mounds of empirical data in this analysis. Many things could change the costs of a trial. One, for example, is if your lawyer decided to hire an expert through an expert witness broker, you could add another 40% onto the cost of each expert. I know, that’s a self-serving comment, but it is entirely accurate. You should be getting your experts through Experts.com.

Other items impacting the costs were our use of the same experts we saw used in The Staircase. Not every case is going to require all the experts mentioned in this hypothetical. However, you are already at $115,000 if you factor in your defense counsel and appeals counsel.

My best advice, stay out of trouble. It can be very expensive, even with available assistance described by Mr. Reaves and Mr. Locke.

 

 

 

 

 

 

Criminal LawExpert WitnessForensic Psychiatry

Golden State Killer, Part 2: Forensic Psychiatry and the Rapist and Serial Killer

As readers of Part 1 are aware, I’m following this case closely due to the connection to our local community. If you are anything like me, you wonder how someone could allegedly commit so many heinous crimes? Then, after a decade of committing dozens of rapes and multiple murders, the suspect ends his reign of terror (at least as far as we know).

What We Know:

From 1976 to 1986, a violent criminal struck fear throughout the State of California. Twelve murders, 45 or more rapes, and more than 100 hundred residential burglaries are attributed to one man. Authorities have indicated the suspect was meticulous in the planning of his crimes, which started as burglaries and escalated into violent offenses.

The crime spree spanned Northern and Southern California, including Sacramento, San Joaquin, Orange, Ventura, and Contra Costa Counties. The suspect was known by many names, such as Visalia Ransacker, Diamond Knot Killer, Original Night Stalker, East Area Rapist, and more recently the Golden State Killer. It wasn’t until a couple of years ago that DNA evidence connected the dots of all the crimes and detectives realized the crimes were committed by the same individual.

An arrest was made in late April. After using an innovative investigative technique (submitting a DNA profile to a free online ancestry database), detectives identified James Joseph DeAngelo, Jr., a former police officer and mechanic living in Citrus Heights, California.

What Makes Someone Commit Such Crimes?

Violent crimes are difficult for most of us to understand. Certainly we’ve all had emotional moments that could have resulted in a terrible decision had we lost self-control or been otherwise unbalanced. Although I don’t condone violence, I’ll admit reading about crimes where the violent result was understandable. Not acceptable, but understandable. For example, a parent acting violently towards someone who harmed his or her child is the type of violent behavior I can understand.

How do we reconcile vengeful, “loss of control,” or “heat of passion,” violence with violence that seems to be done for pleasure? Why does an offender experience joy from inflicting pain and fear upon a victim? What causes a person to lead a life of rape and murder?

There are so many questions on this topic. Does a lack of understanding make us more fearful? Does the human condition require a rational explanation for irrational acts we cannot fathom?

A little information before we continue:

For this portion of our series on the Golden State Killer, I sought input from a forensic psychiatry expert witness. Part 3 of this series will include input from one or more forensic psychologists.

It is important for readers to understand the difference between psychiatry and psychology. Allow me to differentiate between the two. For any psychologists and psychiatrists reading this post, I apologize for the very simplified descriptions of your professions, but we’ve had lawyers contact us looking for an expert, unaware of the distinction.

A psychiatrist is a medical doctor (MD, DO) capable of prescribing medications to address mental, emotional, and behavioral disorders. They generally focus on diagnosis and treatment. A psychologist is not a medical doctor. Psychology-based doctoral degrees are usually Ph.D or Psy.D. They generally are unable to prescribe medication and focus more on helping patients to effectively cope with mental, emotional, or behavioral disorders via psychotherapy (non-medical treatment). Again, this is an oversimplification of two highly complex professions.

Today, we will be addressing the Golden State Killer with some input from Experts.com member and forensic psychiatry expert, Dr. Stephen M. Raffle.

Stephen M. Raffle, MD – Forensic Psychiatry Expert Witness:

Dr. Stephen Raffle is double board-certified in Psychiatry and Forensic Psychiatry. He has over 40 years of experience as a clinical and forensic psychiatrist offering his expert opinion in federal and state jurisdictions nationwide. Dr. Raffle has conducted over 5,000 psychiatric assessments in his career and was a professor of psychiatry at UCSF Medical Center for 20 years. You can learn more about Dr. Raffle by visiting his website: psychiatristexpertwitness.com.

Nick: Are there common psychological attributes among serial killers?

Dr. Raffle: A common feature is a lack of empathy with victims. Most serial killers ​(with few exceptions) understand they are committing a crime because they take care not to be caught. Antisocial Personality Disorder and Borderline Personality Disorder commonly are present. Sadomasochism is also a common feature. Depending on the shared characteristics of the victims, the serial killer may have problems with impotence, paranoia, or sexual perversions which cannot otherwise be satisfied. Paranoid Schizophrenia is a common psychiatric disorder but not universal. A diagnosis of paranoid schizophrenia, in and of itself, does not necessarily justify a finding of insanity, because “insanity” is a legal construct, not a psychiatric diagnosis.

Nick: If so, what types of psychological attributes are common among serial killers?

Dr. Raffle: Refer to my response in No. 1 above. In addition, the psychiatric disorders, as diagnostic entities, may include:  ​Sadomasochistic Personality Disorder, Necrophilia, Paranoid Schizophrenia, Borderline Personality Disorder, Antisocial Personality Disorder, or other psychotic disorders.

Nick: Does a serial rapist or serial killer experience joy or pleasure from tormenting and harming their victims?

Dr. Raffle: Yes.

Nick: If so, why is it they experience joy or pleasure from inflicting pain or committing murder?

Dr. Raffle: In each instance, the torture is combined with sexual arousal (which is commonly not acknowledged by the perpetrator), leading to an emotional discharge, often overtly sexual in nature​ upon the death of the victim. Following the murder, serial killers have recurrent fantasies about various aspects of the ritual associated with the killing, which brings satisfaction. Over time, the recurrent fantasies become progressively less satisfying, (i.e., “old news”) resulting in a need for new fantasy material. Hence, the serial nature of the murders.

Nick: Can forensic psychiatry explain how one becomes a serial killer? Or, what causes one to become a serial killer?

Dr. Raffle: The prediction of violence in a specific individual is difficult, given the extremely rare occurrence of serial killers. Certain risk factors are identifiable for predisposing an individual to violence; however, the constellation of symptoms, behaviors, life experiences and genetic makeup makes it impossible to identify serial killers before the fact or even to explain how one “becomes a serial killer.” That said, a propensity toward violence most commonly occurs in individuals who have a prior history of violence, premeditated violence, paranoia, a strong impulse for revenge, drug and/or alcohol abuse, Antisocial Personality Disorder, Borderline Personality Disorder, the experience of repeated childhood sexual abuse and/or physical abuse, obsessional thinking, unresolved gender identity issues, sadomasochism, and conflicts about dominance/submission. The causes to become a serial killer commonly include prior sexual fantasies, coupled with torture ending in murder. The shift from fantasy to reality may occur following a personal crisis and need for greater satisfaction than is provided by the fantasy. Once the taboo of murder is breached, the serial killer is freer to convert subsequent emotional needs into murderous actions. Most serial killers have a ritualistic aspect to their killing which reflects their unconscious needs and conflicts, such as killing prostitutes, homosexuals, homeless people, or other such categories. The commonality of the victims usually is based on childhood experiences, parental attitudes, and psychosexual conflicts.

Nick: Are there common childhood development (characteristics or circumstances) issues among serial killers?

Dr. Raffle: The most common childhood development characteristics and circumstances include parental neglect, inconsistent parental behaviors, resulting in excessive, unpredictable punishment​ unrelated to wrongdoing, physical or sexual abuse by a parent or close relative, extreme religious beliefs, isolative behaviors as a child, poor impulse control, conduct disorder during childhood, victimization of various sorts during childhood, to name several.

Nick: News reports indicate the Golden State Killer was active between 1976 and 1986. Is it likely he stopped committing these crimes?

Dr. Raffle: On a probability basis, he didn’t stop committing his crimes after 1986. The nature of his fantasies may have changed over time such that subsequent murders were dissimilar enough from the earlier murders that they don’t share enough commonality to identify him as the perpetrator.

Nick: Is it uncommon for a serial killer to stop committing crimes?

Dr. Raffle: It is common for a serial killer to continue committing crimes.

Nick: Are there items you think the public should know about forensic psychiatry, as it relates to the Golden State Killer, that I have not covered in the above questions?

Dr. Raffle:

a) Serial murder is an extremely uncommon occurrence. It is extremely difficult to prospectively predict a particular person will become a serial killer, irrespective of the forensic psychiatrist’s ability.

b) The ritualistic behaviors of a serial killer do not define insanity or even suggest it​. Serial killers as a group are cunning individuals who seek not to be caught, who do not confess, and who obtain considerable self-satisfaction at the expense of their victims.

c) Serial killers as a group do not understand the intrinsic causes of their behavior and are extremely unlikely to be cured of their obsessional murdering. As the practice of psychiatry now exists, it is unreasonable to expect successful treatment of a serial killer.

d) The FBI Behavioral Studies Unit has interviewed and analyzed all of the serial killers who have been brought to justice. Certain statistical profiles exist which assist law enforcement to “profile” a serial killer based upon the victim type and associated rituals. Roy Hazelwood headed the unit for approximately 20 years and probably knows more about serial murderers than anyone else. His work has been instrumental in creating “profilers.”

e) The psychological makeup of serial killers is different from mass murderers. Serial killers who kill by sniping random people or cars are psychologically more similar to the mass murderer than the serial killer because they usually snipe more than one person during a shooting episode.

f) Contract killers are not serial killers. The mentality of a paid assassin is essentially that of an antisocial ​person who does not empathize with his victims and is therefore comfortable earning his or her living killing others. The obsessional quality or ritualistic behavior of the serial killer is not shared with the assassin. Their only common ground is they have killed more than once. The difference is the assassin is told whom to kill and is paid for it; whereas the serial murderer chooses his victims and engages in other behaviors in addition to a murder which satisfies unconscious needs. Conceptually, as serial murderers go, the assassin is “professional” and the serial murderer is a “hobbyist.”

Stay Tuned:

A huge thank you to Dr. Raffle for his very thorough insight into the mind of the Golden State Killer. Next week we’ll be bringing you more insights on the psychological nature of this perpetrator with input from some of our forensic psychology expert witnesses.

 

 

 

Criminal JusticeCriminal LawForensic DNA

Golden State Killer, Part 1: Experts Explain Forensic DNA Evidence

This marks the first blog post I’ve written on a local event of national concern, the arrest of the Golden State Killer. The subject matter is sensitive for many involved, as such I aim to treat the topic with respect. There are significant issues related to the use of expert witnesses in a matter of this magnitude (DNA, ballistics, crime scene investigation and reconstruction, forensic psychology, forensic psychiatry, and more), so I have opted to address those issues with the input of appropriate experts.

In the week and a half since the arrest of suspected Golden State Killer, Joseph James DeAngelo, Jr., those of us in Northern California have been inundated with news reports about the crimes attributed to this prolific serial rapist and murderer who lived less than an hours drive from the Experts.com corporate office.

Prior to the arrest, I only knew bits and pieces about the history of the Golden State Killer (AKA: East Area Rapist, Original Night Stalker, Visalia Ransacker). Little did I know that several of the attacks (rapes) happened in my hometown of Stockton, California, putting the city and San Joaquin County on edge in late 1977 to early 1978. The Stockton attacks took place before and after many similar attacks in neighboring Sacramento and Stanislaus Counties, so the entire Central Valley was nervous. Attacks in Stockton apparently resulted in my parents installing their first alarm system.

How did the police locate the suspect?

The Sacramento Bee, has published many articles on the subject since the story first broke at the end of April. They have done some incredibly thorough reporting and I have used their reporting as a guide to writing this article.

It seems investigators had DNA samples from rape victims for decades. The only problem was the DNA samples did not match any of the DNA in criminal databases maintained by law enforcement. This means the suspect had never been caught for any crime and thus his DNA had never been submitted to one of the criminal DNA databases.

Following up on the Golden State Killer cold case, investigators decided to use an open-source genealogy database called GEDmatch. This is similar to the paid services of Ancestry.com and 23andMe, only it is mostly free to the public. Once the DNA profile was uploaded, investigators discovered a pool of potential candidates or relatives with similar genes. From there, they were able to eliminate suspects due to age, sex, location, etc. Eventually, they filtered down to the only suspect who made sense: Joseph James DeAngelo, Jr. After surveilling the suspect, DNA samples were obtained from items he discarded. Investigators then compared those samples to the Golden State Killer DNA. After a several attempts, detectives discovered a solid match and arrested DeAngelo.

DNA evidence is complicated, so I reached out to several of our members to discuss the DNA evidence involved in this case. Two Experts.com members responded to my questions for the first portion of this series on forensics.

DNA

Suzanna Ryan – Forensic Serology & DNA Expert Witness:

Blog readers may remember a really fun and informative live interview I did with forensic serology and DNA expert, Suzanna Ryan. She provided live and recorded viewers with some fascinating information on forensic DNA analysis. Naturally,  I reached out to her for input on the Golden State Killer case.

It is important for readers to remember we are only commenting on publicly available information from news reports. As in previous articles, I have outlined my questions and Ms. Ryan’s answers below. To learn more about her practice, please visit her website: ryanforensicdna.com.

Questions:

Nick: What are the types/forms of DNA evidence law enforcement is likely to have retrieved from Golden State Killer crime scenes?

Ms. Ryan: I am not sure I know enough about the cases to say for sure, but it sounds like at least some of the cases involved rape, so it is likely that in the mid-70s and mid-80s the perpetrator was not being very careful about not leaving his DNA – in the form of semen – behind.  There is a lot of DNA in semen and it is likely that a clean, single source profile was able to be obtained from those type of samples.  That is probably how the cases were linked to each other as well.

Nick: Is there a type/form of DNA that is more compelling or stronger evidence than other types?

Ms. Ryan: Body fluid DNA is typically,  in my view, more compelling evidence because it is more difficult to argue that the DNA arrived there inadvertently through some sort of secondary transfer. This is especially true if the perpetrator and victim did not know each other and there would be no reason for the perpetrator’s blood to be in the victim’s home, for example, or his semen in her body.

Nick: According to news reports, the last known Golden State Killer crime took place in 1986. Does DNA evidence degrade over time?

Ms. Ryan: DNA evidence can degrade over time, but if it is properly stored (i.e. in paper, not plastic and in a temperature controlled environment like an indoor property room – NOT in an attic, garage, or non-temperature controlled shed of some sort) then DNA profiles can be obtained many years later.  Heat, humidity, and moisture are all very detrimental to DNA evidence.

Nick: How does law enforcement maintain DNA evidence over decades?

Ms. Ryan: Once a profile is obtained from an item of evidence, that profile is stored electronically.  However, evidence that has not been tested or is part of an unsolved case will be stored in police evidence rooms, categorized by case number.  It should remain sealed and in paper bags, manila envelopes, or boxes.

Nick: From public reports, we know law enforcement has found a DNA match. What type of evidence will the prosecution have to present at trial to prove the DNA belongs to the suspect?

Ms. Ryan: I don’t know the answer to this.  Likely semen DNA evidence.  Possibly blood or even touch DNA at some of the crime scenes if re-testing or additional testing of evidence is conducted.

Nick: Are there arguments the defense can use to claim the DNA is not from the suspect?

Ms. Ryan: I’m sure there are.  No way to answer this unless the case files are reviewed. However, when you have multiple cases linked together combined with a database-type match like this (in other words, he wasn’t a suspect before but was found through searching one type of database or another) it becomes more difficult to argue that there is some sort of laboratory error or cross-contamination in the lab.

Nick: Are there items you think the public should know about DNA evidence that I have not covered in the above questions?

Ms. Ryan: You didn’t really ask about the whole forensic genealogy aspect to this.  That the investigators used a private lab (not sure who, but I suspect Parabon) to do the same type of DNA typing (SNPs) that ancestry DNA labs do on an evidence sample from the case.  That profile was then uploaded to one (and frankly, probably more than one) DNA sharing site to search for a possible relative.  There is also some news about some other guy in a nursing home being a suspect, etc.  There was apparently similarities in his DNA profile to the GSK, so they got a warrant for his DNA, did a comparison, and found he was excluded.  That doesn’t mean they “got the wrong guy”, etc. that is being played up in the media.  It means that he was a possible suspect because of his DNA, but he was also cleared, because of his DNA.  The police probably followed around and surreptitiously collected DNA from a LOT of guys before they found DeAngelo.  That’s kind of how this type of search goes.  It is similar to, but not the same as familial DNA searching.  That is something the public and media don’t understand.  Familial searching uses the CODIS database to look for near matches.  It works because 46% of offenders have a brother or father who is also incarcerated.

George Schiro – DNA Technical Leader & Forensic Science Expert Witness:

George Schiro is the Lab Director of Scales Biological Laboratory in Brandon, Mississippi. His duties include incorporating DNA Advisory Board (DAB) standards, accountability for the technical operations of the lab, conducting DNA analysis in casework, DNA research, forensic science training, and crime scene investigation. I posed the same questions to Mr. Schiro that were presented to Ms. Ryan. You can learn more about him by visiting his website: forensicscienceresources.com.

Questions:

Nick: What are the types/forms of DNA evidence law enforcement is likely to have retrieved from Golden State Killer crime scenes?

Mr. Schiro: I know that seminal fluid was collected from at least some the crime scenes, and the GSK may have injured himself at some point during one of the many attacks and left blood behind at one or more of the scenes. These are the two most likely sources of DNA found at the scenes. From this biological evidence, they would have done autosomal short tandem repeat (STR) DNA testing on the stains. This generated DNA profiles that the crime labs were able to upload to the Combined DNA Index System (CODIS) DNA database. This was how they originally connected the East Area Rapist (EAR) with the Original Night Stalker (ONS) and knew they were committed by a single individual. The profile in CODIS did not hit on any identifiable individual in the database. A familial search was also conducted at the state level (SDIS) to look for any potential relatives in the CODIS database. No potential relatives were found in the database. They may have also conducted Y chromosome STR (Y STR) DNA analysis on the samples in an effort to find any potential relatives. It is my understanding that they found a rare genetic marker in one of the samples and used a publicly available genealogy database to trace the marker from family members in the database back to Joseph James DeAngelo. They then used a discarded item from Mr. DeAngelo to compare his autosomal STR profile to that of the GSK and they matched the profiles.

Nick: Is there a type/form of DNA that is more compelling or stronger evidence than other types?

Mr. Schiro: Autosomal STR DNA analysis is currently the strongest type of DNA evidence because it remains consistent throughout a person’s life; with a few, rare exceptions, the DNA is the same throughout the individual’s body; the results are highly reproducible; the methods are standardized; and this type of DNA is highly individualizing. Theoretically, enough autosomal STRs are used to distinguish everyone on the planet with the exception of identical twins. Eventually, next generation sequencing (NGS) will probably supplement, and, perhaps, eventually replace autosomal STR DNA analysis as the crime lab tool of choice.

Nick: According to news reports, the last known Golden State Killer crime took place in 1986. Does DNA evidence degrade over time?

Mr. Schiro: DNA will degrade over time if it is exposed to heat, humidity, or ultraviolet (UV) light; however, if it is air-dried when collected and stored at room temperature under climate controlled conditions to reduce humidity, then it can last for decades, perhaps centuries. DNA has been obtained from mummies, so it is a very stable molecule under the right conditions.

Nick: How does law enforcement maintain DNA evidence over decades?

Mr. Schiro: Law enforcement maintains DNA evidence by air drying it upon collection, then keeping it stored in an air-conditioned, secure location where the temperature and humidity can be regulated.

Nick: From public reports, we know law enforcement has found a DNA match. What type of evidence will the prosecution have to present at trial to prove the DNA belongs to the suspect?

Mr. Schiro: They will have to show that the evidence originated from the crime scenes. They can do this by introducing crime scene photographs, videos, investigator notes, and testimony of the people who collected the evidence. They will then have to show that the evidence was stored and preserved properly; and the evidence chain of custody was maintained. They will have to show that the items were tested using validated techniques and that a report was produced. The report can be introduced at trial and the DNA analyst can testify to the tests and results. They will then have to show that a sample was collected from Joseph James DeAngelo and all of the same steps were taken with his sample. Finally, they will have to show how the DNA samples from the crime scenes match the DNA sample from Mr. DeAngelo.

Nick: Are there arguments the defense can use to claim the DNA is not from the suspect?

Mr. Schiro: In a cold case DNA hit, such as this one, and because the DNA is from seminal fluid and, possibly, blood, it will be very difficult to argue that Mr. DeAngelo is not the source of the DNA. Arguments of potential sample switches, contamination, and secondary transfer of DNA will not apply to this kind of case. About the only avenues left to the defense are to challenge the legality of the evidence collection and the legality of obtaining Mr. DeAngelo’s reference sample. They can also argue that Mr. DeAngelo has an identical twin who is the actual killer/rapist, but this might not be a realistic defense.

Nick: Are there items you think the public should know about DNA evidence that I have not covered in the above questions?

Mr. Schiro: No, I think you covered it pretty well. Thanks.

How about some further input:

My friend and colleague, Tamara McCormic of LegalForms.Today, is a legal advocate based in Orange County, California. Tamara works for the Orange County Public Defender in their exoneration unit. She is very knowledgeable about the use of DNA evidence in violent crimes. As several of the alleged murders took place in Orange County, this matter hits close to home for her as well.

I’ve asked Tamara to share her thoughts on the Golden State Killer matter based on her experience in homicide exoneration. A link to her blog post will be made available shortly.

 

Criminal JusticeCriminal LawExpert Witnesslegaltech

Fingerprints Lifted from Social Media Photo: Expert Evidence and Impact on Criminal Defense

Friday morning, I read a really interesting article from the FindLaw Technologist blog (their legal technology blog). The headline grabbed my attention because it was about drug dealers’ fingerprints being lifted from a photo on social media application, WhatsApp. This was news to me. I had no idea law enforcement could obtain digital fingerprints or that they could be used for an arrest. In hindsight, it seems perfectly reasonable that fingerprints could be obtained this way because the cameras in our cell phones are so advanced.

Probably, like many laypeople, I thought law enforcement had to access latent fingerprints left on a physical object (doorknob, weapon, cell phone, etc.). Based on my years of watching police procedural television shows and documentaries, I assumed the fingerprints had to be dusted by an evidence technician, input to a database, and then compared to other prints in the database. Today, however, I discovered that’s not the only way to do it.

As the Findlaw article explained, “Law enforcement arrested members of a drug ring using fingerprints on a cell phone photograph. Investigators didn’t even need the suspects’ cell phone because the photo was posted on the messaging application, WhatsApp.” The photo showed a male hand holding a bag of drugs. The agency’s forensics team uploaded the photo to a fingerprint data base and they found a match. The article specifically states the officers “acting on other information” located and arrested the man.

My assumption was the officers needed additional evidence in order to make an arrest.  Authorities can likely use the image as an investigative lead and then they have to go find additional evidence to establish probable cause for an arrest.

Alas, these were only my assumptions. It’s been a long time since I spent any time on criminal procedure. As such, I have asked for some input from Walter M. Reaves, Esq. Walter is a friend and colleague I’ve met through the LegalMinds Mastermind Group. He is a criminal defense attorney located in Waco, Texas. To find more about his practice, visit waco-criminal-attorney.com.

Input from Criminal Defense Attorney Walter Reaves:

Walter jumped on the questions I asked and elaborated on the entire concept of using digital and social media photos. Here is what he said:

“Given the way cell phones have taken control of all our lives, it’s not surprising that they are being used as evidence in criminal cases. For several years, the police have been obtaining cell tower location to place a suspect (or at least their phone) in a certain location. Evidence found on cell phones has also been used – for some reason, dope dealers seem to like taking pictures with their stash. And of course, there’s always text messages.

A new technique may be lifting fingerprints from phones. The process would utilize a picture on the phone of someone’s hand and fingers, and attempt to match that like you would a latent print developed at a crime scene. The process may be no different from what is being done now. Latent prints are placed on a card, and pictures are taken. The digital photos are what are used for comparison.

If a fingerprint on a cell phone is used, you can expect challenges from defense lawyers. The prosecutor will have to convince the court the process for making the comparison is reliable, which may be a problem.

For starters, there could be problems with manipulating the photos in order to get something to use for comparison. The photos will probably need to be enhanced in some way, and you can expect defense lawyers to challenge the way that is done. Some adjustment will have to be made for the photo itself, since no camera produces an exact representation of what it is capturing. Establishing the admissibility of the photo of the fingerprint will therefore have to be the first hurdle the State will have to meet.

Even if the State can establish the identification is reliable, I seriously doubt this is going to be a common practice. I can’t imagine many situations where it would be relevant. Maybe if someone is holding dope, and all you can see is their hand, the fingerprint could be used to establish possession. I can’t think of many other situations though. In most cases, you would think if a picture is being taken, you could identify who was in the picture. You also might have problems with identifying location, and time, if that’s important.

There will be an even bigger problem when you are trying to use the photograph to prove possession of a controlled substance. The problem is proving what the substance is. If you don’t have it, there’s no way to test; it could be baking soda just as easily as it could be cocaine.

So, it’s an interesting concept, but don’t expect it be coming to a courtroom near you anytime soon.”

Based on reading this information from Walter, I stand by my contention this is an investigative tool for law enforcement. However, such images are unlikely to be used as evidence in court. It seems there will be problems with relevance, reliability, and authenticity. These hurdles may in time be overcome as technology advances.

Input from Photographic Evidence Expert Witness Dr. James Ebert:

For a more in-depth understanding of this practice, I reached out to Experts.com member and expert witness Dr. James Ebert. Dr. Ebert is a forensic photogrammetrist who is regularly called to interpret and testify about photographic and mapped evidence in civil and criminal matters. You can learn more about Dr. Ebert’s expertise and practice by visiting his website ebert.com.

Dr. Ebert’s comments left me feeling behind the times when I heard about the use of digital photos as a law enforcement tool. Here is what he had to say:

“It has been widely known and discussed on the web for a decade or more that identifiable fingerprints can be recovered from photographs for good or bad purposes, given that the photos are of sufficient resolution, lighting, focus, and that enough of the fingerprint can be seen to allow a match to be attempted.  Faces published on the internet can, of course, also be identified through photo matching services like TinEye reverse image search, or facial recognition software.  Both fingerprints and faces can, for instance, be run on the FBI’s new Next Generation Identification system by law enforcement agencies around the country.  This does not insure false positive results as are common with all automated fingerprint or facial identifications.  I have never attempted to make identifications of fingerprints in my practice as a forensic photogrammetrist, but are certainly possible and they should be just as reliable as are those done with fingerprint or facial data collected in other ways.  I am often, however, called upon to do facial identifications from photographic evidence. Whether such fingerprints and facial identification are ethical clearly depends on whether they are done for ethical purposes.  Identification of possible criminals from fingerprints by law enforcement is an example of a good use of technologies, and if done for purposes like hacking or harassment it’s not.”

Based on Dr. Ebert’s comments, it appears this practice has been considered and possibly utilized for some time. As Dr. Ebert mentioned, there is potential for abuse in matters of hacking and harassment. I cannot speak for Walter, but I imagine he would think there is potential for abuse by law enforcement as well.

Technology is changing so rapidly that it is difficult to keep up with all the advancements. What we’re doing with this blog is trying to discover how technology impacts the criminal justice system. If you have any suggestions for future  posts on technological advancements in criminal or civil justice, please comment below.