Saturday, April 19, 2014

Advanced Criminal Profiling Workshop

Advanced Criminal Profiling: Investigative and Forensic Applications

6611 Boeing Drive
El Paso, Texas

December 15-18, 2014; 8am - 5:30pm, (M-Th)

The objective of this four (4) day course is to provide advanced instruction in the application of evidence based criminal profiling techniques (aka Behavioral Evidence Analysis) to unsolved criminal cases, with the anticipation of eventual courtroom testimony. Students will gain experience examining case material, interpreting behavioral evidence, and preparing written investigative and forensic reports.



1. Students will bring their own active or otherwise unresolved cases to the course and apply what they learn in order to complete a written threshold assessment or criminal profile. (Note: A case will be provided to those students unable to bring their own. Advanced instructor notification required.)

2. Students will be expected to complete a written exam on the final day of the course (the ABP Board Examination, which is a comprehensive examination covering advanced forensic science, victimology, crime scene analysis, and offender character inference issues). 

3. Successful completion of either written assessment and the exam will meet related requirements as described in the IAFC Criminal Profiling Certification Act. Those students that otherwise meet additional CPCA requirements will be eligible for IAFC Certification.

Students will be provided with a workbook containing an explanation of key concepts, a glossary of key terms and written forms for use in the completion of daily assignments. Students will be allowed to work in groups, on a single case, of no greater than three.

The course text is Criminal Profiling, 4th ed. It can be purchased at

Registration Costs & Information

Students and IAFC Members:                                                                         
- Attorney General/ Law Enforcement/ Military (register as students):        
Non-Student/ Non-IAFC Member (U.S.):                                                       

Click above links to register online, or contact for other rates that may apply.


Day 1 - Applied Crime Scene Investigation and Forensic Victimology

Crime Scene Investigation
-Investigator Reports
-Witness statements
-Medico-legal reports (e.g., autopsy)
-Toxicology report
-Crime lab reports (e.g., firearms, bloodstains, DNA)

Goal 1 - Establish threshold reconstruction of key events
Goal 2 - Establish what has been collected and tested
Goal 3 - Establish what is missing investigatively and forensically

Forensic Victimology
-Investigator Reports
-Witness statements
-Medico-legal reports (e.g., autopsy)
-Toxicology report
-Crime lab reports (e.g., firearms, bloodstains, DNA)

Goal 1 - Establish victim profile
Goal 2 - Establish victims lifestyle exposure
Goal 3 - Establish victim incident / situational exposure

Day 2 - Applied Crime Scene Analysis

-Investigator Reports
-Witness statements
-Medico-legal reports (e.g., autopsy)
-Toxicology report
-Crime lab reports (e.g., firearms, bloodstains, DNA)

Goal 1 - Establish offender modus operandi behavior
Goal 2 - Establish offender signature behavior

Day 3 - Applied Offender Profiling

- Results of Crime Scene Investigation
- Results of Forensic Victimological Analysis
- Results of Crime Analysis

Goal 1 - Establish primary/ secondary offender motives
Goal 2 - Establish offender knowledge, skills, and abilities re offense
Goal 3 - Establish offender knowledge, skills, and abilities re victim
Goal 4 - Establish offender knowledge, skills, and abilities re crime scene(s)

Day 4 - Assessments

1. Complete written Threshold Assessment or Criminal Profile (morning)
2. Complete Certification Exam (afternoon)

Friday, July 5, 2013

Criminal Profiling: Behavioral Evidence Analysis

Excerpt from: Criminal Profiling: Behavioral Evidence Analysis, 4th Ed., by Brent E. Turvey, PhD.

Behavioral Evidence Analysis: Goals and Purpose
Perhaps the most common misconception about criminal profiling is that its main purpose is to achieve a static, inflexible result, not unlike a clinical diagnosis. The result is then presumably applied to a crime or series of crimes and can then be used to suggest precisely whodunit. This is evidenced by the persistent yet inaccurate belief that there is an average psychological or behavioral pattern or profile that describes a typical serial murderer, a typical rapist, or even a typical crime scene.

This clinical view of profiling regards clusters of offender behavior, and subsequent penal classifications, as potential mental health disorders that can be diagnosed for the purposes of recommending treatment or delineating cause. It is a highly desirable position to take if one is a mental health practitioner. However, the goals of offender assessment and treatment are unrelated to the goals of criminal profiling. Clinicians have treatment goals—profilers have explicit investigative and forensic goals.

Humans learn, change, and grow. Humans are also affected by time, place, and each other. Therefore a deductively rendered criminal profile cannot be regarded as a static, fixed result that will hold true for all time. It must evolve and must become more refined as it is checked against new evidence and related cases over time. That is to say, when a new offense is committed, when a new attack occurs or a new body is located, and when new evidence is collected and analyzed, the integrity of the criminal profile must be reassessed. 

A deductively rendered profile learns. New information is not used to support the old profile, or to pigeonhole the offender, or to rationalize investigative assumptions. It is used to make a more complete and more accurate profile of the offender responsible for the crime(s) at hand.

Behavioral evidence analysis, therefore, should be viewed not as a process aimed at a fixed result, but as an ongoing, dynamic, critical, analytical process that examines offender behavior as it changes over time. It is a criminological effort, not a clinical one.

The first responsibility of the criminal profiler, as opposed to the treatment-oriented clinician, is fact finding in a criminal investigation for the purpose of serving justice. 

Note: It is worth noting that the process of criminal investigation starts from the moment that law enforcement responds to a crime scene, and does not end until that case is completely out of the criminal justice system. For some cases, especially those involving homicide, this may never happen. It must also be noted that there are criminal investigators working hard for both sides of the courtroom in any legal proceedings, civil or criminal.

The profiler serves the justice system. The clinician serves the client/patient. This is an important difference in terms of ethical obligations when considering the potential goals and purposes of behavioral evidence analysis.

With that onus in mind, a criminal investigation of any kind should start with the assumption that every human on the planet is a suspect. That is to say, the suspect set is universal. One of the purposes of BEA is to assist an investigation, at any phase, in moving from that universal set of suspect characteristics to a more discrete set of suspect characteristics. It cannot typically point to a specific person, or individuate one suspect from all others. It can, however, give insight into the general characteristics of the offender(s) responsible.

This type of insight can be used to educate an investigative effort, as well as attorneys, judges, and juries in a forensic context (e.g., criminal proceedings, civil proceedings, and public hearings).

Behavioral Evidence Analysis: Contexts

Behavioral evidence analysis has two separate but equal contexts, divided not by the method that is employed to arrive at conclusions, but rather by their divergent goals and priorities. Goals and priorities are dictated by a necessity that is dependent upon when, in a given case, a profiler’s skills are requested. The two time frames typically include the investigative phase, before a suspect has been arrested (or before a defendant is taken to court with a lawsuit), and and the trial phase, while a suspect is being tried for a crime (or put on trial for damages).

The investigative phase of a criminal case gets a lot of the media attention and is the primary focus of popular fiction on the subject of criminal profiling. When we think of a criminal profiler, we have been conditioned to think of unsolved serial murder cases, and of remote locations where teams of forensic scientists work to recover decaying human remains. Profilers are often characterized as being socially alienated individuals, deeply troubled by their own selfless insights into the minds of the unknown offenders that they are hunting.

This view presented by fiction and the media not only is completely skewed but also is only the first half of the equation.

The trial phase is the second half of the equation, and has received much less explicit attention not only in the media but in the published literature. Although it is equally important, it often lacks the romance and drama associated with high-profile serial cases, making it less marketable.

Investigative Phase
The investigative phase involves behavioral evidence analysis of the patterns of unknown perpetrators of known crimes. Criminal profilers tend to be called in to extremely violent, sexual and/or predatory cases when witness testimony, confessions, and/or physical evidence have not been enough to move the investigation forward. The decision to call a profiler into an investigation is typically reactive, with agencies waiting months or even years (if at all) due to a lack of access to a profiler, or to a lack of understanding of what criminal profiling is and how it can aid an investigation.

Primary Goals

-Evaluating the nature and value of forensic and behavioral evidence in a particular crime or series of related crimes;

- Reducing the viable suspect pool in a criminal investigation;

- Prioritizing the investigation into remaining suspects;

- Linkage of potentially related crimes by identifying crime scene indicators and behavior patterns (i.e., modus operandi and signature);

- Assessment of the potential for escalation of nuisance criminal behavior to more serious or more violent crimes (i.e., harassment, stalking, voyeurism);

- Providing investigators with investigatively relevant leads and strategies;

- Helping keep the overall investigation on track and undistracted by offering fresh and unbiased insights;

- Developing communication, interview, or interrogation strategies when dealing with suspects

Trial Phase
The trial phase of criminal profiling involves behavioral evidence analysis of known crimes for which there is a suspect or a defendant (sometimes a convicted defendant). It takes place in the preparation for hearings, trials, and post-conviction proceedings. Guilt, penalty, and appeal phases of trial are all appropriate times to use profiling techniques, depending on the evidence at issue.

Primary Goals

- Evaluating the nature and value of forensic and behavioral evidence to a particular crime or series of related crimes;

- Helping to develop insight into offender fantasy and motivations;

- Developing insight into offender motive and intent before, during, and after the commission of a crime (i.e., levels of planning, evidence of remorse, precautionary acts, etc.);

- Linkage of potentially related crimes by identifying crime scene indicators and behavior patterns (i.e., modus operandi and signature)

Brent E. Turvey, MS - Forensic Science; PhD - Criminology
Author of:

Turvey, B. (2011) Criminal Profiling, 4th Ed., London: Elsevier Science

Turvey B. (2013) Forensic Fraud, San Diego: Elsevier Science

Savino, J. & Turvey, B. (2011) Rape Investigation Handbook, 2nd Ed., San Diego: Elsevier Science

Thursday, June 27, 2013

IAFC Board of Directors: Criminal Profiling Professional Certification Act ratified

Modern criminal profiling owes itself to a diverse history. Researchers have determined that is grounded in the study of crime and criminal behavior (criminology); the study of mental health and illness (psychology and psychiatry); and the examination of physical evidence (the forensic sciences). However, despite its many forms, it has always involved the inference of criminal characteristics for investigative and judicial purposes. 

The reasoning used to support a given profile, however, has not always been consistent. It has ranged from a basis in statistical argumentation, to examining specific criminal behaviors, to subjective intuitive opinions based on personal belief and experience. In other words, profiling methods have only ever been as informed and accurate as the professionals behind them.

The variety of profiling methods used around the world, across agencies and analysts, has resulted in a state of professional confusion. Profilers are often poorly educated in the forensic and behavioral sciences (if at all), and consequently they are confused about who they are and where they fit within the criminal justice system. Other criminal justice professionals recognize and are confused about the same things, resulting in more than a little skepticism and even animosity. The media adds to myth by portraying profilers as supercops; and the general public often views profilers as a more specialized form of psychic. Ultimately, many inept and uneducated profilers are benefiting from this lack of professional cohesion and the ignorant misperceptions it allows to persist - and the justice system is being duped.

If criminal profilers are to be taken seriously in the twenty-first century, as professional operatives with substantive contributions to offer the justice system, then there are areas in which reforms need to be made. Education and training must be the first.
In 1998, The Academy of Behavioral Profiling (ABP) was formed to address this concern. It’s first meeting was held in March of 1999, in Monterey, California. In 2009, the ABP became The International Association of Forensic Criminologists (IAFC). Those who participate in this organization are determined to build something meaningful and legitimate within the profiling community. A multi-disciplinary effort comprised of forensic, behavioral, and investigative professionals, it has developed the first professional code of ethics for criminal profilers, the first written criminal profiling guidelines, and the first profiling general knowledge exam (PGKE).

Earlier this month, the IAFC also passed the Criminal Profiler Professional Certification Act (CPPCA) of 2013. It is based on the body of literature developed by IAFC members since 1999, and is intended to facilitate training integrity across agencies and jurisdictions.

As explained by Det. John J. Baeza, a retired sex crimes investigator formerly with the NYPD’s Manhattan Special Victim Squad, and also a founding member of the ABP: “The new certification act developed and ratified by the IAFC is a much needed and welcome development in the field of Forensic Criminology. Upon completing the process successfully, IAFC members will be conferred by the ABP Board of Examiners with the designation of Diplomate-ABP, the highest credential for criminal profilers within the organization, the United States, and internationally.” 

Criminal Profiling, 4th Ed.
Another founding member is Brent Turvey. He holds an MS in Forensic Science, a PhD in Criminology, and is the author of Criminal Profiling: An Introduction to Behavioral Evidence Analysis, currently in its 4th edition. He makes the following observations: “From news coverage of major cases to court proceedings, criminal profilers can be found giving their opinions. Often these are accepted based on trust and even a little ignorance, without any real scrutiny of professional credentials. But a close look at even those from federal agencies reveals an absence of relevant education. Profilers can often be found with no formal education, online degrees from diploma mills, or degrees in subjects such as music and animal physiology. Many will outright lie about their degrees and experience. Frankly, it’s professionally embarrassing, or at least it should be.” The CPPCA, Dr. Turvey argues, is necessary to cleave the qualified professional from those without actual credentials, those who simply hold a job title, and those who perform research without doing any casework. 

Dr. Shawn Mikulay, a PhD level psychologist and the current Vice-President of the IAFC, is in agreement. He warns that: “As the field of forensic criminology and criminal profiling becomes increasingly accepted by the courts, it is critical a standard be put forth to identify those individuals who have been appropriately trained, educated, and mentored. With an increasing awareness of wrongful conviction, practitioners need to demonstrate that they have the ability to do their job competently. They also need to demonstrate that they understand and maintain the ethical standards to do it correctly.” The CPPA, Dr. Mikulay argues, is a major step towards accomplishing this.

Dr. Stan Crowder, a retired U.S. Army Military Police Colonel and former Chief of Investigations for the Inspector General of Georgia, is the current President of the IAFC. He made the following statement: “The Diplomate status afforded to IAFC members by the CPPA is designed to reveal the knowledge, skills, and abilities of hard working, evidence-based investigators. Not only does the credential require higher education, experience, and tenacity of purpose, it requires proofs of ability, an understanding of the scientific method, and a peer-reviewed process that rivals intensive academic gauntlets.” Dr. Crowder, unimpressed with the phony credentials and weak training requirements that mark many of those in government service, went on to observe: “The bottom line is: this credential cannot be purchased; it must be earned via intensive learning, proven ability, and peer approved reviews.”

For More Info...
The Diplomate credential ratified in Criminal Profiler Professional Certification Act is exclusively available to members of the IAFC. The entire Act can be found online at: their are profilers hard at work towards earning this credential in the United States, Canada, Mexico, and Portugal.

For more information, visit The International Association of Forensic Criminologists website at:

Wednesday, May 15, 2013

ECC - Crime Scene Analysis & Criminal Profiling Seminar, May 2013

Forensic Solutions, LLC and the International Association of Forensic Criminologists are pleased to sponsor this two day training event, in conjunction with Elgin Community College, next week.

This is a two (2) day session where students will learn theory and practice through the structured examination of case study material. The first day will involve the theory and practice of an holistic approach to crime reconstruction. The second day will involve the theory and practice of crime scene analysis. Each day will culminate in group work with actual case material.

This workshop is open to the public, and is strongly recommended for students and professionals who are working or studying in areas related to:

  • Criminology
  • Criminal Investigation
  • Criminal Justice
  • Forensic Nursing
  • Forensic Science
  • Law Enforcement
  • Legal studies
  • Mental Health/ Counseling
  • Psychology
  • Sociology
  • Women's Studies
  • Victimology

Elgin Community College
1700 Spartan Drive
Elgin, Illinois 60134

ECC Students:                    

$35 USD

Non-ECC Students:            
$60 USD

Law Enforcement/

$95 USD 

Non-Student/ Public:           
$115 USD 

May 23-24, 2013
9:00AM - 5:00PM Daily

Brent Turvey, PhD
Email: bturvey@forensic-science.comPhone: 907-738-5121

Shawn Mikulay, PhD
Phone: 847-214-7963

Those interested in registering for this workshop may pay by check, money order, or Visa/ MC.
 ECC students can concurrently enroll in PSY220.100 for course credit. See or contact Shawn Mikulay ( for more information.

Check or Money Order
Make all checks or international money orders payable to Forensic Solutions, LLC in US Dollars. Also, provide your name, employment/ student information, and contact information including phone and email so that we can contact you and send updates.

Mail to:
ECC Seminar c/o
Forensic Solutions, LLC
P.O. Box 2175
Sitka, Alaska 99835 

Visa/ MC
Click on the appropriate link below.
ECC Students:                 $35 USDREGISTER NOW!

Non-ECC Students:                       $60 USD

Law Enforcement/ Government:  $95 USD

Non-Student/ Public:                     $115 USD


Brent E. Turvey, Ph.D.
Forensic Scientist/ Criminal Profiler 

Brent E. Turvey holds a Bachelor of Science in Psychology, with an emphasis on Forensic Psychology, and an additional Bachelor of Science in History. He went on to receive his Masters of Science in Forensic Science after studying at the University of New Haven, in West Haven, Connecticut. He also holds a Ph.D. in Criminology from Bond University.

Since graduating in 1996, Brent has consulted with many government agencies, law enforcement agencies, and private attorneys in the United States, Australia, China, Canada, Barbados, Korea and Scotland on a range of rapes, homicides, and serial/ multiple rape/ death cases, as a forensic scientist and criminal profiler. This includes cases under investigation, as well as those going to trial. He has also been court qualified as a forensic expert in the areas of criminal profiling, forensic science, victimology, and crime reconstruction, providing expert examinations and courtroom testimony in legal jurisdictions throughout the United states for the last 17 years.

He is the author of Criminal Profiling: An Introduction to Behavioral Evidence Analysis, 1st, 2nd , 3rd, and 4th Ed. (1999, 2002, 2008, 2011); and co-author of Rape Investigation Handbook, 1st and 2nd Ed. (2004, 2011); Crime Reconstruction, 1st and 2nd Ed. (2006, 2011); and Forensic Victimology (2009) - all with Elsevier Science.

Brent is currently a full partner, Forensic Scientist, Criminal Profiler, and Instructor with Forensic Solutions, LLC (, as well as an Adjunct Professor in the Department of Sociology and Justice Studies at Oklahoma City University. He is also the Secretary of the Academy of Behavioral Profiling, as well as a member of their board of directors.

Shawn Mikulay, PhD
Professor of Psychology

Dr. Shawn Mikulay (pictured right) is a Professor of Psychology at Elgin Community College in Elgin, Illinois where he teaches coursework in general, forensic, developmental, and experimental psychology, human sexuality, and criminal profiling. Dr. Mikulay has been with Elgin Community College since 1995.

Dr. Mikulay received his Doctorate of Philosophy in Psychology from Northern Illinois University (1998). He received his Master of Arts in Psychology (1995) and Master of Science in Industrial Management (1996). During graduate school, he taught as an adjunct instructor at Concordia University, Kishwaukee College, Waubonsee Community College, and Elgin Community College.

His research has been published in Genetic, Social, & General Psychology Monographs, Educational & Psychological Measurement, and the Journal of Organizational Behavior.

He is currently the vice-president of the International Association of Forensic Criminologists.

Dr. Mikulay's areas of research and expertise include workplace deviance, forensic victimology, behavioral analysis, offender modus operandi, and offender signature behavior.

Tuesday, August 23, 2011

Devil’s Deal: (Mis)Understanding the Alford Pleas from the ‘West Memphis 3’

In 1994, Damien Echols, Jason Baldwin and Jessie Misskelley Jr. (known as the West Memphis 3), were convicted of murdering three 8-year-old boys: Stevie Branch, Michael Moore and Christopher Byers. Damien, tried separately from the other two defendants, received the death penalty. Jessie received life plus 20 years and Jason received life. Throughout the trials, they maintained their absolute innocence.

However, this was not a typical investigation and prosecution. There was sparse funding for the defense during the original trials, and the evidence against the defendants was not just circumstantial but deeply flawed. Other compounding factors included: ignorant/ untrained law enforcement investigators, a phony set of false confessions achieved by dubious means and immediately recanted, inflammatory pretrial publicity against the defendants regarding phony and contrived evidence of satanic rituals, a hostile community (with a lack of venue change), and inappropriately close relationships between prosecutors, the trial judge, and defense attorneys. To say nothing of the observation that the defense attorneys were not truly murder experienced or death qualified to the level that one would expect (if at all).


This author became involved in the case during post-conviction review. By a twist of fate, I was the first forensic scientist to be hired by the defense to examine the evidence, evaluate the investigation, and reconstruct the crime – ultimately going so far as to offer a profile of the offender responsible (in response to under-informed and generally inaccurate profile prepared by the FBI’s BAU, which was at the time supervised by John Douglas). I found some pertinent things that had been missed and pointed the defense in some important new directions. This won me few friends in Arkansas, where the West Memphis Police still keep a special fire of hatred alive for me (and others that have exposed their lack of competence and professionalism, I expect). This, however, comes with working the evidence objectively instead of being governed by ones emotions. And it’s why forensic experts, with no dog in the fight, are necessary in every legal proceeding that requires evidence interpretation.

In late October of 1998, I testified under oath to my findings regarding the biased and inept investigation conducted by the police, the flawed conclusions that had been reached about the evidence, and uninformed theories of the case that had been allowed to be put before the jury without competent refutation. This along with other forensic experts for the defense (a forensic pathologist and a forensic Odontologist), as part of a Rule 37 hearing to establish that the West Memphis 3 had suffered from Ineffective Assistance of Counsel (IAC), and therefore should be given a new trial with more adequate representation.

This attempt at a new trial quickly failed. None of us on the ground in West Memphis back in 1998 were surprised. The same judge who appointed defense attorneys, denied funding, and presided over the original trials (David Burnett), also made a point of presiding over every post-conviction hearing. In grading the quality of his own work, it was a foregone conclusion that Judge Burnett would never agree that he had acted improperly, denied vital funding to the defense, or appointed unqualified defense attorneys to represent the defendants.

It’s also worth noting that this 1998 post-conviction hearing, and the events leading up to it, were partially documented in the second of two documentary films about the case by Joe Berlinger and Bruce Sinofsky – Paradise Lost 2: Revelations (both films are being re-aired by HBO next week [August 29th and 30th, 2011, respectivel], and third film is soon to be released). An overview of the case and the evidence can be found at and My report in the case was also published in the first edition of my textbook, Criminal Profiling, now it it’s 4th edition.

New Evidence, New Judge, and a Devil’s Deal

After 10 years of investigation, with multiple state’s witnesses having recanted, with new DNA testing that points to other suspects, and with a completely new legal team at work, the West Memphis 3 were set free on August 19, 2011. The circumstances that lead up to their release, and the devil’s deal that was struck with prosecutors to gain their freedom, were a sudden shock to the system for all of those caught unprepared. Myself included.

This deal came about because a new judge, David Laser, was presiding over a hearing set for this coming December regarding all of the newly discovered evidence in the case. Scott Ellington (pictured), prosecuting attorney for the 2nd Judicial District, has made clear that he believes Judge Laser would have overturned the convictions and granted the West Memphis 3 new trials. Moreover, that those trials would likely result in acquittals for all of the defendants (Jared, 2011). The fear of this eventuality, and the cost of wrongful conviction lawsuits, weighed heavily in the decision to make a plea deal before the December hearing, Ellington explained (Jared, 2011).

The devil’s deal was this: all three defendants would have their convictions vacated so long as they each agreed to immediately enter an “Alford Plea”, at which point they would be sentenced to time served and released after 18 years of imprisonment.

This unorthodox development has many asking an important question – what’s an Alford Plea? It also has some ignoring this difficult legal concept and merely stating that the West Memphis 3 have pleaded guilty in exchange for release. Makes for a better sound-byte, though wholly misleading. Having worked as a forensic scientist and testified in courtrooms around the United States for the last 15 years, I’ve encountered them only a few times. Each use was different. Some discussion is warranted, without which it is difficult to understand the kind of justice that has been achieved in this case, if any.

Alford Plea

A useful history of the Alford plea is offered in Redlich and Ozdogru (2009; pp.468-469):

In brief, Alford pleas allow defendants who do not wish to risk their fates at trial to plead guilty while simultaneously asserting their innocence.

In 1963, Henry C. Alford was accused of first-degree murder in North Carolina. Alford was an African American man in the South at the height of the civil rights movement. His lawyer, who was just a few years out of law school at the time, recently stated it was a case fraught with racial overtones (Barksdale, 2007).

Alford went to visit a prostitute at a drink house and allegedly got into a fight with Nathaniel Young. Young was later killed from a shotgun blast. Despite Alford’s claims of innocence, there was seemingly strong evidence of his guilt. Specifically, although there was no eyewitness to the crime, there were witnesses who claimed that shortly before the murder, Alford returned home to get his gun, stated he was going to kill the victim, and then upon returning home, stated that he carried out the killing. Alford also had a lengthy criminal history, including a prior conviction for murder.

At his arraignment, Alford was expected to plead guilty but then testified that he did not kill Young and was pleading guilty only to avoid the death penalty. Specifically, Alford stated, ‘‘I pleaded guilty on second degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.’’

After some discussion that Alford indeed spoke with his attorney and family members about his decision to plead and that he had been informed of his rights, the following exchange occurred between Alford and his attorney:

Attorney: ‘‘And you authorized me to tender a plea of guilty to second degree murder before the court?’’

Alford: ‘‘Yes, sir.’’

Attorney: ‘‘And in doing that, that you have again affirmed your decision on that point?’’

Alford: ‘‘Well, I’m still pleading that you all got me to plead guilty. I plead the other way, circumstantial evidence; that the jury will prosecute me on - on the second. You told me to plead guilty, right. I don’t - I’m not guilty but I plead guilty.’’

According to published news reports at the time, Alford was unable to read or write (Barksdale, 2007). Despite his claims of innocence, the trial judge allowed Alford to enter a guilty plea and sentenced him to the maximum 30 years for second degree murder. Alford then repeatedly sought relief. Alford’s conviction was eventually overturned by the Fourth Circuit Court of Appeals, but then re-affirmed in the now famous Supreme Court decision, North Carolina v. Alford, U.S. 400 25 (1970). In this six to three decision, the court recognized that while there are usually two components of pleading guilty—the waiver of the right to a trial and the admission of guilt—the latter is not a constitutional requisite to imposing a criminal sanction. In his dissent, Justice Brennan remarked that Alford was ‘‘so gripped by fear of the death penalty that his decision to plead guilty was not voluntary but was the product of duress as much so as choice reflecting physical coercion’’ (p. 40). As a result of this landmark decision, defendants can now enter ‘‘Alford pleas’’ (sometimes called ‘‘best-interest pleas’’ or, in New York, Serrano pleas) when they claim to be innocent but perceive their chances for acquittal at trial to be too much of a risk. Alford died in prison in 1975.

According to the U.S. Supreme Court’s ruling in North Carolina v. Alford (1970): "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." The Alford plea is intended as a unique sub-class of guilty plea, where a defendant maintains their innocence while simultaneously admitting that the state might be able to convict them at trial. In doing so, the defendant accepts the penalties associated with an admission of guilt while declaring their innocence. In other words, “pleading guilty without admitting factual guilt,” (Gooch, 2010; p.1757). By contrast, a stronger sub-class of the guilty plea, wherein the court levies legal penalties associated with guilt and the defendant admits neither guilt nor innocence, is the nolo or no contest plea. These sub-pleas are not, by any stretch, the same as a straightforward admission of guilt, and suggesting otherwise conceals important factual realities.

It is important to recall at this point that scientific fact and legal truths are not at all the same thing, governed by very different rules and realities (Thornton and Peterson, 2002). Scientific fact refers to information and events that have been established based on a broad factual record to a reasonable degree of objective scientific certainty by scientists using the scientific method. Legal truth refers to information and events that have been established by a court ruling based on a narrow factual record—at the discretion of a judge and/or jury (Turvey et al, 2010). This is why factually innocent people can get convicted of crimes they did not commit, and the factually guilty can avoid being convicted, depending on what is presented in courtroom and how it is perceived.

A Strong Factual Basis

A distinguishing feature of the Alford Plea is the requirement of a strong factual basis for accepting the legal consequences of guilt. In other words, as explained in Natapoff (2008; p.986):

The Alford court noted that the guilty plea in that case was acceptable in part because the trial court had before it a "strong factual basis for the plea" and "telling evidence" of guilt." In other words, even where a defendant declines to invoke the adversarial process in order to contest the government's information, waiver is not enough: guilt still requires some supporting information.

The judge, in accepting an Alford Plea, is required to ensure that such a factual basis exists. As explained in Redlich and Ozdogru (2009; p.470):

In theory, courts are supposed to find a sufficient factual basis of guilt before allowing the plea. Although Alford pleas are guilty pleas, with traditional guilty pleas the admission of guilt via the plea itself or the in-court allocution serves as the factual basis. With Alford pleas, however, because the person insists on innocence, the judge must determine there is sufficient evidence of guilt in order to allow the plea. However, as Shipley (1987) argues, ‘sufficient’ was never defined, guidelines were never forthcoming, and as a result, the pleas are accepted—or not accepted—for a variety of reasons, with differential standards applied. Further, the judge often relies on a summary of the evidence provided only by the state without a similar summary provided by the defense (Shipley, 1987).

This would suggest that while the requirement exists, it is weak in practice because of the necessity of the Alford plea in making certain expedient plea deals.

Alford and the West Memphis 3

The plea deal in this case has been described as the releasing of hostages in exchange for immunity (from civil wrongful conviction lawsuits). This is an accurate analogy in my view. And questions remain as to whether an Alford plea makes sense for these defendants, under these circumstances.

From the defendants’ perspectives, the answer must be an unwavering “yes”. Any improvement in their circumstances at all is an order of magnitude greater than anything that has happened, from a legal perspective, in the past 18 years. Being released and free to live out their lives while still relatively young is a condition that I’m sure they would be unable to put a price on. It also allows them to proclaim their innocence and continue legal battles while not constrained by incarceration.

From the perspective of the prosecution, it also makes sense. It allows them to claim victory and declare the legal guilt of the defendants without admitting to any of the wrongdoing that the case is now known for. And this is where we run into problems.

  1. Alford requires a strong factual basis for guilt to be provided by the prosecution. Given that the states key witnesses have recanted at this point, that no physical evidence connects the defendants with the crime, and that strong physical evidence suggests other suspects, this Alford requirement is not met. This is actually not my opinion, but the opinion of Scott Ellington, prosecuting attorney for the 2nd Judicial District. He made it very clear in his statement to the press that the lack of evidence and witnesses made acquittals a very real possibility – which is why he agreed to the Alford plea deal.
  1. Scott Ellingson also made it clear that part of the reason for the plea deal was to avoid having to make massive payouts that would necessarily result from wrongful conviction lawsuits. He even started to do the math in his press conference, counting into the tens of millions. He even stated, explicitly, this decision was based on the math. This would seem to indicate a complete lack of confidence in the state’s case.
  1. Despite acknowledging the utter absence of evidence of guilt (other than the ability to secure a conviction when the deck is stacked), and that the convictions were likely going to be overturned, Mr. Ellingson, the States’ Attorney General, and now the governor of Arkansas have all made clear that they stand behind the convictions and that no further inquiry is required. This position is at odds with the clearly stated reasons for making the deal in the first place – fear of lawsuits and cost (as so eloquently stated by Peter Jackson in his response to the verdicts: “So the West Memphis three are finally released”). And with the anticipated findings of the Judge Laser.
  1. Without acknowledging the problems that led to the wrongful convictions of these individuals, reforms will not be possible and further harm may be done by those that have been protected by this deal. And there are many.

It is easy to understand the state’s internally conflicted positions as an example of cognitive bias reified, (as suggested in an article by UCLA Law Professor Jennifer Mnookin; see: The 'West Memphis Three' and combating cognitive biases). However, this makes their lack of logic no less acceptable. In this case, justice has indeed been negotiated; by extorting Alford pleas from the defendants in exchange for their freedom.

We should expect more from our justice system. In point of fact, we need more from our justice system. Otherwise, we teach our legal professionals and our politicians that justice can be negotiated, and that it is better to save face than admit wrong, and let actual criminals escape justice. If those responsible for this plea actually believe that they have let guilty defendants walk free, then it is an affront to justice. The same is true if they are simply making a deal to save face. In either case, it would seem that they are generally unfit for public service.

So from the perspectives of criminal justice practitioners and the general public, this agreement should be unacceptable – not just in terms of what an Alford plea legally requires, but what we require from our public servants as well. We should, as they say, consider not just what we kill with these kinds of agreements, but also what we let live.


Barksdale, T. (2007) “Piedmont profile–(Not) guilty: Lawyer in case that led to Alford plea says he worried about later questions,” Winston Salem Journal; Retrieved June 5, 2007 from

Gooch, A. (2010) “Admitting Guilt by Professing Innocence: When Sentence Enhancements Based on Alford,” Vanderbilt Law Review, 63(6); pp.1755-1792.

Jared, G. (2011) “Prosecutor: ‘We made right call’ in WM3 case,” Paragould Daily Press, August 23.

Natapoff, A. (2008) “Deregulating Guilt: The Information Culture of the Criminal System,” Cardozo Law Review, 30(3); pp.965-1021.

North Carolina v. Alford (1970) 400 U.S. 25.

Redlich, A., and Ozdogru, A. (2009) “Alford Pleas in the Age of Innocence,” Behavioral Sciences and the Law, Vol. 27; pp.467-488.

Shipley, C. J. (1987) “The Alford plea: A necessary but unpredictable tool for the criminal defendant,” Iowa Law Review, 72, 1063–1089.

Thornton, J. and Peterson, J. (2002) “The General Assumptions and Rationale of Forensic Identification,” In: Faigman, D. L., Kaye, D. H., Saks, M. J. and Sanders, J. (Eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, vol. 3, St. Paul, MN: West Publishing Co.

Turvey, B., Ferguson, C. and Petherick, W. (2010) Forensic Criminology, San Diego: Elsevier Science.

Saturday, August 20, 2011

Linkage Analysis: Ruling Cites Needs For Foundational Expert Testimony

Suspected serial crimes are a challenge to those involved in their investigation and prosecution – whether they involve burglary, robbery, domestic violence, sexual assault, or homicide. Referred to in some jurisdictions as “pattern crimes”, there are multiple investigative hurdles to clear when working to identify any cases that might be connected. These can include an ongoing lack of communication between and within agencies, professional rivalries, and investigative apathy or ineptitude. And of course the politics that tend to complicate and exacerbate all of these. Then there is the issue of training: on top of everything else that is working against them, investigators must have an advanced understanding of physical and behavioral evidence, in order to comprehend whether there is a sufficient amount to suggest or confirm a potential link between cases (see Savino & Turvey, 2011). None of this simple, and none of it comes without hard work.

When enough evidence has been gathered to identify cases that are linked, and then to subsequently arrest those believed to be responsible, the next hurdles are going to arise in court. There are in fact laws that govern the admissibility of multiple, prior and uncharged crimes as evidence. How the courts apply these laws will be, in part, a function of how thorough the criminal investigation has been with respect to establishing the physical and behavioral evidence across the purportedly linked cases. It will also be a function of the soundness of arguments made by attorneys on either side with respect to the strength of that linkage.

As will be discussed, among the best mechanisms for developing arguments regarding evidence of case linkage, or a lack thereof, in light of inevitable legal questions regarding admissibility, is an independent forensic examination of the evidence referred to as a linkage analysis.

The recently decided appellate case against an accused rapist (New Jersey v. Bruce Sterling, 2011), overturned in part due to improperly joined cases and an improperly admitted prior conviction, will be used to highlight these issues. In this case, the Appellate Division of the Superior Court of New Jersey held that prosecutors could not argue that joined cases were linked for courtroom purposes without the benefit of expert analysis and testimony.

Some background on the case law is necessary.


Many states have laws that disallow the joining of multiple crimes charged against a defendant unless they are part of the same crime or “transaction”. In other words, defendants must be tried for each of their crimes separately unless those crimes are somehow connected together in their commission by a common scheme or plan. Joining them together is understood to create great prejudice against the defendant, and that must be avoided to allow for a clean and unbiased conviction.

As explained in Ruben (2009):

In deciding whether offenses have a sufficient factual nexus to be joined for trial, courts have considered such factors as:

• temporal proximity;

• geographical proximity;

• similarities among victims;

• whether the same evidence or witnesses will be used to prove both offenses;

• whether the offenses are similar in type or circumstance;

• whether the defendant had a similar motive to commit both offenses...

In other words, whether a similar or even distinctive modus operandi was involved in the commission of the crimes under consideration. As explained in Turvey (20011; p.334): “Modus operandi (MO) is a Latin term that means method of operating. It refers to the manner in which a crime has been committed”.

Case Example: Anthony Flye

Consider the case of Anthony Flye. He was accused of marrying a woman in 2004, engaging in an ongoing sexual relationship her daughter (who was under 14), and sexually assaulting their disabled grandmother. Subsequent to Mr. Flye’s arrest in February of 2008, he escaped from a hospital bathroom while in the custody of sheriff's deputies, but was later recaptured (O’Connor, 2010). As explained in Pateakos (2009):

Accused rapist Anthony Flye’s defense attorneys won a motion Tuesday that will allow Flye to have three separate trials for his charges.

Flye, of 18 Rowley St. in Swansea and 9 Brinda Lane of Nantucket, is currently being held at the Plymouth House of Correction on $1 million bail while facing charges of rape, indecent assault and battery on a disabled person, assault and battery on a disabled person, rape of a child under the age of 16, enticing a child under the age of 16, incest, aggravated rape and indecent assault and battery.

Flye also faces charges in Rhode Island, which will be dealt with only after his Massachusetts trials are complete, A Rhode Island grand jury indicted him last year on four counts of first-degree child molestation and two counts of second-degree child molestation.

Flye, who worked in the construction trade and had a criminal record dating back to his juvenile days, gained national attention for his March 26, 2008, escape from a hospital’s emergency room bathroom while a court officer waited outside. Featured on the Web site of Fox's hit series “America’s Most Wanted,” Flye was on the loose for 13 days before being found on Route 6 in Westport with $800 in cash.

The new motion to sever cases, which Superior Court Judge Richard Moses approved, will allow three separate trials for the rape and indecent assault and battery on a disabled person, rape of a child under the age of 16 and escape charges.

In this case, the court agreed that these crimes should not be tried together, given the clear differences regarding the nature of the allegations (e.g., victim age, the ongoing nature of the child rape). Specifically, the court agreed that trying them together would be more prejudicial to Mr. Flye, and that each crime should be tried on its own merits given the lack of physical evidence available. Mr. Flye was subsequently convicted of child rape and incest in June of 2010, but was acquitted of charges related to assaulting the grandmother.

Examples of case law governing the joining of multiple crimes charged against a defendant:

1. California: California Penal Code section 954 provides that “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.”

Under California Penal Code section 790 of the Evidence Code, multiple homicides committed by the same offender in multiple counties may be consolidated for trial in a single county (thus introducing a highly prejudicial element) if it can be shown that the crimes are properly joinable, and that they are connected together in their commission. CA PC 790 is also referred to by some as the “serial killer statute”.

2. Florida: As explained in Hart v. Florida (2011): “the joinder provision of rule 3.150(a)… provides that “[t]wo or more offenses that are triable in the same court may be charged in the same indictment or information when the offenses are based on the same act or transaction or on 2 or more connected acts or transactions.” (Emphasis added.) However, where joinder is concerned, our supreme court has cautioned that “interests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant's right to a fair determination of guilt or innocence.” Garcia v. State, 568 So.2d 896, 898 (Fla.1990) (citing State v. Williams, 453 So.2d 824, 825 (Fla.1984)). See also Ellis v. State, 622 So.2d 991, 999 (Fla.1993) (quoting Wright v. State, 586 So.2d 1024, 1030 (Fla.1991), which, in turn, quoted Garcia ); Crossley v. State, 596 So.2d 447, 449–50 (Fla.1992) (holding that while “[t]he justifications for the consolidation of charges are convenience and the preservation of the courts' valuable resources practicality and efficiency cannot outweigh the defendant's right to a fair trial,” citing State v. Vazquez, 419 So.2d 1088 (Fla.1982)).”

3. New York: As provided in NY Code - Section 311.6: Joinder, severance and consolidation:1. Two crimes are joinable and may be included as separate counts in the same petition when: (a) they are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two; or (b) even though based upon different criminal transactions, such crimes, or the criminal transactions underlying them, are of such nature that either proof of the first crime would be material and admissible as evidence in chief upon a fact-finding hearing of the second, or proof of the second would be material and admissible as evidence in chief upon a fact-finding hearing of the first; or (c) even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such crimes are defined by the same or similar statutory provisions and consequently are the same or similar in law. 2. "Criminal transaction" means conduct which establishes at least one crime, and which is comprised of two or more or a group of acts either: (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident; or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.”

4. North Carolina: As explained in Ruben (2009): “The key question in determining whether joinder is appropriate is whether there is a transactional connection, or a factual nexus, among the charged offenses. G.S. 15A-926(a) provides that offenses, whether felonies, misdemeanors or both, may be joined for trial if the offenses are based on “the same act or transaction,” or “a series of acts or transactions connected together or constituting parts of a single scheme or plan.”

…Offenses that are not “joinable” as defined by G.S. 15A-926 should be tried separately. See State v. Corbett, 309 N.C. 382 (1983). Even joinable offenses may be severed for trial if joinder would impair the defendant’s ability to present a defense. See infra § 6.1C; State v. Greene, 294 N.C. 418 (1978).”


For similar reasons, most states have laws that are designed to prevent evidence of prior convictions, and uncharged crimes where the defendant is a suspect, from being introduced as evidence of a defendant’s propensity to commit a particular type of crime. Referred to as “bad act”, “propensity” or “character” evidence, it understood to be highly prejudicial against the defendant. In fact, the admissibility of prior bad acts is so inflammatory that it can essentially predetermine the outcome of case before it even sees a jury. Its introduction is therefore hard sought by the prosecution and must be hard fought against by the defense.

Examples of case law governing the admissibility of prior and uncharged crimes include:

1. California: California Penal Code section 1108 was recently added to the Evidence Code to provide a specific exception to 1101 in sex crimes cases where a person is charged with a sexual offense and the prosecution wants to offer evidence of prior or other sexual offenses to show a propensity to commit this offense, or the charged offense. This is a special exception to single out "sexual predators".

According to Ewoldt and Balcom, "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity." People v. Ewoldt, 867 P.2d 757 (Cal. 1994); People v. Balcom, 867 P.2d 777 (Cal. 1994). Furthermore, "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. 'The pattern and the characteristics of the crimes must be so unusual and distinctive as to be like a signature.' (McCormick on Evidence, 4ht Ed., 1992)" (People v. Ewoldt (1994) 7 Cal.4th 380).

2. New York: As explained in New York v. Gantz (1984): “Although testimony of uncharged crimes is generally not admissible (see People v Ventimiglia, 52 N.Y.2d 350, 359-360), an exception may be made where a narrative description of the crimes charged necessitates mention of the uncharged criminal conduct, as when the two events are inextricably interwoven (see People v Vails, 43 N.Y.2d 364, 368; People v Willis, 52 A.D.2d 972).”

See also New York v. Roland B. Molineux (1901).

3. South Carolina: As explained in South Carolina v. Wallace (2009): “Evidence of other bad acts is not admissible to prove the defendant’s guilt except to show motive, identity, existence of a common scheme or plan, absence of mistake or accident, or intent. Rule 404(b), SCRE; see also State v. Lyle, 125 S.C. 406, 11 S.E. 803 (1923)…

Once bad act evidence is found admissible under Rule 404(b), the trial court must then conduct the prejudice analysis required by Rule 403, SCRE. The probative value of evidence falling within one of the Rule 404(b) exceptions must substantially outweigh the danger of unfair prejudice to the defendant. State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007).”


As should now be clear, whether seeking to join multiple offenses or introduce prior bad acts, the problem with allowing this type of behavioral evidence is that it is highly prejudicial. The threshold for admissibility therefore requires the “greatest degree of similarity” between cases, and extremely careful analysis by everyone involved. However, not everyone understands these thresholds or their limitations. Educating oneself, and the court, is vital.

The admissibility or exclusion of multiple, prior and uncharged crimes depends on pre-existing case law and its comprehension by the presiding judge. This is where lawyers and experts come in. It is the function of lawyers to argue for or against the admissibility of this type of evidence as they understand the law and how it applies to the facts circumstances of their cases. In some circumstances, especially those involving complex behavioral evidence issues, attorneys may (and should) employ forensic experts to conduct linkage analyses – to develop the clearest picture of the behavioral evidence and any patterns that might be evident (or absent).

Case linkage, also referred to as linkage analysis, is the process of determining whether there are discrete behavioral connections, or distinctive behavioral factors, between two or more previously unrelated cases by means of crime scene analysis. It involves establishing and comparing the physical evidence, victimology, crime scene characteristics, motivation, modus operandi (MO), and signature behaviors of each of the cases under review. It also requires consideration of both behavioral similarities and dissimilarities (Turvey, 2011).

In forensic (a.k.a. legal) contexts, case linkage is used to assist the court with determining whether or not there is sufficiently distinctive behavioral evidence to connect crimes together in their commission. This based on all available evidence gathered for trial – after the investigation has ended, arrests have been made, and charges are being made and argued. These findings can then be used to help the court decide the specific forensic issues already mentioned, such as whether similar crimes should be tried together or whether similar past crimes should be introduced at trial as evidence of criminal propensity. The issue under these circumstances is not defendant guilt or innocence, but rather the admissibility of evidence.

Confounding the often vaguely understood legal issues associated with admissibility is the reality that there may be confirmatory or circumstantial physical evidence linking a crime to a defendant. This can include physical evidence associations with high certainty, such as fingerprints or STR DNA. It can also include physical evidence associations of less certainty, such as mitochondrial DNA, partial STR DNA profiles, hair and fiber evidence, or ballistic matches (see U.S. v. Green, et al., 2005 re: limits placed on interpretations by firearms and tool-marks experts; they may testify to observations but not the certainty of matches given the lack of empirical foundation for such testimony).

Each court applies its own standards when determining the admissibility of similar fact evidence. In some jurisdictions, DNA and other hard evidence linkages may need to be considered as part of the linkage analysis. In others, physical evidence is set aside while issues of theme, modus operandi, and behavioral distinctiveness become primary. Consequently, physical evidence such as DNA must be identified treated as its own separate issue, with its own legal ramifications and inherent forensic limitations. It also requires rigorous crime reconstruction efforts by a forensic scientist, to determine the conditions of physical evidence transfer and what they mean in context (see Chisum and Turvey, 2011).

When left to argue issues of behavioral evidence without outside assistance, the results of an attorney based reconstructions and inferences regarding offense theme and similarity can be uninformed and even misleading.

Case Example: New Jersey v. Bruce Sterling (2011)

As detailed in New Jersey v. Bruce Sterling (2011): “defendant was charged with multiple offenses against five different victims on five separate dates between 2002 and 2005. Over defendant's objection, the trial judge allowed the State to try three sets of the offenses together in a single trial. A fourth set of charges was tried separately, but the court permitted the State to present evidence in that trial of one of the offenses from the previous trial. The fifth set of charges was dismissed on the State's motion. Defendant was convicted of all of the offenses arising out of these four criminal events.” The appellate court ruling goes on to detail the three offenses joined at trial (pp. 3-7):

We now describe the facts in each of the criminal episodes as developed at each of the trials. We begin with the three sets of charges that were tried jointly in the first trial, namely, those relating to the June 9, 2003 sexual assault of K.G., the January 18, 2005 sexual assault of L.R., and the May 27, 2005 burglary of S.P.'s home.

June 9, 2003 sexual assault of K.G.

On June 9, 2003, twenty-five-year-old K.G. lived with her sister in the bottom floor of a two-story, two-family home in New Brunswick. Her sister was at work that night. At 3:30 a.m., K.G. was asleep in her bedroom. She had locked all the doors, but the kitchen window “was left open about an inch.” She was awakened by the sound of her bedroom door opening. She saw a silhouette of a large figure with a knife in his hand.

The man told her “not to make any noise” and he threatened to cut her throat. K.G. pleaded with him to leave, but he slapped her across the face and told her to “shut up.” He took the knife and pressed it to her cheek, and then he “stabbed it really hard” into the bed next to her. He crawled onto the bed, took off her pajama pants, and used the knife to cut off one side of her underwear. The man was wearing latex gloves. K.G. “asked him if he was going to use a condom.” He said he would. As K.G. pleaded with her attacker and offered him money, he “repeatedly threatened to cut [her], to slit [her] throat.”

He told her that he had been “watching” her, but she had never seen him before. K.G. said she was “too terrified to look” at the man while he raped her and “didn't get a good look.” She “remember[ed] the voice more than anything.” He was African–American, “on the husky side.” She said he “looked tall” to her, but that might have been because she was lying down.

He asked her if she “had ever been with a black man,” and said “I know you want to be with a black man, things to that effect.” He fondled her breasts, kissed her mouth and penetrated her vagina with his penis. When he finished he put on his pants, got off the bed, and backed out of her room, telling her “to stay still, not to do anything” for some period of time.

K.G. waited “a minute or two” after the man left. She then called the police. When the police arrived, she provided a description of her attacker and discovered that the kitchen window “was wide open.” The police found a lawn chair that had been placed underneath to gain access to the window.

One of the large kitchen knives was missing from a butcher block near the window. The police recovered it from the backyard. K.G. said it looked like the knife that her attacker had used. On K.G.'s bed, the police found a condom wrapper, which was different from the brand used by K.G.'s boyfriend. They found no witnesses who had heard or seen anything. The police took K.G. to a rape crisis center where she was examined.

Defendant lived in New Brunswick and was employed at Robert Wood Johnson Medical Center as a critical care technician. The hospital was approximately one-half mile from K.G.'s apartment, and it took an investigator approximately four minutes to drive between the hospital and the apartment.

On June 8, 2003, defendant punched in to work at 11 p.m., and he punched out at 7:40 a.m. on June 9, 2003, several hours after the time K.G. was attacked. Employees were entitled to a thirty-minute dinner break and two fifteen-minute breaks, which they could aggregate into one hour of break time. They were permitted to leave the premises for their breaks. Employees routinely disregarded the hospital policy that required them to punch out and punch back in.

On June 6, 2005, two years after she had been attacked, K.G. viewed a lineup of six men, one at a time, who were asked to read a quote from her statement to the police, “shut up or I'll cut your throat.” She testified that all of the men were “easily dismissible,” except one, referring to defendant, whose “voice sounded very familiar” and whose stocky build “looked like the build” she remembered. She told the police that the man “had a similar build and voice, but it wasn't definite.” K.G. was not asked at trial to identify defendant as her attacker.

Instead, the prosecutor said, “I am going to ask you [K.G.] to take a look at this individual that you see seated right here, and I am going to ask you whether or not you gave him permission to enter your home on June 9th of 2003?” She said, “No.”

When K.G. was brought to the rape crisis center, she was examined by a nurse, Adrienne Garber, who compiled a rape kit for K.G. Garber's supervisor, Eileen Aiossa testified at trial that Garber was “out of the country.” She offered no testimony regarding the contents of the record of K.G.'s examination, but she said the record was kept in the ordinary course of business at the center.

Jennifer Moser, a New Jersey State Police (NJSP) forensic scientist, testified that on

K.G.'s pajama bottoms she located one hair that exhibited characteristics of “Negroid” body hair. The hair was unsuitable for nuclear DNA testing, because it had no follicular material or actively growing root that would contain living cells. But mitochondrial DNA testing could be done on a hair shaft. The hair was sent to Mitotyping Technologies for analysis.

Terry Melton, president and CEO of Mitotyping Technologies, testified that her laboratory developed a mitochondrial DNA profile for a hair sample taken from defendant and the hair removed from K.G .'s pajama pants. A comparison of the hairs showed that they contained the same mitochondrial DNA sequence.

Unlike nuclear DNA, which is inherited from both parents and is unique to an individual and his or her identical twin, mitochondrial DNA is inherited intact only from an individual's mother. An individual and his or her siblings all will share the same type of mitochondrial DNA. Mitochondrial DNA testing can be used in cases where there is very little DNA in a sample, and it is commonly used on hairs that have been shed at a crime scene and that have no substantial root that would allow for nuclear DNA testing. Mitochondrial testing is the only type of DNA test that can be done on hairs that are broken or shed. Every cell has “hundreds to thousands of copies of mitochondrial DNA,” but only two copies of nuclear DNA.

The tests determine whether a DNA sequence in an individual hair is the same as the DNA sequence in a particular individual. The result is compared to an FBI database of 4800 people to determine how common or rare the sequence is in the population. Using statistical sampling methods, the examiner calculates how often the type of mitochondrial DNA in the sample appears in the general population.

Melton testified that a comparison with the FBI database showed that .06 percent or six in 10,000 North Americans would be expected to have the same type of mitochondrial DNA sequence. Defendant could not be excluded from the pool of people who could have left the hair found on K.G.'s pajamas.

January 18, 2005 sexual assault of L.R.

On January 18, 2005, a year-and-a-half after K.G. was assaulted, at approximately 6:45 p.m., thirty-nine-year-old L.R. was sexually assaulted while alone in an apartment in Edison that she shared with her son. L.R. had come home at 6 p.m. and changed her clothes. Her son was not at home. She used her microwave to make dinner and ate it standing in her kitchen, which looked out onto the parking lot behind the building. She made a telephone call from the phone in her son's bedroom. When she came out of the bedroom, her front door was open and a man was standing in her apartment.

L.R. started to scream. The intruder told her not to scream and that he would not hurt her.

They were “staring at each other” and he asked L.R. if she had any money. L.R. said she did, but her bag was in the dining room. He told her, “no, wait” and told her to take off her clothes.

She asked him to take her money and jewelry and “just go,” but he repeated that she should take off her clothes.

L.R. began screaming again. The man told her to stop, that he was not going to hurt her.

He had “a little knife” that he used to cut off all the buttons on her t-shirt. He then cut her bra and told her to take off her pants. He pushed her onto the bed and began to take off her pants. He cut the left side of her underwear with the knife. He licked her breasts and neck, and penetrated her vagina with his penis. While he raped her, he told her that if she “was going to scream” and if she called the police that he was “going to come back and he's going to f [__ __ __] me again.” He backed out of the room saying that if she called the police, “he's going to come back and he's going to hurt [me].” He said to her, “[N]ow I have white pussy and I'm going to f[__ __ __] you again.”

When he left the apartment, L.R. called her ex-husband and then the police. She was taken to a rape crisis center, where she was examined by Aiossa. L.R. described her attacker to the police as a dark-complected African–American with a “very straight nose and round big eyes” and “some kind of defect of his speech.” She said when he spoke “his tongue come [sic] out from his teeth,” so that he said “I'm not going to hurth you.” He was tall and he appeared “chubby” because he “was wearing a lot of winter clothes,” which she described more particularly as a dark winter jacket with a hood, and “another hood under his eyebrow [sic].” The room had only a night table light with a sixtywatt bulb.

The police determined that the attacker had entered and exited from a back door that led to the parking area. A person that stood outside the back entrance could see into L.R.'s kitchen into the area where her microwave was located.

On February 11, 2005, L.R. viewed a lineup of six men. She selected an individual, who was not defendant, and said that she was “ninety percent” sure he was her attacker.

On May 31, 2005, L.R. viewed six individuals in a lineup that included defendant. Pamela Jeffrey of the Middlesex County Prosecutor's Office fugitive unit conducted the lineup. She testified that, “as soon as” defendant came out and began to move to his spot in the lineup, L.R. “immediately” covered her mouth and moved away from the door and up against the wall. L.R. began to cry and said “it's him, it's him.”

At trial L.R. said she “was sure one hundred percent” that defendant was her attacker. She explained that, when she saw the men in the second lineup, “I was so shocked because it was him and it's no really mistake that I can make at this time it was him who was standing in my apartment with a knife.” L.R. made an in-court identification of defendant at trial.

Aiossa, the forensic nurse who examined L.R. when she was brought to the rape crisis center, was the coordinator for the Sexual Assault Nurse Examiner Program (SANE) of Middlesex County, part of a statewide Sexual Assault Response Team (SART) program, which was made up of representatives from law enforcement, patient advocates, and the sexual assault nurse examiner. SANE forensic nurses receive special training and a certification from the State and the Board of Nursing.

Aiossa described the “head to toe exam” conducted by SANE nurses, which began with “comb[ing] through the person's hair looking for any kind of fibers or possibly hair left behind from the suspect.” Aiossa also testified regarding the specific swabbings she had obtained during her examination of L.R. and the injuries she observed.

It was her practice to swab each patient's cheek to obtain their DNA, and if oral sex was involved, she swabbed the patient's mouth between their gum and cheek. Aiossa swabbed under a patient's fingernails in case the suspect's DNA could be retrieved from the suspect's skin left under the patient's fingernails during a struggle.

She conducted an interior visual gynecological exam to look for injuries to the vaginal area. She swabbed the cervix area and exterior genital area “looking for if any secretions are left behind, saliva, and then we can get DNA from that.” She also collected the patient's clothing.

Aiossa used a standardized “evidence collection kit” in her examination. The forensic kit was sealed and, with the patient's permission, the kit and the clothing were turned over to law enforcement, maintaining the chain of custody. Her examination resulted in what she described as “[o]ne sealed forensic kit and one seventeen page forensic record,” one copy of which went into the forensic kit that was sent to the laboratory, one copy went to the investigating agency, and Aiossa kept the third copy.

Jennifer Banaag, a forensic scientist with the NJSP DNA laboratory, testified that her analysis of the DNA in dried secretions taken from L.R.'s neck and left breast showed within a reasonable degree of scientific certainty that defendant was the source of the secretions on L.R.'s breast. She also said that he had provided the major DNA profile of the dried secretions taken from her neck.

May 27, 2005 burglary of S.P.'s home

A little more than three months after the attack on L.R., on May 27, 2005, thirty-one year-old S.P. was living in an apartment complex in North Brunswick with her fiancé and her three children. At 2:40 a.m., she left the apartment to go for a walk after she and her fiancé argued. She testified: “I heard a gentleman say, hey, mama, can I talk to you? I turned around, looked at the person, turned back to head towards my apartment and he started to cut through the grass headed towards my door. When [sic] he told me that I didn't have to worry, that he was a gentleman.”

The man “started to walk faster” as S.P. turned to go toward her front door. She was facing him and was able to get a good look at him. She told him that her fiancé was in the house and he “apologized.” S.P. went inside her apartment and locked the door. She told her fiancé that someone had tried to talk to her, and she then went into her bedroom.

Five minutes later, S.P.'s fiancé noticed that the handle of the door that S.P. had entered was “jiggling,” and he “realized somebody was trying to open the door.” He then saw the living room window, the screen and the blind, “all three came up at the same time” and he saw a man. He asked the man what he was doing, and the man dropped the blind and ran. S.P.'s fiancé chased the man, and S.P. called the police. She gave them a description of the man who had spoken to her.

When the police arrived, S.P.'s fiancé gave them a description of the man he chased. Officer Tawana Marshall found defendant “hiding behind a tree.” Marshall asked defendant “to come out from behind the tree, and he complied, smiling.” Defendant was “sweating profusely, his clothes were missed [sic] up and his zipper was down.” Among the items in his pockets were a folding knife with a serrated edge, a Lifestyle brand condom, and the key to a Honda. S.P. and her fiancé both identified defendant at the scene as the man they had encountered.

In its ruling, the Appellate Division of the Superior Court of New Jersey applied Rule 3:7-6, as explained in New Jersey v. Pitts, 116 N.J. 580, 599 (1989): “Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.” It held that the trial court in Sterling erred not only in joining multiple cases, but in allowing evidence one of the prior cases in a second trial. As explained in Racz (2011):

Speaking as one voice in a per curiam decision, the three judges ruled that the trial court had impermissibly allowed the prosecution to join burglary charges and sexual-assault charges for Sterling in a single trial and that the court also erred by allowing, in the second trial, evidence of one of the prior crimes.

The appellate court also determined that the trial court erred when it allowed two of the rape charges to be tried together.

Further, the appellate court explained that:

…the trial court erred when it determined that the burglary charges and both sexual assault charges could be joined for trial. The S.P. burglary charge should not have been joined in the indictment with the sexual assault charges, because they failed to meet the requirements of Rule 3:7–6, and they shared no signature characteristics with the sexual assault charges that would allow all of the crimes to be tried together.

The court also erred when it determined that the sexual assault charges for K.G. and L.R. could be tried together. There was no support for its determination that the circumstances of the attacks were nearly identical or, if they were, that the average juror would have the knowledge to determine whether those characteristics meant that the crimes likely were committed by the same person. If the State wanted to try the crimes against K.G. and L.R. together, it was required to present expert evidence to establish the signature-like characteristics of the crimes. If the State chooses on remand to proceed in this manner, we express no view as to whether such expert evidence would suffice.

This remarkably detailed finding outlines the duty of the prosecution to engage expert forensic analysis regarding case linkage. Had prosecutors done so, the appellate court held that the certainty of their legal arguments could be more reliably and more objectively established. Having failed to do so, the court was unwilling to take the adventitious non-expert analysis of prosecutors as fact.

This ruling establishes that linkage analysis is an area of forensic expertise, and rightly so. As a consequence, just as attorneys are not allowed to provide legal arguments based on physical or other forms of evidence without a foundational expert examination and subsequent testimony, neither should they be allowed to do so with respect to behavioral evidence related to case linkage. Otherwise, attorneys would be allowed wide latitude to interpret the meaning of physical evidence without the benefit of objective forensic examiners to explain the strengths and limits of the evidence – which in some cases actually does happen.

The importance of this ruling is therefore twofold:

  1. It establishes the need for independent expert analysis with respect to any proffered case linkage evidence, acknowledging the potential of its complexity to confuse the court and prejudice the jury when unchecked.

  1. It opens the door, or in some cases simply serves to remind attorneys and the court, to challenge or exclude the arguments of any attorney that seeks to interpret any kind of evidence without a sufficient foundation in expert examination and testimony.


Chisum, W.J. and Turvey, B. (2011) Crime Reconstruction, 2nd Ed., San Diego: Elsevier Science.

Kadeem Q. Hart v. Florida (2011) Nos. 1D09–2300, 1D09–2302, District Court of Appeal of Florida, First District, May 13.

New Jersey v. Bruce D. Sterling (2011) WL 3557585 (N.J.Super.A.D.) Decided Aug. 15, 2011.

New York v. Richard J. Gantz (1984) 104 A.D.2d 692, Appellate Division of the Supreme Court of the State of New York, Third Department, September 20.

O’Connor, K. (2010) “Trial begins for accused rapist Anthony Flye,” The Herald News, May 29.

Pateakos, J. (2009) “Flye granted motion for separate trials,” The Herald News, February 12.

Racz, G. (2011) “Bruce Sterling's multiple rape convictions reversed,” Asbury Park Press, August 16.

Ruben, J. (2009) North Carolina Defender Manual, Volume One, Pretrial, 2nd Ed., UNC School of Government.

Savino, J. and Turvey, B. (2011) Rape Investigation Handbook, 2nd Ed., San Diego: Elsevier Science.

South Carolina v. Karl Wallace (2009) Supreme Court, Opinion No. 26703, August 17, 2009

Turvey, B. (2011) Criminal Profiling: An Introduction to Behavioral Evidence Analysis, 4th Ed., San Diego: Elsevier Science.

United States v. Darryl Green, et al. (2005) No. CRIM.02-10301-NG. United States District Court, D. Massachusetts, Dec. 20.