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.
THE JOINING OF MULTIPLE CRIMES
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).”
THE ADMISSIBILITY OF PRIOR & UNCHARGED CRIMES
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).”
THE ROLE OF LINKAGE ANALYSIS
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:
- 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.
- 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.
REFERENCES
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.
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.
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).
