Law & Disorder

by Douglas, John

  The month before, Greg Hampikian, a DNA expert, professor at Boise State University and the founder and director of the Idaho Innocence Project, announced, according to the Idaho Statesman, that “the prosecutors drew the wrong conclusions from that evidence, twisting it to fit their preconceived theory of Knox’s guilt.”

  “I looked at the data,” Hampikian said, “and it was just horrible.”

  He even staged an experiment that replicated his theory of DNA transfer in the case. Using techniques identical to how the knife DNA sample was collected, he got DNA from another researcher’s soda can to show up on a clean knife the researcher had never touched.

  In her closing statement, given in Italian, Amanda told the judges, “People always ask, ‘Who is Amanda Knox?’ I am the same person I was four years ago. The only thing that now separates me from four years ago is my suffering. In four years, I’ve lost my friend in the most terrible and unexplainable way. My trust in the authorities and the police has been damaged. I had to face charges that were totally unfair, without any basis. And I am paying with my life for something I haven’t done.”

  On October 3, 2011—nearly a year after the procedure began and four years since Amanda and Raffaele had been locked up—the appeals court overturned the convictions, stating in their opinion that the original verdict “was not corroborated by any objective element of evidence.” They described the interrogation sessions of Amanda as of “obsessive duration” and acknowledged that the account she gave was due not to fact but “great psychological pressure.”

  The Kercher family released a statement:

  We respect the decision of the judges but we do not understand how the decision of the first trial could be so radically overturned. We still trust the Italian judicial system and hope that the truth will eventually emerge.

  Amanda and her family left Italy the next day.

  At long last, justice was served.

  CLOSING ARGUMENTS

  CHAPTER 33

  IN SUMMATION

  The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed he should do so, but, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

  —Justice George Sutherland in Berger v. United States, 1935

  In his 1936 memoir essay, “The Crack-Up,” F. Scott Fitzgerald observed: The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function. For those of us in law enforcement who at least strive for a first-rate intelligence, criminal justice provides an ultimate challenge: How do we vigorously hunt down criminals and prosecute and punish crimes, while trying to make sure that no innocent person suffers at the hands of a sincere but imperfect system, administered by practitioners representing every one of our collective human faults and foibles?

  How, for instance, can we condemn the long procedural morass and delaying tactics for Sedley Alley, yet condone them for Damien Echols?

  When I was a kid, there was a television series that virtually every boy and many girls of my generation will recall. It was the Adventures of Superman, and in the intro, over a tableau of the superhero posed, hands resolutely on hips, in front of a waving American flag, the narrator proclaimed how he fought “a never-ending battle for truth, justice and the American way.”

  When I began my law enforcement career in 1970, along with most of my colleagues, I believed that truth and justice would always prevail. Regardless of the jurisdiction or individual law enforcement agency, we were all playing on a level field. As investigators, I believed, it was our job to help solve crimes and apprehend criminals using all of our skills and every investigative tool available to us.

  In retrospect, I was somewhat naive. It is not a level playing field, and all investigators and agencies are not equal. I still believe that the overwhelming majority of us are dedicated to following the letter of the law and our own personal codes of conduct. Unfortunately, as in any other profession, there are some individuals and departments that believe they are performing their jobs properly when, in fact, they are using faulty, outdated and sometimes illegal techniques and practices.

  It has taken too many years to realize and accept that while our justice system is still the best in the world, it is far from perfect. And I now wonder about some of the cases my colleagues and I received from law enforcement agencies within the United States and worldwide. Did the investigators effectively contain and control the crime scene? Did they effectively collect and preserve evidence, avoid contamination and maintain chain of custody? Were the medical examiner and/or forensic pathologists adequately certified, and were specimens correctly evaluated? Were interviews and interrogations conducted without leading or coercion? Was the prosecutor influenced by any factors outside the case itself, such as reelection or political ambition?

  For some cases, I now have to wonder: Did I get it right? And that will always be a troubling question.

  That, in a nutshell, is what we’re dealing with. And that is why we all must be vigilant and involved and questioning to see that the system works as well as it can.

  Which brings us back to Superman and his never-ending battle. None of us is Superman, but by the very nature of the challenge, this pretty much has to be a “never-ending battle.” Within a system that must be administered fairly and uniformly, we must never lose sight of the individual aspects: the individual victim, defendant and facts of the case. In so doing, we reach an understanding of appropriate responses in each situation.

  The facts in Sedley Alley’s case were unambiguous. The facts in Damien Echols’s case were extremely ambiguous. There is a long continuum between the two, in which each position calls for a response appropriate to its own particulars.

  I know this is far easier said than done, and we’ll never get it perfect. But it is a goal that is easy—and critical—to strive for.

  The investigations, research and writing of this book have made me realize how vulnerable any of us can be when the system goes awry. When that happens, the system can take on a life and momentum of its own, just as powerful and potentially devastating as when it functions properly.

  Writing this book has also forced me to look back at some of my earlier cases and reflect on some of the assumptions under which I operated.

  First and foremost, when a local law enforcement agency came to us for assistance, we had to assume that they were providing us with good data. On cases where I was actually able to get out into the field, I could make my own evaluation. But when all of the information was presented to us, we were limited. In most situations, that didn’t matter because we had the key elements we needed, such as crime scene photos, descriptions and victimology.

  If I had been asked to get involved in a case like the Cameron Todd Willingham suspected arson, I would have relied on what looked like good science, and I would have come to the wrong conclusion. Had I been brought in to investigate the West Memphis Three, I would have known immediately that it wasn’t a satanic ritual murder, but I would have been totally misled by the medical examiner’s report into concluding that it was a lust murder.

  I would recommend several steps that could help prevent innocent men and women from facing incarceration and execution.

  If we start with Brandon Garrett’s key problem areas—false confessions, junk science, jailhouse informants, ineffective assistance of counsel and bad judging—we can start to see w
hat needs to be done.

  First, I advocate an independent national forensics lab, separate from the FBI and all other law enforcement agencies. Despite previous documented problems, I strongly believe in the current excellence and integrity of the FBI National Laboratory, now located in a modern facility at the Academy in Quantico. But with potential death penalty or other serious cases, there should be no question of influence or hidden agenda. It is still possible for an investigator to convey subtly to someone in the lab that this particular piece of evidence is critical to the case, or that the jury has to be able to understand a certain fact in unequivocal terms, or any of a number of other requested outcomes.

  Also in the realm of evidence, we have seen that too many confessions are coerced or in some other way are not legitimate. I would therefore require that all police interrogations be recorded—preferably video, as well as audio—in full. If this is not done, the evidence should be inadmissible in pursuit of a death penalty eligible verdict. Signed written confessions should not be sufficient.

  Steve Braga has thought long and hard about these questions. As he has put it, “Every interrogation should be videotaped from beginning to end. If you don’t want people to see what you’re doing in there, then you’re doing something you shouldn’t be doing.”

  One of the recurring arguments against the death penalty is the incredible amount of money expended on seemingly endless appeals. There are various estimates on how much it costs to get a convicted defendant to the point where he can be executed, but most of them are in the seven-figure range. In this age of diminished resources, that is not a sum to be trifled with. A similar argument can be made for any case where a long appeals process is likely.

  On the other hand, if we could reform the issues that cause wrongful or questionable convictions and solidify public confidence that we have done so, think of how much will be saved by not having to go through the extensive efforts required to cure wrongs like the West Memphis Three and Cameron Todd Willingham cases.

  If we could put some of that money into providing more funding and better resources for defense attorneys, I believe we would save in the long run.

  To me, a fundamental defect in the system is the election of prosecutors and judges. Again, as Steve Braga observed, “When you have elected prosecutors and elected judges, and you have a high-profile criminal case, they don’t win any votes by giving somebody a fair trial and having somebody walk away from a murder charge, particularly one as gruesome as [West Memphis] . And so, look at what happened here—the two prosecutors are now judges, the trial judge is now a state senator, the district attorney wants to be a U.S. congressman. There’s a real political gain to be made. There’s a real political self-interest at play.”

  I’ve been on the prosecution’s side for the vast majority of my career, and it’s almost always the side of the angels, as far as I’m concerned. But that “almost” is a huge modifier and represents a wide chasm. One of the most important means of bridging that chasm is for prosecutors to understand and accept their proper function. This, in fact, might do more than any of the other proposals if it could ever become a reality.

  Everyone on that side wants a conviction; I understand that. No one wants to fight that hard and lose. As Steve Braga commented to Mark Olshaker, “When Dennis Riordan brought in Werner Spitz and John Douglas and Michael Baden and Vince DiMaio, among others—the world’s leading experts—and they say, ‘Your coroner got it wrong. These weren’t knife wounds. We all agree. Six of us independently agree these aren’t knife wounds but animal predation,’ then somebody on the prosecution side has to be stand-up enough to say, ‘Okay, let’s take this seriously’—not ‘Oh, my God, how are we going to defend against this? Let’s keep fighting.’ At some point, you’ve got to recognize a mistake.

  “The Supreme Court has a landmark decision called Berger versus United States back in the 1930s. It’s not the prosecutor’s duty to convict. It’s the prosecutor’s duty to insure that justice is done.”

  Along these lines, there is no trustworthy and effective national governing body with objective standards that certifies experts in all of the key forensic areas, such as odontology, fingerprint identification, hair and fiber, ballistics, and so on. If a judge concludes that someone is an expert, the jurors are naturally inclined to put a good deal of weight on that individual’s testimony. By the same token, if a judge so decides, he or she can prevent another individual from offering a learned opinion. We saw Judge Burnett mishandle both of these instances in West Memphis.

  Then, if the defendant is convicted and later found not guilty based on the reexamination of faulty forensic analysis, investigators, prosecutors and judges will often say that the jurors heard the evidence and they determined that the defendant was guilty. This kind of irresponsible projection is a neat way for them to alleviate their own responsibility and place blame on the operation of the jury system.

  In the 2011 Casey Anthony murder case in Florida, the judge allowed an “expert” to testify relative to the smell of decomposition in the defendant’s car. Making no judgments about the accuracy of this observation, there are no standards for determining the smell of decomposition, and there should be.

  In 2004, the FBI linked a terrorist bombing of a train station in Spain, which resulted in mass casualties, to an American living in Oregon, based on a fingerprint recovered at the scene. This individual was arrested, but was later released when the print was linked to an Algerian responsible for the crime. Three of the Bureau’s top fingerprint experts, including the division head, had gotten it wrong.

  Ultimately, one of the things that most bothers me in dealing with miscarriages of justice is that these mistakes force us to divert focus from the victim of the crime, which is where I always feel it belongs. By rushing to judgment, taking convenient shortcuts and ignoring evidence, law enforcement officials make innocent defendants into new victims, and thereby deny justice twice.

  The name Amanda Knox should be known only incidentally, as the shocked and grieving friend of the beautiful Meredith Kercher. The names of Damien Echols, Charles Jason Baldwin and Jessie Misskelley Jr. should never have even been associated with innocents Chris Byers, Stevie Branch and Michael Moore. And people like John Mark Byers should be able to have faith that the system has done right by them.

  The cases and circumstances we have discussed are representative, but far from unique.

  The so-called Norfolk Four spent nearly a decade in prison for a 1997 rape-murder it has now been proven they did not commit. The key evidence against them was four individual confessions, all coerced. Jessie Misskelley Jr. and Amanda Knox can certainly relate to that.

  In March 2012, Al-Akhbar’s news service reported that at least ninety Iraqi teens had been stoned to death in the previous month by armed religious extremists guided by the nation’s Moral Police. Their crime: Devil worshipping. The evidence, according to a Moral Police statement: They wear strange, tight clothes that have pictures on them such as skulls and use stationery that are shaped as skulls. They also wear rings on their noses and tongues, and do other strange activities. Damien Echols and Jason Baldwin would understand.

  It all comes down to this: Whenever theory supersedes evidence, and prejudice deposes rationalism, there can be no real justice.

  ACKNOWLEDGMENTS

  Like crime-solving itself, producing a book is very much a collaborative effort, not only between the two of us, but also the solid team that has worked with us and backed us up each step of the way.

  First, we want to acknowledge and thank Michaela Hamilton, our talented, sensitive and insightful editor at Kensington. It is largely her enthusiasm that has seen this project through, and we are grateful to the entire publishing staff. We are so grateful to the entire team at Kensington.

  Our fine agent, Jake Elwell at Harold Ober Associates, understood from the beginning what we wanted to do this time, then helped us shape and refine our ideas. He has been a continual friend, offer
ing support and acting as a sounding board. Likewise, our attorney, advisor and friend, Steven Mark, who, in addition to everything else, is responsible for a substantial portion of the West Memphis Three research and organization. Sarah Lessa is in charge of our website, www.mindhuntersinc.com. Dave Lessa helped immensely with its planning and design, and Nikki Cheshire conducted our photo research. All three are welcome additions to the Mindhunters team. And as always, Mark’s wife, Carolyn, remains our in-house counsel, Mindhunters, Inc. chief of staff and our first-line reader, among her many other talents and virtues.

  Profound gratitude goes out to the many individuals who freely contributed their time, talents and insights. Since they all helped so much, we will simply list them alphabetically: Bob Barnett, Philip Bermingham, Stephen Braga, Jackie and John Mark Byers, Ben Cheshire, Jack, Trudy and Stephen Collins, Lorri Davis, Damien Echols, Krista Errickson, the Honorable Bob Graham, Peter Jackson, Amanda, Curt and Deanna Knox, former special agent Kenneth Lanning, Ken Light, Jim Lovering, Chris and Edda Mellas, former special agent Steve Moore, Madison Paxton, John Ramsey, Mark Smit, Lynne Sparks, Mark Stein, Fran Walsh, Jonesboro Sun editor Chris Wessel, and Tom Wright.

  And finally, to all of those who continually strive to see justice rendered—and right the wrongs when it is not—you have our sincere and undying admiration.

  John Douglas and Mark Olshaker

  October 2012

  ABOUT THE AUTHORS

  Photo credit: Philip Bermingham

  JOHN EDWARD DOUGLAS (right) served as a special agent of the FBI for over twenty-five years. He is widely admired as the leading expert on criminal personality profiling and modern criminal investigative analysis. A veteran of the U.S. Air Force, he has written numerous books, including the number one international bestseller Mindhunter.