Wisconsin v. John Maloney


Wisconsin v. John Maloney

Threshold Assessment
Sandra Maloney, Equivocal Death

Body found: Wednesday, February 11, 1998, just prior to 10:59 AM by Lola Cator (V- mother)

Investigating Agencies: Green Bay Police Department, Green Bay, WI, Case No. 98-07902 & Wisconsin Department Of Justice (WDOJ), Division of Criminal Investigation (DCI), Case No. SA-9553

Report by:
Brent E. Turvey, MS Forensic Science
Forensic Scientist & Criminal Profiler
Knowledge Solutions, LLC
1961 Main Street, PMB 221
Watsonville, CA 95076
(831) 786-9238; bturvey@corpus-delicti.com

For:
Research for non-fiction work: "Full Circle"
Sheila and Doug Berry, authors
9808 Alfaree Road
Richmond, VA 23237

After reviewing the case materials detailed below, a determination was made by this examiner that insufficient investigation and forensic analysis have been performed in this case. That is to say, many of the suggested events and circumstances in this case remain inductive hypotheses awaiting verification through testing rather than deductive conclusions (Thornton, 1997) upon which reliable let alone probative inferences about scene activity and behavior can be made. To assist the successful investigation and analysis of the materials and evidence in this case, this examiner has a prepared a Threshold Assessment.

A Threshold Assessment is an investigative report that reviews the initial physical evidence of crime related behavior, victimology, and crime scene characteristics for a particular unsolved crime, or a series of potentially related unsolved crimes, in order to provide immediate investigative direction (Baeza et al, 2000). It involves the employment of scientific principles and knowledge, including Locard's Exchange Principle, critical thinking, analytical logic and evidence dynamics.

Locard's Exchange Principle, a cornerstone of the forensic sciences, states that when an offender comes in contact with a location or another person an exchange of evidence occurs (Saferstein, 1998). As a result of this exchange, the offender both leaves something of themselves behind, and takes something of that person or place away with them when they leave.

Critical thinking may be described as the process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action (Turvey, 1999). In terms of forensic analysis, it involves the evaluation of the real merits and limitations of physical evidence, and the results of subsequent tests performed on that evidence, as opposed to taking a position because it is agreeable to one's personal beliefs on an issue.

Analytical logic involves the ability to study a crime scene, and any subsequent documentation, and arrive at logical, well-reasoned conclusions. This ideally involves the formation of hypotheses that can be tested against the established facts of the case. The end result of this process is that conclusions may be drawn that follow naturally from the evidence that is present. Such conclusions may be referred to as deductions (Thornton, 1997).

Evidence Dynamics refers to any influence that changes, relocates, obscures, or obliterates physical evidence, regardless of intent. It can occur during the interval that begins as evidence is being transferred and ends when the case is ultimately adjudicated (Chisum & Turvey, 2000).

Examinations Performed
The examiner made this Threshold Assessment of the above case based upon, but not limited to, a careful examination of the following case material:

Background
According to investigative reports, Sandra Maloney was found in her home which had been involved in a fire. Sandra's mother, Lola Cator, discovered Sandra's deceased and burned body on the morning of February 11, 1998. The decedent was found laying face down on a couch in the upstairs living room. The phone was determined to be off the hook, and the outer storm door was tied from the inside to the front door with a shoelace (Cator cut through the shoelace with scissors to gain entry). Both circumstances had occurred in the past when the decedent had desired privacy. The origin of the fire was determined to be the vicinity of her lap and involving the couch. There was extensive soot damage in the home with some minimal structural damage. All of the windows in the home were closed, saved one that was open only a few inches. The fire was determined to be self-extinguishing. Original arson reports from local agencies determined the fire to be accidental in nature with no suspicious elements or circumstances. However, autopsy findings suggested that the manner of death was homicide. A subsequent fire cause and origin report from state investigators reflected arson.

The decedent's estranged husband, John Maloney, a Detective in the Green Bay Police Department, was developed as a suspect given their impending divorce, ongoing child custody battle and history of domestic disputes. Subsequently, John Maloney's girlfriend, Tracy Hellenbrand, a special agent with the Internal Revenue Service, Criminal Investigation Division in Green Bay, was employed by investigators to elicit a confession from him. Despite the failure of Hellenbrand to elicit a confession and despite the lack of any evidence of his presence at the scene, John Maloney was tried and convicted on charges of first-degree homicide, arson and mutilating a corpse in February of 2000.

Victimology
Victimology
is a thorough study of all available victim information. This includes items such as sex, age, height, weight, family, friends, acquaintances, education, employment, residence, and neighborhood. This also includes background information on the history and lifestyle of the victim such as overall personal habits, hobbies, criminal history and medical histories. Establishing victimology is a necessary part of determining the context of some crimes (Baeza et al, 2000). Furthermore, it is generally accepted that the decedent's social, medical and mental health history can provide insight into the behavior/state of mind of an individual, focus further investigation, and produce clues that will aid in establishing the cause, manner, and circumstances of a death (NMRP, 1999).

Name: Sandra "Sandy" Jean Maloney

Race: Caucasian

Sex: Female

DOB: 7-30-57

Age: 40

Height: 5'4" +

Weight: 97 lbs.

Hair: Brown

Residence location: 368 Huth Street, Green Bay, WI

Residence type: The decedent's home was a one story, brick three bedroom, single family dwelling with basement and garage.

Relationship Status: Sandra married John Maloney, a Detective with the Green Bay Police department in 1978. According to Sandra Maloney's psychiatric records from Bellin Psychiatric Center of Green Bay, this was a turbulent relationship during which she suffered physical and emotional abuse. She and John Maloney separated during May or June of 1997. They were not yet divorced at the time of her death. Sandra was furthermore involved in a custody battle with John Maloney for their three sons, ages 12, 9, and 8.

Sandra had dated since the separation, but not seriously, including her recent ex-boyfriend, Andrew "Drew" Falk.

Andrew Falk met Sandra through his co-worker and Sandra's best friend, Jody Pawlak, in September of 1997, according to law enforcement interviews with both Pawlak and Falk. Andrew Falk was a 32-year-old white male who drove a red Ford Escort with two different stolen license plates, and did not have a valid driver's license. At the time of Sandra's death, Falk lived at 419 S. St. Bernard Drive, DePere, WI. According to law enforcement interviews with Falk, Sandra had told him that she was divorced, and he learned the truth only after reading the newspapers subsequent to her death. Falk stated that Sandy was under a great deal of pressure and stress because of the custody battle for her children, and that she was handling this stress by increasing her drinking and smoking activity. Her favorite drink was vodka, and her cigarette brand of choice was Marlboro Light 100's Menthol. Falk stated that her increased drinking and smoking contributed to the termination of their relationship. According to Falk, they had last seen each other on 1/31/98 in his apartment, at which time they had mutually agreed to end their dating relationship.

Social history: Of note is the fact that Jody Pawlak, Sandra's best friend at the time, was also a recovering addict and had been prescribed medication under a doctor's care. They had met in group therapy. Of further note is the fact that Mark Burns, Jody Pawlak's live-in boyfriend, was also a recovering drug addict.

Family history: Of note is the fact that Sandra's father was a police officer and an alcoholic.

Medical and Mental Health history: A Wisconsin Department Of Justice (WDOJ), Division of Criminal Investigation (DCI) case activity report dated 04-02-98 relating to a law enforcement interview of Linda Croak, who worked at the University of Wisconsin Pediatric Neurology Clinic, states:

In 1994, Croak began working with the Maloney family. After reviewing the children's medical charts, she realized they had been issued what she described as "an incredible amount" of medications in a very short period of time. Croak specifically stated that, in 1994, thirty pills were prescribed to Matthew Maloney on each of the following dates: May 3, May 10, May 16, May 23, May 31, June 8, June 14, June 16, June 21 and June 28. Another one of Sandra Maloney's sons was also prescribed thirty tablets on the following dates in 1994: May 7, May 16, May 23, June 5 and June 11.

Croak explained that the medication being prescribed, Fioricet, is not a narcotic, but is a habit-forming barbiturate, for which a tolerance can be built up. All three of Maloney's children received a prescription for Fioricet. Croak called the pharmacy where the prescription was filled, and the pharmacists also disclosed their concern that so many pills were being used in such a short time period.

Maloney would sporadically call Croak and state that she needed additional prescriptions, because the medication had been lost, stolen or left behind in a hotel room. Croak did not believe Maloney. She described Maloney's telephone calls as "drug-seeking" behavior, and believed that Maloney was trying to manipulate her. Croak assumed that Maloney herself was the person taking the pills, but was not able to confirm this.

The following is provided in a WDOJ DCI case activity report dated 12-2-98, which is an accurate overview of Sandra Maloney's psychiatric records from Riverside Psychiatric and Bellin Psychiatric Center of Green Bay:

…Sandy Maloney had been under the care of Dr. John R. Stamm since September 1992, when she first came to him for depression and anxiety disorder. Sandy complained about bouts of anxiety and panic, which she claimed started several years after she had chiropractic treatment on her neck. Sandy was subsequently treated by a variety of controlled substances, including Pamelor, Klonopin and Zoloft. The records indicate that Sandy was admitted to the Bellin Psychiatric Center on two occasions, the first one on 10/10/96, and the second one on 4/11/97. Sandy also went to alcohol treatment at the Jackie Nitchke Center after she was discharged from Bellin Psychiatric Center on 4/25/97.

According to these records, Sandra had also been prescribed and/or taking the medications BuSpar, Fioricet, Inderal, Prozac and Xanax.

The Discharge Summary filed by Dr. John R. Stamm dated 4-25-97 states:

Mrs. Sandy Maloney… was admitted… under an emergency detention order because it was felt that she was potentially dangerous to herself and unable to care for herself because of her acute intoxication, which was coupled with depression and anxiety. [Immediately] Prior to her hospitalization, she was involved in a motor vehicle accident while she was intoxicated with an excessive amount of alcohol…

Final Diagnosis

Axis I: 1. Alcohol dependence.

2. Benzodiazepine dependence.

3. Generalized anxiety disorder.

4. Panic Disorder.

5. Dysthymia.

Axis II: Personality disorder, not otherwise specified.

Axis III: 1. Status post herniated cerebellar tonsil associated with discomfort and neurological symptoms.

2. Migraine headaches, by history.

Axis IV: Psychosocial and Environmental Problems: Severe; marital discord; sensations allegedly due to herniated cerebellar tonsil involving right side of her body; and chronic neck discomfort.

Axis V: Global Assessment of functioning at discharge: 48.

…At the time of her evaluation in the emergency room, she was emotionally distraught and acutely intoxicated. A blood alcohol level was found to be .29… she minimized her alcohol use, despite an extensive letter which had been written by her mother expressing concern over her abuse of alcohol along with her psychotropic medications.

Smoking habits: Of note is a finding by the Green Bay Fire Department in an Incident Report by Captain A. Bailey, CFI dated 2-11-98, which states that:

Several ashtrays were located throughout the building, many filled with cigarette butts. It was noted that several cigarettes had been left burning on tables, counter tops and on a telephone book and had burned down or self-extinguished. Two burned paper matches were identified on the floor of the living room next to the coffee table that was located to the East of the sofa…

Evidence in the dwelling, including several ashtrays containing cigarette butts, burned and discarded matches on the carpet in the living room and self-extinguished cigarettes on furniture throughout the home, indicate a careless pattern of cigarette smoking by the occupant.

Interviews with Jody Pawlak corroborate the evidence of Sandra's careless pattern of cigarette smoking, including an incident involving the discovery of Sandra asleep on the couch with an ashtray in her lap and a lit cigarette.

Lifestyle risk: This term refers to the overall risk present by virtue of an individual’s personality, and their personal, professional, and social environments. The belief is that certain circumstances, habits, or activities tend to increase the likelihood that an individual will suffer harm or loss (Turvey, 1999). By all accounts, Sandra Maloney was at a high overall lifestyle risk of being the victim of either intentional or accidental harm, from her own hand or from those with whom she regularly interacted. This is due to the following circumstances:

Incident risk: This term is used to refer to the risk present at the time of the victim's death by virtue of their state of mind and hazards in their immediate environment. By all accounts, Sandra Maloney was at a high overall incident risk of being the victim of either intentional or accidental harm, from her own hand or from those with whom she regularly interacted. This given the following circumstances:

Equivocal Analysis of Autopsy Findings
The autopsy report in this case was prepared by John R. Teggatz, M.D., Deputy Chief Medical Examiner for the Milwaukee County Medical Examiners office, for the autopsy that was conducted on the body of Sandra J. Maloney on 02/12/98. While I have a great deal of respect for the medical findings offered in this report, I have some concern for the crime reconstruction theories that it puts forward. My opinion is based upon consideration of the following crime reconstruction issues:

1. As already discussed, it is generally accepted that a decedent's social, medical and mental health history can provide insight into the behavior/state of mind of an individual, and produce clues that will aid in establishing the cause, manner, and circumstances of a death (NMRP, 1999). The only discussion of decedent history in this autopsy report is a brief history of circumstances, those being that the victim was found deceased in a house that had suffered from a fire. There is no evidence that the victim's social, medical, mental health, or smoking history were taken into account in the conclusions of this report. Such evidence would include mention in the decedent's history, as well as a gathering and recitation of prescription medications found in the home, and subsequent directed toxicological testing. By the standards outlined in the National Institute of Justice's Death Investigation Guidelines, Section E: Establishing and Recording Decedent Profile Information (NMRP, 1999), this omission is not a legitimate forensic practice.

2. The cause of death is listed as "Probable Manual Strangulation." I have a measure of respect for the equivocal nature of this finding, as it shows the requisite conservatism. The evidence is determined to be consistent with manual strangulation, however, it may be consistent with other circumstances as well. However, the failure to attempt to exclude or discuss other possible circumstances, which may have resulted in similar injury, is requisite. This examiner is left to wonder why a "probable" cause of death would be allowed to stand unless vigorous attempts had been made to exclude all other possibilities. Given the omissions cited in item #1 of this section, a rational argument cannot be made that such vigor was a part of this medicolegal investigation.

The autopsy findings in this case were subsequently reviewed by Gregory A. Schmunk, M.D., Chief Medical Examiner for the Brown County Medical Examiners office. In a memo to Joseph F. Paulus, District Attorney for Winnebago County dated January 19, 1999, Dr. Schmunk outlined his crime reconstruction theories in this case. While I have respect for the medical findings offered by Dr. Schmunk, I have little enthusiasm for some of the crime reconstruction theories that he puts forward. My opinion is based upon the consideration of the following crime reconstruction issues:

1. The crime reconstruction cited above states that "The bruising of the back could have been caused by the assailant pressing on the back during the assault, possibly with a knee." While this is a possibility, it is only a possibility that assumes the existence of an attacker. There is in fact no evidence to suggest that this injury is associated with the victim's death. In fact, an argument could be made that the three areas of injury on Sandra Maloney's left buttock, mid-back, and head (right parietal, posterior) are consistent with an accidental fall. There is no discussion of attempts to exclude this possibility in the crime reconstruction offered by Dr. Schmunk. As such, it lacks reliability.

2. The crime reconstruction cited above states that "I noted from the scene photos and from visiting the scene that there was an impression of her hand in the couch, as if she was grasping the material during a struggle." While this is a possibility, it is only a possibility that again assumes the existence of an attacker. There is in fact no evidence to suggest that this impression on the couch is associated with the victim's death. In fact, an argument could be made that the decedent made this impression during a moment of rage, sorrow, or other extreme emotion brought on by her drinking, drug abuse, general circumstances, or any combination of those things. There is no discussion of attempts to exclude these possibilities in the crime reconstruction offered by Dr. Schmunk. As such, it lacks reliability.

3. The crime reconstruction cited above states that "Her head was face down in the couch pillow. This positioning would not be expected if she had simply passed out. Rather it indicates that her face was forced into the cushion." The offering of this theory must assume the position that the decedent was in prior to passing out in order to infer what it indicates. As that position has not been established, it lacks reliability and relevance to this case.

4. The crime reconstruction cited above does not attempt to address or account for the bloody fingerprint found on the downstairs shower door which was identified by analyst Harry Reed of the Wisconsin State Crime Laboratory on Wednesday, June 10, 1998 as Jody Pawlak's. The existence of this bloody fingerprint places Jody Pawlak at the decedent's home, in her basement, after the decedent received the injury to her head and prior to the fire.

5. The crime reconstruction cited above states that "There was no other explanation for the death disclosed by the autopsy, other than strangulation/suffocation at the hands of another." While this is true, the discussion of Dr. Teggatz's autopsy above in combination with the Investigative Suggestions outlined in this report indicate that the reason for this dearth of alternate possibilities is the absence of a complete forensic investigation. It is a bit disconcerting that Dr. Schmunk makes no mention of this clear dearth in his opinions.

It should also be noted that there is a discrepancy between the crime reconstruction offered by Dr. Schmunk on January 19, 1999 and a Green Bay Police Department Detail Sheet filed by Lt. Litor on 7-29-98. Dr. Schmunk states:

Ms. Maloney died as the result of strangulation/suffocation as manifested by the petechial hemorrhages and contusions found in the neck region.

Lt. Litor, who traveled to the Brown County Medical Examiner's office to speak with Dr. Schmunk about the death of Sandra Maloney, reports that:

Dr Schmunk said that he could see no evidence that Sandra Maloney died as a result of the fire at 368 Huth. He said that the low level of CO in her system, the minimal amount of soot in her airway, and the lack of petechia hemorrhaging all indicated that Sandra Maloney died without putting up much of a struggle as a result of manual strangulation prior to the fire.

This discrepancy, while perhaps minor, begs investigation.

In summary, it is apparent to this examiner that the opinions relating to crime reconstruction offered by Dr. Schmunk are not based on hypothesis testing, consideration/ investigation of alternate theories or other reasonable means of forensic inquiry. Rather, they appear to be theories developed reductively to fit a homicidal manner of death. This is not a legitimate forensic practice.

Equivocal Analysis of Fire Investigation
A Green Bay Fire Department Incident Report filed by Captain A. Bailey, CFI dated 2-11-98 concludes with the following:

… Heat patterns on the West wall behind the sofa were most intense directly behind the North end of the South sofa section. The ceiling directly above this area exhibited the most intense direct heat exposure, with a section of drywall material having burned through and fallen.

Physical evidence, including the condition of the victim, indicates a fire that was initiated in the cushions of the South section of the two piece sectional sofa. The fire apparently smoldered in the cushions of the sofa, creating dense and toxic smoke and intense localized heat.

The fire continued to burn in the smoldering state until oxygen in the structure was depleted below combustion sustenance levels.

Evidence in the dwelling, including several ashtrays containing cigarette butts, burned and discarded matches on the carpet in the living room and self-extinguished cigarettes on furniture throughout the home, indicate a careless pattern of cigarette smoking by the occupant. The location of the fire's origin supports careless use of smoking materials as the probable ignition source of the fire.

Furthermore, a memo from the Brown County Arson Task Force by Sheriff Thomas J. Hinz, dated 2-11-98, concludes similarly:

The investigators for this fire are myself, Sgt. Ron smith, Capt. Bud bailey, Capt. Richard Barlett, and Detective Joe Kaminski. All of us thought that the fire was caused by smoking materials. The fire was located around or in the sofa area…

At the scene we did not find any fowl play and everything was consistent with accidental death cause by careless use of smoking materials. The victim was transported to St. Vincent's Hospital for x-rays, and then it was suppose to go to Milwaukee for an autopsy. Unless they find something different, this death was an accident.

Paradoxically, investigators from the WDJ, DCI interpreted the same evidence quite differently. A Case Activity report by Special Agent Eggum, dated 2-26-98 concludes:

Accelerants were located on the couch, stuffed into the couch, and in front of the couch. These accelerants were matchbooks, paper, and cloth.

The area of origin also included the body which was on the couch at the time of the fire. S/A Eggum could not eliminate the possibility that the body was also set on fire.

Also on the floor between the davenport and the coffee table around the heavily charred floor there was an irregular burn pattern which appeared to be an accelerant pattern, either solid or liquid. It was also noted that when water was poured on the floor near this charred hole, it ran away from the hole towards the davenport.

The cause of this fire was determined to be deliberately set.

It should be noted that no evidence of liquid accelerant was found at the scene. It should also be noted that SA Eggum states that part of his determination was the "elimination of all accidental causes." This would be consistent with NFPA 921 (1998) guideline 12-5 Ignition Factor (Cause), which states that "Potential causes should be ruled out only if there is definite evidence that they could not have caused the fire." However, in his 18-page report, there is no discussion of any tests performed to falsify the conclusions he has offered. There is furthermore no discussion of any tests performed to falsify the conclusions offered by the Captain Bailey of the Fire Department and the Brown County Arson Task Force which are contrary to his own. This alone would appear to deprive SA Eggum's conclusions of scientific validity or certainty.

It should also be noted that SA Eggum mentions that he did review the autopsy findings, which determined the manner of death to be homicide, before rendering his own conclusions.

In support of the determinations offered in the above mentioned Case Activity report by SA Eggum, the following evidence is offered:

1. "Located between the north cushion and the backrest was a paper napkin or tissue which had been placed between the backrest and the cushion. This paper was twisted as if it was a wick." However, this item was not burned, precluding its use as a wick in the fire associated with Sandra Maloney's death.

2. "Located on top of the davenport between the north and center cushions was a baseball hat with an open burned book of matches under it." This matchbook is listed as an accelerant, however the hat covering it is not burned. This would seem to preclude the involvement of this matchbook in the fire associated with Sandra Maloney's death.

3. "Located on the floor directly next to the davenport and below the second cushion at the north end was a burned book of matches. These matches were directly below the heavily burned section of the second north cushion of the davenport." This matchbook is listed as an accelerant, however the matchbook itself is not burned up. This would seem to preclude the involvement of this matchbook in the fire associated with Sandra Maloney's death.

4. The report makes mention of bloody napkins and / or tissues around cushions in the couch. It also makes mentions of materials as possible "trailers". According to DeHaan (1997):

What appear to be trailers may be artifacts of normal fuel combustion… what appear to be multiple points of origin must be carefully evaluated so as to eliminate their cause…

There is no mention of testing to carefully evaluate and eliminate alternate causes of multiple origins or alternate reasons for the existence of matchbooks and bloody tissues/ napkins in light of potential evidence dynamics associated this fire scene (Chisum & Turvey, 2000). For example, it is possible that the decedent, during attempts to stop bleeding from an accidental head injury, discarded the bloody tissues / napkins on and around the couch. The autopsy findings do not exclude this possibility.

It should be noted that the untested theories given above by SA Eggum regarding fire cause fail to meet the basic standard set forth in NFPA 921 (1998) guideline 12-5 Ignition Factor (Cause) which calls for a thorough crime reconstruction:

…the investigator should be cautious about deciding on a cause of a fire just because a readily ignitable fuel and a potential ignition source are present. The sequence of events that allow the source of ignition and the fuel to get together establishes the cause.

To define the ignition sequence requires determining events and conditions that might have occurred or have been created in the past.

A large amount of physical evidence in this case remains untested (as discussed in the Investigative Suggestions section of this report). Furthermore, SA Eggum does not discuss any findings or history related to the victim's smoking habits. Both of these things being true, a rational argument cannot be made that the events and conditions at the scene have been adequately or reliably established in his findings. This would appear to deprive SA Eggum's conclusions of any validity or reliability.

In summary, it is apparent to this examiner that the determination of the above materials as accelerants and the above fire as intentionally set are not based on hypothesis testing, consideration/ investigation of alternate theories, or other reasonable means of forensic inquiry. Rather, they appear to be theories developed reductively to fit the perception that autopsy findings preclude an accidental cause to the fire. This is not a legitimate forensic practice.

Scene Characteristics
Location & Scene types
: The known death scene in this case was the decedent's residence at 368 Huth Street in Green Bay, Wisconsin. It was an indoor scene as described.

Point of contact: This is defined as the location where an offender first approaches or acquires a victim (Turvey, 1999). As the consideration of this issue presumes the existence of an attacker, and the existence of an attacker is in question, it would inappropriate to speculate about it at this time.

Use of weapons: As the consideration of this issue presumes the existence of an attacker, and the existence of an attacker is in question, it would inappropriate to speculate about it at this time.

Method of approach: This term refers to the offender’s strategy for getting close to a victim (Turvey, 1999). As the consideration of this issue presumes the existence of an attacker, and the existence of an attacker is in question, it would inappropriate to speculate about it at this time.

Method of attack: This term refers to the offender’s mechanism for initially overpowering a victim once they have made their approach. It is appropriate to describe a method of attack in terms of the weapon, and the nature of the force involved (Turvey, 1999). As the consideration of this issue presumes the existence of an attacker, , it would inappropriate to speculate about it at this time.

Methods of control: This term refers to the means used by an offender to manipulate, regulate, restrain, and subdue victim behavior of any kind throughout the duration of an offense (Turvey, 1999). As the consideration of this issue presumes the existence of an attacker, and the existence of an attacker is in question, it would inappropriate to speculate about it at this time.

Use of force: This refers to the amount of force used by the offender during an attack (Turvey, 1999). As the consideration of this issue presumes the existence of an attacker, and the existence of an attacker is in question, it would inappropriate to speculate about it at this time.

Victim resistance: This refers to the amount and type of opposition or non-compliance offered by the victim during an attack (Turvey, 1999). As the consideration of this issue presumes the existence of an attacker, and the existence of an attacker is in question, it would inappropriate to speculate about it at this time.

Sexual acts: A sexual assault examination was made of the decedent at the Milwaukee County Medical Examiner's Office by Dr. John R. Teggatz, Deputy Chief Medical Examiner. Findings were negative. There is subsequently no evidence to support the inference of recent sexual contact of any kind.

Verbal behavior: Unknown.

Evidence of planning and precautionary acts: Precautionary acts are offender choices made before, during, or after an offense that are consciously intended to confuse, hamper, or defeat investigative or forensic efforts for the purposes of concealing their identity, their connection to the crime, or the crime itself (Turvey, 1999). Their existence may be used to suggest planning during various phases of a crime. As the consideration of these issue presume the existence of an attacker, and the existence of an attacker is in question, it would inappropriate to speculate about them at this time.

However, some rather peculiar conclusions have been put forth on this issue in the District Attorney's closing statement, which beg some general discussion.

1. The District Attorney, in his closing statement, argues that the offender placed the victim's bloody shirt in the downstairs laundry hamper to conceal it from investigators. If the offender had the intent to burn the house down, this would seem to be an unnecessary and even contradictory act as the placement of the shirt in a container provides a barrier to the fire. Furthermore, this is precisely the location where dirty clothing is generally placed, and subsequently searched for, in a household. It stands to reason that anyone with basic knowledge of, or experience in, homicide investigation would be aware of this.

2. The District Attorney, in his closing statement, argues that the offender set a sophisticated fire, closing all of the windows in an attempt to create a flashover and destroy all incriminating evidence at the scene. This theory is not sound for the following reasons:

A. While entertaining in works of fiction, a flashover is a very tenuous nail upon which to hang all of one's hopes for destroying incriminating evidence or evidence of a crime. In fact a flashover did not occur in this case. More importantly, a flashover did not occur when Lola Cator opened the door to investigate the residence.

B. If the intent of an arson fire is to destroy incriminating physical evidence, this presumes the existence of incriminating evidence at the scene. The only physical evidence that was found at the scene that incriminates anyone is the bloody fingerprint of Jody Pawlak. Also found was the victim's body, though this circumstance alone does not point to a specific suspect.

C. On the subject of using arson to destroy a body and subsequent associated physical evidence of a crime, the following passage from DiMaio & DiMaio (1993), p.340, is relevant:

Arson in an attempt to burn a body or conceal the cause of death, while infrequent, occasionally occurs. Such attempts are usually in vain, as the first thing the medical examiner establishes is that the individual was dead prior to the fire. It is, in fact, extremely difficult to burn a body due to its high water content. Thus, a body that on the outside shows extensive charring, with heat fractures and partial loss of the extremities, will often show perfect preservation of the internal viscera. Household fires generate temperatures seldom exceeding 1600 F (1200-1600 F). The optimum temperature for cremating a body is generally in the 1800 to 2000 F range, with 1 1/2 to 2 1/2h needed to completely cremate the body. Ordinary house fires lack the intensity and the time to completely incinerate a human body. The only way to properly cremate a body outside of a crematorium is to elevate it, so that as it burns, the melting fat will feed the fire and contribute to the consumption of the body. Bodies lying on flat surfaces tend to be extensively charred on all surfaces, except the surface on the ground. Here, there may be excellent internal preservation.

It stands to reason that anyone with basic knowledge of, or experience in, arson-homicide investigation would know that house fires do not reliably conceal or destroy the human body and subsequent evidence of homicide.

Investigative Suggestions
The following is a list of suggestions for further investigating and establishing the facts of this case:

1. A WDOJ DCI case activity report dated 2-26-98 states on page 8 of 18 that, "The [WDOJ] Crime Lab Response Team also located a fingerprint in a stain suspected to be blood. This fingerprint was located in the shower of the bathroom."

Analyst Harry Reed of the Wisconsin State Crime Laboratory later identified this fingerprint on Wednesday, June 10, 1998 as belonging to Jody Pawlak. The existence of this bloody fingerprint places Jody Pawlak at the decedent's home, in her basement, after the decedent received the injury to her head and prior to the fire. Pawlak was not interviewed about the existence of this bloody fingerprint subsequent to its discovery, nor does Pawlak mention being at the decedent's home subsequent to the decedent's head injury in her statements to authorities.

This examiner cannot emphasize too strongly the potential importance of this evidence. That the authorities did not follow up on this evidence is deeply disturbing. Jody Pawlak should be re-interviewed by a competent, experienced criminal interviewer as a potential suspect in this case.

2. According to a Green Bay Police Department Detail Sheet by Lt. Van Haute, dated 2-19-98, bare footprints were found downstairs in the laundry room and by the shower using the chemical reagent Luminol. Luminol is a presumptive test for blood. There is no indication that conclusive or identifying blood tests were performed subsequent to these findings. There is also no indication that these footprints were compared to any known standards. If the origin of these footprints can be determined, and the substances identified as blood, it may have a significant bearing on the facts of the case. (For example, if these are the decedent's footprints in her own blood, this supports the conclusion that the decedent was downstairs walking around in the laundry room and by the shower after receiving the injury to her head.)

3. A WDOJ DCI case activity report dated 2-24-98 states that "An electrical cord and length of conduit pipe" was removed from the ceiling joist located in the basement family room, evidence item no. 29. There is no mention of these items ever being examined for blood, hair, or other trace/ transfer evidence. In fact, page 8 of the same report states that these items were not sent to the crime lab at all, but rather are sitting in storage in the Green Bay Police Department evidence room with a number of other untested items.

In order to reliably exclude the possibility of scenarios relating to accidental death in this case, the above mentioned examinations are requisite.

4. A WDOJ DCI case activity report dated 2-24-98 states that, "The Crime Lab Response Team also located what was suspected to be blood in other areas of the basement and on the coffee table in front of the couch." It further states that, "A coffee table was located in front of the couch on the east wall of the northeast section of the rec room, and on that coffee table were two video cassette recorders (VCRs)."

There is no mention of any collection, forensic testing, or analysis performed on any of these items of evidence. At the very least, the VCRs should be examined for fingerprints, and the suspected bloodstains tested, typed, and examined with respect to informing crime reconstruction efforts. In addition, DNA testing would seem appropriate.

Reconstruction theories thus far have made no effort to explain evidence found in the downstairs areas of the house. The lack of accounting for evidence located downstairs in reconstruction theories is enabled by the fact that it has gone unexamined and untested.

5. A WDOJ DCI case activity report dated 2-24-98 states that "A corduroy cloth shirt" was removed from a wash basket in the basement utility room of the decedent's residence, evidence item no. 10. It is understood that this item of clothing belonged to the decedent. This item was sent to the crime lab for trace evidence examination. There is no specific mention, however, of attempts to examine the shirt for latent fingerprints. A fingerprint expert should examine the shirt with respect to this issue.

There is also no mention of any examination of bloodstain patterns on the shirt with respect to informing crime reconstruction efforts. The same report states that the shirt had "blood around the collar and its back." This could be consistent with the decedent either standing or sitting in a upright position long enough for such staining to have occurred. Such a finding would contraindicate an attack on the decedent in a supine position immediately following the blow to her head. A blood pattern expert should examine the shirt with respect to this issue.

6. There is some equivocation in the autopsy report prepared by John R. Teggatz, M.D., Deputy Chief Medical Examiner for the Milwaukee County Medical Examiners office. It lists the cause of death as "Probable Manual Strangulation" as opposed to simply "Manual Strangulation". No discussion is offered in his report on this issue. Given the importance of this specific issue, an independent forensic pathologist should be employed to review the autopsy findings related to this specific issue.

7. According to the autopsy and toxicology reports, no specific tests were performed to identify metabolites associated with the many prescription medications that Sandra Maloney was known to be taking (or had access to). In fact, there is no evidence that any medications were recognized, documented, collected and catalogued by crime scene personnel. Without such directed testing, the possibility of a drug overdose combined with excessive alcohol use cannot be reliably eliminated.

In order to reliably rule out this possibility, a complete list of all medications known to be in the possession of Sandra Maloney should be made. Subsequently, her blood and urine should be screened for the corresponding metabolites by a forensic toxicologist.

8. According to the autopsy and toxicology reports, no specific tests were performed to identify the brown liquid contents of the decedent's stomach, or the yellow watery contents of her small intestine. This, in combination with #6, would seem to be a logical step in establishing a cause of death for a decedent with Sandra Maloney's history. A forensic toxicologist should be employed to advise on conducting these tests.

9. According to DeHaan (1997):

Cigarettes and cigars, being sources of smoldering combustion, are much more likely to ignite finely divided cellulose fuels like cotton padding than they are thermoplastics and foams that melt rather than char. Years ago, mattresses and upholstered furniture were made of cushions of cotton batting… covered with natural fiber fabrics of linen or cotton. Thus, a dropped cigarette could burrow into fuel, which would then in turn support a smoldering fire for an extended period of time.

The plausibility of this kind of occurrence may be established in this case by determining the precise make-up of the fuels available in the upstairs couch material. No discussion of the precise materials comprising this couch is made in the various arson reports filed in this case. Furthermore, there is no report which discusses the testing of this material under conditions similar to those at the death scene to determine the plausibility of this kind of occurrence in this particular case. These would seem to be logical steps in making a reliable cause and origin determination, and to reliably exclude the possibility of certain scenarios relating to accidental death in this case.

 

 

______________________________

Brent E. Turvey
Forensic Scientist


References
Baeza, J., Chisum, W.J., Chamberlin, T.M., McGrath, M., Turvey, B. (2000) "Academy of Behavioral Profiling: Criminal Profiling Guidelines," Journal of Behavioral Profiling, January, Vol. 1, No. 1

Chisum, W.J., & Turvey, B. (2000) "Evidence Dynamics: Locard's Exchange Principle & Crime Reconstruction," Journal of Behavioral Profiling, Vol. 1, No. 1

DeHaan, J. (1997) Kirk's Fire Investigation, 4th Ed., Prentice Hall

DiMaio D., DiMaio V. (1993) Forensic Pathology, CRC Press

National Medicolegal Review Panel (NMRP) (1999) Death Investigation: A Guide for the Scene Investigator, National Institute of Justice

NFPA 921: Guide for Fire and Explosion Investigations, 1998 Edition, National Fire Protection Association

Saferstein, R. (1998) Criminalistics: An Introduction to Forensic Science, 6th Ed., Prentice Hall

Thornton, J.I. (1997) "The General Assumptions And Rationale Of Forensic Identification," for David L. Faigman, David H. Kaye, Michael J. Saks, & Joseph Sanders, Editors, Modern Scientific Evidence: The Law And Science Of Expert Testimony, Volume 2, West Publishing Company

Turvey B. (1999) Criminal Profiling: An Introduction to Behavioral Evidence Analysis, Academic Press