Utah v. Cody Lynn Nielsen

Hunt, S. "Profiler to Testify on Death 'Trophies'," The Salt Lake Tribune, February 13, 2003

News Article: Admissibility of profiler testimony.

Previous:

Hunt, S. "Suspect Can Withdraw Guilty Plea to Girl's Murder," The Salt Lake Tribune, February 11, 2003

Allen & Borthick v. Arthur Benjamin

Allen & Borthick v. Arthur Benjamin (2001), Civil nos. 000207561 &  000207562, Salt Lake County, Utah

In this case, Cooper stated in his report that he had read all of the depositions in the case and then testified as much in a sworn deposition. After further examination by opposing counsel, Cooper admitted that he had not actually read the depositions themselves, but rather the summaries prepared by his attorney clients. This accounted for the failure to include vital information from those depositions in his report and subsequent opinions.

He was subsequently removed from the case as an expert witness.

A short time later, he resigned as chief of police in Provo, Utah.

Texas v. Feinberg; Texas v. Yates

Wood, P. "Expert testimony comes with steep cost," The News-Gazette Online, December 6, 2002

News Article: Cost of profiler/ expert testimony. 

Note: Dr. Park Dietz bills out at $600/hour. In the Feinberg case he billed over $30,000 and in the Yates case (which he botched on the stand, see Texas v. Andrea Yates below) he billed around $300,000. That's a lot of money.

Additionally, the argument is made in the article by proponents of Dr. Dietz that he pioneered forensic psychiatry and that his worked led to the development of the FBI's profiling unit. Both claims are patently false, with the pioneering of forensic psychiatry having been done by sexologists from a hundred years ago (like Havelock Ellis, Albert Moll and Magnus Herschfield), and with the FBI profiling unit formed by Howard Teten in the 70s.

Staff "Yates sentenced to life in prison," CNN, March 18, 2002

Issue: Forensic Psychiatrist Park Dietz, testifying for the prosecution, gives testimony that is factually inaccurate on several critical points, negatively impacting the prosecution's case. This is a major embarrassment for Dietz, who when confronted later admitted the errors to his clients. The defense contends that he actually lied in his testimony.

For background on Park Dietz, MD, see: Christian, C. "Prominent expert to testify in Yates trial: State's formidable psychiatrist to rebut defense of insanity," Houston Chronicle, January 4, 2002

Sworn Testimony: Hearing on November 7th, 1996; relating to profiling, psychological autopsy, and motive.

New Jersey vs.
Steven Fortin

Booth, M., "'Linkage Analysis' of Crime Profile Called Junk Science by N.J. Court," New Jersey Law Journal, February 29, 2000

News Article: New Jersey Supreme Court; Admissibility of profiling evidence; expertise of profilers; signature.

New Jersey vs.
Steven Fortin

Siegal, R., "Court rules 'profiler' testimony can't be used to pinpoint suspect," Associated Press, February 24, 2000

News Article: New Jersey Supreme Court; Admissibility of profiling evidence; expertise of profilers; signature.

Appellate Court
New Jersey vs.
Steven Fortin

Appellate Court
New Jersey vs.
Steven Fortin

Supreme Court
New Jersey vs.
Steven Fortin

State of New Jersey v. Steven R. Fortin, February 23, 2000 (A-95/96-98)

Syllabus: Admissibility of modus operandi and signature evidence. Hazelwood's conclusions were too certain, not reliable, and without sufficient foundation. On this basis the original judges ruling that Hazelwood's testimony should be admitted was reversed by the appellate court. The appellate court's ruling was upheld by the State Supreme Court.

News Article: Admissibility of profiling evidence; expertise of profilers

Note: This article incorrectly refers to Mr. Walter as both a "Dr." & a forensic psychologist. He is neither, rather he is a prison therapist with an MA, who works in Michigan.

New Jersey v. Steven Fortin

NEW JERSEY v. STEVEN FORTIN
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION; A-7556-97T3
A-7560-97T3

Argued: December 9, 1998
Decided: March 1, 1999

Legal Brief: Admissibility of modus operandi and signature evidence. Hazelwood's conclusions were too certain, not reliable, and without sufficient foundation. On this basis the original judges ruling that Hazelwood's testimony should be admitted was reversed by the appellate court.

Ohio v. Angela GARCIA, No. 79917,  Aug. 15, 2002 2002 WL 1874535 (Ohio App. 8 Dist.)

Defense alleges potential perjury by McCrary on appeal. 

"McCrary told the jury he had testified in other trials as an expert on crime scene analysis. McCrary failed to disclose the fact, however, that in some of those cases, he was precluded from testifying about "profiling" and was limited to the area of crime scene analysis only. Garcia states "the state's crime scene investigator either perjured himself or a number of appellate decision's [sic] upholding profiling were decided in the short time between his testimony in Tennessee v. Stevens, supra and his testimony in this case."

Court found that McCrary's testimony "improperly invaded the jury's province."

Excerpt:

"McCrary, a crime-scene analyst, testified that, in his expert opinion, the fire had all the earmarks of being an "arson for profit." Tr. 2771-2772"

"Upon Garcia's objection to McCrary's testimony, the trial court correctly conducted a voir dire examination in order to determine whether he qualified as an expert. McCrary testified that though he regards himself as a criminal profiler, his role in the case at bar was to provide an expert opinion based upon his criminal investigative analysis of the evidence in the case. McCrary stated that he became experienced in crime scene analysis during his 25 years with the FBI. McCrary admitted that he is not an arson expert. Tr. 2784. When asked why he believed his expert opinion would assist the jury, McCrary stated that "it would help the jury understand issues such as * * * potential motive * * *." Tr. 2712-2714. The trial court qualified McCrary as an expert and permitted him to articulate his opinion about why the fire occurred. Tr. 2748.

*7 {¶  50} At trial, McCrary testified that crime scene analysis requires one to look at the totality of the circumstances surrounding a crime, namely, interviewing witnesses, using informants, investigation of the evidence gathered from the crime scene itself, and any evidence related thereto. Tr. 2742-2762.

{¶51} McCrary listed the items he reviewed before reaching his conclusions about the fire. McCrary looked at virtually all the state's evidence including information relating to insurance claims made by Garcia in the past along with the policies she had purchased before the fire. Tr. 2715, 2766-2771. When asked to proffer his opinion about what type of arson had been committed in this case, McCrary offered the following testimony:

{¶52} "Q: What's the significance of looking at a defendant's actions and determining whether or not they meet up with her intent to commit the crime and whether or not the actions are more indicative of insurance claim or buying of the home?

{¶  53} " * * *

{¶  54} "A: * * * when we look at all the totality of the circumstances, in my opinion it looks more like positioning one's self for potential insurance fraud--

{¶  55} " * * *

{¶  56} "Q: Testified about the different categories of arson, is that correct?

{¶  57} "A: Yes, sir.

{¶  58} " * * *

{¶  59} "Q: Based upon the information that you have reviewed and the hypothetical questions that I have given you here, which category of arson would this more than likely have been used in, sir?

{¶  60} " * * *

{¶  61} "A: It is my opinion that this is more consistent with a for-profit arson, an arson for profit than it is any of the other categories." Tr. 2771- 2772."

Estate of Sam Sheppard v. State of Ohio

Ewinger, J. & Hagan, J., "Expert Suspects Domestic Killing," The Cleveland Plain Dealer, April 4, 2000

News Article: Admissibility of profiling evidence; crime scene staging; domestic homicide; sadism. General testimony about what these things are allowed, but McCrary not allowed to testify about his opinions regarding the physical evidence in this case. McCrary admits no experience investigating domestic homicides and a lack of formal educational background in criminology or related areas (FYI- McCrary's formal education consists of a music degree and a non-clinical education degree in professional psychology).

McKnight, K., "Expert's Opinion Challenged," Ohio Beacon Journal, April 1, 2000

News Article: Admissibility of profiling evidence; crime scene staging; domestic homicide; sadism. General testimony about what these things are allowed, but McCrary not allowed to testify about his opinions regarding the physical evidence in this case.

Potential false testimony

On January 24, 2000, Gregg O. McCrary gave a deposition related to his opinions this case (Alan Davis, et al, v. State of Ohio, No. 312322), in which he gave the following sworn testimony (p.121 - open with fax viewer):

Q. In a sex crime you say the offender exposes his victims breasts so that he may physically fondle and manipulate them.

Where does that come from?

A.It comes from looking at hundreds of thousands of rapes.

Q. That happens in all rapes?

A. Generally, there is some manipulation of the breasts, yes, sir.

McCrary was not in law enforcement prior to his work in the FBI. He asserts that he worked for the FBI's Behavioral Science Unit from 1988 to 1994, when he retired. He started work for the FBI in 1969. He worked for the FBI for 25 years. 

Given that he would not have started examining rapes until his tenure are the BSU, it is fair to say that the most number of years he could have been performing this kind of examination is from 1988 until the year of the deposition in 2000 (12 years). The least amount of rapes he claims to have looked at is 200,000.

12 years = 4,380 days.

200,000 rape cases /  4,380 days = 45-46 rape cases looked at a day.

At 25 years of experience it's 22 rape cases a day.

So either this testimony is a gross overstatement of McCrary's experience regarding rape cases, or his experience with each rape case is so fleeting (given the limited number of hours in a day) that he could not possibility have assimilated the nuances of each, calling in to question the quality of that experience.

TRANSCRIPT OF TELEPHONE INTERVIEW WITH DEFENSE EXPERT WITNESS GREGG McCRARY
Date: 10/27/98

Pre-trial Interview: Gregg McCrary's profiling background; Organized/ Disorganized in court; Definitions of profiling; Not fitting the profile. Testimony allowed but not yet available.

Search Warrant: Executed on February 19th, 1993; includes truncated Criminal Profile

Garr, G. "Police lawyers' bills quadruple," Vancouver Courier, December 19, 2001

Skelton, C. "Rossmo case airs police laundry," Vancouver Sun, November 5, 2001

Garr, G. "Cops armed and mendacious," Vancouver Courier, October 29, 2001

Kines, L. & Skelton, C. "Deputy chief told aide he would lie, lawyer says But judge disallows testimony of assistant to high-ranking cop," Vancouver Sun, October 25, 2001

Garr, G. "Trial dishes poop on cop coop," Vancouver Courier, July 5, 2001

"Ex-cop attacks police over missing women," The Nanaimo Daily News, June 26, 2001

Decided: Case dismissed by court.

Court Opinion: This case involves the dismissal of Kim Rossmo from the Vancouver Police Department. After five years, he was dismissed from service in July 6, 2000, in part because his method of geographic profiling had not solved a single case, had been used internally only once or twice, and because he spent most of his time traveling to assist other departments. 

Dr. Rossmo sued for wrongful termination/ dismissal and his case was ultimately dismissed by the court for lack of actual torts. You would think that his lawyer would have caught that before filing the lawsuit. That is, unless the whole claim of wrongful termination was an attempt to extort the department with the embarrassing publicity of a lawsuit.

News Article: Profile of serial rapists - testimony of FBI Profiler Mark Safarik disallowed, regarding whether or not defendant fit the profile of a serial rapist. Testimony referred to as too speculative.

Legal Brief: Reversal of first degree murder conviction; Barring of Smerick's expert testimony (an FBI crime analyst testifying about proper bullet location [a crime reconstruction issue]) at the original trial given as one of two reversible errors.

News Article: Civil case involving testimony about the likely behavior of convicted serial rapist Ronnie Matthews; Premise Liability

Decided: November 24, 1998

Legal Brief: Civil case involving testimony about the likely behavior of convicted serial rapist Ronnie Matthews; Premise Liability

Branch Davidian Trial Transcripts

Drake v. Portuondo

Drake v. Portuondo, United States District Court, Western District of New York, 99-CV-0681E(Sr), Memorandum and Order, March 16, 2006 - Walters false testimony investigated and confirmed by a federal judge.

Decided: March 16, 2006

Federal judge John T. Elfvin concluded that it was reasonable to presume that Walter had perjured himself with regards to his qualifications in the Drake case. Moreover, Judge Elfvin found that Walter had made additional false and misleading statements about his credentials while under oath that could not be conclusively referred to as perjury, which is a specific legal charge. 

"...Walter attended psychological profiles, not that he developed such profiles or that he was expected to develop such profiles in the course of his duties. What is clear is that Walter engaged in the tasks he described at trial only informally and on his own initiative and that he was not employed by the Medical Examiner’s Office to do so. Thus, his trial testimony was false.

Furthermore, the Court cannot conclude that Walter was confused or misled by the prosecutor’s question at trial. The prosecutor asked simply, “What did you do for the Medical Examiner’s Office?” The natural response to such question is a description of the work one is paid to perform. From all indications, if Walter had performed only those tasks he described at Drake’s trial, he would not have been performing the job he was apparently hired to do. Despite all evidence — including Walter’s own deposition testimony — demonstrating that one of Walter’s primary responsibilities was working in and maintaining the laboratories, at the Drake trial Walter did not even mention any work in the laboratories. Thus, the Court cannot conclude that Walter’s false testimony in this regard could have been caused by confusion or mistake. Accordingly, for purposes of this motion, the Court will presume that Walter committed perjury. The testimony clearly was false."

According to the American Academy of Forensic Science, Richard Walter remains a Fellow in the General Section. It is disheartening that a convicted murderer has done a better job of researching the expert credentials of Mr. Walter than this professional organization. This finding is shameful to the forensic community, and one can only hope that the appropriate sanctions are levied against Mr. Walter for his actions.

Drake v. Portuondo

Drake v. Portuondo, Docket No. 01-2217, January 31, 2003 (321 F.3d 338)

Argued: September 9, 2002
Decided: January 31, 2003

Habeas Relief Granted: In this case, the defense found, the prosecution conceded, and the court agreed that criminal profiler Richard D. Walter perjured himself in regards to his qualifications during sworn expert testimony in double homicide shooting case.

 According to the court record: 

"It is now apparent that Walter's testimony concerning his qualifications was perjurious.  He claimed extensive experience in the field of psychological profiling, including: work on 5000 to 7500 cases over several years in the Los Angeles County Medical Examiner's Office; an adjunct professorship at Northern Michigan University; more than four years as a prison psychologist with the Michigan Department of Corrections; and expert testimony given at hundreds of criminal trials in Los Angeles and Michigan.

...

Years after exhausting his direct appeals, Drake discovered evidence, through his own research in prison, that Walter had lied about his credentials.  Although Walter is a prison psychologist with the Michigan Department of Corrections, Drake found suggestive evidence that Walter lied about his other credentials.  As the prosecution now concedes, Walter performed no criminal profiling in the Los Angeles County Medical Examiner's Office.  According to Walter's supervisors there, he was employed as a lab assistant responsible for cleaning and maintaining the forensic lab.  There seems to be no record that Walter was ever on the payroll of Northern Michigan University, where he claimed to be an adjunct professor. The Los Angeles County District Attorney's office has found no record of Walter testifying as an expert witness in a criminal proceeding between October 1975 through May 1978.

...

Drake's petition for habeas relief, and remand to the district court for discovery and a hearing (if the district court in its discretion considers that a hearing is needed) on whether the prosecution knew (or should have known) that its expert, [criminal profiler] Richard D. Walter, was committing perjury."

According to the American Academy of Forensic Science, Richard Walter remains a Fellow in the General Section. It is disheartening that a convicted murderer has done a better job of researching the expert credentials of Mr. Walter than this professional organization. This finding is shameful to the forensic community, and one can only hope that the appropriate sanctions are levied against Mr. Walter for his actions.

News Article: Admissibility of profiling evidence; expertise of profilers

Note: This article incorrectly refers to Mr. Walter as both a "Dr." & a forensic psychologist. He is neither, rather he is a prison therapist with an MA, who works in Michigan.

California v. Larry Kusuth Hazlett

Swenson, S. "Man accused in slaying has long history of arrests," The Bakersfield Californian, December 19, 2002

News Article: Use of profile evidence in court.

Decided: December 13th, 2000

Court Opinion: This case involves admission of a redacted FBI profile, and the issue of qualifying profilers as experts in a civil case. Involves civil case filed by family of homicide victim Shannon Schieber.

UNITED STATES OF AMERICA v. ROY VAN WYK, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, Crim. No. 99-217 (WGB)

Date: February 8, 2000

Motion in Limine & Ruling: Motion in federal court to exclude the testimony of FBI profiler SA Jim Fitzgerald in the area of Forensic stylistics. Court rules to bar his testimony about author psychological characteristics as highly prejudicial propensity evidence in disguise. Court rules to allow his testimony related to markers showing similarities between handwritten and typed writing.

Date: 6/21/99

Published Opinion: Admissibility of expert testimony on the issue of Rape Trauma Syndrome. Testimony allowed.

Hunt, S., "'Olympic Bombing Suit Leads to Contempt Order for Reporters" Fulton County Daily Report, June 3, 1999

News Article: Olympic Park Bombing; issue relating to source of profile of Richard Jewell released to the media.

News Article: Admissibility of Modus Operandi and Signature behavior; Utah rule of evidence 404(b).

News Article: Serial killer statutes, modus operandi, signature

News Article: Serial killer statutes, modus operandi, signature

News Article: Munchausen's Syndrome by Proxy

Decided: December 30, 1998

Published Opinion: Holds that the courts refusal to admit profiling testimony in the guilt phase of a trial is a reversible error.

News Article: Modus Operandi, Signature, Stockholm syndrome

News Article: Crime Scene Characteristics, Offender Characteristics, Objectivity

News Article: Testimony of a psychologist in a criminal case; fitting the profile of a rapist. (Dubria was subsequently convicted on February 19th, 1993 of rape-homicide and sentenced to life)

News Article: Testimony of a criminal profiler in civil cases; fitting the profile