William Kelly Posted October 28, 2006 Share Posted October 28, 2006 (edited) Introduction If there is ever any resolution to the political assassinations and civil rights murders of the 50s and 60s, Federal grand juries are likely to play a central role in these investigations, just as they did in the investigation of the assassination on Embassy Row, Medgar Evers, the Oklahoma City bombing, the 1993 World Trade Center bombing, and the bombing of two U.S. embassies in Africa. This article explains how grand juries can be used in these types of investigations. It also seeks to demystify the grand jury, the least understood and most secretive component of the American justice system. And it outlines some of the challenges involved in conducting such an investigation. Why use a grand jury? Why can’t federal agents just conduct the investigation? Federal grand juries do two things: They investigate to determine if federal crimes have been committed; and they indict, or bring criminal charges against, those whom the grand jury believes committed federal crimes. To indict, the grand jurors must have probable cause to believe the persons indicted did violate federal criminal law. Grand juries offer prosecutors several advantages in conducting a criminal investigation, especially a high-profile, factually complicated investigation. For one thing, grand juries operate in secret; this not only gives prosecutors the ability to shield the evidence they are gathering from disclosure to the press and others, it can also encourage people to cooperate with a grand jury. Unless a witness reveals that he or she testified before a federal grand jury, no one ever needs to know that occurred, and since the transcripts of grand jury testimony are secret, no one will know what the witness said. This can be an advantage in an investigation, such as an investigation into political assassination, organized crime or terrorism, where witnesses may be afraid of retaliation if they cooperate with investigators. Grand juries also give prosecutors the power to subpoena witnesses and evidence from around the country and, in some circumstances, from other countries, as well. If federal agents want to interview someone, the person can refuse to speak to them; this is true even if the person is arrested as a material witness, because persons who are arrested can invoke the Miranda rights to silence and to an attorney. The U.S. Supreme Court has held, however, that the Miranda rights are not available to witnesses subpoenaed to testify before a grand jury. Unlike someone being interrogated by federal agents, a grand jury witness not only has not right to silence or counsel, he or she is required to answer questions posed by the prosecutor working with the grand jury and by the grand jurors. A grand jury witness can refuse to answer if he or she can invoke the Fifth Amendment as to a question, but the privilege must be claimed as to each question and the prosecutor can challenge a witness' ability to invoke the privilege. And even if a witness shows that he or she is entitled to invoke the Fifth Amendment privilege, a prosecutor can deprive the witness of that right by giving the person immunity. Once the person has been given immunity, he or she has to answer the grand jury’s questions; if the witness still refuses to answer, the person will be incarcerated for civil contempt until he or she complies. People have been served up to eight years for refusing to speak when ordered to; Susan McDougall, who was subpoenaed by the White Water grand jury, served 18 months for civil contempt when she refused to cooperate with that grand jury. Grand juries also certain advantages in regard to gathering documents and other types of physical evidence. Assume agents want to obtain bank records that may provide evidence about the activities of those individuals of investigative interest. To get a search warrant for the records, the agents have to convince a magistrate that they have probable cause to believe the records are evidence of the commission of a federal crime; while the agents may be able to do this, gathering the information they need to present to the magistrate and completing a warrant application take time. A grand jury, on the other hand, can issue an evidence subpoena (called a subpoena duces tecum) for records or other evidence whenever it likes; the grand jury does not have to show probable cause or, indeed, establish any other evidentiary standard to issue subpoenas for documents, computers, blood samples or any other type of physical evidence. Grand juries are given wide latitude in conducting their investigations, so they can cast a wide net in issuing subpoenas for witnesses and for evidence. Finally, grand juries can hear evidence that is not admissible in court. They can consider hearsay evidence which would not be allowed at trial and evidence obtained as the result of an illegal search and seizure that violated the Fourth Amendment. Whom may a grand jury subpoena? Does the location of a witness make a difference? A federal grand jury has the power to serve a subpoena on any person within the United States. Thus, both U.S. citizens and visitors to the U.S. may be compelled to testify and/or provide physical evidence. A federal grand jury also has the authority to subpoena U.S. citizens and residents abroad. Federal law currently does not grant grand juries the power to subpoena non U.S. citizens and residents abroad. However, in the wake of the attacks of September 11 and the fear of further attacks, every possibility exists that Congress will elect to extend the reach of grand jury subpoenas. Congress is also considering the Henry Till Act, to from a Federal Task Force t investigate and prosecute unsolved, cold case civil rights murders of the 50s and 60s, and the provisions of the Patriot Act could give prosecutors extended powers of investigation of past acts of domestic terrorism that may be applied to an investigation of the Kennedy assassination. The Grand Jury can hear expert witnesses to review medical and ballistics evidence, and material witnesses, who are persons whom federal authorities have probable cause to believe have crucial information pertaining to the crime at issue. Who serves on a grand jury? A federal grand jury is composed of 16-23 people. At least sixteen jurors must be present for a grand jury to conduct business. At least twelve jurors must vote to return an indictment; if fewer than twelve vote to return an indictment, it fails and no charges are brought. Grand jurors come from every walk of life. The idea is to have average American citizens who, as the U.S. Supreme Court said in Wood v. Georgia, stand “between the accuser and the accused, whether the latter be an individual, a minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Can more than one grand jury investigate the assassination? There may be one grand jury or there may be several. A federal grand jury sits in a particular judicial district and can only investigate and return charges for crimes that were committed in the district where it sits. A grand jury can, however, investigate “continuing offenses” that were committed in more than one district. Federal prosecutors could, therefore, interpret the murder of the President, the wounding of Governor Connally and James Tague and the murder of J.D. Tippit as a single “continuing offense,” in which case the grand jury could extend their investigation. Alternatively, prosecutors may decide to convene a separate grand jury in the District of Columbia to investigate the Washington aspects of the assassination, such as the autopsy, and they might decide to convene another grand jury in New Orleans, Louisiana, to investigate other aspects of the case. Multiple grand juries can conduct investigations simultaneously, and witnesses cannot object if they are called to testify by more than one grand jury. Alternatively, grand juries can share transcripts of testimony they have heard with other federal grand juries. It is also possible that a Texas and Louisiana state grand juries could be convened to investigate the assassination and bring charges for conspiracy. A state grand jury investigation becomes more probable if state officials are dissatisfied with a federal prosecution. And there is no double jeopardy bar to prosecuting perpetrators at both the state and federal levels. This is illustrated by the Oklahoma state grand jury indictment of Terry Nichols, Timothy McVeigh’s accomplice in the bombing of the Oklahoma City federal building. Will we hear about the grand jury investigation(s) of the assassination? Will this be like the grand jury Kenneth Starr used to investigate the Clinton-Lewinsky relationship? Notwithstanding grand jury secrecy, the public learned quite a lot about what the grand jury investigating the Clinton-Lewinsky relationship was doing. This information came from two sources: leaks from those involved with the investigation and statements by witnesses subpoenaed by the grand jury. Neither of these is likely to occur with the grand jury or the grand juries investigating the assassination. The witnesses in the assassination could, like the witnesses in the Clinton-Lewinsky investigation, reveal the fact that they testified before a grand jury and describe what they said in their testimony. The law of grand jury secrecy does not apply to grand jury witnesses, only to prosecutors, grand jurors, court reporters and others who assist with a grand jury investigation. Some grand jury witnesses will no doubt keep silent out of respect for the investigation, on the theory that revealing their testimony might help the targets of the investigation escape justice. It is also possible that a federal court could order a witness to remain silent about the fact that he or she testified and about the substance of their testimony until the investigation has concluded; the U.S. Supreme Court has held that witnesses cannot be forever barred from disclosing this information, but the Court would likely uphold requiring a witness to remain silent until the investigation was complete. Basic Background on Federal Grand Juries Because of the Fifth Amendment, the federal legal system has to use grand juries to bring charges, at least for certain offenses. The Fifth Amendment to the U.S. Constitution requires that charges for all capital and "infamous" crimes be brought by an indictment returned by a grand jury. The amendment has been interpreted to require that an indictment be used to charge federal felonies, unless a defendant waives his or her right to be indicted by a grand jury. The Supreme Court has held that this part of the Fifth Amendment is not binding on the states, so they can use grand juries or not, as they wish. (If a defendant waives his or her right to be indicted by a grand jury, the prosecutor can charge them by using an "information." An information is simply a pleading that accuses the defendants of committing crimes, just as an indictment does. The difference between an indictment and an information is that a grand jury must approve an indictment, while a prosecutor can issue an information without the grand jury's approval or, for that matter, without ever showing the information to the grand jury.) Since most federal prosecutions involve felony charges, grand juries play an important role in enforcing federal criminal law. The sections below describe the essential aspects of federal grand juries. Size of the grand jury Federal grand juries are composed of between 16 and 23 individuals. Sixteen is the minimum and 23 is the maximum number that can constitute a federal grand jury. The size of the federal grand jury is set by Rule 6(a)(1) of the Federal Rules of Criminal Procedure. Quorum of jurors needed to conduct business The quorum is the minimum number of jurors that need to be present for a grand jury to be able to conduct business, such as considering whether charges should be brought against someone or investigating criminal activity. No statute or court rule defines the quorum for federal grand juries, but federal courts have inferred that at least 16 jurors must be present for a grand jury to convene and conduct business. The number 16 comes from Rule 6(a)(1) of the Federal Rules of Criminal Procedure, which says that a federal grand jury must consists of between 16 and 23 jurors. If less than 16 jurors appear, the grand jury cannot convene. Alternate and replacement grand jurors Under Rule 6(a)(2) of the Federal Rules of Criminal Procedure, a federal court can, but does not have to, choose alternate grand jurors when it impanels a federal grand jury. If a judge has chosen one or more alternates, they replace jurors who are excused (usually for illness or other conditions constituting a hardship). If a court has not chosen alternates, it can replace excused grand jurors by simply choosing other individuals to serve. Grand jury officers Under Rule 6 of the Federal Rules of Criminal Procedure, a federal court must appoint both a foreperson and a deputy foreperson when it impanels a grand jury. The foreperson or, in her absence, the deputy foreperson administers oaths to witnesses who testify before the grand jury and presides over the grand jury's sessions, ensuring that a quorum is present and handling other administrative matters. The rule does not provide for the appointment of a grand jury secretary, but the custom in some federal judicial districts is to appoint a grand jury secretary. The secretary records the attendance of specific jurors and witnesses, and may record the grand jury's vote on indictments presented to it. Grand jury room Since grand jury proceedings are secret, grand juries meet in private, which means they usually meet in areas that are not accessible to the public. Federal grand juries meet in special "grand jury rooms" that are located in generally out of the way areas of a federal courthouse. Gathering evidence Grand juries use subpoenas to gather the evidence they need to use in deciding whether crimes have been committed. They can subpoena documents and physical evidence (including videotapes, guns, etc.) and they can subpoena witnesses to testify. In the federal system, grand juries are more likely to hear testimony from federal agents (FBI, DEA, BATF, IRS) than from police officers, but they do sometimes hear from police officers, as well. They are most likely to hear from police officers when they are investigating, for example, drug trafficking or corruption in local government. In the federal system, witnesses cannot be accompanied into the grand jury room by their attorney, if they have one. Below, you can see a grand jury witness (the gentleman) consulting, in the hall outside the grand jury room, with his attorney. The witness will then have to go back inside the grand jury room, and if he wants to consult with his attorney again, will have to ask permission to go outside and do so. Grand jury's term Federal grand juries are of two types--regular and special. Regular grand juries sit for a basic term of 18 months, but that term can be extended up to another 6 months, which means their total possible term is 24 months. Special grand juries sit for 18 months, but their term can be extended for up to another 18 months; a court can extend a special grand jury's term for 6 months, and can enter up to three such extensions, totaling 18 months. How often a grand jury meets Federal grand juries meet regularly, but the frequency of their meetings varies from one federal judicial district to another. Several grand juries may be meeting at the same time in large urban areas, while grand juries convened in less populous districts may only meet once a week or once a month. Generally, federal grand juries tend to meet when prosecutors need them to consider proposed indictments or to investigate possible criminal activity. Recording grand jury proceedings The recording of federal grand jury proceedings was not explicitly authorized until Rule 6 of the Federal Rules of Criminal Procedure was adopted in 1946. It allowed proceedings to be recorded, but did not require that a record be made. Rule 6 was revised in 1979, and now requires that federal grand jury proceedings be recorded, either stenographically or electronically. Prosecutorial Misconduct Recording was made mandatory as a check on prosecutorial abuse of the grand jury process; the drafters of the revised rule believed prosecutors would be less likely to engage in misconduct before a grand jury if they knew a record was being kept of their activities. Click here for more information on prosecutorial misconduct. Grand jury functions Historically, grand juries have performed two functions. They decided whether someone should be charged--"indicted"--for committing a crime. They also investigated criminal activity and the conduct of public affairs. Before the American Revolution, colonial grand juries essentially ran local government, supervising everything from road-building and bridge maintenance to the operation of local jails. Over the years, they lost much of their public affairs function, as the operation of local government was taken over by administrative agencies, an institution that did not exist in colonial times. In the modern federal system, grand juries do not investigate civil matters. In fact, it is an abuse of the grand jury process to use a federal grand jury to gather evidence for use in a civil proceeding. Federal grand juries concentrate on investigating and bringing charges for federal crimes. There are two kinds of federal grand juries: Regular federal grand juries and special federal grand juries. Regular federal grand juries tend to spend their time hearing evidence and considering indictments submitted to them by a prosecutor. They spend the bulk of their time deciding, therefore, whether probable cause exists to return a set of proposed charges against the defendants names therein. Special federal grand juries were created in 1970 specifically to investigate organized crime. They, too, consider whether indictments should be returned against certain persons, but special grand juries also devote a great deal of their time to investigating possible criminal activity. The case of the murder of the President calls for a Special Grand Jury. Who takes a case to a grand jury? The District Attorney, Assistant District Attorney or Prosecutor of the jurisdiction where the crime was committed is responsible for taking the case to a grand jury. What is a Grand Jury Petition-Request? A Grand Jury Petition-Request is a petition from citizens to request the responsible district attorney to convene a grand jury to evaluate the evidence of a crime and determine if any individuals should be indicted. Bill Kelly/adapted from information provided by Professor Susan Brenner's web site. You can learn more about federal, and state, grand juries and share your experiences with grand juries at this web site: http://www.udayton.edu/~grandjur. xxxxx Edited October 28, 2006 by William Kelly Link to comment Share on other sites More sharing options...
William Kelly Posted November 9, 2006 Author Share Posted November 9, 2006 (edited) FIFTH AMENDMENT RIGHTS OF PERSONS No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. INDICTMENT BY GRAND JURY The history of the grand jury is rooted in the common and civil law, extending back to Athens, pre–Norman England, and the Assize of Clarendon promulgated by Henry II.1 The right seems to have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York.2 Included from the first in Madison’s introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition. “The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments[p.1274]or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.”3 The prescribed constitutional function of grand juries in federal courts4 is to return criminal indictments, but the juries serve a considerably broader series of purposes as well. Principal among these is the investigative function, which is served through the fact that grand juries may summon witnesses by process and compel testimony and the production of evidence generally. Operating in secret, under the direction but not control of a prosecutor, not bound by many evidentiary and constitutional restrictions, such juries may examine witnesses in the absence of their counsel and without informing them of the object of the investigation or the place of the witnesses in it.5 The exclusionary rule is inapplicable[p.1275]in grand jury proceedings, with the result that a witness called before a grand jury may be questioned on the basis of knowledge obtained through the use of illegally–seized evidence.6 In thus allowing the use of evidence obtained in violation of the Fourth Amendment, the Court nonetheless restated the principle that, while free of many rules of evidence that bind trial courts, grand juries are not unrestrained by constitutional consideration.7 A witness called before a grand jury is not entitled to be informed that he may be indicted for the offense under inquiry8 and the commission of per[p.1276]jury by a witness before the grand jury is punishable, irrespective of the nature of the warning given him when he appears and regardless of the fact that he may already be a putative defendant when he is called.9 .... Besides indictments, grand juries may also issue reports which may indicate nonindictable misbehavior, mis– or malfeasance of[p.1277]public officers, or other objectionable conduct.14 Despite the vast power of grand juries, there is little in the way of judicial or legislative response designed to impose some supervisory restrictions on them.15...... III. GRAND JURY, INDICTMENT, INFORMATION > Rule 6. Rule 6. The Grand Jury (a) Summoning a Grand Jury. (1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement. (2) Alternate Jurors. When a grand jury is selected, the court may also select alternate jurors. Alternate jurors must have the same qualifications and be selected in the same manner as any other juror. Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror is subject to the same challenges, takes the same oath, and has the same authority as the other jurors. ( Objection to the Grand Jury or to a Grand Juror. (1) Challenges. Either the government or a defendant may challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally qualified. (2) Motion to Dismiss an Indictment. A party may move to dismiss the indictment based on an objection to the grand jury or on an individual juror's lack of legal qualification, unless the court has previously ruled on the same objection under Rule 6( (1). The motion to dismiss is governed by 28 U.S.C. § 1867(e). The court must not dismiss the indictment on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment. © Foreperson and Deputy Foreperson. The court will appoint one juror as the foreperson and another as the deputy foreperson. In the foreperson's absence, the deputy foreperson will act as the foreperson. The foreperson may administer oaths and affirmations and will sign all indictments. The foreperson -- or another juror designated by the foreperson -- will record the number of jurors concurring in every indictment and will file the record with the clerk, but the record may not be made public unless the court so orders. (d) Who May Be Present. (1) While the Grand Jury Is in Session. The following persons may be present while the grand jury is in session: (I) attorneys for the government, (II) the witness being questioned, (III) interpreters when needed, and (IV) a court reporter or an operator of a recording device. (2) During Deliberations and Voting. No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting. (e) Recording and Disclosing the Proceedings. (1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporter's notes, and any transcript prepared from those notes. (2) Secrecy. (A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(. ( Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury: (i) a grand juror; (ii) an interpreter; (iii) a court reporter; (iv) an operator of a recording device; (v) a person who transcribes recorded testimony; (vi) an attorney for the government; or (vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii). (3) Exceptions. (A) Disclosure of a grand-jury matter -- other than the grand jury's deliberations or any grand juror's vote -- may be made to: (i) an attorney for the government for use in performing that attorney's duty; (ii) any government personnel -- including those of a state or state subdivision or of an Indian tribe -- that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; or (iii) a person authorized by 18 U.S.C. § 3322. ( A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist an attorney for the government in performing that attorney's duty to enforce federal criminal law. An attorney for the government must promptly provide the court that impaneled the grand jury with the names of all persons to whom a disclosure has been made, and must certify that the attorney has advised those persons of their obligation of secrecy under this rule. © An attorney for the government may disclose any grand-jury matter to another federal grand jury. (D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counterintelligence (as defined in 50 U.S.C. § 401a), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties. (i) Any federal official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. (ii) Within a reasonable time after disclosure is made under Rule 6(e)(3)(D), an attorney for the government must file, under seal, a notice with the court in the district where the grand jury convened stating that such information was disclosed and the departments, agencies, or entities to which the disclosure was made. (iii) As used in Rule 6(e)(3)(D), the term ÍÍforeign intelligence information'' means: (a) information, whether or not it concerns a United States person, that relates to the ability of the United States to protect against -- • actual or potential attack or other grave hostile acts of a foreign power or its agent; • sabotage or international terrorism by a foreign power or its agent; or • clandestine intelligence activities by an intelligence service or network of a foreign power or by its agent; or ( information, whether or not it concerns a United States person, with respect to a foreign power or foreign territory that relates to -- • the national defense or the security of the United States; or • the conduct of the foreign affairs of the United States. (E) The court may authorize disclosure -- at a time, in a manner, and subject to any other conditions that it directs -- of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury; (iii) at the request of the government if it shows that the matter may disclose a violation of state or Indian tribal criminal law, as long as the disclosure is to an appropriate state, state-subdivision, or Indian tribal official for the purpose of enforcing that law; or (iv) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law. (F) A petition to disclose a grand-jury matter under Rule 6(e)(3)(E)(i) must be filed in the district where the grand jury convened. Unless the hearing is ex parte -- as it may be when the government is the petitioner -- the petitioner must serve the petition on, and the court must afford a reasonable opportunity to appear and be heard to: (i) an attorney for the government; (ii) the parties to the judicial proceeding; and (iii) any other person whom the court may designate. (G) If the petition to disclose arises out of a judicial proceeding in another district, the petitioned court must transfer the petition to the other court unless the petitioned court can reasonably determine whether disclosure is proper. If the petitioned court decides to transfer, it must send to the transferee court the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand-jury secrecy. The transferee court must afford those persons identified in Rule 6(e)(3)(F) a reasonable opportunity to appear and be heard. (4) Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment's existence except as necessary to issue or execute a warrant or summons. (5) Closed Hearing. Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury. (6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury. (7) Contempt. A knowing violation of Rule 6 may be punished as a contempt of court. (f) Indictment and Return. A grand jury may indict only if at least 12 jurors concur. The grand jury -- or its foreperson or deputy foreperson -- must return the indictment to a magistrate judge in open court. If a complaint or information is pending against the defendant and 12 jurors do not concur in the indictment, the foreperson must promptly and in writing report the lack of concurrence to the magistrate judge. (g) Discharging the Grand Jury. A grand jury must serve until the court discharges it, but it may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury's service. An extension may be granted for no more than 6 months, except as otherwise provided by statute. (h) Excusing a Juror. At any time, for good cause, the court may excuse a juror either temporarily or permanently, and if permanently, the court may impanel an alternate juror in place of the excused juror. xxxxx Edited November 9, 2006 by William Kelly Link to comment Share on other sites More sharing options...
William Kelly Posted November 9, 2006 Author Share Posted November 9, 2006 Federal Grand Jury Petition (Request) to evaluate the existing evidence and investigate the homicide of John F. Kennedy, the attempted murder of John B. Connally, the wounding of James Tague and the murders of J. D. Tippit and Lee Harvey Oswald in Dallas, Texas in Nov. 1963. To: Richard B. Roper, U.S. Attorney for Federal District of North Texas, Earle Cabell Federal Building, 1100 Commerce St., 3rd Floor, Dallas, Texas, 75242-1699 We citizens of the United States of America do hereby petition you Richard B. Roper [u.S. Attorney for Federal District of North Texas] to fulfill your obligations [under U.S. Code : Title 18, Section 3331(Summoning and term) –3332 (Powers & Duties) & 3331 (Reports); Or appropriate statute for correct jurisdiction]; See: Documentary Exhibits #1 (a), (, ©] and carry out your duties to convene a grand jury of American citizens to “operate as an investigative agency…in cases of civic corruption or misconduct by public officers….to look into the criminal conduct prior to the arrest of any suspect…(since)…the inquisitorial power of the grand jury may operate to develop evidence against civic corruption, organized crime, or a broad array of criminal activity.” This request is being submitted for the purposes of: 1) Completing previously impeded official investigations; by the Dallas Police, Texas State, Secret Service, FBI, the Warren Commission, Church Intelligence Committee, Rockefeller Commission, Pike Committee, House Select Committee on Assassinations, Assassinations Records Review Board; Justice Department of the United States; 2) To determine the disposition and establish the provenance of all relevant evidence, records and witnesses; 3) To answer all outstanding questions that can be reasonably answered by basic inquiry and independent investigation (and not by agencies or departments of the government that have been implicated in the crime); 4) To have qualified experts review the available acoustic, ballistic, medical and autopsy evidence and to order new, independent studies and tests you deem necessary, including proper forensic autopsies of victims; 5) To review the available documentary records and hard evidence, subpoena witnesses, take their testimony, determine what crimes have been committed and whether there is enough evidence to indict those individuals responsible for crimes related to the assassination, including but not limited to conspiracy, homicide, treason, destruction of evidence, obstruction of justice and perjury; 6) To help restore public confidence in government, the law and the legal and judicial systems of this country; The public confidence in the government of the United States began to decline, according to polls, in December, 1963, directly as a result of the assassination of the President, and has never been regained, and will not be until the remaining questions are properly answered. We citizens of the State of Texas, of the United States of America and the free world hereby present you with this petition, along with the relevant discovered evidence, records and exhibits, and respectfully request that you carry out your responsibilities under the law. When you are finished we ask you to publicly report [under Sec. 3333] what steps you have taken, what you have discovered and whether you have determined if indictments should be brought against any individuals for crimes related to the assassination of John F. Kennedy, 35th President of the United States. Attached: Evidence List; Exhibits; Living MaterialWitness List; Living Expert Witness List; Outstanding Questions; List of Related Crimes; William E. Kelly, Jr. – List of names of co-signers to petition. [Note: Although the assassination of the President was not a federal crime in 1963, it was a federal crime to conspire to kill a federal official in the line of duty. Therefore we are submitting this petition, with evidentiary exhibits of conspiracy to Special Federal Grand Juries in the Northern District of the State of Texas, in New Orleans Parish in Louisiana and Washington D.C. requesting that a Special Federal Grand Jury be convened especially for these particular cases, guided by a Assistant U.S. Attorney and assisted by a Task Force of independent researchers, professionals, investigators, law enforcement officers and judicial officials.] Link to comment Share on other sites More sharing options...
John Simkin Posted November 9, 2006 Share Posted November 9, 2006 Federal Grand Jury Petition (Request) to evaluate the existing evidence and investigate the homicide of John F. Kennedy, the attempted murder of John B. Connally, the wounding of James Tague and the murders of J. D. Tippit and Lee Harvey Oswald in Dallas, Texas in Nov. 1963. To: Richard B. Roper, U.S. Attorney for Federal District of North Texas, Earle Cabell Federal Building, 1100 Commerce St., 3rd Floor, Dallas, Texas, 75242-1699 We citizens of the United States of America do hereby petition you Richard B. Roper [u.S. Attorney for Federal District of North Texas] to fulfill your obligations [under U.S. Code : Title 18, Section 3331(Summoning and term) –3332 (Powers & Duties) & 3331 (Reports); Or appropriate statute for correct jurisdiction]; See: Documentary Exhibits #1 (a), (, ©] and carry out your duties to convene a grand jury of American citizens to “operate as an investigative agency…in cases of civic corruption or misconduct by public officers….to look into the criminal conduct prior to the arrest of any suspect…(since)…the inquisitorial power of the grand jury may operate to develop evidence against civic corruption, organized crime, or a broad array of criminal activity.” This request is being submitted for the purposes of: 1) Completing previously impeded official investigations; by the Dallas Police, Texas State, Secret Service, FBI, the Warren Commission, Church Intelligence Committee, Rockefeller Commission, Pike Committee, House Select Committee on Assassinations, Assassinations Records Review Board; Justice Department of the United States; 2) To determine the disposition and establish the provenance of all relevant evidence, records and witnesses; 3) To answer all outstanding questions that can be reasonably answered by basic inquiry and independent investigation (and not by agencies or departments of the government that have been implicated in the crime); 4) To have qualified experts review the available acoustic, ballistic, medical and autopsy evidence and to order new, independent studies and tests you deem necessary, including proper forensic autopsies of victims; 5) To review the available documentary records and hard evidence, subpoena witnesses, take their testimony, determine what crimes have been committed and whether there is enough evidence to indict those individuals responsible for crimes related to the assassination, including but not limited to conspiracy, homicide, treason, destruction of evidence, obstruction of justice and perjury; 6) To help restore public confidence in government, the law and the legal and judicial systems of this country; The public confidence in the government of the United States began to decline, according to polls, in December, 1963, directly as a result of the assassination of the President, and has never been regained, and will not be until the remaining questions are properly answered. We citizens of the State of Texas, of the United States of America and the free world hereby present you with this petition, along with the relevant discovered evidence, records and exhibits, and respectfully request that you carry out your responsibilities under the law. When you are finished we ask you to publicly report [under Sec. 3333] what steps you have taken, what you have discovered and whether you have determined if indictments should be brought against any individuals for crimes related to the assassination of John F. Kennedy, 35th President of the United States. Attached: Evidence List; Exhibits; Living MaterialWitness List; Living Expert Witness List; Outstanding Questions; List of Related Crimes; William E. Kelly, Jr. – List of names of co-signers to petition. [Note: Although the assassination of the President was not a federal crime in 1963, it was a federal crime to conspire to kill a federal official in the line of duty. Therefore we are submitting this petition, with evidentiary exhibits of conspiracy to Special Federal Grand Juries in the Northern District of the State of Texas, in New Orleans Parish in Louisiana and Washington D.C. requesting that a Special Federal Grand Jury be convened especially for these particular cases, guided by a Assistant U.S. Attorney and assisted by a Task Force of independent researchers, professionals, investigators, law enforcement officers and judicial officials.] I have posted this information to the Times journalist working on the article on the JFK assassination to be published on the 18th November. Link to comment Share on other sites More sharing options...
William Kelly Posted September 21, 2007 Author Share Posted September 21, 2007 THE JFK ASSASSINATION – BASIS FOR LEGAL ACTION It is a myth that the assassination of President Kennedy will always remain an enduring mystery. Though justice may never be served, the murder of John F. Kenney is not an unsolvable crime, but rather a homicide that can be solved to a moral and legal ertainty by traditional detective work. To keep people questioning, to allow multiple theories to abound, to let time slip away and drag on before applying the basic and routine legal procedures for investigating and solving such a crime is only a reflection of the institutional unwillingness, resistance and refusal to challenge the powers that took over the government on November 22, 1963. The feeling of citizen helplessness is reflected in the subtitle of the book by one of the living victims of the same criminals – James Tague, whose book is called The Truth Withheld – A Survivor’s Story – Why We Will Never Know the Truth About the Assassination. But those responsible for JFK’s murder win and go free only if they die before being exposed, and escape justice. The reason for the Congressional law that established the “50 year rule” on the classification of all Congressional documents is that is the amount of time it is estimated for the people mentioned in the documents to be dead. Since it is not yet 50 years after the assassination of President Kennedy, some of those suspects are therefore still alive. It is simply not true that the murder of JFK will forever remain a mystery, and we’ll never know the truth, since thanks to the JFK Act, we have most of the evidence, the documentary records and witness testimony in the public domain. Despite the institutional unwillingness to make the effort to solve the crime, a strong regiment of independent researchers, determined investigators, honest witnesses and ordinary citizens have taken upon themselves to determine the truth, solve the crime, but justice has yet to take its course. “We need not accept (the) view that mankind…..is doomed,” JFK said in his landmark June 10, 1963 ‘Peace Speech’ at American University. We need not accept, “that we are gripped by forces we cannot control…Our problems are manmade – therefore, they can be solved by man….No problem of human destiny is beyond human beings. Man’s reason and spirit have often solved the seemingly unsolvable – and we believe man can do it again.” American political assassinations and murders were committed by men, and therefore can be solved by men, if only the effort to do so is taken to do so. However belatedly, there has been a new trend to at least attempt to resolve the civil rights and political murders of the 1960s, with the assassination of Medgar Evers, the murders of the Philadelphia, Mississippi Freedom Riders, the York, Pennsylvania race riot killings, and the MLK assassination civil trial have all utilized the judicial system to solve crimes that were thought to be untouchable a decade ago. The assassination of President Kennedy was not an accident of history or an act of God, but the act of man, and men can solve the crime if only the effort is made to do so. Whether the accused assassin Lee Harvey Oswald was the lone gunman as the official report alleges or a patsy as he claimed, he was a former U.S. Marine who worked with the U2 program in Japan, was trained in the Russian language, defected to the USSR, returned with a Russian wife, reportedly took a pot shot at General Walker, participated in covert Cuban operations in New Orleans and Mexico City, and fits the covert operative profile that makes the assassination a covert intelligence operation. As former Senator Richard Schweikder (R. Pa.) put it, the case has “the fingerprints of intelligence.” Just because covert operations are designed to conceal the actual perpetuators doesn’t mean that they can’t be exposed, identified and brought to justice, just as other, similar covert crimes have been exposed – Watergate, Iran-Contra and the assassination of the former Chilean ambassador to the U.S. in Washington. How can ordinary citizens force the hand of an entrenched judicial system? An examination of how the assassination of Medgar Evers and the other civil rights murders of the 1960s were resolved presents a road map to follow, and one of the first stops on the way to justice is the grand jury. “As a general policy,” former Justice Department official Ben Civiletti testified before the House Select Committee on Assassinations (HSCA) in its last session, “the Department of Justice seldom turns down at least exploring, or reviewing a petition or reasonable request,…(and)…to some extent it becomes a matter of public will…but also a matter of judgment that falls within the duties of any particular department or agency of government…as to how far questions…can be explored to a useful or fruitful purpose.” Well, besides determining the truth and seeking justice, it would be useful and fruitful to determine who killed President Kennedy, why they did it, and how they accomplished it, so such a thing can never happen again. If the assassination of Medgar Evers was immediately pursued and justice resolved, President Kennedy would not have been killed in the same way, and if JFK’s assassination was properly resolved immediately, RFK and MLK probably would never have died the way the did. Political assassination remain an effective tool for controlling policy only because the true perpetuators of these crimes are permitted to remain hidden in the background, pulling the strings of the puppets and moving the pawns as they have for centuries. The assassination of President Kennedy has maintained its watershed mark as the single most significant political event of the past century because it remains unresolved. Despite the tremendous amount of information that is now available, it remains an unresolved enigma and unsolved cold case homicide because there is no institutional willingness, motive or desire to simply solve it. Unsolved cold cases, especially homicides, are reviewed every few years, sometimes by a new detective who looks over old evidence to see if there is anything that has been overlooked, or if there is any previously unknown evidence or witnesses, or recently developed scientific tools that could be used to help solve the crime. There is no statute of limitations on murder, under the rules of criminal procedure homicide is given precedence over all other crimes, and once accumulated, the evidence in a homicide is presented to a grand jury Independent researchers, journalists and ordinary citizens can identify evidence, uncover conspiracies and witness crimes, but if there is no case, no grand jury, no place to present the evidence, then there is no justice. As Mr. Civiletti explained to the HSCA, the DOJ “seldom turns down exploring at least, or reviewing a petition or reasonable request…” GRAND JURY PETITION-REQUEST Towards the development of a legal case, the grand jury Petition-Request is a citizen’s petition to a District Attorney responsible for prosecuting offenders to request a grand jury be convened to review the facts of a case and determine if there is enough evidence to indict someone for a crime. A grand jury is asked to decide, not guilt or innocence, but whether there is enough evidence to have a person brought to trial for a crime. The grand jury only hears evidence of guilt, but does not render a verdict. It’s decision is whether to indict, which is merely an accusation, or not to indict. Guilt or innocence is determined in a court of law; where the rules of evidence preclude hearsay evidence and allows the defense attorney the opportunity to cross-examine witnesses. Hearsay is allowed, and witnesses must testify before a grand jury without counsel, as all attorneys other than the prosecutor are not permitted in the grand jury room. If the grand jury determines there is enough evidence, they vote a “True Bill” and indict someone for a crime. The DA can simply ignore such a citizen’s petition and request and not present the evidence to a grand jury, or even if a grand jury votes to indict, it is still up to the DA to issue the indictment and proceed to take the matter to court. The Grand Jury process, which stems from English Cannon law, has been refined by the United States Constitutional system as an extension of the prosecutor’s will, though historically the grand jury can investigate official corruption, review and develop evidence, attempt to answer questions, subpoena records and witnesses, order forensic autopsies and specialized tests and follow the evidence where ever it leads. While grand juries composed of ordinary American citizens do not have the knowledge of the history and powers of a grand jury, and are often merely tools of the prosecutors, sometimes a prosecutor will lose control of a grand jury that begins to ask questions and make requests of its own. Such a grand jury is called a “Runaway Grand Jury,” and often goes beyond the original intent of the prosecutors, such as the Rocky Mountain Flats Runaway Grand Jury. When the Colorado prosecutors refused to issued the indictments against major defense contractors for environmental contamination, the grand jury leaked its report to the press [see: Westword Rocky Mountain Flats ] The previous reluctance of district attorneys to prosecute political assassinations, especially decades old crimes, is being overcome by new, young and diversified blood in official positions of authority. Although those District Attorneys at the top of their profession know that investigating political assassinations is detrimental to furthering their careers, and witnessed what happened to New Orleans DA Jim Garrison, there is a younger generation of assistant prosecutors who look upon solving such major crimes as an achievement that will advance their future careers. RICO – PINKERTON Former HSCA attorney, Dean Browning Webb, Esq., who specializes in RICO litigation, said that such indictments are possible and that, “I am especially interested in developing an approach to seek indictments of those who conspired to murder the President.” “I believe that a prosecution is feasible,” says Webb, “especially when invoking the Pinkerton Doctrine,” which holds that “a person associated with a conspiracy culpable for any criminal act committed by a co-conspirator if the act is within the scope of the conspiracy and is a foreseeable result of the criminal scheme.” Agency theory holds that “all conspirators act as the agent or represent the other conspirators involved in the criminal scheme, and are liable for all criminal acts committed by the other conspirators.” Another reason that District Attorneys are reluctant to investigate and prosecute political assassination, besides opposing the criminal effort behind the murder, is the effort and manpower it takes to solve it, which takes away from the normal, day-to-day prosecutions that the District Attorney is also responsible for. This can be compensated by including the most significant evidence, lists of documents and witnesses, and outstanding questions with the Petition-Request, laying out the case for crimes and conspiracy and reducing the work of the prosecutors. Such a convincing attachment would also help persuade a prosecutor to accept the case and take it to a grand jury. MULTIBLE GRAND JURY JURISDICTIONS It will only take one such JFK grand jury, and there are dozens of potential jurisdictions. There are Federal, State and County grand juries, each with many assistant district attorneys who work under the District Attorney, providing dozens of individuals in which to present the Petition Request. Establishing jurisdiction in any particular district will not be difficult. Although some will argue that it was not a federal crime to kill the president in 1963, it was a federal crime to conspire to kill a federal employee, whether it is a postman or a president. In Dallas, a new District Attorney won the last election, a black, liberal, former defense lawyer, who has been reviewing all of the convictions of the previous Dallas District Attorneys going back to Henry Wade, DA at the time of the assassination. There’s also a new Sheriff in town, a black, lesbian is now in the position of Bill Decker, the County Sheriff who was to take Oswald into custody when he was shot. The new DA’s review of former convictions, overturning many of them on DNA and new found evidence, shows how the legal system can change almost overnight. Besides the local Dallas District Attorney, there are Texas State grand juries, as well as the North Texas Federal District court, which is located in Dallas. The previous reluctance of any Dallas or Texas official to investigate the assassination is now overcome with new blood in the offices. Other jurisdictions are even more inviting, New Orleans in particular, where a new District Attorney recently took over from former DA Harry Connick, who tired to destroy the records of the New Orleans Grand Jury that indicted Clay Shaw. There’s also outstanding unsolved homicides of Johnny Rosselli and numerous Cubans, which make Florida a very viable candidate for a JFK Grand Jury. Of the dozens of the potential jurisdictions, it would be best to convene a Special Federal Grand Jury in Washington D.C., where most of the original hard evidence and documentary record is now located at the National Archives and Records Administration (NARA). In addition, Washington is the where the body of the victim can be exhumed for a proper forensic autopsy and the development of new evidence that can be used in court. Although conspiracy and homicide are the crimes being investigated, once the grand jury begins to subpoena records and hear the sworn testimony of witnesses, other crimes, such as perjury, destruction of evidence, obstruction of justice come into play, and help persuade witnesses to tell the truth. One important aspect of the grand jury proceedings is their secrecy, which prevents the testimony from being made public before a trial. If there are no indictments, and there isn’t a trial, the grand jury could issue a report explaining what it learned and the reasons behind its action or inaction, as the Rocky Mountain Flats grand jury did. According to the Constitution of the United States, historically, traditionally and legally, the evidence in a homicide is presented to a grand jury, which is where the evidence in the murder of John F. Kennedy must go before there can be justice. “That we live as a nation of laws, and are not a ‘Banana Republic,’” said Warren Commissioner John McCloy, “requires us as individuals and as a society, to purse truth and justice, ‘even if the heaven’s may fall.’” It is not too late now, but this will case will soon slip slowly from an unsolved homicide to an historical mystery, unless we act soon, and present the best evidence in a Petition-Request to convene a special JFK Grand Jury, and let the legal take its course, wherever it may go. - William E. Kelly, Jr. (Bkjfk3@yahoo.com) Link to comment Share on other sites More sharing options...
William Kelly Posted September 21, 2007 Author Share Posted September 21, 2007 JFK MOCK GRAND JURY While we might not be able to convince a DA to convene a grand jury right away, and Congressional Oversight Hearings on the JFK Act must come first, one popular legal procedure to determine what a jury would do is to hold a Mock court case. Although not offical, if done properly, gives an accurate indication of what a real jury would do under similar circumstances. Mock trials are popular, especially in regards to civil cases where the lawyers would like to get an idea of how a jury would react to a paticular case before going through the real deal. Sometimes after a mock trial, they settle out of court. A JFK Mock Grand Jury will do two things - educate people about the role of grand juries in the American legal system, and filter the evidence and testimony down to what is really of evidentary value. Plans are to hold and film a Mock JFK Grand Jury in a real Federal Grand Jury room, in either Dallas or DC, with a real prosector - Richard Sprague/Robert Tannenbaum, and actual witnesses whose testimony under oath can later be used by a real grand jury, even if they die before the real grand jury is activated. While the JFK Mock Grand Jury project is still a year away from actual production, we would like to do a smaller, dry run - a Virtual JFK Mock Grand Jury, on line. Among those who have agreed to adivse the JFK Mock Grand Jury are Susan Brenner, Esq., the dean of the University of Dayton, Ohio School of Law and the foremost authority on grand jury law in the USA, Dean Webb, an asst. US Attorney who specialises in RICO cases, Bill Davis and Dan Sheehan, former Christic Institute attorney. The assistance of anyone with ideas or expertise in technical matters with an interest in the Virtual JFK Mock Grand Jury would be greatly appreciated. We hope to be much further along on both the Virtual and Mock Grand Juries by late November COPA conference in Dallas, and may introduce the real JFK Grand Jury petition to local and federal authorities in Dallas in November. Bill Kelly Link to comment Share on other sites More sharing options...
William Kelly Posted October 1, 2007 Author Share Posted October 1, 2007 (edited) Before venturing into the legal realms of the grand jury room, because only certain types of evidence can be intoduced in a case before a grand jury, it is important to become somewhat familiar with the collection of evidence and crime scene investigation techniques and procedures. Basic but necessary, to be successul you must assume the mindset of a trained and efficent crime scene investigator before you can pursue the evidence to the perpetrators. For that, here are some exceprts from some police and detective text books from my father's library, along with some other relevant reports that provide avenue for the proper investigation and prosecution of the assassination of President Kennedy. THE DETECTION OF MURDER - By William F. Kessler, MD and Paul Weston (1953 Greenberg). There are four causes of Death : 1) Natural 2) Suicide-self inflicted. 3) Accidental 4) Murder It is the duty of the police to investigate the circumstances attending the death by examination of the crime scene and questioning witnesses. His object is to explore the events that led up to it and seek a reconstruction of the last hours spent on earth of the deceased. From this portion of the initial investigation, it is expected that a reasonable conclusion as to the possible mechanism of death can be made. From: FBI Behavorial Sciences Unit - 7 Step Investigative Process for the apprehension of a serial killer. 1) Evaluation of the criminal acts. 2) Comprehensive analysis of the crime scenes. 3) Comprehensive analysis of the victims. 4) Evaluation of the police reports. 5) Evaluation of medical examiner autopsy protocols. 6) Development of a profile with critical offender chacteristics. 7) Investigative suggestions predicated on the profile (List). From: "Mindhunter – Inside the FBI's Elite Serial Crime Unit" by John Douglas and Mark Olshaker (Pocket Books, 1995). "In the case of every horrible crime since the beginning of civilization, there is always that searing, fundamental question: what type of person could have done such a thing?" "The type of profiling and crime-scene analysis we do at the FBI's Investigative Support Unit attempts to answer that question. Behavior reflects personality. …Everything we see at a crime scene tells us something about the unknown subject or UNSUB, in police jargon, who committed the crime. By studying as many crimes as we could, and through talking to the experts – the perpetrators themselves – we have learned to interpret those clues in much the same way a doctor evaluates various symptoms to diagnose a particular disease or condition. And just as a doctor can begin forming a diagnosis after recognizing several aspects of a disease….he or she has seen before, we can make various conclusions when we see patterns start to emerge." "Behavior reflects personality. One of the reasons our work is even necessary has to do with the changing nature of violent crime itself. We all know about the drug-related murders that plague most of our cities and the gun crimes that have become an everyday occurrence as well as a national disgrace. Yet it used to be that most crime, particularly the most violent crime, happened between people who in some way knew each other. We're not seeing that much any longer. As recently as the 1960s, the solution rate to homicide in this country was well over 90 percent. We're not seeing that any longer either. Now, despite impressive advances in science and technology, despite the advent of the computer age, despite many more police officers with far better and more sophisticated training and resources, the murder rate has been going up and the solution rate has been going down. More and more crimes are being committed by and against 'strangers, ' and in many cases we have no motive to work with, at least no obvious or logical motive." "Traditionally most murders and violent crimes were relatively easy for law enforcement officials to comprehend. They resulted from critically exaggerated manifestations of feelings we all experience: anger, greed, jealously, profit, revenge. Once this emotional problem was taken care of, the crime or crime spree would end. Someone would be dead, but that was that and the police generally knew who and what they were looking for." "But a new type of violent criminal has surfaced in recent years – the serial offender, who often doesn't stop until he is caught or killed, who learns by experience and who tends to get better and better at what he does, constantly perfecting his scenario from one crime to the next. I say 'surfaced' because, to some degree, he was probably with us all along, going back long before 1880s London and Jack the Ripper, generally considered the first modern serial killer. And I say 'he' because,…virtually all real serial killers are male." "…Serial killers…also tend to be the most bewildering, personally disturbing, and most difficult to catch of all violent criminals. This is, in part, because they tend to be motivated by far more complex factors that the basic ones I've just enumerated. This, in turn, makes their patterns more confusing and distances them from such other normal feelings as compassion, guilt or remorse." "Sometimes the only way to catch them is to learn how to think like they do….I will be relating….how we developed the behavioral approach to criminal-personality profiling, crime analysis, and prosecutorial strategy,…No mater how much the criminal thinks he knows, the more he does try to evade detection or throw us off the track, the more behavioral clues he's going to give us to work with." "Local police catch criminals….what we do is assist local police in focusing their investigations, then suggest some proactive techniques that might help draw a criminal out. Once they catch him….we try to formulate a strategy to help the prosecutor bring out the defendant's true personality during the trial. 'If you want to understand the artist, you have to look at the painting.' To know the offender you have to look at the crime." Edgar Allen Poe, in "The Murders in the Rue Morgue" wrote: "Deprived of ordinary resources, the analyst throws himself into the spirit of his opponent, identifies himself therewith, and not infrequently sees thus, at a glance, the sole methods by which he may seduce into error or hurry into miscalculation." "When we teach the elements of criminal-personality profiling and crime-scene analysis to FBI agents or law enforcement professionals attending the National Academy, we try to get them to think of the entire story of the crime. What took place? This includes everything that might be behaviorally significant about the crime. Why did it happen the way it did?…Who would have committed this crime for these reasons? That is the task we set for ourselves." "Everybody has a rock….Whether it's embezzlement, public corruption, a mob investigation, a fencing scheme, or a corrupt union you have to penetrate, it doesn't matter; the principles are going to be the same. What I would advise in any of these types of cases would be to target the whomever you deem to be the 'weakest link,' figure out a way to bring him in and let him see what he's up against, then win his cooperation in going after the others." "In any kind of conspiracy case, this is a critical issue. What you want to do is flip one guy to be a government witness, then watch the whole house of cards come tumbling down. The choice of whom to approach first is important because if you pick the wrong guy and can't flip him, he's going to tip off everyone else and you're back to square one…The way to get to someone like this is to go through the smaller fish, just as with organized crime. As we go through all of the records, maybe one candidate will stand out from the rest for our purposes. He isn't a higher-up, but a clerk who fixes all the paperwork…Next come the choice of who is 'cast' to lead the interrogation. My preference is usually for someone a little older and more authoritative than the subject, a sharp dresser with a commanding appearance, someone who can be friendly and outgoing and make the subject relax, but become absolutely serious and directed as soon as the circumstances call for it…" "'Staging' can be just as effective in dealing with…any large ongoing investigation. I suggest concentrating all of your materials into one place,…for example, if you take over a conference room for your 'task force,' gather all your agents, staff and files together, you'll be showing your subject just how serious you are. If you can 'decorate' the walls with, say, blowups of surveillance photos and other signs of just how wide-ranging and official this ongoing investigation is, the point will be driven home all the more forcefully. A couple of video monitors playing tapes of your targets in the act are icing on the cake. Among my personal favorite touches are wall charts showing the penalties each person would face if convicted." "The basis for any successful deal is gong to be the truth and an appeal to your subject's reason and common sense. All the staging does is call attention to the key elements…And my experience tells met that there is a way to get everyone, if you can only figure out what it is." From: Title: Crime Scene Investigation: A Guide for Law Enforcement. Series: Research ReportAuthor: Technical Working Group on Crime Scene InvestigationPublished: January 2000Subject: Criminal investigation. Technical Working Group on Crime Scene Investigation The Technical Working Group on Crime Scene Investigation (TWGCSI) is a multidisciplinary group of content-area experts from across the United States, from both urban and rural jurisdictions, each representing his or her respective agency or practice. As a result, NIJ initiated the Technical Working Group on Crime Scene Investigation to develop recommended practices for crime scene management. Origin of the National Crime Scene Planning Panel and the Technical Working Group on Crime Scene Investigation In the spring of 1998, the American Society of Crime LaboratoryDirectors/Laboratory Accreditation Board (ASCLD/LAB) and ASCLDsupported the principle of NIJ's establishment of TWGCSI. The NIJ Directorselected an 11-member planning panel called the National Crime Scene Planning Panel (NCSPP). The NCSPP members represent independent,multidisciplinary organizations whose constituents are responsible forinvestigating, evaluating, and analyzing evidence from crime scenes. The rationale for their involvement was twofold: they represent the diversity of the professional disciplines and each organization is a key stake holder in the conduct of crime scene investigations and the implementation of this guide. Technical Working Group on Crime Scene Investigation Crime Scene Investigation: A Guide for Law Enforcement Section AArriving at the Scene: Initial Response/Prioritization of Efforts Section BPreliminary Documentation and Evaluation of the Scene Section CProcessing the Scene Section DCompleting and Recording the Crime Scene Investigation Section E Crime Scene Equipment - This handbook is intended as a guide to recommended practices for crimescene investigation. Jurisdictional, logistical, or legal conditions may preclude the use of particularprocedures contained herein. For potentially devastating situations, such as biological weapons or radiologicalor chemical threats, the appropriate agencies should be contacted. The usershould refer to the National Institute of Justice's publications for fire and arsoninvestigation, bomb and explosives investigation, electronic crime investigation,and death investigation where applicable. - Section Arriving at the Scene: Initial Response/Prioritization of Efforts 1. Initial Response/Receipt of Information Principle: One of the most important aspects of securing the crime scene is topreserve the scene with minimal contamination* and disturbance of physicalevidence. The initial response to an incident shall be expeditious andmethodical. Upon arrival, the officer(s) shall assess the scene and treat theincident as a crime scene. Policy: The initial responding officer(s)* shall promptly, yet cautiously,approach and enter crime scenes, remaining observant of any persons, vehicles,events, potential evidence, and environmental conditions. Procedure: The initial responding officer(s) should: a. Note or log dispatch information (e.g., address/location, time, date, type ofcall, parties involved). b. Be aware of any persons or vehicles leaving the crime scene. c. Approach the scene cautiously, scan the entire area to thoroughly assess the scene, and note any possible secondary crime scenes. Be aware of anypersons and vehicles in the vicinity that may be related to the crime. d. Make initial observations (look, listen, smell) to assess the scene andensure officer safety before proceeding. e. Remain alert and attentive. Assume the crime is ongoing until determined tobe otherwise. f. Treat the location as a crime scene until assessed and determined to beotherwise. Summary: It is important for the initial responding officer(s) to be observantwhen approaching, entering, and exiting a crime scene. 2. Safety Procedures Principle: The safety and physical well-being of officers and other individuals,in and around the crime scene, are the initial responding officer(s') first priority. Policy: The initial responding officer(s) arriving at the scene shall identify andcontrol any dangerous situations or persons. Procedure: The initial responding officer(s) should: a. Ensure that there is no immediate threat to other responders* --scan areafor sights, sounds, and smells that may present danger to personnel (e.g., hazardous materials such as gasoline, natural gas). If the situation involves aclandestine drug laboratory, biological weapons*, or radiological or chemical threats* the appropriate personnel/agency should be contacted prior to enteringthe scene. b. Approach the scene in a manner designed to reduce risk of harm toofficer(s) while maximizing the safety of victims, witnesses, and others in the area. c. Survey the scene for dangerous persons and control the situation. d. Notify supervisory personnel and call for assistance/backup. Summary: The control of physical threats will ensure the safety of officers andothers present. 3. Emergency Care Principle: After controlling any dangerous situations or persons, the initial responding officer(s') next responsibility is to ensure that medical attention isprovided to injured persons while minimizing contamination of the scene. Policy: The initial responding officer(s) shall ensure that medical attention isprovided with minimal contamination of the scene. Procedure: The initial responding officer(s) should: a. Assess the victim(s) for signs of life and medical needs and provideimmediate medical attention. b. Call for medical personnel. c. Guide medical personnel to the victim to minimize contamination/alteration of the crime scene. d. Point out potential physical evidence to medical personnel, instruct them tominimize contact with such evidence (e.g., ensure that medical personnel preserve all clothing and personal effects without cutting through bullet holes, knife tears), and document movement of persons or items by medicalpersonnel. e. Instruct medical personnel not to "clean up" the scene and to avoid removalor alteration of items originating from the scene. f. If medical personnel arrived first, obtain the name, unit, and telephonenumber of attending personnel, and the name and location of the medical facilitywhere the victim is to be taken. g. If there is a chance the victim may die, attempt to obtain "dyingdeclaration."* h. Document any statements/comments made by victims, suspects, or witnesses at the scene. i. If the victim or suspect is transported to a medical facility, send a lawenforcement official with the victim or suspect to document any commentsmade and preserve evidence. (If no officers are available to accompany thevictim/suspect, stay at the scene and request medical personnel to preserveevidence and document any comments made by the victim or suspect.) Summary: Assisting, guiding, and instructing medical personnel during thecare and removal of injured persons will diminish the risk of contamination andloss of evidence. 4. Secure and Control Persons at the Scene Principle: Controlling, identifying, and removing persons at the crime sceneand limiting the number of persons who enter the crime scene and themovement of such persons is an important function of the initial responding officer(s) in protecting the crime scene. Policy: The initial responding officer(s) shall identify persons at the crimescene and control their movement. Procedure: The initial responding officer(s) should: a. Control all individuals at the scene--prevent individuals fromaltering/destroying physical evidence by restricting movement, location, andactivity while ensuring and maintaining safety at the scene. b. Identify all individuals at the scene, such as: --Suspects: Secure and separate. --Witnesses: Secure and separate. --Bystanders: Determine whether witness, if so treat as above, if not,remove from the scene. --Victims/family/friends: Control while showing compassion. --Medical and other assisting personnel. c. Exclude unauthorized and nonessential personnel from the scene (e.g., law enforcement officials not working the case, politicians, media). Summary: Controlling the movement of persons at the crime scene and limiting the number of persons who enter the crime scene is essential to maintaining scene integrity, safe guarding evidence, and minimizing contamination. 5. Boundaries: Identify, Establish, Protect, and Secure Principle: Defining and controlling boundaries provide a means for protectingand securing the crime scene(s). The number of crime scenes and theirboundaries are determined by their location(s) and the type of crime.Boundaries shall be established beyond the initial scope of the crime scene(s)with the understanding that the boundaries can be reduced in size if necessarybut cannot be as easily expanded. Policy: The initial responding officer(s) at the scene shall conduct an initial assessment to establish and control the crime scene(s) and its boundaries. Procedure: The initial responding officer(s) should: a. Establish boundaries of the scene(s), starting at the focal point andextending outward to include: --Where the crime occurred. --Potential points and paths of exit and entry of suspects and witnesses. --Places where the victim/evidence may have been moved --(be aware of trace and impression evidence while assessing the scene). b. Set up physical barriers (e.g., ropes, cones, crime scene barrier tape,available vehicles, personnel, other equipment) or use existing boundaries (e.g.,doors, walls, gates). c. Document the entry/exit of all people entering and leaving the scene, onceboundaries have been established. d. Control the flow of personnel and animals entering and leaving the scene to maintain integrity of the scene. e. Effect measures to preserve/protect evidence that may be lost orcompromised (e.g., protect from the elements (rain, snow, wind) and from footsteps, tire tracks, sprinklers). f. Document the original location of the victim or objects that you observe being moved. g. Consider search and seizure issues to determine the necessity of obtaining consent to search and/or obtaining a search warrant. Note: Persons should not smoke, chew tobacco, use the telephone orbathroom, eat or drink, move any items including weapons (unless necessaryfor the safety and well-being of persons at the scene), adjust the thermostat or open windows or doors (maintain scene as found), touch anything unnecessarily(note and document any items moved), reposition moved items, litter, or spit within the established boundaries of the scene. Summary: Establishing boundaries is a critical aspect in controlling theintegrity of evidentiary material. 6. Turn Over Control of the Scene and Brief Investigator(s) in Charge Principle: Briefing the investigator(s) taking charge assists in controlling thecrime scene and helps establish further investigative responsibilities. Policy: The initial responding officer(s) at the scene shall provide a detailedcrime scene briefing to the investigator(s) in charge* of the scene. Procedure: The initial responding officer(s) should: a. Brief the investigator(s) taking charge. b. Assist in controlling the scene. c. Turn over responsibility for the documentation* of entry/exit. d. Remain at the scene until relieved of duty. Summary: The scene briefing is the only opportunity for the next in commandto obtain initial aspects of the crime scene prior to subsequent investigation. 7. Document Actions and Observations Principle: All activities conducted and observations made at the crime scenemust be documented as soon as possible after the event to preserveinformation. Policy: Documentation must be maintained as a permanent record. Procedure: The initial responding officer(s) should document: a. Observations of the crime scene, including the location of persons and itemswithin the crime scene and the appearance and condition ofthe scene upon arrival. b. Conditions upon arrival (e.g., lights on/off; shades up/down, open/closed;doors, windows, open/closed; smells; ice, liquids; movable furniture; weather;temperature; and personal items.) c. Personal information from witnesses, victims, suspects, and any statementsor comments made. d. Own actions and actions of others. Summary: The initial responding officer(s) at the crime scene must produceclear, concise, documented information encompassing his or her observationsand actions. This documentation is vital in providing information to substantiateinvestigative consideration. ---Section B Preliminary Documentation and Evaluation of the Scene 1. Conduct Scene Assessment Principle: Assessment of the scene by the investigator(s) in charge* allows forthe determination of the type of incident to be investigated and the level ofinvestigation to be conducted. Policy: The investigator(s) in charge shall identify specific responsibilities,share preliminary information, and develop investigative plans in accordancewith departmental policy and local, State, and Federal laws. Procedure: The investigator(s)* in charge should: a. Converse with the first responder(s)* regarding observations/activities. b. Evaluate safety issues that may affect all personnel entering the scene(s)(e.g., bloodborne pathogens*, hazards). c. Evaluate search and seizure issues to determine the necessity of obtainingconsent to search and/or obtaining a search warrant. d. Evaluate and establish a path of entry/exit to the scene to be utilized byauthorized personnel. e. Evaluate initial scene boundaries.* f. Determine the number/size of scene(s) and prioritize. g. Establish a secure area within close proximity to the scene(s) for thepurpose of consultation and equipment staging. h. If multiple scenes exist, establish and maintain communication withpersonnel at those locations. i. Establish a secure area for temporary evidence storage in accordance withrules of evidence/chain of custody.* j. Determine and request additional investigative resources as required (e.g.,personnel/specialized units, legal consultation/prosecutors, equipment). k. Ensure continued scene integrity (e.g., document entry/exit of authorizedpersonnel, prevent unauthorized access to the scene). l. Ensure that witnesses to the incident are identified and separated (e.g.,obtain valid ID). m. Ensure the surrounding area is canvassed and the results are documented. n. Ensure preliminary documentation*/photography of the scene, injuredpersons, and vehicles. Summary: Scene assessment allows for the development of a plan for thecoordinated identification, collection*, and preservation of physical evidenceand identification of witnesses. It also allows for the exchange of informationamong law enforcement personnel and the development of investigativestrategies. 2. Conduct Scene "Walk-Through" and Initial Documentation Principle: The scene "walk-through"* provides an overview of the entire scene,identifies any threats to scene integrity, and ensures protection of physicalevidence. Written and photographic documentation provides a permanentrecord. Policy: The investigator(s) in charge shall conduct a walk-through of thescene. The walk-through shall be conducted with individuals responsible forprocessing the scene. Procedure: During the scene walk-through, the investigator(s) in charge should: a. Avoid contaminating the scene by using the established path of entry. b. Prepare preliminary documentation of the scene as observed. c. Identify and protect fragile and/or perishable evidence (e.g., considerclimatic conditions, crowds/hostile environment). Ensure that all evidence that may be compromised is immediately documented, photographed, andcollected. Summary: Conducting a scene walk-through provides the investigator(s) incharge with an overview of the entire scene. The walk-through provides the firstopportunity to identify valuable and/or fragile evidence and determine initialinvestigative procedures, providing for a systematic examination anddocumentation of the scene. Written and photographic documentation recordsthe condition of the scene as first observed, providing a permanent record. ----- Section C Processing the Scene 1. Determine Team Composition Principle: Based on the type of incident and complexity of the scene, theinvestigator(s) in charge* shall determine team composition. Trained personnelshall perform scene processing. Policy: The investigator(s) in charge shall assess the scene to determinespecialized resources required. Procedure: Following the walk-through*, the investigator(s) in charge should: a. Assess the need for additional personnel. Be aware of the need foradditional personnel in cases of multiple scenes*, multiple victims, numerouswitnesses, or other circumstances. b. Assess forensic needs and call forensic specialists to the scene forexpertise and/or equipment. c. Ensure that scene security and the entry/exit documentation* are continued. d. Select qualified person(s) to perform specialized tasks (e.g., photography,sketch, latent prints*, evidence collection*). e. Document team members* and assignments. Summary: The scene(s) assessment determines the number of personnel andhow responsibilities will be assigned. 2. Contamination Control Principle: Contamination* control and preventing cross-contamination* at singleor multiple scenes is essential to maintaining the safety of personnel and theintegrity of evidence. Policy: The investigator(s) in charge shall require all personnel to followprocedures to ensure scene safety and evidence integrity. Procedure: Other responders* and/or team members should: a. Limit scene access to people directly involved in scene processing. b. Follow established entry/exit routes at the scene. c. Identify first responders* and consider collection of elimination samples.* d. Designate secure area for trash and equipment. e. Use personal protective equipment (PPE)* to prevent contamination ofpersonnel and to minimize scene contamination. f. Clean/sanitize* or dispose of tools/equipment and personal protectiveequipment between evidence collections and/or scenes. g. Utilize single-use equipment* when performing direct collection of biologicalsamples. Summary: Minimize contamination by being safe, clean, and careful to ensurethe welfare of personnel and the integrity of the evidence. 3. Documentation Principle: An assessment of the scene determines what kind of documentationis needed (e.g., photography, video, sketches, measurements, notes). Policy: The investigator(s) in charge shall ensure documentation of the scene. Procedure: The team member(s) should: a. Review assessment of the scene to determine the type of documentationneeded. b. Coordinate photographs, video, sketches, measurements, and notes. c. Photograph: --Scene utilizing overall, medium, and close-up coverage. --Evidence to be collected with and without measurement scale* and/orevidence identifiers.* --Victims, suspects, witnesses, crowd, and vehicles. --Additional perspectives (e.g., aerial photographs, witness' view, area underbody once body is removed). d. Videotape as optional supplement to photos. e. Prepare preliminary sketch(es) and measure: --Immediate area of the scene, noting case identifiers* and indicating north onthe sketch. --Relative location of items of evidence and correlate evidence items withevidence records. --Evidence prior to movement. --Rooms, furniture, or other objects. --Distance to adjacent buildings or other landmarks. f. Generate notes at the scene: --Documenting location of the scene, time of arrival, and time of departure. --Describing the scene as it appears. --Recording transient evidence* (e.g., smells, sounds, sights) andconditions (e.g., temperature, weather). --Documenting circumstances that require departures from usual procedures. Summary: A well-documented scene ensures the integrity of the investigationand provides a permanent record for later evaluation. 4. Prioritize Collection of Evidence Principle: Prioritize the collection of evidence to prevent loss, destruction, orcontamination. Policy: The investigator(s) in charge and team members shall determine theorder in which evidence is collected. Procedure: The team member(s) should: a. Conduct a careful and methodical evaluation considering all physicalevidence possibilities (e.g., biological fluids*, latent prints, trace evidence*). b. Focus first on the easily accessible areas in open view and proceed toout-of-view locations. c. Select a systematic search pattern for evidence collection based on the sizeand location of the scene(s). d. Select a progression of processing/collection methods so that initialtechniques do not compromise subsequent processing/collections methods. --Concentrate on the most transient evidence and work to the leasttransient forms of physical evidence. --Move from least intrusive to most intrusive processing/collection methods. e. Continually assess environmental and other factors that may affect theevidence. f. Be aware of multiple scenes (e.g., victims, suspects, vehicles, locations). g. Recognize other methods that are available to locate, technically document,and collect* evidence (e.g., alternate light source*, enhancement, blood patterndocumentation, projectile trajectory analysis*). Summary: Prioritization provides for the timely and methodical preservationand collection of evidence. 5. Collect, Preserve, Inventory, Package, Transport, and SubmitEvidence Principle: The handling of physical evidence is one of the most importantfactors of the investigation. Policy: The team member(s) shall ensure the effective collection, preservation,packaging, and transport of evidence. Procedure: The team member(s) should: a. Maintain scene security throughout processing and until the scene isreleased. b. Document the collection of evidence by recording its location at the scene,date of collection, and who collected it. c. Collect each item identified as evidence. d. Establish chain of custody.* e. Obtain standard/reference samples* from the scene. f. Obtain control samples.* g. Consider obtaining elimination samples. h. Immediately secure electronically recorded evidence (e.g., answeringmachine tapes, surveillance camera videotapes, computers) from the vicinity. i. Identify and secure evidence in containers (e.g., label, date, initial container)at the crime scene. Different types of evidence require different containers (e.g.,porous*, nonporous*, crushproof). j. Package items to avoid contamination and cross-contamination. k. Document the condition of firearms/weapons prior to rendering them safefor transportation and submission. l. Avoid excessive handling of evidence after it is collected. m. Maintain evidence at the scene in a manner designed to diminishdegradation or loss. n. Transport and submit evidence items for secure storage. Summary: Evidence at crime scenes that is in the process of documentation,collection, preservation, or packaging should be handled with attention to sceneintegrity and protection from contamination or deleterious change. During theprocessing of the scene, and following documentation, evidence should beappropriately packaged, labeled, and maintained in a secure, temporary manneruntil final packaging and submission to a secured evidence storage facility or thecrime laboratory. Section D Completing and Recording the Crime Scene Investigation 1. Establish Crime Scene Debriefing Team Principle: The crime scene debriefing enables law enforcement personnel andother responders* to share information regarding particular scene findings priorto releasing the scene. It provides an opportunity for input regarding followupinvestigation, special requests for assistance, and the establishment ofpost-scene responsibilities. Policy: Law enforcement personnel and other responders shall participate inor initiate a crime scene debriefing to ensure the crime scene investigation iscomplete and to verify post-scene responsibilities. Procedure: The investigator(s) in charge* of the crime scene should establish acrime scene debriefing team. When participating in a scene debriefing, law enforcement personnel and other responders should: a. Establish a crime scene debriefing team, which includes the investigator(s)in charge of the crime scene, other investigators and evidence collection*personnel (e.g., photographers, evidence technicians, latent print personnel,specialized personnel, and initial responding officer(s)* if still present). b. Determine what evidence was collected. c. Discuss preliminary scene findings with team members.* d. Discuss potential technical forensic testing and the sequence of tests to beperformed. e. Initiate any action(s) identified in discussion required to complete the crimescene investigation. f. Brief person(s) in charge upon completion of assigned crime scene tasks. g. Establish post-scene responsibilities for law enforcement personnel and otherresponders. Summary: The crime scene debriefing is the best opportunity for lawenforcement personnel and other responders to ensure that the crime sceneinvestigation is complete. 2. Perform Final Survey of the Crime Scene Principle: Final survey of the crime scene ensures that evidence has beencollected and the scene has been processed prior to release. In addition, asystematic review of the scene ensures that evidence, equipment, or materialsgenerated by the investigation are not inadvertently left behind and anydangerous materials or conditions have been reported and addressed. Policy: The investigator(s) in charge shall direct a walk-through* at theconclusion of the scene investigation and ensure that the scene investigation iscomplete. Procedure: The investigator(s) in charge should ensure that: a. Each area identified as part of the crime scene is visually inspected. b. All evidence collected at the scene is accounted for. c. All equipment and materials generated by the investigation are removed. d. Any dangerous materials or conditions are reported and addressed. e. The crime scene is released in accordance with jurisdictional requirements. Summary: Conducting a scene walk-through ensures that all evidence hasbeen collected, that materials are not inadvertently left behind, and that anydangerous materials or conditions have been reported and addressed. 3. Documentation of the Crime Scene Principle: Reports and other documentation* pertaining to the crime sceneinvestigation shall be compiled into a "case file"* by the investigator(s) in charge of the crime scene. This file shall be a record of the actions taken and evidencecollected at the scene. This documentation shall allow for independent review ofthe work conducted. Policy: The investigator(s) in charge shall ensure that reports and otherdocumentation pertaining to the crime scene investigation are compiled. Procedure: The investigator(s) in charge should obtain the following for thecrime scene case file: a. Initial responding officer(s') documentation. b. Emergency medical personnel documents. c. Entry/exit documentation. d. Photographs/videos. e. Crime scene sketches/diagrams. f. Evidence documentation. g. Other responders' documentation. h. Record of consent form or search warrant. i. Reports such as forensic/technical reports should be added to this file whenthey become available. Note: The above list is limited to crime scene documentation. This should notbe considered a comprehensive list of the documents involved in aninvestigative case file. Summary: This will ensure that reports and other documentation pertaining tothe crime scene investigation are compiled into a case file by the investigator(s)in charge of the crime scene and allow for independent review of the workconducted. ------ Section E Crime Scene Equipment 1. Initial Responding Officer(s) Essential* Consent/search forms.Crime scene barricade tape.First-aid kit.Flares.Flashlight and extra batteries.Paper bags.Personal protective equipment(PPE). * These items should be in police vehicles or readily available to initialresponding officer(s). Optional Audiotape recorder.Camera with flash and extra film.Chalk.Directional marker/compass. Disinfectant. Maps. Plastic bags. Pocket knife. Reflective vest.Tape measure.Tarps to protect evidence from the weather. Traffic cones. Waterless hand wash (towelette with germicide). Wireless phone. 2. Crime Scene Investigator/Evidence Technician Essential* Bindle paper. Biohazard bags. Body fluid collection kit.Camera (35 mm) with flash/film/tripod. Casting materials.Consent/search forms.Crime scene barricade tape.Cutting instruments (knives, box cutter, scalpel, scissors).Directional marker/compass.Disinfectant.Evidence collection containers.Evidence identifiers. Evidence seals/tape.First-aid kit.Flashlight and extra batteries.High-intensity lights.Latent print kit.Magnifying glass.Measuring devices.Permanent markers.Personal protective equipment (PPE).Photographic scale (ruler).Presumptive blood test supplies.Sketch paper.Tool kit.Tweezers/forceps. * These items should be in police vehicles or readily available to initialresponding officer(s). Optional Audiotape recorder.Bloodstain pattern examination kit.Business cards.Chalk.Chemical enhancement supplies.Entomology (insect) collection kit.Extension cords.Flares.Forensic light source (alternate light source, UV lamp/laser, goggles). Generator.Gunshot residue kit.Laser trajectory kit.Maps.Marking paint/snow wax.Metal detector.Mirror.Phone listing (important numbers).Privacy screens.Protrusion rod set.Reflective vest.Refrigeration or cooling unit.Respirators with filters.Roll of string.Rubber bands.Sexual assault evidence collection kit (victim and suspect).Shoe print lifting equipment.Templates (scene and human).Thermometer.Traffic cones.Trajectory rods.Video recorder.Wireless phone. 3. Evidence Collection Kits (Examples) Blood Collection Bindle. Coin envelopes.Disposable scalpels.Distilled water.Ethanol.Evidence identifiers.Latex gloves.Photographic ruler (ABFO scales).Presumptive chemicals.Sterile gauze.Sterile swabs.Test tubes/test tube rack. Bloodstain Pattern Documentation ABFO scales. Calculator.Laser pointer.Permanent markers.Protractor.String.Tape. Excavation Cones/markers.Evidence identifiers.Metal detectors.Paintbrushes.Shovels/trowels.Sifting screens.String.Weights.Wooden/metal stakes. Fingerprint Black and white film.Brushes.Chemical enhancement supplies.Cyanoacrylate (super glue) wand/packets.Flashlight.Forensic light source.Lift cards.Lift tape.Measurement scales. One-to-one camera.Powders. Impression Bowls/mixing containers.Boxes.Dental stone (die stone).Evidence identifiers.Measurement scales.Permanent markers.Snow print wax.Water. Pattern Print Lifter Chemical enhancement supplies.Electrostatic dust lifter.Gel lifter.Wide format lift tape. Toolmarks Casting materials. Trace Evidence Collection Acetate sheet protectors.Bindle paper.Clear tape/adhesive lift.Flashlight (oblique lighting).Forceps/tweezers.Glass vials.Slides and slide mailers.Trace evidence vacuum with disposable collection filters. Trajectory Calculator.Canned smoke.Dummy.Laser. Mirror. Protractor. String. Trajectory rods. Appendix A. Glossary The definitions contained herein apply to terms as used in this document. ABFO scales: (American Board of Forensic Odontology scales). An L-shapedpiece of plastic used in photography that is marked with circles, black andwhite bars, and 18-percent gray bars to assist in distortion compensation andprovide exposure determination. For measurement, the plastic piece is markedin millimeters. Alternate light source: Equipment used to produce visible and invisible light atvarious wavelengths to enhance or visualize potential items of evidence (fluids,fingerprints, clothing fibers, etc.). Bindle paper: Clean paper folded to use to contain trace evidence, sometimesincluded as part of the packaging for collecting trace evidence. Biohazard bag: A container for materials that have been exposed to blood orother biological fluids and have the potential to be contaminated with hepatitis,AIDS, or other viruses. Biological fluids: Fluids that have human or animal origin, most commonlyencountered at crime scenes (e.g., blood, mucus, perspiration, saliva, semen,vaginal fluid, urine). Biological weapon: Biological agents used to threaten human life (e.g., anthrax,smallpox, or any infectious disease). Bloodborne pathogen: Infectious, disease-causing microorganisms that may befound or transported in biological fluids. Boundaries: The perimeter or border surrounding potential physical evidencerelated to the crime. Case file: The collection of documents comprising information concerning aparticular investigation. (This collection may be kept in case jackets, file folders,ring binders, boxes, file drawers, file cabinets, or rooms. Sub-files are oftenused within case files to segregate and group interviews, media coverage,laboratory requests and reports, evidence documentation, photographs,videotapes, audiotapes, and other documents.) Case identifiers: The alphabetic and/or numeric characters assigned to identify aparticular case. Chain of custody: A process used to maintain and document the chronologicalhistory of the evidence. (Documents should include name or initials of theindividual collecting the evidence, each person or entity subsequently havingcustody of it, dates the items were collected or transferred, agency and casenumber, victim's or suspect's name, and a brief description of the item.) Chemical enhancement: The use of chemicals that react with specific types ofevidence (e.g., blood, semen, lead, fingerprints) in order to aid in the detectionand/or documentation of evidence that may be difficult to see. Chemical threat: Compounds that may pose bodily harm if touched, ingested, inhaled, or ignited. These compounds may be encountered at a clandestinelaboratory, or through a homemade bomb or tankard leakage (e.g., ether,alcohol, nitroglycerin, ammonium sulfate, red phosphorus, cleaning supplies,gasoline, or unlabeled chemicals). Clean/sanitize: The process of removing biological and/or chemicalcontaminants from tools and/or equipment (e.g., using a mixture of 10-percenthousehold bleach and water). Collect/collection: The process of detecting, documenting, or retaining physicalevidence. Comparison samples: A generic term used to describe physicalmaterial/evidence discovered at crime scenes that may be compared withsamples from persons, tools, and physical locations. Comparison samples maybe from either an unknown/questioned or a known source. Samples whose source is unknown/questioned are of three basic types: 1. Recovered crime scene samples whose source is in question (e.g.,evidence left by suspects, victims). 2. Questioned evidence that may have been transferred to an offenderduring the commission of the crime and taken away by him or her. Suchquestioned evidence can be compared with evidence of a known source andcan thereby be associated/linked to a person/vehicle/tool of a crime. 3. Evidence of an unknown/questioned source recovered from severalcrime scenes may also be used to associate multiple offenses that werecommitted by the same person and/or with the same tool or weapon. Samples whose source is known are of three basic types: 1. A standard/reference sample is material of a verifiable/documented sourcewhich, when compared with evidence of an unknown source, shows anassociation or linkage between an offender, crime scene, and/or victim (e.g., acarpet cutting taken from a location suspected as the point of transfer forcomparison with the fibers recovered from the suspect's shoes, a sample ofpaint removed from a suspect vehicle to be compared with paint found on avictim's vehicle following an accident, or a sample of the suspect's and/orvictim's blood submitted for comparison with a bloodstained shirt recovered asevidence). 2. A control/blank sample is material of a known source that presumablywas uncontaminated during the commission of the crime (e.g., a sample to beused in laboratory testing to ensure that the surface on which the sample isdeposited does not interfere with testing. For example, when a bloodstain iscollected from a carpet, a segment of unstained carpet must be collected foruse as a blank or elimination sample). 3. An elimination sample is one of known source taken from a person whohad lawful access to the scene (e.g., fingerprints from occupants, tire treadimpressions from police vehicles, footwear impressions from emergencymedical personnel) to be used for comparison with evidence of the same type. Contamination: The unwanted transfer of material from another source to apiece of physical evidence. Control/blank sample: See comparison samples. Cross-contamination: The unwanted transfer of material between two or moresources of physical evidence. Documentation: Written notes, audio/videotapes, printed forms, sketchesand/or photographs that form a detailed record of the scene, evidencerecovered, and actions taken during the search of the crime scene. Dying declaration: Statements made by a person who believes he or she isabout to die, concerning the cause or circumstance surrounding his or herimpending death. Elimination sample: See comparison samples. Evidence identifiers: Tape, labels, containers, and string tags used to identify theevidence, the person collecting the evidence, the date the evidence wasgathered, basic criminal offense information, and a brief description of thepertinent evidence. First responder(s): The initial responding law enforcement officer(s) and/orother public safety official(s) or service provider(s) arriving at the scene prior to the arrival of the investigator(s) in charge. Impression evidence: Objects or materials that have retained the characteristicsof other objects that have been physically pressed against them. Initial responding officer(s): The first law enforcement officer(s) to arrive at the scene. Investigator(s) in charge: The official(s) responsible for the crime sceneinvestigation. Known: See comparison samples. Latent print: A print impression not readily visible, made by contact of thehands or feet with a surface resulting in the transfer of materials from the skin tothat surface. Measurement scale: An object showing standard units of length (e.g., ruler) used in photographic documentation of an item of evidence. Multiple scenes: Two or more physical locations of evidence associated with acrime (e.g., in a crime of personal violence, evidence may be found at the location of the assault and also on the person and clothing of thevictim/assailant, the victim's/assailant's vehicle, and locations the victim/assailantfrequents and resides). Nonporous container: Packaging through which liquids or vapors cannot pass(e.g., glass jars or metal cans). Other responders: Individuals who are involved in an aspect of the crime scene,such as perimeter security, traffic control, media management, sceneprocessing, and technical support, as well as prosecutors, medical personnel,medical examiners, coroners, forensic examiners, evidence technicians, and fireand rescue officers. Personal protective equipment (PPE): Articles such as disposable gloves,masks, and eye protection that are utilized to provide a barrier to keep biological or chemical hazards from contacting the skin, eyes, and mucousmembranes and to avoid contamination of the crime scene. Porous container: Packaging through which liquids or vapors may pass (e.g.,paper bags, cloth bags). Presumptive test: A nonconfirmatory test used to screen for the presence of asubstance. Projectile trajectory analysis: The method for determining the path of a high-speed object through space (e.g., a bullet emanating from a firearm). Radiological threat: The pending exposure to radiation energy. (This energy canbe produced by shortwave x-rays or through unstable isotopes.) Single-use equipment: Items that will be used only once to collect evidence,such as biological samples, then discarded to minimize contamination (e.g.,tweezers, scalpel blades, droppers). Standard/reference sample: See comparison samples. Team members: Individuals who are called to the scene to assist in investigationor processing of the scene (e.g., scientific personnel from the crime laboratoryor medical examiner's office, other forensic specialists, photographers, massdisaster specialists, experts in the identification of human remains, arson andexplosives investigators, clandestine drug laboratory investigators, as well asother experts). Trace evidence: Physical evidence that results from the transfer of smallquantities of materials (e.g., hair, textile fibers, paint chips, glass fragments,gunshot residue particles). Transient evidence: Evidence which by its very nature or the conditions at the scene will lose its evidentiary value if not preserved and protected (e.g., bloodin the rain). Unknown/questioned: See comparison samples. Walk-through: An initial assessment conducted by carefully walking through the scene to evaluate the situation, recognize potential evidence, and determine resources required. Also, a final survey conducted to ensure the scene has been effectively and completely processed. xxxxx Edited October 1, 2007 by William Kelly Link to comment Share on other sites More sharing options...
William Kelly Posted April 2, 2008 Author Share Posted April 2, 2008 How one case from 1963 was belatedly prosecuted: http://judiciary.house.gov/HearingTestimony.aspx?ID=544 Testimony of G. Douglas Jones Before the Subcommittees on Crime, Terrorism, and Homeland Security and on the Constitution, Civil Rights, and Civil Liberties Committee on the Judiciary U.S. House of Representatives June 12, 2007 Justice for Four Little Girls: The Bombing of the 16th Street Baptist Church Cases On September 15, 1963, four young African-American girls, Denise McNair, Addie Mae Collins, Cynthia Wesley and Carol Robertson, died from a bomb blast that ripped into the ladies lounge of the Sixteenth Street Baptist Church in Birmingham. The shockwave created by this senseless tragedy was felt around the world and proved to be a pivotal point in the struggle for civil rights in this country. On May 1, 2001, a jury in Birmingham convicted Thomas Edwin Blanton, Jr. of murder for his role in the bombing. A year later, on May 22, 2002, another Birmingham jury convicted Bobby Frank Cherry, the last surviving suspect in the crime. During the decades between these historic events, Alabama experienced a phenomenal shifting of attitudes which made the prosecutions possible. Yet, the passage of time also created numerous legal obstacles. Some of the strategies used in this overcoming these obstacles were particular to this unique case. Most, however, were the tools and techniques we as trial lawyers use throughout our careers. Much can be written and said about the case of State of Alabama v. Thomas Edwin Blanton, Jr. and the case of State of Alabama v. Bobby Frank Cherry. What follows is only a brief answer to a couple of frequently asked questions and a summary of how the cases came together for trial. “WHY WAS THE CASE RE-OPENED AFTER SO MANY YEARS?” In the spring of 1974, I had the privilege of spending the better part of an afternoon with the late U.S. Supreme Court Justice William O. Douglas. It was the occasion of the twentieth anniversary of the Brown v. Board of Education decision and Justice Douglas was the Law Day Speaker for the University of Alabama School of Law. Although an undergraduate at the time, Justice Douglas and I were in the same college fraternity and I had arranged for the Court’s senior justice to come by my fraternity house for a reception following her activities at the law school. Aspiring to head to law school following graduation, I asked him what advice he would give a law student. He asked me what I wanted to do with my law degree and I replied that I wanted to be a trial lawyer. His advice, “go to court as often as you can. Learn to be a trial lawyer by observing trial lawyers.” Three years later I took Justice Douglas’ advice to somewhat of an extreme. As a second year law student at Cumberland School of Law, I decided I could get more out of watching one of the state’s most historic trials than attending some of my classes. As much as I felt I could get away with that week in November, 1997, I skipped classes to hang out in the balcony of Judge Wallace Gibson’s courtroom in the Jefferson County Courthouse to watch then Attorney General Bill Baxley prosecute Robert Chambliss for the September, 1963 bombing of the 16th Street Baptist Church and the murder of Denise McNair. It was clear from the testimony that Chambliss did not act alone. But as I gave my undivided attention to Baxley’s powerful closing argument, I never in my wildest imagination dreamed that one day this case and my legal career would come full circle, giving me the opportunity, some 24 years later to prosecute the two remaining suspects for a crime that many say changed the course of history. It has been, to say the least, a remarkable journey. In a world where two years is a long time to get your case on the trial docket, this case was facing trial almost forty years after the crime. The FBI had done an extensive investigation following the bombing, but the case was closed without any prosecutions in 1968. By all indications, the case was closed by FBI Director J. Edgar Hoover without consulting the attorneys at the Justice Department. Despite Hoover’s posthumous reputation, it appears Hoover was genuinely concerned about the ability to obtain a conviction. Although he was probably right, any decision about a prosecution should have been made by a prosecutor, not an investigator. In 1971, newly elected Attorney General Bill Baxley re-opened the case and made it one of, if the not the highest, priorities of his office. Most, but not all, materials were given to Baxley for the 1977 prosecution of Robert “Dynamite Bob” Chambliss, who was convicted of the first degree murder of Denise McNair. It was clear from the evidence, however, that Chambliss did not act alone. Unfortunately, when Baxley left office in 1978, the investigation was once again shelved, with only some sporadic review over the next 20 years. But by 1996, a couple things occurred that breathed new life into what otherwise appeared to be a dead issue. First, the newly installed special agent in charge of the Birmingham FBI office began to reach out to the African-American community to mend fences that had broken down over the highly publicized corruption investigation into Birmingham City Hall. One of the concerns being expressed by black leaders was why the 16th Street church bombing case had not been re-examined. At about the same time, the conviction of Byron de la Beckwith for the 1963 murder of civil rights activist Medgar Evers proved that a prosecution of these forgotten cases can be successful with a new generation of southern jurors. The time seemed right for another look at the church bombing case that had remained an open wound for Birmingham. “HOW AND WHERE DO YOU BEGIN WITH A CASE THAT OLD” All of the old investigative files remained at the Birmingham office of the FBI. Special Agent Bill Fleming was assigned the task of compiling the file and beginning the painstaking task of review. He was joined by Birmingham Police Detective Ben Herren, who was assigned to work the case full time. Ben would later retire and finish the case as an FBI Reasearch Analyst. Slowly and methodically the agents began the painstaking process of sifting through thousands of pages of interviews of witnesses and informants. Once the files had been reviewed and the agents felt that they had a handle on the facts, it was time to begin interviewing witnesses. Old witnesses from the earlier investigation, who were still alive, as well as recent acquaintances and family members of Chambliss, Cherry, Blanton and others were identified for questioning. But before the FBI would take to the streets, and thereby expose the fact that the case was being re-examined, what proved to be a critical decision was made concerning the first interview to be conducted. By all indication, Bobby Frank Cherry was a cocky Klan member in the 60’s whose name kept coming up whenever there was trouble. He had been interviewed a dozen times or more in the 60’s, each time denying any involvement in the crime, but each time giving the impression that he wanted to brag about his involvement. Cherry was a talker and if there was anyone who might say something to crack the case it was likely him. Interviewing him first was what turned out to be the first of many strategic moves that paid off. In the summer of 1997, Ben Herren and Bob Eddy, who had been Baxley’s investigator in the 70’s, interviewed Cherry in Texas for about two hours. Although now almost 70 years old, Cherry was as cocky and defiant as ever. His two hour interview provided some helpful information, but it was his post interview press conference that really jump started the case. Although nothing had been publicized about the case being re-opened, Cherry decided to call a press conference to proclaim his innocence and to denounce the agents for continuing to hound him. When he did, the phones at the FBI began ringing: Cherry’s granddaughter called to say she had overheard her grandfather admit to blowing up the church and that everyone in the family knew the story; a co-worker from his Texas carpet cleaning days called to say Cherry had admitted his involvement to him back in the early 80’s; and a man who was a friend of Cherry’s oldest son and only 11 years old at the time of the bombing called to say that in the days before the bombing he had been at the Cherry house and overheard Cherry and three other men talking about a bomb and the 16th Street Baptist Church. The Cherry interview provided the breaks that were needed to move the investigation forward; to hopefully bring closure to the case that had been so intensely investigated by the FBI and continued by Baxley. “FEDERAL V. STATE” Shortly after the Cherry interview and press conference I was sworn in as United States Attorney for the Northern District of Alabama September 8, 1997. What I found with this file was that while the new witnesses had sparked some hope, there was very little else that was encouraging. There was no forensic evidence from the scene, no DNA and no residue of explosive material. There were no eyewitnesses, or at least none that had come forward. There were no co-conspirators who had decided to get this off their chest before they pass from this life into the next. Over the years many potential witnesses, and suspects, had died and many others were elderly and frail. What we did have was a series of circumstances, including many of the prior statements of Blanton and Cherry, that clearly pointed to the guilt of these two men. We assembled a team to begin the next phase of the investigation that would include having witnesses appear before a federal grand jury. Robert Posey, a former state Assistant District Attorney and a 10 year veteran of the U.S. Attorney’s office, was assigned to assist. Jeff Wallace, one of the most seasoned prosecutors in the Jefferson County DA’s office came on board. Following the Blanton trial, Assistant U. S. Attorney Don Cochran, who had also been a former state assistant DA, was added to assist in the Cherry trial. It was essential that we have both state and federal prosecutors looking at this case because there was no way to tell which forum would be chosen should we seek indictments. Initially, all investigation was conducted out of the U.S. Attorney’s office and the federal grand jury. Grand Jury subpoenas from a federal grand jury had a much larger reach for the many witnesses from out of state. There were also more resources out of the Department of Justice that we could draw on for witness expenses. Federal jurisdiction, however, hung by a thread. The statute of limitations for all civil rights violations had long since run. However, under 18 U.S.C. 841,et. seq, as it was written in 1963, there was no statute of limitation when a death resulted from the offense of interstate transportation of explosives. The problem for us was that with no forensic evidence we did not know exactly what explosives were used, much less where they came from. Fleming and Herren chased leads all over the country, particularly about dynamite coming out of Atlanta and Kentucky, but to no avail. In the end, there was no proof of any interstate transportation of explosives leaving a state murder charge in Jefferson County as our only option. In May of 2000, with the express approval of both U.S. Attorney General Janet Reno and Alabama Attorney General Bill Pryor, we began presenting our case to a state grand jury. Three days later the Grand Jury indicted Tommy Blanton and Bobby Frank Cherry for the murder of the four young girls who died in the bomb blast of the 16th Street Baptist Church. “SURVIVING THE MOTION TO DISMISS” Defense lawyers for both defendants filed motions to dismiss the indictments, citing the age of the case and the loss of witnesses as evidence that their clients would be denied a fair trial if forced to defend themselves on a 38 year old murder charge. The law in Alabama, however, is difficult for a defendant to be successful in this type of motion. The defendant must show not just a delay, but an intentional delay designed to gain a tactical advantage and that the delay caused actual substantial prejudice to the conduct of his defense. Defendants failed on both counts. In fact, I believe that the State was more prejudiced by the delay than the defendants. For instance, a witness visiting from Detroit identified Tommy Blanton’s car as the car parked behind the church at 2:00 a.m. on the morning of the bombing. Robert Chambliss and two other unidentified white men were in the car. This witness testified against Chambliss, but died in 1985, thereby losing forever critical testimony. “SURVIVING THE MOTION TO SUPPRESS THE KITCHEN TAPE” In piecing together the chronology of events leading up to the bombing on Sunday morning, there were a series of meetings at the Modern Sign Shop, a local gathering spot for the Klan and anti-integration crowd, and at the Cahaba River Bridge, where Chambliss and Blanton were recruiting others to form a new Klan klavern. Blanton and his girlfriend, Jean, told agents that Blanton broke his date with Jean on Friday night before the bombing to make signs at the sign shop. Cherry, after initially stating he was at home that Friday night, admitted that he was also at the sign shop and that Blanton and Chambliss were both there. The significance of these interviews, given in the early stages of the investigation in 1963, was not realized until January, 2000, when Ben Herren was reviewing tape recordings prior to releasing them to the defense. The bombing of the 16th Street Baptist Church was the first in the civil rights era that had resulted in deaths. The tragedy energized the FBI to find the murders and the to prevent further violence. While scores of agents hit the streets interviewing witnesses and working informants, FBI Director Hoover and Attorney General Robert F. Kennedy personally approved the use of wiretaps and electronic “bugs” on the telephones and at the homes of numerous suspects. While reviewing one of those tapes, made by a “bug” under the kitchen sink in Blanton’s apartment, Ben Herren made a remarkable discovery. It was June of 1964. Tommy Blanton had married Jean and, in the presence of an unknown third person, they were discussing the Friday night broken date and their FBI interviews. Captured on tape was the following conversation, which proved to be the critical piece of evidence in this case: JEAN: Well, you never bothered to tell me what you went to the river for Tommy. TOMMY: What did you tell them I did? JEAN: You didn’t even. TOMMY: What did you tell them I did at the river? What did they ask you I did at the river? JEAN: They asked me what you went for and I told them I didn’t know. TOMMY: They were interested in that meeting that I went to. They knew I went to the meeting. JEAN: What meeting? TOMMY: To the Big One. JEAN: What Big One? TOMMY: The meeting where we planned the bomb. JEAN: Tommy, what meeting are you talking about now? TOMMY: We had that meeting to make the bomb. JEAN: I know that. TOMMY: I think I’ll wear this sh-I’m going to wear this shirt. JEAN: It’s what you were doing that Friday night when you stood me up. TOMMY: (UI) Oh, we were making the bomb. JEAN: Modern Sign Company. TOMMY: Yeah Naturally, Blanton’s defense team filed a Motion to Suppress, claiming a violation of the Forth Amendment. The microphone had, in fact, been placed in the Blanton apartment under orders from FBI headquarters, but without any court order or judicial review. What our research indicated, however, was that exceptions to the “exclusionary rule” provided a window of opportunity for the admission of this critical evidence. To begin with, in 1963, there were no provisions for court approved electronic surveillance as there are now. A search warrant was not available because the items to be seized, conversations, could not be particularly described in an affidavit. The executive branch of government could, however, utilize electronic surveillance for national security purposes. Although one could question how a local KKK member could involve national security, we cleared that hurdle by reminding the court of the climate of the time: the deaths cause by the blast and the unrest in the community, concerns over Communist influence on both sides of the civil rights struggle, the common practice of federalizing national guard troops to keep order and the assassination of President Kennedy that occurred just 2 months after the bombing. Moreover, determining what was or was not national security was exclusively an executive branch function. The evidentiary problem for us was that the law at the time only permitted electronic surveillance for intelligence purposes. Use as evidence in a trial was prohibited. The law involving the use of electronic surveillance has been altered considerably since 1963. In 1968 Congress passed a wiretapping and electronic surveillance law which requires all law enforcement, state or federal, to get court approval before such investigative tools can be used in criminal investigations and trials. The statute also provides for the exclusion of evidence if a court order is not obtained or the law not followed. See 18 U.S.C. 2510, et. seq. The exclusionary rule for “bugs” that exists by statute is important when considering the exclusionary rule developed by caselaw. Over the years, the Supreme Court has chipped away at the once rigid, absolute rule of exclusion of any illegally seized evidence. Today there are exceptions for, among other things, good faith and inevitable discovery. Today’s Supreme Court has held on more than one occasion that the exclusionary rule is not one of punishment of the offending officer in a particular case, but one of deterrence for future cases and that the value of the truth seeking process must be weighed against the value of deterrence. In this case, when there exists an legislative statute that completely governs the use of electronic “bugs” there is no deterrent value to excluding evidence based on conduct that occurred long before the statute went into effect. When weighed against the truth seeking process, as was obvious by the content of the tape, it seemed clear that the suppression motion should be denied. Judge Garrett agreed and our jury was able to hear an admission out of Blanton’s own mouth. Interestingly, on appeal, Attorney General Pryor and his staff developed an even stronger argument. Overlooked in our efforts during the suppression hearing was a document from the FBI that indicated that the microphone had been placed “without trespass.” At trial, Ralph Butler, the FBI tech who installed the mike testified that when the wall was torn out from the apartment that the FBI rented next to Blanton, they discovered a small hole in Blanton’s wall. The microphone was then place on the inside of the wall, not intruding into the Blanton residence. The evidence is critical to a review of the law that existed at the time in that a “bug” placed without any trespass was admissible under the 1928 case of Olmstaed vs. United States, 277 U.S. 438 (1928). The appeal was argued before the Alabama Court of Criminal Appeals on May 20, 2003. “SELECTING THE JURY: THE USE OF JURY CONSULTANTS” Jury selection is always critical, but in these cases there seemed to be so many more issues that permeated the case that could influence a juror: the age of the defendants, the age of the case, the historical significance of the case, the racial overtones, the life experiences of each juror living in the South, then and now. To assist in jury selection, we brought in two highly regarded consulting firms who were experts in the process. Andy Sheldon, of Sheldon & Associates in Atlanta, had assisted the prosecution in two other high profile civil rights cases in Mississippi, including the Medgar Evers murder case. Steve Patterson and Norma Silverstein, with Vinson & Dimitri of Los Angeles, had assisted in a number of high profile and juror sensitive cases, such as the McVeigh case and former Louisiana governor Edwin Edwards. Together they were a powerful and insightful team. The first step was to conduct a focus group where pieces of the case were presented to a panel of randomly chosen citizens. There were two separate groups, moderated by Andy and Norma, in more of a discussion fashion than a mock trial. They also discussed three separate cases, our bombing case, the Eric Rudolph case, and the O.J. case, in order to mask who was staffing the presentation. Various themes were tested, as were the strengths and weaknesses of key pieces of evidence. Through a one-way glass prosecutors and agents were also able to observe the dynamics between the various age, gender and ethnic origins of the participants. The second stage of the process was a community attitude survey, built on questions developed from the focus groups. This was an extensive telephone survey that went into great detail regarding potential jurors’ opinions of the case, the impact of media coverage, race relations, and general themes. The results were broken down by age, gender, race and address. What we learned was that by in large the participants had heard of the case through the media, but had not formed a hard opinion about guilt or innocence; that neither the age of the case nor the age of the defendants were a concern if the evidence existed and that some of our strongest evidence was the inconsistent, and what we believed to be lies, statements of the defendants about their whereabouts that weekend. We were also encouraged that the attitudes on race and race relations clearly proved that Alabama has, in fact, come a long way from where we were as a state in the 1960’s. Judge James Garrett had already indicated that he would allow the use of a juror questionnaire when jury selection began. After dissecting the results of the focus groups and the survey, and after receiving input from the defense, a questionnaire consisting of 100 questions was proposed. The questionnaire dealt with just about everything from the routine questions about the jurors’ backgrounds and knowledge of the witnesses, to more detailed information covering the books they read, the television shows they watch, the radio programs they listen to, their knowledge about the case and their opinions on race relations. Because questions arose concerning Cherry’s competency, the two cases were severed so that while Blanton proceeded to trial, Cherry was undergoing mental evaluations. Prior to the Blanton trial our consultants argued for a “mock trial” to test the various themes and defenses. I resisted for fear that in this age of commercialization of high profile cases we could not control the confidentiality of our evidence, which could jeopardize our venue in Birmingham. For the Blanton trial we waded into the jury selection process armed with a great deal of information, but no true test of our case. However, because the evidence in the two cases was considerably different, and even though Blanton had been convicted, the decision was made to test the Cherry evidence in a mock trial. Don Cochran, who had not participated in the Blanton case and was thus probably not as easily recognized by the participants, prosecuted the State’s case. Assistant U.S. Attorney, Mike Rasmussen, presented the case for the defense. Both did an excellent job of presenting what turned out to be a pretty accurate rendition of the upcoming trial. The results of the mock trial were nothing short of dramatic. What we thought was a relatively thin case against Cherry turned out to be surprisingly compelling. Trial lawyers have to be sensitive to the jurors and the jury selection process in order to be successful. What is hard to admit, however, is that we don’t know everything about everyone on a jury panel. The use of consultants, with a fresh, but experienced, perspective can make all the difference. “CAPTURING THE JURY’S FOCUS: SETTING OUT A THEME IN BLACK AND WHITE” The themes of both trials took jurors on a journey back through history. It was a history that some of the jurors had lived, while others had only learned about it in school. Using black and white video footage and photographs, jurors were walked through the black and white world of 1960’s Birmingham. The black and white images were a constant, albeit subtle, reminder throughout the trial of a once segregated Birmingham. The journey started in 1957, when Rev. Fred Shuttlesworth attempted to enroll his children in the all-white Phillips High School. He was met by an angry mob of white men, about ten of whom proceeded to attack Rev. Shuttlesworth and his wife in front of the school. The scene was captured on 8mm file and is standard footage in most civil rights documentaries. Seeing that such attempt to integrate the Birmingham City Schools would not work, a lawsuit, based on the 1954 Brown v. Board of Education decision, was filed in federal court. That case and its ultimate outcome would set the stage for many events to follow. But the footage of the mob beating Rev. Shuttlesworth also had additional importance in the Cherry case. To the courtroom spectator, Bobby Frank Cherry appeared to be anybody’s grandfather: a 71 year old man more comfortable wearing overalls in the garden than wearing a suit sitting in a courtroom. But witnesses identified Cherry in the thick of the mob attacking Rev. Shuttlesworth, even using what appeared to be brass knuckles. Thus, from opening arguments jurors were shown what Bobby Frank Cherry was like as a 33 year old man in 1963: a member of the KKK, who resorted to violence to stop integration. Jurors also learned, through photographs and testimony, that 1963 and the months leading up to the bombing were pivotal times for the City of Birmingham. That spring the famous “children’s marches” were organized by Dr. King and others to integrate the public facilities of downtown Birmingham. The Sixteenth Street Baptist Church had already become a focal point for the civil rights movement in Birmingham, but now it was even more prominent with the marchers gathering in the sanctuary before facing Bull Connor’s forces just outside. When a settlement was reached to begin the process of integrating Birmingham, Cherry and Blanton saw the first real cracks in their segregated way of life. As the civil rights movement gathered steam with the August, 1963 “March on Washington,” the case to integrate Birmingham Schools was coming to a close. Six years after the case began, the final orders were issued that forced Birmingham to accept African-American students. On September 10, 1963, just five days before the bombing, two young men enrolled at Graymont Elementary School and for the first time, Birmingham had an integrated school system. Blanton and Cherry saw their segregated way of life erode even further. It was, I believe, no coincidence that five days after the schools were finally integrated a bomb was placed under the steps of a prominent player in the civil rights movement, the 16th Street Baptist Church, on a Sunday morning where other prominent players in the movement, the youth, were preparing for the first of the planned monthly youth worship services. THE CASE AGAINST BLANTON AND CHERRY The evidence introduced in the Blanton trial and the Cherry trial obviously had many similarities. Testimony from the victims’ families and from those on the scene was essentially the same in both trials, but the evidence that pointed to the guilt of each defendant was considerably different. The Blanton jury heard evidence of the defendant’s hatred for blacks and his membership in the Klan. Tapes were played of conversations between Blanton and an informant in which Blanton joked about “bombing my next church.” There was testimony by James Lay who identified Blanton and Chambliss has the men he saw standing on the side of the church at one o’clock in the morning two weeks prior to the bombing. The man identified as Blanton was holding some type of satchel and standing next to the steps where the bomb was eventually placed. Agents who had interviewed Blanton following the bombing testified about Blanton’s inconsistent statements concerning his whereabouts the weekend of the bombing. Finally, the jury heard Blanton himself, on tape, admitting to being part of meetings where the bomb was planned and made. With Cherry, the witnesses who came forward all gave compelling testimony about Cherry’s admissions to them. In addition, an ex-wife who had also called the FBI when she read about the case in Montana, testified about Cherry’s admissions to her. Like Blanton, Cherry also gave many conflicting statements about his whereabouts the night before the bombing. His latest version of where he had been on Saturday night was that he was home early because his wife was dying with cancer and he always watched live studio wrestling at 10 p.m. We introduced medical records proving that Mrs. Cherry was not diagnosed with cancer until 1965, two years after the bombing, and that there was no Saturday night wrestling on TV at the time. Most significantly, Cherry admitted to being at the Modern Sign Shop with Blanton and Chambliss on the Friday night before the bombing, the same Friday night and location where Blanton said “we” had planned and made the bomb. In both trials, we concluded the prosecution’s case on an emotional high note. People sometimes forget that there were actually five little girls in the ladies lounge that morning. Our last witness was Sarah Collins Rudolph , the sister of Addie Mae. She testified about walking to church that morning with her sisters and going into the basement and the ladies lounge with Addie. As she went to wash her hands she turned around and saw Addie tying the sash of Denise’s new dress. The explosion then trapped her beneath rubble, unable to move and unable to see because of injuries to her eyes. I asked her what happened after the explosion? “I called out for my sister.” What did you say? “I called out Addie, Addie, Addie,” her words echoing in a silent courtroom much as they would have 38 years earlier. “Did she answer you back?” I asked. “No.’’she said softly. Did you ever see her alive again? “No” she said, wiping back the tears. With that, the State of Alabama rested. It took the jury only 2 and one-half hours to find Tommy Blanton guilty on four counts of first degree murder. It took the Cherry jury about six hours to reach the same result. Both were immediately sentenced to life in prison and were whisked out of the courtroom by Sheriff’s deputies. “THE AFTERMATH” It is impossible to express the emotion felt by the prosecution team and the satisfaction gained from being a part of these cases. I have said many times that I wish every lawyer, at least once in their career, could work on a case that meant so much to so many. There are many things that can come from such a case, but only two I would like to highlight here. First, I am always asked about threats or hate mail that we received throughout the course of this investigation. I guess it is assumed that even today the hatred of the past remains with us. I am sure it does in some quarters. But the fact is that we received absolutely nothing in the way of the hate mail or threats. None. That is not to say there was not some criticism of the prosecution, but that is always expected in any high profile case. It seems to me though, that the complete lack of anonymous threats or hate mail speaks volumes about where we as a state have come since 1963. Finally, as lawyers we have to remember that we are a service profession. Our job is to seek justice for our clients no matter what the obstacles or delay. Justice delayed does not have to mean justice denied. The odds are that you will never see a case that has such an impact on so many, but every case does have an impact on the client we represent, whether it is injured child, the defrauded consumer or the family of a victim. Each of these clients deserve as much attention and effort as Carol, Denise, Addie and Cynthia. Link to comment Share on other sites More sharing options...
William Kelly Posted April 3, 2008 Author Share Posted April 3, 2008 "After talking with Myrlie (Evers) and hearing her recount the tragic events of that night, it was driven home to me that there are some things that not only span races, that not only span people, but span time, as well. It may have been 25 years, but the hurt was still there - the lack of closure, the lack of justice was still there - everything I see with families of homicide victims that we handle was no different in that respect. By Bobby DeLaughter, now Judge DeLaughter. Inspiring his audience of mostly law students to "carry the torch of justice into the next millennium," Assistant District Attorney Bobby DeLaughter ('77) presented a fall lecture recounting his quest that led to the retrial and conviction of Medger Evers' assassin Byron De La Beckwith. In 1994, DeLaughter successfully spearheaded the prosecution of the white supremacist in the June 12, 1963, sniper shooting death of the Mississippi NAACP field secretary. In pin-drop silence in the Lamar Law Center's Moot Court Room, the sagacious prosecutor told an incredible story of finding missing old evidence and coming up with "something new" in order to ensure a conviction 31 years after Beckwith's first trial. DeLaughter's account was like pieces of a puzzle falling into place, as he recalled his five-year investigation. It included not only uncovering missing old evidence - including the murder weapon, a transcript from the first trial, a partial police report, crime scene photos and the allowance of testimony by now-deceased witnesses from the first trial - but also discovering a confession by Beckwith. "I always felt like we needed something new, something that (original prosecutor Bill) Waller didn't have. Even if it wasn't necessary legally, I thought a jury psychologically would insist on it," he said. The fresh evidence was provided by his friend who was serving as the local counsel for Orion Pictures in a defamation law suit brought by the Ku Klux Klan against the film company for the Klan's portrayal in the film Mississippi Burning. Preparing for the defense, the attorney uncovered a book that had been out of print for 20 years. Written by an ex-Klan informant, the book contained a confession by Byron De La Beckwith. "Beckwith was asked to be the featured speaker at a Klan rally on a Pearl River sandbar south of Jackson following his release," said DeLaughter. "It was a recruiting rally-the-troops type of speech. It was like: `Look what I did. I got away with it so nothing's going to happen to you; so let's get in there and kill them all.'" After tracking down the book's author and enlisting his assistance, DeLaughter said, "We finally had our something new, and from that point on things simply escalated," including several other informants stepping forward. "Mr. Loudmouth couldn't resist bragging to people he thought would be impressed with his accomplishment. What he hadn't counted on was over the years that these people would have a change of heart, that these people would change, unlike him, and they wanted to set things right." Setting things right had been uppermost in DeLaughter's mind since Oct. 1, 1989, when he read a Clarion-Ledger article that alluded to jury tampering by the State Sovereignty Commission in Beckwith's first trial. After a subsequent meeting with the slain civil rights worker's widow, the attorney said he became "a man obsessed." "After talking with Myrlie (Evers) and hearing her recount the tragic events of that night, it was driven home to me that there are some things that not only span races, that not only span people, but span time, as well. It may have been 25 years, but the hurt was still there - the lack of closure, the lack of justice was still there - everything I see with families of homicide victims that we handle was no different in that respect. "I also considered it a black eye to Mississippi after all those years, and I considered it an opportunity to show that equal justice could be obtained here." DeLaughter admitted that in the beginning he had nothing - no evidence, no trial transcript, no police report. "But we did announce to the media that we were going to make a good faith effort to investigate whether or not something could be done." After hearing public reaction run the full spectrum, from asking for the immediate re-arrest of the accused, saying he was not moving fast enough, to those irate that he was moving at all, the district attorney said, "It was extremely hard to stay focused on what we were trying to do, and the easy thing would have been to just leave it alone, because the most frequent thing I was told, and I still hear it today, was `leave it alone; you're just going to open up another wound.' "But I felt like not only myself but also Mississippi was being put to the test. ...Basically, for me it was put up or shut up time for everything I believed in legally and morally. I just could not let other people determine my priorities." DeLaughter's presentation included slides of the crime scene and other photos related to the case and clips from the film Ghosts of Mississippi, which is based on the retrial. A poignant moment in the attorney's presentation came when he showed a slide of the exhumed body of Medgar Evers, perfectly composed after being buried more than 25 years at Arlington National Cemetery. Several members of the audience shed tears, as the speaker seemed to choke back his own emotions. The exhumation, with permission from the Evers' family, allowed a forensic pathologist's autopsy to establish a cause of death, according to the attorney. It also provided Van Evers, the youngest of the three Evers' children, the opportunity to see his father for the first time in his memory. DeLaughter recently completed a memoir about his experience in the Beckwith case, tentatively titled Never Too Late, to be published by Scribner. His closing argument in the landmark trial is included in the volume Ladies & Gentlemen of the Jury: Greatest Closing Arguments in Modern Law, edited by Lief, Caldwell & Bycel and published by Scribner in 1998. Photo Bobby DeLaughter (left) receives the Law Alumni Public Service Award from Dean Samual M. Davis becoming the first recipient of the award established by the Law School faculty. According to the citation to DeLaughter, the award was given "in recognition of his devotion to the public good as demonstrated by his record of outstanding public service." The attorney recently was sworn in as Hinds County's newest County Court judge, appointed by Gov. Kirk Fordice to fill the unexpired term of the late Judge Chet Henley. Link to comment Share on other sites More sharing options...
William Kelly Posted April 7, 2008 Author Share Posted April 7, 2008 A Mock Grand Jury or just Mock Trial is a great idea [if a real one can't be had...but isn't that just shamefull - that this matter doesn't rate one!!!!], but I strongly suggest you make it an INTERNATIONAL one. Have international jurists and lawyers; have it broadcast/followed on foreign media - as well as the internet. The world is involved with this matter and what America has become, because of it - in some cases more than there back in the Slumberland! It can still physically be in the US and mostly peopled by Americans, but to make it an exclusively 'American' 'thing' would [in my opinion] be your greatest mistake and also allow the 'Beast' to control it better. Also, there are still a few [very few and very old now] former Nuremberg lawyers who might lend their support. The Beast that holds America in it's grasp will NOT be disarmed by playing by their rules or in their arena [with their controlled Media].There are many examples from Vietnam War days http://911review.org/Wget/www.homeusers.pr...on/v1tribun.htm and here is a more recent one http://extension.ucdavis.edu/unit/internat..._Mock_Trial.pdf Peter, Forget Mock Trial. There's already been the trial of Oswald televised from England with Bugliosi, et al., and you can't convict a dead man. A Mock Grand Jury could take new sworn testimony under oath and develop new evidence and witnesses that could show a district attorney that there really is a case worth pursing. A Mock Grand Jury would include new sworn testimony that would count as new evidence. Your reqest for international participation is taken however. BK Link to comment Share on other sites More sharing options...
Recommended Posts
Please sign in to comment
You will be able to leave a comment after signing in
Sign In Now