Friday, December 31, 2010

Johnny Frank Garrett: Not The Last Word

Reader Anonymous left a comment on my post What's Up With Johnny Frank Garrett? He informs us that The Last Word is now available on Netflix for instant viewing. The Last Word is an award winning documentary about  the obviously wrongful execution of Johnny Frank Garrett.

The 90 minute documentary provides more detail than I provided in my post Actual Innocence: Johnny Frank Garrett and Bubbles the Clairvoyant. If you have a Netflix subscription, you should watch the documentary. I suggest you wait until you have time to be sad and discouraged.

Jeff Blackburn is a Director for The Innocence Project of Texas. He appears in the documentary. Repeatedly. I'd say he's a bit angry about this case. Here's what he had to say about then Governor Ann Richards.
She should have stopped this execution and commuted his sentence. She could do it. There's no question about that. The governor has that power. She was arguably one of the best governors if not the best governor the 20th century had ever produced, and the best she could do is go along with the mob. That tells you how far things have gone in Texas.
To understand Ann Richards you've got to understand that she was a great Texas politician. To be a great politician in Texas means you've got to be a lousy human being. You cannot be governor of the state of Texas and be anything other than rotten to the core.
Johnny Frank Garrett made me personally change my whole view of Ms. Richards, a view that I had fostered on me and nurtured in me since childhood. She did the wrong thing, and for the wrong reason. And she did it for the sake of what they call political effectiveness, which really means keeping your career intact.

It was wrong and lousy and it still is wrong and lousy.
That's a bit harsh, but Ann Richards did in fact allow Johnny Frank Garrett to be executed. Rick Perry did in fact allow Francis Elaine Newton and Cameron Todd Willingham to be executed. All three were almost certainly innocent. It was wrong and lousy that we killed them.

Those three people died in vain. We have not learned from the injustice we inflicted upon them, and injected into them. We are going to do it again.

We are going to do it again in twelve days.

I'll write of that case tomorrow, on the first day of the new year.

Thursday, December 30, 2010

The Stupidity of Ezra Klein

I avoid writing of politics, religion, and weather. On such matters, I have no unique experience or perspective to share. Furthermore, I have no desire to alienate anybody who shares my desire to reduce our rate of wrongful conviction and imprisonment. So when I hear people say seemingly stupid things about politics, religion, or weather, I don't write about them.

For Ezra Klein, however, I'll make an exception.

Appearing on MSNBC as their policy wonk, Washington Post blogger Ezra Klein wants the world to know two things about the U.S. Constitution.
One is that it has no binding power on anything, and that two the issue is not that people don't read the text and think they're following it, the issue is that the text is confusing because it was written more than one hundred years ago and what people believe it says differs from person to person and differs depending on what they want to get done.
Ezra doesn't seem to have as much respect for the U.S. Constitution as he does apparently for ... lemme think here ... let's say ... Nazi Germany. That's right. Ezra Klein felt the world should know that the Nazis, while evil, still had some really good ideas. I quote from an Ezra Klein post at The American Prospect.
Not everything the Nazis touched was bad. Hitler was a vegetarian. Volkswagen is a perfectly good car company. Universal health care is a perfectly good idea. Indeed, the Nazis actually did a pretty good job increasing economic growth and improving standards of living (they were, many think, the first Keynesians, adopting the strategy even before Keynes had come up with it), pushing Germany out of a depression and back into expansion. Unfortunately, they also set out to conquer Europe and exterminate the Jews. People shouldn't do that.
One possibility is that Ezra Klein is a clever public figure who promotes himself by saying outrageous things that other lesser beings, such as I, will foolishly write about and thereby spread his fame and increase his fortune. 

Another possibility is that Ezra Klein is a muffin-brained black hole of stupidity who sincerely doesn't know  that the U.S. Constitution does in fact have binding power on all actions of the U.S. government, that elected officials take an oath to defend and uphold the Constitution.

Perhaps another possibility still is that there is some cosmic law mandating conservation of stupidity and Ezra Klein took a massive stupid pill so that twenty other people wouldn't have to be stupid. How else could Ezra be unable to understand such straightforward writing?
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ...

The Senate of the United States shall be composed of two Senators from each State ...

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years ...

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[T]he right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States ...

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I would never suggest that anyone, other than Ezra Klein's clones and acolytes, would be unable to understand the clear and unambiguous language of the Constitution. I recognize there is substantial debate about how to observe the Constitutional limitations and implement the Constitutional mandates. That is far from saying, however, that the Constitution "has no binding power on anything."

Rue the day Ezra Klein should ever be right.

This just in: England, a progressive country unimpeded by a Constitution, has decided that the King's subjects can forthwith be tried multiple times for the same crime.

Just in: Venezuela, a progressive country unrestrained in its governmental powers, has granted Hugo Chavez the power to rule by decree.

Just in: Sudan, a progressive country unencumbered by a Bill of Rights, literally whips its women into submission.

Satirist Iowahawk executes a brilliant takedown of Ezra Klein without referring to him as a "muffin-brained black hole of stupidity."

Wednesday, December 29, 2010

Taking a Bite Out of Crime

As I was working on the introductory chapter for my monograph On The Rate of Wrongful Conviction, I stumbled across a case I figured you might enjoy, particularly if you are Mike Tyson. I'll get straight to it.

In 1997, West Virginia Judge Joseph Troisi had just denied post-conviction bond reduction for William Witten. Witten had been convicted and sentenced on two felony counts of breaking and entering.

With the magic of Present Tense, I'll take you back to the events as they happened that day.

Witten is being led from the courtroom by a state trooper. Witten mutters something about the judge being a "fucking asshole."

Judge Troisi overhears the remark and orders the trooper to return Witten to the bench.

Troisi descends from the bench. He unzips his black robe and lets it drop to the courtroom floor.

Troisi gets in Witten's face and taunts him. It looks as if Troisi is trying to bait Witten into striking a judge.

Witten puts his hands in his pockets.

Witten: "You know I can't touch you."

Troisi: "When you get out of the penitentiary, you look me up."

Witten: "I'll make a point of it."

Troisi chest-bumps Witten twice and forces him backwards against the bench.

Troisi snaps his teeth near Witten's face.

On the second snap, Trosi bites a piece of flesh from Wittnen's nose.

Troisi spits the piece of Witten's nose onto the floor.

Witten just stands there as blood runs down his face.

The state trooper, who is apparently on a first name basis with the defendant, says: "Come on, Bill." He once begins to lead Witten from the courtroom.

Troisi: "Do something about your nose."

Troisi picks up his robe, puts it back on, returns to the bench, and calls for the next case.

For his assault, Troisi faced up to 10 years in jail and a fine of $250,000.  Even judicial immunity has its limits.

Troisi resigned from the bench, pled no contest to a charge of criminal battery, spent five days in jail for the assault, and was placed on probation. As part of his plea agreement, Troisi agreed to counseling for impulse control.

The counseling apparently didn't take. Soon after being released from jail, Troisi verbally assaulted a court clerk who had testified against him. Even though no body parts were consumed during that confrontation, ex-judge Joseph Troisi was returned to jail for six months for violating his probation.

Tuesday, December 28, 2010

Pickings from The Devil's Dictionary: The Letter A

Courtesy of Ambrose Bierce

ABNORMAL, adj. Not conforming to standard. In matters of thought and conduct, to be independent is to be abnormal, to be abnormal is to be detested.

ABORIGINIES, n. Persons of little worth found cumbering the soil of a newly discovered country. They soon cease to cumber; they fertilize.

ABSENT, adj. Peculiarly exposed to the tooth of detraction; vilifed; hopelessly in the wrong; superseded in the consideration and affection of another

ABSURDITY, n. A statement or belief manifestly inconsistent with one's own opinion.

ACCIDENT, n. An inevitable occurrence due to the action of immutable natural laws.

ACCUSE, v.t. To affirm another's guilt or unworth; most commonly as a justification of ourselves for having wronged him.

ACHIEVEMENT, n. The death of endeavor and the birth of disgust.

ACKNOWLEDGE, v.t. To confess. Acknowledgement of one another's faults is the highest duty imposed by our love of truth.

ACQUAINTANCE, n. A person whom we know well enough to borrow from, but not well enough to lend to.

ACTUALLY, adv. Perhaps; possibly.

ADMIRATION, n. Our polite recognition of another's resemblance to ourselves.

ADORE, v.t. To venerate expectantly.

ADVICE, n. The smallest current coin.

ALIEN, n. An American sovereign in his probationary state.

ALONE, adj. In bad company.

AMBITION, n. An overmastering desire to be vilified by enemies while living and made ridiculous by friends when dead.

APOLOGIZE, v.i. To lay the foundation for a future offence.

ARREST, v.t. Formally to detain one accused of unusualness.

Monday, December 27, 2010

The Absurd Case of Dale Helmig: Conclusion

Dale Helmig was convicted of murdering his mother based on no physical evidence and no eyewitness evidence. None. Zero.

Dale Helmig was convicted based only on his alleged inside knowledge of the crime and his alleged suspicious behavior. He was sentenced to life in prison.

And just to be clear, this happened right here in The United States of America. You can read the details in my three previous posts here, here, and here.

Missouri's case against Dale Helmig was absurd from the beginning, and it has finally crumbled.
But on Monday [December 13], DeKalb County Senior Judge Warren McElwain wrote that Helmig was innocent by clear and convincing evidence, and he was released from the Crossroads Correctional Facility in Cameron.

"This morning I had a feeling something was going to happen today," said Helmig, who was released after changing out of his prison jumpsuit and into his street clothes and a brief, 10-minute meeting with Judge McElwain. "I never gave up good and bad days, never gave up."
In response to this turn of events, the Attorney General for Missouri said:
As the chief legal representative of the State of Missouri, I am always pleased to see an innocent person set free. This case only highlights the need for us to accelerate our efforts to identify those we have wrongfully incarcerated, and see that they too are freed."
I'm only kidding. As expected, Missouri fought tooth and nail to keep the evidence of Helmig's guilt from even coming before Judge McElwain during the evidentiary hearing. Even now, after Judge McElwain has declared Helmig innocent and set him free, Missouri does not want to discuss the evidence. Instead, they intend to appeal on the basis that Judge McElwain did not have the authority to free Helmig.

As is usually (almost always) the case, a wrongfully convicted person is freed in spite of the State, freed only because of the unrelenting, selfless actions of our citizenry. In this case, I offer my congratulations to Sean O'Brien and all the attorneys, paralegals, and students working with the Midwestern Innocence Project. Amazing work!

Of the many, many, many cases out there, I chose to write of Dale Helmig because his case is not too distant from one that is very important to me. Dale Helmig spent his 14 years of wrongful imprisonment at Crossroads Correctional Center. That is the same "correctional center" where Byron Case is scheduled to undergo correction for the remainder of his days.

Byron Case knew Dale Helming in passing. During one of our phone conversations, Byron told me about Dale being featured on America's Most Wanted, not as a criminal, but as the first ever innocent person to be featured on the show.
“America’s Most Wanted,” scheduled for broadcast [in May 2009] will devote an hour to the investigation and trial of Helmig, now 53, who in 1996 was convicted of murdering his mother. He was sentenced to life in prison without parole.
The show is designed to capture bad people and put them away,” said producer Dave Bolton. “This case jumped to our attention because it looked like a huge miscarriage of justice because the bad guy who did the crime was still out there and the innocent guy was put in prison for a crime he did not commit.”
I continue to work with Byron in the hope that some day he too may be freed from his wrongful imprisonment.

Wednesday, December 22, 2010

The Absurd Case of Dale Helmig: Part III

In my original post of this series, I discussed the incredibly lame evidence on which Dale Helmig was convicted of killing his mother, Norma. There was no forensic evidence. There was no eye-witness evidence. Dale Helmig was convicted because he could not prove he was elsewhere at the time of the murder, because he had recently quarreled with his mother over money, because he acted suspiciously, and because he had inside knowledge of the murder.

In my previous post, I explained that Dale Helmig's father, Ted, was a far more likely suspect. Ted Helmig could not prove he was elsewhere at the time of the murder. Ted was nearing the end of hostile divorce proceedings with Norma. He benefited economically because Norma died before that divorce was final. If Dale acted suspiciously, then Ted certainly did as well. Finally, of the two, Ted and only Ted could have known of evidence found in Norma's purse, evidence that exculpated Dale.

The police, prosecution, defense attorney, trial judge, and a whole bunch of appellate judges all whiffed on this case. Unfortunately, that doesn't surprise me. Our voracious judicial system provides scant protection for the innocent culled from the herd.

The jurors also whiffed on this case. In one sense, however, I have some empathy for them. I know that critical information never found its way into the jury room. I know that false information made its way in there instead. I know also that the prosecution played to the emotions of the jurors. I know that unskeptical jurors were manipulated by people who manipulate for a living.

Let's consider some examples.


Police and prosecutors love confessions. I won't even bother to defend that claim. Instead, I'll simply repeat it. Police and prosecutors love confessions.

In the Central Park jogger case, the police extracted four rape confessions implicating five people. DNA testing after the trials excluded all five who were convicted, and identified the actual rapist.

In the Norfolk Four case, the police extracted four murder/rape confessions implicating seven people. DNA testing before the trials excluded all seven, but four were nonetheless convicted.

In the Michael Ledford case, the police extracted a confession that Michael Ledford killed his one-year-old son via arson, though his confession was falsified by the evidence found at (and not found at) the scene.

If the police can't manage a signed confession, they can always claim the defendant confessed to them in private but denied the confession in public. Such seems to have been the case with Johnny Frank Garrett.

If the police don't want to sully themselves that much, the prosecution will gladly use someone who is pre-sullied. They'll bring in a snitch to say that the defendant opened his soul and confessed behind bars.

Such was the case with Cameron Todd Willingham. Willingham refused to confess, so the prosecution brought in a snitch. That snitch was given a get-out-of-jail-early card by the prosecutor, though the prosecutor denied there was ever any deal.

Such was also the case with David Wayne Spence. Spence refused to confess, so he prosecutor brought in seven snitches. One turned out not to have even shared time with Spence. Three others recanted and explained how their testimony had been purchased with cigarettes, TV privileges, alcohol, and conjugal visits in the privacy of the prosecutor's office.

If the prosecution is unable to obtain a confession in any fashion yet described, they might be forced to rely on a tacit confession. It's not as good as a false or trumped up confession, but it's not bad.

Such was the case with Byron Case. When asked about the murder of Anastasia Witbolsfeugen, he twice said "We should talk about this." In the transcription of that conversation, his response was twice changed to "We shouldn't talk about this." That was ruled a tacit admission and presented as evidence against him during his trial. He's serving life without parole.

The tacit admission of Dale Helmig was even more subtle. The officer who interrogated Dale Helmig testified, right there in front of the jurors, that Dale Helmig never denied killing his mother. Here's the trial transcript.
Q. Sir, at any time during these contacts and particularly during this conversation that you've just shared with us, did Dale Helmig ever deny killing Norma Helmig to you? 
A. No sir, he did not.
The prosecutor was clearly on board with such testimony, because he asked the question that elicited the testimony. Clearly, the prosecutor felt that such testimony would help persuade the jurors to convict Dale Helmig of first-degree murder.

(To cover my all my bases, I hereby deny killing Norma Helmig.)

The use of the non-denial tacit admission would have been bad Constitutional form, even if the testimony about that non-denial had been true. That's right: even if it had been true.

It turns out that the very officer who sat there and told the jury Dale Helmig never denied killing his mother, wrote otherwise in his police report of that interview:
"[Helmig] stated that he did not murder his mother and that the sheriff was after him."
During questioning at a recent evidentiary hearing, he answered differently than he did in front of the jury.
Q. Yes or no, did Dale Helmig ever deny killing his mother?
A. Yes.

Suspicious Behavior

The prosecution told the jury that Dale Helmig demonstrated his guilt by not being present at his mother's house while the authorities were searching for her. All the other members of the family were there, the prosecution argued. Why not Dale?

The suggestion was that Dale wasn't anxiously waiting at his mother's house to learn of her condition because he already knew she was dead. I don't know if that logic seems flawed to you. It certainly seems like a pile of processed Purina to me. The jury, however, ate it up. And so did the appellate court. They cited that suspicious behavior specifically when summarizing the State's evidence against Helmig.

What the jury didn't hear was that Dale did not wait at his mother's house with the rest of the family because the police asked him not to do so. Dale was scheduled to have his first visitation with his children in a year. At the evidentiary hearing, but not at the trial of course, a sheriff's deputy acknowledged that he advised Dale not to have the children at the mother's home at that time. The house was a potential murder scene.
A. I told him I didn't think it was a good idea to bring his kids down there.

Inside Knowledge

The prosecution argued that Dale Helmig must have murdered his mother because Dale suspected too soon that his mother had been murdered. Even before her body was found, he told a girlfriend "You know, somebody got crazy drunk and killed my mother."

According to the prosecution, the only way Dale Helmig could have had that insight at that time was if Dale himself was the murderer.

What the prosecution didn't tell the jury was that the statement was taken out of context. What the prosecution didn't tell the jury was what Helmig also told that same girlfriend at the same time. The prosecution did not tell the jury that Helmig said:
"I think my dad has something to do with this. I think my dad did it."
Ted Helmig, Dale's father, had a history of abusing Norma. She had obtained a court order to keep Ted away from her. Despite the court order, Ted assaulted and threatened her. That brings us to …

The Altercation

During trial, the law enforcement officer who supervised the investigation testified that Dale Helmig had an altercation with Norma at a restaurant soon before she was murdered. The prosecution introduced such testimony, presumably, because they believed it would increase the chance the jury would convict. Recently, at the evidentiary hearing, that supervising law enforcement officer conceded he had no basis for his testimonial claim.
Q. What is the source of this information?
A. I can't provide you with that.
Q. Can you name a witness?
A. No sir, I can't.
Did the officer simply make the altercation up out of whole cloth? Seemingly not.

Recall, those of you who read the second post in this series, that it was the husband Ted, not the son Dale, who confronted Norma Helmig in the restaurant shortly before her murder. It was the husband, not the son, who threw coffee in her face and told her he was "going to put an end to all this."

Instead of simply fabricating evidence out of whole cloth, it seems as if the supervising officer simply used evidence against the more likely suspect as evidence against less likely suspect. He didn't actually lie. He simply was confused about who they had decided to convict of murder.

Not only is it likely the jury was fed perjured testimony, it's likely that there was a conspiracy to so feed them.
Conspiracy: an evil, unlawful, treacherous, or surreptitious plan formulated in secret by two or more persons. 
At the evidentiary trial, while Dale Helmig was then serving his fourteenth year in prison, the supervising officer was asked if he had coordinated his trial testimony with the prosecutor. The officer explained that the two of them did not go over the testimony he was to give, at least not line by line. He did concede, however: "Obviously I talked to the prosecutor."

I take that to be a "yes."

There's nothing wrong, of course, about talking with the prosecutor or defense attorney before trial. However, if you plan to perjure yourself and the attorney goes along with your plan, that is a conspiracy.


Though I feel some empathy for the jury, I find I am more disappointed in their behavior than in the State's behavior. Bees gotta buzz, and birds gotta fly. Police arrest, prosecutors prosecute, and judges …. well, judges used to be prosecutors.

Juries, however, are mandated by our Bill of Rights to form the last feeble line of defense against a State all too eager and all too capable of crushing those who act suspiciously.

Or those who seem to know too much.

Or have a motive, however imaginary.

Or can't prove where they were.

The jury failed Dale Helmig. They stole from him his presumption of innocence. They relieved the State of its burden of proof. They violated their oath and tarnished the faith put in them by our founders.

And for that, I'm deeply disappointed.

I'll wrap this sorry story up in my next post. Perhaps on Christmas Eve.

The conclusion to this four part series is here.

Monday, December 20, 2010

The Absurd Case of Dale Helmig: Part II

In my previous post, which you should read first if you are to understand this one, I wrote of the evidence used to convict Dale Helmig of the first-degree murder of his mother. There was, as you recall, no forensic or eyewitness evidence. Dale Helmig was convicted solely on the basis of having opportunity, motive, inside knowledge of the crime, and suspicious behavior.

With respect to opportunity, he was alone at some point within the broad time-of-death range estimated by the police. Also, he could have traveled over the bridge where a hydrologist determined the victim's purse had been thrown into the river.

With respect to motive, the state claimed his long and well-established loving relationship with his mother had turned sour just before the murder and that his mother was going to cease giving him money.

With respect to his inside knowledge, he correctly predicted that his mother would be found in her nightgown, that she would not be found in the Gasconade River, and that her keys would be found in her purse.

With respect to his suspicious behavior, he seemed less concerned about his mother's disappearance than did his other relatives. Also, he acted nervously when the family was informed his mother's body had been found, and he acted nervously when he was being interrogated after his arrest. Most significantly perhaps, when (during interrogation) he was told his mother was listening from the great beyond and that he should speak to her, he said "I'm sorry, I'm just sorry."

It seems as if any half-way competent defense attorney should have been able to convince at least one of twelve jurors that the evidence presented by the state did not constitute proof beyond a reasonable doubt. I'm sorry to say that such a thought would put too much confidence in both defense attorneys and juries.

I’m certainly not suggesting all defense attorneys and all juries are incompetent. In fact, I argue elsewhere in this blog that of the major players in our justice system, juries are the least responsible for wrongful convictions. And I know directly and indirectly of many outstanding defense attorneys. I am, however, arguing that in the Helmig case, both the defense attorney and the jury whiffed.

The defense theory in the Helmig case was that the state did not prove beyond a reasonable doubt that the mother had been murdered, and the jury could not therefore rationally find the defendant guilty beyond reasonable doubt. Given that the mother was found in the Osage River, bound by a nylon cord, and tied to a rock, I suggest that was a lame defense theory.

I have no high regard for the jury in this case, either. Even if the defense theory was lame, the jury should have acquitted. Even if the defense attorney wore a bright orange wig, a bulbous red nose, and big floppy shoes, the jury should have acquitted. Even if the defense attorney spent the entire time eating Grape-Nuts and sucking a Slurpee, the jury should have acquitted. The defendant has an opportunity to defend, but has no constitutional obligation to do so. The prosecution bears the burden of proof beyond a reasonable doubt. The defense has no burden to disprove anything. The jury should have acquitted.

Had the State of Missouri merely wanted another conviction based on incredibly weak evidence, there were others they could have selected. They could have, for example, pursued Dale Helmig's father, Ted Helmig.

Ted, like Dale, had the opportunity to murder Norma Helmig. He also was alone at the time of the murder. Lots of people were alone. I may have been alone. I can't today prove otherwise.

Ted, unlike Dale, had a real motive for killing his soon-to-be ex-wife. Dale and his mother allegedly quarreled over a $200 phone bill. Ted and his wife, by comparison, were in the middle of a hostile divorce. Ted would have to pay Norma $733 per month, indefinitely. That represented about half of Ted's military pension.

Also, Norman Helmig was murdered soon before the divorce was to be final. Ted collected $5000 in life insurance, and $19,000 from her estate. Had she been murdered after the divorce was finalized, her estate would have defaulted to her children.

Ted, unlike Dale, actually did act suspiciously. Ted confronted Norma at a restaurant, told her he was "going to put an end to all this," and threw coffee in her face. He did so in spite of a court order that he not have contact with her, based on his earlier abusive treatment.

Ted was also "facing a contempt citation in his divorce over his conversion of marital property."  Allow me to translate. Ted was selling jointly-owned property that was to be divided as part of the divorce settlement. Ted was keeping the money.

Ted "acted strangely at his wife's funeral."

Finally, and most suspiciously I guess (in the eyes of our justice system), Ted invoked his Fifth Amendment rights when asked to give a statement to the sheriff.

With respect to inside knowledge, it turns out Ted may have had the most inside knowledge of all. Six months after Norma was murdered, tied to a rock, and thrown in a river, her purse was found about 1.5 miles downstream from the Missouri River bridge. Norma's keys were in the purse, just as Dale had predicted. The police took particular note of those keys. They took no particular note, however, of the cancelled checks in the purse.

Much more recently, Molly Frankel, a graduate student at the University of Missouri School of Journalism, did take note of those checks. Working as an investigator for Helmig's current attorney, Sean O'Brien, she developed information from two bank officials that normal bank processing procedures would have caused the cancelled checks to be mailed to Norma Helmig almost two weeks after she was murdered.

Though the State of Missouri explained to the jury that the purse was evidence of Dale Helmig's guilt, the purse in fact all but proved his innocence. Had the police and prosecutors bothered to investigate, they would have realized that the purse implicated the husband, not the son. Ted Helmig acknowledged that he continued to collect his wife's mail for about two weeks after her death. He denies putting the canceled checks in the purse and throwing the purse in the river.

Perhaps there's more to this story.

Perhaps Wednesday.

Part III is available here.

Sunday, December 19, 2010

The Absurd Case of Dale Helming

After a three day trial in 1996, Dale Helmig was convicted of killing his mother by the people of Missouri. They sentenced him to life in prison without parole.

The prosecution's theory was that, almost three years earlier, Dale had a pizza delivered to his motel room at approximately 10:30 PM. He then drove his car over the Missouri River Bridge, killed his mother at her house, put her body into her own car trunk, drove her car to the Osage River Bridge, bound her with a nylon cord which was attached to a concrete block, dumped her over the bridge, drove her car back home, parked it, and returned in his own car to the motel in Fulton, once more crossing the Missouri River Bridge.

I have compiled the evidence against Helmig by reading through the appellate decisions. Appellate decisions frequently give summaries of the evidence presented during the trial. By the appellate judges' own admission, they present the evidence in a light most favorable to the prosecution. (They claim they are legally bound to do so.) The appellate decisions therefore typically represent the most favorable presentation of the state's case. So that's what you are about to read below: a most favorable summary of the evidence used to convict Dale Helmig and imprison him for life.

Here goes:
Dale Helmig separated from his wife in September, 1992. His mother separated from her husband (Dale's father) in the spring of 1993. Dale moved in with his mother.

He was close to his mother and relied on her for money. Even though he was in his thirties and married, his mother paid his bills and gave him gas money. Relatives saw her give him money from her purse on different occasions. In the month of her murder, she was still giving him money.

There was no evidence of ill-feeling between them until after he moved in with her. The two did not argue over money until four days before the murder.

His aunt observed that he and his mother argued over his children and money, that he was agitated and "hyper" around his mother, that he was angry about not seeing his children regularly and his mother could not calm him down.

His aunt testified also that he and his mother argued over a $200 phone bill. The aunt spoke with the mother a few days before the murder. The mother reported that her son had "run up" her telephone bill, that they had argued over it, that he was furious, and that she was afraid of him.

A tow truck driver who had earlier towed Dale Helmig's car, talked to Dale's mother as she paid the towing charge and recovered his car. The driver testified that his mother said "He'd better enjoy this one, because it's the last. I'm tired of being a meal ticket."

When Dale Helmig arrived home to find his mother missing, he telephoned his aunt. He told her that a fan and some of his mother's new nightgowns were missing. His aunt said she and her husband would drive down from Jefferson City. He said he would not be there when they arrived. Dale Helmig was the first person to mention a missing nightgown.

Before his aunt and uncle arrived, he took a shower. He and his girlfriend were watching television and drinking beer when his aunt and uncle arrived.

He once again told his aunt that two of his mother's new nightgowns were missing. He added that a gold chain was missing.

As various relatives arrived during the afternoon, he pointed out details around the house and associated them with foul play even though they did not indicate foul play to others.

He told his girlfriend that his mother's purse was missing and her keys must be "in her purse."

His aunt asked him to call the police three times over a fifteen to twenty minute period before he made the call.

After speaking to the deputy sheriff, he told his aunt that he was "going to change his story."

Later that evening, he told his girlfriend: "Someone must have gotten crazy drunk and went in and killed her."

Still later that evening, he angrily asked his estranged wife: "Are you trying to say I killed my own mother?"

The next day, while the police were conducting an aerial search for the victim around the Gasconade River, he commented that he did not think they would find anything down there.

His absence from his mother's house on that next day showed he was not worried as the others who stayed at the house.

When the sheriff informed the family that the mother's body had been found, he "looked very surprised and very shocked" and started tapping his foot rapidly. Unlike the other relatives in the room, he did not start crying.

When the sheriff asked if anyone could identify a gown, he volunteered a description of the nightgown victim was in fact wearing.

He volunteered that the motive was robbery and he had no motive for the crime and stated that "whoever had done this had to have been strong."

The mother's purse was found a mile and a half east of the Missouri River Bridge. A state expert in water currents and water movement testified that the purse must have been thrown off the Missouri River Bridge in order for it to end up where it did. That was the very bridge the state claimed Dale Helmig drove over as he returned to his motel room.

The mother's keys were found in her purse, just as Dale Helmig had predicted. His aunt, however, testified that his mother never carried her keys in her purse, but always carried them in her belt loop.

A police officer who was instructed to arrest Dale Helmig

Another police officer who was instructed to arrest Helmig was informed that Helmig "had a rifle, a large caliber carbine, .44 caliber; that he had a 4-inch fillet knife taped to his leg and possibly a shotgun." That officer was also cautioned that Helmig was "going to Osage County with whatever was on his mind."

Helmig stopped even though the patrol car's lights had not been turned on, offered no resistance, and made no statement other than, "You guys are making a big mistake."

He had a knife taped to his leg and a loaded carbine rifle on the front seat of his vehicle.

He "was extremely polite and was not in the least bit antagonistic. He was cooperative and assisted officers in the performance of [their] duties."

When interrogated, his face flushed, his voice broke, he started crying.

When told by his interrogator that his mother was watching and that he could speak to her, Dale Helmig said "I'm sorry, I'm just sorry."

He told the police that he knew who did it, but no one could prove it.
So there you have it.

I'm not kidding.

That's the evidence on which Dale Helmig was convicted and sentenced to life without parole. I did not include any forensic evidence in the list, or any eye-witness testimony to the crime, because there was none. What you see is what the jury got.

The State of Missouri argued that Dale Helmig had the opportunity to kill his mother. Helmig did not have an alibi for the time of her death, and he could have thrown the purse from the bridge as he traveled across it after he killed her.

The State of Missouri argued that Dale Helmig had a motive to kill his mother. Though Helmig and his mother had long had a loving relationship (he had in fact been her favorite son), he had recently moved in with her. They started arguing about money, and she was planning to cut him off.

The State of Missouri argued that Dale Helmig had inside knowledge of the case. He knew that she would be found in her nightgown, that her keys would be in her purse, and that she would not be found in the Gasconade River.

The State of Missouri argued that Dale Helmig acted suspiciously. To recount just a few of his damning actions, he took a shower, watched television, and drank beer soon after telling his aunt his mother had disappeared. His aunt had to ask him to call the police three times over a fifteen minute period before he called them. He was not as worried about his mother as were his relatives. He did not cry when informed that she had been found dead, instead he "looked very surprised and very shocked" and started tapping his foot rapidly. Under interrogation, his face flushed, his voice broke, he started crying. When told his dead aunt was listening, he told her "I'm sorry, I'm just sorry."

The jury and the appellate courts agreed with the prosecution's rock solid case. Dale Helmig has served more than fourteen years behind bars so far, based on the evidence just presented.

As you suspect, however, there is perhaps more to the story.


Perhaps on Monday.

Part II is now available.

Tuesday, December 14, 2010

Johnny Frank Garrett: An Opposing View

Reader Steve left a note on my post regarding Johnny Frank Garrett. I repeat that comment here in its entirety.
I think the people that are so anti-death penalty get a little caught up in any alternative explanation for executed killers they can find. Not sure why my last post on this wasn't accepted but people who are trying to "prove" his "innocence" are intentionally leaving critical information out. Garrett was executed in Texas in 1992 for the rape and murder of a 79 year old nun, when he was 17. His defense brought in renowned forensic psychiatrist Dr. Dorothy Otnow Lewis to examine him. To his defense, she found him to have severe childhood trauma and significant brain damage. He also had multiple personalities, one of which ("Aaron") not only committed the rape and murder but described it to Dr. Lewis. This is why "Johnny" acted like he was innocent. He thought he was. All this stuff about a Cuban claiming the murder later have no support in facts. Why is there no mention of Otnow's book or position on this case here? Read Guilty By Reason of Insanity, 1998, Otnow-Lewis, Ivy Books, NY.
I begin my response by being a bit defensive. Steve suggested I rejected a previous comment: "Not sure why my last post on this wasnt accepted ..." Comments are posted automatically on this blog. They do not await my acceptance or rejection. I learn of them later via my gmail account. While I can delete any comment, I have yet to delete one. As far as I know, no comment from Steve or anybody else has been rejected or deleted.

I did earlier, however, receive an email from someone named Steve (who gave his full name) and I did respond. I treat emails as private correspondence and do not publish their content without permission. Since I assume Comment Steve and Email Steve are the same person, and since that person clearly wants his position made public, I reproduce his original email below, withholding only his last name and his email address.
Have you read "Guilty By Reason Of Insanity" by Dorothy Otnow-Lewis? Lewis interviewed Garrett extensively for the defense and found Garrett to have severe brain injuries and multiple personalities. She also personally interviewed Garrett and he, as another personality, admitted to killing and raping the nun. As "Johnny," he protested his innocence to the day of his execution, because he believed he didn't do it. In his mind, he didn't.

I am writing a second book about violent killers and I was using Garrett's case, when I noted people on the "Net proclaiming his innocence, who do not seem like the even know this.

Steve [last name withheld]
Steve apparently mistook me for someone "proclaiming" Garrett's innocence. I have yet to proclaim anyone executed by Texas to be innocent. I review some cases in considerable detail, and I attempt to apply a disciplined scoring system to assign a probability of actual innocence. I concede that I gave Garrett a score of 91, the highest I have given so far, but I did not proclaim him to be innocent. It's a quibble, but I use proclamations of innocence sparingly and I'm protective of them.

So I wrote back to Steve and challenged him to assign his own probability.

Thanks for the tip. I've ordered the book from Amazon. I'll check it out and update as appropriate.

What probability do you give to his actual innocence or actual guilt?  Just curious.


Steve wrote back but declined to assign a probability.
Hi John

I'll give you some background. I wrote The Psychopathology of Serial Murder: A Theory of Violence, in 1996. I teach Psychology of the Offender for the University of Illinois at Springfield.  I am writing a new book based on the old one, updated for 2011. While researching some of Dr. Otnow Lewis's work, I included the Garrett case because of his severe brain injuries, neurological issues and abuse. He also seems to be an interesting case of multiple personality (Dissociative Identity Disorder).

Full disclaimer: I tend to lean towards the prosecution side of things, but I try to keep an open mind because I don't want to look foolish and the prosecution does that enough as it is. I like Lewis's work because of her brain injury analysis with Dr Pincus, but I always have a problem with her because she finds these issues to be exculpatory and she always works for the defense to say so.

Lewis worked for the defense on this case, and worked up all his history as a mitigating defense for his actions. Her interview of Garrett, especially when Garrett was acting as "Aaron" where he admits to the rape because "Johnny needed it" is more than enough for me to believe Garrett's guilt. Lewis had a point here ... executing Garrett giving his age and his mental incapacity was ludicrous (and I do support the death penalty), but I do not believe that Garrett didn't do it. Neither does Dr. Lewis.

The Cuban confession story seems very unsupported and unbelievable to me.

That's my take-
Steve [last name withheld]
I realize that anyone can probably now track down Steve's last name based on the title of his book, and I'm guessing he wouldn't mind if you did. Nonetheless, I elect not to make it public here.

Steve apparently is convinced of Garrett's guilt because Aaron, one of Garrett's "multiples", confessed to raping and murdering Sister Tadea Benz. I quote from Steve's comment which I included at the beginning of this post. "He also had multiple personalities, one of which ("Aaron") not only committed the rape and murder but described it to Dr. Lewis."

So I obtained a copy of Dr. Otnow Lewis' book. Now I have another quibble with Steve. Aaron did not say he killed Sister Benz. He adamantly and persistently denied it. I quote from the author's interview with Garrett, then acting or believing himself to be Aaron. Aaron speaks first, author responds.
"When he got into her room, he blacked out. I took over, I put my hand over her mouth so she wouldn't scream. I raped her."
"You raped her? Why?"
"Johnny needed it."
Alternates have a marvelous way of recounting the most bizarre, the most grotesque acts, as though they were describing the facts of life. Johnny needed sex: Aaron raped a nun. It was as simple as that. Sometimes Aaron shoved a bottle in Johnny's behind. Other times he found Johnny a woman.

"I know Johnny better than Johnny does. He had an erection. I knew what he wanted. But he wouldn't be able to do it. I put him to sleep. I took over."

"Who killed her?"

Again Aaron's eyes widened and fixed me with a wild, untamed look. He was afraid. He fell silent. The powerful Aaron Shockman was frightened. I thought, maybe Aaron is not as powerful as Johnny thinks. Aaron remained silent, listening, anxious.

"What's happening?" I waited. "Is someone talking to you?" Still no answer. "Is someone stopping you?" The silence continued as Aaron remained wide-eyed, in a trance.

Since that day I have seen this phenomenon many times. I have thought that I was speaking with someones most violent protector alter, only to discover weeks, even months later, the existence of a more powerful alter and dangerous personality.

"Aaron, if you didn't kill her, who did?"

"I don't know," came the reply. I could tell he was lying. "When I got off her she wasn't dead. It all happened on the bed. When I left, she was on the bed."

"But Aaron," I interrupted. "They said they found her on the floor. What happened?"

"I don't know. All I do know is that I did not kill her. Johnny did not kill her. I did not kill her."
Steve has built himself a house of cards on a shaking foundation in a seismic zone. Steve believes Garrett murdered Sister Benz because he (Steve) disbelieves what Johnny says but he (Steve) does believe what Aaron says. However, Steve doesn't really believe what Aaron says because Aaron said he didn't murder Sister Benz. Steve chooses to believe Aaron when Aaron says he raped Sister Benz, but he chooses to disbelieve Aaron when Aaron says he didn't murder Sister Benz. No explanation is offered.

Not only does Steve accept the explicit denials of Johnny and  Aaron as compelling proof of Garrett's guilt, Steve dismisses the confession of Leoncio Perez Rueda to the very murder that Johnny and Aaron deny committing. Steve dismisses Rueda's confession even though Rueda's DNA ties him (Rueda) to the murder of Narnie Box Bryson, a murder close in space, time and detail to that of Sister Benz. The two murders were indeed so proximate and similar that the police initially insisted they had to be the work of the same man.

Steve dismisses Rueda's confession with a flick of an evidentiary wrist: "The Cuban confession story seems very unsupported and unbelievable to me."

I caution that confessions should be treated as simply another police statement in need of corroboration by other evidence. An unquestioning acceptance of confessions (or dismissal of denials, as in this case) leads to wrongful convictions. Recall the case of the Norfolk Four, where four people in rapid succession confessed to a rape/murder and implicated three others in the process, though DNA proved none of them were guilty.

As Sherlock Holmes so wisely said while misquoting the Bible: "Data, data, data. I cannot make bricks without clay."

Sunday, December 12, 2010

The Disturbing Case of The Disturbing Cleve Foster

Cleve Foster is scheduled to be executed by Texas on January 11, 2011. [Now scheduled for September 20, 2011.] [Now scheduled for September 25, 2012.] I've been recently keeping my eye on upcoming executions to see if there are any cases I should be scoring. There are quite a few sites proclaiming that Cleve Foster is innocent of the crime for which he is scheduled to die. I decided to take a look.

Foster's supporters, and there seem to be more than a few, make an interesting prima facie case that he is innocent. There is no forensic evidence trying Foster to the crime; another person confessed to and was convicted of the crime; that other person claims that Foster was not involved; and two witnesses claim they saw only one person enter and leave the crime scene.

Nonetheless, I think it is highly likely that Cleve Foster is guilty.

On the 13th of February in 2002, Cleve Foster and his friend / roommate Sheldon Ward were in a Fort Worth bar known as Fat Albert's. There they met Nyanuer "Mary" Pal. According to the bartender, Pal interacted primarily with Ward while Foster played pool until the bar closed at 2 AM on the 14th. The three walked to the parking lot where they talked for a few minutes. Pal left in her car, and Foster and Ward followed close behind in Foster's pickup. According to the bartender, they were right on her bumper.

Approximately 8 hours later, Pal's nude body was discovered in a ditch far off a road in Tarrant County. She had been shot in the head. DNA testing absolutely identified Foster as a contributor of the semen in her vagina, and identified Ward as possibly a minor contributor. DNA testing also identified Ward as the contributor of semen in Pal's rectum.

Pal's car was found in the parking lot of the apartment complex where she lived. The car was unlocked. Her cell phone was sitting in the front seat.

Pal's blood and tissue was found on a gun recovered during a search of the motel room shared by Foster and Ward. Pal's blood was found on Ward's clothes in Ward's car.

In the back of Foster's truck, police found numerous and sundry items soaking in cleaning fluid. The items included: 3 pairs of shoes, bungee cords, black gloves, a bicycle pump, a hatchet, a sheathed knife, 2 slingshots, a trailer hitch, coat hangers, a strap, a bleach bottle, and a liquid detergent bottle.

There is no doubt that Ward was involved in the killing of Mary Pal.

Ward Story #1

Within hours of the police collecting his DNA samples, Ward decided to move from the motel room that he had been sharing with Foster. Ward called a friend, Duane Thomas, and asked if he could stay with him. Ward told Thomas during that phone call that he was in trouble because he had killed someone. Thomas drove to the motel to pick up Ward. As Ward and Thomas left, Ward told Thomas that he followed a girl home from a bar, forced her into Foster's truck at gunpoint, took her out to the country, raped her, and blew her brains out. Ward did not mention Foster.

This freaked Thomas out sufficiently that he stopped at a store and contacted the police. Ward was promptly arrested. Ward provided an audiotaped statement to the police that differed in considerable detail from what he had just told Thomas.

Ward Story #2

Ward told the police he been drinking heavily and using cocaine on the night of the murder. He and Pal made arrangements to meet after Fat Albert's closed. He and Foster went back to their motel room where Foster "pretty much passed out" on the bed. Ward drove to Pal's apartment in Foster's truck and picked Pal up. Ward and Pal had consensual vaginal and anal sex on the front seat of Foster's pickup, then drove to the motel room where they had vaginal sex.

Ward and Pal left the motel room and drove around "a little bit." Ward recalled standing over Pal's body lying on the ground with a gunshot wound to her head and the gun in his hand. He dumped Pal's clothes in a dumpster, but couldn't remember where. He put his bloody clothes in his car at the motel, called  Duane Thomas, told him he had sex with a girl and killed her and asked for a place to stay. Just before moving out of the motel, he left a note for Foster apologizing for involving him.

In that note, Ward told a slightly different story still, adding details that, if true, would completely exculpate Foster.

Ward Story #3

In his note, Ward apologized to Foster for involving him in the crime, explained that he had drugged Foster with sleeping pills, and had Pal "ride" Foster while he slept. Ward then left with Pal in Foster's truck. Those details would explain Foster's semen in Pal's vagina, and would make Foster unaware of Ward's murder of Pal.

Foster Story #1 

The variety of Ward's stories was exceeded by Foster. In version #1, Foster claimed that Pal had never been in his truck.

Foster Story #2

In version #2, Foster conceded that Pal may have leaned inside his truck.

Foster Story #3

In version #3, Foster explained that Pal rode around in his truck with him and Ward, that they dropped her off at her car at the bar where they met.

Foster Story #4

In version #4, Foster explained that he and Ward followed Pal to her apartment. Pal voluntarily went with them to their motel room in Foster's truck. After taking sleeping pills and drinking beer, he fell asleep while Ward and Pal kissed. He awoke to find Pal performing oral sex on him. Ward told Foster he was going to take Pal home.

Foster Story #5

In version #5, Foster adopted Ward Story #3, the one that finally explained how his semen came to be inside Mary Pal, the one that explained how he could have been totally unaware of Ward's murder of Mary Pal.

Police Theory of the Case

In an effort to prove that Foster must have participated in the murder of Mary Pal, they argued that Pal was killed elsewhere and transported to the spot she was found, far from the road. They argued further that Ward could not have done this by himself, that Ward was only 5' 6" tall and weighed only 140 pounds. Mary Pal, by comparison was 5' 7" tall and weighed 130 pounds. Foster on the other hand was 6' 0" tall and weighed 225 pounds.

They claim also that there was no blood splatter consistent with a gunshot wound to the back of Pal's head, that there was no pool of blood consistent with a such a head wound. (They did not apparently claim that there was no blood, only that the blood was not spattered and pooled as expected of a head wound.)

They noted as well that the soles of Pal's feet showed no evidence of walking to the location, and that her arms were raised as if she had been carried by her arms and legs.

Foster's Rebuttal

Foster and his supporters attempt to convince others of Foster's innocence by accepting Ward's story, the one told by the note he left behind. The evidence that Foster helped carry Pal to the location where she was found is not particularly overwhelming.

To buttress Ward's story (#3), Foster's supporters argue that the crime scene photos show the area to be exceptionally bloody, inconsistent with Pal being killed elsewhere and carried to the scene. One writer claimed to have a copy of the crime scene photos and claimed further they disproved the police theory. I emailed that person, asked for a copy, and promised to properly account for what the photos showed when I wrote of the case. I still await a response to that request.

To further buttress Ward's story (#3), Foster's supporters argue that two witnesses say they saw one person chase Pal into the woods, and the same person emerge from the woods. That story turns out to irrelevant at best and bogus at worst. I believe it does harm to Foster's case to continually promote it. Here's the skinny on those eyewitnesses, including the details Foster's supporters keep from their readers.

Jalissa Polk and her nine-year-old daughter informed police that, on either February 12 or 13, at about 8:30 PM, they were arriving home when Polk saw a black, 4-door mini-blazer-type car parked near the driveway entrance to her apartment complex. The driver's door and the rear passenger door were open. There appeared to be hand prints smeared on the front windshield. Polk saw no one inside the car.

Once Polk was inside her apartment, she heard a gunshot. Her daughter, Candice, ran inside and told her a man was chasing a screaming woman. Candice told the police she saw a black man and a black woman yelling at each other near the car. The woman was nude and the man had gun in  his hand. The man chased the woman across the street into the woods. She heard a gunshot, and then saw the man run back to car.

There are numerous problems with the alleged eyewitness testimony. The car described by Jalissa Polk and her daughter looked nothing like Pal's car, Ward's car, or Foster's truck. The two witnesses described a black assailant, though Ward is white. Most significantly, perhaps, they describe Pal as being murdered around 8:30 PM on February 12 or 13, but the bartender saw Pal alive at 2 AM on February 14. Whatever Jalissa Polk and her daughter may have seen, it was not Ward chasing Pal.

The Kicker

I'm not sure how I would have voted had I been a juror at Foster's trial. It would depend, of course, on all the information provided at trial, not just the summary I have been able to compile here. I would be suspicious of Foster's ever-changing, self-serving stories. On the other hand, I would find wanting the police evidence that Foster must have carried Pal to the murder scene. There was less evidence still that Foster had participated in the killing. I believe they would have convinced me that Foster more than likely was involved in the murder, but I'm not sure they would have proven it to me beyond a reasonable doubt. I would have been angry and frustrated as I struggled with my vote.

As a researcher, I learned something I would not have learned as a juror, at least during the guilt / innocence phase of the trial. I learned something about Foster's past behavior that had a more powerful impact on me than any other instance of a defendant's past behavior. I learned that Ward and Foster killed another woman under similar circumstances just two months prior to the Pal murder.

In a statement Foster gave to the police (which was admitted into evidence only during the punishment phase of Foster's trial) Foster spoke about a previous murder allegedly committed only by Ward. He claimed that in December 2001, he and Ward had consensual sex with Rachel Urnosky, a young woman they both had just met in the parking lot of Foster's former apartment complex. Foster and Ward left Rachel's apartment and returned to Foster's truck. Ward then returned to Rachel's apartment for a short while. Days later, Ward showed Foster a newspaper clipping about the murder of Rachel Urnosky.

It's extremely likely Foster was lying about Urnosky participating willfully in three-way sex with imperfect strangers. Urnosky was a recent college graduate. She had moved from Lubbock to Fort Worth to work as a manager in a store at a nearby mall. She had just that month become engaged to a young man she met while in college. That young man lived in the same apartment complex as she did. She had in fact just stopped by her fiance's apartment that evening, and asked his roommate if he needed any laundry done. She was murdered on her way to do the laundry.


I've taken a quick look at all prisoners in the United States with a scheduled execution date. The only one I found that that seemed to have a case of actual innocence was Cleve Foster. The first stories I read seemed to make a decent case that Foster had been wrongfully convicted and was in danger of being wrongfully executed. As I worked on the case, particularly as I read through the appellate rulings, Foster's case crumbled and the State's case strengthened. I was still, however, on the fence (leaning towards guilt) when I came across the information about the murder of Rachel Urnosky two months earlier.

That discovery disturbed me no end, and still does. It told me I was probably looking at the the type of case I most dread. I most dread being a juror on a case in which I believe the defendant to be guilty, and believe he may commit horrific crimes again in the future, yet believe that the State has not met its burden of proof beyond a reasonable doubt.

I present my Actual Innocence Scorecard to the right. I scored him at 9 out of 100. In cases where I believe there is a reasonable chance of the person's actual innocence, I oppose the death penalty. In cases where I believe there is no reasonable chance of actual innocence, I neither oppose nor support the death penalty. In this disturbing case, I stand mute on the issue.

Initially I identified the earlier victim as Rachel Omosky. A reader who claims to have known Rachel informs me that her last name was Urnosky, not Omosky. I had no trouble confirming that the reader was correct and I was wrong, as was the United States District Court in their opinion for Foster v. Quarterman. I appreciate the feedback. I have corrected my post accordingly. I offer my condolances to the reader for the loss of her or his friend.

ADDENDUM (23 Sep 2012)
Clearly I do not accept Cleve Foster's claims of innocence. With respect to the impending execution of Preston Hughes III of Texas, however, I believe him to be absolutely innocent though in grave danger of being executed. After a 6 month investigation, 60 posts, and 90,000 words, none of the evidence of his guilt withstands scrutiny.

For a 3 minute 30 second video summary of his case, please click here.
For a text summary of his case, please click here.

It is not too late to save an innocent man from the needle.  Cleve Foster is not that man. Preston Hughes is.

ADDENDUM (25 Sep 2012)
Cleve Foster has been executed by the people of Texas.

Wednesday, December 8, 2010

Robert Nelson Drew: An Opposing View

Reader Kathy has made multiple comments on my posts regarding Robert Nelson Drew. I'll give a quick review of the case (assuming I'm capable of such a thing) and then present all her comments here so that all readers of this blog will be more likely to see them.

I wrote of Robert Nelson Drew here, here, and here. I generated an Actual Innocence Scorecard which I present once again to the right. I scored him at 84, meaning that I estimate there is around five chances out of six he was actually innocent.

I didn't write an extended narrative of the case, as I am apt to do with cases now. Instead I relied more heavily on the information provided in the scorecard.  From the case summary portion of that scorecard, I wrote:
2/21/83; Jeffrey Mays traveling w/ Bee Landrum; runaways w/ alcohol & drug problems; picked up hitchhikers Robert Nelson Drew & Ernest Puralewski @ different locations. Drew & Puralewski strangers to Mays, Landrum, & one another. Mays announced plan to reverse course & head for home. Prompted violent behavior on part of Drew and/or Puralewski.  Mays was stabbed, killed, & left behind. 20 minutes later Landrum, Drew, Puralewski pull into truck stop; Drew and Puralewski enter to buy beer; clerk notices one has cut over left eye and blood on clothes. Trio continues on, stopping at restaurant and nightclub. Puralewski separates to go "roll a faggot". Landrum and Drew leave Puralewski behind. Soon stopped for traffic violation and arrested.
There is no doubt that Puralewski was involved in the stabbing death of Jeffrey Mays. The question is whether Drew participated in that killing. There was no forensic evidence to tie Drew to the killing. The blood on the murder weapon belonged to Puralewski. The blood on Drew's clothes, he claimed, came from the obvious and recent wound over his eye, the result of an accidental jack handle strike while trying to free the car from the mud. The police made no effort to match that blood with blood from the victim, or they suppressed the results.

Ernest Puralewski did not testify at Drew's trial. Before the trial, however, Puralewski signed statements stating Drew was the killer; After Drew's trial, Puralewski pled guilty in return for a reduced sentence.  However, before pleading guilty, Puralewski told at least three people that he and he alone killed Mays. After pleading guilty, he told others the same thing. He then later swore in a signed statement that he and he alone killed victim. "I am the person who murdered Jeffrey Mays and Robert Drew is innocent."

Drew was convicted almost exclusively on the testimony of Bee Landrum, traveling companion of victim Mays. At trial, Landrum described Drew's participation in the killing in graphic detail.  His story was compelling and the jury voted for guilt and death. The jury did not know, however, that the police had made a tape recording of their initial interview with Landrum. In that interview, on that recording, Landrum admitted he had not seen the killing. He passed a polygraph test to that effect. The prosecution hid that recording  from the defense for five years.

Landrum also recanted after the trial. Then he recanted his recantation after (what  I'm sure was an interesting) conversation with prosecutors.

Landrum's behavior also indicated he was not in fear of Drew as he claimed during trial. The two of them ditched Puralewski when they got a chance, but the two of them continued to travel together until they were pulled over by the police.

Kathy disagrees with my assessment. She has no doubt of Drew's guilt. Here is her first comment, in its entirety:
In the orginal hearing Robert Nelson Drew admitted to killing my 17 year old friend, Jeff Mays, and licking the blood off Jeff's leather jacket. 
RND paid for the crime with his life, which will never equal, or even come close to, the value of Jeff's life to all of us who knew him. 
But at least now RND can never hurt another child ever again.
Though I write about perpetrators or people wrongfully accused of being perpetrators, I don't want to ever become insensitive to the victims, their families, or their friends. Given that I have never personally known a murder victim, I cannot truly empathize with Kathy, but I do try to put myself in the position of those who grieve the loss of a loved one. I do not want to minimize Kathy's loss or her sincerity. I take her comments seriously.

With respect to this first comment, I am unaware of the original hearing or of any admission by Drew to the killing of Jeff Mayes (or any other person). My research, which I concede can be incomplete or wrong, indicated that Drew never waivered in his claim to innocence. If Kathy or anyone else has the transcripts of that original hearing or a reference to Drew's claim of licking blood on Jeff Mays' leather jacket, I would sincerely appreciate a copy or a link. I will review it and adjust my scoring as appropriate.

Here is Kathy's second comment:
The best evidence for the innocence of Robert Nelson Drew is a statement by ANOTHER murderer and LIAR, Ernest Puralewski. People, such as yourself, who believe Drew's innocence, are suckers to a pychopath's sick desire to receive all the "credit" for the brutal murder of a 17-year-old boy. 
RND lost appeal after appeal because he was guilty. His accomplice was also guilty and had nothing to lose by issuing the statement that he acted alone. EP could not be tried again for the same crime. 
I attended the funeral of their victim. I still shudder at the thought of the sight of the body - 25 years later.
While I would not ignore evidence of innocence, I score by presuming innocence and assessing to what extent the evidence proves guilt. I do not limit myself to evidence admitted at trial. I attempt to weigh all the evidence I can find. With respect to Drew, I am unaware of any confession (excluding the claim made by Kathy in her first post), I am unaware of any forensic evidence, and I am unaware of any eyewitness statement not impeached by earlier statements and later recantations.
For clarification, I do not believe, in the strict sense, that Robert Nelson Drew was factually innocent. Nor do I believe he was guilty. When writing of people executed, I claim imperfect knowledge where most others claim certainty. After research, analysis, and thought, I merely assign my estimate of that person's probability of innocence.
Now for Kathy's third comment:
Bee Landrum, the eyewitness to the murder, was 16 YEARS OLD. He was helpless while his best friend was BRUTALLY murdered in his presence. Then, he was threatened, time and again, by Drew and Puralewski, that they would find him and finish him, too. I'm sure his story was shaky - imagine that pressure at SIXTEEN YEARS OLD. 
And finally for her fourth comment, and last so far:
It is true that Robert Nelson Drew had the most "talented appellate team" in Texas and lost appeal after appeal. It should perhaps occur to you that this is because he was GUILTY of the extremely brutal murder of a 17 year old kid. 
Yes, he had an accomplice that later, after he couldn't be re-tried for the same crime, wanted full "credit" for the slaying. RND, however, admitted to killing Jeff Mays in his original trial and licking the blood off his jacket. 
It is absurd that Robert Nelson Drew has become some kind of poster child for innocent executions. He held my friend Jeff and slashed his throat 3 times while watching Puralewski stab Jeff 16 TIMES in the chest. Propaganda is the ONLY reason RND is widely held as innocent among those against capital punishment. Those of us who knew Jeff have no doubt that justice was served.
Kathy repeats her claim that Robert Nelson Drew admitted to killing Jeff Mays. This time, however, she claims that confession came in the midst of Drew's original trial. I was unaware that Drew had two trials. I repeat my request for additional information on the claimed confession, and now for substantiation of the two trials.

I sincerely appreciate comments from readers, particularly comments from readers with particular insight into a case. While I don't expect that I will agree with all comments, I hope that I will given them all careful thought and fair hearing.

Tuesday, December 7, 2010

Michael Ledford: Confession Falsified by Space and Time

For anyone attempting to understand a crime, or an alleged crime, a comprehensive and accurate timeline is a thing of beauty. Even our rapidly advancing technology does not allow a person to be in two different places at the same time. Even the most sophisticated forensic analysis cannot cause time to run backwards. Even the most rabid or obfuscatory closing arguments cannot erase the impact of evolving testimony or altered documents.

Useful as they are, however, comprehensive and accurate timelines can be challenging to construct. A flimsy timeline constructed of surmise and unsubstantiated claims is of considerably less value than a robust timeline constructed of irrefutable facts. Good luck building the robust version.

In this post, I'll attempt to present a timeline of events for the fire that occurred at Michael Ledford's apartment in Stuarts Draft, Virginia on the tenth of October, 1999. The fire resulted in the asphyxiation death of one-year-old Zachary Ledford (Michael's son), the severe burning of Elise Ledford (Michael's wife), and the fifty-year prison sentence in Virginia (a state with no parole) of which Michael Ledford has now served a decade.

Keep in mind as we work through the mundane events, dates, and time that we are actually attempting to determine whether Michael Ledford is indeed guilty of murdering his one-year-old son and seriously burning his wife, or whether he was wrongfully convicted of a horrific crime. While the tasks may seem mundane, the objective is, quite literally, truth and justice.

The Birthday Party

Most of the events of that day and that evening are undisputed. Michael and Elise Ledford held a small birthday party for their son Zachary who had been born one year and three days earlier. Guests included Elise's parents and two family friends.

According to Elise's testimony, after the guests left she cleaned up, gave Zachary a bath, and gave him a bottle. She put him in his crib (in his own room) sometime between 8:00 and 8:30 PM, after his hair had time to dry. Soon thereafter, she went to bed herself, since she had been up since 4:00 AM and since she was scheduled to be at work early the next day. She remembers nothing else until being roused from a medically sustained coma five weeks later.

According to Michael's testimony, he arose sometime between 8:00 and 8:30 AM. He tended and played with Zachary while Elise worked her morning shift. Elise returned home around 11:30 AM. The party broke up between 3:30 and 4:00 PM. Michael laid Zachary down for a later-than-usual nap while Elise spoke outside with her parents and the family friends.

Michael's mother, Pat, called from her home in Pennsylvania, as she usually did on Sunday afternoons. She asked about Zachary and the party. Michael assured her that Zachary liked the gift she had bought for him.

Once the guests had left, and the baby was napping, and the phone was quiet, Michael and Elise made love for what would be the last time.

Soon thereafter, Zachary awoke. Either he or Elise fed Zachary while the other finished cleaning up after the party. They both got down on the floor and played with their son.

Michael's Departure

Elise put Zachary to bed around 8:00 PM and got ready for bed herself. She asked Michael if he would put some gas in the car. He said he would and that he would stop just briefly at the fire department to sign his training log. Michael, as it turns out, was a firefighter for the Stuarts Draft Volunteer Fire Department.

Michael estimates that Elise went to bed sometime between 8:00 and 8:15 PM. He watched TV briefly, in the dark, for money was scarce and they were careful with their utilities. He left to complete his two errands sometime between 8:30 and 8:40 PM. Michael's neighbor (the one in the apartment across the entry way) reported hearing Michael leave (Michael's car has a distinctive loud noise) approximately 30 minutes before the fire trucks arrived. Since they arrived at 8:57 PM, Michael's neighbor estimated that Michael left around 8:27 PM. That is quite close to the earlier end of Michael's estimate.

As Michael was leaving, he turned off the television then flipped on the light switch near the entry door, as a courtesy for their boarder who would be arriving home soon.

It is at that moment Michael was leaving that the only substantive disagreement occurs. The entire case hinges on what Michael did or didn't do as he left that evening. According to his testimony, he did nothing other than flip the light switch to the on position and shut the door behind him. According to the State of Virginia, and according Michael's recanted confession, he took a long and slender candle from a pair that was burning on the end table, lit it with a cigarette lighter, and tossed the candle into the chair before leaving and shutting the door behind him.

The Gas Station

No one disputes that Michael then drove from 19 Highland Drive to Little's Exxon (now a Citgo) station on the corner of Stuarts Draft Highway (U.S. Highway 340) and Draft Avenue (State Route 608). Zachary's babysitter coincidentally drove past the gas station at approximately 8:35 PM and noticed the Ledford's burgundy/maroon Cavalier there. The car was distinctive due to its red rectangular-shaped light on the roof.

Given that Google gives a driving distance of 0.3 miles and a driving time of 2 minutes, the babysitter's time is consistent with Michael leaving near 8:30 PM. It is not consistent, however, with Michael leaving near 8:40 PM. The babysitter could, of course, have been off in her estimate.

Michael put $9 or $10 worth of gas in the car. In April of that year, gas prices in Virginia were around $1.03 per gallon for unleaded, according to my online search. Michael apparently pumped somewhat more than 9 gallons of gas into his car. He went inside to pay for it and spoke briefly with the cashier. I'm unaware of any effort by the police or the defense to interview the cashier, recover receipts, or view any security tape.

In any case, it would take a finite amount of time to pump and pay for the gasoline. The Skeptical Spouse and I each guessed it would take 5 minutes. I then recreated the transaction as best I could, using my vehicle and my local gas station. I started my stopwatch as I pulled into the gas station. I parked without delay at an available pump. I walked inside and prepaid without delay. I pumped 9.3 gallons of gas into the my car. The pump seemed to be pumping at a normal speed, neither noticeably faster nor slower than expected. I returned the pump handle, reentered the car, and left without delay. I stopped the stopwatch as I pulled out of the gas station. The time was 5 minutes and 2 seconds.

Assuming the babystitter's time of 8:35 was correct, and assuming my 5 minute transaction estimate is correct, Michael arrived at the station sometime between 8:30 and 8:35 PM. He left sometime between 8:35 and 8:40 PM.

The Fire Rescue Station

From the gas station, Michael drove along Draft Avenue either "to the Stuarts Draft Rescue or the Stuarts Draft Fire Department." The two buildings are across the street from one another, so it makes little difference from a timeline perspective which he went to, though I would like clarification. For now, I'll assume he went to the Stuarts Draft Rescue building, which is slightly closer and much easier to locate on Google. (Google whiffs when attempting to locate 118 Draft Avenue.)

Google estimates the distance to the rescue building to be 0.2 miles, and estimates the driving time as 54 seconds. We'll call that one minute. Assuming Michael left the gas station no later than 8:40, he arrived at the rescue building no later than 8:41. Given all the other assumptions already described, Michael arrived at the rescue building between 8:36 and 8:41 PM.

Tenants Discover the Fire

Slightly later, at approximately 8:45 PM, Deborah Moore and Jim Dorsey became aware of a fire in one of the Highland Hills apartments. They had just finished moving into a nearby unit.
"As we were getting ready to pack up the tarps and everything that we had used to bring everything down on a trailer ... I heard ... glass pop; a popping sound. And when I looked to the window, I saw flames kicking up from the bottom right side of the window; the large windows. ... I couldn't tell what was making the flames, but within seconds, the drapery went up and the whole window was engulfed in flames. ... For a few seconds, my boyfriend and myself stood on the sidewalk, just watching the window. And then we heard a woman scream inside. I instantly ran up the stairwell into the entryway; to the door; tried the handle; tried to open the door. The handle was cold; it wasn't hot. It was locked. I banged on the door and told her to open the door. My boyfriend was yelling to tell her to go to the back windows to get out. And so I continued banging on the door, telling her to go to the back. And then he yelled for me to get out of the entry hall, in case there was, you know, an explosion with gas or something. ... I thought I had heard a minimal whimper ... just ... a whine, or something like that. But I didn't hear anything else."
Jim Dorsey recalls seeing Michael leave 20 minutes (or less) prior to the time he noticed the fire. Since he noticed the fire around 8:45 PM, that places Michael's time of departure at 8:25 PM or later. Once again, an 8:30 departure seems reasonable. An 8:40 departure seems quite late, since that would have only been 5 minutes (not 20 minutes) before Jim Dorsey noticed the fire.


At 8:47 PM two people called 911. One of them was a neighbor. One of them was Elise Ledford. She wasn't able to say anything. The operator only heard her gasp, then the line went dead.

At 8:50 PM, a 911 operator called the Stuarts Draft Fire Department and informed them of a fire at the Highland Hills apartment complex.

Michael's Return

Michael had finished recording his training on a log inside the fire rescue building when tones activated on his pager. The pager indicated a possible structure fire at the Highland Hills apartments complex, the complex where he lived. Highland Hills is a large complex, though, and it did not occur to Michael that  it might be his apartment that was on fire.
"I thought, you know, I, I live up there. I didn't see anything when I left. Someone probably just panicked, probably burned something in the oven, so instead of waiting to ride in a fire truck, I just went up in my personal vehicle."
Michael did not endanger others as he returned to the complex. In fact, he stopped at the red light at the intersection near the gas station where he had just fueled his car. Google lists the distance back to the apartment complex as 0.5 miles. It lists the driving time as 4 minutes. I don't know how Google accounts for the variations that might be caused by red lights.

As he approached the apartment complex, Michael slowed and looked down one of the two long rows of apartments. He saw nothing. An excited woman, who turned about to be the aforementioned Deborah Moore, noticed the red light on the top of his car, flagged him down, and informed him that the fire was at the top of the hill in the next row of apartments. Michael drove directly up there, found he had been preceded by another volunteer firefighter (who lived in the complex), and realized only then to his horror that it was his apartment that was on fire.

He rushed to the back of the apartment to see if Elise had escaped or attempted to escape out a window. As a firefighter, Michael had been concerned about the single exit from the building; he had advised Elise that she could escape through the rear windows should a fire ever block the exit.

The rear windows were closed and darkened by smoke. The prosecution would attempt to cast doubt on Michael's story by questioning why he did not break the rear windows and attempt a rescue of his wife and son. Michael explained he did not do so because the windows were too high and because his training told him not to do so. He did not explain, nor did anyone else for the defense, that he was ill equipped to do so, would likely have succumbed quickly to the smoke and toxic gases, and would  have therefore been unlikely to succeed. Nor did anyone explain that had he attempted such a rescue, it is possible that Elise would have died along with Zachary. The fresh air would have stoked the fire which was in the process of self-extinguishing due to lack of oxygen. The fire training he received took into account all such factors.

Michael returned to the front of apartment where he had to be physically restrained by the properly-equipped firefighters just arriving. The first fire trucks arrived at 8:57 PM. Assuming Michael heard the tones at 8:50 and spent 4 minutes to return to the complex, that places Michael at the apartment 3 minutes before the first fire vehicle arrived. That seems consistent with the evidence and testimony.

Elise's Response to the Smoke Detector

Of particular interest to us is when the fired started relative to when Michael left the apartment. To make that determination, we will need some additional information which is thankfully available. Assuming Elise was awakened by the smoke alarm, we will need to know how long it takes for a smoke alarm to awaken sleeping occupants, and we will need to know how long the fire had burned before it triggered the smoke alarm.

I located online a number of studies investigating the effectiveness of high-pitched smoke alarms in waking occupants. The controlled studies did not involve actual fires. I can summarize the results pretty quickly.

Young children will not awaken to high-pitched alarms. They awaken most consistently to female voices. Some organizations have therefore recommended altering or supplementing the type of alarms emitted by smoke detectors.

People with hearing difficulties are obviously insensitive to smoke alarms. Seniors fall disproportionately into this category. This rather obvious finding has also led to recommendations for supplemented or altered alert sounds.

Sleep deprived college students sometimes fail to awake to high-pitched alarms.

All adults without hearing impairment awaken within 30 seconds when subjected to the high-pitched tone associated with smoke alarms.

I can provide the results of a small study based on a single, anecdotal event. When I was twenty-nine years old, the smoke detector in our house went off at 4 AM. I not only awoke instantly, I believed I had set a world's record from fully asleep to standing beside the bed searching for flames licking at the door. My time estimate for that sequence is 7 nanoseconds. I dismiss the possibility that I slept for 30 seconds and then awoke rapidly because my wife tied my 7 nanosecond record from sleeping to standing. It's statistically unlikely we slept for the identical 30 second, or 15 second, or 5 second interval before initiating our record-setting 7 nanosecond feat.

In our case, the alarm turned out to be a false. After checking the house for fire, I insured all gas sources were turned off and I popped all the circuit breakers. I removed the battery from the stupid fire alarm and returned to bed. There we joked and giggled nervously until it was time to get up.

Perhaps not coincidentally, the fire experts paid by Michael's defense team assumed that Elise awakened thirty seconds after the fire alarm sounded. I will disagree only slightly. I will assume that Elise awakened within thirty seconds of the alarm sounding, assuming it sounded at all.

The Smoke Detector's Response to the Fire

The Court allowed Michael's defense team to hire fire experts. The defense hired the Maryland firm Combustion Science and Engineering. CSE received a $15,000 fixed fee to research, report, and testify about the case. I offer the company's mission statement directly from their web site.
For more than twelve years, Combustion Science & Engineering, Inc. (CSE) has been dedicated to the study, advancement, and application of combustion and fire science. Combining a wealth of knowledge and experience, from the private to public sector, from academia to industry, CSE’s spirited partnership and dedicated team offers exceptional technical leadership, intelligent solutions in combustion and fire protection, and superior fire and explosion investigations.
Since the fire occurred 11 years ago, it seems CSE had not been in business for a long time before being called on to assist in the defense of Michael Ledford.

Steven Olenick (master of science in fire protection engineering) was the principal author of the company's report. Dr. Richard Roby (founder and principal of the company) testified at the trial. Together they prepared and reported on (among other matters) the speed with which the fire burned and spread. Using the best modeling technique available at the time, one developed by the National Institute of Standards and Technology, CSE estimated that fire started between 8:43 and 8:45 PM.

The jury was unimpressed by the testimony of hired experts, believed Michael when he confessed, didn't believe him when he testified, and voted him guilty.

CSE seemingly never lost interest in the case. In 2010, on their own dime, they prepared and published a paper entitled "Re-Visiting the Michael Ledford Fire Incident." In that paper they discussed the results of their re-evaluation of the Ledford fire using the latest fire modeling computer simulation technique. I have read the paper carefully, am familiar with finite element modeling (since we used it to model the aerodynamic behavior of aircraft) and I am dutifully impressed by their work. I include below a particularly relevant segment from their latest report, and include the corresponding image. Click on the image to enlarge.
In the model, the smoke alarm activated at approximately 75s. Adding in 30s to awaken to the alarm and 30s to respond, it is expected that Elise would be in the living at approximately 135s after the initiation of the fire. At 135s, the approximate time she would be expected to be in the living room under the confession scenario, the fire size is approximately 100 kW. This fire size would likely be perceived as small enough to approach and attempt to mitigate, but large enough that she would be unable to do so. Additionally, the smoke layer would be low enough to cause Elise distress, while remaining high enough so that the witnesses would be able to see her in the living room. A graphic showing the fire size as well as a graphic showing what the witnesses would see in the living room from a vantage point outside the residence at the time Elise would be expected to be present are presented below as Figure 8. The size of the fire and smoke layer in the model at the time Elise would be in the living room is in agreement with the witness accounts of the fire when they saw Elise through the window.

It is a terrific piece of work. If interested you can read the entire paper from Pat Ledford's website, Innocent in Prison. If you are satisfied that I am reporting accurately, you can simply accept that CSE estimated that smoke detector triggered 75 seconds after the fire began. They assumed that Elise arose 30 seconds later, and placed her in the living room, witnessed by Deborah Moore, 30 seconds after that. For reasons not made clear in their paper, CSE estimates Elise would not call 911 until more than 3 minutes after being witnessed in the living room. I find that time estimate to be surprisingly large and I respectfully disagree.

I assume CSE's 3 minute time delay results from their insight into how much smoke was generated and how much smoke one can breath before becoming unconscious. I note, however, that it is only an assumption that Elise passed out immediately after the 911 operator heard her gasp. The 911 operator in fact testified that the line went dead. I believe, based on the photo of the electrical service panel that I will reserve for a later post, that the line went dead because the circuit breaker popped. Elise's portable phone required continuous power to the docking station located in the kitchen.

Finally, The Fire Start Time

Instead of 3 minutes, I assume Elise called 911 soon after discovering the front door blocked by fire, that she called within 45 seconds of realizing she was trapped. That gives a total time of from the start of the fire to the 911 call of 3 minutes. That three minutes consists of 75 seconds for the fire to trigger the smoke alarm, 30 seconds for Elise to awake because of the alarm, 30 seconds to make her way from the bedroom to the living room, and 45 seconds to call 911 after realizing she was trapped. Each of the last three increments seems conservative.

Given that the 911 call is well documented as having taken place at 8:47 PM, and given that I believe the evidence indicates Elise called within 3 minutes of the start of the fire, I claim the fire started no earlier than 8:44 PM. Given that Michael left the apartment no later than 8:40 PM, and more likely left the apartment around 8:30 PM, I conclude (as did CSE before me) that Michael could not have started the fire.

More Testing Required

I recognize that someone convinced of Michael's guilt could reasonably argue that the fire smoldered for 4 or 14 minutes before spreading rapidly. I discussed this point briefly with CSE via email. They believe this to be unlikely, and they explain that their model takes ignition time into account. They do, however, acknowledge that others may not accept their modeling of this issue. To further address the issue of ignition time, Pat Ledford, fire investigator Brian Hattem, and I intend to conduct testing that will consist of repeatedly tossing candles into chair analogs, chair-like objects. We promise to be careful.

If the candles never set fire to the chair, then the testing will add to the argument that Michael's confession is falsified by space and time. If the candles set fire to the chair almost immediately, once again Michael's confession would be falsified.

Only if at least one of the tests resulted in an extended smoldering before a rapid fire spread would Michael's confession withstand the rigors of a detailed timeline analysis. That would not mean that Michael's confession was true, since it is already falsified by thermodynamics. It would mean, however, that the challenge before us is even harder than we had anticipated.