Sunday, June 10, 2012

I Oppose the Execution of Richard Leavitt

This one is lengthier than most. Grab some chips and a cool beverage, and strap yourself in.

Richard Leavitt sits on death row awaiting execution by the people of Idaho on Tuesday, 12 June. I suspect he will not survive the day.

I will tell the story via two appellate decisions, a motion for testing of DNA material, and a response to that motion. My analysis will follow.

From the Majority Opinion in State v. Leavitt (1989)
Sometime about July 18, 1984, the victim was brutally attacked in her bed. She suffered up to fifteen separate slash and stab wounds, some of which proved fatal. Her body had been further brutalized by the slashing removal of her sexual organs. The body of the victim was not discovered until three or four days following the killing. It is clear that the killing took place on the victim's waterbed which was punctured and torn by the attacker's knife. The combination of the body decomposition, together with the mixture of body fluids and the waterbed liquid, made impossible any determination of rape as a motive for the killing.

The defendant and the victim were both residents of the city of Blackfoot and knew each other. The victim had reported a prowling incident on the night of July 16, 1984, in which she advised the police that the prowler, thought to be the defendant, had tried to enter her home. During the incident the intruder had cut a window screen on the victim's home.

During the interim between the murder and its discovery, the defendant had contacted friends of the victim and also the police, expressing curiosity as to the victim's whereabouts. He claimed that co-workers and the employer of the victim had called him after she failed to appear at work. No such callers were ever located. 

After the murder and before the body was discovered, the Blackfoot police received two telephone calls stating facts thought to be capable of being only known to the murderer. The caller gave the name "Mike Jenkins" but no person by the name has ever been located. The prosecution asserts that logically the defendant was the only person who could have made the calls because of his detailed knowledge.

On July 21 the defendant  obtained permission from the victim's parents to enter the home which had been locked and apparently unattended. With the help of the Blackfoot police, entry was made into the house and the body discovered.

The evidence pointing to the defendant as the murderer was largely circumstantial in nature. The defendant sustained a serious incise wound to his left index finger, and on the night of July 18, 1984, he was treated for that wound at the emergency room of the Bingham Memorial Hospital. 

Blood samples were gathered from the scene of the crime, and serology tests showed that two distinct blood types were present. The victim's blood was type A, and tests of the blood samples from the crime scene reveal that type O blood had been deposited contemporaneously with that of the victim's type A blood. The blood of sixteen suspects was tested and it was the serologist's opinion that the defendant was the only likely source of the type O blood.

The defendant initially denied that his blood could be in the victim's bedroom, but later changed his story to admit he had been in the victim's bedroom and suffered a nosebleed, but contended the incident had happened one week prior to the murder. No explanation could be offered as to how his blood became mixed with that of the victim. The defendant asserted that he had cut his finger while in his own home attempting to upright a toppled fan. Laboratory tests of the Leavitt fan concluded that it lacked any blood residue or any indication it had been recently cleaned, and furthermore tests conducted with the fan were unable to duplicate the type of wound on Leavitt's finger. 

That "fan explanation" was abandoned by the defendant for the first time at trial wherein he admitted that he and his wife had perjured themselves and stated that the injury in fact had been sustained while he was attempting to prevent his wife from attempting suicide.

While confined in jail, the defendant wrote a letter to his wife containing specific instructions involving her future testimony. That letter was discovered and confiscated during a routine inspection of the jail. At trial the court ruled that the letter had been properly seized and it was used for impeachment purposes during the testimony of the defendant's wife, and further used to impeach defendant's testimony as inconsistent statements.

At trial two witnesses testified to events offered to show the defendant's alleged morbid sexual curiosity, and his frequent possession and use of knives. The defendant's former wife testified that Leavitt had been observed excising and then playing with the female sexual organs of a deer. It was noted that the killer of the victim here had similarly mutilated the body by removing sexual organs from it during the fatal attack. The former mistress of the defendant testified that the defendant displayed a hunting knife prior to their engaging in sexual intercourse, which testimony suggested that the defendant used knives to increase his satisfaction during sexual intercourse.

From the Dissenting Opinion in State v. Leavitt (1989)
Along the same lines of unnecessary prejudice was the admission of the testimony of the defendant's former wife regarding the defendant's activities while field-dressing game animals. While it may have contained some kernel of relevance concerning the specific type of mutilation of the victim's body in this case, for certain the testimony was highly prejudicial. It allowed the prosecution to portray the defendant as a grotesque deviant, which in the mind of the average juror would lead to the conclusion that defendant was a bad person, and therefore he likely was the person who committed the murder.

The majority's statement that the prejudicial effect of this evidence was inconsequential because almost all evidence in a criminal trial is prejudicial to a defendant misses the point. Evidence to obtain a conviction is and is intended to be prejudicial. That is a given. But it should be evidence relating to the crime committed.

As one delves into the record it becomes apparent that the district court was overly kind in allowing the prosecutor to have admitted virtually any evidence which it presented. The defendant's wife was allowed to testify as to the defendant's obsession with knives. Actual knives were allowed to be introduced into evidence, not withstanding that there was no contention that such were murder weapons. These were knives which the defendant happened to own. 

These knives had absolutely no relevance to the case. Other evidence, on a par with photographs of the victim admitted into evidence included photographs of an anatomically correct life-sized female doll which was graphically altered to demonstrate the victim's wounds. The jury entered upon its deliberation in a jury room reeking of the unfair prejudice from evidence which the prosecution did not need to show that the victim had been murdered, and the defendant may have been the perpetrator.

From the Adverse Opinion in Leavitt v. Arave (2004)
In the small town of Blackfoot, Idaho, on July 17, 1984, the victim of this brutal crime, Danette Elg, was viciously attacked in her own bedroom by a knife-wielding assailant. The relentless and merciless assault took place on her waterbed and with such implacable force that the bed itself was punctured and torn, while the victim sustained numerous cuts and slashes as she fought for her life. She was also stabbed multiple times: One thrust caused the knife to enter her right lung, another the right side of her heart, still another her left lung, and others penetrated her stomach, her chest cavity, and her neck. One even went through her eye and into her brain. Another exceedingly peculiar and unique wound inflicted during this attack was a cut made by the attacker through which he then removed her sexual organs. He did that in a manner that showed that he had some knowledge of female anatomy, for it was done in a manner that is difficult to accomplish.

The evidence pointing to Leavitt was powerful, if circumstantial -- he was not caught red-handed, nor did he confess. Unfortunately, the victim's body was not found for several days which caused the destruction of some evidentiary markers, but gave rise to others.

On the night of July 16, the victim had been severely frightened and shaken when a prowler tried to enter her home. She called the emergency 911 number and the police came, but they found nothing other than signs of attempted entry and a petrified young lady, who thought that Leavitt was the culprit. They then searched the area and the town but, alas, failed to find Leavitt. 

Strangely enough, during the period between the murder and the discovery of the body with Leavitt's help, he became exceedingly "interested" in the victim's whereabouts. He finally obtained permission to enter the house with the police and discovered the body. Another strange aspect of the case was that a person supposedly named Mike Jenkins also called the police a couple of times during that period and showed knowledge of details of the crime that only the killer himself would know. Mike Jenkins was not known in Blackfoot and was not heard of thereafter. Leavitt, however, is adept at disguising his voice on the telephone, and could even fool his own wife when he did so.

What else? On the very night of the killing, Leavitt suffered a severe cut to his finger, for which he was treated in an emergency room. The killer was also wounded and left behind his blood -- Type O -- which was mixed with the blood of his hapless victim -- Type A. Of all the possible suspects, the only likely source of the Type O blood was Leavitt himself.

How could that damning connection be explained? Well, said Leavitt, he had somehow cut his hand on a fan at home -- a story that was shown to be a lie. At trial he changed that to a story that he had really sustained the cut while preventing his wife from committing suicide. And the crime scene blood? Leavitt could not, at first, imagine how his blood could have been found there, but he had an epiphany by the time of trial. At trial, he managed to recall that a week before the killing he had a nosebleed in the victim's bedroom. That, supposedly, resulted in his blood being mixed with hers when she was killed on her bed a week later. It also supposedly explained how his blood was elsewhere in her room -- on the walls and at the window, and even on her underclothes -- he wiped his nose on them -- as well as on shorts that she had worn between the date of the "nosebleed" and the date of her death. Along the way, Leavitt also tried to send his wife a letter from jail in which he sought to have her memorize a story he had concocted, which would, not surprisingly, tend to exculpate him.

Neither the jury, nor any court which has since reviewed the evidence in this case, has been impressed with Leavitt's stories. The jury found him guilty, and an Idaho judge sentenced him to death.

Of the same ilk are Leavitt's ululations about the prosecutor's comment on the fact that a wholly new blood story surfaced at trial. When speaking to the police, Leavitt indicated that he had no idea how his blood could have been found at the murder scene, but by trial he had developed a wholly inconsistent explanation of its presence -- the nosebleed scenario. His jeremiad about the prosecutor's exploration of his revenant  memory avails him nothing. [A jeremiad is a prolonged lamentation. A revenant memory is one that returns after a long time.] That surely was proper impeachment. ... It underscored his lies as well as his actual lack of cooperation. Then there was the cut on Leavitt's finger where, again, his trial explanation differed radically from his pretrial explanation. Again, his hope that he could misdirect the police investigation and claim cooperation at the same time must die aborning.

Leavitt demurs [objects] to the fact that his ex-wife testified that once, while hunting, she came upon him as he carefully and rather surreptitiously was cutting at the female sexual organs of a deer. He then removed those organs, examined them, and played with them because, he said, he wanted to see how they worked. It will be recalled that the victim in this case (or her body if she was then deceased) was subjected to a highly unusual removal of her female organs. Other evidence showed that it would be difficult to accomplish that in the way it was done and that it would help to have knowledge of anatomy when doing it.

The same can be said about the episode testified to by Leavitt's girlfriend to the effect that he showed her a knife, which was never produced, at a rather peculiar point during a sexual encounter with her. Leavitt's failure to produce that particular knife for the police officers went to the question of his alleged cooperation with them. Because that, of all knives, was missing, some inference was also possible that it was the murder weapon itself or the knife that was used to cut Elg's screen. ... Still and all, the connection was pretty thin. Thinner still is the relevance of other knives, which were admitted into evidence. True, they could have been weapons used by the unknown intruder or the murderer, but nothing tended to show that they were; the missing knife was probably a better candidate for that.

The doomed victim of this crime had, as we have already noted, been severely frightened on the night before her death by a prowler, who tried to break into her home. In a great state of agitation, she called the police and spoke to dispatchers and to police officers. [From a footnote: "When speaking with the dispatcher she was crying, while breathing quickly and heavily, and when speaking to the police officers both her voice and her hands were shaking."] Among other things, she said that she thought the prowler was Leavitt, because he had tried to talk himself into her home earlier that day, but she had refused him entry. [From a footnote: "She told the officers that Leavitt asserted that the cops were after him. That was a lie; they were not."] 

Leavitt claims that the admission of the hearsay testimony violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Of course, one cannot confront a hearsay declarant, but not all uses of hearsay violate the Confrontation Clause. ... We have considered the circumstances and have no doubt that the victim was speaking while under the baleful influence of an exceedingly stressful event -- the attempt by an intruder to break into her home. Nor do we doubt that she lacked the time or the incentive to reflect upon and confabulate a story. Thus, the evidence properly came in as an excited utterance. There was no violation of Leavitt's constitutional rights.

That mysterious phantom, Mike Jenkins, looms large in an objection by Leavitt regarding an alleged Brady violation by the prosecutor. Jenkins, who evidenced detailed knowledge of the murder, called and spoke to two different police dispatchers -- Lisa Pugmire and Theta Duchscher. He first spoke with Pugmire, who never gave out her first name, and later spoke with Duchscher to whom he mentioned Pugmire's first name. Leavitt and Pugmire had a friendly relationship and had often spoken to each other before. Both dispatchers testified.Pugmire testified that she could not say that Jenkins had Leavitt's voice. Duchscher was not asked, and did not say, whether she recognized his voice. At a later time, however, it was revealed that a police investigation had asked Duchscher whether she could make a connection between the voices, and she had said no. Later on, she had said that the voice could have been Leavitt's. Those facts were not disclosed to Leavitt and that, he says, constitutes the violation.

Even if there were some error, it was entirely harmless; it simply is not reasonably probable that the result of the proceeding would have been any different if Leavitt had obtained the information in question. The Leavitt-Jenkins connection was not based on voice recognition, but rather on Mike Jenkins's use of Pugmire's first name and on Mike Jenkins's response, when queried, that his address was near Leavitt's address.

The other evidence of which Leavitt deems himself improperly deprived was blood samples from the murder scene, which he could have subjected to further testing. But no more usable samples existed after the state serologists had performed their tests. Because it is undisputed that no bad faith was involved in the destruction of the possibly helpful blood samples, Leavitt simply cannot prevail on this claim.

Leavitt testified that he was home watching TV, but his testimony was uncorroborated. He had to be treated for a bad cut on his finger on the night of Elg's murder. He was severely impeached on both accounts. And his blood was mixed with Elg's in her room. It is inconceivable that any reasonable juror would have bought his alibi in these circumstances. Besides, the evidence overall was overwhelming.

From Leavitt's Motion for DNA Testing of Evidence:
On Wednesday, May 23, 2012, counsel for the Respondent, Mr. Lamont Anderson, sent to me by fax a report from Idaho State Police Forensic Services ... These reports apparently document testing performed at the request of the Blackfoot Police Department between April 17, 2001 and April 23, 2001 on evidentiary items related to this case. The testing indicates that a number of items were tested for the presence of semen, which was negative. The report also recites that blood was found on certain items, and this sentence follows: “[p]lease consult the laboratory if DNA testing is required on these items.” ... It is therefore apparent that DNA testing was not performed on the blood found on these items. 

On Wednesday, May 23, 2012, I also visited Mr. Leavitt ... At the time I met with Mr. Leavitt I was accompanied by Charles R. Honts, Ph.D., a psychology professor at Boise State University with an expertise in polygraphy. Dr. Honts accompanied me pursuant to this Court’s Order granting Petitioner’s Emergency Motion for Access to Petitioner by Expert, and for the purpose of administering a polygraph examination to Mr. Leavitt. ...

Dr. Honts is perhaps the foremost polygrapher in the United States. ... Dr. Honts reports that he posed three questions to Mr. Leavitt: Did you stab Danette Elg? Did you remove Danette Elg’s internal genitals? Were you present when Danette Elg was stabbed? To each of these questions Mr. Leavitt answered, “no.” ...

Dr. Honts concluded that Mr. Leavitt’s answer to each question was truthful, with a probability of truthfulness of 0.927, meaning a statistical likelihood of 927 out of 1000.

From the State's Response to Leavitt's Motion for DNA Testing:
On May 21, 2012, at approximately 5:14 p.m., Leavitt filed the instant motion asking this Court for an Order directing the Blackfoot Police Department to forward to Sorenson Forensics, the following items “for forensic testing”: (1) shirt; (2) sex crime kit; (3) tan corduroy shorts; (4) pale lavender panties; (5) locking mechanism; and (6) “R. Leavitt blood reference.” 

Leavitt’s motion is presumably based upon the alleged need to “prepare the commutation or clemency petition.” ...

In fact, until yesterday, Leavitt had not sought this kind of discovery in any fashion, even in habeas. Rather, Leavitt has now embarked upon a strategy of waiting until the eve of his execution to seek “forensic testing” of the items and then casting blame at the state’s doorstep ... This simply does not constitute good cause for release of the evidence, but is nothing more than a fishing expedition and tactic to delay Leavitt’s scheduled execution.

My Analysis
Much of the evidence against Leavitt is pathetic. A phone call from someone who doesn't sound like Leavitt is not evidence that Leavitt made the call, even if his ex-wife claims Leavitt can disguise his voice. I presume the caller did not sound like me either, but that is not evidence I'm guilty of the murder.

The Type O blood is the most common type of blood, found in around 40% of the population. To suggest that Leavitt was the person most likely to contribute that blood was merely introducing a desired outcome as evidence. It is up to the jury to decide is the person most likely to have contributed by that blood. It is up to the prosecution to prove beyond a reasonable doubt that the Type O blood belonged to Leavitt rather than the other 120,000,000 people in the U.S. who have Type O blood.

Since the color photos of the victim's mutilated and decaying body in no way implicated Leavitt, they were probably shown to inflame the jury against him in lieu of actual evidence. Even more so, the mutilated doll could not have implicated Leavitt. It too was meant to inflame. Assuming they were somehow justified so that the jurors could properly understand the nature of the crime, both of them could not have been necessary.

Leavitt's pre-discovery concern about the victim's welfare is also not evidence of his guilt. I recall other cases in with the defendant's lack of concern about the victim's welfare was presented as evidence of guilt.

The evidence that Leavitt tried to talk his way into the victim's house soon before the murder, and her expressed fear of him, is (I believe) legitimate, meaningful, and incriminating evidence. By itself, it would not have been insufficient to prove to me beyond a reasonable doubt that Leavitt was guilty, but it would have helped.

As far as I am concerned, the cut on Leavitt's finger is the most compelling evidence of his guilt, particularly in light of his multiple, unconvincing explanations of how he managed to cut himself on the very night she may have been murdered. 

Unintentional self-inflicted cuts during stabbings are certainly not unheard of. Ask OJ. And, if you are the State of Texas, ask Hank Skinner. Hank Skinner suffered a severe cut to his hand during or soon after the murders of his common-wife and her two grown sons. In Skinner's case, however, there is substantial evidence that Hank Skinner was in a drunken stupor while another person, possibly the wife's uncle, committed the murders. Though Skinner was actually present during the murders, he surprisingly has the better alibi.  (I cut my blogging teeth by writing a ten-part series on Hank Skinner, beginning here.) 

What Leavitt does have going in his favor is the polygraph test he recently passed. Though I realize that polygraph tests are far from completely reliable, I realize as well that they are not completely without merit. Leavitt's passing of a well-controlled polygraph test administered by an renowned polygrapher willing to put his reputation on the line gives me pause.

Leavitt and Skinner are similar in more ways than having received cuts to their hands near the time of the murder for which they are sentenced to die. Both Leavitt and Skinner want access to DNA evidence to prove their innocence. Skinner has been asking for that testing for a very long time, while Leavitt just asked for the evidence recently. Skinner's request therefore seems more sincere. 

(I cut my blogging teeth by writing a ten-part series on Hank Skinner, beginning here.)

Skinner has an advantage also that recent events seem to insure that the DNA evidence in his case will be finally be tested. It seems as if the DNA evidence in Leavitt's case will remain untested as we pump a lethal cocktail into Leavitt's blood.

Despite my belief that Leavitt is probably guilty, I nonetheless oppose his execution. I think we should not execute anyone without completely satisfying ourselves that the person to be executed is in fact guilty. We should never execute anyone while leaving potentially probative DNA evidence untested.

In both the Leavitt and Skinner cases, I support testing of the DNA evidence. In the case of Hank Skinner, I think (but do not know) the testing will exonerate him. In the case of Richard Leavitt, I think (but do not know) the testing would not exonerate him.

With respect to Skinner, we may soon know.

With respect to Leavitt, we will probably never know.

I therefore oppose the execution of Richard Leavitt.

Richard Leavitt was executed by the people of Idaho on 12 June 2012, at 10:25 AM.


Anonymous said...

I had to look it up but I think there might be something more with the O blood type then it let on. I believe that he probably is O negative which occurs in about 6% of the population. The odds of him being O positive and testing 16 other people and not getting an O positive is something like 1 in 2500. Though I think they should go ahead with further testing.


tsj said...

If they had O negative, I am confident they would have made an issue of it. Given they did not make an issue of it, I suspect it was O positive.

The fact is, however, that they did not deem it worth mentioning in either appellate decision whether it was O+ or O-.

Anonymous said...

The odds of testing 16 people for o positive and not finding one is about .0004% (though may be off by one digit or 2). Out of 16 you expect 5-7 to have o positive. Also the ME was certain it was his and he couldn't do that with 40%. And last, the defense didn't deny it was his blood which they could have done it with 40%, but rather they said it was blood from a week before and wasn't blood spilled at the time of the murder. They are hoping with the DNS testing that they will find the "one-armed guy" and say there is doubt that he was there at the murder because it was someone else's blood.


Anonymous said...

This link had O blood plus genetic markers that only 1% of the population had


tsj said...

You are correct. I concede that I improperly diminished the significance of the blood evidence.

I now think it is even more likely that he is guilty. I nonetheless leave open the possibility of his innocence due to the results of the lie detector test.

Since there is still potentially exculpatory DNA to be tested, I oppose the execution.

Anonymous said...

Too many excuses, too many coincidences, too much evidence ... the man is guilty. Believe that one is innocient, only on the basis of a liedectector result is shaky. Think what it will mean if this person gets back into society ....


Anonymous said...

I'm a skeptic by nature and no fan of the death penalty, but I'm REALLY no fan of lie detector tests. I don't think any of us should be swayed by a polygraph result, no matter how famous the investigator. When you look up the science, the result seems to be little better than chance despite claims made by companies who's business livelihood depends on selling polygraph equipment or services.

People doing polygraph examinations or companies selling equipment boast a 90-100% accuracy rate.

However, independent examinations by unbiased scientists show an accuracy rate of about 61%.

I would not let polygraph results bias my opinion one way or another.

I agree with you about the DNA evidence.


Anonymous said...

The Skeptical Juror, Richard Leavitt was executed earlier today,and pronounced dead at 10.25 am,according to various news reports.

tsj said...

Thank you. I've added an addendum to the post.

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