The Case of Preston Hughes III: Witness To Murder

From Netflix:

Cheryl Draper (Barbara Stanwyck), without a doubt, witnessed a murder. But when she reports the incident, the police conclude she was dreaming.

From Sgt. Gafford's Report

Sgt [Gafford] learned that there was only one witness at the scene, and determined that this witness had no knowledge of the facts of this case, but had been held being in the area and reporting his wife missing a short time earlier. The male later located his wife and his situation was resolved, however, the police had already been called and were in the area. Officers were flagged down in the Stop-N-Go parking lot by the white male witness, Drew Hartley, and were in the process of looking for the males [sic] wife when they observed as [sic] male named Jamie Hunter taking out the trash at the Fuddruckers Restaurant.

...

There were no known witnesses to the actual stabbing incident excepting the deceased compls [complainants] and the suspect. The uniformed patrol officers had detained a male, and knew the location of the males [sic] wife, who had called the police a short time before the compls were discovered. These witnesses are known in the area from past incidents, and are known by the area officers to be somewhat unstable, a condition which Sgt observed this date as well. The information provided by these witnesses does not appear relevant to this case, with the most important exception being their call was the one which police police in the area at the time of the discovery of the compls in this case. These male and female [sic] were transported to the homicide division where written statements were obtained, and they were released.

...

Interview with Witness Drew Curtis Hartley, W/M-29, DOB - 7/27/59

407 LA Branch, Star of Hope Mission

Work: Federal Import Export, 11111 Wilcrest Green

WK#952-1090, DL* None, SS#---------

Drew states he and his wife were on their way from the Lakewood [Village] Apts to the store, and were walking in the wooded area near a car wash. (This area is not the same wooded area that is behind the Fuddruckers where the compls were found, but it is an extension of that same easement). They heard movement in the brush and thought they were being chased and ran to a Stop-N-Go where his wife called police. Drew lost track of his wife at one point near the car wash a short time later, and he began searching for her, enlisting the aid of a civilian and also the officers who were responding to the call, they were able to learn that she had caught a ride with some males in a truck to their friends [sic] apt at the Lakewood project, and it was during this time that the officers were flagged down at the Fuddruckers. Sgt. P.C. Motard obtained a written statement from Drew however he [Drew] would not sign this statement because he thought he was being handled as a suspect in the deaths of the compls.

...

Interview with witness: Barbara Ann Szekely, W/F-31, DOB - 4/26/57

407 LaBranch, Star of Hope Mission

Work: Federal Import Export, 11111 Wilcreast Green

Wk#952-1090, DL# None, SS#---------

Barbaras [sic] story is much the same as Drews [sic] and she states that after she caught a ride with the males at the car wash, she rode around with them for a while and then asked them to drop her off at the friends [sic] apt at the Lakewood complex. They did so and she was found there later by patrol officers. She was brought to the Homicide Division and a written statement was obtained by Sgt. C.R. Williams. She described a "shape" she observed in the bushes as that of a black male with an afro.

Report of Officer V.L. Cook and Officer C.J. Becker

Officers riding Unit 20G40 were flagged down by a person known as Drew Curtis Hartley regarding his wife missing. The time was approx 2330 hrs and the location was the Stop N Go parking lot at 2303 S. Kirkwood.

Hartley stated his wife had been walking in a car wash bay located east of the Stop N Go. He stated possibly two black had [sic] abducted her and drug [sic] her into the field located south of the Stop N Go: Hartley had a flashlight in his hand and stated he had been looking for his wife for a while.

[Cook and Becker discover the bodies.]

Officer Becker continued to look in the immediate area for any susp(s) or evidence. Becker then went back to the Stop N Go and picked up Hartley from the store and brought him back to the scene. Cook stayed at the scene and observed numerous officers attending to the black female. ...

Officers transported Hartley and wife to homicide division for a statement.

Drew Hartley's Statement

Before me, the undersigned authority, on September 27, 1988 at 02:50 personally appeared Drew Curtis Hartley, who, after being duly sworn, upon his/her oath deposes and states:

My name is Drew Curtis Hartley

I am 29 years of age;

I live at Star of Hope, and my phone number is ___-952-1090.

I am employed by Federal Import Export whose address is 11111 Wilcrest Greeen

My driver license number is _ and my Social Security Number is [redacted].

I was born 07/27/59.

My name is Drew Hartley. I am woring at the Federal Import Export Company on Wilcrest Green and have worked there for a couple of weeks. I am in the Sales Dept.

Tonight, I was at Victor Alfeiri's at 17770 Westheimer #2206 at the Lakewood [Village] Apartments visiting. My wife, Barbara Ann Hartley, was with me. Sometime after dark, we walked from Victor's to the woods behind the apartment complex. This short [cut] between the apartment complexes. Barbara and I were going to another friends [sic] apartment. While I was walking through the woods, we heard movement in the brush. We didnt [sic] see anybody at that point, but think that we were being chased. We ran to a nearby Stop-N-Go where my wife told the employees what had happened. The employees called the police. My wife stayed at the Stop-N-Go and waited and I left. I went to the Lakehurst Apartments and visited Gino. I knocked on the door and talked to them briefly and then left. I went back to the Stop-N-Go to get Barbara. Barbara wouldnt [sic] go past the Stop-N-Go unless she knew that Gino or somebody was home. Anyway, Barbara and I started to walk through the car wash. While walking along, we were walking and she walked on one side of a wall and I walked on the other side. When I got to the end of the car wash, Barbara was gone. I went on through the fence opening going into Gino's apartment complex. As I did so, I heard a yell. I thought that it was my wife. I went to Gino's and was frantic. I told Gino, Oscar and Teal somebody took my wife off and she disappeared. We didnt [sic] find anything. I went back to Gino's and ran over to Victor's through the complex's [sic] to see if Barbara was there. Barbara was not there. When I came back, I went the same way that Barbara and I had previously taken. I was running through here. I ran down the edge that seperates [sic] the woods from the plain field. I was going through the car wash and met this white guy that was parked there. I approached this guy and told him that my wife was missing. He and I then went out into the woods. We could hear the woods and weeds moving while looking for my wife. Barbara didnt [sic] turn up. This white guy then gave me a ride to Victor's. She is not there and Victor is not home. I then went out to the bus stop and Barbara is not there. A white boy with a cowboy hat was the security gaurd [sic] gave me a ride over to Gino's. Gino and I went out with the flash light. We didnt [sic] locate Barbara. I sent Gino to the Stop-N-Go to see if the employees knew what happened to Barbara. Gino told me no so I went to the Stop-N-Go and asked them to call the police that my wife was missing. They called the police and an officer came out. The officers is [sic] looking with a spot light driving down the street. Barbara is riding in a pickup truck with three white guys. Barbara said that she was fine and to get into the truck because I was making a scene. I got into the truck. I decided to tell them to drop us out. The truck pulled over and stops. I get out and Barbara wouldnt [sic] get out. They pulled up into a driveway and turned around and drove at squeling [sic] and I ran. I heard them say that they out [sic] to beat my ass. I ran up to where the police officer was at the Stop-N-Go and told him that I had found my wife. The officer told me that there had been some murders out there and he took me to Victors. [sic] I met Barbara there and the officer took me to the scene of the crime.

I have completed 14 years of school / college and can read and write the English language. I have read this statement and it is true and correct to the best of my knowledge. I have given this statement to Sgt. PC Motard of my own free will. This statement was typed by Sgt PC Motard.

[Not signed]

Barbara Szekely's Statement

Before me, the undersigned authority, on September 27, 1988, at 02:42AM personally appeared Barbara Ann Szekely, who, after being duly sworn upon his/her oath deposes and states:

My name is Barbara Ann Szekely. I am 31 years of age; I live at Star of Hope Mission - Main St., and my phone is ___-___-____. I am employed by Federal Import and Export whose address is unk Wilcrest Green, and their phone is 713-952-1090. My driver license number is _ and my Social Security number is [redacted]. I was born on 04/26/57.

On Monday, September 26, 1988, I was walking with my husband, Drew Hartley, and we were walking down a pathway in front of a vacant field. This field runs the whole length of the block. It was about 7:30PM and it was already getting dark. As we were walking down the path I heard some other footsteps besides our, in the grass. I looked back after hearing the steps for awhile but I didn't see anything. We kept on walking and I kept hearing the sound which was not actually footsteps but it was the sound of feet in the long grass. I looked back a second time and I saw a shape and  it was grouped in someone there. I thought that there was someone on the path and I asked Drew if there was someone behind us and he told me that I was hearing things. And we walked a little further and he looked back and he said that there was somebody there. It sounded like there was somebody in the field itself too, as well as the noise on the path. I just saw the top of the shape and it appeared to be an afro type haircut and that is all the description that I can give on the person. I began to speed up and then the footsteps began to get faster behind us. I then began to run and Drew didn't run right away but then he began to run behind me. I ran to the Stop And Go and when I got to the pavement and I didn't see anybody. I went in the Stop And Go and talked to the girl clerk and a guy that was with her. I told them that someone was chasing me on the path. I looked out the window and I saw Drew outside, but nobody else. I then went out of the store and went to the car wash behind the Stop And Go and I talked to some guys there and I asked them if I could hang around there for a few minutes and they said it was O.K. with them. I saw two police cars pull in the Stop And Go. I then asked the guys to give me a ride to the front Stop and Go, on Westheimer. I rode around with the guys for awhile and then they gave me a ride over to a friend of mine, named Victor, who lives in the Lakewood [Village] Apartments. About an hour later Drew came to the door with a policeman and was saying that someone had gotten murdered down the street and the police wanted to talk to us. Then the officers asked us to come in and make a statement. Earlier, before we went down the path on Kirkwood, Drew was going to take a short cut through the Lakehurst Apartments and I would not go through the apartments because we were evicted from the apartments and I knew that we would be arrested there if the security guard caught us there. After I would not go through the apartments Drew told me that it was just as well because a "nigger" just went down the path. The officer later told me that this path was the area where the girl was found dead tonight.

I have completed 2 years of college and can read and write the English language. I have read this statement and it is true and correct to the best of my knowledge. I have given this statement to Sgt. C.R. Williams of my own free will. This statement was typed by Sgt. C.R. Williams.

Signed: [Barbara Szekely]

Subscibed and sworn to before me this 27th day of September, 1988

Signed: [illegible signature]

Notary Public in and for the State of Texas

-----------------

The excerpts from the police reports are from the 41 page HPD compilation here. The added emphasis is mine. There are, as yet, no copies of Drew or Barbara's statements available online.

-----------------

There should have been no doubt whatsoever that Barbara Stanwyck witnessed a murder. Who, after all, could seriously question the Big Valley matriarch who gave birth to Audra Barkley?

Drew Curtis Hartley and Barbara Ann Szekely, on the other hand, were in no way responsible for Audra Barkley's appearance on my teenage television screen.

Drew's statement and Barbara's statement, therefore, must to be considered with considerable skepticism. Their statements should, however, actually be considered rather than cavalierly dismissed. The Houston Police failed to consider (or even properly report) their statements, so we shall do that here, in this august blog.

It won't be easy. We'll have to read over their statements many times, compare them with the geography of the area, weigh them in light of what we have already learned about the case, and attempt to resolve the obvious conflicts.

In my next post in this series, I will discuss the couple now of interest to us. You will learn that there is plenty of reason for caution in accepting their statements as absolutely, unequivocally true.

Then I will describe why I believe Drew Hartley and Barbara Szekely may have witnessed the prelude to the murder of Shandra Charles and Marcell Taylor.

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Remarkable Developments in the Case of Hank Skinner

I cut my blogging teeth with a ten-part series about Hank Skinner.

Though Hank was undeniably in the house when his girlfriend (Twila Busby) and her two grown sons (Randy and Elwin) were murdered, and though he had her blood on him, and though he had a severe cut on his hand, I believe he is more likely innocent than not.

Hank's defense was that he was too intoxicated to have committed the murders, and the evidence for that odd claim is substantial.

I have fervently opposed the execution of Hank Skinner because the crime scene was a DNA rich environment, and much of the evidence seems to point to a third party. (Much of the speculation regarding that third party revolves around Twila's allegedly lecherous uncle.) Most of that DNA evidence was not tested before trial, because both the State and and Skinner's hapless attorney felt such testing might not be to their advantage. 

Hank Skinner has spent the last decade and a half trying to get that evidence tested. At one point, some of it was tested, and the results tended to exonerate Skinner. (See Factually Exonerated!) Somehow the other evidence that was to be tested (such as the rape kit and the fingernail scrapings) never were tested.

With the help of a professional graphic design artist, I prepared a large summary page of the DNA evidence that has and has not been tested.  I repeat it below.

Of course my efforts had no impact on Texas' intention to kill Skinner before the DNA was tested. He was saved repeatedly by the efforts of his brilliant attorney Rob Owen.  Rob shot down the first execution date because of a technical flaw in the death warrant. That bought one month, since Texas had to issue a new death warrant and the warrant cannot specify an execution date less than a month away. That month was absolutely critical.

In the wee hours of 24 March 2010, I used this blog to say goodbye to Skinner in Godspeed, Hank Skinner. He was scheduled for execution that evening.

With less than an hour before Skinner's once-delayed execution, Rob managed to convince Justice Antonin Scalia (of all justices) to grant Skinner a stay.  Rob argued that Skinner had a Constitutional right to sue the prosecutor in civil court to obtain the DNA evidence.

The Supreme Court as a whole agreed with Scalia that Skinner's case was worth hearing. and eventually ruled that Skinner had a right to press his claim through the Texas court system. (See Hank Skinner and the Supremes.)

Suddenly, after almost two and a half years, the case is developing rapidly. Though I pledged myself not to write of anything other than impending executions and Preston Hughes until I completed the Preston Hughes series, the Skinner developments are suddenly so significant and so frequent that I now grant myself an exception.

So what are the developments. Let me count the ways.

May 2: Top Criminal Court to Hear Hank Skinner and his Death Row DNA Appeal

May 8: Texas AG's Office Rebuked by Three Courts in Five Days

June 1: State Backs DNA Testing for Hank Skinner

June 12: State to Test 40 Crime Scene Items for DNA in Skinner Case

And finally this shocking (but not surprising) item, just in.

June 13: Evidence Missing in Skinner Case

It's not just any piece of evidence that is missing. It is the windbreaker that belonged to neither Skinner nor anyone else who lived in the house. The suspicion is that the windbreaker belonged to Robert Donnell, Twila Busby's allegedly lecherous uncle who left the New Year's Eve party soon after she did. (Skinner was at home, in a drunken stupor on the couch.) 

The windbreaker was the piece of DNA evidence most likely to place someone else in the house that night. And now it is missing.

As it turns out, my post Factually Exonerated! was prophetic. In it, I compared Texas' handling of potentially exculpatory evidence with Lenin's handling of unpleasant historical evidence, such as the very existence of Leon Trotsky.

There's Lenin now, with his friend Trotsky. Oh, wait! Someone inadvertently misplaced Trotsky.

There is, by the way, a piece of non-DNA evidence that has never been tested, that may unequivocally point to someone other than Hank Skinner. A bloody knife was found in a garbage bag. I understand that fingerprints or a palm print was lifted from that bag. I understand further that the prints did not match Hank Skinner. As far as I know, the State has not attempted to match those prints against any other individual. As far as I know, they could attempt a comparison against Robert Donnell, since he had previously been incarcerated by the people of Texas.

And, as far as I know, the Supremes agreed that Skinner has the right to pursue the DNA material, but were mute with respect his right to pursue post-conviction fingerprint comparisons.

Once again, however, Skinner is in little need of any assistance from me. He is blessed with one of the best defense teams of which I am aware.

In the case of Preston Hughes, by comparison, I seem to be all that he has. He would be much better off to have Rob Owen on his side.

The Case of Preston Hughes III: Marcell's Neck

Color me surprised.

Again.

I should have realized this earlier, even as I challenged you with Brain Teaser #2, the one in which I  provided autopsy descriptions of Shandra and Marcell's neck wounds. But you know what they always say: "Blogger, challenge thyself."

In Shandra's Neck, after inserting Preston's knife into the eponymous neck, I concluded that the wound path had to be either front-to-back or side-to-side. The knife could not have been inserted obliquely. This prompted me to send away for the autopsy reports, which the Harris County Institute of Forensic Sciences provided at modest cost and reasonable speed. Shandra's autopsy report made clear that the wound path through Shandra's neck was from front-to-back, slightly to the right, and slightly up.

The wound path through Marcell's neck was more complicated. It was from front-to-back, slightly to the left, and upwards. Notice the lack of "slightly" before the word "upwards". Marcell's injury was definitely three-dimensional, not approximately two-dimensional as was Shandra's.

Marcell's autopsy report provided enough information to estimate the vertical angle of his neck wound. The entrance wound was 7 inches from the top of the head while the exit would was only 4 inches from the top. In other words, the wound path climbed 3 inches from front to back, assuming the victim was in the anatomical position.

The autopsy report also made clear that the wound path distance between the entry and exit points was 4 inches. Sounds like trig time to me. (For the mathematically faint-of-heart, you may want to look away.) The sine of the angle is the rise divided by the hypotenuse. The rise is 3 inches and the hypotenuse is 4 inches, so the sine of the angle is 0.75. The arcsine of 0.75 is 48.6 degrees. Yikes!

Okay, you can look back. The knife traveled upwards through Marcell's neck at approximately a 45 degree angle. Yikes!

I attempted to use Google Sketchup (now Trimble Sketchup) to insert Preston's knife into Marcell's neck at a 45 degree upward angle. As it turns out, that's not as easy as it sounds. I was making my third run at the problem this morning when I realized I didn't need a 3-D model to tell the story. The mismatch between the wound and Preston's knife is so egregious that a 2-D model, such as I used for Shandra's neck, will tell the story just fine.

Here we go. I present below Preston's knife inserted into Marcell's neck.

Preston's Knife in Marcell's Neck

Holy Crap!  The knife looks gigantic. I double-checked and triple-checked my work, and I think I got it right, and it's still difficult to imagine. To get Marcell's neck, I scaled down Shandra's neck based on their relative heights.  Shandra was 65 inches tall and Marcell was only 41 inches tall. (Remember that he was only 3-years-old.) Assuming they were scale models of one another, Marcell's neck should be only 65% as large (in each direction) as Shandra's. I estimated Shandra's neck circumference from her BMI and came up with 13 inches. That means Marcell's neck circumference would have been around 8.5 inches. Measured along one side from front to back, it should be 4.25 inches.

I put white 1/4" markers along the left side of Marcell's neck. It took 16.5 of those markers, and that works out to 4.125".  I call that close enough.

I put four of those 1/4" markers across the knife blade (near its base), and they indicated that the knife is 1" wide. The fill-in ME described the blade width as slightly larger than 1".

It looks to me as if I have scaled the knife and neck properly with respect to one another.

From a properly projected top view, the length of the knife would look shorter than I have shown, by about 30%, due to the upward angle of the wound path. I have not foreshortened the knife, however, because the blade length does not seem to be the issue.

The blade passing through Marcell's neck created both an entry and an exit wound. The wound path length was 4 inches long, so the knife should be longer. The knife blade shown is 5.5 inches long, so the blade length is consistent with the wound path length.

I have shown in red the location of entry wound. I centered that wound at a point 1.5 inches from the front of the neck, as per the autopsy. That would be six 1/4" bars. I made the wound 1 inch wide, as per the autopsy. That would be four 1/4" bars total, two on either side of the center point of the wound.

Look at the wound. Look at the knife. You have to be able to see it. Hopefully I don't need to point out the blindingly obvious.

Okay. Fine.

There is no way that Preston's knife could have made the wound in Marcell's neck. No way.

Preston's knife is way too wide, and now it's absolutely obvious. Preston's knife blade is 1 inch wide. The wound in Marcell's neck was 1 inch wide. That doesn't mean the wound and the knife are consistent. It means they are inconsistent. Preston's knife would create a 1" entry wound only if it went in perpendicular to the surface. If the blade comes in at an oblique angle, then the width of the entry wound will be substantially larger than the blade width.

As you can see from the image above, Preston's knife would have left an entry wound approximately 1.5" wide.

Then I remembered that the knife fit nicely into Shandra's neck, and her entry wound was 1.5" wide.  Here's the money shot from Shandra's Neck.

Preston's Knife in Shandra's Neck

So that explained the difference. Marcell's entry would was only 1" wide while Shandra's was 1.5" wide.

But I was wrong again.

As I was preparing this post, I checked the autopsy report for the umpteenth time. It said Shandra's entry wound was only 1-1/8" wide, not 1-1/2" wide.

How did I get that wrong?

Then I recalled that I wrote  Shandra's Neck before I had access to the autopsy report. Instead, I got the dimensions of the wound from the police report of Officer J. L. Waltmon, who arrived at Ben Taub Hospital just as Shandra's lifeless body arrived. Walton wrote (badly):

Sgt. then view the comps. body and found that she had a stab wound to the left side of the neck. This wound was 1 1/2" wide and 1 3/4" down from the left ear lobe on the left side of the neck.

Officer J. L. Waltmon was wrong, and that caused me to be wrong, and I didn't find my error until just before beginning this post. Shandra's neck wound was not 1.5 inches wide; it was only 1.125 inches wide. Preston's knife could no more have caused Shandra's neck wound than it could have caused Marcell's neck wound.

That is true not simply because Preston's knife was single-edged and the murder weapon was double-edged. It is true as well because Preston's knife is simply too wide to have created either Shandra's neck wound or Marcell's neck wound.

Color me surprised, not just because of what I write here, but because of I intend to write next about Marcell's neck.

Can you see where I'm going with this?

ADDENDUM:
Anon (if I may call him by his first name) noted in the comments that Marcell's neck was more likely close to 10 inches in circumference, rather than 8.5 inches as I had estimated. Anon provided a link to support his claim. I reviewed it and I agree with him that 10 inches is more likely.  I have therefore re-scaled Marcell's neck accordingly an present the resulting image below:

Preston's Knife in a 10" Circumference Neck

Notice that there are now 20 1/4" white bars along the left side of the neck. That's 5 inches for 1/2 of the circumference.

The result remains. The 1" wide knife blade (inserted front to rear) is too wide to make a only a 1" wide entry wound, if that would is oriented at an angle to the blade.

The result, as it turns out, is insensitive to the circumference of the neck. If you look at the recreation of Preston's knife inserted into Shandra's neck (which I calculated to have a 13 inch circumference, and which I displayed again in this post), you will see that the a 1" wide blade is too wide to have created the 1-1/8" entry wound in her neck.

Preston's knife was not the murder weapon. It's 1" wide blade is too large to have created the neck wounds. Also, as explained previously, it was single-edged and the neck wounds were created by a double-edged blade.

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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.

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

The Case of Preston Hughes III: Right Tool for the Job

For more than two decades, the knife used to murder Shandra Charles and Marcell Taylor has been misidentified as the hunting knife found in Preston Hughes' closet. We now know that the murder weapon did not look like this:

Preston's knife

Instead, the murder weapon looked more like this.

Or this:

The double-edged knives shown above are known as daggers. Wikipedia relies on a Missouri court case and a California penal code to define a dagger as "a fighting knife with a sharp point designed or capable of being used as a thrusting or stabbing weapon."

Wikipedia then continues, as it is apt to do:

[O]ver the last hundred years or so, authorities have recognized that the dagger, in its contemporary or mature form, has come to incorporate certain definable characteristics, including a short blade with a sharply-tapered point, a central spine or fuller, and usually two cutting edges sharpened the full length of the blade, or nearly so. Most daggers also feature a full crossguard to keep the hand from riding forwards onto the sharpened blade edges. Another distinctive feature of the modern dagger is that it is designed to position the blade horizontally when using a conventional grip, enabling the user to slash right or left as well as thrust the blade between an opponent's ribs. The full-length edges enable the user to make broad slashes (cuts) using either a forehand or backhand arm movement, while the sharp, acutely-pointed tip makes the knife an effective thrusting or stabbing weapon.

Daggers are far less common than single-edged knives, for daggers have some significant disadvantages.

The first and most obvious disadvantage of a dagger is its double-edged blade. The lack of any blunt edge prevents the user from using palm, finger, or thumb to increase the cutting edge pressure. The lack of a blunt edge also complicates folding designs, making the dagger less convenient to carry and or conceal.

Another disadvantage is that a two-edged blade is less robust than is a single-edge blade. For a given blade width and maximum thickness, two sharp edges demands that more material be removed. On average, a double edge blade simply consists of less steel than does a single-edge blade. The problem becomes particularly acute near the sharpened tip. The tip is more likely to break if it hits an unexpectedly hard target, such as a shoulder blade.

Finally, daggers are not nearly as good as single-edged knives for slashing. That is because the dagger blades must thicken from nothing to maximum thickness in just one-half of the blade width. Their wedge angle is nominally twice that of a single edge blade.

A dagger, on the other hand, will penetrate much more easily than will a single-edge knife. Also, and significantly, its tip lies along the centerline of the blade. This alignment permits considerably more precision as one attempts to stab an opponent in a critical body part, such as a carotid artery.

Consider now the dagger-like agricultural tool below.

Though it has many characteristics of a dagger, it is called a sticking knife, at least according to Lehman's online store. You can find it under Home > Kitchen > Home Butchering > Butchering Supplies > Old Hickory Sticking Knife.

From Wikipedia:

A sticking knife is primarily an agricultural tool. Sticking knives resemble daggers in shape and function, but are made for the utilitarian purpose of "sticking" or bleeding out livestock in home butchering. In some cases the animal would die directly from blood loss, where in others the animal would be killed beforehand and hung by the hind legs to bleed out. 

A sticking knife usually consists of a double-edge pointed blade approximately six inches long. Blades are traditionally made of high carbon steel (such as 1095). Handles are simple, consisting usually of two hardwood scales riveted through the full, flat blade tang. Sticking knives generally lack any kind of guard. 

Few companies continue to produce sticking knives. Firearms have generally replaced the sticking knife in home livestock processing. Most slaughterhouses use humane killers, which project a steel rod through the skull of the animal. ... The Ontario cutlery company continues to produce traditional sticking knives in their "old hickory" knife line.

For a long time, when people needed to cut the carotid arteries of livestock, they relied on a double-edged sticking knife virtually indistinguishable from a dagger.

Always use the right tool for the job.

I suspect Shandra Charles was not killed during a spur-of-the-moment, out-of-control attack. I suspect instead that her killing was premeditated and well executed.

I don't believe it is a coincidence that her carotid artery and jugular vein, and those of her three-year-old cousin, were transected by a double-edge knife.

I suggest that whomever killed Shandra Charles and Marcell Taylor knew enough about killing that they simply brought the right tool for the job.

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