The Francisco De Aragon Case: A Wrongful Conviction in Florida

Francisco De Aragon

Francisco “Fran” De Aragon, age twenty-six was working as a swim instructor at the Deerfield Beach Aquatic Center in 2015 when his world was turned upside down. May 20th started out as a normal day, and he was looking forward to taking a short vacation with his wife, Savannah to visit family. Instead, a deputy arrived at his place of employment and detained him with no explanation. There he sat for hours until police obtained probable cause to arrest him. Then he was transferred to the police station, handcuffs and leg restraints were placed on him and he was interrogated.

He was shocked when police informed him that he had been accused of inappropriately touching two six-year-old girls during their swim lessons the prior day. He was outraged and vehemently denied the accusations. He informed the detective that he had never been accused of anything of this nature and was a law abiding citizen with nothing more than a speeding ticket on his record. Detective Gittens lied and told him that he had DNA evidence to support the allegations. De Aragon maintained his position that he had never inappropriately touched a child and agreed to submit a DNA specimen. He did not ask for an attorney at any time during the interview.

He told the detective that he took his coaching and lifeguard responsibilities seriously. He was with the USA Swim Team where members are educated about the importance of avoiding any inappropriate contact. They are also subjected to frequent background checks. He had been working as an instructor/coach/lifeguard for the past ten years and had never received a single complaint. He’d worked with thousands of children.

The setting of the alleged abuse defies common sense. He and another instructor worked with entire classes of students who were transported to the facility from their schools. They would split the class in half so each instructor could work with approximately ten students at a time. As is typical with beginner swim lessons, the instructor would stand approximately five feet out and have the children take turns pushing off the wall and swimming toward them, often with the use of a kickboard. They would then be turned around and directed back to the wall. The entire class would be watching, and waiting for their turn. The teachers were close by, keeping an eye on the students. How could a child be abused in this setting with no one observing anything?

The Accusations:

The parents of six-year-old A. C. called the police the evening of May 19th and reported that their daughter had been inappropriately touched by a  swim coach that day. Officer Sobrino with the Broward County Sheriff’s Office responded and spoke first to the parents. They told the officer about the alleged inappropriate touching described by their daughter. The officer then spoke privately to A.C., and she told him she was in the pool and a man touched her private parts inside her bathing suit, but there was no penetration.

The next day, at a separate precinct, parents of six-year-old B.E. reported that their six-year-old daughter was inappropriately touched by a swim instructor. The same details were described — that he touched her private parts inside her swimsuit. No penetration had occurred. This report was taken by Investigator Preston, also with the Broward Sheriff’s Office. Note that B.E. attended a different school than A.C. This reduced the likelihood that the children knew each other and possibly made up the claim after discussing it at school, but it shouldn’t eliminate the need for a thorough investigation into these very serious allegations. Unfortunately, police immediately accepted the claims as fact, and confirmation bias was a factor in the children’s interviews.

It’s important to distinguish between an allegation of touching versus penetration as the latter results in a sexual battery charge, which carries a life sentence.

Deputy Gittens

Things happened very quickly . . . almost too quickly. Detective Keith Gittens with the Special Victim’s Unit was assigned to the case the morning of May 20th. He called A.C.’s mother at 10:17 a.m. and then her school teacher at 10:49, but the odd thing is that Officer Sobrino did not speak to Gittens, and did not type up his report until 11:15 p.m. that night . . . so how did Gittens obtain the family’s number and the name of the teacher? At a deposition months later he explained that he must have received a draft copy of Sobrino’s report.

Whatever the case, before he’d even conducted forensic interviews with the children, he contacted the pool where Francisco De Aragon was employed and determined exactly where he was at that time and then sent a deputy to detain him until he secured probable cause for his arrest. De Aragon was detained at 12:22, held at his work location until Gittens completed his interviews. He was arrested at 3:54 p.m.

Normally when young children make sexual abuse allegations, authorities consult with child psychologists and medical professionals to verify or rule out the claims. There are recommended guidelines for questioning children in the 2-7 age range. For example, open-ended questions are supposed to be asked. That didn’t happen in this case. Outside specialists were not consulted, and open-ended questions were not asked. It was later learned that Gittens had never received any formal training in this area.

A.C. was interviewed first. He asked her simple questions — could she count to 100, did she know her alphabet? He felt comfortable that she understood the difference between truths and lies, then he jumped right into the “good touch/bad touch” questions. He proceeded to draw a body and asked the child to name the anatomical parts. Then he asked her if anyone had ever done a bad touch on her privates.

A.C. Yeah.

Gittens: Who?

A.C. When I went to the pool I was trying to swim and I couldn’t and they touched my privates.

If the child had been coached to make the accusation against the swim coach, the detective just led her right to that. There was no open-ended question about her day, or school or the swim lesson . . . just directly to the inappropriate touch questions.

Gittens: What was the person doing with you?

A.C. He was trying to push me on the wall for I can swim. (English was her second language)

Gittens: Uh-huh.

A.C. And then he put his hand on my bathing suit and touched my private.

(note: I am skipping ahead and omitting some of the irrelevant sections to avoid being too lengthy).

Gittens: So while you were in the water with the man is when he touched your privates?

A.C. We were playing and then trying to swim, he was touching my bathing suit and then he went under his hand. And then he touched my privates.

It sounds like A.C. could have been coached by someone to say, “He put his hand under my bathing suit . . .” , but it didn’t quite come out right.

Gittens: Okay. Did he put his hand inside your bathing suit, or outside.

A.C. Inside.

Gittens: Okay, and he touched your privates or?

A.C. Yeah.

Gittens: Okay, when he touched your privates did he do anything with his hand?

A.C. He just touched it.

Gittens: Okay. Did he only touch it like this or did he do something else?

A.C. He was touching it like this because I was with my bathing suit and I was trying to swim. And then when I was trying to swim when I did it wrong he went under my bathing suit.

Gittens: Okay. When he touched your private did his hand move around or stay still?

A.C. He keep his hand still.

Gittens: Okay. Did his hand go inside your private or stay outside?

A.C. A little bit outside.

Gittens: Well, let me ask you . . . did the man’s finger go inside your private or something else?

A.C. Inside my private.

He kept asking her the same question until he received the answer he wanted. Clearly, the detective was manipulating the child to secure the harshest possible charge against De Aragon — sexual battery. Does the child even understand what the detective means? We already know that the officer who responded to the complaint reported that no penetration had occurred, so why was this detective pursuing this line of questioning when it was clear the child denied it in both interviews? Gittens kept at it, and she told him that the coach also put his hand inside the butt area of her swimsuit, but based on the questioning and the responses, it does not seem like the child understands what the detective is talking about.

Gittens: So did he touch your private, then your butt or . . . tell me. Tell me what happened.

A.C. First I was on the bus — and the person on the bus she was staying on the bus. And then I got started and when they tapped me on the head, I had to go this way with my friends. And then when we were doing things what I was saying. And then after that we were playing and kicking. We were playing red light and green light.

He attempts to refocus her but doesn’t seem to be successful.

Gittens: When the man was touching you, was he showing you how to swim?

A.C. Yeah. He was showing some other kids. And then — we were going, my other friends. They were on this side, and my other friends were on this side.

Gittens wrapped up the interview shortly after that, having secured his first sexual battery charge.  A.C. was unable to identify De Aragon in a photo line-up just after the interview.

Gittens interviewed B.E. next. She was crying hysterically as she entered the room, so he allowed her mother to stay for the interview. This interview is very important because the child told the detective that a boy from school touched her, and that a grownup had never touched her inappropriately.

Gittens: Has anyone ever touched you on your parts that they’re not supposed to touch?

B.E. Nods.

Gittens: Who touched you there?

B.E. Elijah.

Gittens: Huh?

B.E. Elijah.

Gittens: Elijah? Who is that?

B.E. Someone from my class.

Gittens: Somebody from your class touched you there named Elijah? Okay. A boy or a grownup?

B.E. A boy.

Gittens: A boy? Okay. Has anybody else touched you on your private? (B.E. shakes her head no) No? Okay. So, besides Elijah has any grownup touched you on your private there?

B.E. No.

At this point the detective should be considering the possibility that the child may have lied in the initial police report about the swim coach. Was it possible that it was the classmate, not the coach? Instead, he keeps pushing — even resorting to the use of a toilet paper roll and pen to simulate sexual penetration, in an effort to coax the child into admitting that penetration had occurred. He was determined to secure a second sexual battery charge.

Gittens: Besides mommy from bathing you there, has any grownup ever touched you there?

B.E. No.

Gittens: It’s okay. You can tell me. Mommy said it’s okay to tell me. Any grownup ever touch you there? Huh? Yes or no? You’re nodding yes?

B.E. (mumbling)

Gittens: I want to be sure I understand you. Okay? So, can you say yes or no? Which one?

B.E. I’m scared.

Gittens: Don’t be scared. No one’s going to hurt you. I promise.

B.E. Yes.

Gittens: So who was the grownup that touched you there?

B.E. I don’t know his name. Someone who works at the pool. And he did it to everybody that had on a bathing suit two-piece.

(skipping some of the dialogs)

Gittens: So, tell me about it. Tell me how the man touched you there.

B.E. I don’t remember.

Gittens: What were you doing at the time?

B.E. I was in the pool.

Gittens: You’re in the pool? Okay. Were you learning to swim? Yeah? And there were other kids there too? Okay. And were you by yourself with the man at the pool? No? Other kids were there? Were the other kids sitting on the wall? Yeah? Okay. So, then you went out when it was your turn? Okay. And was it then that he touched you there? Yeah? Okay. And you had on a two-piece bathing suit? Yeah? Okay. And he used his hand to touch you there? Yes or no?

B.E. Yeah.

Gittens: Did his fingers touch you there? Yeah? Okay. Was it inside your bathing suit or on the outside?

B.E. Inside.

Gittens: Inside? Okay. So, here we have a roll of toilet paper. Right? Right now where is the pen?

B.E. On the outside.

Gittens: On the outside? Okay, now where’s the pen?

B.E. On the inside.

Gittens: Were his fingers on the outside or did it go inside?

B.E. Inside.

Gittens assumed the child understood what he was referring to with this ridiculous pen demonstration, but I don’t believe it’s at all clear that she did . . . and it’s quite possible she interpreted the pen inside to mean inside the bathing suit. Remember that the police officer the night before reported that no penetration occurred.

Gittens then asked the child to pretend the pen is the coach’s finger, and show him how much of the pen went “inside.” The child points to a spot on the pen. That resulted in the second sexual battery charge. B.E. did identify De Aragon in a photo line-up, so this was enough for probable cause. De Aragon was immediately arrested and taken to the police station.

A third six-year-old girl, A.P. was interviewed the following day. She was in B.E.’s class, and it was established during later depositions that the two girls were friends and had discussed the touching. B.E. told her mother that the man touched A.P. too. B.E. then sent an email to A.P’s mother about this, and police were later contacted.

A.P.’s mother told police that her daughter was in the pool, then went to get a drink, and the lifeguard touched her . . . so this was very different than what the other girls had described. But Gittens didn’t ask A.P. anything consistent with her mother’s statement. He stuck with the same script . . . Did it occur while you were in the pool, etc? A.P. said she would scream if anyone touched her private parts . . . yet she didn’t scream at the pool that day. Gittens conducted the same toilet paper roll demo that worked well with B.E., but A.P. maintained that the pen remained outside the toilet paper roll — so no sexual battery charge this time.

B.E.’s mother also told police a contradictory story. She said that her daughter told her that the coach lined up all the girls wearing two-piece bathing suits and touched all of them. In fact, another lifeguard working that day described how she was the one who split the class in half for the lesson, and it was simply the first ten children who were sent to have their lesson with De Aragon. This apparently wasn’t a red flag to police that the stories weren’t matching up with what the children had allegedly described. Also, the mothers of B.E. and A.P. denied knowing each other, and denied that their girls had ever been to each other’s homes, even though the children said that they had.

The investigation was over at the time of De Aragon’s arrest. Gittens never attempted to determine whether A.P. and B.E. may have jointly planned to falsely accuse their instructor. He did not look into B.E.’s classmate Elijah, despite the fact that she’d named him as the person who did the inappropriate touching during her police interview. Shouldn’t he have considered the possibility that she (and A.P.) may have implicated De Aragon to protect Elijah? Someone that they would see at school each day? He did not question the other classmates to see if they’d observed anything at the pool that day.

Since A.P. and B.E. had been to each other’s homes, the parents may have been friends too, and there may have been collusion to frame De Aragon by coaching the children. Gittens never considered the possibility, or that the parents of these two girls may have known the parents of A.C., the third girl who attended a different school. A.C.’s swim lesson was actually scheduled right before the other girls’ lesson, so it’s quite possible the children knew each other from that, but Gittens never asked.

Gittens also failed to consider the possibility that the parents may have had had financial motives to make false claims. He never arranged for the children to be medically examined, did not collect their bathing suits for DNA, and did not inquire if the pool facility had cameras that may have captured the events of that day. In fact, no investigation took place at all, and the parents were actually brought in to make sworn statements after the arrest.

A spokesman with the Broward Sheriff’s Office informed the public about the arrest on the local news. He stated that he believed this man to be a predator, and asked the public to come forward if they had any information. No one ever came forward.

Detective Gittens was demoted from Detective of the Special Victim’s Unit to Deputy a few months after this incident. In his deposition, he stated that it was due to personal reasons. During a pre-trial hearsay hearing a judge was curious about the demotion and even asked the prosecutor if there was a reason why the detective was no longer a detective with the the SVU. He wondered if it was related to his interview technique. He referenced the end of one of the girl’s interviews in which the detective told the child that he believed her.

“It’s fundamentally flawed for him to say at the end we believe you. It’s fundamentally flawed for him to say at the end of the interview for him to tell the child he won’t do this to anyone else. There’s a huge problem with that because you are now making sure the child is now married to her statement and she has to stand by that statement now. She can never recant because she’s now the hero. They believe her and he’s the monster because of her testimony.”

Is it possible Gittens was demoted because he was involved in a set-up? He moved very quickly and did not conduct a proper investigation. Did he have something to gain?

Depositions

Fifteen months after the accusations were made, De Aragon’s private attorney, Scott Janowitz deposed the parents, the children, the detective, and the teachers.

A.C. was very quick to mention the touching. It seemed obvious she had been coached. Janowitz did a poor job questioning the witnesses, failing to ask open questions much like the detective.

Q. When you got into the pool, where did he first touch you?

A. In my private part.

This is clearly inconsistent with the earlier story — that she was touched while he was helping her swim.

Q. When you first got into the pool, he immediately touched your private part or did he touch some other part of your body?

A. No. First he keep pushing me and pushing me. And then until he just touched my private part. And then we were done I went home. And then, like in the night time I tell my mom, and then my dad came, and then my dad called the police.

A.C. did not seem to understand any questions about penetration.

B.E. was reluctant to discuss this again.

Q. Do you remember a day in which the swim instructor touched you? (Again, the attorney’s line of questioning was exactly like Gittens’)

A. No.

Q. Okay. Do you remember a time where the swim teacher put his hands inside your bathing suit?

A. No.

Then Janowitz began asking her about private parts and at that point she responded “yes” when asked about the touching. B.E. stated clearly that his hands remained outside her private part, thus no penetration. Stupidly, Janowitz was trying to encourage her to admit to the penetration, and even brought up the toilet paper roll demonstration. He asked her if she knew a boy named Elijah, and she said she did not.

Incentives to lie

Sometimes children are coached to lie about sexual abuse. Unfortunately, it’s common in divorce and child custody cases. One parent will accuse the other of sexually abusing the children to win full custody. Sometimes teachers, daycare workers, relatives, and youth counselors are falsely accused. The Tonya Craft case is well known — a kindergarten teacher falsely accused of sexually abusing three girls. A possible motive was that one of the mothers was upset that Craft didn’t believe her child was ready for first grade. A vendetta can be the incentive, and children can be coached. Craft had a strong defense team and was ultimately acquitted, but many aren’t so lucky. These cases are difficult because the physical proof isn’t needed to win a conviction. The child’s story is often enough.

One of the other incentives is financial. A false allegation can result in a massive lawsuit. In fact, at a hearsay hearing before trial, Judge Bailey was considering any possible motives for the children to have made false claims, and one of the things he referenced was civil lawsuits.

“I don’t find any motive to fabricate, as far as some of these cases end up in lawsuits, and civil actions, and so on. I don’t find anything of that nature here. It may be a question of whether because there’s a discussion at the school going on, that there’s no motive to fabricate.”

The judge stated that he didn’t see anything of that nature, however, there had been a pre-suit filing just five weeks after the alleged incidents. It was filed against the schools and the City of Deerfield Beach by A.C.’s and B.E.’s mothers, yet De Aragon’s attorney, Scott Janowitz did not bring it to the court’s attention. In fact, at trial, both women denied that they’d gone to the attorney together which was odd since both their names were on the documents. During De Aragon’s trial in May 2017, one of the mothers was asked if she was planning to pursue a civil lawsuit. She stated that she had no plans to do so.

In June 2017, De Aragon was convicted of capital sexual battery, three counts of lewd and lascivious acts and one count of battery. The first charge carries an automatic sentence of life in prison without the possibility of parole. The children all testified, yet much like the questioning by police and during the depositions, claims of actual penetration were unclear, despite lots of coaxing. There’s a hearsay exception in cases like this, with children under the age of twelve, so all of the mothers were able to testify about what the children allegedly told them about the touching. All three women cried on the stand, even though they did not cry during any of their interviews or depositions. And this was two years later.

It didn’t matter that the sexual battery charge was never confirmed through testimony, because the jury was shown the taped interviews of the children and the responses to the toilet paper roll demonstrations were accepted as the children having admitted to there being penetration. The defense case centered around witnesses who were at the pool that day. Many lifeguards and teachers testified that they did not witness anything unusual, and that none of the children reported being touched inappropriately. At the sentencing hearing, De Aragon’s family testified about his character and how he’d been swimming since he was very young, and loved teaching people of all ages how to swim. Both of his parents were coaches as well. The family is obviously devastated.

In November 2017 a civil suit was filed by all three families against the school, the City of Deerfield Beach, and Francisco De Aragon. A quick look at their public records revealed that one of the fathers is currently being sued for $170,000 in a lawsuit that was initiated close to the time of the accusations against De Aragon. Another father was arrested in 2018 for domestic violence and drugs. One of the mothers has a history of foreclosures. Maybe police should have investigated the families. The lawsuit could potentially yield a multi-million dollar award. Could this have been an incentive for what appears to be obvious false allegations? Did the families conspire to put an innocent man in prison for life for money? It certainly seems possible.

As an advocate for the wrongfully convicted, I became interested in this case after Francisco’s wife, Savannah posted about it on a social media site. I read the articles, and had to learn more. She provided me with the case files, and I’ve spent many hours reading through everything. I am convinced he is innocent because it defies common sense that any abuse could have occurred unnoticed in a public pool with dozens of people around. I will do what I can to raise awareness to this case, and hopefully one day he will be cleared of these charges.

You can listen to an exclusive jailhouse interview by WFORTV that occurred shortly after the conviction. De Aragon has appealed his conviction, but things seem to be moving rather slowly. I will post updates on this site.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jason Young Case: Silence can be used against you

Is it really true that one should never talk to police? While many wish to speak to police to “clear” themselves of suspicion, a lot can go wrong, so most attorneys advise their clients to remain silent. Exonerations certainly highlight the need for vigilance to avoid becoming wrongly convicted. We now know that many wrongful convictions are the result of law enforcement’s inaccurate statements from unrecorded interviews, or coerced confessions, or twisted words. There are many strong reasons to remain silent, and popular videos warn people to protect themselves. It’s a basic right that should certainly be exercised.

But, please understand that your silence can be used against you in today’s corrupted justice system. The Jason Young case illustrates this. A mistake on the part of Young’s attorneys resulted in the jury being told that he had ignored two civil complaints launched against him during the course of a murder investigation. Responding would have forced him to waive his 5th amendment right. At the advice of his attorney, he ignored the complaints because he was under investigation for the murder of his wife. Please read here to understand how these legal maneuvers pushed him into a corner. He continues to pay for his choice to remain silent, as he lost his recent bid for a new trial.

History

November 3, 2006 — Michelle Young found murdered in her home

2008 — Michelle’s family filed wrongful death suit, child custody suit against Young. Young did not respond.

December 15, 2009 — Jason Young arrested for the murder of Michelle Young

June 2011 — Trial — Mistrial declared — Jurors voted 8: not guilty, 4: guilty

March 2012 — Trial 2 — State introduced inadmissible evidence per NC statute 1-149 — Guilty verdict

April 1, 2014 — NC Court of Appeals grants Young a new trial citing that Judge Stephens abused his discretion by allowing the civil suit testimony.

August 21, 2015 — NC Supreme Court reverses CoA decision citing that his attorneys failed to preserve his grounds for appeal based on statute 1-149, as they never cited it in court.

June 15, 2017 — MAR hearing for ineffective assistance of counsel for attorneys’ failure to research inclusion of civil case, failure to properly object to its inclusion.

August 29, 2017 — Judge Ridgeway’s decision denying Young a new trial.

There is a lot to the case, but understand that there was no evidence connecting Young to the murder. There was a lot of unsupported circumstantial evidence, (much of which has been completely refuted on this blog site and in my book) and the state’s weak case resulted in an 8-4 vote for acquittal and a mistrial.

The prosecution used unlawful tactics to ensure a conviction in trial two. First, they asserted that Young’s silence was proof of his guilt — that surely he would have responded to the civil complaints if he was innocent. They stated that he had much to lose — custody of his daughter and four-million dollars in life insurance by maintaining his silence. But remember that he was following the advice of his attorney to refrain from talking during an ongoing investigation. Young hoped that police would solve the crime and absolve him of any involvement, and he could then regain custody of his child. He was using common sense and refusing to answer questions, as was his right.

Secondly, the prosecution elicited severely prejudicial testimony from a witness who stated that Judge Stephens (the very judge presiding over the murder trial) had declared Jason Young the slayer in a default judgment after he failed to respond to the wrongful death lawsuit.

Everyone knows that a jury is never to consider silence of the accused as proof of guilt, but the prosecution presented it, the judge allowed it, and the defense failed to properly object to it. Opinions of the judge about the case are also prohibited, yet the jury heard that the judge believed he was guilty of murder in the wrongful death suit.

 

As a result, Young was convicted . . . and is now immersed in a lengthy appeal process to undo the injustice.

The subject of the appeal has been based on a long standing statute that forbids the use of civil case information to assert the truth of the matter presented — to prove that he’s guilty of the murder.

No pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it.

The reason it’s forbidden is because the threshold of proof in a civil case is low. Jason’s trial attorneys failed to cite statute 1-149 in their objection to the prejudicial civil testimony. It was a big mistake that they readily admit. The North Carolina Court of Appeals overturned the conviction citing that the judge abused his discretion by allowing the testimony. Unfortunately, the NC Supreme Court later reversed the decision, stating that the trial attorneys failed to properly preserve Young’s right to appeal since they never cited the statute in their objection. Note: If your attorney messes up, you will be the one to suffer the consequences. How many average citizens would know anything about a statute? Most people simply trust that their attorney has it covered. Chances are they don’t.

The Supreme Court sent the remainder of Young’s appeal issues back to the Superior court. In June, Judge Ridgeway heard arguments based on the same subject, but this time it was about Young’s claim of ineffective assistance of counsel, and now, there’s a loophole that’s being manipulated. There are permissible exceptions to 1-149 which allow portions of civil case records, as long as it’s not used to assert the truth of the matter.

One of the exceptions is impeachment. If for example the accused makes one statement at a civil trial and a contradictory statement at a criminal trial, it is permissible to point out that inconsistency. This would be a permitted exception to 1-149. However, in the Young case, the prosecution never cited that they were presenting the civil testimony to impeach Young. And in fact, they are not able to claim they are using it for impeachment purposes because Young did not testify at the second trial.

So, what was their reason? At the Court of Appeals hearing, the government claimed they brought in the civil testimony because Young testified at his first trial and described specific details about his alibi. They have no way to prove he was being dishonest. They hated that he remained silent all that time . . . that he ignored the civil suits . . . that he waited until he had all the state’s evidence before speaking. But that’s his absolute right to do so. SO, they claim they used the civil testimony to illustrate that “See! If all he had to do was explain those minute details about his alibi, he had NO reason to remain silent by ignoring the civil complaints. His silence must be an indication of guilt!” There is no legal exemption of Statute 1-149 that permits such testimony.

Further, the testimony about the trial judge’s opinion of Young’s guilt in the civil matter IS clearly offered to assert the truth of the accusation. How could it be anything but that?

In my opinion, Judge Ridgeway was wrong in his opinion. He stated ” The admission of the civil pleadings was consistent with the Supreme Court’s explanation of N.C. General Statute 1-149 — the civil pleadings and evidence relating thereto was probative for impeachment purposes of defendant’s testimony at his first trial, to discredit his alibi, and to raise questions concerning defendant’s conduct in the several years following the murder.” Again, they can’t use ones silence as impeachment.

The case will now go back to the North Carolina Court of Appeal. I am hopeful they will find that the ineffective counsel claim is valid, and it’s so disturbing that all of this could have been avoided if public officials would behave in an ethical manner, instead of breaking the rules to “win.”

 

Inconsistencies with “discovery” of bones in burn pit – Steven Avery case

After watching Making a Murderer as a wrongful conviction advocate, I felt compelled to research the case further. I was pleased when the transcripts and reports became publicly available. I’ve focused most of my attention on the credibility of the bonfire story and the discovery, handling, and reporting of the bone evidence. I did so because I found it so difficult to believe that a body was burned in the location alleged — the burn pit behind Steven Avery’s trailer. The photos do not support the claim. My disbelief has been confirmed in my mind by a combination of evolved witness statements and inconsistencies.

It was shocking that no one bothered to document the presence of this very important evidence allegedly found on the Avery property. (The word allegedly wouldn’t need to be stated if they had simply done their job, and photographed and filmed it.) Not a single photo of a bone on site exists, despite the fact that the state crime lab sent photographers to the property. Yet everyone, including the defense team, seemed to accept the word of the investigators, despite the lack of documentation. I will highlight inconsistencies observed as I reviewed the statements and testimony from those involved in the discovery of the bones in the burn pit.

Sergeant Jost, of the Manitowoc Sheriff’s Office was the first to discover the bones in and near the burn pit. This discovery was a huge break in the case, in fact Jost’s report describes the light bulb moment when he realized the burn pit behind Steven Avery’s trailer had been overlooked. His report will be highlighted, but first let’s examine the bonfire story.

Was there a bonfire on 10/31/05?

In an earlier blog article, I highlighted the fact that none of the many initial witnesses interviewed recalled a bonfire that night, but the statements evolved in subsequent interviews. This is one of the clearest examples of an organized effort to coerce the witnesses to offer statements consistent with the official story — that bones were found in the burn pit. Investigators needed the bonfire for their story to work. In later interviews, witnesses changed their statements to reflect observation of a fire in the burn pit, and the fire grew in size on third and fourth interviews. Ultimately everyone accepted that there was a bonfire that night. In fact, in Brendan Dassey’s first interrogation interview, the police told him there was a bonfire that night. It had become a “fact” by then. Please read more about the evolution of statements in this detailed summary here.

This is really important, because the absence of a bonfire that night changes everything. It goes a long way toward refuting the claim that Halbach’s body was burned behind Avery’s trailer, and the lie becomes circumstantial evidence that the discovery of remains on the property was manufactured evidence, just like the key. Many like to claim that the bones were planted, but I go one step further and suggest that they didn’t even need to be planted. Maybe they were never there at all. There is no proof. Someone simply supplied Dr. Eisenberg with a box of bones from who knows where. Done. There is a reason that courts require documentation of evidence and chain of custody. It is too easy for fraud to occur, but no one objected to the inclusion of the evidence, so all of the bonfire/bones testimonies were in.

Here are portions of Jost’s narrative from November 8, 2005:

“>11/08/05@ 1247 Hrs .: I, Sgt. Jost, drove Unit 70 down to that property. I allowed Officer Joanne Mignon to take a break. Officer Mignon gave me the log sheet, and she then drove Unit 70 back to the command post area. While I was waiting for B&M WASTE REMOVAL to return from Green Bay,I walked toward the south encl of the property, still keeping watch on the septic tank. While at the SW corner of the property, I noted the burn pit area which was located to the south of the garage for STEVEN AVERY’S residence.

While I was standing near the SW corner of the STEVEN AVERY property, I noted several items lying within close proximity to the burn pile. The items were as follows:

  • There were numerous rings of wire lying in and around the area of the burn pile. I recognized these as steel beltings from inside tires.
  • There was a tire which had not been burned. This was on the SE corner of the burn pit area.
  • There was a rubber mallet which was on the grass, SE of the pile.
  • There was a metal hammer, believed to be a claw hammer, lying on the ground, NE of the pile.
  • There was a gravel shovel which was tipped upside-down, located on the west side of the pile.
  • There was a burned/charred metal scraper with a wooden handle attached which was laying NE of the pile, on the grass area.

Earlier, when I had been in the command post area, I remembered someone mentioning that JOSHUA RANDANDT had checked on his hunting trailers on Monday evening. He saw there was a large fire burning near STEVEN AVERY’S property. The fire was described as being “larger than usual.”

Let’s examine Josh Radandt’s statements to police.

This information was included in Avery’s recent motion.

Similar to other witnesses, Radandt’s statements evolved. Initially there was only mention of a burn barrel fire, but investigators likely coerced him to modify his statements in a subsequent interview to “open burn pit, large fire.”

Update: Radandt signed a new affidavit in February, 2017 that describes the coercion. If it happened to him, and we know Brendan Dassey was coerced, why stop there? It’s likely ALL the witnesses were coerced about the bonfire.

It is interesting that Jost became suspicious that a body may have been burned in the burn pit based only on a described burn barrel fire. But statements would confirm that Jost’s intuition was right (absent documentation of the findings).

Jost’s statement, continued

I, Sgt. Jost, started to piece all of this information together. I felt this area, if not already looked at, should be checked for any type of evidence. When Officer Mignon returned, I spoke with her about my feelings of the burn pile. She stated she also felt that something was unusual with that area. Upon returning to the command post, I made contact with CASO Lt. Sippel. I explained to him that I felt the burn pit area specifically should be checked further. He responded to the property with me. Without disturbing the area, we walked close to the burn pit to take a further look. I mentioned to
him that due to the aggressiveness of the dog, it was very possible that the other K9 handlers may not have walked their dogs this close to the area. This also may have hindered officers from specifically going to this location.

As we were looking at the ashes lying in the area, it was evident that someone used some type of front end loader to remove ground from this particular location. The ashes were inside this area. As we looked at the ash pile, we observed that there was a bone lying near the south side of the pile, on the east side. Without disturbing the bone, I looked at it as closely as I could. It appeared as though it may have been a vertebrae bone. I could see another bone in the pile. At this time, we decided that someone from the Crime Lab or DCI needed to further investigate the area.

I, Sgt. Jost, remained at the burn pit area. A short time later, I believe it was TOM STURTEVANT from DCI who walked over to the burn pit with one of his female partners. Utilizing a small twig that was present, TOM moved the bone mentioned above. Without touching it, it still appeared to be some type of vertebrae bone. He moved some of the steel belting wires which were located on the east side of the burn pile and found there appeared to be several other items which appeared to be burns. One piece appeared to be in the shape of a part of a skull.

Based on this information, I returned to the command post to speak with the Crime Lab. Members of the Crime Lab responded to the scene. Using their sifting equipment, they sifted through the majority of the burn pile. They located numerous bones and teeth which were present among the ashes. These items were later given to the CASO for processing. No further details to add.

To summarize — Jost thought the burn pit seemed important, he discussed it with Sippel, the two of them walked over to the pit, discovered what appeared to be a vertebrae, Agent Sturdivant showed up, Jost went back to the command center to inform the crime lab of their findings.

Next, let’s look at Sippel’s report.

Lieutenant Sippel of the Calumet Sheriff’s office accompanied Jost to the fire pit. Here is his account of the discovery of bones.

It’s already obvious that their stories are inconsistent. In Sippel’s version, he went to the command post to inform them about the possible bones they’d discovered; Jost remained at the burn pit with Sturdivant.

Finally, let’s look at Sturdivant’s account. Keep in mind that neither Jost or Sippel testified at any of the preliminary hearings or the Avery and Dassey trials, therefore, these inconsistencies would not be brought to light.

Special Agent Sturdivant

Interestingly, Sturdivant describes how he was assigned to look at items of interest, but how was he assigned to look at Jost’s discovery of the bones, when both Jost and Sippel had just discovered them when Sturdivant walked up?

Sturdivant describes a red flag near the bone Jost had discovered. Interestingly, Jost never mentioned placing a red flag to mark the item. Maybe the inconsistent story is the red flag.

Sturdivant claims to have been the one to contact the crime lab unit, and John Ertl testified that he received a call from Sturdivant requesting the sifting equipment. If true, it means that Sippel and Jost did not notify the crime lab of their discovery as they described in their reports. These inconsistencies may seem inconsequential, but it is circumstantial evidence of deception and possible fabricated evidence. This aspect of the investigation should have been memorable to all involved, so why do their stories differ? How was Sturdivant summoned to the location?  Why weren’t Jost and Sippel called to testify?

Is it possible this “discovery” was made up? It’s interesting to note that Sippel described seeing the bones on top of crusted ash. This is circumstantial evidence that they were placed there OR there is also the possibility that the investigators were dishonest, and that no bones were actually found at all. That is the reason documentation is so important. The issues with the bones does not stop here. Please read more about the bone evidence here and here. Thus far, nothing about this case holds up to even a minimum amount of scrutiny.

 

 

 

 

Is Scott Peterson Innocent?

Snapped is going to be airing a new program about the Peterson case. An article in People magazine indicates that they interviewed people who are convinced that he is innocent.

I’ve been following the Justice for Scott Peterson blog for several years, and also believe that Peterson is likely innocent. Like other wife murder cases I’ve covered, the media sensationalized this one, especially with the Amber Frey affair. That makes it easy for prosecutors to win convictions. If you have time and are interested in this case, I definitely recommend that you spend some time reading the many well researched articles on the blog.

It will be interesting to see if the program generates enough interest to get the case reopened. I believe it deserves another look.

Snapped Revisits Scott Peterson’s Murder Trial and Conviction: ‘There’s No Way That Scott Killed Her’

Posted on April 12, 2017 at 10:00am EDT

Did Scott Peterson — the man convicted of murdering his pregnant wife, Laci, and their unborn son, Conner, in 2002, before tossing both of their bodies into the San Francisco Bay — get a fair trial?

That’s the question Oxygen’s Snapped will pose when it returns for its 20th season on May 7.

Peterson was convicted of murder in 2004. He was sentenced to die the following March and remains on death row in California. (He appealed in 2012, effectively forestalling his execution for years, though prosecutors have challenged that.)

PEOPLE is debuting an exclusive teaser from the Snapped two-part special, which the network says will “analyze critical evidence” that “was never presented to the jury.”

The season premiere will also “bring forth a different perspective that could lead to a new trial and review Peterson’s twisted web of lies which led to the ultimate demise of his family,” Oxygen says. Continue reading

The Unimaginable, Infamous Case of Pam Hupp

I’m sharing this outstanding article which was recently published in St. Louis Magazine by Jeannette Cooperman.

As a wrongful conviction advocate, I followed the Russ Faria case closely. Faria was wrongly convicted and ultimately exonerated for the murder of his wife, Betsy. I wrote an article about the case during the second trial, comparing it to the Brad Cooper case in the way that the court dealt with digital evidence.

Before I share the article, I will preface it by pointing out that police and prosecutors often manufacture cases against people when they don’t have evidence, yet feel pressured to “solve” the case. It happens more often than people realize and through the use of “experts” it has become easy to fool jurors into believing the person must be guilty. They are also rather good at convincing jurors that they can vote guilty simply because the accused “could have” committed the crime. Never mind that there is no evidence linking them to it.

So, in the Russ Faria case, prosecutors did just that — they manufactured a case against an innocent man — Russ Faria, and instead of investigating the woman who was with the victim near the time of the murder, they kept all focus on Faria. Normally, they get away with this type of thing. It is difficult to overturn a conviction. Many will never know how sloppy their case was. But this time, their incompetence and maliciousness was revealed. The alternate suspect in Betsy’s death — Pam Hupp was free and she committed a second murder. She killed her friend, Betsy for insurance money, and she killed Louis Gumpenberger to take the heat off herself after Russ Faria was cleared of the murder charges in an attempt to frame him a second time. This time it didn’t work, and Hupp is now facing the death penalty. Blood is on the hands of police and prosecutors who ignored the obvious alternate suspect and built a weak case against an innocent man, but it’s doubtful they will face any consequences for their role in the death of Gumpenberger. This serves as a good example of how many lives are destroyed by wrongful convictions.

The unimaginable, infamous case of Pam Hupp

A tangle of lies, greed, sex, and death—and a surprise arrest

by

January 19, 2017

4:00 AM

 

Steven Avery Case: Were the Remains Identified via Junk Science?

Everyone accepts the assertion that Teresa’s remains were found on the Avery property, but I wouldn’t be so quick to accept that conclusion. Remember that there is no evidence there were ever any bones found on the Avery property. Investigators can say what they want, but not a single photo captured this very important evidence. We are to blindly trust that they found bones where they claimed — in the burn pit and the burn barrels. It would be simple to fabricate this evidence. Agent Pevytoe even testified that the alleged bone fragments were smaller than half a pinky nail and that much of what was found was actually burnt insulation.

How were the remains identified?

The bones were so badly burned that only a single testable bone — reported to be a 2 1/2 inch section of a shin bone survived. The bone allegedly still had remaining tissue intact. How is it possible that a bone survived? The teeth were burned beyond any identification. Teeth are supposed to outlast bone when exposed to fire. Dr. Simley testified that he could crush the dental fragments with his fingers. They were consistent with cremains, not a body burned in an open fire.

Dr. Simley did not find a single tooth suitable for comparison to Teresa’s dental x-rays. He had never seen such an extensive amount of damage. He found root fragments. In fact he super-glued two sections of a root together and stated that they were “consistent” with one of Teresa’s roots. I have searched and have been unable to find a single case where remains were identified from a root. It’s likely because roots are pretty plain. They do not have unique enough identifiers to conclude that they belong to any certain person. That is likely the reason he could not make a positive identification.

Consider what a root looks like.

roots-image

This is how the roots appear on a dental x-ray

root-x-ray

How is it possible that burned-up super-glued root sections were even stated as “consistent” with Teresa’s?! Were they consistent simply because it was identified as a root? This seems like junk science. Forensic bite mark evidence has recently been discredited and this type of evidence should probably be discredited as well. Many are under the mistaken impression that Teresa’s teeth were found in the burn pit. There is NO evidence that is true!

Dr. Simley’s testimony, Brendan Dassey trial

Q: Would you tell us or describe for us the condition of – – uh, these — the 24 tooth fragments and the three bone fragments that you examined?

A. They were all burned. They were all charred. Uh, they were very brittle. Um, again, they didn’t look like normal tooth like we would normally see, and essentially, the crowns were all gone. What we were looking at was just the root structure, which was, um, part of the tooth that’s buried in the bone. There was one portion of a crown, um, but that portion was from a — cuspid or an eyetooth and was not able to be identified.

Is it possible investigators gave him a box of random cremains? I think it’s very possible, in fact likely.

Next, consider the DNA from the shin bone that miraculously survived. There were major problems with this as well. Both Dr. Eisenberg and Sherry participated in the process of identifying the remains with this same bone. Sherry tested the tissue; Eisenberg sent the bone to the FBI.

  • Sherry reported that she only obtained seven of sixteen markers in her STR DNA test because the tissue was too degraded; yet her results were accepted as a MATCH to Teresa’s DNA.

DNA pic

  • Eisenberg sent the bone to the FBI who reportedly tested “charred remains” using Mitochondrial DNA testing and reported that Teresa couldn’t be ruled out as a contributor. If they had a suitable bone for testing, why didn’t they use that for the mitochondrial DNA testing?
  • A year later the FBI received dozens more bone fragments, none of which were suitable for DNA testing.

shin-bone3

I am not convinced that the remains (from who knows where) matched Teresa Halbach. In fact, there is no chain of custody to reflect how Culhane even received the bone into her lab. Dr. Eisenberg testified that she shipped it directly to the FBI after identifying it as human remains. Sherry wouldn’t have received it before Dr. Eisenberg, as it wouldn’t have been identified as human at that point.  If there is no proof there were remains on the property (there isn’t) and there is no conclusive identification of the remains (there isn’t), how can Avery be responsible for Teresa’s death? We’re left with nothing but the car on the property and the (very questionable) blood inside. Is that enough evidence to prove a person was murdered there? Or anywhere for that matter?

It doesn’t add up. IF a shin bone survived, the teeth should have survived! It is impossible to trust any of this evidence.

Faria Case Update: Alternate Suspect Pam Hupp (never investigated) Involved in Bizarre Shooting Death

Russ and Betsy Faria
Russ and Betsy Faria

UPDATE 8/23/16 Pam Hupp has been arrested! http://fox2now.com/2016/08/23/pam-hupp-handcuffed-one-week-after-fatal-shooting-in-ofallon-home/

 

Russ Faria was wrongfully convicted for the murder of his wife, Betsy in November 2013 in Troy, Missouri. Police failed to investigate a key alternate suspect — Pam Hupp and the judge suppressed critical information that would have pointed toward Hupp’s possible involvement in the murder.

  • Hupp convinced Betsy to sign her life insurance policy over to her just days before she was murdered
  • Hupp gave conflicting stories about her last interactions with Betsy — initialing informing police that she dropped Betsy off at her home and did not go inside and later stating that she had been inside.
  • Hupp’s cell phone pinged in the area of the Faria residence at 7:27 p.m. the night Betsy was murdered, even though she told police she was home at that time.
  • Hupp didn’t pick up several phone calls from her daughter in that 7-3:30 time-frame.
  • Police failed to thoroughly investigate Hupp as a suspect, opting to go with the typical “husband is always the killer” theory.

The jury never heard any of this and they convicted Russ Faria. By the way, the jury was wrong for convicting him despite the withheld evidence. During deliberations they created scenarios to explain how Russ “could have” pulled off the murder, even though there was no evidence to support them. This was improper. They were supposed to deliberate based on information presented at trial.

The local media did a good job exposing the details that were withheld from the jury and it likely influenced the outcome of the appeal. Faria won his appeal and was acquitted in a bench trial in November, 2015. I referenced this case at the time to point out the way the computer evidence was properly handled, as opposed to the Brad Cooper case.

The Faria case was particularly outrageous because Russ Faria had an airtight alibi — He was with a group of friends at a weekly game night — nowhere near the crime scene at the time Betsy was killed. He found her dead when he arrived home later that evening and immediately called 911.

Interestingly, Hupp is back in the spotlight this week.  Police received two 911 calls around noon on the morning of Tuesday August 16. The first call was a report of a burglary. As police were en route to the home, a second 911 call reported that a man had been shot in that home — Pam Hupp’s home. Police found thirty-three year old Louis Gumpenberger dead at the scene.

Gumpenberger’s former girlfriend later informed police that she was very surprised to hear the allegations that Gumpenberger had attempted  a robbery as he had sustained a serious brain injury from a car accident in 2005 that left him unable to drive. She told police that he wouldn’t typically go anywhere alone.

Pam Hupp
Pam Hupp

There are many questions that police will need to sort out. How did Gumpenberger arrive at the house? Why did he choose that particular home? Did he know Pam Hupp? Why were there two 911 calls? Did Pam kill the man for whatever reason and report the burglary to attempt to justify it? Did she in fact shoot him before even placing the first 911 call? Her actions and likely role in Betsy Faria’s murder should cast great suspicion on her with regard to this shooting death . . . but will police remain objective? Police who actually “tipped her” that the defense was investigating her as an alternate suspect.

I will share updates to this story as it unfolds.

 

911 Call Missing From Young Phone Records

Justice For Jason Young

Jason Young was convicted in 2012 of murdering his wife, Michelle. It was a flimsy circumstantial case with no physical evidence linking him to the crime, but nonetheless he was convicted. He won his appeal in April 2014 and was granted a new trial, however the North Carolina Supreme Court reversed the decision in August 2015. The case has been sent back to the Appeals Court to review his other claims.

The 911 call was placed by Meredith Fisher just after she discovered her sister covered in blood lying on the bedroom floor. She testified that she walked over to the side table, grabbed the house phone and called for help. She also said that she used the home phone because her cell phone was in her car. That was later verified because the car became part of the crime scene. She was unable to get the phone until days…

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David Camm Trial #3 – Summary of Testimony From Each Witness

blood spatterThe following summaries were obtained from Travis Kircher’s blog.  He has been attending the trial and blogging about key testimony.  I haven’t included everything here, only brief summaries.

Prosecution Witness #1: Andrew Lee

“Get everybody out there to my house now!” Camm shouted on the recording when Lee eventually picked up. “My wife and my kids are dead!”  After the recording was played, Lee was questioned on the witness stand by the prosecution. He was asked if it was strange that Camm demanded to speak to the post command, rather than simply calling 911.  “I think the dispatcher could have handled the situation without having to transfer the call to me,” he said.

Later on cross examination by defense attorney Stacy Uliana, he would admit that, “as a trooper, you dial the numbers instinctively for post a whole lot.”

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Prosecution Witness #2: Patricia Brown

Next, jurors were read testimony by Patricia Brown, the post dispatcher who took the call (Brown is currently hospitalized and unable to give testimony in person).  Through the written word, Brown testified that she had trouble finding David Camm’s address because he had called the ISP post command instead of regular dispatchers.  “At the time, we just needed to get him help,” she said. “But we needed an address. I didn’t know his address.”  She said she lost five minutes of time before she was able to nail down a location for Camm’s Georgetown home.

Defense countered by trying to show that Camm was in emotional distress.  “Dave was very upset in the phone call, wasn’t he?” Uliana asked.  “I suppose he was upset,” Brown replied, before adding later, “there’s different types of upset.”

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Prosecution Witness #3: James Niemeyer – crime scene investigator

He told the jury that he shot video of the crime scene – and that graphic video was played for the jurors. There was no sound, but it showed the interior of the garage where the murders took place.

Under cross examination, Niemeyer told the jury that then Prosecutor Stan Faith hired blood stain pattern expert Rod Englert, who dispatched his protégé, Rob Stites, to the scene. Niemeyer said he resented Stites, but added that, “I don’t think he really hurt anything.”  “I had a problem with Mr. Stites,” he said. “I didn’t appreciate him being there.”  He said Stites came all the way from Oregon but failed to bring a kit to test blood, and later seized part of a garage door that he believed contained blood stains, despite the fact that a phenolphthalein test eliminated blood as a possibility.

Uliana then had Niemeyer recall taking a palm print approximately 1′-9″ from the top of Kim Camm’s Ford Bronco, which was found in the garage at the murder scene. That palm print was later traced to Charles Boney, who would eventually be convicted for the three murders.  “You hit a home run, didn’t you?” Uliana said.

Uliana pointed out that, contrary to procedure, the rolls of film containing pictures of the crime scene were not sent to an Indiana State Police lab, but instead to a commercial 24-hour film developing facility. As a result, she said the “identifiers” – the tags used to mark each picture with the time, date and location it was taken – were lost.

Uliana then challenged Niemeyer’s ability to keep an open mind about the investigation. She took him back to when he first arrived at the crime scene and was standing outside the garage.

“And you made the determination at this point that this was a David Camm crime scene,” she said.  “That is incorrect.”  He was then presented with a statement from a prior proceeding in which he said he knew, “this was David Camm’s crime.”  “And you thought it even before you went inside David Camm’s home,” Uliana said. Before he took pictures, or videos, or fingerprints.

“That’s correct,” Niemeyer replied. Later, when questioned by Special Prosecutor Stan Levco, he would explain himself: “When I walked up and looked through the garage door, things went through my mind,” he added. He said he didn’t think the suspect was a burglar.

“Does a burglar shoot a woman and two children?” he asked. “You’ve got two exits.”  He added that he believed Kim’s attacker was known to her, because if it was a complete stranger, “all she would have to do was put the vehicle in reverse and blow it.”  “She knew him and she wasn’t afraid of him,” he said. “I was convinced David was involved.”  Uliana would later mock these hunches as, “great theories that you came up with in five minutes” and point out that people do get shot during robberies.

Juror’s questions:
1) What was the caliber of the shell casings found at the scene? (.380)

2) Was it possible that what had been reported as a mixture of blood and serum found streaming from Kim Camm’s head could be something else, such as blood and urine? (Niemeyer wasn’t able to answer.)

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Prosecution Witness #4: James Bube

The prosecutors presented the jury with 2D renderings of a 3D image Bube created of the interior of the Camm’s garage and home. He also created a diagram of the murder scene, showing the bodies of Kim and Brad Camm on the ground outside the Bronco.

Upon cross examination, Uliana pointed out that the shooting happened in the garage, “but you still took the time to document the inside of the house – and to do it right.” Bube agreed.

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Prosecution Witness #5: Charlie McDaniel

Charlie McDaniel is a 26-year veteran of the Indiana State Police, who serves in the area of crime scene investigation. He told the court that he supervised the transportation of the Kim Camm’s Ford Bronco here to Lebanon, Ind. specifically for this trial.  Special Prosecutor Stan Levco asked him if the front passenger side seat was working in the sense that it could be pushed forward and back.  McDaniel said that, “sometimes I could get it to work. Most of the time I could not.”

Levco then submitted into evidence numerous fiber samples he had taken from the carpet in various areas of the Camm home. Defense attorney Stacy Uliana pointed out that those fibers had been collected in 2005, years after the murders, with new residents living in the home. Videos taken by McDaniel of the interior and exterior of the Georgetown Community Church gym were also submitted into evidence. In prior trials, 10 witnesses testified that they were playing basketball with David Camm at the gym during the time of the murders. “Did you count the number of exits there are from the building?” Levco asked.   “There are nine exterior exits,” McDaniel said.

“Were you ordered to take carpet samples from any other house?” she asked.  “No I was not,” he replied. Upon questioning, he told her he was never asked to take carpet samples from Charles Boney’s house.

He was also questioned about whether he had requested any surveillance video from a golf course that was nearby the Georgetown Community Church gym. He testified that he had not, and was not aware that there were any surveillance cameras at the golf course.

Juror’s questions –

Were there time locks on the gym doors – he wasn’t aware of any.

Were there cameras on the outside of the gym – he didn’t recall.

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Prosecution Witness #6: John Galloway (neighbor)

He said that on the night of the murders, he and his wife were driving to dinner when they passed Camm at an intersection at roughly 5 p.m.

He also testified that at 7:30 that evening, he was back home watching Jeopardy, when he believed he saw Kim Camm’s vehicle pull onto Lockhart Road to go home.

Juror’s questions –

Asked if he had seen David Camm’s vehicle pull onto the street shortly before Kim Camm’s vehicle did. He said he did not, but he may have missed it.

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Prosecution Witness #7: Brandon W. Beaven (neighbor)

“Were you at school that day?” Meyer asked. “I did not go to school that day,” Beaven replied, to some laughter. He explained that his car wasn’t working, and he convinced his mom into letting him stay home from school to work on it. He said he spent most of the day on his back tucked under the rear fender, until roughly 4:30 or 5:00 p.m., and saw several cars go by.

There was one vehicle that stood out that I did not recognize,” at 1 p.m. or 1:30 p.m., he said. He described it as a “dark colored Cadillac” that didn’t have Indiana license plates. He said when it past him the first time, it was driving normally, but when it came back, driving in the opposite direction, it was traveling “at a high rate of speed.”

He said there may have been a passenger in the vehicle the second time it passed by, but he wasn’t sure.

Kammen showed him a photograph that police presented him with in 2005 – a photograph of a maroon colored Cadillac with gold trim on the wheels. When asked whether it was the same car he saw on the afternoon of Sept. 28, 2000, Beaven said that it was similar.
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Prosecution Witness #8: Deborah Aven – Kim Camm acquaintance

Aven was at swim lessons with her kids, talked to Kim.  She said she left around 7:15 p.m.

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Prosecution Witness #9: Rob Steier – Schwann’s driver

Steier testified that on Sept. 28, 2000, he showed up at the Camm residence to take delivery orders. He arrived at approximately 6:35 p.m. and David Camm answered the door.  “As best as I can remember, he was wearing gym shorts,” Steier said.  Steier testified that Camm told him he was going to play basketball at “an underground church” at 7 p.m. He also testified that Camm offered up this information spontaneously, and not in response to any question.

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Prosecution Witness #10: Mark Slaughter – detective with Floyd County police

Slaughter said during the investigation that night, Detective Gary Gilbert gave him the responsibility of transporting David Camm to the Indiana State Police Sellersburg Post – roughly 15 miles from Camm’s home – for questioning.  “Did you notice anything unusual about Mr. Camm?” Special Prosecutor Steve Levco asked.  Slaughter said “he was visibly upset.”  “I did notice a spot on his shoe,” he added. “It was a dark colored spot on his right shoe…it could have been a blood stain.”

Prosecution Witness #11 – Lynn Scamahorn – former DNA analyst for ISP

  • DNA and blood from Kim and 7-year-old Brad Camm were found on a sweatshirt worn by Charles Boney, as well as DNA from Boney’s ex-girlfriend Mala Mattingly.
  • DNA and blood from 5-year-old Jill and Brad were found on a t-shirt worn by David Camm on the night of the murders. No DNA from Kim Camm was found on that shirt.
  • Kim’s DNA and blood were found on one of David Camm’s shoes and on a sock.
  • Camm’s DNA was found in sperm in Kim’s underwear.
  • fingernail was found in the right front floorboard of the Ford Bronco
  • Tests showed that the fingernail did not belong to David, Brad or Jill Camm, and was consistent with the DNA of Kim Camm.
  • In Area 40 and Area 23 of the t-shirt – located on the back of the t-shirt, near the right-hand side – Scamahorn found DNA consistent with Jill Camm. In total she found Jill’s blood in four areas of the t-shirt
  • Bradley Camm’s blood found in 4-5 areas of Camm’s t-shirt, specifically on the chest area
  • No blood was found on the gym shorts Camm was wearing that night
  • Scamahorn did two rounds of DNA testing on the sweatshirt. The first round took place in Sept. 2001, and she found unidentified female DNA on the sweatshirt, near the hem of the shirt as well as near the upper left shoulder.  That DNA would later be traced to Mala Singh Mattingly.
  • Bradley’s DNA was discovered on the shirt
  • Kim’s was found on the left sleeve of Boney’s shirt.
  • Charles Boney’s DNA was discovered on the sweatshirt, near the collar.
  • David Camm’s DNA not on the sweatshirt.

Juror’s questions:

Was this a typical DNA investigation?  “I would say it’s typical of a murder case with a lot of evidence. This is a very large case.”

Was the fingernail found in the right front floorboard of the Bronco consistent with being torn, or clipped? “That’s not something I can make a judgment call on,”

Was DNA from either Charles Boney or his girlfriend, Mala Singh Mattingly, found on the fingernail clippings from Kim Camm?  “No to both of those.”

Why was the DNA on the collar of the sweatshirt – DNA that was eventually traced to Charles Boney – not run through the FBI Combined DNA Index System (CODIS) until after David Camm’s first trial. Scamahorn: said she was unaware of DNA on the collar, and that she never tested the collar in 2001 because there was writing on it (the word “Backbone”) and she didn’t want to destroy the writing.

Uliana pointed out that, had then-Prosecutor Stan Faith shown her the DNA, she would have tested it – and found Boney years earlier.

Scamahorn was questioned outside the presence of the jury –

Uliana presented Scamahorn with a document and asked her to describe it.

“It’s a letter that I wrote regarding the first trial and the prosecutor,” she said.

Scamahorn said that the first prosecutor – Stan Faith – called her into a private meeting in his office during a break from her testimony in the first trial. He then allegedly demanded that Scamahorn testify that she found David Camm’s DNA on the mysterious gray sweatshirt that, years later, would be traced to Boney. Scamahorn said she couldn’t do this because the facts didn’t back it up.

“He was not pleasant, I would say,” Scamahorn said.

“He cursed at you?” Uliana asked.

“Yes.”

“And he wanted you to say things that you felt were beyond science?” Uliana asked.

“Yes,” Scamahorn said, adding, “he was very much not happy with me.”

Scamahorn said Faith threatened to contact her superiors and that it was “definitely implied” that her job was being threatened. She also said Faith threatened to charge her with obstruction of justice if she didn’t testify to what he wanted.

Uliana asked if she thought Faith was trying to wrongfully influence her to testify to facts that were beyond science.

“Possibly. Possibly. Yeah.”

“He did threaten your job,” Uliana said.

“That is true.”

“And he did threaten to charge you with a felony,” Uliana added.

“That is true,” Scamahorn replied.

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Prosecution witness #12: Shelly Romero (Former K-9 Handler for Indiana State Police)

She then saw David Camm at the scene and hugged him.  “He said, ‘Somebody’s killed my f—ing family!'” Romero testified. “When I first arrived, he was real quiet, kind of withdrawn, like he didn’t want to be there,” she said.

She said he also brought up the moment he gave CPR to his son Brad, after finding his body in the Bronco. “He said that blood was just coming out of Bradley’s mouth, and he didn’t know whether to savor it or spit it out.”

Then, Romero said, his thoughts turned to himself. “At one point, he asked, ‘Who would be interested in me?'” Romero said. She said Camm was concerned that a man whose wife and kids had been murdered would not be datable. Camm would eventually be arrested, but Romero said he wouldn’t be the only person under suspicion. She said about a week after he was arrested, the police executed a search warrant at her home, and she spent the next year submitting blood and DNA samples for tests.

Kammen questioned her about her opinion of Camm’s arrest. “You questioned the quality of the investigation,” Kammen said. “You thought things moved a little quickly.”  “Yes,” she replied, adding that she became a “black sheep” in the department for questioning the investigation. She said she was suspended a few days after going to the funeral. The reason, according to Romero? She claims she was punished for making a modification to her K-9’s cage.  “You felt like they were making an example of you?” Kammen asked. “Yes sir.”

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Prosecution Witness #13 Janice Renn (Kim Camm’s mother)

Meyer asked her to call the events of Sept. 28, 2000 – the day of the murders.  Renn said it was the last day she saw Kim, Brad and Jill alive. “I picked up Brad to take him to get his allergy shot,” Renn said, adding that Kim was going to pick Jill up from dance class. “He [Brad] was hungry, as always, so I gave him a snack,” Renn said. She said he did his homework, and then “he watched some TV.”

At about 5:40, Renn said Kim showed up with Jill, to pick Brad up. Renn said Jill was hungry, so she made her a bag of cookies, while Kim munched on crackers.

Camm’s defense team had no questions for Renn.

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Prosecution witness: James Biddle (Retired Lieutenant for Indiana State Police)

He later discovered that Camm and his uncle, Sam Lockhart, had arrived at the home and wanted to go inside to get some property.  Biddle said Camm was told that the home was still a crime scene.

“He said something to the effect of, ‘Jim, we just want to get into the house to get those things,'” Biddle recalled.  Biddle refused to let him in. That’s when, he said, Camm “chest bumped” him.  Prosecutors asked if it was an accident.  “No sir, it was not an accident,” Biddle said.

The prosecution also played the audio of the phone call between David and Biddle.  There was nothing incriminating there, but here is the link to Kircher’s blog if you want to read the highlights.

Cross:  Kammen questioned the role of Sean Clemons, the lead investigator of the case. Kammen asked if Biddle kept Clemons as lead investigator, because he had a “good relationship” with Stan Faith, who was then the Floyd County Prosecutor. Biddle replied that “that’s part” of the reason, but when asked if the investigation deferred to the wishes of Faith throughout the case, he replied, “that’s not true.”

Kammen then asked Biddle about “the infamous gray sweatshirt that was found at the scene” – the sweatshirt that bore the name “Backbone” in the collar and, years later, was tied to Charles Boney, Camm’s alleged accomplice in the murders. Biddle said Camm’s family was told about the sweatshirt but, “I don’t recall if they were given the name.” He also testified that no one ran the nickname “Backbone” through a database of nicknames maintained by the Department of Corrections.

Biddle said, Stites identified what he believed to behigh velocity impact spatter” on Camm’s t-shirt. (High velocity impact spatter is a technical term. Experts say it consists of microscopic blood droplets that only appear when a person is standing less than four feet away from a victim when they are shot by a gun.) It was discovery that led to Camm’s arrest, according to Biddle. “The prosecutor made the decision to arrest Camm, is that true?” Kammen asked. Biddle said that it was.

Biddle lied to Dave during their phone conversation: “Yes, I was lying,” Biddle admitted, referring to the fact that he knew Camm was about to be arrested the whole time. Was he lying all throughout the call? “Several times during that conversation, yes,” Biddle said.

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Prosecution Witness: Frank Loop – Member of the Floyd County Sheriff’s Department

Loop testified briefly about a conversation he allegedly had around April or May of 2000, months before the murders. Loop said Camm told him he had a .380, but he wanted to get his money together to purchase a Beretta.

Kammen rose to cross examine Loop. He noted that Loop, like Stan Faith, had “also been involved in politics.” “I’m currently the elected township trustee,” Loop said. Kammen also pointed out that Loop ran for sheriff in 2005, and in 1999, was on the town board. “By December [2000], you heard through the law enforcement grapevine that a .380 might have been used in the murders,” Kammen said. “That is true,” Loop replied.

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Prosecution Witness: Susan Block (Semonin Realtors Broker – New Albany, Indiana)

She testified about a phone call she allegedly received from David Camm the day before the murders about a listing at 1010 Woodfield Drive in New Albany. She said the 4-bedroom, 3.5-bathroom single residence home was listed for $189,900.  “Basically, he was just asking about the property, so I gave him the information on it,” she said. She said she never got any indication that Camm had discussed it with his wife Kim.

Upon cross examination, she said Camm told her he would possibly look at the home that upcoming weekend, and that he’d discussed with her that the home was five minutes from Graceland Schools. She said he was hoping to move his children closer to the school, and there were several families in the neighborhood.

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Prosecution Witness: Robert M. Neal Indiana State Police Trooper

Robert M. Neal, an Indiana State Police trooper had previously served as a crime scene investigator.  He testified that in Sept. 2000, he was a detective squad leader in the Sellersburg district and he knew David Camm. He said he was called at home on Sept. 28, 2000 after the bodies of Kim, Brad and Jill were discovered. He then drove to the scene.  Neal said the decision was made that Camm should be taken to the Indiana State Police Sellersburg post to be interviewed – not because he was a suspect, but for the purpose of tracking down leads. They arrived at the ISP post shortly after midnight, Neal said, and an audio recording of the interview was made. That audio – with some redactions – was played for the jury. Partial transcript can be found here.

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The wrongful conviction of David Camm

David Camm is currently in prison awaiting a 3rd trial for the murder of his wife and two children. What he has been subjected to throughout the investigation and trials is simply incredible and has been an enormous injustice.

In September, 2000 David arrived home from a basketball game, pulled into the driveway and noticed the garage door was open.  When he entered the garage he found his family had been shot to death in the garage. Three days later he was arrested for the murders.  Despite having a solid alibi and no evidence linking him to the murders, he was tried and convicted twice largely due to prosecutorial misconduct, junk science, inadmissible evidence presented and character assassination.

Both convictions were overturned on appeal, due to the judge’s rulings that inadmissible evidence was presented.  Yet the overzealous prosecutor continues to pursue a conviction against him. And the inadmissible evidence caused the prosecutor to have to find a new “motive” for the murders in the second trial. I suppose this time they will have to come up with a third motive.

The first trial occurred in early 2002. The evidence presented:

  • Life Insurance – Prosecutor Orth told the jury that Camm took out $500,000 worth of insurance policies on his wife and two children, one policy only two months before the murders. Defense attorneys countered that only $150,000 of the policy was for Kim Camm, $250,000 was for David Camm and the rest was for the children. Kim, an accountant, was the one in charge of securing the life insurance, mostly on Dave, because he had lost his group policy when he left the Indiana State Police.
  • A 7:19PM phone call that prosecutors state Camm placed from home near the time of the shootings. During the trial the phone representative clarified that an error had been detected and the phone call was actually placed at 6:19PM (the time that Camm claimed he made the call, before leaving for the game).
  • Although 11 people saw Camm at a basketball game either playing or watching the entire time in question, prosecutors claim that he must have left the game, went home and killed his family and then returned to the game! However, during the one game that he sat out, a church elder spoke with him the entire time.  Not one person has ever wavered in their statements that he was there, that they never saw him leave, and never missed him at all.
  • Past affairs – the prosecutors made this part of the trial even though Camm wasn’t presently involved in an affair and it had no relevance whatsoever.  It was character assassination, nothing more. In fact, other former co-workers also engaged in such adulterous behavior and were a part of the same State Police Post which conducted the investigation. The first conviction would ultimately be overturned based on this.
  • Blood spatter – the blood spatter evidence seemed to contribute the most to his conviction, even though the defense expert testified that the blood found on his clothing was contact, not high velocity spatter.  It turns out that the State’s so called expert had never even handled a homicide investigation and long after the trial admitted he had fabricated his alleged expertise, education, and qualifications.  In fact, he hadn’t even attended the elementary 40 hour introductory bloodstain course which one evidence technican claimed would only make a person “dangerous” when rendering a blood stain interpretation.    He admitted he was only sent to the scene in order to take photographs and make notes.
  • Prosecutors were involved in the crime scene evidence just after the murder. A lot of the evidence was lost and nobody was ever held accountable for it, including a shower curtain in the house, away from the murder scene, which had the appearance of a blood stain and two condoms in the septic tank; the Camms never used condoms.
  • A sweatshirt was found at the scene, near the young boy.  Foreign DNA was found on the shirt but prosecutors did nothing to try to identify the origin of it and simply ignored this piece of evidence. When the defense found unknown DNA on the collar of the sweatshirt, the defense attorney asked the prosecutor to compare that DNA to the national CODIS database containing the DNA of convicted violent felons.  The prosecutor claimed there was no match when, in fact, no such search was conducted.

Despite Camm’s alibi and offsetting blood spatter “experts”, the jury returned a guilty verdict after 4 days of deliberations.  The jury had this to say:

One of the jurors who initially wasn’t convinced of Camm’s guilt.”I’m not going to say there’s not any doubt — there’s always going to be some doubt,” Kimbley said.Alcock reported that Kimbley was one of the last two jurors to vote guilty. Another juror, who didn’t wish to be identified, told Alcock that the intitial jury poll, right after they were given the case Friday, was 8-4 in favor of convicting Camm. By Sunday, the jurors stood at 10-2 in favor of convicting Camm.That’s when jurors told Judge Richard Striegel that they could not reach a decision.The jurors went on a dinner break, deliberated for several more hours, and then came back with a guilty verdict.”There was a lot of high emotions and there were times when people were very emphatic in their beliefs,” Kimbley (pictured, right) said. “The very most incriminating thing was the blood stains.”

So Camm was basically convicted due to one inexperienced person’s opinion of blood stain patterns on the shirt he was wearing that night.  But the alternative and likely explanation for the blood found on his shirt was that he got blood on his shirt through contact with his daughter’s hair when he retrieved his son from the back seat of the vehicle in order to render CPR.  His son, unlike his daughter and wife, wasn’t shot through the head. Additionally, the defense expert’s opinion makes more sense because they were 8 tiny droplets and they were not in a uniform pattern.  To shoot a person at close range, one would expect a massive amount of blood spatter to be present on the clothing.

How is anyone to believe that he left a basketball game, drove home, shot his family and then returned to the game still wearing the bloody t-shirt, but nobody at the game noticed the blood?  It doesn’t make any sense.  Certainly the statements from the 11 people who saw him that night should have superseded any “opinion” on the blood stains. To suggest that all 11 people are lying is unreasonable. These are 11 people from the community and the prosecutor somehow dismisses all of their statements AND the jury somehow is convinced to convict him.  How can that be?

In fact, the first prosecution story was the murders occurred after Camm returned home but they were forced to change that when the blood serum separation from the head wound of Kim Camm indicated the murders had to occur during the basketball games.  Thus, the players, who had told the truth during the first prosecution theory, were now liars when the prosecution changed their theory the murders occurred during the games.  In short, the basketball players all had to lie in anticipation of the prosecutor changing his story.

This conviction was overturned on appeal a little over two years later, in August ’04.  The judge stated that the affairs had no place in the trial.  The Indiana AG tried to get the conviction reinstated but the supreme court ruled against it.

In November ’04 the new prosecutor, Henderson made the decision to retry the case with “a fresh set of eyes”.  He claimed to have evidence from a jailhouse informant who stated that Camm admitted his guilt to him.  He also brought up allegations that Camm may have molested his daughter as a motive for the murders.  Of course, it didn’t matter that there was absolutely nothing to back up this claim.

The prosecutor claimed the “fresh eyes” would re-cover everything and be independent of the first investigation.  The lead detective of the “fresh eyes” was also a State Police Detective who would but work part-time on the case and never had any forensic evidence submitted for testing or matching prior to issuing his conclusion in the form of a “new” affidavit.

The “fresh eyes” detective included the same refuted allegation that a 7:19 p.m. call was made from the Camm residence; they were still using “evidence” which didn’t exist.

In preparation for a new trial, the defense team requested DNA testing on the sweatshirt that had the unknown male DNA on it.  In February, ’05 the DNA was found to match a man by the name of Charles Boney.  I’m going to copy portions of the Justice for David Camm website to describe the details about this newly identified suspect.

Three days after his sweatshirt and DNA was identified, Boney was found to be living in Louisville, less than 25 minutes from the Camm residence. At the time of the murders, he was living with his mother, who later admitted that she had sent him on errands to a nearby meat store which also happened to be owned by Kim’s sister and brother-in-law and which Kim and the kids frequented on a routine basis.

Boney was soon interviewed by the police and claimed that he had numerous people who could alibi him for the afternoon and evening of September 28, 2000. The police accepted his story even though the critical alibi witnesses weren’t interviewed and even though Boney had failed a stipulated polygraph examination as to his involvement in the murders. The polygraph examiner who administered the polygraph to Boney acknowledged that the “Fresh Eyes” investigators were both surprised and shocked at the results.

What happened next will astonish many people. At a press conference on February 28, 2005, Boney was defended by the prosecutors. They claimed that his story about giving the BACKBONE sweatshirt to the Salvation Army after his release from prison had checked out. They insisted that David Camm was still the one who was responsible for the murders of his family. As to an 11-time convicted felon who assaulted women, robbed women, kidnapped women at gunpoint and who threatened to blow their brains out, he was regarded by the prosecutors as simply having his sweatshirt show up at the crime scene through no fault of his own. Nothing was said to the public about Boney’s failed polygraph or the failure to verify his false alibi witnesses.

Deputy prosecutor Steve Owen asked this question at the same press conference, “What do you think? Mr. Boney’s going to come out of jail, go to somebody’s house in Georgetown, brutally murder three people and say, ‘Oh, I think I’ll take off my sweatshirt that I got from (the Department Of Corrections) and lay it down here by the blood (boy). Does that make sense to anybody?” Owen said it didn’t make sense to him, but it sure made sense to a lot of people that an enraged, violent person, engaged in a sexual assault of a woman, who then shot and killed her and her two children, just might leave evidence at the scene of a crime. After all, Boney had left his property and fingerprints at previous crime scenes.

The defense tried to get the prosecutors to act and filed a motion for Judge Aylsworth to authorize an arrest warrant for Boney. That failed. Boney’s identity and the fact that his sweatshirt had been linked to the crime scene (and prior to the defense being advised that his DNA had been identified) was leaked to the press, presumably by someone in the prosecutor’s office, and Boney was in the process of giving an exclusive interview to a Louisville television station.

Boney was found and then quickly interviewed by a retired FBI Agent who was working for the defense. During the videotaped interview of Boney, he was caught in numerous lies and he claimed that nothing more of his would be found at the crime scene, including other DNA or his fingerprints. In fact, he stated that if anything else of his other than his sweatshirt was found at the scene it would be obvious that he murdered the family.

Weeks after Boney was first interviewed and when the police took his finger and palm prints, the unknown palm print was finally compared to that of Boney. It was a match. It was therefore “obvious” that he was the murderer. Only the police still thought that David Camm was involved, due to the “compelling” evidence of blood spatter, according to Detective Gilbert. The prosecution and the investigators weren’t giving up on Camm being involved.

The “Fresh Eyes,” however, were compelled to arrest Boney. After his arrest and initial interview, he was allowed to be alone for several hours in order to compile a written statement. His assertions quickly changed, however, and at the end of the post-arrest interviews, the investigators told Boney that his story was a “crock of shit.”

After that first round of interviews, ISP Detective Myron Wilkerson, a distant relative of the Boney’s, found Boney’s mother and sister and, according to them, told them that they needed Boney to sign a “conspiracy note.” Boney’s sister was allowed to meet twice with her brother, including a contact visit, prior to his next interview. It was obvious that the ISP and the prosecutor needed to link Boney and Camm together and they were trying to get Boney to provide information of a “conspiracy” between he and Camm.

It took over 30 hours of interrogations and changing and contradictory stories for Boney to finally provide a story that was the stuff of fairy tales, saying that he only sold a gun to David Camm which was used in the murders. Nothing of what Boney said, including when and how he supposedly met Dave, where he obtained the gun, and other aspects of his story have ever been corroborated. Nothing of what he said could be construed as the two conspiring with one another. Boney put the murders all on Camm.

Parts of the interrogations of Boney are chilling, however. He was told by Wilkerson that he was an “opportunist” whose “best scenario is to be a witness.” He was further told that David Camm had an alibi which was “gonna be a problem.” Wilkerson told Boney that his goal was to keep Boney alive. Boney was given a stark choice. He could be a witness or face the death penalty. Incriminate Camm or die were his options. He chose the option that kept him alive. It was clear to many that the death penalty was spared in exchange for Boney incriminating Camm.

Another astounding facet to the Boney interviews is the fact that critical parts of Boney’s written statement and later his stories were first provided by the authorities. It was Wayne Kessinger, one of Henderson’s investigators, who first suggested to Boney that the gun was “dirty” or “untraceable” and that he might have had it wrapped in his sweatshirt. Boney later incorporated those two aspects with his story that after he bought the untraceable gun, he wrapped it in his sweatshirt prior to giving it to Camm.

What else did Boney claim? He said that he first met Dave in July, 2000, at a local park where they were playing full-court basketball. In addition to the ten players there were several others present as onlookers. How many witnesses were found that saw the two together? None. There were no witnesses.

Boney also claimed that he and Dave never spoke on the telephone but met in front of a convenience store immediately adjacent to Karem’s Meat Market owned by Kim’s sister. It was there that Dave spoke to him about getting a gun and later where the gun was provided. That’s smart. Meet and talk with a convicted felon and obtain a gun in a busy parking lot of a business owned by your sister-in-law where you’re well-known. As one might guess, there were no witnesses.

Boney also said that he knew that Dave was a former ISP trooper but that Dave trusted him enough, after ten minutes of conversation, to ask him to find him a gun. That contradicts Boney’s other statements to many others, including the defense investigator, that he would never trust a cop.

Dave agreed to a price of $250, but there was no discussion as to what make, model, caliber or type of gun. Boney claimed that he went to his long-time acquaintance, Larry Gerkin, who lived in Louisville, and purchased a .380. Wayne Kessinger, who spent 30 years with the Louisville Metro Police, was unsuccessful in finding Gerkin, much less identifying him. Gerkin was probably just a quick figment of Boney’s imagination. (One should ask why he would lie about the identify of the real source of the gun, however.)

After claiming that he sold Dave one gun on the afternoon of the murders, which was delivered in the same Karem’s parking lot, Boney claimed that he followed Dave to his house. For 15 or more minutes, he followed Dave home, but he couldn’t remember the vehicle that Dave was driving, thinking that it was a LeSabre. Dave, of course, drove a white pickup truck. Boney did recall, in the span only seeing Kim’s Bronco for mere moments, that her car had an FOP sticker on the license. Boney then said that he was outside the garage next to his car when Kim and the kids pulled into the driveway. He said he then heard three pops and Dave walked outside the garage and confronted him.

Incredibly, Boney also claimed that Dave then tried to kill him but that the gun jammed. Boney said Dave then ran into the house from the garage, presumably, according to Boney, to get another gun to kill him. Dave, a former SWAT member, panicked when a gun jammed and ran away was Boney’s story. Ask any law enforcement officer, or better yet, a SWAT member, how long it takes to remove a jam in a semi-automatic handgun. Mere seconds will be the answer.

Rather than fleeing the scene after Camm tried to kill him, Boney then said he followed behind Camm and walked into the garage. He said that he then tripped over Kim’s shoes and that he leaned down, picked them up and placed them neatly on top of the car. He then leaned into the vehicle and looked to see what was inside because of “curiosity.” That’s when his palm print was deposited on the door jamb, as he was looking in at Jill and Brad.

It was only then that he decided that it was time to leave. As he was driving away, however, he saw in his rear-view mirror a woman in a vehicle that looked like a state owned Crown Victoria. Boney was trying to incriminate a female trooper associate of Dave’s. She had previously been eliminated as a suspect because when the crimes had occurred, she was with friends eating a late dinner. (The new investigators suggested that she take a polygraph as to her possible involvement. She passed the polygraph.)

Boney’s story is not supported by any witnesses, any records, any documents, or any other corroboration at all. It is his unsupported story, fostered by the need to have him incriminate David Camm, which he finally provided. The story is that of a person who knew he had to incriminate David Camm in order to escape the death penalty, which he did. His stories were labeled by the police investigators as a “crock of shit” and as a “story of convenience” but they finally had him incriminating Camm.

After several interviews the police finally had Boney incriminating Camm. What happened next? Prosecutor Henderson dropped the charges against Dave which were pending in Warrick County. For a little over an hour the Camm and Lockhart families thought that justice finally had been achieved. They didn’t know that Henderson had already drafted another new probable cause affidavit, the third one, against Dave.

On March 9, 2005, David Camm was, for the third time, charged with the murder of his family. This was the prosecution’s fourth theory. Lead “Fresh Eyes” investigator Gary Gilbert swore under oath that Dave not only committed the murders but that he and Boney conspired with one another to commit murder. Boney didn’t provide any “evidence” of such a conspiracy. There were no witnesses, no documents, no records, and no connection whatsoever between the two.

Many wrongful convictions have been overturned based on new DNA evidence that was located at or near the scene of the murder but for whatever reason was never tested.  But in this case, prosecutors found a way to manipulate this suspect into implicating Camm by giving him the choice of incriminating Camm or facing the death penalty.  It is astounding.  David Camm had an airtight alibi at the time of the murder, confirmed by 11 witnesses who have never wavered in their statements. This combined with identification of the real killer, a gunman who attacked women at night, and who had a sexual fetish for shoes, by all logic should have resulted in an exoneration for Camm.

In January, 2006 Boney was tried and convicted of conspiracy to commit murder and three counts of first degree murder. The conspiracy “evidence” was based upon the deductions of one of the detectives who interviewed Boney, even though no records, documents, or witnesses were produced putting Camm and Boney together at any time.  The only one who claimed that the two knew one another was Boney and his stories changed each time he was interviewed.

Camm’s 2nd trial was taking place in a different town at the same time as Boney’s trial.  The jury never got to hear that Boney was convicted of the murders.  And they never got to hear the details of his past criminal actions that were entirely consistent with the attack of Kim Camm. The jury wasn’t allowed to hear any of Boney’s many changing and contradictory statements, listen, or view any of his interrogations.

Interesting testimony at this second trial came from a forensic expert for the prosecution in the first trial.  She testified that the prosecutor tried to convince her to testify that Camm’s DNA was found on the sweatshirt but she refused.

A forensic scientist was reduced to tears while recalling an encounter with the former prosecutor in the case, WLKY NewsChannel 32’s Julia Harding reported. Lynn Scamahorn took the stand and recalled a conversation with Stan Faith, who got a conviction of Camm the first time around in 2002.

Scamahorn told the jury that in 2002, Faith tried to get her to change her testimony about DNA evidence on Boney’s sweatshirt found at the crime scene. She testified that DNA was found belonging to Boney, his girlfriend — Mala Singh Mattingly — Kim Camm and Brad Camm, Harding reported.Scamahorn said Tuesday that Faith wanted her to say that David Camm’s DNA also was on the sweatshirt. She refused, and said her job was threatened when Faith told her that her refusal could be a Class D obstruction of justice.Scamahorn went on to say that Faith yelled and swore at her. When asked if it upset her at the time, Scamahorn started to cry on the stand.”Any attempt to influence her in any way to say something that’s not the complete truth is relevant, and the jury needs to hear it,” Uliana said.But when he was reached for comment Tuesday, Faith told WLKY that he didn’t swear at Scamahorn or threaten her job.

So first they continue to go after Camm, despite having successfully prosecuted Boney for the murders, and now this coercion of an expert witness becomes known. This shows how far prosecutors were willing to go to convict him.  But that’s not all. Tom Bevel (blood spatter “expert”) also testifed at Camm’s second trial that the blood on Camm’s shirt had to come from high velocity spatter and that he had to be present when the victims were shot.  This was countered by defense experts Paul Kish and Bart Epstein who asserted that the blood was transferred to his clothing by contact when he found the bodies.  Remember that prosecutors allege that Camm left the basketball game to go home and do the shootings.  Common sense tells you that he couldn’t possibly have returned to the game in bloody clothing!  Yet, there is no explanation offered about that.

Tom Bevel’s expertise is currently under scrutiny in the Horinek case and experts have shown that Bevel’s findings are incorrect. It turns out that his findings are also questionable in a number of other cases. Many believe that blood spatter evidence is junk science because it is so subjective.  It’s disturbing that so many people have been convicted soley on this, but the jury obviously believed Bevel and despite the conviction of the real murderer (Boney), David Camm was again found guilty of the murders.

The trial judge at Camm’s trial was forced to dismiss the conspiracy charge when the prosecutors failed to produce any linkage whatsoever between Camm and Boney.

During the trial, graphic photographs of all the victims were shown to the jury, including photographs of Jill’s genitalia, which had non-specific, blunt force trauma to the exterior genitalia.  It was impossible to determine the source of the injuries but the likelihood they had been present prior to the night of her death was extremely unlikely.  The day of her death, Jill had been a very athletically active little girl at school, dance class, and at her brother’s swim practice.  One of the prosecutor’s medical examiners initially claimed that such an injury would have “hurt like hell” and been impossible for Jill not to complain about.  That examiner later changed her story at trial.

(Also not told to the jury was the story from Boney’s first wife.  She told of returning home one day to find Boney slapping and hitting their one-year old son.  Boney had a history of abusing a child and admitted, according to another witness, that when he got angry he would fly into a rage and literally see white, not knowing what he was doing.)

Regardless, the prosecutor claimed, without any evidence and without any linkage between those injuries and her father, that Camm was responsible and was a molester.  The stain stuck.  When explaining their guilty verdicts, the jury foreman stated the molestation was a “key factor” in reaching their verdicts.

Again the conviction was overturned on appeal.  This time it was due to prosecutors making the unfounded accusations that Camm molested his daughter.  That was the alleged motive in trial number 2 since prosecutors were forbidden from using the affairs again.

The Indiana Supreme Court has thrown out the murder convictions of a former state trooper in the deaths of his wife and two children and ordered a new trial.

David Camm has twice been convicted for the killings, but the court in a 4-1 ruling released Friday said the judge in the retrial improperly allowed prosecutors to raise the prospect that he had molested his daughter despite not presenting evidence he had done so.

But Camm’s nightmare still wasn’t over.  The AG requested a re-hearing of the appeal:

The Indiana Supreme Court won’t reconsider its ruling that overturned the murder convictions against a former state trooper accused of killing his wife and two young children.The court voted 3-2 Monday to deny the attorney general’s request for a rehearing of David Camm’s appeal.

In 2009 prosecutors made the decision to try Camm a 3rd time.  But the prosecutor, Keith Henderson had been working on a book deal which, according to Camm’s attorneys, violated Indiana rules and ethics.

Camm attorney Stacy Uliana wants a special prosecutor appointed because Henderson struck a deal to write a book about the case.”There’s no book deal,” Henderson said. “There was, and it would be my hope in the future there will be.”

Henderson saw nothing standing in his way in pursuing a third conviction against Camm for the deaths of his wife and their two children.”Once the conviction of David Camm occurred in March of 2006, my representation ended with the state of Indiana in the Camm case,” Henderson said. He said he called off the book deal when the Indiana Supreme Court overturned Camm’s conviction in June. But Uliana contends Henderson never stopped representing the state of Indiana.

“The American Bar Association has set forth standards for prosecutors that they should follow, and they exclusively state that a book deal that a prosecutor has during a case should be scrupulously avoided, because it creates this inherent conflict between one’s interest in selling a book and the interest of society,” she said.

More recently, Camm’s attorneys have successfully argued, through the Indiana Court of Appeals, and most recently upheld by the Indiana Supreme court, that a special prosecutor be assigned.  In a compelling conclusion, the Indiana Court of Appeals ruled that Henderson had “a clear and convincing…conflict” and had “permanently compromised his ability advocate on behalf of the people of Indiana.”

Prosecutor Henderson, in addition to being off the case permanently, is also facing a Disciplinary Commission inquiry.  He’s not paying for that alleged misconduct, however, since the county taxpayers are on the hook for the $375 an hour attorney he retained.

So Camm is awaiting the 3rd trial and remains in prison at this time. Words can’t adequately describe the injustice that has occurred throughout the investigation and trials relating to this case.  It is my opinion, based on all the evidence, Boney’s conviction, Camm’s solid alibi, unreliable blood spatter evidence combined with the blatant prosecutorial and judicial misconduct that led to his first and second convictions that Camm has not been given fair trials and it’s quite evident that he is innocent.  It is beyond outrageous to subject him to another trial and for the taxpayers to bear the burden of another trial that is estimated to cost $1 million dollars, but that is what the State of Indiana is planning.  David Camm deserves to be set free now.

I will continue to follow this case and will post updates.

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