Tonya Craft Trial: Spoliation of Evidence? Part III

  Detective Deal                                                                   

      Detective Deal was the lead investigator on the Tonya Craft criminal investigation. He was assigned the case on 5/27/08, since he heads child abuse investigations. The case was handed over to Deal from Detective Keith on 5/24/08. There have been numerous questions, as well as on line accusations, regarding his investigation; as well as his missing summary, which just happened to be found during the middle of the trial.

   In the beginning, Deal had interviewed one child and felt it was a child on child situation. He testified that the first child never mentioned Tonya Craft. Detectives Deal & Kraft showed up at Craft’s home on 5/28/08. At that time, Detective Deal didn't have a search warrant to search Craft's home for pornography.

    He later testified that he didn't have probable cause to obtain the warrant. Detective Deal was soundly criticized on line, and criticism of his investigative abilities increased, since he didn't search Tonya Craft's house for pornography, considering that complaints of child sexual abuse had been lodged against Craft.

   The fact is the Fourth Amendment to the Constitution protects our rights and guards against unreasonable search and seizure. It specifically requires that there be probable cause:

    " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."¹

  The question is, was there sufficient reason, at that time, to believe there was probable cause? According to the various cases below, it doesn't appear so, especially since Detective Deal had just received the case the day before. He was just beginning his investigation and the SANE nurse hadn't even examined the children at that point. All you had at that time were complaints.

  More importantly, what was there, at that time, to directly link Tonya Craft to any child pornography on a computer? Had she shown any pornographic pictures or videos to the children? No. Had she talked about any such photos or videos to the children? No. Had she said anything of the kind to anyone else? No. Had anyone reported seeing child pornography on her computer? No, not as far as I could see from the reports of the trial.

    " In cases of child sexual molestation, the investigator should consider and evaluate (and consult with appropriate experts) whether the suspect in the individual case displays behavior consistent with that commonly displayed by preferential child molesters. . . " Child Molesters: A Behavioral Analysis For Law Enforcement Officers Investigating Cases of Child Sexual Exploitation

   It's been pointed out by fellow blogger, William Anderson, that it's well known that child molesters usually have child porn on their computers. Well, that's true - to a point. However, while studies and statistics have shown a strong link between child pornography and child sexual abuse, it should be remembered that the detectives were dealing with an accused female.

    Most child sex abusers are male and almost all pornographic material is created and/or kept by lone males not females. Please check out the following link: Child Pornography Patterns From NIBRS.

   In addition, even if you're dealing with a male sex offender, it appears, according to statutes, that that alone may not be enough to obtain a search warrant for pornography on the computer. There must be sufficient evidence and the search warrant must be specific; for example, a statement from an expert behavioral analyst showing the probable link.

  Other excellent links & statutes:

   1. North Carolina Criminal Law

  2.  See United States v. Crespo-Rios, __ F. Supp. 2d __, 2009 WL 1595463 (D. Puerto Rico June 5, 2009)

3.  See Hodson, 543 F.3d at 287; United States v. Hodson, 543 F.3d 286 (6th Cir. 2006)

4. See United States v. Falso, 544 F.3d 110, 123 (2d Cir. 2008)

6. New Jersey Computer Evidence Search & Seizure Manual

     Spoliation of Evidence?

     According to reports, during testimony, King asked Detective Deal about his interview summary. "Deal couldn't find the summary", then supposedly found it mid-way through the trial. The summary filled in the missing pieces of a child's interview with Suzie Thorne on June 3, 2008. It showed that the child came back afterwards to suddenly disclose digital penetration to Ms. Thorne and Detective Keith. The video was not turned on during the disclosure nor were any notes taken.

    During the trial Detective Deal referred to his case book regarding Keith's summary and that interview. Testimony, written up on Chattanoogan.com:

    “It was in this interview that (unnamed) disclosed that Tonya had touched her inside her clothes, wasn’t it?”

“I believe it was, would you like to look that up in my case book? I wouldn’t want to speculate.”

“We wouldn’t want you to speculate, either.”

"After finding it, he replied in the affirmative."²

  "Because Catoosa County sheriff’s detective Steve Keith handed off this case to Deal, Deal refers to Keith's interview summary and case summary."

   According to the current suit filed by Tonya Craft's attorneys, listed on Chattanoogan.com, Keith's summary was supposedly first dictated 7/08/08 and typed on 7/27/08.

    These interviews are the same day the victim said, off-camera, that Craft inserted her fingers in the victim's vagina . . . " It's interesting to note that it was over a month before Keith even dictated his note and almost 6 weeks before it was typed up. Yet, he had taken no notes?

   I would have questioned that right there. How could anyone possibly remember accurate details a month later, especially, if they didn't take any notes? My next question would be to ask how often Detective Keith waited a month to dictate his notes? Was this a common thing with all of his cases or just this once?

     "Deal testified that the proper procedure would have been to get the victim back on camera," but that didn't happen in this case. Instead, no notes were written and the video wasn't turned back on. A serious breach of protocol. I don't care how you look at it. Whether or not they were suspicious of her story they should still have followed protocol.

   I don't know how they do it in their fields but in our field we don't have the option to choose whether or not we're going to follow standard policy & procedures which are designed to protect everyone.

   Those videos taken aren't supposed to be used, or shouldn't be used, only to prove child sexual abuse. It seems to me, they could also have shown a serious lack of credibility on the part of the child, which might have aided in proving Tonya's innocence. So, I have to question, once again, as to why the video was never turned back on or notes taken at that time?

     In any case, I believe it would have been difficult to explain to the jury why there had to be two videos made. Did they feel that might undermine their case? Unfortunately, only those two know.

   Whether by paper or video, the importance of accurate, factual, timely, documentation can never be stressed enough. See what happens when people don't follow protocol?

 What is Spoliation?

   In our field, it's medical record tampering. According to Charles C Sharpe's, Medical Record Review and Analysis³, " It's wrongfully adding to, deleting, or otherwise changing information that is already contained in a medical record."

  " Any note or other document ... that has been amended and/or corrected in some way has been altered. The converse may not be the case if the intent is not to amend or clarify but to deceive and conceal." This could be applied to almost any record, whether created by the medical field, CAC, or the police department.

    All medical providers are supposed to "maintain the integrity, truth, accuracy, and reliability of the patient's medical record." Just as medical providers are supposed to maintain the integrity of the medical record, so too are all employees of the CAC, members of the MDT team, and the police department, supposed to maintain the integrity of their own records.

  To do otherwise, not only invites criticism regarding competence but also suspicion of fraud. In the medical field, all providers submit their billing to insurance companies. That includes places like hospitals, physician offices, clinics,and labs.

   If they provide any kind of medical care, and submit billing for services, they must follow state and federal regulations. When signing and submitting for billing, technically, they're verifying that the service was done correctly and that the records are complete and accurate.

   If they submit billing based upon those records, and those records are incomplete, have been tampered with, or falsified, that may constitute fraud. I know this from ten years of working in the Home Health Care field. All of our charts were audited before they were sent to Medicare. If everything didn't match up correctly, we could be accused of fraud.

    The CAC's receive grant funding just like our SANE units. If any records are incomplete or missing, are fraudulent, and the unit bills for those services, as if they're complete and correct, that may possibly constitute fraud as well.

According to the Nurse's Legal Handbook, "Evidence of tampering can cause the record to be ruled inadmissible as evidence in court."

Not maintaining the integrity of all records may seriously impair or even destroy a criminal or civil case. 

    I've included a link to the National Children's Alliance Standards for Accredited Members.

    This is an excellent site which shows the standards to which all CAC and MDT agencies and personnel are to comply with, including forensic interviewing, coordination of services, limiting the number of interviews children are subjected to, and complete, factual, accurate documentation.  

What Constitutes Tampering?

1. Removing Records 
2. Adding fraudulent records
3. Altering dates, times, or facts
4. Back-dating - adding notes at a later date but with a contemporaneous date
5. Forgery, signing another's name, writing a note in another's name
6. Altering or supplementing another's notes
7. Purposefully omitting important findings
8. Purposefully adding fictitious findings

     I have contacted Lieutenant Raymond E. Foster, LAPD (ret.), MPA and Brandon A. Perron, CCDI, Board Certified Defense Investigator, and National Director for the Criminal Defense Investigation Training Council, Director of Investigations. Both are very experienced, award winning, highly respected professionals in their fields.

     Lt. Raymond Foster, author of "Police Technology" (Prentice Hall, July 2004) and numerous articles, has a BA in Criminal Justice Management, a Masters in Public Finance and is currently finishing his doctoral studies.

    In addition to his writing, Lieutenant Foster is an adjunct faculty member at the Union Institute & University and is the founder and principal consultant of Hi Tech Criminal Justice. His consulting projects involve work with the Department of Homeland Security, several universities and non-profit agencies.

Lt. Foster:

1. I'm assuming, as of 2008, these reports were hand written at the scene? Deal testified he had written it while there. The reason I'm asking has to deal with forensic document examination for pen ink as opposed to printer ink.

[Lieutenant Raymond E. Foster, LAPD (ret.), MPA] Many of my answers are going to be very similar – it depends.  Reports are generally written away from the scene – at the station, in the car, somewhere else – they are written after the investigation, interviews, etc.  Most agencies do still handwrite – but, what was the policy at that time – did they record their reports for later transcription, did they have a report writing computer program, etc.

 2. If he wrote his report at the scene, would he have written on a plain notepad or legal pad or is there a special notebook detectives usually carry? I'm going to assume the notes were dated and timed, correct?

[Lieutenant Raymond E. Foster, LAPD (ret.), MPA] Date/time depend on training and policy – notes of an interview would likely be handwritten – Some agencies provide an official notebook which is to be kept – a field officers notebook for recording facts.  Most do not.  I presume notes would be on plain paper.

3. If he wrote on a regular notepad or legal pad, are those notepads usually kept?[Lieutenant Raymond E. Foster, LAPD (ret.), MPA]  They should be – but depends on policy of the agency.

4. Would he have likely transcribed his notes to computer when returning back to the police department?[Lieutenant Raymond E. Foster, LAPD (ret.), MPA]  Again, depends.

5. While working as an investigator for our MD Board of Physicians, I had an individual log in. Everything we did by computer was logged in, monitored and kept. Is that the same with the police department?

[Lieutenant Raymond E. Foster, LAPD (ret.), MPA] It depends on the system they use – a medium to large agency would, as a matter of course, likely record log-in times, etc.  A smaller one might just have a desk top.

6. Det. Deal testified he carried a case review book. He read from it at trial. Could that be the notebook he would have written in the day of the interview? Are those case review books reviewed by superiors prior to testifying? How about peer reviews?

[Lieutenant Raymond E. Foster, LAPD (ret.), MPA] Depends on policy, but a best practice would be for a supervisor to review the casebook – it should contain all notes, interviews, copies of reports, evidence logs, etc.  It is the working file of the case.

7. Who else in the PD should have known about and or seen that note prior to trial?[Lieutenant Raymond E. Foster, LAPD (ret.), MPA]  There is no way to know this.

8. How likely is it that a detective could insert a document into the files long after the fact without getting caught? 

[Lieutenant Raymond E. Foster, LAPD (ret.), MPA] Depends on internal oversight and the type of case book – a case book with a chronological file (best practice) would indicate when each interview, notes, evidence, analysis, etc. was completed, in chronological order – this makes slipping something in difficult.

    Question, please: for me, "tabbed" means Bates stamping. I'm used to plaintiff medical records being organized & Bates stamped, numbering each page. Could that be what Det. Deal was referring to or does that word mean something different to police?

The “tabbing” could mean quite a few things.  It certainly could be the stamp or tab used to number the documents for disclosure.  If so, I would think the defense would be able to say that they did not receive one.  However, in most criminal trials, the disclosure, relative to notes, etc, is much more simple – everything is simply photocopied and delivered.  I don’t think there is any actual accounting or stamping done.  A bates” stamp would be used if the document would an addendum to a motion, or warrant, etc.

 The term tabbing could mean a lot of things- sometimes, agencies work with a specific format – and they are required to have certain documents, in a certain order, with certain “tabs”  Like a work folder, essentially.

      Brandon Perron, author of , Uncovering Reasonable Doubt: The Component Method, was named one of the “Top Ten Private Investigation Leaders in the United States” by P.I. Magazine in 1998; is an former U.S. Air Force Criminal Defense Investigator and National Director of The Criminal Defense Investigation Training Council. In 2007, Case in  Point, of Boston, MA, and Manchester, NH, named Brandon Perron its Strategic Operations Director. Mr. Perron provides management support and training for CIP's Criminal Investigation division. Mr. Perron was kind enough to grant me permission to extensively quote his article and website.

Forensic Case Review & Analysis for Criminal Defense Investigations by Brandon Perron:

" In Criminal defense investigations a comprehensive examination of the prosecution’s evidence can reveal the flaws of inconsistencies, errors, and omissions.  An attack upon the very foundation of their case can topple the inverted pyramid supporting the theory of prosecution."

  "It is important to remember that the documents provided via the discovery process are in fact evidence and not mere reading material for informational purposes only.  The police reports and all supporting documentation are in fact the very core of the prosecution’s case.   Therefore, every report, statement, photograph, and document is “evidence” and should be treated as such."

   "A line-by-line, page-by-page, forensic examination should be conducted in order to question the veracity of the evidence.  The prosecution’s case should be examined internally.  In other words, the Case Review & Analysis must focus upon the prosecution’s case without reference to external information or evidence."

   "First, the conflicts found within their own case must be exposed in order to truly reveal the weakness that is internal to their theory. Subsequently, the investigator may compare the prosecution’s facts to that found during the course of investigation that follows."

   " The process defined hereafter, facilitates the process of identifying inconsistencies, discrepancies, errors, omissions, and leads to be pursued during the process of investigation:

  The Approach – Phase 1

1. Obtain a copy of the discovery file from defense counsel.
2. During the initial meeting, ask counsel to define their objectives.  In other words, “What questions do they want answered through the process of investigation?”  This will allow the investigator to establish a minimum standard for success.
3. Organize the discovery file.  Re; Police reports, arrest affidavits, statements, evidence lists, etc.
4. Assemble all documents to ensure reports are complete.  a)  Staple all pages of a document. b)  Arrange reports in chronological order by date of report. This will allow the investigator to review the law enforcement investigation in the order in which it was conducted and reported.
5. Prepare an Inventory Report of all documents provided via the discovery process.
6. Apply an internal tracking system by numbering each page one through the final page.  This will be used to reference information and points of interest.
7. Research the statute(s) in question and identify the elements of the crime that must be proven by the prosecution in order to gain a conviction. a. Compare the elements to the facts and allegations presented by the prosecution..." Continued

   " The Forensic Case Review & Analysis represents Component One of the Component Method of Criminal Defense Investigation.   It is the first step in an aggressive impartial and objective investigation consistent with defending the 6th Amendment’s right to a fair trial.   The pursuit of Truth and Justice demands no less."

Read more: http://pursuitmag.com/forensic-case-review-analysis-for-criminal-defense-investigations/#ixzz11hWuVpg3

Questions & Answers:

  1. In your opinion, how likely would it be for a document to just be "found" like that after defense had received everything already? I'm a forensics nurse and our exam documents are logged for chain of evidence. It would be very difficult for anyone to add something to ours. How about for the detectives?

            Answer:  Actually, it is very common.  The defense is told that they have received everything. However, the

            Confirmation comes from the prosecutor's office and not law enforcement.  The prosecution is required to turn over

            everything that they have.  The problem is that law enforcement may not have passed it along.  Missing reports,

            documents, and especially notes are turning up all the time.  The notes and reports are not considered "evidence"

            in the way that medical notes and such would be.  It is actually "work-product" in many respect.  I agree that it is

           evidence but the system's perspective is a little different in respect to the value that is assigned.

2. Have you ever had a case/suspicions similar to this?

             Answer:   All the time.  It is very common.

3.  I asked my other source about the case book. He said it's supposed to be in chronological order, with everything in it, making it difficult to stick something in it. Do you agree?

           Answer:  Yes, I agree.  However, I wouldn't agree that it would be difficult to add information or that they forget to include it in the first place. Most Detectives are very disorganized.

 

 

 Forensic Document Examination

     According to the American Board of Forensic Document Examiners ( ABFDE), " The examination of questioned documents consist of the analysis and comparison of questioned handwriting, hand printing...commercial printing, photocopies, papers, inks ... in order to establish the authenticity of contested material, as well as the detection of alterations."

       FDE's can determine whether questioned documents were all created at the same time, at a later date, or on a different machine. The Electrostatic Detection apparatus (ESDA) and the Indentation Materializer (IMED) can show latent impressions on underlying paper. Whenever we hand write something on paper, an imprint of our writing is made onto the underlying paper.

   If you have a group of papers kept in chronological order, each paper will have created latent indentations on the paper below it. An FDE will attempt to match up those impressions. This test can help determine when documents were originally written.

    Original documents typed on computers can be examined to determine the manufacturer, different fonts, typeface, impressions, etc. Paper can be identified through the manufacturer.Ink can be identified easily enough.

   Every January first, the federal government requires an ink change. This helps to determine when a certain ink was manufactured. In one case, it was determined that a medical chart, finally produced for discovery, was actually written two years after the incident.

    In the case written about above, not only was the "chart" written in a different year's ink than it should have been, but the FDE testified that the entire chart was written in the same ink. No one writes for months on end with the exact same ink pen!

   Even if the person uses the same brand of pen all the time, each individual pen can be differentiated. In other words, he said it looked like the defendant had sat down and written it all in one sitting.

  The office photocopier machine can also be examined for its "Xerox Trash." Every time the copier is used, it leaves behind minuscule scratches and marks on each sheet of paper. If you xerox one bundle at a time, every page will show the same matching scratches.

   However, once the machine is shut off, then re-started again, a different set of scratches and marks will be produced. Each time the copier is used, it will produce a different set of marks.

   In that respect, each individual or set of sheets is like a fingerprint. This is very helpful in determining whether pages have been added, altered, or removed. Microscopy is also used to examine staple holes, folds, creases, etc.

Sources:

1. Constitution of the United states.

2. Lanning, Kenneth V.,   Child Molesters: A Behavioral Analysis For Law Enforcement Officers Investigating Cases of Child Sexual Exploitation, Behavioral Science Unit Federal Bureau of Investigation, FBI Academy, Quantico, Virginia, Supervisory Special Agent. National Center for Missing & Exploited Children, December 1992, Third Edition

2. Sharpe, Charles C. Medical Records Review and Analysis, Westport, CT: Auborn House, 1999

3. Quinn, Campion. The Medical Record As a Forensic Resource, Sudbury, MA: Jones and Barlett Publishers, 2005

4. Chattanooga.com

5.Foster, Raymond E., LT., LAPD, ret., MPA

6. Perron, Brandon A, CCDI,

 

 

 

 

Comments

[Amanda]

I am so intrigued by your analysis of this case and think the opinions of the experts you have consulted are so eye-opening! I am not one to jump on the bandwagon (of either side) without trying to understand what is going on first. Their answers to your questions make Det. Deal's actions look less suspicious. It is unfortunate that detectives are often disorganized; I wonder if that has anything to do with funding and caseload.

The part about the FDE was particularly interesting because, if I am understanding correctly, if applied to the Craft case, it could potentially show whether the notes in question were written at the same or at a significantly different time than what Det. Deal claims. Is that correct? Any way that will ever happen?

Many thanks!

[Forensics Talk]

Yes, Amanda, that's exactly what I was getting at. It seems only logical to me that they should determine when the document was created. Thanks for your input!