Janet Danahey Deserves Special Consideration for Clemency

Janet Danahey, N.C. Department of Correction

Photo Caption

by Diane Dimond

Any parent would agree that young people can do impulsive and thoughtless things.

But what if one of their stupidly spontaneous acts accidently turns deadly? Should society give that young person special consideration? Should it depend on the kid’s past good or bad character? Should the justice system treat them the same as career criminals?

The case that caused these questions to pop into my mind comes from Greensboro, North Carolina, and involves a young woman named Janet Danahey. It doesn’t take much imagination to see that what happened to Janet could happen to any one of our kids.

It was Valentine’s Day 2002, and since Janet and her boyfriend, Thad, had recently (and amicably) broken up, the then-23 year old got together with two girlfriends that night to play cards and drink some wine.

Their circle of friends was always playing pranks on each other and this night the three girls – Janet, Nicole and Adrianne – schemed about what kind of trick they could pull on Thad. They decided to sabotage his car and visited a grocery store looking for fish oil or something smelly to pour into the young man’s fresh air vent. They bought a bottle of clam juice and headed to Thad’s apartment building. When they discovered his car wasn’t there Janet grabbed charcoal lighter fluid and set a small fire atop an old futon outside Thad’s door. They could hear people inside the apartment and the idea was to knock and run leaving Thad’s roommates to stamp out the flames.

The night was windy and the fire soon engulfed the apartment building. Four people were killed – sisters, Rachel and Donna Llewellyn, ages 21 and 24; Ryan Bek, 25; and Elizabeth Harris, 20.

Janet never stopped to think what heartache would result from that childish and senseless act.

Janet admitted to police and to the father of Elizabeth Harris that she had set the fire and begged for forgiveness. But she was soon faced with the cold reality of North Carolina’s felony murder statute which dozens of other states also have on the books. Under the felony murder rule if anyone is killed during the commission of a felony (in this case – arson) the perpetrator of the felony can be charged with murder and sentenced to death. It holds even if the victim’s death was an accident.

Janet had to choose between pleading guilty and receiving life in prison with no chance of parole or going to trial where, if found guilty, she would automatically get the death penalty. She pleaded guilty. (The felony murder rule is applied differently depending on the jurisdiction, but, generally speaking, the underlying felony must present a “foreseeable danger to life.” In some cases, accomplices can also face the ultimate penalty too – if they exhibited “extreme indifference to human life” – but in Janet’s case, her two girlfriends never spoke to her again and were not charged. Janet assumed full responsibility.)

As you ponder this tragedy realize that before this happened Janet had been an exemplary child. As a high school student she was described as “sweet, responsible, and very respectful.” Janet had won the Girl Scouts top award, was active in several clubs including the Young Christian Society. She played the viola, carried the Olympic torch during part of the run to Atlanta’s 1996 Summer Olympic Games and she made the dean’s list in college. None of this, of course, absolves her of blame but the record shows Janet Danahey made one awful decision on one horrific night.

On the other hand, as prosecutors rightfully pointed out in court Janet was an intelligent college graduate – a woman who should have known that using an accelerant and setting a fire on a windy night could result in catastrophic damage. And, the state maintained, Janet and her friends exhibited complete indifference by leaving the scene without making sure the fire was actually put out.

Now, 10 years later, Janet’s lawyers note that she has been a model prisoner and they have filed a petition for clemency with the outgoing governor to have her sentence reduced to time served. The attorneys call what happened on that February night, “A joke … A foolish prank. A thoughtless act, but with no malicious intent.” They have asked for an adjustment: “To a sentence that is out of all proportion to the conduct involved.”

One of Janet’s most visible supporters is Elizabeth Harris’s father, Robert, who said he forgave Janet years ago. His words are part of the clemency petition:

I still picture Janet, standing with outreached hands, handcuffed, trembling, shaking almost violently, crying intensely, speaking almost incoherently, ‘These are the hands that are responsible for Beth’s death.’ My reactions were instinctive. I went over to her, held her tightly … (and) whispered …‘I forgive you, Janet’ several times.

At this writing there have been no comments from other victim’s family members so there is no way to know if they will challenge the clemency request.

As one North Carolina newspaper pal wrote me recently, “Two-and-a-half years per life doesn’t seem like much punishment for a deliberate act of arson that went bad.”

I guess I agree with that but I have this nagging feeling that our felony murder laws should be adjusted for people like Janet. I think only career criminals should get life in prison with no chance at parole.

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Death by Bactine?

by Diane Dimond

How did 16 year old honor roll student Annie McCann die? Her parents have been agonizing over that heart wrenching question for too long. Definitive answers have been few but these determined parents refuse to give up asking.

On October 31, 2008 Annie left a note in her bedroom which mentioned suicide but she had also added the hope-filled line, “But I realized I can start over instead. . . . If you really love me, you’ll let me go.” Then, she inexplicably ran away, taking $1,000 in cash, jewelry and the family Volvo. It was a shock to Dan and Mary Jane McCann whose daughter was a devout Catholic, quiet and studious – a child who had never given them any trouble.

Two excruciating days later the McCann’s got a phone call informing them Annie’s body had been found at a housing project in Baltimore, Maryland about seventy miles from their home. They were dumbfounded.

The Maryland medical examiner ultimately declared Annie’s death was due to Lidocaine poisoning and concluded she had ingested the bottle of Bactine she carried to treat her newly pierced ears. The company that makes Bactine, along with a well-known medical examiner, Dr. Michael Baden, would both later declare that drinking one bottle would never be fatal.

After reviewing the autopsy and other reports prominent psychiatrist Dr. Keith Ablow concluded, “It strains the imagination … to believe that a person intent on dying would choose this obscure and extremely uncertain method of attempting to take her life.”

While the official cause of Annie’s death is still listed as “undetermined” Baltimore P.D. spokesman Anthony Guglielmi (right) told me this week, “Police believe it was a suicide.” Translated: While the case is listed as “pending” it might as well be closed.

The McCann’s hired a private detective to figure out how Annie – who always had a lousy sense of direction and hadn’t been driving that long – got all the way to Baltimore. P.I. Jimmy Kontsis followed the lead of a fingerprint found on the window of the McCann’s recovered car. That led to a group of local teens who admitted one of their group, a kid named D.J., had stolen the McCann’s car. But each of them insisted Annie was already dead in the back seat so they tossed her body and took a joyride. Police said they could find no evidence to charge them in Annie’s death and auto theft charges were never pursued either.

Noting that Annie’s autopsy remarked on, “fresh injuries to her face and head,” Dr. Baden suggested Annie might have died from homicidal suffocation. Was she victimized for the $1,000 she took with her? Police made note of Annie’s clean white socks but could never find her shoes. Might they have been left at the same place she ingested the Lidocaine?

That’s the mystery!” Kontsis told me. “Even the police were, like, Lidocaine? They didn’t get it either.” Drug addicts have been known to try to smoke Lidocaine but Annie never experimented with drugs. Classmates called her sheltered and naïve.

Kontsis canvassed people at spots where Annie had been – her church, a Virginia Costco, even a pastry shop in the Little Italy section of Baltimore. He discovered a consistent description of an older, apparently homeless Hispanic woman (left) seen speaking with Annie at all three locations. A sketch of the mystery woman (who claimed to be from Honduras and was seeking immigration information) brought in no helpful information.

And then, last November the teenager known as D.J. – real name Darnell Kinlaw, now 21, — was arrested in Baltimore for murdering a woman and stealing her car. It was revealed that Kinlaw’s extensive police record lists eight charges of auto theft. Annie’s parents figured it was the perfect time to get more information from Kinlaw about the day their daughter died.

The McCanns travelled to meet Baltimore police and while they were treated politely they feel they have been lied to and ignored. Police say they are sympathetic but maintain they’ve already conducted a thorough investigation.

Look, maybe Annie McCann did manage to get a stash of Lidocaine and poisoned herself. But, that seems unlikely and after researching this case and counting up the loose ends – the odd trip to Baltimore, the missing money, the mystery woman and Kinlaw’s past – I can’t help but feel that in the absence of concrete evidence Annie’s half-used Bactine bottle gave police a convenient reason for her death. Easier to declare it a suicide and move on.

Left in the wake of that decision are Dan and Mary Jane McCann who cannot find peace. They still wonder why they never got Annie’s clothes back and why no one will tell them whether she had been raped the day she died.

The sad fact is there are countless families mourning the loss of their murdered children every day in America. They are Black, Hispanic, Asian and, in the case of Annie McCann – White. Their tears are all the same color.

In the end, it really isn’t race or ethnic background that matters when a child is murdered. It is the feeling families often get that no one cares enough to find the truth – that there will be no justice – that hurts so much.

Maybe our overburdened, understaffed police departments can find some way to work on making families feel more included in the heart-breaking process of homicide investigation.

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America’s Newest ‘Most Wanted’ List

by Diane Dimond

In the unlikely event they make a movie of my life story a good place for the opening scene would be the post office in Albuquerque where my Mother used to take me as a child.

Scene one, act one, would be me making a bee-line to the bulletin board displaying the FBI’s 10 most wanted list. The future crime writer transfixed.

“So that’s what a murderer looks like,” I always thought to myself, leaning in to the grainy black and white photos. I would peer deep into the eyes of the fugitive bank robber or kidnapper to try to find a clue as to what made these men turn so bad. (Back then, the list was all men) I admit it – I was a strange child.

Today, another fugitive list has caught my attention. Its complied by the Office of the Inspector General at Health and Human Services and it highlights those involved with one of the fastest growing crime sectors in America: Health care fraud. As our population ages and government programs literally pour money into elder care this type fraud has become a multi-million dollar a year problem. Looking at the O.I.G. web site brings back memories of my post office visits. The site has photos (in color!) of the 10 Most Wanted health care fugitives. Two are women. And because this is the digital age there is a videotaped message from the Deputy Inspector General for Investigations, Gerald Roy who says the feds are currently looking for 170 criminals who’ve defrauded at least 400 million dollars from our health care programs. But Roy only hints at who these people are.

 “Some criminals may be hiding overseas,” he says. “But fleeing the country is not a get out of jail free card. We have a global reach. We regularly work with domestic and foreign law enforcement agencies to bring these fugitives to justice in the U.S.” Here’s what Roy didn’t say and what I glean from studying this Most Wanted web site: A vast majority of suspects facing fraud charges hail from foreign countries. Many of them are now suspected of fleeing to India, Russia, Nigeria, Mexico, Cuba, the Dominican Republic and Columbia. They have names like Gautam Gupta and Anupal Gayen. Others have Hispanic surnames like Gonzales, Velazquez and Lopez. One of the women on the Most Wanted List is Ekaterina Shlykova.

All of them have been charged with various schemes to bilk Medicare or insurance companies for goods and services that were not needed, not prescribed or never even delivered to the patient. They preyed on people in states with large elderly populations like Florida and Arizona. They also operated in California, Michigan, Illinois, Rhode Island, Texas and New York. I don’t bring this up as a way to bash foreigners. In fact, among those on the “Also Wanted” Inspector General’s list is a brazen American psychotherapist from Hawaii who the feds say fraudulently billed about $1 million to his state’s Medicaid program and various insurance companies for therapy sessions he shortchanged or didn’t bother to conduct. He did the same thing in Colorado in the early 80’s. Dr. Carlos Warter was found hiding in Argentina last year and is now fighting extradition back to the States.

No. This isn’t about condemning the actions of all non-citizens but facts are facts. One of the highest rates of health care fraud in the country is in the Brighton Beach section of Brooklyn, New York where a majority of residents are immigrants from Russia. In a recent story about a $250 million dollar fraud scheme in Brighton Beach the New York Times reported, “The city’s Russian-speaking immigrant population, many of whom grew up under a Communist system that bred disdain for the rules (has) … a willingness to cheat to get around them.”

In Miami, Florida, the nation’s other hot-spot for health care fraud, a trio called the Benitez Brothers and twenty co-conspirators allegedly pocketed $110 million in ill-gotten Medicare payments. Most defendants have pleaded guilty but the brothers – Carlos, Luis and Jose – are still at large. The point in bringing this problem to light is to remind folks that crime fighting can start with you. If a health care provider asks you to sign a form for a service or a medical item you never got – physical therapy, a wheelchair, a scooter, a hospital bed or elbow or knee braces – report it to the O.I.G. Hotline at 1-800-HHS-TIPS . Suspect fraud if you get a notice from your insurance company that they paid for an un-delivered service. If you are one of America’s 25 million diabetics and you are getting too many lancets or test strips via those mail order pharmacies many insurance companies make us use these days, chances are someone is illegally profiting from it. Chances are good that if a health care provider is cheating you they’ve cheated others and investigators need to know about it to build a case. And if you can, check out that spiffy web site I found and take a close look at the mug shots there. If you know something about one of the fugitives there – say something! It’s time we all became active in fighting this multi-million dollar crime.

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America’s Serial Killers – How Many Are There?

by Diane Dimond

It was a small but horrifying item in the Los Angeles Times. “Police are asking for the public’s help in identifying what they call a ‘serious, dangerous serial killer operating in Orange County. Police believe one person is responsible for stabbing three middle-aged homeless men. He is (considered) extremely dangerous to the public.”

Another serial killer, I thought. And then the question: How many serial killers are out there in America?

John Douglas, a former Chief of the FBI’s Elite Serial Crime Unit and author of “Mind Hunter” says, “A very conservative estimate is that there are between 35-50 active serial killers in the United States” at any given time. Often, Douglas told me, they will, “kill 2-3 victims and then have a “cooling-off” period between kills.”

That period can be days and in some cases (such as the BTK Strangler, Dennis Rader, convicted of killing 10 people from 1974 to 1991) even years.”

But others who study serial killers (defined as someone who kills 3 or more people) think there are many more of these demented predators out there than the FBI admits to – maybe as many as a hundred of them actively operating right now.

Why don’t we know the exact figure? Because serial killers are a secretive and often nomadic bunch.

Right before his execution in January 1989 the widely traveled Ted Bundy, described as a charismatic killer, admitted to 30 murders across half a dozen states – from Washington to Florida.

Andrew Cunanan killed at least five people during his wanderings through Minnesota, Illinois, New Jersey and Florida, including fashion designer Gianni Versace in Miami.

The FBI knows death travels and five years ago it set up the Highway Serial Killings Initiative. The bureau reveals it has “a matrix of more than 600 victims and potential suspects in excess of 275.” Since the bodies were found off major highways top suspects are long-haul truckers who may pick up prey in one state and dump the body several states away.

I know this is disturbing to read and you may wonder, “Why should I care? I’m not going to hitchhike at a truck stop!”

Well, realize lots of serial killers stay close to home and their victims are random. The aforementioned Dennis Rader (left) found all his victims in Kansas not far from the Wichita home he shared with his wife and two kids. Rader, the president of his local church, knocked on his victim’s doors and they simply let him in.

John Wayne Gacy, met many of his 33 victims (all young men and boys) at charity events where he appeared dressed a clown. After luring them to his house and murdering them he stuffed them under his Cook County, Illinois home.

Gary Leon Ridgway, the so-called Green River Killer, was convicted of strangling 49 random women he met in Washington. He confessed to killing 71 but authorities believe the number of victims could be over 90.

Jeffrey Dahmer of Milwaukee admitted to killing and cannibalizing 17 young men and boys before he was arrested. Dahmer’s mother, Joyce, once told me her son wished doctors would come study him in prison to help figure out what drove him to do it.

We who write about crime are told that law enforcement nationwide is doing a better job of communicating with each other about suspected serial killers. Indeed, the item I read about the homeless murders was a milestone. In the past, detectives were loath to tell the public about a serial killer on the loose for fear of spooking people. Now, they’ve come to realize that knowledge is power and citizen’s information can be a huge help in solving crimes.

Hardly a state in the union hasn’t had a serial killer. California, Texas and Florida seem to have more than their fair share. And mass graves have been found all around the country. Two examples: The 11 bodies of young women and an infant found on the isolated West Mesa outside Albuquerque. And, an eerily similar case thousands of miles away in Long Island, New York where authorities unearthed 10 bodies – eight women and a toddler along with a man dressed in women’s clothes.

These are among the serial killer dumping grounds that have been found. Many others may go undetected forever.

The best thing we can do is be vigilant. Know that many victims of serial killers put themselves in harm’s way. Most are women who have some contact with the sex trade or illegal drug underworld and if they have children they are in grave danger too.

Dr. Maurice Godwin has studied serial killers for years and one in-depth analysis of 107 of them revealed important information. Godwin found 55% of serial killers began having trouble in childhood and had criminal juvenile records. 45% had been convicted for a previous sex crime. As with so many criminals it goes back to their early formative years and the best lesson we can learn is that when we find a troubled child we best help them. Failure to do so could result in another serial killer walking among us.

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Paying The Price Twice

by Diane Dimond

With the U.S. unemployment over nine percent these days nearly everyone knows someone who is out of work or under-employed. It’s a tragic and desperate time for millions of Americans.

But there is one sector of the population hit harder than any other – those Americans who carry the stigma of a past criminal conviction. An almost unbelievable 65 million people – one in every four U.S. adults – falls into this category. And, in this War-on-Terror era employers are conducting background checks on new hires like never before. No matter how exemplary a life a person has led since their conviction, their past record will pop up.

Look, no one could fault an employer for thinking twice about hiring someone who has been convicted of murder or child molestation. But, according to the author of a National Employment Law Project study that’s not what we’re talking about here. Michele Rodriguez says, “We’re not talking primarily about hardened criminals, but your friends, relatives and neighbors who may have shoplifted once or twice, who have DUI’s on their record or have drug charges that date back to the 1980’s.”

Take, as an example, the case of Ted Brown (not his real name) a whiz-bang software engineer that was downsized out of a job last winter. He thought he had landed a prestigious job with a five figure bonus when suddenly the offer was rescinded. Turned out the employer’s background check had discovered that during a nasty divorce several years earlier Ted had pleaded guilty to a charge of child endangerment. He had left his son alone in the car on a cool fall day while he quickly sprinted in to Starbucks for coffee. Never thinking that the episode would affect his ability to do a job Ted checked “no” on the application box that asked about arrests and convictions. He compounded his police record with a lie.

Then there’s the story of 40 year old Johnny Magee of Dublin, California. Twelve years ago the developmentally disabled Magee was asked by his uncle to pick up a package for him. Unbeknownst to Johnny it contained drugs and even though he had no police record he was convicted of a misdemeanor drug offense. In 2008, Johnny was laid off from his long time landscaping job at the Livermore National Laboratory. Even with his experience Lowe’s Garden Center refused to consider him for a garden assistant’s job citing his police record. In 2009, Johnny’s lawyer filed charges with the EEOC against Lowe’s citing the Commission’s pronouncement that “an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.”

As NELP’s Rodriguez says, “People are human, they make mistakes,” – especially in their early years – and ought not to be discriminated against for the rest of their lives.

I agree it is not fair to the jobseeker and, frankly, I don’t think it’s fair to society to limit the employment pool at such a crucial economic time. For every one who pulls from the unemployment coffers the burden shifts to the rest of us – the working taxpayers.

But how are these 65 million Americans supposed to get a new job if they suddenly become unemployed? A quick glance at the Craigslist employment page reveals insurmountable company policies:

“No Exceptions! No Misdemeanors and/or Felonies of any type ever in background.”

”DO NOT APPLY WITH ANY MISDEMEANORS / FELONIES”

“You must not have any felony or misdemeanor convictions on your record. Period.”

Last year at least five major federal civil rights lawsuits were filed against some of the country’s largest employers such as Accenture, First Transit, Inc. and the Burlington Northern Santa Fe Railroad Company for their blanket policies against hiring anyone with an arrest record. Even the U.S. Census Bureau was sued for refusing to consider “roughly 700,000 people” with criminal records as suitable for temporary Census jobs.

Some of those suits – and many more filed at the state or local level – mention the racially discriminatory nature of refusing to consider applicants with a police record since African Americans and Latinos are over-represented in the criminal justice system. These legal actions are sure to have begun to seep into the corporate mindset where bean counters realize how costly litigation can be. Policy shifts are certainly underway.

I’m all about law and order and people doing the time for the crimes they commit. But once time has been served – especially if it’s for a non-violent offense – we need to welcome these people back into the fold. They need the work and we need them to be working for the betterment of our communities.

And to those who have an arrest record and are looking for a job? Don’t be like Ted Brown the software guy and lie about it on your application. Realize that a background check is going to discover your past so be upfront about it. A black mark on your background check might not stop a company from hiring you. But lying most certainly will.

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Do Prisoner's Deserve Free Medical Treatment?

by Diane Dimond

They are charged with breaking laws or victimizing fellow citizens. We respond by making sure they get a lawyer – often on the taxpayer’s dime. If they plead “not guilty” we stage expensive trials for them so they can provide evidence to a judge or jury. If convicted, they are imprisoned.

So, after all that do we have an obligation to provide prisoners with any and all medicines they might need to keep them healthy?

While so many Americans are struggling to meet health insurance and prescription costs – services for prisoners constantly increase. And make no mistake about it, America has so many incarcerated people we are spending boat-loads of money on convicts’ medical care. Their services cannot be cut. But health care programs for the general public have been cut back time and time again.

Let’s take the state of Ohio as a general example of what it means to maintain the health of convicts. The Ohio prison system has about 51,000 prisoners and it spends nearly 223 million dollars a year for their medical care. About 28 million dollars of the Ohio total is spent on inmate’s prescriptions.

In Oregon, the latest annual figures show it took 100 million dollars to take care of some 14,000 prisoners. That’s 7 times more than the state spends on education.

Texas, like every other state, has seen a spike in the number of elderly inmates who often require even more expensive medical treatments. That phenomenon and Texas’ regular medical care costs for prisoners ballooned to a staggering 545 million dollars last fiscal year. This at a time when other crucial state programs are facing mandatory budget cuts.

Every year the price tag of tending to old and dying prisoners skyrockets. Realize these inmates must often be transported to hospitals or nursing homes where they are treated with the latest lifesaving methods and, yes, even though they are incapacitated from their illnesses the law says they must be provided with round-the-clock security guards.

Wrap your head around this set of facts if you can: In California, a state drowning in red ink, the prison system recently identified 21 inmates whose annual health care bill is just under two million dollars – EACH. There are another 1,300 guests of the California penal system who require medical attention costing $100,000.00 apiece. Those cold hard facts caused California to adopt a bill last year to grant medical paroles so the sickest inmates could get out of prison and into federally funded health care facilities. That, of course, only shifted the burden on paper – from the state to the federal level.

So, armed with these staggering statistics ask yourself: Do prisoners deserve all this free health care when so many of us struggle to pay for health insurance or, sadly, go without? The answer in a humane society is yes.

But yes to a point.

Are you sitting down as you read this? If not, please take a seat. In Massachusetts a cross-dressing inmate who murdered his wife in 1990 has been suing the state for health care costs related to his desire to have a sex change operation. Robert Kosilek (who has changed his name to Michelle) has already received hormone injections, electrolysis hair removal and, most recently, a mammogram – all at taxpayer’s expense. Kosilek remains housed in an all-male prison and her standard issue prison wardrobe has been augmented with several bras and “some make-up,” according to corrections officials. Still, after a costly ten year court battle, Kosilek says these steps have not been enough to ease her depression and the fight continues for the state to pay for a full-on sex reassignment surgery. The case is still pending in Massachusetts’ U.S. District Court.

Earlier this year in upstate New York, 55 year old Kenneth Pike, convicted of raping a 12 year old family member and sentenced to up to 40 years in prison, desperately needed a heart transplant. He had already undergone triple heart-bypass surgery and had a pacemaker implanted while incarcerated. After the media reported the public might have to pay for an $800,000.00 transplant surgery for a convicted child predator, the outcry was immediate. The Department of Corrections explained it was, “Constitutionally obligated to provide health-care services to inmates” and Pike’s family argued he should be treated like any other patient in need. In the end, the controversy was so red-hot Kenneth Pike declined the surgery. At last report he is still alive.

In 1976, the U.S. Supreme Court ruled that prisoners were entitled to the same medical and dental treatment as everyone else in their communities. Since then countless state courts have upheld that ruling and repeated that prisons that withhold treatment can be held liable for violating the U.S. Constitution’s ban on cruel and unusual punishment. Well, I know lots of folks in my community who can’t afford to go to doctor when they feel sick and they may go to the dentist only when they have a raging toothache.

Whether our politicians want to admit it or not, health care has become a luxury for millions of Americans. Excluding, of course, those convicted of a crime.

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Failure to Test is a Failure of Justice

by Diane Dimond

The evidence had been there all along. It had been sitting on a shelf inside a cold storage facility at the Houston Police Department for 12 years. After a determined detective tracked it down and sent it off to the lab for testing the state of Texas realized it had a found a serial rapist. The criminal’s name is Roland Ali Westbrooks and his story highlights why every state in the union should make testing of backlogged rape kits a top priority.

For more than two decades law enforcement has had the ability to take even the tiniest specks of evidence from a rape victim – bodily fluids, stray hairs, fingernail scrapings – and match the DNA findings to information stored in a national data base called CODIS. Every time a rape kit is processed the DNA print is supposed to be entered into CODIS. And the reason for this is simple: Rapists rape repeatedly. They hardly ever have just one victim.

One study on serial offenders puts the average number of a rapist’s victims at seven while another study puts it at 11. To put this in perspective, realize that if we get just one of these perps off the street we’ve prevented several future crimes. Every year in America there are roughly 200 thousand reported rapes and it is not just women who are attacked. 10% of all rape victims are men.

The first time we know Roland Ali Westbrooks struck was in August 1995. It was a nighttime home invasion and his victim was a complete stranger, a teenager girl alone in her bedroom. Houston police say as he put a pillow over the 16 year olds face he threatened to kill her if she screamed. The girl reported the attack immediately and submitted to a complete rape examination.

Like tens of thousands of other rape kits nationwide her evidence package was never processed and no one was ever arrested for her brutal assault. After a cold case detective re-opened the teen’s case earlier this year and ordered the DNA in her kit to finally be processed, her rapist was identified as Ronald Westbrooks. The good news was that he was already in jail! The bad news was that Westbrooks was in prison because he had been convicted of another rape – a crime that occurred in 1997 – two years after the attack on the teenager. That attack might never have taken place if the 16 year olds rape kit had been tested in a timely fashion. Police suspect Westbrooks left more victims and are investigating that now.

To be sure states have made some progress in winnowing down their backlog of rape kits. When I first wrote about this topic in 2008 there were 400,000 bundles of untested evidence. Today, the best estimates put the national number at about 180 thousand. But that’s still way too many.

Sometimes lab work isn’t necessary as police have already gotten a confession or the victim withdraws the complaint. But in too many other cases it becomes a matter of indifference, inconvenience or finances. Each test costs about $1,500.

In most jurisdictions it is still up to the discretion of the investigating detective whether to order up a full lab analysis of a rape kit. Usually the victim is never told whether her evidence has been processed or relegated to some shelf to gather dust I can think of no other crime where police have definitive evidence of a crime and fail to process it. I think it is unconscionable.

Information from these kits, entered into CODIS, would likely mean numerous outstanding sex crimes could be solved. The perpetrator could be identified, taken off the streets or slapped with a longer prison sentence if they are already behind bars like Roland Westbrooks. More importantly, victims could finally feel a sense of justice.

It’s already happening in Texas. The popular Texas-based blog Grits for Breakfast reports that when “Tarrant County tested their entire backlog they identified five serial rapists by matching the results to CODIS.” Imagine – five dangerous criminals were scooped up just by testing evidence that was already there!

May I be so blunt as to ask, “What the heck are we waiting for?” And don’t tell me it’s a matter of money. The money spent on processing these kits would be far less than what we would have to pay out to investigate and prosecute these rapists’ future crimes.

I call for a nationwide initiative to examine every relevant kit. Let’s get every state to dedicate one group of lab technicians to examine the most recent kits so as to stop currently active rapists. A second group should examine the oldest kits with an eye on the ones that might come up against a statute of limitations problem. Let’s get that information into CODIS and see how many more perps we can get off the streets.

The perfect tool is already sitting there if we would just use it! Anybody with me?

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Forensic Sculptor Helped Bring Many to Justice

by Diane Dimond

A man died recently who I want you to know about. He operated in the shadow of law enforcement and you probably never heard his name. In his own very unique way he developed an expertise that helped bring justice to those who would otherwise never get it.

His name was Frank Bender, and when he died recently at the age of 70 at his home in Philadelphia, he was the best known in a rare breed of forensic sculptors.

Frank Bender somehow knew how to take a fleshless mummified human skull and reconstruct its face into an eerily perfect facsimile. To compare a photo of the dead person with a finished Bender sculpture would take your breath away.


Bender started his career as a commercial photographer and had an innate curiosity about human anatomy. That led the young Bender to visit the Philadelphia morgue, and he came away with a mysterious talent that would become sought after by law enforcement officials worldwide.

He reverently began each reconstruction by focusing on and minutely measuring certain points of the skull. Bender was then able to calculate how thick the tissue, muscles and skin would have been at any given point. Working with tissue-thin layers of clay he painstakingly followed the unique bone structure of each skull and, as Bender once explained his process to a USA Today reporter, his fingers just take over and he becomes his subject.


His finished projects were stunning renditions of the forgotten dead seemingly brought back to life. Once released to the public Bender’s work brought in tips which helped identify dozens of discarded bodies that might have gone to unmarked graves had it not been for his efforts. Over the years his work helped solve numerous murders and serial killings and led to the arrest of high profile fugitives.

Bender first reconstructed skulls for the Philadelphia Police Department and when word of his success spread he was called upon to help departments in other states. Then the FBI came calling, followed by Scotland Yard, the government of Egypt and in Mexico his work identifying the remains of a string of murdered woman became the basis for a book called, The Girl With the Crooked Nose.

is most publicized reconstruction came in 1989 and originated not from a skull but from an old photograph. Police in Westfield, New Jersey, had long been looking for a mild-mannered accountant named John List who was wanted for the 1971 murders of his wife, three children and his mother. The television program "America’s Most Wanted" commissioned Bender to craft a sculpture of what List would look like 18 years after the crime. He created an age-progressed jowly baldheaded bust and because he thought an aging accountant might wear glasses Bender plopped a pair of black horned-rimmed glasses on it. The glasses did the trick.

A woman in Virginia watching the program called the tip line to report her neighbor, an accountant named Robert Clark. A fingerprint check quickly revealed the man was really fugitive List. Sentenced to five life terms List died in prison in 2008.

One of Bender’s most notable reconstructions was on the skull of a young woman found near a stream in Boulder, Colorado in 1954. Working with the Vidocq Society, a group of professional crime fighters who tackle cold cases (which he helped establish in 1990), Bender used his unexplainable sixth sense to reconstruct her face. He also told investigators the victim had blonde hair and blue eyes. How could he possibly know that, they wondered? Fifty-five years after her remains were found, she was finally identified as 18-year-old Dorothy Gay Howard. A family portrait confirmed she was a stunning blonde with sky-blue eyes.


Frank Bender never made much money for his efforts. In the end, one of his meticulous creations brought in about $1,700. He worked as a fine artist and various other odd jobs to help pay the bills.

Bender never discriminated over which skull to rebuild but he had a passion to help solve crimes against children. Ted Botha the author of the aforementioned book was quoted in The New York Times' obit saying the diminutive Bender was “A fighter for justice. He’s almost like a little Captain America or something.”

His last reconstruction, created while he was dying of mesothelioma, came on the skull of a young boy found discarded in high grass along a North Carolina roadway. The 10-year-old's skeleton was still wearing tube socks and brand-new sneakers. In his pocket were neatly folded bills totalling $50.

The sculptor told a North Carolina newspaper why he had to make this his last work of art. “A child is so innocent,” Bender explained. “They have a whole life ahead, and it’s taken away. It all bothers me, but they bother me the most.”

You'd probably never heard of Frank Bender before now, but as he playfully identified himself on the outgoing message on his home answering machine. he was indeed “a re-composer of the decomposed.” A crime fighter par excellence.

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Why We Dislike Lawyers

by Diane Dimond

Question: What’s the difference between a lawyer and a shark? Answer: Nothing.

Okay, look, right off the bat I want to say that I work with a lot of lawyers and I count many of them as good friends. But we’ve all heard the old jokes, and, let’s face it, the public’s general perception of lawyer’s honesty and integrity is pretty rotten. The latest Harris poll on the subject puts attorneys way down at the bottom of the list with members of Congress, car salesmen, and, yes, journalists.

But since lawyers are the crux of our justice system I think it is important that we take a closer look at the way some of them operate. Why is it so many of us curl our upper lip at the very mention of dealing with a lawyer? Maybe it’s the sheer number of them these days. Maybe because we believe they make so much money on other people’s misery. Or maybe it is that so many of us are forced to turn to lawyers these days to handle things that used to be settled with a hand-shake and someone’s good word.

Despite what we see on TV in dramas like Law and Order and The Good Wife, most lawyering goes on in a stealthy way. It is done out of plain sight – in board rooms and depositions, in front of secret grand juries or in the confines of a prosecutor’s office. When engaged in their profession lawyers speak a different language than we do and they follow a set of rules most of us will never understood. It is human nature not to trust what we don’t know or what we can’t see or hold in our hands.

Casey Anthony Murder Defendant

I’ve spent the last few months closely covering a capital murder trial taking place in Orlando, Florida. And it struck me as I watched the defense lay out its presentation in the case of Florida vs. Casey Marie Anthony that there is another more basic reason why we think the way we do about lawyers. They often destroy innocent people in the name of defending their clients.

To watch defense attorneys Jose Baez and Cheney Mason conduct their case on behalf of Ms. Anthony was painful. Of course, they had every right (and a duty) to do what they could to insure their client got a fair trial, especially since she was facing a possible death sentence. But they did not have the right to vilify and destroy bystanders to the murder of 2 year old Caylee Anthony. The scorched earth, take-no prisoners behavior should not be allowed.

Defense Attorney Jose Baez in Action

During the defense’s opening statement Baez promised the jury they would hear evidence that there was no murder and that the little girl had drowned in the family’s back yard pool. He blamed Grandfather George Anthony for discarding her body. There has been no evidence presented to back up that claim.

Baez told the jurors that repeated sexual molestation of his client by both her father, George, and her brother, Lee, had turned her into a trained liar who naturally kept secrets. He promised evidence to explain why his client let 31 days go by before finally admitting her daughter was gone. At first, jurors heard exactly the opposite – clear denials that any sort of sexual abuse ever took place. The jury also heard testimony from more than a dozen of Casey Anthony’s friends and co-workers that showed she was a known liar and thief long before her daughter went missing.

Roy Kronk Found Caylee Anthony's Remains

Baez’s opening statement also smeared the reputation of a man named Roy Kronk, a county meter reader who found Caylee’s skeleton remains in the woods six months after she was last seen. He reported the tiny child’s skull was still wrapped in duct tape which had snarled in her long hair. The defense lawyer called Kronk a “morally corrupt individual” and promised evidence that would show he had stolen Caylee’s remains after she drowned in the Anthony’s backyard pool and waited for the reward money to grow. Kronk came and went from the witness box and no such evidence was presented against him.

I’ve highlighted the Casey Anthony case, but it is far from the only trial in which lawyers have made reckless claims on behalf of their clients leaving human despair in their wake. Believe me, it happens all the time in courthouses across the country.

The question for all of us–including honorable lawyers who read this now–is what do we as a society do with attorneys who deliberately demolish the reputation of others in their quest for their client’s acquittal? If they make promises to a jury at the expense of others and don’t follow through shouldn’t there be some sort of penalty? If you or I repeatedly lied about important issues at our job, wouldn’t we face consequences?

Most other professions have a code of behavior. I submit that criminal defense attorneys should be held to one as well.

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