PUNDITS, PISTORIUS, AND PREMEDITATION

I got a call from a reporter the other day concerning a difference of opinion voiced on the Nancy Grace show. They were talking about the Pistorious murder case in South Africa, and they were disagreeing on the definition of premeditation. The reporter wanted me to venture an opinion on which of the two pundits was wrong, Nancy Grace or her guest Dan Abrams. Since I hadn't seen the show, the reporter provided me with a transcript of the two pundits' remarks.

Dan Abrams was saying what a compelling case the prosecution had put on, except for the minor fact that the prosecution had charged premeditated murder and hadn’t proved up premeditation. Abrams said that premeditation was different from an intentional murder, that it required prior planning. 

Nancy Grace took great umbrage at Abrams definition of premeditation and said that it would only take a matter of seconds to premeditate a murder. Abrams disagreed and she told him, “Yeah, well, it can be seconds according to the law. Go read a law book. Come back to me after you’ve tried a couple murders.”

Well, I’ve tried a few dozen murders and prosecuted a few hundred more, and I’ve read a few law books so I guess Nancy Grace will think I’m qualified to speak on the matter. Not so fast. I didn’t feel qualified to speak on the matter because I didn’t know the law of South Africa. I know the law of premeditation in the State of Florida where I prosecuted, and I know the textbook law of premeditation I was taught in law school, but if we’re talking about a foreign jurisdiction, I’m going to have to hit the law books to see what this other jurisdiction says about premeditation. The same words mean different things in different jurisdictions. In America a flat is a punctured tire. In England it’s an apartment. So in order to avoid putting my foot in my mouth, I researched the law of murder in South Africa. What I found out was interesting.

Bottom line: As is frequently the case when two people disagree, they were both wrong, but Abrams was less wrong than Grace. Grace made the mistake of equating South African premeditation with American premeditation; they’re similar, but they're not the same thing. Abrams correctly described the law of premeditation as it exists in South Africa, but he said that Pistorious was charged with premeditated murder. I couldn’t find a copy of the indictment, but I don’t believe Pistorious is charged with premeditated murder. South African law proscribes intentional murder, and premeditated murder is just one of several different types of intentional murder, all of which carry a possible maximum sentence of life in prison. I think Abrams’ mistake came from an off-the-cuff remark by Pistorius’s prosecutor early on in the case. The prosecutor said that Pistorius was charged with intentional murder and that was the same as premeditated murder. 

The prosecutor was being sloppy with his terminology, I think, because premeditation was the type of intent that he wanted to prove at trial. Of the different forms of intentional murder in South Africa, premeditated murder is the type of intent which will guarantee a life sentence. Lesser types of intent may qualify for a lesser sentence. In one of the cases I read, the court mentioned 30 years as the lesser sentence, but I don’t know if that’s a minimum or if the court was just using that number as an example.

According to the cases I read, South Africa recognizes three types of intent which can make you guilty of murder. They are:

[1] Dolus directus = I actually intend to kill. This is similar to premeditation as defined by most American courts. I can form this actual intent in Nancy Grace's seconds.

[2] Dolus indirectus = I intend to do something that I know might indirectly get someone killed. This seems to be a rare form of intent. It’s similar to (but not exactly like) felony murder in America. I commit a robbery, and I know people can get killed in robberies. A policeman responds to the scene, shoots at me, and kills an innocent bystander. I’m guilty of felony murder (if I’m in Florida. I won’t speak to the felony murder statutes of other American states). I'm also guilty of intentional murder in South Africa.

[3] Dolus eventualis = I recklessly do something that I know is very likely to kill someone. This is similar to Florida’s “depraved mind” second degree murder. I get really mad and shoot someone because I want to hurt them but not kill them. If they die, I'm guilty of intentional murder in South African even though I fervently wished that the victim would live.


To be crystal clear: The South African courts say that you can intentionally kill someone without premeditating the murder.  For example, I get really, really mad at someone, grab up a kitchen knife and stab him seventeen times. I didn’t plan the killing, so in South African that’s not premeditated murder. In Florida, however, it’s premeditated murder because in Florida premeditation requires no prior planning. It merely requires killing after consciously deciding to do so. I once prosecuted a case where a man shot his fiancé seven times in the back with a semiautomatic pistol. He may not have planned it ahead of time, but if he hadn’t consciously intended to kill her when he shot her the first time, his intent to kill was pretty clear around shot three or four. Intentional but not premeditated in South Africa. He was convicted of premeditated murder in Florida.

South Africa’s premeditation is similar to (but again not exactly like) the Florida concept of cold, calculated, and premeditated. For example, I prosecuted another case where a man stole a single shot shotgun, got on his bicycle and rode across town to his girlfriend’s house, hogtied her, pressed the muzzle of the shotgun to her chest and shot her, reloaded, pressed the muzzle to her chest and shot her again, reloaded, pressed the muzzle to her chest and shot her a third time. This case is just a tad more premeditated than the case where the guy shot his fiancé in the back seven times with a semiautomatic pistol, and I think the South African courts would have no problem deciding that it was premeditated. 


I think the most premeditated murder I ever prosecuted was the one where the guy actually built a homemade gun from scratch to kill his wife. He figured it would be untraceable. It wasn’t. When he shot her, the gun exploded. He tried to clean up the mess and dump the pieces in a lake, but we recovered enough pieces to rebuild the gun and tie it to him. Now, that was cold, calculated, and premeditated, but not very well thought out.



Then there was the case where the killers made a list of potential victims and took a few weeks to discuss which one to kill.  After thoroughly studying the potential victims, they decided on one and then improvised two garrotes to use as murder weapons. They certainly displayed foresight, because the first garrote broke in two before they had completely choked the victim to death and they had to go to their backup garrote to finish the job. This is another case where I think the South Africans would find premeditation. Our judge also found that the murder was cold, calculated, and premeditated.



Now for a few examples of other murders which the South Africans would find intentional but not premeditated. There was a former client of mine who shot and killed his best friend because the friend refused to lend him a dollar. Intentional, but not premeditated. In Florida that’s second degree murder. Then there was the guy who shot his next door neighbor to death in an argument over how to vote in an election. And the woman who chopped her landlord’s head off because he wouldn’t lend her a dollar. And the guy who stabbed his buddy to death in an argument over who was going to drive the car home from the bar. And the man who beat his father-in-law to death because the father-in-law wouldn’t buy him beer and cigarettes. Then there was the guy who shot and killed two men in a bar because they had a disagreement over a pool game. I could go on, but you get the picture. All of these killings would be intentional-but-not-premeditated under South African law.



I don’t know how loudly Nancy Grace was talking when she told Abrams to read a law book, try a few murders, and get back with her on the definition of premeditation, but I’ve never heard her speaking softly. Of course, she was positive she knew what premeditation meant. Which reminds me of Ambrose Bierce’s definition of positive—mistaken at the top of your voice.

BENDING THE TRUTH FOR A GOOD CAUSE

CAVEAT: Before you read this, please understand that I am not a Grinch and I'm not trying to make light of serious issues. I'm just evaluating the truth value of certain claims. As a prosecutor I spent 29 years and 10 months trying to establish the truth. It offends me when anyone makes untrue claims, no matter how laudable their motives might be.

 

There’s a story circulating on the internet about Barack Obama visiting an elementary school and talking to a group of students. Obama is supposed to have begun snapping his fingers at the rate of about once every three seconds. He told the students that every time he snapped his fingers, a child died of gun violence. A student is supposed to have piped up and said, “Well, quit snapping your fingers, dumb***.”

I had serious doubts about the story, so I checked it out on the Politifact.com truth-o-meter. That website said they couldn’t find any documentary proof that this ever happened. They did find evidence that this same story was told about Hillary Clinton when she ran against Obama in 2007. They also documented a number of other variations of the story involving other public figures.

Trying to find the origin of the story, they said that the earliest variation they could find was a television ad from 2005 in which a number of celebrities snapped their fingers at the rate of once every three seconds, and in the background Liam Neeson solemnly intoned that a child died of extreme poverty every three seconds. You can see the commercial here. This commercial was financed by Makepovertyhistory.com, and although it didn't ask for money I strongly suspect it was aimed at making viewers feel so awful that they'd break out their checkbooks and send in a contribution. Now I'm 100% in favor of feeding children, but I'm also 100% in favor of telling the truth. I decided to investigate Neeson's claim.

The first thing I did was figure out what kinds of numbers they were talking about. I took 365 and multiplied it by 24, giving me the number of hours in a year. I then took that number and multiplied it by 60, giving me the number of minutes in a year. You guessed it, I then multiplied that number by 60, giving me the number of seconds in a year. Finally, I divided by three, giving me the number of children who died of extreme poverty in a year. I’m not a very good mathematician (that’s why I’m a lawyer), but I came up with 10,510,000 child deaths caused by extreme poverty.

Now, here’s where the statistics get dicey. This aggregation of movie starts and pop singers didn’t tell us what geographical area they were talking about. Given that the commercial ran in the USA and they were all speaking English, the uncritical conclusion you would come to is that they were talking about the USA. We also don’t know what they meant when they were talking about children. Were they talking about the prepubescent young or were they talking about anyone under 18? We won’t even attempt to figure out what they were talking about when they spoke of extreme poverty.

Let’s do a reality check on our number. This commercial ran in 2005, so the uncritical conclusion to come to is that they were talking about these 10,510,000 deaths occurring in 2005. I went to the CDC website and pulled up the death rates for 2005. We’ll also take the World Health Organization's definition of child as anyone under 18 living in a country which doesn’t have a lower age of majority. According to the CDC, 46,174 people under age 18 died in the USA in 2005.[1] That number includes deaths from all causes. Conclusion: Neeson was talking about a geographical area larger than the USA.  Let's take the entire world as our geographical area and test the numbers against that.

What are the child death rates worldwide? I’ve checked with the World Health Organization (WHO), and found that they keep track of child deaths under five,[2] but they don’t seem to have the statistics for children from 5-18. I’m going to assume that if the commercial got its children’s death rate from the WHO rather than conjuring it out of thin air, they were talking about the death rate for children under five.

Childmortality.org, which got its numbers from the WHO, says that in 2005 the worldwide total number of children under five who died from all causes was 8,246,000.[3] That doesn’t square well with the commercial’s claim of 10,510,000 deaths from extreme poverty alone.

Conclusion: the commercial's death rate was conjured out of thin air.

Moral: Never take anything you hear at face value, especially if it comes from TV, the internet, or the news media.

CHRISTIAN INFLUENCE IN MODERN AMERICAN SOCIETY

JOHN: I just read an article about a college ordering one of their students to take a Bible verse off of the door to his dormitory room because it was deemed offensive to post verses from the Bible. It seems as though our postmodern society is bent on eliminating every vestige of Christian influence.

NICK: That’s right, if we’re going to put our house in order,[1] we must get to the root of the problem [2] and eradicate all Biblical references one way or another.[3] We can't possibly have religious tolerance in America until Christian influence is erased from the four corners of the earth.[4]

JOHN: Aren’t you being too severe? Why can’t individual Christians exercise their religious beliefs by posting Bible passages in their personal space?

NICK: I can see that you’re not with us, and whoever is not with us is against us.[5] How can an educated person like you say anything in favor of those good for nothing[6] Bible thumpers? As Abraham Lincoln once said, "A house divided against itself cannot stand."[7] We have to unite under the banner of religious tolerance and eradicate all vestiges of Christian influence, starting with the Bible.

JOHN: I don’t think Lincoln was the first person to ever speak of a house divided.

NICK: The saying may be as old as the hills,[8] but be that as it may,[9] it applies to our situation.

JOHN:  Christians are peaceful, law-abiding citizens. There are few rotten apples in any barrel, but as for the majority of them I can’t think of a more inoffensive group of people. I think the First Amendment was written to protect non-violent expressions of faith such as this.

NICK: Your argument won’t hold water.[10] I can see right through it. I wasn’t born yesterday,[11] you know. These Bible thumpers are a brood of vipers.[12] They’re wolves in sheep’s clothing,[13] That’s what they are. They’re a gigantic thorn in the flesh[14] of American society. As that old Byrds song, Turn, Turn, Turn, says, "to everything there is a season,"[15] and the season of Christian influence in America is about over.

JOHN: Are you sure the Byrds are the first ones to say that?

NICK: Sure, I’m sure.

JOHN: Well, I can see that you’ve completely removed all Biblical influence from your life.

NICK: You don’t know the half of it.[16] I'm a real Doubting Thomas.[17] When it comes to being completely free of Christian influence, I’m head and shoulders above[18] everybody else. Haven’t  I convinced you that I’m right?

JOHN: I think I’ll answer that by referring you to Proverbs 26:4.[19]

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

1. 2 Samuel 17:23
2. Job 19:28-29
3. Job 33:14
4. Isaiah 11:12
5. Matthew 12:30
6. Proverbs 20:14
7. Matthew 12:25
8. Job 15:7
9. 2 Corinthians 12:16
10. Jeremiah 2:13
11. Job 8:9
12. Matthew 3:7
13. Matthew 7:15
14. 2 Corinthians 12:7
15. Ecclesiastes 3:1
16. 1 Kings 10:7
17. John 20:24-25
18. 1 Samuel 9:2
19. “Answer not a fool according to his folly, lest thou also be like unto him.”

MUCH ADO ABOUT NOTHING or WHY LET THE FACTS STAND IN THE WAY OF A GOOD STORY?

I have not followed the Marissa Alexander

case, but I have been exposed to it because

reporters keep calling me and asking me

about it. Today I resolved to do a little

research, not by reading news articles, but by

reading the case itself. It was an enlightening

experience. The standard scenario that has

been trumpeted in the press is this:

Alexander was defending herself against a vicious attack by her husband and fired a warning shot to stop him. If she had only shot him, she would have been exonerated under Florida’s Stand Your Ground Law. It’s horrible that a person can be imprisoned for firing a warning shot when they would have gone free if they had only killed the victim.
 

The media has emoted over this injustice, the

NRA has lobbied over this injustice, and the

Legislature is poised to fix this injustice with a

“warning shot” law.
 

What’s wrong with this picture? Everything.

First, the “factual” scenario being trumpeted in

the press is not what happened. The jury did

not convict Alexander because she used non-

lethal force. They convicted her because they

rejected her self-defense plea. Second, it is

not now nor has it ever been the law that

people firing a gun in self-defense are

penalized if they miss. It is now and has

always been the law that if you are justified in

taking a life in self-defense, you are also

justified in using non-lethal force in self-

defense.

When he rejected her SYG motion for

immunity, the trial judge made the following

findings of fact:

On August 1, 2010, the Defendant shot at or near Rico Gray Sr. [and his two sons]. The Defendant had not been living in the marital home for the two months leading up to the shooting. On the evening of July 31, 2010, the Defendant drove herself to the marital home and parked in the garage, closing the garage door after parking her vehicle. The Defendant stayed the night in the marital home. The next morning, on August 1, 2010, Rico Gray Sr. arrived at the marital home with his two sons [ ] and the children entered the home through the garage door. Rico Gray Sr. made the family breakfast and nothing went awry.

After breakfast, the Defendant went into the master bedroom. Before entering the bathroom, the Defendant handed her phone to Rico Gray Sr. to show him pictures of their newborn baby [ ], who was still in the hospital. At that point, the Defendant went into the master bathroom while Rico Gray Sr. looked through the phone. While going through the phone, Rico Gray Sr. observed texts from the Defendant to her ex-husband Lincoln Alexander prompting Rico Gray Sr. to question whether the newborn baby was his. At this point, Rico Gray Sr. opened the bathroom door to confront the Defendant regarding the texts. A verbal argument ensued between the Defendant and Rico Gray Sr. For this reason, Rico Gray Sr. stepped out of the bathroom and yelled for his sons to put their shoes on because they were leaving. Rico Gray Sr. returned to the bathroom and demanded that the Defendant explain the texts and the verbal argument continued. During the verbal argument Rico Gray Sr. stood in the doorway to the bathroom and the Defendant could not get around him. Either Rico Gray Sr. moved from the doorway or the Defendant pushed around him to exit the bathroom.

Rico Gray Sr. moved to the living room where his children were. Subsequently, the Defendant emerged from the master bedroom and went into the garage where her car was parked. The Defendant testified she was trying to leave the residence but could not get the garage door to open. (The Court notes that despite the Defendant's claim she was in fear for her life at that point and trying to get away from Rico Gray she did not leave the house through the back or front doors which were unobstructed. Additionally, the garage door had worked previously and there was no evidence presented to support her claim.) The Defendant then retrieved her firearm from the glove box of the vehicle. The Defendant returned to the kitchen with the firearm in her hand and pointed it in the direction of all three Victims. Rico Gray Sr. put his hands in the air. The Defendant shot at Rico Gray Sr., nearly missing his head. The bullet traveled through the kitchen wall and into the ceiling in the living room. The Victims fled the residence and immediately called 911. The Defendant stayed in the marital home and at no point called 911. The Defendant was arrested on the date of the incident.

The Defendant posted bail prior to arraignment and was ordered by the Court and signed a document through Pretrial Services stating she was to have no contact with the Victims in the instant case. However, the Defendant continued to have contact with the Victims in this case, more specifically with Rico Gray Sr. Prior to Rico Gray Sr.'s deposition, the Defendant and Rico Gray Sr. discussed what he should say at deposition.

Shortly after Rico Gray Sr.'s deposition, the Defendant drove to Rico Gray Sr.'s new house where his two children [ ] were staying (not the Defendant's home). While there, the Defendant physically attacked Rico Gray Sr., causing injury to Rico Gray Sr.'s face. Again, Rico Gray Sr. immediately called 911 after the incident and the Defendant did not. The Defendant was arrested on new charges and her bond was revoked.

* * *

There is insufficient evidence that the Defendant reasonably believed deadly force was needed to prevent death or great bodily harm to herself, another or to prevent the commission of a forcible felony. During the date in question, the Defendant alleged that while in the bathroom Rico Gray Sr. pushed her, and the bathroom door hit her in the leg when it swung open. Per the Defendant's own testimony, she did not suffer serious bodily injury as a result of the altercation that took place in the bathroom. Further, after Rico Gray Sr. exited the master bedroom, the Defendant intentionally passed by the Victims and entered the garage where she immediately armed herself and proceeded back into the home. This is inconsistent with a person who is in genuine fear for his or her life.

After weighing the credibility of all witnesses and other evidence, this Court finds that the Defendant has not proved by a preponderance of the evidence that she was justified in using deadly force in defense of self. Hence, the Defendant has not met her burden of establishing her right to immunity as a matter of fact or law.

Alexander v. State, 121 So.3d 1185, 190n.5

(Fla. 1st Dist., 2013) [emphasis original].

When you leave a confrontation to arm

yourself and return to the confrontation, you

are not under any rational interpretation of

self-defense laws acting in justifiable self-

defense. Nor are you firing a warning shot

when the bullet whizzes within inches of your

victim’s head. Not only did the judge rule that

Alexander couldn’t prove self-defense, the

jury ruled that the state had proven beyond a

reasonable doubt that she didn’t act in self-

defense. The result would have been the

same whether she shot her husband between

the eyes or she shot into the ceiling.

The District Court further ruled in their opinion

that it was not necessary to prove that

Alexander injured her husband for her to win

on a self-defense plea. They specifically ruled

that self-defense was available where

absolutely no injury was done to the victim.

Not only did the district court say this, there

was pre-existing legal precedent that held

this. Brown v. State, 59 So.3d 1217, 1218

(Fla. 4th DCA 2011).

Furthermore, in my 32 years’ experience of

prosecuting and defending criminal charges, I

have never seen or heard of a judge telling a

jury that the defendant had to injure the victim

before self-defense was available to him. And

I never saw a jury return a verdict of guilty

with the admonition, “If the defendant had

only shot the victim instead of scaring him half

to death, we would have found him not guilty.”

Now we have a veritable circus, as a distorted

version of the facts is trumpeted as true, an

erroneous interpretation of the law is

trumpeted as correct, and the Legislature is

making daily headlines with a bill designed to

fix something that wasn’t broken. I suspect

this commotion advances numerous agendas

on the part of some parties, but I know that it

doesn’t advance the cause of justice.

 

VIETNAM VETERANS: DRAFTEES versus VOLUNTEERS

I ran across an interesting statistic this evening. Only 25% of those who served in Vietnam were draftees. That means that a whopping 75% of the military personnel in Vietnam volunteered. During WW II the percentage of military personnel who were drafted was 66%. This means that only one third of the Greatest Generation volunteered. Does this reflect ill on WW II vets versus Vietnam Vets? I don’t think so. Of the 33% of WW II vets who volunteered, almost all of them were going to get drafted and simply volunteered in order to choose their service. If you were a service age man during WW II, you were going to serve in the military. This tells me that for WW II, percentage of draftees versus volunteers is meaningless. I do, however, think that the high percentage of volunteers who served in Vietnam reflects very well on our military personnel in that conflict. Despite the antiwar hoopla stateside, we still had dedicated, patriotic servicemen on the ground in Vietnam.

Another interesting statistic, a little over 30% of combat deaths in Vietnam were draftees. These men deserve our utmost respect and admiration. They didn’t take off for Canada when they got their notice. They went and served and paid the highest price anyone can pay. All Vietnam veterans deserved far more respect from their country than we gave them.

For more information about our Vietnam Era military service people, visit http://www.mrfa.org/vnstats.htm.

EGALITARIANISM AND THE MILITARY

We are the most egalitarian society in history. Women serve in combat units in the military, and the openly gay are now allowed in the military. Back in the stone age (WW II) our military allowed only heterosexual males into combat, thereby denying countless women and gays their egalitarian right to get themselves killed while carrying a rifle in combat. Our heterosexual males were so enthusiastic about availing themselves of this opportunity that most of them waited to be drafted instead of running right out and enlisting.[1]  We've fixed all that now by doing away with the draft and making our military a laboratory for experimentation in egalitarianism. Do we live in a great country or what? We do have a few problems relating to this exercise in egalitarianism,[2] but surely the effort we expend in getting these issues worked out is not going to compromise the military’s combat effectiveness.

The suggestion is now made that we cannot be truly egalitarian until we allow transgendered individuals into the military.[3] There is no mental health bar to allowing the transgendered into the military. The American Psychiatric Association just took a vote and abolished the mental disorder formerly known as gender identity disorder. Just look it up in the DSM V.[4] If someone is  not comfortable with being transgendered, that person may have a mild case of gender dysphoria,[5] but that’s nothing to worry about. The only real problem would be the hormone therapy.[6] We’d have to figure out some way to accommodate that. I’m sure that we can find a way to keep our transgendered soldiers in combat supplied with their regular dosages. It wouldn’t compromise combat effectiveness at all.  

I don’t think the APA should stop with gender identity disorder. They could greatly increase the number of potentially available soldiers by taking a vote and abolishing other mental illnesses.  

Our next step down the path of egalitarianism in the military should not come from the APA, though.  The American Medical Association has to help us do away with the ban on diabetics and asthmatics. If it doesn’t strain our logistical capabilities to keep the transgendered in combat supplied with their needed hormones, then it should be no problem at all to keep diabetic soldiers supplied with their insulin and asthmatic  soldiers supplied with their breathing therapy.  All we really need to do to make this happen is to have the AMA meet and vote that diabetes and asthma are no longer diseases. The APA did it. Why can’t the AMA do it too?

And while they’re at it, they can help remove an old stigma I suffered when I tried to enlist in the military during the Vietnam War. I want the AMA to vote high blood pressure off the list of diseases. I was denied entry into the military simply because I had an alternative blood pressure, and that certainly flies in the face of true egalitarianism. I’m sure the Army could have kept me supplied with my daily dose of blood pressure medicine when they sent me to Vietnam. Keeping soldiers supplied with necessary therapeutic drugs in a war zone should have been no problem at all.

I applaud our military’s ongoing experimentation with egalitarianism. I’m sure it has our enemies shaking in their boots.

SIMILARITIES BETWEEN NEW JERSEY versus BRUNO RICHARD HAUPTMANN AND FLORIDA versus THEODORE ROBERT BUNDY

In an earlier post I mentioned that I saw some striking similarities between the Lindbergh Kidnapping Case and our case against Ted Bundy for the kidnapping and murder of Kim Leach. Of course the motives for the two crimes were very different, and the two defendants came from very different backgrounds, but still some aspects were similar. Anyhow, in no particular order, here are some of the similarities that I saw in the two cases.

1)      The lead prosecutor in both cases had never before tried a murder case as a prosecutor. David Wilentz told the jury that he had never prosecuted any case before. It appears from his final argument, however, that he was an experienced civil trial attorney. I had much more experience in the trial of criminal cases than Wilentz. I had tried several murder cases as a defense attorney, and I had tried many cases as a prosecutor, but the case against Bundy was the first murder case which I tried as a prosecutor.

2)      Both prosecutions seem to have been organized in similar fashion. We decided on a modular presentation for the Bundy case, and I believe that I can detect a modular format for the Lindbergh case. At first our modules were well defined, but their orderliness broke down over time. I believe I can see such a pattern in the Lindbergh case. We ended our case with a witness who was an expert in a relatively exotic field of forensic science. The Lindbergh case ended with an  expert in a relatively exotic field of forensic science.

3)      In both cases the bodies of the victim were found away from a highway and partially covered. The condition of the two bodies was very similar.

4)      In both cases clothing found at the scene was helpful in identifying the bodies.

5)      Cause of death was an issue in both cases. Unlike the Lindbergh case, however, we sought out and used the most qualified forensic pathologist we could find to perform the autopsy. The doctor who performed the autopsy in the Lindbergh case was a local doctor who had little experience with such cases, and his examination left quite a bit to be desired.

6)      Both cases involved extensive investigations in two different jurisdictions—one a large city and one a small town. The Lindbergh case involved an extortion in New York City and a murder in Hopewell New Jersey. Our case involved Lake City Florida and Tallahassee. Both jurisdictions had parallel investigations going on which complemented each other.

7)      We could not have made our case in Lake City without the investigative work done by the Tallahassee Police Department, the Leon County Sheriff’s Office, and the FSU Police Department. The case in New Jersey could not have been made without the investigative work done in New York City by the NYPD and the FBI.

8)      Hopewell’s local law enforcement agencies were not equal to the task of investigating the Lindbergh kidnapping. Lake City’s local law enforcement agencies were not equal to the task of investigating the Bundy case.

9)      Both cases were made with the intervention of statewide law enforcement agencies. They had the New Jersey State Police, and we had the Florida Department of Law Enforcement and the Florida Highway Patrol. We had the better statewide agency. At the time of the Lindbergh kidnapping, the NJSP was little more than a sort of glorified highway patrol. In our case the FDLE was not only staffed with investigators experienced in complex investigations, it had an excellent crime lab.

10)   Both cases were plagued by interdepartmental rivalry. In the Lindbergh case there was a three‑way tug‑of‑war between the NJSP, NYPD, and FBI. In our case we have even more vying agencies. They never seem to have achieved a modus vivendi in the Lindbergh case; we partially solved our problem by forming a task force comprised of investigators from all involved agencies.

11)   The Lindbergh case was plagued with eyewitnesses who had serious credibility problems. All of our eyewitnesses had credibility problems. In our case, however, there was never any question about the honesty of our witnesses, just their ability to observe and remember.

12)   One of the eyewitnesses in the Lindbergh case was Amandus Hochmuth, an octogenarian with poor eyesight. Hochmuth placed Hauptmann at the entrance to the Lindbergh residence on the day of the crime. One of our eyewitnesses was Clinch Edenfield, a septuagenarian with poor eyesight who put Bundy at the Lake City Junior High on the morning Kim went missing from the junior high.

13)   The prosecution’s star eyewitness in the Lindbergh case was John Condon, a man whose eccentricities called his veracity into doubt. We managed to destroy the credibility of our star eyewitness by hypnotizing him and thereby giving the defense an opportunity to call mental health experts who convincingly testified that the hypnosis could have planted false memories.

14)   A significant portion of the evidence against Hauptmann was the testimony of examiners of questioned documents who identified Hauptmann’s handwriting on the ransom notes. A significant portion of our evidence was the testimony of an examiner of questioned documents who identified Bundy’s handwriting on various forged credit card receipts placing Bundy in Lake City on the day of the crime.

15)   The final witness in the Lindbergh case, Arthur Koehler, put Hauptmann at the scene of the crime by matching a part of the kidnapper’s homemade ladder to a board taken from Hauptmann’s attic. The final witness in our case, Lynn Henson, put Bundy at the scene of the crime by matching fibers found at the scene to fibers from Bundy’s clothing. Koehler also tied Hauptmann to the ladder with a tool mark examination showing, among other things, that Hauptmann’s wood plane was used to plane the boards of the ladder. Henson also tied Bundy to our crime scene by doing a shoe track comparison which connected two pairs of Bundy’s shoes to the scene.

16)   Both the investigation and the prosecution of the Lindbergh case were severely hampered by overwhelming news coverage. Both the investigation and the prosecution of our case were severely hampered by the intense news coverage.

17)   A license tag number figured prominently in both cases. In our case Bundy was found in possession of a stolen license tag, 13d‑11300, which helped to identify him as the kidnapper. Bundy had the stolen tag on the murder vehicle when he purchased gasoline in Lake City, and the attendant wrote the tag number down on the credit card receipt. In the Lindbergh case, a gas station attendant was suspicious of the gold certificate Hauptmann used to pay for some gasoline. The attendant wrote Hauptmann’s tag number on the gold certificate. When the certificate was identified as a ransom bill, they traced it to Hauptmann by the tag number.

18)   In both cases significant incriminating evidence was overlooked by the prosecution and did not surface until years later. In his new book, Hauptmann’s Ladder, Richard T. Cahill outlines some significant evidence that Hauptmann tried to buy a sheet of plywood at a Bronx lumberyard using a $10.00 gold certificate, probably one of the ransom bills. When the clerk objected, he took the bill back and his companion gave her the 40 cent price of the plywood sheet. The clerk was suspicious enough to write down the tag number of the purchaser—Bruno Hauptmann’s tag. Cahill found documents suggesting that this evidence was given to the New York grand jury which indicted Hauptmann for extortion, but it was never mentioned in the New Jersey murder case. The only reasonable explanation I can think of for their not using this evidence at the trial is that the New Jersey prosecution team was unaware of it. In our case a soil expert pinpointed the location of the body by examining soil found in the murder vehicle. This evidence was ignored and played no part in the discovery of the body. It was never communicated to the prosecution team, and I found out about it decades later. If I had known about it at the time of the trial, the jury would certainly have heard about it.

19)   Both cases were circumstantial evidence cases which required fitting together a mass of circumstances to obtain a picture of what happened. No single circumstance was enough in either case. It took all the circumstances together to get a conviction.

20)   In both cases the defense team put on a pathetic showing with the evidence they offered in defense of the charge. They did so poorly in the Lindbergh case that Wilentz decided to shorten his rebuttal. They did so poorly in our case that we put on a very brief rebuttal.

In some areas, we had the advantage over the Lindbergh case prosecution team, in other areas they had the advantage over us. The area where they had by far the greater advantage was in the area of case quality. We analyzed our case as being iffy enough that there was a real question whether we were going to be able to get a conviction. The foreman of the jury, who later wrote a newspaper article about his experiences, agreed with us. He said he was initially surprised at the low quality of our evidence, but we eventually pulled everything together with the accumulation of circumstances. He also said if the defense had offered a scintilla of evidence supporting the theory they argued, they would have gotten an acquittal. The defense, of course was severely hampered by the fact that their client was guilty. I’ve read the Lindbergh trial transcript several times now, and I don’t see how the trial jury could have come to any verdict other than guilty based on the evidence presented at trial.

One of the biggest differences between the two cases was the behavior of the defendant at trial and post‑trial. Hauptmann testified at trial, a huge mistake; Bundy didn’t, an excellent decision. Hauptmann was thoroughly discredited on cross-examination; Bundy would have been thoroughly discredited on cross if he had taken the stand. Hauptmann maintained his innocence to the bitter end; Bundy confessed to thirty murders (including ours) in an effort to delay his execution. I’m glad he finally confessed. If he hadn’t, our case would be plagued with myriads of innocence theories just as the Lindbergh case is.