Expert testimony and risk assessment in stalking cases: the FBI's NCAVC as a resource.

Upon finding Judy in the process of moving out, John tried to strangle her. When Judy's sister, there to help in the move, attempted to stop him, he assaulted her, too. Before police apprehended John, he swallowed a bottle of muscle relaxers and threatened to shoot himself.

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After a short stay at a mental health facility, John began harassing and stalking Judy. Over the next few months, he forged her checks and fraudulently submitted a change of address form, diverting Judy's mail to him. Because John would not leave her alone, coupled with her awareness of violence and death threats in his prior marriage, Judy feared for her life and obtained a restraining order.

A few days after being served, John took a revolver he owned to a gun store to trade it for a semiautomatic handgun. After a background check revealed an active restraining order, the dealer refused the purchase and later called to report the incident to the police, who immediately obtained a court order to seize the revolver. John denied to officers that he possessed the weapon. After determining through an interview of one of his friends that he still had the handgun, the police obtained an arrest warrant for violating the court order. Following his apprehension, John volunteered the location of the weapon only after sitting in a cellblock for several hours. The arraignment judge continued to maintain a sizeable cash bail and ordered him held until a hearing could determine his dangerousness and mental condition.

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Prior to the hearing, the defense attorney transferred the case to a higher court for bail review. The judge, who did not know the facts leading up to the arrest, relied upon the defense attorney's representation that John no longer presented a threat. The new prosecutor, also unaware of the case background, did not contest the lower bail request.

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Upon his release, John went to a friend's house, stole another handgun, and, within 5 days of getting out of jail, determined Judy's place of residence. He broke into her house and, armed with the weapon, hid in a closet. Within a short time of arriving home, she went to the bedroom where John waited. He stepped out of the closet, shot Judy to death, and then turned the gun on himself and took his own life.

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Every year, this type of tragedy occurs hundreds of times throughout America. Stalking behavior precedes a high percentage of these murders. (1) Stalking, (2) as defined in the criminal justice system, refers to acts of following, viewing, communicating with, or moving in a threatening or menacing manner toward someone without that person's consent. It entails a pattern of harassing behaviors intended to frighten, intimidate, terrorize, or injure another person. The primary motives for stalking include power, control, and possession. Offenders refuse to accept the end of the former relationship (real or perceived) and to give up their hold over the victim. Stalkers look upon the individual as a possession, one that solely belongs to them.

People targeted by stalkers often feel anxiety, stress, and fear; many times, they make dramatic changes in their lives. To escape the harassment, victims may move from their homes and change their jobs, names, or social security information to avoid discovery by their pursuers.

In the opening scenario, authorities released John twice on his own recognizance prior to the murder. In some active stalking cases, incarceration may save a life when the offender follows a path to violence. After an arrest for stalking, however, law enforcement must confront the challenge of proving the threat potential of the individual. Unlike other types of cases in which a person's dangerousness is obvious based on past behavior, officers usually apprehend a stalking offender before an attack. Violations of laws prohibiting stalking have their basis in repetitive, threatening behaviors that suggest an imminent act of violence. Thus, when a stalker faces arrest for sending threatening letters or displaying other harassing behaviors, police and prosecutors must make a clear and compelling case for a posed threat, even though the defendant has not yet engaged in an attack. This assessment can be based upon expert testimony and other evidence that convinces a judge of dangerousness under a clear standard of proof.

THE EXPERT WITNESS

Calling an expert witness represents one way to establish a posed threat. Criminal investigators who specialize in analyzing and investigating violent behavior can give their opinions based on their training and experience with prior cases. A prosecutor would qualify an expert witness by first establishing the officer's educational and work history and then requesting that the court recognize the investigator's suitability as an expert. A similar approach would serve in qualifying a mental health professional or crime analyst.

A well-prepared expert witness can testify to the past behavior of the defendant and offer an opinion as to whether the individual seems likely to engage in future violence. (3) An investigator experienced in intimate partner homicides, for example, can identify common behavior patterns characteristically seen in offenders prior to a murder. Expert witnesses also must have familiarity with studies and publications involving stalking and domestic violence murder.

Additionally, they should learn as much as possible about the individual's background by consulting with the families of both the victim and the defendant. Detailed questioning targeted at identifying prior behavior helps to determine the exact nature of the victim-offender relationship and the subject's response in past conflicts--the crux of any assessment as to the potential for violence. Some of the suggested information to collect includes the offender's previous threats or acts of rage; prior unstable behavior (e.g., angry outbursts) or other conditions, such as weight fluctuation, depression, or recent loss (e.g., job or family); mental health background, including medications used; arrest history and prior stalking behavior; addresses over the last 10 years; suicide threats or attempts; and military or other background identifying experience with weaponry.

To gain additional information about the individual, investigators can check to see if the court has received prior presentence reports as they usually contain a great deal of insight. Experts also should consider educating the judge about state or national domestic violence murder statistics. Finally, they should consider any risk-of-flight indications and enter them into evidence as they can help determine whether a defendant should remain in custody.

Investigators experienced in stalking cases certainly can serve as experts based upon their backgrounds and knowledge. However, another resource available to law enforcement for the evaluation of threats and assessment as to the risk of violence is the FBI's National Center for the Analysis of Violent Crime (NCAVC) located at the FBI Academy at Quantico, Virginia.

THE NCAVC

NCAVC staff members can provide advice and assistance in the general areas of crimes against children and adults, counterterrorism, and threat assessment. Typical cases received for services include abductions and mysterious disappearances of children; serial murders; single homicides; serial rapes; threats; and assessments of dangerousness in matters, such as workplace, school, and domestic violence, as well as stalking. Other investigations that the unit responds to include extortions, kidnappings, product tampering, arsons and bombings, issues regarding weapons of mass destruction, and domestic and international terrorism. Annually, personnel handle more than 1,500 requests for assistance from both domestic and foreign law enforcement agencies.

The NCAVC reviews specific crimes from behavioral, forensic, and investigative perspectives. This analytical process serves as a tool for client law enforcement agencies by providing them with an evaluation of the crime, as well as an understanding of the criminal motivation and behavioral characteristics of the offender. The unit also conducts in-depth research in the area of violent crime from a law enforcement perspective in an effort to gain insight into criminal thought processes, motivations, and behaviors. Staff members share the results of this research with the law enforcement and academic communities through publications, presentations, and training and apply it to the investigative and operational functions of the NCAVC. When requested, personnel provide expert testimony.

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The unit typically consults on matters of stalking when requested to conduct a threat assessment, render an opinion as to the potential risk for violence, or provide investigative strategies. If necessary, staff members will provide expert testimony at a bond hearing or at sentencing as to the level of threat posed by an offender to a victim. Only law enforcement agencies and prosecutors' offices can request services.

The Assessment of Threats

Threat assessment refers to the evaluation of the credibility and overall viability of the expressed intent to do harm. A thorough analysis includes examining the exact nature and context of a threat, the identified target, the threatener's possible motivation (e.g., punishment, hate, or revenge), and the offender's ability to carry it out. Other issues to consider include, among others, the threatener's personal background (e.g., criminal and psychological) and relationship with (e.g., sexual involvement) and behavior toward the victim. The NCAVC has found that looking at what has happened in the past and then comparing that with other cases in which violence has occurred represent the best predictor of future behavior.

Evaluating the potential for violence requires a consideration of the offender's behavior in its totality. The unit takes into account specific actions and other factors that suggest the potential for dangerousness. Some of these include--

* threats to kill;

* access to or recent acquisition of weapons;

* symbolic violence;

* violations of protective orders;

* prior physical violence against the victim or others, including pets;

* substance abuse;

* location of violence (public or private settings);

* status of the offender-victim relationship;

* continued harassment by phone, computer, fax, or letter at home and at work;

* surveillance of the victim and "chance" meetings;

* mental illness;

* prior intimacy with the victim;

* fantasy-homicidal/suicidal ideation;

* obsessive jealousy;

* offender viewing self as the victim;

* desperation;

* blaming of the victim for personal problems;

* loss of power/control; and

* mission-oriented mind-set with a focus on the victim.

Research suggests a strong connection between stalking and domestic violence, concluding that 81 percent of women stalked by husbands or cohabitating partners also endured physical assault by the individual. Twenty-one percent of these victims said that the stalking occurred during the relationship, and 36 percent reported that it happened both before and after the relationship ended. (4)

While many stalking cases involve a known offender, thereby allowing law enforcement to analyze a threat, evaluate the stalker-victim relationship, and consider specific behaviors indicative of violence, other instances involve an unknown offender or no previous stalker-victim relationship. In these cases, investigators rely on evaluating the communicated threats to identify the individual and to determine the potential for violence.

Addressing one final concern, depending on the facts and circumstances, law enforcement may analyze whether the alleged stalking, in fact, did take place or if it was falsely reported. Such an evaluation would help lead to an informed judgment as to whether someone who has made a threat actually poses one and would aid in the formulation of the proper intervention strategy and response.

Case Example 1: Expert Testimony at Sentencing

In July 2000, Eric began sending e-mails to Tina, a television reporter. The themes, mostly sexually oriented, also included intimidating and harassing threats. One of the messages contained the following: "I am not the type of obsessed viewer that hides in the bushes near your home to watch you come home from work, but we shall see. That may actually be fun."

The local FBI office opened an investigation and identified Eric as the offender. The case agent contacted him both by e-mail and telephone and admonished Eric to stop his unwanted communication with Tina. This worked for a while. Then, rambling, handwritten letters from Eric began arriving at the victim's television station. Telephone calls followed the letters. Tina's fellow employees began to screen her phone calls.

In the fall of 2000, Tina accepted a full-time position with a television station in a neighboring state. By Christmas 2000, Tina received a letter at her parent's home from Eric in which he stated that he had created a Web page titled, "Tina Hates Me." Eric began posting numerous pictures of the victim and e-mail messages to and about her at the site. Tina again began receiving telephone calls from him at her new place of employment.

In February 2001, Eric filed a civil suit against the victim that essentially accused Tina and an unknown assailant of stalking him. He wrote in his complaint that the "plaintiff has required psychiatric services due to the willful, wanton, deliberate, and negligent acts of the defendants." Eric also, using aliases, began sending Tina numerous other written and e-mail communications. In addition, he mailed several gifts to her.

Interestingly, Tina never had met Eric. She did not know who he was--not unusual in this type of case. Eric was, in fact, homeless and conducting his stalking operation of Tina out of an abandoned building. He had managed to tap into electrical and telephone lines and set up a computer system in his makeshift residence. He previously had resided on the streets, in vans, and in shelters. He also allegedly accessed the Internet at a local university and a public library. Eric enjoyed communicating to Tina personal information about her and her family and friends that he had gleaned from the Internet, other public sources, and telephone calls wherein he pretended to be a friend or associate of hers.

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Eric had a lengthy criminal history, with nearly two dozen arrests. He abused drugs and had several arrests for passing forged prescriptions. He faced arrest once for possessing a concealed handgun and a second time for pointing a .22-caliber rifle at police responding to a shots-fired call. Eric's personal history also included a brief emotionally and physically abusive relationship with another woman and a failed enlistment in the U.S. Army.

In March 2001, the case agent contacted the NCAVC and requested a threat assessment and suggestions for investigative strategies. After reviewing the case material submitted, the NCAVC opined that the risk to Tina would increase if Eric traveled interstate to contact her, tried to meet her in person at her residence or workplace, or attempted to circumvent any security system to reach the victim in person.

By July 2001, Eric had carried out all of the actions that the NCAVC had warned about. The FBI and the local U.S. Attorney's Office moved aggressively and executed arrest and search warrants on him. He received federal charges of interstate stalking, cyber-stalking, (5) and mail theft (as he had stolen mail from Tina's residence).

The NCAVC provided additional assistance to the case agent and the assistant U.S. attorney prosecuting this case in the form of on-site prosecutive strategy for trial. June 2002 brought Eric's trial and conviction, only the third federal conviction and the first in that state for interstate stalking and the first federal conviction for cyberstalking.

Further, the unit testified as to the nature of stalking and the danger posed to Tina by Eric. Because of this threat, federal authorities filed a motion for an upward departure of sentence. The sentencing guidelines recommend 57 to 71 months. The government's motion was granted and Eric received a 96-month prison sentence.

Case Example 2: Expert Testimony at a Bond/Detention Hearing

Ann, a college student, first met Robert, a government employee, in the winter of 1991 on a ski trip. Both lived in the same city and began dating. Later, when Ann attended graduate school in a different state, they maintained a longdistance relationship through phone calls and occasional visits. Upon Ann's graduation, she moved back to the area to work for a federal agency. In January 1993, she and Robert began living together.

Between January and May 1993, Robert became violent and destructive and, through his own admission, used cocaine. In May 1993, Ann moved out of their shared apartment and ended the relationship. Robert began writing letters to her; she never acknowledged receiving them as she wanted nothing to do with him.

In June 1993, Robert moved to another state and told Ann he had entered a drug treatment program. He later returned to the area and began to harass and stalk her. During this period, Robert sent three to four letters a day to her residence and place of employment. At one point, he showed up at her workplace, but security guards turned him away. He incessantly called Ann at home and at work and would show up "by chance" at church, sometimes sitting in a pew across from her, and at the grocery store. Robert secretly watched Ann and then in subsequent letters divulged that he knew what she did at a particular date and time. The theme of many of his letters was, "I just want to talk."

Ann ultimately filed for a civil protection order. After the filing, Robert showed up at her residence and forced his way into her apartment, where he physically assaulted her. In another instance, he attempted to block her vehicle with his when they both sat at a traffic light and then rammed her car. Robert violated the order, which provided for no contact, numerous times.

A bench warrant was issued for Robert's arrest. He fled to another state where he had family. While there, he began faxing threatening letters to Ann at her place of employment. Because they crossed state boundaries and before a federal stalking statute existed, the FBI arrested Robert for the interstate communication of threats. After his conviction, he received 3 years in prison.

While incarcerated, with his mailing privileges severely restricted, Robert continued to send threatening communications to Ann by having other prisoners mail the letters for him. Further, he told inmates that, upon his release, he planned to kill her. When prison guards checked his cell, they found a 12-page manuscript titled, "The Tragedy of Love," which specifically detailed how Robert would travel to find and murder Ann and then kill himself, ending with "If I can't have you, no one can." His conviction for these acts brought a 42-month prison sentence. Since then, Ann had not received any new correspondence from Robert.

At the end of December 1999, Robert finished his sentence; Ann dreaded his release. Throughout the ordeal, she had found it necessary to move twice, change her telephone number numerous times, and receive her mail at a post office box, as well as warn her family of danger, file numerous police reports, and advise her employer of the situation. Ann, since married and expecting her first child, had concern for her own and her family's safety. In early December 1999, Ann met with prosecutors at the local U.S. attorney's office to discuss this issue; a safety plan resulted.

Shortly after this meeting, Ann received a one-page type-written letter postmarked from a different city, allegedly written by Robert. He emphasized his need to talk and wanted some answers from her. He mentioned in the letter that "I am going to find you"; "I will be contacting you"; "I can't let this drop, I must have closure"; and "You have destroyed lives." This communication was brought to the attention of the U.S. attorney's office, the local FBI office, and subsequently the NCAVC.

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The NCAVC faced a number of questions. Did the offender author this communication? Did it appear threatening? Did the individual pose a threat to the victim and her family? The unit reviewed the threatening letter and compared it with communications received previously by Ann. This authorial attribution, or text analysis, included the examination of sentence structure, phraseology, level of word usage, and overall message composition. The NCAVC concluded that Robert authored all of the communications.

This eased a concern for prosecutors who feared that Ann, knowing of Robert's pending release, might possibly send a letter to herself as a way to keep him in jail. Moreover, Ann had no ties whatsoever to the city postmarked on the letter. And, much later in the investigation, an inmate surfaced that admitted mailing the communication for Robert. The NCAVC further opined that if the victim, wanting to keep Robert in prison, authored the communication, it would have contained more demonstrative and graphic threats. To the contrary, while the letter focused on Ann and referenced themes seen in previous communications, much more benign and low-key verbiage characterized this letter. However, this style did not negate its threatening nature. It seemed that the offender had learned from his previous mistakes and tried to tone down his rhetoric from previous communications.

Robert met with a prison psychiatrist in late November 1999, prior to the latest letter. This evaluation provided insight into Robert's recent state of mind. The analysis described him as unstable, moody, argumentative, and angry and found that he blamed others for his problems. Further, he felt no remorse for his crimes and considered himself justified in writing the threatening letters as Ann had "wronged" him. The evaluation further stated that he had "nothing to lose," particularly as he faced a lifethreatening disease. Robert also expressed that he could not let go of his emotional ties to Ann or guarantee that he would not try to contact her, even knowing that it would violate conditions of his release.

In view of the facts presented and the totality of the behavior exhibited by Robert toward Ann, the NCAVC opined that he presented a high potential risk for violence to her. The FBI made this threat assessment part of an affidavit for the arrest warrant for Robert. After his subsequent arrest, he did not leave prison. Further, the NCAVC provided expert testimony regarding the potential for violence at a detention/bond hearing in U.S. District Court. Authorities held Robert without bond. He subsequently pled guilty to mailing threatening communications and stalking and received a 5-year prison sentence.

LEGAL CHALLENGES

Defense attorneys often raise objections to what they perceive as excessive bail in stalking cases. While the Eighth Amendment prohibits excessive bail, it does not forbid detaining someone without bail if it serves the purpose of protecting someone else's safety. In United States v. Salerno, (6) the U.S. Supreme Court upheld the pretrial detention of an organized crime figure, considering it a safety measure, not a punishment. In Mendonza v. Commonwealth, the state of Massachusetts upheld the pretrial detention of a man charged with violating a protection order because he had dumped gasoline on his body and threatened to ignite himself when police went to arrest him for trespassing in the victim's home. (7) The court in the Mendonza case specifically noted the high correlation between suicide and murder in domestic violence separation cases. (8)

These cases illustrate the constitutionality of a government request to hold a dangerous person without bail. However, most bail statutes allow a judge to consider, as an alternative, conditions of release that will ensure safety and prevent flight. Thus, experts should prepare themselves to assist the prosecutor and court with recommendations for supervised release strategies in case the defendant is released. Electronic surveillance (e.g., bracelets) can serve as an alternative measure. Similarly, an expert witness can assist the judge in determining whether the offender likely continues to pose a danger to the victim.

CONCLUSION

Offenders engaging in stalking behavior follow a path that ultimately can lead to homicide, as illustrated in the opening scenario. In that case, John murdered his victim within days of his pretrial release. In instances where the stalker faces arrest prior to an attack, law enforcement agencies and prosecutors must confront the challenge of proving that the individual is too dangerous for release. Expert testimony can serve as the key that enables prosecutors to offer risk assessment opinions from qualified, experienced investigators, which can result in authorities holding offenders without bond or sentencing them for a longer term.

The FBI's National Center for the Analysis of Violent Crime stands as a resource available to all of law enforcement in conducting threat assessments in stalking cases and rendering expert opinions as to the risk for violence. Two cases have illustrated how the NCAVC assisted prosecutors by providing expert testimony to convince the judge that the offenders posed a risk to the victims. In such matters, the courts have recognized that some individuals are not entitled to bail and that they should receive longer sentences in certain circumstances. The key to any threat assessment, however, is a thorough investigation in which investigators gather the appropriate information on the victim and offender, detailing exhibited behaviors that might suggest future dangerousness. These efforts can go a long way to help ensure the safety of individuals terrorized by stalkers.

Endnotes

(1) U.S. Department of Justice, The Second Annual Report to Congress Under the Violence Against Women Act (Washington, DC, July 1997).

(2) For additional information, see George Wattendorf, "Stalking-Investigation Strategies," FBI Law Enforcement Bulletin, March 2000, 10-14; and Robert Wood and Nona Wood, "Stalking the Stalker," FBI Law Enforcement Bulletin, December 2002, 1-7.

(3) Although a court may exclude this type of evidence at a trial because of prejudices, it would be admissible at a bail or sentencing hearing.

(4) Patricia Tjaden and Nancy Thoennes, Stalking in America: Findings from the National Violence Against Women Survey, April 1998; retrieved on May 18, 2004, from http://www.ncjrs.org/txtfiles/169592.txt.

(5) For additional information, see Robert D'Ovidio and James Doyle, "A Study on Cyberstalking," FBI Law Enforcement Bulletin, March 2003, 10-17.

(6) United States. v. Salerno, 481 U.S. 739 (1987).

(7) Mendonza v. Commonwealth, 423 Mass. 771 (1996).

(8) For another recent case opinion upholding preventive detention, see United States v. Goba, USDC West District NY (Oct. 2002).

By EUGENE RUGALA, JAMES MCNAMARA, M.S., and GEORGE WATTENDORF, J.D.

Special Agent Rugala serves in the National Center for the Analysis of Violent Crime at the FBI Academy.

Special Agent McNamara is assigned to the National Center for the Analysis of Violent Crime at the FBI Academy.

Mr. Wattendorf is a prosecutor and officer for the Dover, New Hampshire, Police Department.