EXPERIENCE IS THE GREATEST TEACHER, PROSECUTING A SERIAL KILLER, AND FEDERAL SUPERVISED RELEASE - 080

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This week on the Writer's Detective Bureau, experience is the greatest teacher prosecuting a serial killer and federal supervised release. I'm Adam Richardson and this is the Writer's Detective Bureau. Welcome to episode number 80 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional quality crime related fiction. And this week I'm answering your questions about the little things that police work teaches cops about daily life, prosecuting a serial killer when not all of the victims have been found, and how someone on federal supervised release would show up on the radar of the US marshals.

But first, I need to thank gold shield patrons, Debra Dunbar from Debradunbar.com, C.C. Jameson from CCJameson.com, Larry Keaton, Vicki Tharp of Vickitharp.com, Chrysann, Larry Darter, Natalie Barelli of Nataliebarelli.com, and Craig Kingsman of Craigkingsman.com for their support. And I'd also like to send a huge thank you to my coffee club and silver cufflink patrons. You can find links to all of the writers supporting this episode in the show notes at writersdetective.com/80. To learn more about setting up your own Patreon account for your author business or to support the show for as little as $2 per month, visit writersdetective.com/Patreon, P-A-T-R-E-O-N.

Before I get into this week's questions, after last week's podcast episode where I talked about the ethical concepts of utilitarianism and deontology, Rankin Johnson commented in the Facebook group, "Adam, I'm a regular listener of your podcast and I enjoy it, but I just listened to the February 15th podcast and I didn't think you gave a fair interpretation of utilitarianism. You said that a utilitarian might not arrest the police chief's kid for DUI, which would avoid an embarrassing story in the paper. John Stuart Mill would be horrified. A utilitarian might choose not to arrest for DUI because arresting the defendant would cause him to lose his job and thereby his house rendering his children homeless or because if he arrested the chief's kid, the charges would be dismissed and he would be fired and could no longer provide for his family. But in light of the harm caused by drunk driving, I suspect that most utilitarians would want to see the drunk driver arrested.

"Utilitarianism, like any other moral philosophy can be twisted or misused to reach a desired end, but that's not the flaw in the theory. It's user error." To which I replied, "Rankin, you are 100% correct about this and I'll offer a more accurate account of how utilitarianism can be the right thing to do in a practical law enforcement scenario." And then Rankin kindly replied, "Law enforcement looks inherently utilitarian to me because it's filled with choices about where to spend limited resources. By contrast, when I was working as a criminal defense attorney, my arguments were often deontological. The police officer didn't have a lawful reason to search the trunk of the car. So it doesn't matter that he found 17 pounds of cocaine in a dead body, or that hearing had to be held within three days of arrest. It doesn't matter that the arresting officer was in the hospital because my client allegedly shot him."

So first of all, Rankin offered excellent examples of deontology at work right there. So in his examples, the right thing for the police officer to do was to obey the fourth amendment. So the question is whether it's right to search the trunk or not, and whether the officer found the cocaine and the dead body shouldn't factor into the analysis of right version versus wrong. Because in deontology, as we talked about last episode, the outcome is irrelevant. It's whether the act itself is moral. But to get back to Rankin's original point, I did not give utilitarianism a fair shake in my example. Now, if you recall from the last episode, I talked about the decision on whether to arrest a police chief's son for DUI. And I agree with Rankin that my commentary wasn't a fair interpretation of utilitarianism. A more appropriate example might be one where an officer pulls over a woman for speeding. He quickly learns that she's a single mom raising two kids and speeding to get from her day job to her night job because she works two minimum wage jobs to provide for her kids and barely makes ends meet.

She apologizes for speeding and promises to slow down and she says that the fine for speeding, if the officer tickets her, will result in her not being able to pay the rent or feed her kids. So what's the right thing to do here? Is it to give her a ticket or give her a warning? A deontologist would likely argue that it doesn't matter that the fine for speeding may render her homeless or her kids hungry, the law applies to everyone equally. A utilitarian, however, might argue, much like Rankin mentioned in his own comment, that the right thing to do is to give the woman a warning because the fine may be overly harsh and then it may render her and her children homeless and without food. And for her the $300 fine would equate to an exponentially bigger costs in terms of a percentage of income lost than someone earning two or three times the rate of minimum wage.

I guess my point in bringing up utilitarianism versus deontology is that, as Rankin said, law enforcement looks inherently utilitarian because it's filled with choices about where to spend limited resources, and while that's certainly accurate when we're talking about the deployment of resources in the field, like how many police cars will work in a given beat, I feel that the deontological and its importance is grossly overlooked when it comes to how individual officers do their job on a daily basis. Now, I certainly agree with Rankin that from a strategic view it is very utilitarian, but at that granular implementation level, a lot of the decision making is an equal balance between utilitarianism and deontology. Deontology is why homicide detectives work every murder regardless of the decedent's station in life. As Michael Connelly's character Hieronymus Bosch says, "Everybody counts or nobody counts."

Jason writes, "Fate is a theme in something I'm working on. I'd like to hear maybe a list of those tiny daily events that you've maybe encountered so often you compensate for them as a matter of reflex. Maybe because they've nearly cost you attention that needed to be on a suspect or event, for instance. This wire or piece of gear snags on the edge of the door when you get out of the cruiser so you have a hand over at all the time, just as a matter of course. You double check the little red light on the corner of the camera before the interview. Pat your pocket for extra batteries or something before you sit down. Those sorts of petty details that aren't petty anymore once they go wrong once. Does that make sense? Here's a stranger example. When you guys look over your shoulders, sometimes you appear to be looking for something specific like it's a memory driven.

"Instead of that unfocused check folks do when they've learned a level of ordinary on the job paranoia. I realize I'm straying toward the insensitive here and that's not my aim, but are you, for instance, taught to look for extremely specific vectors of attack under certain circumstances or is all that learned on the job? One of my investigators is more present than the other, much more dynamic and physical. His awareness comes from his body to a much greater degree than the other whose nature will be less grounded. I want to emphasize these contrasts and from time to time exaggerate them. I'd like to have the ammo to express this in sharp, jagged snapshots that are based in reality." Great questions, Jason. First and foremost, the majority of our officer survival training comes from hard learned lessons as a result of how cops have been killed. We dissect what little things could help mitigate those situations in the future.

Then we instill new officers with those lessons in the academy and in field training. So for example, when a cop pulls you over at night, what does he do when he walks up to your car? He lights you and the interior of your car up with his big bright flashlight, right? It's a pretty smart thing to do. Good situational awareness, right? You'd be surprised how much training goes into learning how to safely use your flashlight. And I won't bore you with all flashlight lessons, but number one, if the driver pulls a gun on you as you turn on your light, can you guess what is going to reduce your likelihood of survival to almost nil in that situation? What's the one thing you may have done that could have just killed yourself when you were turning on that light? Having the damn light in your gun hand.

How many dead cops on the side of the road did it take for us to learn this lesson? But learn we did. So starting with day one in the police academy, you carry everything in your non-gun hand. Your gun hand is for your gun, for your survival. To this day when I'm coming into the house with four or five bags of groceries, all four or five are in my left hand and my right hand is free. And the funny thing is I don't even know I'm doing it, but that's just one tiny example of the stuff we glean about survival from the lessons that ambushes teach us. But more than anything, experience is the greatest teacher. I've spent hundreds, if not thousands of hours in interviews and definitely thousands of hours on surveillance.

Interviews and surveillance are, at the very least, intense studies in human behavior, and many of the things we see here learn and experience as a result of watching people and talking to people, we may not be able to quantify. Like because she did this, it means that, but those are exactly the things that will jump out at us as an alert. I can't say this type of shoe and that type of posture tells me that this guy is a parolee, but in a two second scan of a room, I know immediately if someone in the room has spent time in prison, you just know it. Because you've seen it so many times and with so many variations that there's something that makes them stand out to those of us that have seen it. But it's a million of these things. How you take off your seatbelt as you roll up to a hot call, how you use a notepad to claim a seat in an interview room, essentially forcing your interviewee into the seat with the best angle for the camera.

And as for the batteries example you mentioned, for equipment we rely upon like a gun, handcuffs, flashlight, or combat tourniquet. The adage is one is none, two is one, and three is a guarantee. When we're talking about bad guys or bad guys guns, we have the plus one rule. When you find your bad guy, look for one more. When you find a gun on a bad guy, look for one more, plus one. You never want to assume you're done searching only to have it surprise and kill you.

Author Jodi Burnett of jodi-burnett.com writes, "Hi Adam and all. I have a legal question. If the FBI catches serial killer and has plenty of evidence to put them away for several life sentences, but then finds more evidence of other victims though they haven't discovered the bodies of those victims, would they go ahead and prosecute them while keeping the rest of the investigation open, or would they keep him in jail pending further investigation or any other options I'm unaware of? If they prosecute him, would they prosecute him for the other murders as the victim's bodies are found? Thank you." Great question. Jodi. To keep a serial killer in custody, they're going to have to file charges, meaning formally charging him in court with at least one of the murders to keep him in custody. We can't just keep him in jail without due process. If we tried doing that, his attorney would eventually file a habeas Corpus motion, which is essentially a petition to the court saying the prosecutor needs to either file charges or release my client.

So yes, they would prosecute him and then arrest him again, which is more of a legal technicality since he's already in custody. But as they find more victims, he would have new paperwork filed at the jail and in court as they decide to allege more charges against him. The one option you may not have considered, or at least it's worth mentioning is plea bargaining. If this serial killer has been caught dead direct, like there is no way this guy is not the killer, the prosecutor may dangle the LWOP carrot, meaning life without the possibility of parole. So the prosecutor may say to the defense, "We are willing to not pursue the death penalty and offer your client life without parole, if your client tells us where all of his victims are hidden and he pleads to X number of counts of first degree murder." And the thought behind this is to offer closure to the families of the victims that may never find it any other way. Thanks for the question, Jodi. I hope this helps.

These next questions come from the writer's detective Q and a Facebook group and they were submitted by Selina Felix and Selina writes, "Hi. I have some specific questions about the US marshals. The marshals are not the main focus of my story. So could you just tell me if I got this right or not? I'm writing a near future scifi that is mainly technology-based, so think GPS chips in criminals, but people don't have flying cars. The story is set in New York in the year 2075. Number one, my main character has five weeks left on her house arrest sentence. She's abducted from home. The US marshals now want to arrest her and need to obtain an arrest warrant. True or false? Number two, my secondary character is an ATF agent and the abducted main character is now his friend. Wasn't always his friend, but he knows she hasn't just done a runner and he wants to stop the US marshals from arresting her.

"Does he have any say in halting them, since he was the original arresting officer 10 years ago? Number three, do the US marshals need to obtain a court warrant for arrest, or is the fact she is still serving time on house arrest enough that they can just take her in if found? A delay to get warrant or no delay? Number four, what sort of means to US marshals have for finding criminals that don't want to be found? This is a futuristic story so I can stretch the truth if need be, but curious about what I can enhance. Number five, would the US marshals even be hunting for a criminal that is only five weeks to release from house arrest, and how long would it take for them to mobilize if they did so? Six. Lastly, in an earlier book, the ATF agent needed to save the main character's life by removing her from house arrest. So had her GPS chip disabled. Criminals in my world are GPS, chipped.

"Would the US marshals allow her to leave or be okay with it since she was with the ATF agent the whole time and it was a serious emergency that she not stay at home? (Danger to her life if she stayed/ the whole of New York city in chaos)." Oh man. Thank you guys and appreciate the time it's taken to read all the questions inside my head about this Selina, for starters, your main character would be on federal supervised release. Supervised release is the terminology that replaced federal parole for all crimes committed after 1987. So your character would have a probation officer that works for the United States Probation Office and that's the agency that oversees federal supervised release as well. Now to be clear, there's a difference between probation and supervised release.

Probation is an alternative to serving time in custody, but supervised release means you serve time in custody, most likely in a federal prison. And then you have an additional commitment to being supervised once you are released. And that formal supervision is your US probation officer, or federal probation officer. So once your main character violates the terms of her supervised release, her PO will notify the court of your main characters violation of supervised release, and the court will then revoke the supervised release. In doing so, the court will issue a federal arrest warrant for your main characters arrest for violations of conditions of supervised release, I know that's a mouthful, which is when the US marshals will start becoming involved in looking for your main character. So to answer your questions about the marshals arresting her, the warrant becoming active is what prompts the US marshals to get involved in the first place, not the other way around.

I'll include a link in the show notes at writersdetective.com/80 to a section on violations of supervised release on the United States Sentencing Commission's website. It will give you specific insight into the kind of trouble, meaning the kind of incarceration your main character might be facing with her violation of supervised release. If your ATF special agent knows that the main character has actually been abducted rather than violating her supervised release, I would imagine this would quickly turn into a kidnapping investigation. And that's not only the logical thing for your ATF character to do, but it's also the only way to keep the ATF character from looking like he was harboring a fugitive if and when they reunite. Realistically, the ATF agent would want to pull out all the stops to find your main character safely, so having the appropriate law enforcement agency launch a kidnapping investigation, which is likely the local police department, is the most realistic way to go.

Now, from a storytelling standpoint, by keeping the kidnapping investigation at the local police department level rather than involving the FBI and including stuff about crossing state lines and stuff, then it is more believable that the police department might welcome the ATF agents help in the kidnapping case. Is it really proper procedure? No, but you can totally fudge it. But if it becomes an FBI kidnapping investigation, then the ATF agent will only be interviewed as a witness and then sent home, and that sounds like a pretty boring story. So just thought I'd help you out with that. As for the means that the marshals have for finding people that don't want to be found. Well, that's a secret. I can't tell you their secrets. Okay. So this is your story and it's set in the future. So go with your GPS chip idea. Kind of expand upon that and think about how the marshals might be able to track her with that or any other devices or vehicles or financial account activity she might have access to.

And in addition to that, I'd add in some good old fashioned police work, knocking on doors of people that know her or may have seen or heard from her is always a good way to ramp up pressure, as is putting out a wanted bulletin in the news. But as you pointed out, being an absconder five weeks from being released from supervision ranks pretty low on the most wanted list. Realistically, she's just another name on a long list of wanted people that the marshals are tasked with finding. But they will be prioritizing the hardcore felons first, not your character. So how you want to play it when it comes to the interest of the marshals is really going to be up to you.

I mean, maybe it's the marshal that first gets an inkling that this might be a kidnapping instead of a violation of supervised release and then in the marshals knocking on doors of known associates, the marshal and the ATF agent put two and two together that it was in fact an abduction. I don't know, just food for thought. But in your last question about whether the marshals would allow her or at least be okay with it since she was with an ATF agent, the only job of the marshal service is to bring in the folks that have warrants for their arrest. Did you ever see the movie The Fugitive with Harrison Ford and Tommy Lee Jones? When Tommy Lee Jones's character, deputy US Marshall Sam Gerard corner's fugitive. Dr. Richard Kimball, played by Harrison Ford, the old doc pleads his case as to why he's on the Lam.

I didn't kill my wife.

I don't care.

He's right. The Marshall's don't care. What happens to your main character will actually be decided by the court, and probably with some input from your main character's probation officer. But again, it's your world, so you can do whatever. Thank you so much for your question, Selina. I hope this helps.

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