Dan: [00:00:01] You know, I’ve always classified my PTSD as an injury. It’s a wound that I’m trying to heal. If I’m not able to care for that wound, it’s not going to get better.  

Dave: [00:00:12] I was really good at compartmentalizing everything until the day I wasn’t good at it.

Paul: [00:00:18] I do believe within law enforcement is you have to introduce this as a fact. You will be impacted, psychologically by this job. These are the resources available to you to help you cope and heal from what you’re going to experience.

[The Briefing Room intro]

Dan: [00:00:39] In police stations across the country, officers start their shifts in the briefing room.

Dave: [00:00:44] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:52] We think it’s time to invite you in.

Dave: [00:00:54] So, pull up a chair.

Dan and Dave: [00:00:56] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Dave: [00:01:11] In today’s briefing, three detectives, three stories of personal trauma. It’s time for law enforcement to address the issue of trauma response. This is one of the main topics I consider when it comes to discussions about police reform. In this episode, we’ll discuss what first responders are experiencing now and avenues to seek help. To do that effectively, I needed some first responders to talk to and I’m pleased to be joined by my cohosts on Small Town Dicks, my brother Dan.

Dan: [00:01:41] Good afternoon.

Dave: [00:01:43] And Mr. Paul Holes.

Paul: [00:01:44] Hey, there.

Dave: [00:01:45] Each has been candid about their experiences and they’ve graciously shared the challenges they face when trying to cope with the nastiness of the job. I also realize I’m not the most emotionally intelligent or emotionally available person on the planet. So, we brought in our secret weapon, the incomparable, Yeardley Smith.

Yeardley: [00:02:05] Good afternoon, sir.

Dave: [00:02:07] Yeardley’s made it a mission since day one to knock down the walls and break down the barriers with our guest detectives and really find out information, and thoughts, and emotions they never thought they would share on a podcast. Yeardley’s got a gift. I’ll also note quickly, this is the final episode of The Briefing Room, Season 1. There will be a Season 2. So, keep an eye out for more information.

[00:02:39] This is like fight club though. You don’t talk about fight club. So, in law enforcement community, you don’t talk about your reaction to traumatic circumstances. There’s a cultural hurdle that police officers, first responders have to get over that– I don’t think people recognize, if an officer comes forward to command staff and says, “Listen, I’m having some issues, and it’s not that I blew out my knee hopping a fence. This is bothering me and I’m having sleepless nights or I’m drinking too much.” The initial reaction is, “Oh, this person’s crazy. We need to take their gun and badge.” Or, at least that’s the fear of a police officer who comes forward and says, “Things are bothering me.” The police culture makes it where we’re not incentivized to come forward with that kind of information about ourselves. It’s supposed to suck it up, move on to the next case, and deal with it when you retire.

Yeardley: [00:03:35] We should just pause for a second for anybody who hasn’t actually listened to Small Town Dicks. So, Dave used to investigate sex crimes and child abuse. And a lot of what you had to do on that job, if you found, for instance, child pornography on somebody’s computer, you had to watch every file. These are things you cannot unsee.

Dave: [00:03:53] It’s not like you just hit play, and let it run, and then you move on to the next one. It’s really a critical review of each video from a 10-second video to a video that’s 29 minutes long that you have to hit, stop, rewind. 30 seconds, let’s rewatch that again. I’m trying to pick up what I can hear in the background, anything that might lend itself to finding who this guy is that’s victimizing this child. I can’t overstate the brutality of what you see in a video of an infant being raped. When you watch hundreds of those for weeks on end, it fucked me up.

Yeardley: [00:04:36] How could it not?

Dave: [00:04:38] There’s this culture of, if I come forward and say, “Hey, I’m a shit show right now. My head’s not in the game.” You open yourself up as an officer to fitness for duty, psychological evaluation, the stigma of all your coworkers going, “There’s crazy Dave going down the street. He can’t get his head right. I don’t want to be on a call with him.” You open yourself up by self-reporting, “Hey, I’m having issues,” to all these negative consequences that don’t aid themselves to you making it to your retirement. Instead, it feels more like shame, because there’s no obvious physical injury that required stitches or an X-ray. It’s really tough to get over that and accept, “I’m a little jacked up.” Honestly, that’s why I’m out of law enforcement.

[00:05:30] I had a few cases that knocked me out of the job and it is what it is. But I truly felt and let my command staff know like, “Hey, my head’s not in the game right now, because I’m sleeping an hour or two a night. I’m having nightmares. I can’t sleep. I wake up covered in sweat. I can’t eat. I’m drinking too much.” All these things that if you come to your command staff and let them know, they’re going to be like, “Whoop, let’s get him to a shrink, real quick.”

Yeardley: [00:06:00] Right, and, “Take him off duty.”

Dave: [00:06:03] Right. The incentive is, “Well, I’m not going to come forward with that. Everyone’s going to think I’m crazy and then I’m going to be on admin leave.” There’s a huge stigma with being on admin leave. So, you don’t report it, but then years later, you have this cumulative stress that finally breaks you, which is what happened to me.

Dan: [00:06:22] To me, I’ve always classified my PTSD as an injury. It’s a wound that I’m trying to heal. So, if I’m not able to care for that wound, it’s not going to get better. So, you’ve got officers that are dealing with things, but they’re supposed to repress and compartmentalize. So, the most important thing is we have to change the culture. We have to destigmatize officers coming forward and being able to communicate that they’re having issues. If we don’t do that, we’re doing a huge disservice to the people who work for these agencies.

Paul: [00:06:58] When I think back over my entire career, I can’t think of ever being involved in a discussion where we’re talking about this type of trauma that everybody is experiencing. It’s not something that has been freely talked about, whether within law enforcement or whether it be within the media even. That’s where now it’s push it out. It’s okay to talk about it. It’s okay to acknowledge that, “Yes, this has an impact on you.”

Yeardley: [00:07:27] One of the reasons we started The Briefing Room was there are conversations to be had within law enforcement that aren’t happening for various reasons, and certainly, in this case with mental health. As you said, Dave, we don’t talk about fight club.

Dave: [00:07:42] Right. So, dealing with that back then was shove it in the box. You just figure out, “How do I get through this?” Well, I had a lapse. In the middle of reviewing this evidence, I had a physical reaction to a video I was watching. I slammed down my headphones, I got up, I dropped a few F bombs and some GDs, and Dan was across the way and saw it, and he’s like– I mean, my heart’s racing right now thinking about me standing up from that computer screen of what I was watching. I was worried like, “Oh, shit, how many people just witnessed me having this reaction to what I’m watching?” I was flipping mad, like, angry. I was really worried about that. So, very quickly, I covered right back up like, “I’m good. I’m good. This video bothered me, but I’m fine.”

[00:08:38] In truth, I didn’t sleep for weeks after that. Get them an hour here, an hour there. You start drinking, so you can pass out, basically. That’s not a healthy way of handling things. If we had an agency structure where I could safely go report that to somebody, that would have been very helpful for me. I don’t know that I would have utilized it at the time, because I would have felt like I was being weak and I can’t handle the job that I signed up for. So, there’s these battling conflicting aspects to what you’re doing. Nobody in our job is incentivized to self-report and say, “Hey, I want to go through the whole psychological eval situation. Please sign me up for that.” You’re like, “No, I don’t want to do that. I’m going to get shamed and I’m going to have to give up my gun and my badge.”

Paul: [00:09:28] There is an expectation that you will be able to manage every situation, no matter how horrific it is, and not be impacted by that behaviorally, emotionally, psychologically.

Yeardley: [00:09:43] It seems like an open secret that everybody knows, of course, this will affect you, because how could it not, because you are human beings. Dan often says, “We’re people too.” What you all do on the job, the bar is set much higher for you because there’s potentially so much at stake every time you encounter someone out on the street or in their home. I know you all accept that and you appreciate it, but it doesn’t mean that that kind of responsibility comes without a price. How could it? Everybody acknowledges, “It’s going to fuck you up,” but nobody wants to actually help you with that.

Dan: [00:10:18] That’s an important point that you make there. Human beings are fallible. We’re not perfect. We all deal with trauma and stress differently. Everybody does. If you don’t provide us with tools or an environment that fosters the ability to communicate, to express that you’re having trouble, then what are you asking for?

Dave: [00:10:43] This job is such that there’s no way to prepare yourself. There’s no way in an interview I can drill down and figure out how this person, this candidate who wants to be hired as a police officer, how they’re going to react the first time they see a dead baby? How they’re going to react the first time they see body parts all over a highway, because a pedestrian got hit by a car and then drugged hundreds of yards? There’s no way to determine that. I wish there was. I would have been able to recognize some of my weaknesses. Truly, I have no way to describe walking up on a dismembered body. I’ve seen people pass out at crime scenes from being overwhelmed. A brand-new officer saw responded to a suicide of a child that used a gun, and that officer left that call. He was brand new, went directly to his supervisor and said, “That I cannot handle and I’m done.”

Yeardley: [00:11:42] I’m done being a police officer?

Dave: [00:11:44] Resigned.

Dan: [00:11:45] And good on that officer.

Dave: [00:11:47] This guy was a marine, and I have great respect for him saying, “I’ve dealt with all this shit, but that, I’ve got a similarly aged daughter, that I cannot deal with.” He said, “This job’s not for me.” I have great respect for that. Great respect. I was really good at compartmentalizing everything until the day I wasn’t good at it.

Paul: [00:12:12] As I think back, I went through the academy back in 1994, and I don’t recall there ever being any type of lesson that was given to the students in the academy, where there is a discussion about these types of things are what you’re going to be dealing with in this profession, and they are going to impact you. Imagine us in our 20s sitting around the table, we are totally different people in our 20s. There’s no way we would be open to talk about the impact of the cases we’re having on us. As we’ve gotten older, more mature, and this trauma has piled up. What I have found is that I’m much more willing to discuss how the career has impacted me. We’ve had conversations and we can sit around and really open up about how it is, but you’re 20 somethings, you’re not.

[00:13:09] So, part of the culture change, I do believe within law enforcement is you have to introduce this as a fact. You will be impacted psychologically by this job. These are the resources available to you to help you cope and heal from what you’re going to experience. I think if it’s introduced early within the training aspect or the hiring process on the civilian side, now you have people who might be a little bit more accepting that, “Oh, yeah, okay. Everybody here is aware that this is a real deal in this career.” It’s not just even the sworn officers that are subjected to this culture.

[00:13:51] I can tell that famous movie The Silence of the Lambs and Jodie Foster passed the Vicks to put underneath her upper lip in order to mask the smell. Well, my mindset was, “Oh, she’s weak,” because here I am doing the job for real. If I were to put Vicks on my upper lip because of the smell, it’s a sign of weakness. That’s my job.

[00:14:15] So, even in the civilian world, it’s not just the officers. It’s the CSIs, it’s the death investigators, it’s the dispatchers, it’s the attorneys that are dealing with these cases. Yeardley, the term you use, “This is not natural for people to have to deal with this day in and day out.”

Yeardley: [00:14:32] Yes.

Dave: [00:14:34] I consider fire, emergency room staff, medical staff. I consider DAs and defense attorneys who have to look at the evidence that we look at. At my desk, eventually, it’s going to land on the DA and the defense attorney. They’re going to have to review this. I consider all of them to be parties that are impacted by this, our evidence technicians. Anybody who reads the report– I mean, the report I wrote on this child sex abuse material, child porn case was 20 pages long. Our records folks go through that and make sure that the data entry is all correct and that I have crossed my Ts and dotted my Is. They’re going to read that too and that’s the job. And I was fine with it until I wasn’t.

Dan: After Chris Kilcullen’s shooting, I was told that I needed to go speak to a therapist. I spoke to that therapist and started talking about the events of that day and how it was affecting me. The look on her face was, “I’m in over my head. I don’t know if I’m going to be able to help this guy.” So, there’s always that. We talk about all the time. A lot of the success of your case being investigated is predicated on who you get as the officer who’s investigating it. I think it’s the same way with a therapist. You have to find the right person. I was mandated to go to this single person and speak to them. It didn’t really help at all. The most help that I got was when I went to a peer counseling group of people who are in law enforcement, dispatchers, SWAT officers, patrol officers, detectives, who have all been part of critical incidents. I gave them my experience, and I didn’t feel alone anymore, and it was really powerful for me.

Dave: [00:16:46] Speaking of my own personal experience, I recognized that I needed help many, many months before I ever sought help. It was probably years. If I’m honest with myself. It was right away, after I started these bad habits, I went, “This is not sustainable. How am I going to continue at this pace for years?”

Yeardley: [00:17:09] That was even before you retired.

Dave: [00:17:12] Well before I retired. I think about my situation, and I missed a year of work because of my brain, my head. I was in my own head. I recognized at that time I should not be working. I was a liability to myself and the officers I was working with. I was making really bad, unsafe decisions. It wasn’t intentional. It was for a lack of focus. It wasn’t complacency. I was making simple mistakes. I had to recognize like, “I’m not in a good space here.” So I just did it. I went, “Consequences be damned. If this is my last day in law enforcement, it is what it is.” But I had to be honest with myself.

[00:17:56] When I finally let my department know like, “Hey, I’m jacked up right now and I’m not asking you for time off. I’m telling you I need time off.” Doing the paperwork, you have to fill out the date of the injury. I went, “Actually, I know this. I know exactly when I started having these problems.”

Yeardley: [00:18:18] That was the day that you stood up from your desk and threw down your headphones?

Dave: [00:18:22] Right. I remembered going, “I know it’s this case, and I know exactly which video out of the 240 something videos that I watched.” I knew exactly which video it was and at which point in time in that video where I literally, when you just feel flushed and you have a physiological reaction. I remember everything about it. The first eval I ever got was not favorable to me and ignored a lot of things that I had said. I remember getting this report going, “I suffer from general anxiety. That’s the diagnosis? Are you kidding me?” So, then I went to a law enforcement specific forensic psychologist, who was like, “Oh, this is textbook law enforcement. Cumulative PTSD. There’s no doubt.” My therapist was awesome, and she had very little experience working with first responders, but we hit it off and I trusted her implicitly. She was great. She got things out of me I thought I’d never reveal to anybody.

[00:19:26] There are cases that I haven’t thought about for years that are now popping up and replacing the cases that have bothered me for years. And so, I just said, “Is this like the disk cleanup on your [Yeardley laughs] computer where you’re like, ‘Let’s run the defragmentation program and clean this all up?’ Oh, remember this?” going through an old box of memories. I said, “Is this my body trying to reconcile all the shit I’m trying to be able to live with this?” And she’s like, “Yeah, first responders deal with that all the time.” And I was like, “Okay. I wish I had gone years earlier. I wouldn’t have ended up where I ended up in this career at year 15. I would have been able to sustain that for another 10 or 15 years.”

Dan: [00:20:11] Dave got very fortunate in finding somebody that he trusted quickly. That’s a big thing with us. Cops, we don’t trust people.

Yeardley: [00:20:20] I know that.

Dan: [00:20:21] Right?

Yeardley: [00:20:21] [laughs]

Dan: [00:20:21] So, you have to talk to somebody that you trust. And for me, it was talking to my peers. That was a lot of help.

Paul: [00:20:30] I mean, that really underscores that the right people have to be the resources that get developed to help law enforcement has to be the right resources, the right type of people. When I went to my therapist– It was after I retired. This is a therapist out in Colorado Springs. She’s dealing with military guys, special forces, of course, both acute and chronic type of trauma. But as I’m talking to her about what I’m experiencing, where I’m cratering emotionally over things that normally would never have bothered me, and I start telling her what I had done during my career, what I had seen and experienced, and of course, compartmentalized all of it, and she told me, “Well, every time you had that type of incident, it was like a little nick. And by itself you could handle it.”

[00:21:20] Now I’ve got so many nicks. After doing it for 30 years, she goes, “You’re bleeding out.” Like what you experience, that’s what I experienced. Now I’m in my 50s and everything from the past adds up. I can’t talk about certain cases without breaking down. 10 years ago, I could. It’s just something that has been shoved inside of me, and now it’s wanting to come out.

Yeardley: [00:21:45] Yes. As a person who’s been in therapy for many years and really believe in it, I can say there’s frustration even on my end of how complex and nuanced the process of teasing apart the things that hold you back or keep you up at night is. And because it’s so individual, I think people often feel overwhelmed and don’t even know where to begin, and that can keep them from taking any action at all.

Dave: [00:22:11] So, cops have to be honest with themselves and do a real self-check in about where they’re at and whether or not they feel like they’re healthy, coping appropriately, those types of things. Command staff, police departments, and human resource departments in cities, and sheriff’s offices across the country can say that they support mental health and treatment for traumatic responses for first responders. It’s easy to say that. Are you doing it in practice? Do you make it easy on the officer who lets his command staff know, “I’m having some issues and I think mental health days are well recognized nowadays?” In law enforcement, they’re not. You’re expected to show up and do the work.

[00:23:04] So, these cities really have to take care of their people. They have to be open to allowing their officers to feel safe coming and saying, “I need a few days to get my shit together.” That is not happening, at least in the departments that I’ve had experiences with. It’s all lip service from the city. They don’t truly support effective trauma response for their officers. In theory, they love it, but it means they’re going to have to pay a bill, and that’s where I’ve been extremely unimpressed with actual follow through. Again, I’ll stress, I have great love for the agency I worked for and the people who work there. I am not impressed with city management.

Yeardley: [00:23:54] When you say, make it easy, it’s not just about provide the resource, pay for the resource, but make sure that you don’t cast a pall of shame over the person who is willing to come to you and say, “I need to get my shit straight.” And that requires a level of trust on the part of command staff to say, “I trust Detective Dave when he says he needs to get his shit straight that he’s going to go and do that might not happen in one fell swoop, but I’m going to support this journey because it’s important to all of us.”

Dave: [00:24:29] Absolutely. My experiences aside, I know, anecdotally, officers don’t feel like it’s safe to come forward and say, “I’m struggling.” I don’t know of a department where officers feel like it’s a safe place for them to go and say, “Hey, I’m having a problem.” I don’t know of any department that’s like that. I can speak from myself personally. Our agency, they’ve been in the press about, “Hey, we’ve got this peer counseling team, we really want to take care of our officers.” I truly believe that. This is an organization that I gave 15 years of my life to. I’m very loyal to this organization, to the agency. That’s all fine and dandy. My old police department is not its own entity. It belongs to the city government.

[00:25:15] You have human resources, and city managers, and those offices who maybe don’t have the same concern for their first responders that work for their city. That’s great that your agency has this trauma response team that can come help out police officers, first responders. But if the city doesn’t back up the agency, it doesn’t mean anything.

Dan: [00:25:40] I think that cities and municipalities, and counties, whatever these agencies are are opening themselves up to liability. So, if I’m out on the street and I’m dealing with stressful calls and everything, and I’m not at a 100%, if I’m not able to perform my job at 100% because of this injury, PTSD is an injury, so if I make a mistake, I think that’s part of the responsibility of the agency that they work for.

Paul: [00:26:08] You do see that what Dan was bringing up about the liability standpoint. This is where now you get the risk management components of the county, city level governments, where they are assessing, “Okay, what is the risk to the government in terms of financial risk, possibly operational risks?” So, they try to mitigate that even with, let’s say, physical ailments. We used to have the list within the sheriff’s office. If you have people showing up on that list that don’t have that objective diagnosis, they’ve got the broken arm. But now it’s this psychologist has said, “This person is struggling and comes up with a psychological diagnosis.” How is law enforcement management going to be handling that, but also, how is the city or county level governments going to perceive what is really going on in that person?

[00:27:06] They’re going to say, “We want our own doctor, our own psychologist to evaluate it.” Then that psychologist now it’s like competing experts in court. You probably get a completely different diagnosis because the psychological aspect, there is a subjectivity to it and it’s so easy to say this or that without anybody being able to point to objective information and saying, “This person is having an issue based on the trauma they’ve experienced on the job.”

Dan: [00:27:34] I find it interesting that you have officers that are human beings and that we humanize the badge and that officers are caring and compassionate and everything, but then you have a city that wants you to be a robot.

Yeardley: [00:27:48] Or, sort of a hero complex too. Like, Superman doesn’t need any mental health counseling.

Dan: [00:27:54] Yeah. You can’t have it both ways.

Yeardley: [00:27:56] No.

Paul: [00:27:57] I was recently made aware of a department that appears to be pretty progressive in terms of having a mechanism for their staff to get the help that they need without all of a sudden being ostracized, both at the command staff level who are aware that employee needs the help, but also making it a confidential process. That’s part of the concern is is that it’s not only how you are perceived with your coworkers, but let’s say the courts find out you’ve got a defense attorney who gets a hold of that information. Is that going to be treated like, “Oh, this might be Brady type of stuff?”

Dave: [00:28:38] Right. Is this officer impeachable now?

Paul: [00:28:40] Yes. That has to be completely containerized in order to allow the law enforcement staff, both the sworn as well as the civilians out there to feel, “I can do this. It’s not going to impact my job. It’s not going to impact my reputation with what I have to do for my job.”

Dave: [00:29:03] Well, and here’s the other thing to consider is, on the prosecution side, Paul mentions a potential Brady issue, like, “Is this person reliable and are they competent?” [laughs]

Yeardley: [00:29:17] That’s the definition of Brady and law enforcement. It’s about lying.

Dave: [00:29:21] It’s about lying, and honesty, and exculpatory information. But if the detective who worked the case, a defense attorney finds out that six months after the case, the detective went on a two-week sick leave and it was due to stress and anxiety, more of a mental health issue, does the defense, if they’re going to go there, do they have to let the prosecutor know in advance? Does the prosecutor have to proactively get out in front of that and say, “By the way, Detective, we got trial coming up. Have you had any mental health evals lately that I need to forward to the defense for discovery?” I wouldn’t feel comfortable with that. I don’t even want my own family to read my psych eval, much less a defense attorney. Is it relevant information? It could be.

Dan: [00:30:10] You talk about HIPAA laws and how HIPAA laws really apply to normal, everyday citizens.

Yeardley: [00:30:17] Just for anybody who doesn’t live in the US, it might not know what HIPAA is.

Dave: [00:30:21] It is privacy laws concerning-

Yeardley: [00:30:24] Medical.

Dave: [00:30:25] -medical, which includes mental health.

Yeardley: [00:30:28] Right.

Dan: [00:30:29] I know that there are lots of cities out there and jurisdictions that have their own wellness programs under their umbrella. If I was an officer knowing that there may be a direct line of communication or some sort of record that I am dealing with something and my city can find out about that, I might not trust that. I might want to build in a couple of layers of security for me and go maybe even to another city and speak to somebody there. I think that’s something that we need to consider. Now, Paul brought up a great point. If a defense attorney gets a hold of some information like that and asks you about that while you’re on the stand, is he violating a HIPAA law?

Yeardley: [00:31:13] Sure. Even if, let’s say, the defense attorney asks you about it on the stand and the judge says, “Hey, you can’t do that. You can’t unsay the information, now the jury has it, even if you instruct them to disregard it.”

Dan: [00:31:31] Absolutely.

Yeardley: [00:31:49] Now that you’re all retired and hopefully feel as though you have an opportunity to process some of these things that you compartmentalize you thought so well, not so well, by the way, nor should you. Is there any relief in being able to work through it?

Dan: [00:32:07] I think we’re able to work through it, because we’re not worried about the stigma anymore.

Yeardley: [00:32:12] Right.

Dan: [00:32:12] And it affecting our job security.

Paul: [00:32:15] Mm-hmm.

Dan: [00:32:16] I think that’s why I feel like I can talk about it, because I don’t have to worry about getting fired for it.

Yeardley: [00:32:21] It’s never too late, but it’s too late. You should have those opportunities on the job. You can’t ask an athlete to play a professional sport and then not do whatever you need to do, eat well, train, get massages, whatever you need to do to rebuild to perform the best you possibly can at the next game.

Dan: [00:32:40] When I played professional baseball, Dave–

Dave: [00:32:45] Fuck you.

[laughter]

Dan: [00:32:48] When I played baseball, part of every day for me was going into the trainer’s room and getting treatment for little bumps and bruises, and my arm was sore, and that’s part of it. You have to treat human beings, especially police officers and first responders, you have to treat them the same.

Yeardley: [00:33:06] What do you think is the probability that people on your various police forces will take advantage of those programs? We have this program, sure, make use of the program, but there’s still no guarantee that there won’t be stigma and shame attached to employee, police officers, first responders making use of those programs.

Dave: [00:33:29] Like drug addiction, you can’t force the help on the first responder. They’ve got to be ready to accept the help. Like I said, at the time that I really had this impactful case, I wasn’t prepared to step forward and ask for help. Like Paul said, if it was ingrained into me from day one that, “Hey, just like writing reports,” this is also a part, a component of your job, I would have felt a lot more comfortable. So, I’d have been like, “Oh, we’ve got a department for that,” or “I’ve got a supervisor I can go to for that.”

Yeardley: [00:34:04] So, gentlemen, what would you suggest to a first responder out there who’s struggling with trauma? What advice would you have for them?

Dave: [00:34:14] My advice, any police officer who is going, “All right, I’m listening to this episode. I’m going to make the call.” All I did was went on google and said, “I did a google search on therapists, trauma response, first responders near me.” It was just three phrases, and up popped hundreds of listings of counselors in my area. I went through about 15 profiles. I emailed a couple and just said, “Hey, here’s the type of stuff I’m going to be talking about. I just want to give you a warning in case you’re not comfortable, if in case that’s too much for you.” I found one therapist who said, “Yeah, that’s not really my bag.” I had another therapist who I ended up with who said, “I don’t know what the answer is to that, but I want to find out with you,” how much she could handle, and she’s a pro. And that’s all I did.

[00:35:16] I got on google, and I looked for the right fit, and I had a little discussion. It could be that simple. Lots of police unions have clauses in their contract about mental health and counseling services. If you’re a first responder, look into your collective bargaining agreement. Contact your union rep and ask, go through the scenario, “Hey, I’m having some issues. I’d like to get some confidential help with this, so it doesn’t impact my career or my standing, but here’s what I’m dealing with.” You got to find trusted folks, and departments really have to realize that the landscape has changed, and you’re either on board or you’re just going through the motions.

Yeardley: [00:36:06] Are there any specific organizations? I know we did an episode several years ago with one of the founders and Kevin Pollak as well, on Cover Now, which provides help for first responder families, law enforcement families, I suppose mostly when the breadwinner has been killed in the line of duty.

Paul: [00:36:27] Cover Now’s primary focus is to help families of officers that have committed suicide or have suffered catastrophic injuries and can no longer work. It turns out that if an officer has been killed in the line of duty, there’s plenty of resources for the families on that front. So, Cover Now, they’re saying there’s nothing out there for these situations, suicide and catastrophic injuries.

Dan: [00:36:52] So, obviously the goal is to get involved and there to be some sort of intervention before we get to that point. So, there are resources out there. It’s a nonprofit called Copline, C-O-P-L-I-N-E. It’s for international law enforcement and it’s cops talking to cops. So, you can call them. The hotline is 1-800-COPLINE or 1-800-267-5463. You can call them. Like I said, it’s international law enforcement. It’s not just US law enforcement. We’ve talked to law enforcement in Australia, and Ireland, and Scotland. Call somebody. That’s the hardest thing to do is that first step is to call someone.

Yeardley: [00:37:37] 100%.

Dan: [00:37:37] I think this is an easy way for you to maybe start navigating that road.

Yeardley: [00:37:46] I just can’t say enough about how meaningful it is that you’re willing to be honest with. We have hundreds of thousands of listeners, and that you are willing to bear your souls in this way in hopes that it will help somebody else. It just speaks to all of your character. And thank you.

Dave: [00:38:12] I appreciate that.

Paul: [00:38:13] Yeah.

Dan: [00:38:14] Absolutely. I hope this can help one officer.

Yeardley: [00:38:17] Exactly.

Dan: [00:38:18] And it’s worth it to me.

Dave: [00:38:20] This will be an ongoing discussion on The Briefing Room.

Yeardley: [00:38:22] I think it should be. I think it’s that important. I think to your point, Dan, if it can help one person, one first responder, whatever department they’re in, that is an extraordinary win on top of all of you being so honest and sharing with our listeners what it’s really like behind the scenes in your hearts and minds.

[music]

Dave: [00:38:49] So, this wraps up Season 1 of The Briefing Room. For me, it’s been rewarding to give our listeners kind of a behind the scenes look at law enforcement. I hope this show gives listeners answers to questions they maybe never had or questions they had and never got the answer to. That’s what we want the show to be.

Dave: [00:39:11] These are the conversations that we feel still need to be had. So, thank you and we can’t wait for you to join us back on Season 2 of The Briefing Room.

Yeardley: [00:39:28] The Briefing Room is produced by Gary Scott and me, Yeardley Smith and coproduced by Detectives Dan and Dave. This episode was edited by Logan Heftel, Soren Begin, Christina Bracamontes, Chris Ray, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel, and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dave: [00:00:04] Hello, and welcome to The Briefing Room. I’m Detective Dave.

Gary: [00:00:08] And I’m Gary Scott, producer of The Briefing Room and Small Town Dicks.

Dave: [00:00:12] Today’s episode called Online Safety is one that may be familiar to listeners of Small Town Dicks.

Gary: [00:00:19] Yeah, we actually released this in 2022 on our Patreon feed, and then later in the year on our Small Town Dicks feed. And we’re going to release it again, this time within The Briefing Room world. We wanted to talk about why. And so, Dave, let me just ask right up front, why are we releasing this episode again?

Dave: [00:00:38] Great question. I don’t like when we reuse episodes, except when it’s an episode that has the potential for some impact. This episode, for me, is the one chance that we get as police to be a little bit proactive about prevention and safety. Over the course of my career, I would say that online safety was probably the number one topic that I was asked about by parents. So, I figured it would beneficial to revisit and help arm our parents with more information.

Gary: [00:01:14] I’ll also say, this episode, for anybody who’s coming to listen to The Briefing Room for the first time, those people have never heard this before, and I think you’re right, Dave, this one’s really important. So, maybe tell us a little bit, why is it important? What does this episode offer for parents, for children, anybody who might be listening to it?

Dave: [00:01:33] I’d say the most valuable thing you’ll hear in this episode is actual information that is actionable for parents. It provides them with information about spyware applications that they can install on their child’s phone that gives them visibility into what’s going on in their child’s life. So, really the value for me is just arming parents with information that they otherwise aren’t aware of or potentially don’t know all the facts that maybe law enforcement can give parents some of the lessons learned that we’ve learned over the years and through cases that we’ve investigated with other parents.

Gary: [00:02:11] Right. And to clarify so that people understand what they can find from this, when you are talking about online safety, you are talking about parents and children being on social media, on the Internet, and what they might find there, how they’re acting, their behavior, their culture that’s growing around popular sites, etc.

Dave: [00:02:30] Correct. It’s to advise parents and children that there are folks out there who don’t have you or your child’s best interest at heart that this presentation gives parents a little bit more awareness of the types of apps that children might install on their phones that allow children to hide nefarious activity, illegal activity, dangerous activity. I’d really wanted this presentation to give parents the courage to have difficult conversations with their kids. It’s worth the discomfort, it’s worth the stress to have to talk with your kids about what is potentially out there and what your expectations of your children are when they’re online.

Gary: [00:03:12] I’ve reedited this episode every time, and I learned something new each time I listen. And Detective Dave, this was also the impetus for The Briefing Room, this episode. I mean, not every episode is about the same subject matter, but this idea of educating people about not only what law enforcement does, but information to keep themselves more secure and, as you say, to have difficult conversations. Tell us a little bit about how does this episode really relate to what The Briefing Room is trying to do.

Dave: [00:03:44] When I contrast our podcast, Small Town Dicks with The Briefing Room, one thing jumps out immediately. Small Town Dicks is specific to cases. It follows a detective and a crime from the commission of the crime all the way through prosecution, if that happens. We noticed over the years that we are getting a lot of questions from listeners. Our listeners want to know about more nuanced topics within law enforcement, that sometimes it’s not about a certain case, that it’s about a topic, or a procedure, a policy, a training issue.

[00:04:23] The Briefing Room really was kind of an offshoot of us trying to deliver information to our listeners via Patreon, and it morphed into something bigger and has resulted in us just breaking out The Briefing Room as its own separate podcast, something our listeners might not be aware of.

[00:04:45] Two recordings really have driven the creation of The Briefing Room. One is a conversation that was released a couple of weeks ago with defense attorney, Lissa. We had that conversation two plus years ago and really could not find an appropriate home for that conversation on our list of episodes with Small Town Dicks. So, we held onto that conversation knowing the value of it and that our listeners would really enjoy Lissa and her perspective on things, and good-natured ribbing along the way.

[00:05:22] In addition, the release of our Online Safety episode on Patreon generated quite a bit of discussion about whether or not that episode should be available for everyone. We listened to our audience and we agreed that information should be out there, it should be available. We want this to be really a two-way street where listeners can reach out to us and say, “Hey, I’ve got an idea for a topic. Can you talk about this?” We respond in our next season by addressing what our audience wants to hear. So, let’s get into it. Here is Online Safety.

[The Briefing Room intro]

Dan: [00:06:04] In police stations across the country, officers start their shifts in the briefing room.

Dave: [00:06:10] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:06:17] We think it’s time to invite you in.

Dave: [00:06:19] So, pull up a chair.

Dan and Dave: [00:06:21] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Dave: [00:06:36] On this week’s Briefing Room, we’re talking about Online Safety. With me today, I have Dan.

Dan: [00:06:44] Good afternoon.

Yeardley: [00:06:45] [laughs] Did you forget where you were?

Dan: [00:06:48] I had to look at my watch.

Yeardley: [00:06:49] [laughs]

Dave: [00:06:49] And Emmy Award winning actress, Yeardley Smith.

Yeardley: [00:06:53] Good afternoon.

Dave: [00:06:54] Always enjoyable.

Yeardley: [00:06:55] [laughs] It is always enjoyable. So, Dave, you have a very special episode for us today.

Dave: [00:07:02] I do. It’s kind of like a public service announcement. Due to my past caseload involving child abuse, sexual assault, there’s some overlap with those cases in which we have children who are exposed to dangerous people on the Internet and social media apps. So, it became fairly apparent that we needed to have some sort of outreach to schools, students, and parents about online safety, about being aware of online activity. So, Detective Jeff, my former partner, Detective Matt, and I would do presentations throughout the year at different events. Parenting events, school events. We’ve done school assemblies. We’ve also been in a more intimate setting where we are just speaking to health classes in high schools. Very positive feedback to these presentations.

Yeardley: [00:08:02] From both students and parents?

Dave: [00:08:04] Students, parents, and faculty. I imagine thinking about my high school days. If a detective, or a police officer, a firefighter, or an attorney, were they to come into my classroom and give a presentation on their subject matter, I would have been engaged. So, in these opportunities, you never know how us boomers are going to come across [Yeardley laughs] to high school aged folks.

Yeardley: [00:08:30] You’re a little young to be a boomer, by the way. I crest the very last year of boomerness. Don’t consider myself a boomer, actually.

Dave: [00:08:38] No, I don’t consider anyone either here. Eight years old on TV. [Yeardley laughs] So, giving these presentations extremely important from the outreach perspective and from prevention. In this instance, I tailored this presentation to be focused towards parents and them being aware of what’s out there, both the good and the bad, when it comes to smartphones, online safety, that type of thing.

Yeardley: [00:09:06] Did you find they were often surprised?

Dave: [00:09:09] Always.

Yeardley: [00:09:10] Really?

Dave: [00:09:10] Very surprised. I think some parents have their finger on the pulse of their child’s activities, both at home, and when they’re away, and outside of their parents’ supervision. Other parents might have their head in the sand or just be naive and think, “My child’s not going to be exposed to that or my child would never put themselves in a situation where they’d be unsafe.” So, this is fairly broad. Some of the information is fairly obvious. In other situations, parents go, “I never even thought of that.” So, take from this what you will. This is my general parent safety presentation.

Dan: [00:09:50] I’d say, if you’re a parent and there’s one episode you could ever listen to, this is the one.

Yeardley: [00:09:57] This is it.

Dave: [00:09:58] It’s important stuff. So, Detective Matt and I would start out these types of presentations with a survey where we just ask the audience some questions, have them raise their hand, if they do this. If not, we educate our audience.

Yeardley: [00:10:13] Can you tell us what those questions were?

Dave: [00:10:15] Yeah. So, I would start with, “Raise your hands. How many people in here allow their child to have a smartphone, show of hands?”

Yeardley: [00:10:24] All the hands go up for the most part.

Dave: [00:10:26] Always 95 plus percent. Most kids, it seems right now, are probably getting phones. 9, 10. I mean, elementary school kids are getting smartphones. There’s utility in that because it makes communication a lot easier. It makes finding out where your child is a lot easier. So, I see usefulness in these devices. At the same time, there’s a darker side to children having that kind of access to an online community and social media apps. So, I would ask, “Who here has a child with a smartphone?” Bunch of hands go up. “How many parents actually monitor your child’s screen time?” Fewer hands go up. “How many parents monitor the actual apps that their child is downloading?” Fewer hands go up. “How many parents know their child’s passcode to get into the phone?” Just a couple hands go up. “And how many parents have an actual contract with their child regarding use and abuse of these devices?” Couple hands go up.

[00:11:32] The contract to me is, I, the parent set down some ground rules for my child on what’s acceptable online behavior and what isn’t. There’s some sanctions tied to use and abuse of these devices. If you’re not getting your homework done, the sanction is, you lose what’s near and dear to you like, Xboxes, and PlayStations, and smartphones. I’ve been to family disputes, and it was over one of those luxury items in a child’s life being taken away, like, a cell phone. The fights between teenage kids and their parents over being denied the use of a cell phone or being grounded from it, I’ve been to some big fights.

Yeardley: [00:12:16] Wow.

Dave: [00:12:17] Screaming and yelling.

Yeardley: [00:12:19] Enough where the police had to be called?

Dave: [00:12:21] Exactly. So, it’s a big deal. It’s applicable to anybody whose child has a smartphone. I talk about teen sexting, which is texting but sexual matters. Sexual in nature. Years ago, we had an issue where a female had sent a revealing photo to her boyfriend, high school aged, and made the boyfriend promise, “You’re not going to pass that around to your buddies.” Within a matter of days, almost everybody in this high school had seen this photo.

Yeardley: [00:12:57] Argh.

Dave: [00:12:58] That happens all the time. Nowadays, you think about the ease to transfer a file to somebody else.

Yeardley: [00:13:07] Sure.

Dave: [00:13:08] All I have to do is hit forward and I can forward a photo or a screenshot or whatever to my circle of friends, and I have trust that they’re not going to pass that on to anybody else. Pretty soon, it’s like a forest fire. It swept the entire school. We’ve had cases where somebody was unaware that their photo had been disseminated to numerous other people until about a week and a half later when somebody in a completely different city, in a completely different high school recognized it was their friend in the photo, and were like, “Hey, by the way, are you aware this photo of you is making its rounds?” Absolutely horrifying to this high school age girl. I mean, you can imagine how devastating that is. So, it’s a big problem.

[00:13:55] So, I get into statistics when it comes to sexting and this kind of subject matter. Average child gets their cell phone at right around 10 years of age. The percentage of children who have received content from someone else that made them uncomfortable, 20%. One out of five kids admits to getting something, they were like, “Ooh, I don’t know if I should see that or I’m uncomfortable.”

Yeardley: [00:14:24] Mostly from people they don’t know?

Dave: [00:14:27] From people they do know or it’s someone they met on an app, agreed to give a screen name or a phone number. It’s like catfishing. I think that this person is my age turns out, it’s a 35-year-old guy.

Yeardley: [00:14:42] Sex offender.

Dave: [00:14:43] Sex offender, who’s reaching out to kids because the internet is now a playground for sex offenders. How many kids have shared a private photo or info or videos with a stranger online? What’s your guess, Yeardley, percentage of children who have engaged in that kind of behavior with a complete stranger online?

Yeardley: [00:15:03] I’m going to say 10%, but that seems incredibly high.

Dave: [00:15:08] 55%.

Yeardley: [00:15:09] [gasps] Oh, my God.

Dave: [00:15:12] Over half of kids have shared something sensitive with a complete stranger online. Percentage of children who have sent a sexual image to someone they only knew online, never met them in person, 15%.

Yeardley: [00:15:26] Oh, my.

Dave: [00:15:28] Percentage who have sent a sexual image to a boyfriend or a girlfriend, what do you think that number is?

Yeardley: [00:15:34] That’s got to be high. I want to say, like, 80%.

Dave: [00:15:37] 70%.

Yeardley: [00:15:37] Wow.

Dave: [00:15:39] Percentage where the sender had a sexual image shared with the recipient’s friend. So, person sends a photo thinking, “It’s only going to my boyfriend,” or this person. Percentage of people who have had that trust betrayed and that image was forwarded on to other folks who weren’t the intended recipients, 39%. Largest demographic of internet porn consumers, 12 to 17 years of age. That’s the largest population of people who consume or watch internet pornography.

Yeardley: [00:16:14] Oh, my God.

Dave: [00:16:17] The last, this one’s important. I have it underlined in my presentation. Percentage of children who would change their behavior if they knew their parent was monitoring their activity, 43%.

Yeardley: [00:16:30] Only 43%?

Dave: [00:16:32] Only 43. I think there’s probably an aspect where some kids are like, “My parent would never do that anyway.” But we have almost one out of every two saying, “Yeah, if I knew I was being watched, I’d be a lot more cautious and a lot more conservative with the types of activities I engage in online.”

Yeardley: [00:16:53] Do you know the source of those percentages you just gave us?

Dave: [00:16:57] I got that information off a website that is www.guardchild.com, G-U-A-R-D child dotcom, one word. So, guardchild.com has this set of metrics.

Dave: [00:17:26] I get into apps, specific apps and social media that have been popping up on law enforcement radar. These change like the tide. One app will be popular and then it’s replaced by something else. So, these apps are always evolving. And the list that I have here is probably overcome by events that things have changed since then. So, I have a graphic and it’s titled, 10 Apps Teens are Using that Parents Need to Know, and this is a big one. Parents start to perk up. After those statistics, they’re intrigued, and then you let them know, “Here’s what you should be looking for on your child’s phone.”

[00:18:10] Some of these apps are kind of sneaky. They hide themselves and their true intentions. Be it an app that the icon is a calculator. It looks like the calculator on your iPhone, but that’s actually got a password that you can enter and it’s really just a folder, a locked folder, a vault that you can open up and save images into that app that when your parents get your phone, it just looks like the calculator app. The app still acts like a calculator if you want to do that, but if you enter your pin, it opens a folder.

Yeardley: [00:18:47] I see.

Dave: [00:18:48] Sneaky. So, we have the calculator app.

Yeardley: [00:18:51] And that’s what it’s called the calculator app?

Dave: [00:18:53] There’s differing names. They change. I’ve seen Keepsafe. There’s an app like that. It’s a vault app. We call them vault apps. It’s an archive. Omegle. I had a case years ago with Omegle. O-M-E-G-L-E. It’s an app that children would first probably get exposed to on YouTube, watching YouTube videos, and there were ads associated with Omegle, and that’s how I came across it.

Yeardley: [00:19:21] What would be appealing about that app to a child?

Dan: [00:19:24] That app is appealing to a child because it’s random. There’s no real identifying information. You can come up with your own screen name. It’s fairly anonymous. That app puts you in touch with complete strangers. It’s the whole point of the Omegle app is. It’s a free online chat website that promotes chatting anonymously to strangers. That’s fine for adults.

Yeardley: [00:19:47] I’ve never heard of Omegle.

Dave: [00:19:49] I hadn’t either, but I had a case with an eight-year-old who had this Omegle app. Her parents were unaware of it on her smartphone. She had downloaded this app, and got put in touch with an adult who started soliciting sexual images from this eight-year-old. Horrible.

Yeardley: [00:20:08] Horrible.

Dave: [00:20:09] Right. That case was resolved by the parents getting into this girl’s phone. After bedtime, they could hear her chatting in a video.

Yeardley: [00:20:19] Like a FaceTime video, sort of.

Dave: [00:20:21] Right. So, the parents bust into the girl’s room and they’re like, “What are you doing?” And she’s like, “Oh, mm, nothing.” They get into her phone and they say, “What is this?” The app was running on her phone, and the parents start digging and see this chat history, and they’re horrified, and then the police get called. Good job, parents.

Yeardley: [00:20:39] Yeah.

Dave: [00:20:41] Let’s see. The Yellow app, it is just like a yellow-colored box icon. Yellow is an app designed to allow teens to flirt with each other in a Tinder like environment.

Yeardley: [00:20:51] [gasps]

Dave: [00:20:52] Right. Cringe. Whisper app, an anonymous app where the creators promote sharing secrets and meeting new people. ASKfm. Ask anonymous question, get answer. This app has been linked to the most severe forms of cyberbullying, hot or not.

Yeardley: [00:21:14] I’ve heard of that one.

Dave: [00:21:15] Right. Strangers basically rating your photos whether they think you’re hot or you’re not. Burnbook, users are able to post anonymous rumors about other people.

Yeardley: [00:21:26] What the–

Dave: [00:21:27] Yeah. Wishbone, an app that allows users to compare kids against each other and rate them on a scale, talking about looks.

Yeardley: [00:21:34] Who would compare kids?

Dan: [00:21:37] Who do you think?

Yeardley: [00:21:37] I mean, I just don’t– Argh.

Dan: [00:21:40] Oh, you read the descriptions on these apps and it’s almost like the Knights of the Round Table sex offenders got together and said, “Let’s brainstorm some ways that we can-

Yeardley: [00:21:50] Lure children.

Dan: [00:21:51] -lure children in–” [crosstalk]

Yeardley: [00:21:52] Into our orbit.

Dan: [00:21:53] Yeah. It’s disgusting.

Dave: [00:21:56] Right. So, I’ve talked about Kik Messenger, and Instagram, Facebook. We’ve had cases associated with those apps in the past. They’re on this list. So, I encourage parents in these presentations, scrutinize your child’s friends lists on their social media apps. If the child is unable to tell you when and where they met this person, that person’s a stranger and you should probably scrub that person from your child’s friends list. I am certain, it is tedious and unpopular, difficult work for parents to have this level of supervision of their children, but given the current space we’re in, it’s like allowing your child to go down to the playground after dark. I wouldn’t have been allowed to do that.

[00:22:41] In Dan and Dave’s world back in the day, when we were playing Wiffle ball out in the park all day, once the street lights came on, we knew, and I’m sure a lot of our listeners had the same childhood. Street lights come on, head back. So, monitor friends list actively. This is part of that social contract. This is part of the contract that parents have with their kids when we talk about use or abuse. If you lay out your expectations of what can and cannot happen while your child is online, when they break that, they’ve broken the contract and then there’s sanctions. That way the child feels like, “Well, I’m part of the negotiation here,” even if the parents like, “That’s nonnegotiable.” [Yeardley chuckles] [chuckles] They at least get to be a part of the conversation. It’s how you build buy in any setting.

[00:23:33] In this case, you really want your kids to respect where you’re coming from when it comes to this stuff. I tell parents, “Monitor your social media presence, monitor your child’s activities, monitor all of that.” Parents need to have the discussion with their child about receiving friend requests or message requests from strangers. We’ve had numerous cases about these guys that would just randomly shotgun messages out to females, prepubescent high school age females, where they’re reaching out. It’s fishing. They’re trying to see if they can get the child on the line and begin grooming them. So, friend request, message requests from strangers, big red flag. It’s fairly obvious.

[00:24:25] I tell parents that when they ask a child for access to the device, part of the contract is that the child, without hesitation or protest, provides that to the parent. It’s parents’ castle. So, I allow you to have the device with that. There are restrictions.

Yeardley: [00:24:42] Right.

Dave: [00:24:43] Go through the phone with the child and review the apps. “What’s this one? Show me.” Imagine [chuckles] the pucker factor for a child who’s like, “Oh, shit. I should have closed out all my windows.”

Yeardley: [00:24:54] Yeah. Except if they have the calculator app, where they go, “Look, it’s just a calculator.”

Dave: [00:24:59] Right.

Yeardley: [00:24:59] Except that iPhone. If it’s an iPhone, for instance, it comes with a calculator built in.

Dave: [00:25:04] And that’s the thing.

Yeardley: [00:25:05] “So then you would have two, and why do you need two?”

Dave: [00:25:07] Right. So, I say, “You can keep the app that came with the phone, but the other one goes away. Why do you need two calculators?”

Yeardley: [00:25:13] Right.

Dave: [00:25:14] “Why do you need a vault app?”

Yeardley: [00:25:16] Right.

Dan: [00:25:16] Isn’t there also a way for parents to monitor what apps are actually downloaded on their child’s phone?

Dave: [00:25:22] There are, and that’s later on in this presentation. We get into the spyware and tricks of the trade for parents. I ask parents apply consistent sanctions for abuse of the device. You got to be held accountable. Child has to know that when they cross the line and are in the restricted areas of use that that was a gamble for them. They might lose access to that app. They might lose access to their device. So, there has to be regular sanctions. Keep your child accountable.

[00:25:57] The last thing, this always shocks a few parents in an audience. I always say, “It’s your house, you can search it.” I can’t, as a government agent, ask you, the parent, “Hey, I’d really love to see what’s in your child’s bedroom. Can you go search your child’s closet and tell me what you find in there? I’ve made you my agent on the search. I can’t do that.” Parents, it’s their home. If they want to go through their child’s belongings, it’s your home. That child is renting from you.

Yeardley: [00:26:30] [laughs]

Dave: [00:26:32] So, I tell parents, “You own the home. You’re responsible for what’s in it. That’s your child. They report to you. You’re the boss. You can search your own home.”

Dan: [00:26:40] You can take the phone away.

Dave: [00:26:41] Right. Some parents are like, “Ah, but it’s my child’s phone. Is that an invasion of privacy?” I’m like, “That is your bedroom that your child happens to occupy.” [Yeardley laughs] There’s a difference.

Yeardley: [00:26:52] Sure.

Dave: [00:26:53] You can take phones away. I’ve had people say, “My child actually has a job and bought their phone.” And I’m like, “It doesn’t matter.”

Yeardley: [00:26:59] Why doesn’t it matter?

Dave: [00:27:01] It doesn’t matter, because that child, until they’re 18, their behavior can impact a parent. We have a law in our state where if a parent fails to supervise a child and this child is out creating havoc, the parent can be held responsible for that child’s actions, because they’re not properly supervising their child that they know their child’s out raising hell, and they just allow it to happen, well, now you’re on the line for this. You’re on the hook, parent. So, I let them know, “If your child’s up to nefarious unlawful activities, you have the potential to be responsible for that. I would take responsibility for what’s in your house and what’s going on in your house. It’s your place.” Even if it’s your child’s “property,” still, your responsibility.

[00:27:56] I’ve another slide with just a longer list of apps that were popular a few years ago when I did this presentation. I don’t have descriptions for these apps, but these are social media apps that land on the radar of elementary, junior high, and high school age kids.

Yeardley: [00:28:11] The reason you know about them is because it landed on your desk, because there was an issue.

Dave: [00:28:15] Yeah, it used to scare and surprise me when I’d be like, “Well, I feel like I’m pretty up to date on this stuff because I try to stay contemporary with what’s out there.”

Yeardley: [00:28:26] Yeah.

Dave: [00:28:27] You just can’t keep up. So, there were times where a police report comes across my desk or I’m sure with Dan, a new fencing app where people can steal products and then sell them online in a fairly anonymous fashion. I’m sure he came across them too where you’re like, “Ah, I hadn’t heard of that one. That’s a new one for me.” And some of these are those for me. Amino, Discord, GroupMe, Houseparty, Snapchat’s been out there for a while. MeetMe, Live.Me, TikTok, Tumblr, Yubo, Y-U-B-O, YouNow, it’s like a video streaming service where you can be put in touch with strangers. These are all out there.

[00:29:13] Then I talk about spyware for parents. These are apps that they charge a monthly fee or a yearly subscription. I know that Lieutenant George, who Dan and I have worked with for years and has been a featured guest on Small Town Dicks in the past, I know that he did this back in the day with his kids that they were on the family plan, their phone plan. And any app that showed up on the kids’ phones would also show up on their parents phones.

Yeardley: [00:29:43] [laughs]

Dave: [00:29:43] So, George would be like, “Ah, nice try. You are not downloading this app today.” [Yeardley laughs] So, George’s kids, great kids.

Yeardley: [00:29:54] They are great kids.

Dave: [00:29:55] If they tried to be sneaky, he’d be like, “Ha-ha, gotcha.”

Yeardley: [00:29:57] [laughs]

Dave: [00:29:58] So, parents have the ability to have this kind of exposure to what’s landing on their child’s phone. Bark is an app, B-A-R-K, and the icon is basically a dog that’s barking kind of like-

[laughter]

Dave: [00:30:13] -your cats around here. [crosstalk] Anytime a burglar shows up, they’re like, “Ah, someone’s at the door.”

Yeardley: [00:30:18] Yes.

Dave: [00:30:19] So, Bark tracks text messages, email, and social media activity. Automatic parental alerts and notifications, $9 a month, unlimited number of devices you can apply it to. Pretty good. So, there’s another one called Qustodio, Q-U-S-T-O-D-I-O. The icon is just a capital letter Q in script monitors YouTube browser history and text message content. Blocks pornography and pornography websites, and it also has location tracking and a panic button.

[00:30:52] So, if you get in over your head in something, it’s like a quick 911 call to your parents or however way you want to set that up. Webwatcher tracks and archives text messages, deleted text, photos, browser history, GPS locations, and social media apps. Very, very valuable. Scans content and photos and provides parental notifications and alerts for risky behavior.

Yeardley: [00:31:19] Of these apps that you would regularly encounter, did you have a preferred one?

Dave: [00:31:25] For the spyware apps?

Yeardley: [00:31:26] Yeah.

Dave: [00:31:27] I’ve never dealt with a parent in a case who had a spyware app. There’s a little Easter egg in there, right?

Yeardley: [00:31:33] Right.

Dave: [00:31:34] Which is the parents who have these apps don’t have kids that are landing on my caseload.

Yeardley: [00:31:40] Yes.

Dave: [00:31:41] Take that for what you will.

Yeardley: [00:31:42] When you’re in these assemblies and doing these presentations, how much pushback would you get from parents or kids who are also in attendance when you would bring up the spyware conversation?

Dave: [00:31:56] With kids, crickets, or some hmms and maybe a few laughs like, “I’d like to see my parents try that shit on me.”

Yeardley: [00:32:03] Oh.

Dave: [00:32:04] Yeah. With parents, there’s a lot of nudge-nudge and hmm. “This could work and we’re doing that tonight.” There’s a lot of that. So, good traction from the people that you would expect to get good traction from and the kids are like, “What? I don’t know that I like my parents being able to read my deleted text messages and let them know if I’m engaging in ‘risky behavior”‘

Yeardley: [00:32:30] Right.

Dan: [00:32:30] I also think that these presentations that Dave did and these other detectives, you start to enlighten parents to some of the authority that they have in running a household, and it empowers them because I’ve been to enough dispute calls with an unruly child who is just raising hell in the house and making it basically unlivable, because this child feels, like, he or she is going to run the show. You have to set boundaries as a parent with your children. If you don’t, your kids will run up one side of you and down the other. It’s about accountability. I think these presentations really reinvigorate these parents where they’re like, “I do have some control here.”

Yeardley: [00:33:15] Right. Interesting.

Dave: [00:33:17] That was one of the goals here is, let’s educate parents, so we empower them to be able to alter their child’s behavior and prevent them from having police contact, prevent them from being stuck in a dangerous situation with someone they just met on an app. Parents appreciate that. Deep down, I think kids appreciate when they have some discipline and some structure, rather than being able to run around, no curfew, they feel like their parents don’t give a shit what they do. I think kids actually do appreciate when their parents are like, “I have higher expectations of you, and you disappointed me, and now, you for two weeks are going to sit at home with me while you’re grounded.” Later on, that pays off, right?

Yeardley: [00:34:01] Yeah.

[00:34:12] When you would give these presentations to illustrate the kinds of things that you’d see, when the horses left the barn, so to speak, and nobody had spyware, nobody was monitoring the apps or the online activity, would you say, “These are the sorts of things I see.” Would you enumerate a few of the kinds of details that would come across your desk to go like, “Listen to me. This is not just about, ‘Oh, you need to control your kid.’ This is about safety. This is for your child’s wellbeing.”

Dave: [00:34:44] Right. As part of this presentation, I highlighted three main cases that I worked. I think I’ve talked about them on Small Town Dicks before that are social media driven crimes, Facebook, Kik Messenger, things like that, where we have sex offenders either already registered or when I’m done with them, they’re going to be registered, reaching out to vulnerable, impressionable young people, and grooming them.

Yeardley: [00:35:17] And also traveling to meet them if they don’t live in the same city or town or state, if there is enough contact between the sex offender and the child. It’s not unheard of that they would go, “Oh, hey, what’s your address?” And then suddenly they show up at the playground. That’s in the neighborhood.

Dan: [00:35:34] In those cases, for us, other detectives who are working alongside Dave were so much fun for us.

Yeardley: [00:35:40] Right. To catch those guys.

Dan: [00:35:42] Catching those guys in the surveillance. Honestly, the moment that you introduce yourself as a police officer, because Dave’s the quarterback. He’s the eye in the sky, basically. He’s back at his desk and he’s calling the place. So, he’s telling us detectives who are surrounding this area where bad guy is supposed to appear, “Hey, he says he’s arriving in this vehicle, it’s this color, and that he’s a block away from the park right now.”

Yeardley: [00:36:11] Because Dave’s in touch with the sex offender online pretending to be the victim, right?

Dan: [00:36:16] Yeah. The initial confrontation with these guys when you introduce yourself, “Hi, I’m Detective Dan. We need to have a chat.” The look on their face is priceless.

Yeardley: [00:36:26] [laughs]

Dave: [00:36:28] It’s good stuff. Yeah.

Yeardley: [00:36:30] Would you start out with that? So, the parents go like, “Oh, shit. Oh shit. Oh shit.”

Dave: [00:36:34] No, I ease them into it.

Yeardley: [00:36:36] Oh.

Dave: [00:36:36] And then I hit them with a sledgehammer.

Yeardley: [00:36:39] Okay.

Dave: [00:36:40] Impact, right?

Yeardley: [00:36:40] Yeah.

Dave: [00:36:41] So, I would go into grooming, which we’ve discussed and we have on our resources page, a list of grooming activities.

Yeardley: [00:36:49] And we also have that wonderful Small Town Dicks episode with Nichole called Disclosure, where both of you have an extended conversation about the kinds of grooming that you’ve seen over the course of your work.

Dave: [00:37:00] Right. And I talk about each suspect had their own little fishing pole with a line, “Your boyfriend’s really lucky.” Fishing, trying to see if you’re going to, A, respond, and B, “Do you have a boyfriend?” “I’d really like to cuddle with you.” I had one guy that was all about sending dick pics right away.” So, they all have their little game that they play with the subjects of their attention. So, you just have to feel out for that and recognize it when it comes across, which I always did right away, send a friend request to one of these guys using a fake account, and right away, they send you a message like, “What’s your story? Tell me about you. You have a boyfriend? Want to hang out sometime?” It starts quickly. It usually escalates rapidly after that.

[00:37:56] All of this is done because the ultimate payoff for the offender is to arrange an in-person meeting, so they can offend. That’s a crime in our state where you are using an online tool to communicate with a known minor to engage in sexual activity, and then taking it a step further by offering a place to meet, and then taking a substantial step towards doing that, which, if I arrange a meeting with you and you show up at the location based on, or it could be 20 minutes of chat, it could be– I’ve spent hours chatting with some of these folks until they finally go, “Okay, I feel safe enough that I want to meet this person.”

Yeardley: [00:38:43] Meaning, the sex offender feels safe enough.

Dave: [00:38:45] The sex offender feels safe enough, where they’re like, “Okay, I don’t think it’s a cop.” They play some of these tactics like, “Why don’t you send me a picture of you right now?” So, you have to be creative about avoiding that. That was always a challenge for me. I was like, “How do I get out of this one? Oh, I’ll use the excuse I used with this other guy.” Usually, it worked.

Yeardley: [00:39:05] Do you want to tell us what that was or no? Is that a trade secret?

Dave: [00:39:08] Trade secret.

Yeardley: [00:39:09] Fair.

Dave: [00:39:10] A lot of times, these offenders would offer drugs, alcohol, something that might loosen inhibitions or be attractive to a teenager who’s like, “Oh, yeah, I’d love to drink alcohol with you.” That’s not something I can do. Or, “I have to sneak out to do that.” So, these offenders know this that it’s appealing, and that’s an offer. They’ll make all kinds of stuff.

[00:39:38] I have a slide titled “Warning Signs.” It’s all about warning signs that a parent would see from their child. It could be as simple as your child being very secretive about their online activities, hiding their phone, things like that. Child becomes obsessive about being online, because they want to go talk to their friend. They get angry when they can’t be online, or you don’t allow them to get online. Your child receives phone calls from numbers you don’t recognize or people you don’t know, and they sneak off to have a conversation. They receive gifts, they show up with new clothes, they get packages sent to the house from someone the parents don’t know and are like, “Why is my child receiving a package?” Or, “Where’d you get those shoes?”

Yeardley: [00:40:27] That’s insane. It’s so obvious. It’s so bold.

Dave: [00:40:32] Right. Child might be withdrawn from family and friends. It’s also normal where kids get to the point where they’re like, “I don’t really want to hang out with my parents or be at this Thanksgiving social. I’d rather be at home or I can be online, or I can go out and meet my friends at the park.”

Yeardley: [00:40:50] But to what extent has that erosion occurred?

Dave: [00:40:54] Right. Is it coupled with these other warning signs? The child might change screens or turn off their computer when an adult enters the room. The child starts to look at pornography online. Given today’s culture, I would expect that from a percentage of the population of kids. I would expect them to be looking at pornography, because it’s out there, it’s available. When it becomes more involved, or obsessive or consistent, that’s an issue. The desensitizing nature of children watching these hardcore pornography videos, that’s going to impact their development. I have the source for that information, website is internetsafety101.org. There’s actually a tab called Predator Warning Signs.

Yeardley: That’s good to know.

Dave: [00:42:06] What to do if your child discloses sexual abuse? You’re the parent. Your child has either told a friend, family member, or yourself.

Yeardley: [00:42:16] Teacher, maybe.

Dave: [00:42:16] Teacher. They’re disclosing that they’ve had sexual contact or contact that they felt was a violation. When a parent hears that, I imagine it’s a huge pucker factor moment, like, “Oh, shit, not my child.” I understand that. If it happens, there are ways for a parent to handle that, that are kind of in my playbook, it’s kind of a wish list. I hope the parent does this, this and this. Here they are. If your child discloses sexual abuse, believe them, number one. The number of times I’ve had a child give a very descriptive, credible account of something horrible that happened to them and not be believed by the person who’s supposed to protect them, dozens. Happens often in this case load of child abuse, all the time. So, believe them.

[00:43:12] There’s a statistic out there that something around 90% of disclosures are found to be truthful. So, I would err on the side of caution and say, “My child just told me this.” Unless there are circumstances where you found your child to be completely unbelievable and they make up a lot of stories, I would hope your inclination would be to believe your child. Report it immediately. The initial reaction from a lot of parents, totally understandable, is, “I’m going to reach out over the internet to the person who’s contacting my child. I’m going to read them the [unintelligible [00:39:31] Act. I’m going to confront them. I’m going to let them know they are no longer to contact my child.” It’s an appropriate reaction. In my wish list or my playbook, my preference is you call the police first. And maybe I can take that role at a later date, while also trying to secure evidence.

Yeardley: [00:44:12] Because chances are they’re not just doing it to your child. There are multiples.

Dave: [00:44:17] Correct.

Yeardley: [00:44:17] So, if the police get involved, then you can stop this person, instead of sending them underground and then you can’t find them.

Dave: [00:44:25] Right. All of a sudden, their profile is deleted, those types of things, huge roadblock for me. Great job by the parent being initially very protective. I totally understand that. I’m just saying, from my perspective, “This is what I want.” So, report it immediately, and with that is avoid confronting or alerting the suspect that you’re onto them. I’ve got a graphic here on that slide that has three different graphics. Of children who are sexually abused, 20% are abused before the age of eight. 90% of child sexual abuse victims know their abuser. It’s not stranger-danger, it’s someone close to them. Only 4% to 8% of child sexual abuse reports are fabricated.

Yeardley: [00:45:15] Okay, it’s very small.

Dave: [00:45:18] Then, I get into the online predators that I personally have encountered. Dan’s met a couple of these guys.

Dan: [00:45:25] I have, they didn’t look like their mug shots when I encountered them. They had raised eyebrows.

[laughter]

Dave: [00:45:31] A certain curiosity.

Dan: [00:45:35] Or caution.

Yeardley: [00:45:36] Sweat on the brow.

Dan: [00:45:37] Sweat on the brow, the hands are shaking. That’s typically the reaction you get.

Dave: [00:45:43] I’ve said it in other presentations and in podcasts, without fail when confronted, these offenders go, “Oh, shit, I’m not talking my way out of this with this detective.” I see the bullshit alarm on his face is going off. “He doesn’t believe me. How do I recover here?” Without fail, they say something along the lines of, “I was never going to initiate any sexual activity with this child. I was simply meeting up with them to let them know how dangerous it is to meet a stranger online.” How altruistic of you is that? It’s garbage.

Yeardley: [00:46:22] Yeah, garbage.

Dave: [00:46:23] Total bunk.

Dan: [00:46:25] You’ve got three guys on this page. Go through their ages real quick.

Dave: [00:46:30] Contestant number 1, 28-year-old man, trying to lure a 15-year-old girl to meet in person for the purposes of engaging in sexual activity. He’s one of the guys that within moments was, “Here’s a picture of my erection. Let’s see how you handle that.” Very aggressive, wasted very little time. When I wrote the search warrant for his Facebook page, that suspect was talking to over a dozen other people concurrently. Timestamps on messages where it’s clear, he just sent Jane a message at 3:30 PM and at 3:31 in between messages with Jane, he was contacting Stacey and asking, basically, a thread of messages and the photos being posted, like cookie cutter to all the other chats. Another suspect I have here, 28-year-old male trying to meet up with a 14-year-old.

Yeardley: [00:47:31] Disgusting!

Dave: [00:47:33] Another one, 33-year-old male used marijuana to groom two 13-year-old girls. In each of these cases, these offenders met up with my team of detectives. And then shortly thereafter, I was introduced to them in an interview room at our police station.

Yeardley: [00:47:55] [chuckles] Things got progressively worse for them.

Dave: [00:47:57] Always satisfying.

Dan: [00:47:59] One of these cases that was particularly disturbing to me was this suspect, much older than the girl he was going to meet, who he thought he was going to meet, he pulls up in an SUV. I think it was his grandmother’s SUV, and he had a bed made in the back of the SUV. So, this young female who was innocent, he was planning on taking her virginity in the back of this SUV. It’s shocking and disgusting. Putting these guys in cuffs is the most satisfying feeling because how many other girls did he do that to?

Yeardley: [00:48:37] Right.

Dave: [00:48:47] So, to wrap up my presentation, I talk about the laws that pertain to sending explicit images. Some apply only if an adult solicits, an image from a child, but some apply no matter the age of the subjects involved. All this is because legislatures have found themselves scrambling trying to create laws that keep up with the technology that is out there. So, certain laws have certain elements of the crime where child must be under this age for it to apply or the suspect has to make the offer to meet up, ask for a photo, and then make an effort to meet in the place where the agreed upon meeting was going to take place. So, there’s different laws that affect these. And these have had to evolve with social media.

[00:49:37] Legislatures across the US are drafting and enacting laws that were written a year or two prior. So, we’re always trying to catch up with technology and that’s a learning process. As part of this, we had, I think I mentioned earlier, the issue where female’s photo was disseminated without her knowledge to hundreds of people. That’s a crime for the person who sent it.

Yeardley: [00:50:06] A crime for the girl who sent it, and not the person who disseminated it?

Dave: [00:50:10] It’s a crime for both of them. I’ll go through some of the laws. I’m going to give a very general overview of what the title is, but it would give away our state, even though I know our listeners are very smart, and they would– [Yeardley laughs] they already know. But to keep up appearances, we have one law that is about taking a video recording, either a picture or a photo of a child engaged in sexually explicit activity, that law is supposed to cover an adult who is reaching out to a juvenile and asking for explicit images. You’re basically asking for child pornography. That law also impacts the person who sends that image. Say it’s a 16-year-old girl and her 16-year-old boyfriend, that law still applies.

Yeardley: [00:50:58] Oh.

Dave: [00:50:59] Even though that probably wasn’t the intent of the law. You think about we’re trying to catch up with technology and trends across society. So, that law was applicable, and if the 16-year-old girl had the boyfriend ask, “Hey, will you send me a nude photo?”, the crime occurs when boyfriend asked for it and if the girlfriend sends it, she’s committed a crime too. Those are biggies.

Yeardley: [00:51:27] Interesting.

Dave: [00:51:28] We were getting cases where we have these sexting, think about the statistics earlier, the sheer volume of teenagers who have forwarded on explicit photos or asked for them, I don’t want to make all those people sex offenders. I want to educate them, counsel them, and arrest the behavior so it stops. We had that law. We recognized in our little niche of child abuse and sexual assault, that that law had way too much teeth for these teen sexting cases that we had. I’m like, “That is a lifelong sentence if that charge applies to you. It shouldn’t. Let’s educate them.” We talked about the law where you can’t, as an offender, offer to meet a child for the purpose of engaging in sexual activity. It’s against the law. There’s varying degrees of that. There’s online sexual corruption in the first degree or in the second degree. The first degree is much more serious. Second degree is maybe you offered to meet, but the meeting never took place, or he never showed up at the actual meeting spot, but you made the offer, and it was clear what was going to happen if and when you met with the child. Those are crimes. It might get your 13 months in prison.

Yeardley: [00:52:55] If you just offer but you don’t meet up with them?

Dave: [00:52:58] Correct. You’re probably going to get registered as a sex offender if you do that. And you’ll probably be at least on probation for three years. It’s not a given that you’re going to end up in prison. A lot of it likely has to do with, “How many charges can I apply under this statute?” Or, what your criminal past, your history is as a criminal. As a result of the sexting cases where a photo was sent to a boyfriend with the understanding it’s just going to stay on your phone and you’re not going to send to your boys, a new law evolved in our state, and it was incredibly useful for us working this caseload. Disseminating an intimate image of someone else without their consent and using it in harassing, humiliating, shameful manner is a crime. So, it’s kind of this revenge porn type stuff where boyfriend is unhappy with girlfriend for breaking up with him, and he’s like, “Hey, we made some sex videos,” and you throw it up on the Internet. It’s a huge violation of your ex’s trust, that should be against the law, and it is now.

Yeardley: [00:54:08] So, I imagine the crime is more severe if there’s harassment involved, a revenge component, for instance, and less severe if you have two people who, even if underage, are sharing photos as part of their relationship, but no harm is intended, even though who knows what the long reaching effect of that might be. But for all intents and purposes, these young people are just doing what kids sometimes do when they explore their bodies.

Dave: [00:54:36] Absolutely correct. The difference really comes down to intent and behavior with the person sharing the image. If you’re harassing demeaning, shaming, that’s a criminal offense. If this is your first offense, getting arrested for unlawfully disseminating an intimate image, it’s a misdemeanor. If you have a prior conviction for doing this and later on you get arrested for the same thing, now you’re a felon. That’s a felony. So, not to say you get a get out of jail free card on the first one, but– [crosstalk]

Yeardley: [00:55:05] They give you the benefit of the doubt.

Dave: [00:55:07] Exactly. It’s an occasion where we can educate the child, both children involved, and their parents and school staff if it’s impacting the school, which inevitably it does, because those rumors go right around the school. It’s horrible. I can’t imagine being in high school nowadays.

Yeardley: [00:55:28] It was hard enough-

Dave: [00:55:29] Right?

Yeardley: [00:55:29] -when we were. [giggles]

Dave: [00:55:31] Right. Detective Matt and I, and other detectives that we’ve had on our show, met with the district attorney to formulate a game plan. How are we going to handle these sexting cases so we’re not turning 15 and 16-year-olds into felons and sex offenders when that’s not an appropriate use of the statute? Let’s find a different way to do this that is less impactful, long term, and immediately impactful when you can go to a parent or a child who is your “suspect” for sexting back and forth. I just want to stop the behavior right there, and that’s your “Get Out of Jail Free” card.

[00:56:14] You can imagine, and this has happened, where I have this talk with the suspect, the 16-year-old, and his father, or his mother, and I say, “This has to stop now, do we understand? If your name is on a police report and it lands on my desk again for the same type of behavior, I’m going to think that you didn’t get the message. I’m probably going to ramp things up a little bit.” The district attorney, she agreed, like, “We need to have a plan of attack.” So, the circumstances drive the police response. Our preference is an informal education and counseling to all parties involved. We let them know that the creation of the image is a crime and requesting an image is a crime.

[00:57:01] We want to avoid the criminalization of these kids who are engaging in activity that a majority of other high school kids are doing, it just hasn’t landed on my radar. Evaluations are on a case-by-case basis and all depends on the behavior of the activity, are they being harassing, shameful, that type of thing. We want all the parties to cooperate. If I say, “Hey, I need to get into your phone, and we’re going to go through and delete all the questionable images off your phone. I want you to cooperate with that. If you stonewall me and say, ‘Screw you, it’s my child’s phone, you’re not getting into it,’ I go, “Well, it’s my phone, by the way, I just seized it because I know what’s on there. And really, I just wanted your cooperation, but now you’re going to make me write a search warrant for this. And that’s a lot of work, not just for me, for a deputy district attorney who asked to review this, and I’m also going to go interrupt a judge in the middle of their day or night. I’d rather you just cooperate.” Most people, 99% of parents were like, “Okay, now that you put it that way, I’d be happy to cooperate with you.”

[00:58:15] The context of the sexting behavior is a course of shameful, harassing, intimidating, or is it consensual. Consensual is a completely different animal. I’d rather it be a consensual thing rather than you saying, “Hey, I’m going to release this rumor throughout the school unless you send me a photo of what you’re wearing right now, and I prefer you not be wearing anything.” Like that, come on, man.

[laughter]

[00:58:41] You are on the path to becoming a regular on my caseload. We really stressed coercive, bullying, shaming behavior, real bad. You’re going to get a different response from law enforcement and from the court. If you just want to cooperate and play ball with us, it’s going to end today. It’s all over. I know that your phone has these images on there. I have to ensure that that is not available, or else I wouldn’t be doing my job. It’s like arresting someone for crack and then handing them back the crack pipe and the crack, saying, “You know what? I just really don’t want to deal with it today. On your way.”

Yeardley: [00:59:19] Just don’t do it, okay? Here’s all the stuff back.

Dave: [00:59:23] Right. That stuff has to go. It’s fruits or proceeds of a crime, that stuff has to be taken care of.

Dan: [00:59:29] Repeated cases.

Dave: [00:59:31] Obviously. If you repeatedly come across my desk, you’re going to get my attention because you’re just creating work for me. That only happened a few times, but it has happened where we have this talk with the involved child and their parents, and they swear up and down, “I got the message. Promise, you’ll never see me again.” And then a month later, here they are, listed in another police report and you’re like, “All right, you get level two consideration now.” It’s going to be a bigger deal than the last time we met. It’s just the way it is.

[01:00:05] The last thing I would talk about with parents is it’s especially applicable to parents of boys. Not to say it doesn’t go the other way but in my experience, and I know when I discussed sex offenders, a lot of times I say he or him, that’s my experience, is 90 plus percent of my caseload was male offenders. So, I speak in those terms. I encouraged parents to always discuss consent with their children, how important that is, what consent looks like, what it doesn’t look like. It’s extremely important to avoid landing your name in a police report, that if you respect the other person’s boundaries, we’re not going to get to the point that we have a crime occurring. That’s the whole goal. Nobody’s getting victimized, and then everything’s consensual. So, talk to your children about consent, and what it looks like. I have a video that I used to always throw into every presentation I had on the subject. The title is “Consent. It’s as simple as tea.”

Yeardley: [01:01:15] Like tea that you drink?

Dave: [01:01:16] Yeah, like a tea party.

Yeardley: [01:01:17] [chuckles]

Dave: [01:01:18] I found that video on YouTube. It’s a brilliant video, it’s only a few minutes long, but basically says, “You wouldn’t allow your friend to come over unannounced and offer you tea. And when you said no, they shove it down your throat until you’re unconscious. If you wouldn’t consent to that, and you recognize that the person is not consenting, just because you guys had tea before, that it’s not such a stretch to think about it in sexual terms.” Just because we’ve had sex before doesn’t mean that it’s going to be a regularly scheduled program. It doesn’t mean that because they said yes before that they can’t say no now. It doesn’t mean that in the middle of the act, when they start saying no, that means it’s over with. That if a person is punch drunk on tea, and they’re passed out, you should be caring for them, not taking advantage of the amount of tea that they drank, that it’s all consensual. Don’t violate other people.

Dan: [01:02:17] Just to be clear, you’re talking about juveniles together right now. Not talking about a 28-year-old who’s groomed a 15-year-old. We’re talking about juveniles and consent.

Yeardley: [01:02:29] Among juveniles.

Dan: [01:02:30] Yes. A juvenile cannot consent at all with an adult.

Yeardley: [01:02:36] What about juvenile to juvenile?

Dave: [01:02:38] Yeah, so in our state, a juvenile is considered a child until their 18th birthday. In our state, you are not as a child capable of consenting to any sexual contact with anyone.

Yeardley: [01:02:52] Even a 16-year-old to 16-year-old?

Dave: [01:02:54] Right.However, we understand what happens in high school. We’re not naive. So, there’s consideration given to that by prosecutors and by the legislature when we talk about laws and what has to be prosecuted versus prosecutorial discretion. We all went to high school. We know what happens at the parties, and we know that people are in relationships. We understand that 16-year-olds are going to experiment and they’re going to have sexual experiences. We just ask that it be in a consensual manner.

Yeardley: [01:03:24] When you’re talking about teenagers consenting to have sex, you’re speaking in a colloquial way?

Dave: [01:03:30] Absolutely. I’m not speaking in a legal term way or legal definition. We’re discussing the birds and the bees that happens to be explored by likeminded juveniles.

Yeardley: [01:03:41] Yes. Okay.

Dan: [01:03:42] What’s important, us in law enforcement and prosecutors and judges, we all understand what the spirit of the law rather than the letter of the law. We know there’s a difference there.

Yeardley: [01:03:53] There are nuances.

Dan: [01:03:54] There are nuances and we take those things into consideration.

Dave: [01:04:00] This video, I love this video, it’s the accent. The guy sounds kind of like the Gecko from GEICO. The video is so simple, it’s entertaining.

Yeardley: [01:04:08] To our listeners, if they want to actually watch the video as you would present it in your presentations, you can find it on YouTube. It’s called Tea and Consent. Tea as in T-E-A.

Dave: [01:04:20] Right. There’s two versions. One is the English accent, the British accent that I really enjoy.

Yeardley: [01:04:28] Yes. [chuckles]

Dave: [01:04:29] The other is an American voiceover

Dan: [01:04:32] The British one is way more charming.

Yeardley: [01:04:34] [chuckles]

Dave: [01:04:35] It really is actually.

Yeardley: [01:04:36] There you go. [chuckles] So, that’s how you would wrap up your presentation?

Dave: [01:04:42] I would always take questions at the end. If our listeners have questions, feel free to reach out.

Yeardley: [01:04:48] You can reach out to us at info@smalltowndicks.com.

Dave: [01:04:52] Yeah. For parents who have questions about what we just went over, if you want to email myself or the team at info@smalltowndicks.com, feel free. Happy to answer the questions.

Yeardley: [01:05:03] Yeah. Excellent. What an extraordinary public service, Dave. It’s so good. Thank you.

Dave: [01:05:11] You’re welcome. I hope it helps.

Yeardley: [01:05:13] I don’t see how it couldn’t.

Dave: [01:05:14] After these presentations, Matt and I would get extremely useful feedback and let us know that parents needed to hear this stuff, that it’s valuable information.

Yeardley: [01:05:26] Absolutely.

Dave: [01:05:31] I want to leave you with this. The audio from the teen consent video. It speaks for itself, and thank you for listening.

Narrator: [01:05:40] If you’re still struggling with consent, just imagine instead of initiating sex, you’re making them a cup of tea. You say, “Hey, would you like a cup of tea?” And they go, “Oh, my God, I would love a cup of tea. Thank you.” Then, you know they want a cup of tea. If you say, “Hey, would you like a cup of tea?” And they’re like, “Ah, you know, I’m not really sure.” Then, you can make them a cup of tea or not, but be aware that they might not drink it. And if they don’t drink it then, and this is the important bit, don’t make them drink it. Just because you made it, doesn’t mean you are entitled to watch them drink it. If they say, “No, thank you,” then don’t make them tea. At all. Just don’t make them tea. Don’t make them drink tea. Don’t get annoyed at them for not wanting tea. They just don’t want tea, okay?

[01:06:31] They might say, “Yes, please, that’s kind of you,” and then when the tea arrives, they actually don’t want the tea at all. Sure, that’s kind of annoying as you’ve gone through the effort of making the tea, but they remain under no obligation to drink the tea. They did want tea, now they don’t. Some people change their mind in the time it takes to boil the kettle, brew the tea and add the milk. And it’s okay for people to change their mind, and you are still not entitled to watch them drink it. If they are unconscious, don’t make them tea. Unconscious people don’t want tea and they can’t answer the question, “Do you want tea?” because they are unconscious. 

[01:07:09, maybe they were conscious when you asked them if they wanted tea, and they said yes. But in the time it took you to boil the kettle, brew the tea, and add the milk, they’re now unconscious. You should just put the tea down, make sure the unconscious person is safe, and this is the important part again, don’t make them drink the tea. They said yes then, sure, but unconscious people don’t want tea. If someone said yes to tea, started drinking it, and then passed out before they’d finished it, don’t keep on pouring it down their throat. Take the tea away. Make sure they are safe, because unconscious people don’t want tea. Trust me on this.

[01:07:48] If someone said yes to tea around your house last Saturday, that doesn’t mean they want you to make them tea all the time. They don’t want you to come around to their place unexpectedly and make them tea and force them to drink it, going, “But you wanted tea last week,” or to wake up to find you pouring tea down their throat going, “But you wanted tea last night.”

[01:08:06] If you can understand how completely ludicrous it is to force people to have tea when they don’t want tea, and you’re able to understand when people don’t want tea, then how hard is it to understand when it comes to sex? Whether it’s tea or sex, consent is everything. And on that note, I’m going to make myself a cup of tea.

Yeardley: [01:08:29] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith and coproduced by Detectives Dan and Dave. This episode was edited by Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel, and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:20] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Yeardley: [00:00:36] Hey, all you fabulous, fabulous podcast listeners out there, it’s Yeardley Smith. How are you? I am one of the cohosts of the true crime podcast, Small Town Dicks, and I’m a civilian. I am honored to be guest hosting The Briefing Room today because I have questions that I know many of you do too, because we get a lot of mail from you guys, which is awesome. The question I have today is about police use of force. So, there’s no shortage of news and debate out there about what police can and cannot do when arresting a subject.

[00:01:13] And I thought it would be interesting to dig into how those rules about use of force in modern policing came to, because it turns out much of what law enforcement is expected to observe comes from case law and cases that have ended up in front of the Supreme Court. These rulings have very often set the boundaries for a civilian’s rights and a police officer’s responsibility for when the community and law enforcement interact. This is a great conversation. Some of you might have heard it before, but we think this is such an important topic we wanted to share it again. So, let’s get to it.

[00:01:55] Today on The Briefing Room, I have with me, Detective Dan.

Dan: [00:02:00] Hello, team.

Yeardley: [00:02:01] Hello, you. And I have Detective Dave.

Dave: [00:02:04] Hello, Yeardley.

Yeardley: [00:02:06] All righty, Dan. Class is in session. Start us off.

Dan: [00:02:10] So, when we talk about case law, it’s an ongoing curriculum for police officers. It’s a constant update for us. Every year, we have training on new case law and on case law that’s maybe been affected by other decisions. So, for this episode, the two cases we’re talking about here are Tennessee v. Garner and Graham v. Connor. Now, Tennessee v. Garner, this case happened in 1974. It wasn’t ruled on until 1985 by the Supreme Court. But this case has to do with the right of the police to shoot a fleeing felon. So, we’ll talk about that one.

[00:02:52] The other case is Graham v. Connor. This case was ruled on by the Supreme Court in 1989. What this case did was it created a three-pronged test for officers’ use of force decisions.

Dave: [00:03:08] It’s the basis of how officers are judged in use of force situations today. These two cases are landmark decisions that have survived all kinds of challenges over the years going through, being reevaluated by the courts. They’ve all been affirmed. These are solid decisions and they’re not going anywhere. This is how cases are evaluated by district attorneys who are examining whether or not the police used a reasonable amount of force.

Dan: [00:03:40] What these two cases revolve around is reasonableness. And that’s a word that we use in law enforcement quite frequently. Every use of force has to be reasonable. When we talk about how officers react and the decisions they make, we use the reasonableness test to gauge, whether or not a similarly trained officer with similar experience would make decisions similar to the officer in question. So, these cases and other cases provide a framework for how police officers do what they do out on the street every day. The first one I want to talk about is Tennessee v. Garner.

Judge: [00:04:25] We’ll hear arguments first this morning in Tennessee against Garner.

Dan: [00:04:29] This happened in Tennessee back in 1974.

Lawyer: [00:04:32] On the evening of October 3rd, 1974, the police received a call to come to the scene of what was an apparent breaking and entering.

Dan: [00:04:42] These officers arrive at the house. One of them goes behind the house and he sees a suspect running across the yard. He gives chase. The suspect encounters a six-foot-high chain link fence. The officer afterwards says, “I didn’t believe he was armed.” That’s important. He confronts the suspect, whose name is Garner. His last name is Garner. Garner disregards the officer’s commands to stop and comply. Garner does not comply. Garner begins going over the fence. The officer pulls out his weapon and shoots Garner in the back of the head, and it kills him.

Lawyer: [00:05:28] There are two issues in this case. The first deals with the constitutionality of a state statute with regard to the use by a police officer of all necessary means to effect an arrest. The second is whether the municipality’s use of deadly force to apprehend a fleeing burglary suspect after exhausting all other reasonable means is constitutionally permissible.

Dan: [00:05:57] Back then in Tennessee, they had a state statute that you could shoot fleeing felons. Even in the state that Dave and I worked in, there was a fleeing felon statute that you could use deadly force. That statute is trumped by this case law, Tennessee v. Garner.

Dave: [00:06:14] Because this is Supreme Court case law.

Dan: [00:06:17] Yeah, this is supreme court case law. It actually went through a few lower courts. And basically, the suspect in this case, he was 15 years old, he gets shot in the back of the head, and he dies on the way to the hospital. They find $10 and a purse in his possession that were taken from the house during the burglary. And police officers, now, we recognize this use of force as being completely unreasonable that you can’t just shoot somebody, because they’re running from you. But this is the case law that really set that.

Yeardley: [00:06:55] Just to be clear, because of this case, Tennessee v. Garner, you are now no longer allowed to just shoot a fleeing felon. Is that so?

Dan: [00:07:07] Correct.

Yeardley: [00:07:08] Okay.

Dan: [00:07:09] The Tennessee statute back in 1974 stated, “If after notice of the intention to arrest the defendant, the defendant either flees or forcibly resists, the officer may use all the necessary means to affect the arrest.”

Yeardley: [00:07:26] So, that would include everything.

Dan: [00:07:28] That’s pretty all-encompassing right there.

Yeardley: [00:07:31] Yes. But one would assume that you would try several other tactics, all the other tactics to stop the fleeing felon before you resort it to deadly force.

Dan: [00:07:42] Yeah. The suspect’s father brings suit and says that this was excessive force, and I agree. At first, the courts side with the police, and the prosecution, and the State on this and say, “No, we have a statute that says he can use any means to affect the arrest.” It then goes to the Court of Appeals. And the Court of Appeals says, “The killing of a fleeing suspect is a seizure for the purposes of the Fourth Amendment.”

Yeardley: [00:08:15] Can you explain what that means?

Dan: [00:08:17] The Fourth Amendment has to do with search and seizure. The Fourth Amendment is why we have to write search warrants for properties, when someone has a right to privacy in that dwelling.

Judge: [00:08:27] The narrow question presented is whether a state law authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape constitutes an unreasonable seizure of the person.

Dave: [00:08:39] The broader definition of seizure is basically, if I arrest you, that’s a seizure. If I put my hands on you, that’s a seizure. Even if I limit your movement without putting my hands on you, like, detain you by giving you a verbal command, stop right there, sit down, I am seizing you at that moment. So, when you shoot somebody, you have now disabled their ability to get away, and you have effectively seized them for all intents and purposes. So, that’s what we mean by seizure.

Dan: [00:09:13] So, the Court of Appeals ruled in this case that the killing of a fleeing suspect is, in fact a seizure, but it’s only lawful when it’s reasonable.

Yeardley: [00:09:23] Okay.

Dan: [00:09:25] It’s only constitutional when it’s reasonable.

Dave: [00:09:28] You’ve got, in this case, the officer admitting that he recognized this suspect is not armed and did not believe him to be armed. So, this officer knows that this person is not armed with a weapon, but that officer is also covered by this then existing statute in Tennessee, which says, “You can shoot a fleeing felon.”

Dan: [00:09:54] This case eventually goes to the Supreme Court, and the Supreme Court basically says, “The use of deadly force against the subject is the most intrusive type of seizure possible, because it deprives the suspect of his life.” And I think we’d all agree on that.

Yeardley: [00:10:07] Yes.

Dan: [00:10:08] The majority opinion of the court held that the State failed to present evidence that its interest in shooting unarmed, fleeing suspects outweighs the suspect’s interest in his own survival.

Yeardley: [00:10:21] So, can you say that again, please?

Dan: [00:10:23] The majority of the court held that the State failed to present evidence that its interest in shooting unarmed, fleeing suspects outweighs the suspect’s interests in his own survival.

Yeardley: [00:10:34] Right. So, it goes back to that word, reasonableness.

Dan: [00:10:39] Yeah. To me, it’s pretty obvious that in this situation, that’s inequitable.

Yeardley: [00:10:45] Right. That–

Dan: [00:10:47] That you can shoot somebody, just because they’re running from you.

Yeardley: [00:10:50] Yes.

Dan: [00:10:51] Yeah. Anytime we talk about use of force, we’re going to talk about reasonableness. I mean, we could talk about this case for a long time, and a lot of it had to do with common law, which common law goes way, way, way, way back. I mean, we’re talking about, like, English common law, right? So, it’s antique law is really what it is. I think we’ve evolved.

Yeardley: [00:11:14] I really want us to have evolved.

Dave: [00:11:17] At least, the law has. Not the mammals.

Yeardley: [00:11:20] Fair.

Dan: [00:11:21] The dissenting opinion in this case was actually from Justice O’Connor, which I find a little surprising.

Yeardley: [00:11:27] Sandra Day O’Connor?

Dan: [00:11:29] Yeah.

Sandra: [00:11:30] Do you think that it really is unreasonable under the Fourth Amendment for an officer who would tell an experienced adult, burglar, stop or I’ll shoot, you think the Fourth Amendment prohibits that? You think that there’s no room there for saying that the person who refuses to heed that warning is knowingly giving up any right to have alternative action taken?

Lawyer: [00:12:04] No, I don’t think that the Fourth Amendment should allow such a shooting. I think that unless the state interests require it because of the interest of protecting the public, the Fourth Amendment would bar that shooting. The officer may have other alternatives. He should run after him, he should call in assistance, he should investigate the scene. It does not invariably follow. If the person gets away, he’ll never be caught. Although that may often be the consequences. It’s not always the consequence.

Dan: [00:12:31] So, in her opinion, she highlights the fact that police officers must often make swift, spur of the moment decisions while on patrol, and argued that the robbery and assault that happen in the home are related to the already serious crime of burglary, which we can agree. I think burglary is a serious crime, especially at a residence.

Dave: [00:12:52] Was this an occupied dwelling?

Dan: [00:12:54] It doesn’t say anything in here. I don’t believe it was occupied at the time. Justice O’Connor mentions the robbery inside the house, and I’m thinking, was there some sort of confrontation inside the house? It doesn’t change what happens at the fence, especially when the officer says, “I didn’t believe the suspect to be armed,” right there is a huge cut-off moment for this case.

Yeardley: [00:13:18] Right. Your life as an officer is not in danger. The kid is just trying to get away from you. So, that seems massively excessive. I know we’ve said it many times, but I already can’t remember the difference between robbery and burglary. One has to do with people involved and one does not, correct?

Dave: [00:13:38] Yeah. So, robbery is, I forcibly, or by threat of force, or intimidation, take something from you.

Yeardley: [00:13:48] So, you encounter me.

Dave: [00:13:50] Right. A burglary is I break into a house, there’s nobody around. Even if there is somebody around who’s sleeping on the couch, there’s no interaction between me and the other person. So, burglary is considered a property crime, because you’ve just broken into a premise, like a building or a house. A robbery is a person crime, because you are physically either intimidating, threatening with a weapon, or you’re fighting with a person. So, robbery is people on people. Burglary is a property crime.

Yeardley: [00:14:26] Okay.

Dan: [00:14:27] So, when you get down to brass tacks about what this decision did for police officers is, it established that the reasonableness of an officer’s use of force, whether against a fleeing suspect or otherwise, is to be determined from the perspective of the officer under the circumstances that were apparent to him or her at the time. So, like, we touched on earlier, did not observe a weapon, had clear view. The officer had a flashlight and was face to face with this suspect before the suspect turned to flee, and the officer said, “No, I didn’t believe he was armed.”

Yeardley: [00:15:05] Also, he was 15.

Dan: [00:15:08] Well, the officer actually estimated this kid’s age to be 17 or 18. Now, I’ve seen kids that I swear to God were 20 years old that were only 14 or 15 years old, because they’re 6’2″. And unless you’re talking about there’s just an obvious discrepancy of what you’re looking at. An eight-year-old kid, I don’t think anybody’s going to mistake an eight-year-old for an 18-year-old. But a 15-year-old, I can see that.

Dave: [00:15:36] Especially one bold enough to go commit a burglary. Like, you want to play adult games? You’re in the adult arena now, and there are consequences. Not to say that Mr. Garner deserved what he got, but you open yourself up to a series of circumstances that are now out of your hand.

Yeardley: [00:15:55] If you’re going to break into somebody’s house, there is a chance that these harsh consequences will happen to you.

Dave: [00:16:04] Right. There are bad things that can happen when you put yourself into that circumstance.

Dan: [00:16:25] So, there’s another one here, and it’s Graham v. Connor. This guy, Dethorne Graham goes to a convenience store with a buddy. He is feeling a little off because he’s diabetic and he feels like he’s having an insulin reaction. So, he’s going to go get some sugar to even him out. And he goes inside the store, he looks and he goes, “The line’s too long. I’m leaving.” He returns to his friend’s vehicle, they drive away from the store, and Officer Connor, a police officer saw Graham’s behavior and became suspicious. So, Officer Connor pulls Graham and his friend over, and during the encounter, the officer tries to detain Graham, and Graham resists arrests and is injured, breaks his foot. He’s got some cuts on his wrists, he’s got a bruised forehead, and he injures his shoulder during this scuffle.

[00:17:26] So, he files a federal lawsuit against the officer, basically alleging that the use of force during the stop was excessive and violated his civil rights. So, it eventually went to the Supreme Court.

Judge 2: We’ll hear argument next to number 87-6571, Dethorne Graham v. MS Connor.

Dan: [00:17:49] Again, we’re talking about reasonableness, this word that is a character in our lives as police officers’ reasonableness. The Supreme Court held that determining the reasonableness of a seizure requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. So, putting a grabus on someone as a police officer, there’s a reasonableness test that you must put. Is it reasonable that I use all means of force necessary to effect an arrest? It’s similar to Tennessee v. Garner.

Lawyer: [00:18:28] To quote this court in Tennessee v. Gardner, reasonableness depends not only when a seizure is made, but also how it is carried out.

Dan: [00:18:37] The court basically said, “Given the facts known at the time, would a similarly trained and experienced officer respond in a similar fashion as Connor did?”

Yeardley: [00:18:47] That’s the question they’re asking.

Dan: [00:18:49] Yes.

Lawyer: [00:18:50] Both courts held the respondents conduct was objectively reasonable, considering the need force, the amount of force used, and the extent of the injuries that petitioner has alleged.

Judge 2: [00:19:01] Well, what reason was there for handcuffing a diabetic in a coma?

Lawyer: [00:19:07] At the time, the officers didn’t know that he was a diabetic in a coma.

Judge 2: [00:19:13] Did he have a weapon of any kind?

Lawyer: [00:19:15] The record doesn’t indicate, I don’t believe.

Judge 2: [00:19:17] The record didn’t show he had a weapon of any kind.

Lawyer: [00:19:19] That’s correct. But the record– [crosstalk]

Judge 2: [00:19:20] Why was he handcuffed?

Lawyer: [00:19:22] The record shows that he was properly stopped as a suspect for a criminal investigation that he was acting suspiciously, that he was acting in a bizarre manner, that Mr. Barry asked for Officer Connor’s help. Mr. Barry so said, he said, he didn’t know what was wrong with petitioner. It might be an insulin reaction, a sugar reaction. He’d never seen one. He was scared. He didn’t know what to do. He asked for Officer Connor’s help. He testified that petitioner was throwing his hands around. The District Court stated without contradiction that when the backup officers were arriving, a scuffle started. At that point, the officer sought to put the handcuffs on petitioner. He resisted the handcuffs. He threw his hands around more. Indeed, even after he was handcuffed and the officers went to put him in the car, the undisputed record shows that he was vigorously fighting and kicking, resisting getting into the car.

[00:20:12] The District Court and the Court of Appeals both commented on that. Given his resistance, even after he was handcuffed and given the crowd that was gathering and getting out of hand, the police were reasonable in deciding that they needed force to overcome his resistance, and that they needed to get him into the car quickly, and out of the hostile environment.

Dan: [00:20:30] So, what the Supreme Court did is, they came up with, there are three questions that you answer as an officer when using force.

Dave: [00:20:39] It’s called the three-prong Graham test.

Yeardley: [00:20:42] Okay. What are the three questions?

Dave: [00:20:45] The severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by fleeing. So, you have to take those things into account. Again, this all comes down to reasonableness and why the courts and district attorney’s offices are unable to Monday morning quarterback based on case law like Graham v. Connor and Tennessee v. Garner is that, police officers are judged in the moment, not with the benefit of hindsight. Basically, you have other officers as a reasonableness standard is would another officer with the same amount or similar training, with similar experiences in that situation, would they have acted similarly to the way this officer acted and is that reasonable?

[00:21:51] Police officers in the heat of the moment making split second decisions. When I say split second, we’re talking life could be gone in one second, if I don’t do this or if I do this. It’s not fair to judge people if you weren’t there. So, I can’t stress that enough. It’s what the officer is experiencing at the time, not what me on my couch watching the news later that night or a day later. I’m not qualified to judge that man. I can make a judgment on the reasonableness of the use of force based on, do I have similar training, do I understand that moment, do I understand all the outside factors that go into the totality of the circumstances right in front of this officer?

Dan: [00:22:47] Which is the importance of the three-prong test. So, the severity of the crime at issue, did this guy steal a pack of Skittles? Now it’s quite different if this person is a kidnapper, right? Whether the suspect poses an immediate threat to the safety of the officers or others. Now, another way to look at that is, what if this person gets away? That’s also a threat to others, correct? So, I would go back to in Season 2– [crosstalk]

Yeardley: [00:23:18] Monster.

Dan: [00:23:19] Monster. Now, if that kidnapper would have gotten away, does he pose a threat to the public? Hell yes, he does.

Yeardley: [00:23:28] And to that little girl.

Dan: [00:23:30] And to that little girl. We cannot let him get away. So, were they justified in using deadly force against him? They didn’t, but I think they were justified if they would have. If there was only one police officer and this guy is running through the forest with this girl trying to get away or the girl is safe now and the guy’s still trying to get away, but he’s running toward a neighborhood, I would say that guy poses an immediate threat to the public.

Yeardley: [00:24:00] And the third tenant is–

Dan: [00:24:03] Whether he’s actively resisting arrest or attempting to evade arrest by flight.

Yeardley: [00:24:08] So, that’s combined with number two in this particular case, if he’s trying to get away.

Dan: [00:24:13] Yes. And particularly, when I was a canine officer, these factors would go into decisions I made on whether or not I was going to deploy my dog or how I was going to deploy my dog off leash on a long line on a 6-foot leash on a 12-foot lead. My long line was 25ft. All of these factors, whether or not I was going to muzzle my dog.

Yeardley: [00:24:38] Meaning, literally keep him from biting a suspect.

Dan: [00:24:42] Yeah. One of the questions I would ask officers when I went to assist them if I was going to deploy my canine was, “Do you have PC for a crime right now and what is that crime?” I’ve got theft three. It’s a shoplifter who ran from Walmart and he ran northbound. Go find him. If I see that suspect running from me, I’m not going to just dog him. I’m not going to send my dog on him because I’ve got a petty theft. So, this case right here is the test that directed me on how I made decisions as a canine handler.

[00:25:19] Now, there was another case where it was an armed robber who was running from me, and I sent my dog on him, and my dog bit him and caused quite a bit of damage to the guy’s leg, because he was trying to pull his leg out of my dog’s mouth and he had some damage to him. But I was absolutely justified in sending my dog on that guy.

Yeardley: [00:25:43] And why is that?

Dan: [00:25:45] It’s an armed robbery. The severity of the crime is, that guy, he poses a threat to the public if he gets away. He honestly said to me, “I didn’t think your dog was going to catch me before I got to that fence.” My dog got him.

Yeardley: [00:26:01] [giggles] Your dog is always faster.

Dan: [00:26:03] 35 miles an hour. It’s pretty quick [Yeardley laughs] through an empty parking lot.

Dave: [00:26:08] Land sharks. This is important. We go back to the Kilcullen Episode.

Yeardley: [00:26:14] Sure. The Small Town Dicks episodes we called End of Watch.

Dave: [00:26:18] Right. I remember being in that pursuit, I knew that were going to chase that car forever. Regardless of the suspect’s driving behavior, which driving behavior and circumstances, the time, the location of where the pursuit is either heading towards or going through is why we terminate pursuits, because the juice isn’t worth the squeeze. We’re putting the public in more danger than it’s worth to arrest the fleeing suspect. Even though, it’s a felony. It’s a felony to elude the police.

[00:27:02] In that case, in Kilcullen case, I knew that were going to chase that car until it ran out of gas or until something happened. In the mountains where we were, I was the only vehicle that had any radio reception. I don’t know how that happened, but my car’s radio is the only one that was working for our agency. When I heard that Officer Kilcullen had been shot, I knew this was a deadly force situation.

Yeardley: [00:27:34] You mean you knew that you might have to use deadly force?

Dave: [00:27:37] Right. And that James, who is the first officer behind suspect’s car, I knew he can ram her off the side of the hill, because if the use of force is justified, the resulting injuries are inconsequential. There’s case law about vehicles being pursued and using pit maneuvers on vehicles that are going at high rates of speed, that it’s inherently a deadly use of force with your vehicle to spin a suspect vehicle at high speeds, because there’s a great chance that someone’s going to get seriously injured or killed.

[00:28:16] In that situation, I knew that James could push suspect right off the side of the hill. It’s a creative way to end that situation and make sure that this person who just shot a police officer does not get away. James had a ride along with him that night, and James was a little bit worried that he might put himself off the side of the road too. So, James did a great job. Once that pursuit ended, we came to the top of a logging landing, and there’s literally gravel ends and the forest begins. There’s nowhere for suspect to go. That allows us to slow things down. She’s not fleeing anymore. So, the circumstances changed. But it was important for me, when I heard that the officer had been shot that other people in our stack of cars following suspect need to be aware of that, because it changed the rules of engagement that now I know that I can shoot this person if they’re trying to get away from me, because that person is a danger to the public, has just killed somebody, and is actively trying to get away.

[00:29:35] Situation just did not present itself. The circumstances weren’t there. I’ve been asked many times, “I can’t believe, why didn’t you shoot her?” Wasn’t there. It was never there for me to pull the trigger and shoot this suspect, because I did not feel scared for my safety or the others that were with me. To have the number of guns that were pointed at her after she just killed one of our brothers, for her to not get shot, it shows how professional the brothers and sisters that we were up on that mountain that day. Exceptional. Exceptional folks. All did it the right way.

Dan: [00:30:17] I get the same question. You weren’t there.

Yeardley: [00:30:21] So, it works both ways. You weren’t there to know why we didn’t shoot her. And in a situation where somebody does get shot, you weren’t there.

Dan: [00:30:30] Yep. 2020 Hindsight.

Dan: [00:30:47] So, this case right here, Graham v. Connor is especially important. This is a three-prong test, right? Severity of the crime, whether the suspect poses an immediate threat to the safety officers or others, and whether or not, he or she is actively resisting arrest or attempting to flee. So, some big cases recently that this case law has been a part of is the shooting of Michael Brown in Ferguson, Missouri, the shooting of Alton Sterling in Louisiana, and the Derek Chauvin-George Floyd case in Minneapolis. Is it reasonable for Derek Chauvin to have his knee on George Floyd’s neck for eight plus minutes? No, it’s not. It’s not reasonable.

Dave: [00:31:36] And it’s not even close.

Dan: [00:31:39] When you look at it through the lens of reasonableness, officers who have been trained in those situations and have similar experience say, “That’s not reasonable.”

Dave: [00:31:49] And it’s exceptionally important for people to realize, this is in the eyes of an officer, a similarly trained officer with similar experience in the same situation. It’s not a similar citizen, it’s not a similar civilian. I need to be judged based on how other officers would have interpreted that situation. Is it reasonable?

Dan: [00:32:19] There was a case several years ago now, and I think it was in South Carolina, where a man had run from a traffic stop, and the officer shot him in the back and killed him. I remember watching, because there’s actual video of that shooting. I remember watching that video before I knew any of the facts of the case, and I was like, “That looks unreasonable to me. You were losing the foot chase, so you just shot him, and the guy was merely running from a traffic stop?” Mm-mm.

Dave: [00:32:52] It’s not reasonable.

Dan: [00:32:53] It’s not reasonable.

Yeardley: [00:32:54] Right. It’s so interesting and complex.

Dave: [00:32:58] Ahmaud Arbery, one of the persons convicted is a former investigator for the district attorney’s office there. Not employed at the time, was retired. But was any of that reasonable? You call the police. It’s that simple. These guys created their own emergency by chasing Ahmaud Arbery down.

Yeardley: [00:33:22] And then blocking its way.

Dave: [00:33:24] Yeah. And approach him with a shotgun? You just look at it and you’re like, “I’m done. This was unreasonable a long time ago, and now this happened.” Totally unreasonable.

Dan: [00:33:38] The Ahmaud Arbery case sounds circumstantially very similar to Tennessee v. Garner.

Yeardley: [00:33:46] Well. And also, Zimmerman and Trayvon Martin.

Dan: [00:33:49] Yeah. They said in the Ahmaud Arbery case that he was burglarizing a house that was under construction, and he was running, and then they shot him. So, similar to Tennessee v. Garner, where Garner got shot in the back of the head trying to go over a fence after the officer had already said, “I didn’t think he had a gun on him. I didn’t think he was armed.” So, I know that the three defendants in the Arbery case probably claim that, “Oh, we thought he probably was armed.” But I think justice has been served in that case.

Yeardley: [00:34:26] Yeah. Do you consider Connor’s stop on Graham to be to meet that threshold of the three-pronged Graham test?

Dave: [00:34:37] I understand with the benefit of hindsight, which we’re not supposed to use. Can I put myself in that officer’s shoes without knowing everything that officer is experiencing? I can understand why he was interested in what was going on with Graham. I understand that. It makes sense to me. It seems reasonable that he would be curious as to what Graham was up to. So, I understand where he’s coming from there.

[00:35:10] It’s also why in those types of situations, I would also make sure that I had additional probable cause to make the traffic stop. Did they have violations on the vehicle? In that situation, would I follow that car and without additional PC, would I pull that car over? I probably wouldn’t. I’d be like, “Oh, okay, I don’t know what he’s got. We don’t have any call from the store saying, ‘Hey, somebody just shoplifted from us.”‘ That would be additional information. That would be, now you’ve got a righteous stop.

[00:35:47] Absent that, for me personally, I would probably just follow that car, try to get my own PC for a traffic violation, and then do a traffic stop, so I can lawfully contact with the benefit of having additional PC to make the stop on the car. That’s me personally. There’s so much gray area. It’s not black and white like people want it to be or that cops would want it to be. You operate in these gray areas and you have case law that either supports what you’re doing or case law that says, “No, you can’t do that.” These situations are not very complicated. Even simple situations like this, they are nuanced and they’re complicated, but that’s why these cases are so important to the police.

Yeardley: [00:36:45] Yes. I think the thing that always strikes me about when we talk about use of force, because we do talk about it, not on the podcast, right, because we talk about everything, and there are viral videos. It seems, like, every 10 minutes. I think what probably I feel like, “Okay, I understand it, but I can’t really grasp, because I haven’t had the exact experience” is how much information you need to process in a split second. You need to meet that three-pronged threshold, but you have less than a second to figure out if you got there.

[00:37:22] As you said, Dave, it’s complicated and it’s nuanced. I love this conversation. I thank you so much for your candor, for doing what you do, and I think we could pick up where we left off in a future episode. Fabulous, fabulous podcast. Listeners, thank you so much for letting me take over the hosting chair today. It’s been an honor and great fun, and we will see you next time.

[music]

Yeardley: [00:37:53] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith and coproduced by Detectives Dan and Dave. This episode was edited by Logan Heftel, Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel, and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:03] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:20] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Dave: [00:00:36] Welcome to The Briefing Room. Today, we’re talking about the forensic side of law enforcement, evidence and crime scene investigation. First, let me introduce the team. We have Yeardley Smith. Good day, Yeardley.

Yeardley: [00:00:49] Good day, Dav. [laughs]

Dave: [00:00:51] And of course, my twin brother, Dan.

Dan: [00:00:54] Hello, team.

Dave: [00:00:55] And I’m pleased to introduce our two guests. We have the former District Attorney of Sacramento County in California, Anne Marie Schubert.

Anne: [00:01:04] Thank you for having me. It’s a big introduction.

Dave: [00:01:07] And we have a familiar face, familiar voice. Back for more, Paul Holes.

Paul: [00:01:14] Hey.

Dave: [00:01:15] So, the connection here is Paul and Anne Marie have worked a case or two together in the past. One, quite notable. Joseph DeAngelo, the Golden State Killer case. But both have extensive knowledge of DNA and evidence. And today, they’re going to talk to us about how genealogy has been used by law enforcement to solve previously unsolvable crimes. So, I’m just going to let you guys take it from there.

Paul: [00:01:42] Sure. Obviously, that genealogy tool has been revolutionary. But going back, way back, I got involved in the East Area Rapist case, which is the previous moniker that the case was referred to up in Northern California. Now everybody knows it as a Golden State Killer case. I got involved with it in 1994. As I was working my way through becoming a DNA analyst, I was starting to dig into the physical evidence on the East Area Rapist case that was happening out at the Bay Area back in 1978, 1979-time frame, and I ran across three sex kits that have been kept that had DNA from the offender, and was able to do DNA work. Then in 2001, that ultimately led to linking these unsolved series of rapes up in Northern California by these East Area Rapistto

an unsolved series of homicides down in Southern California by an offender that they called the original Night Stalker. So, it showed that this guy, this rapist in Northern California and this killer down in Southern California were one and the same. And now, we know him as the Golden State Killer.

Dave: [00:02:52] And you guys were getting some pushback from Southern California jurisdictions basically saying, “I don’t think your guy is our guy.”

Paul: [00:02:59] With one agency, yes. I ran into that pushback, but that detective actually pointed me to Irvine PD, who then pointed me to Orange County Sheriff’s Lab. And independently, they’re doing DNA work. Ultimately, that collaboration between myself and this, Mary Hong down at the Orange County Sheriff’s Lab created this link. This is when I get a phone call from Anne Marie. She was telling me how passionate she was about the East Area Rapist case. We may have interacted before then.

Anne: [00:03:34] I think we did.

Paul: [00:03:35] Yeah, because we both have a passion for cold cases. You had started your career out of Contra Costa County.

Anne: [00:03:43] I’m a baby lawyer prosecutor in 1990 in Contra Costa County, and then I lasted a few years there. They had that contract system there.

Paul: [00:03:52] You know what? You started the same year I started with the sheriff’s office.

Anne: [00:03:55] Well, you know what’s funny is as you sit here and say, “I first looked at this Golden State Killer in 1994,” that’s when I did my very first DNA case as a trial attorney, as a prosecutor in a neighboring county, it was rape, a very serious rape case. And so, I started doing more and more DNA, started teaching cold case stuff, and then I went to my office and said, “We should start a cold case unit and we should solve the East Area Rapist.” This is around 2000. At the time, we had no idea if we could even prosecute. We didn’t know he was a killer. We thought he was a rapist and we didn’t think the statute of limitations would have let us move forward. But I didn’t really– I don’t want to say I didn’t care. I cared enough, because I knew the impact on Sacramento.

[00:04:34] I grew up in Sacramento. I grew up in the Arden area, which is one of the areas that he was hitting and he terrified– He changed Sacramento forever. And anybody that lived there will tell you their own story. And so, that’s when I cold call this dude named Paul Holes in Contra Costa County and I’m like, “Hey, can I talk to the lab director?” And they hooked me into Paul. And he’s like, “Well, that’s totally interesting, I’mlooking at this case too.” Thank God, they had kept these rape kits, because it wasn’t intentional, but the statute of limitations had long since passed, so they did not have the rape kits. It was just lucky that Contra Costa had kept them. And so, that’s where I would say our professional relationship began.

Yeardley: [00:05:16] How did you know, if Sacramento had not kept the rape kits, that it was the same offender as Contra Costa?

Paul: [00:05:23] Well, the East Area Rapist had such a unique MO and behavioral signatures that even the original investigators without DNA technology, without any fingerprints linking cases together. When this rapist would show up in a different jurisdiction and they would see the details, they go, “That’s our guy.” His MO was so unique. And to this day, his MO is so unique. So, that wasn’t hard to link the cases without DNA. It’s just that when the Golden State Killer goes down to Southern California and actually escalates to homicide, we don’t have victims alive who are able to say, “This is what he was telling us, this is what he did.” Some of the unique characteristics of his attacks on couples, like, stacking the dishes on the men’s backs and stuff. Well, he didn’t do in these homicide cases. He didn’t need to, because he knew he was going to be killing them.

Anne: [00:06:19] But long before the forensic link was made between the rapes and the murders, the law enforcement community, I think many of them believed it was the same person. Like the box in our office was the rapes in Sacramento, the rapes in the Bay Area, and then these murders in Southern California. I’m like, “Why are they got this in here?” That’s because they had the foresight of believing this was the same person, but they didn’t have the forensic link at that time.

Paul: [00:06:43] That’s true. There was one. The very first attack down in Southern California was a classic East Area Rapist style attack, and it went sideways on DeAngelo. But in essence, one of the original investigators out of the Contra Costa County Task Force, when I contacted him, he said, “Yeah, we always thought he went down to Santa Barbara.” And so, there had been that thought. But even in Southern California, some of these agencies, they were squabbling over if their cases, their homicide cases were linked or not.It’s a different case. Orange County, Santa Barbara, were just constantly debating that.

Dave: [00:07:22] Jurisdiction means a lot to law enforcement agencies and the courts. Jurisdiction doesn’t mean shit to a suspect. They’re just like, “I’m going to commit crime or wherever I go. The fact that it’s a different jurisdiction actually is probably going to help me, because they don’t tend to be very communicative.” So, that’s why it’s complex. We’re not talking about a neighboring city. He went hundreds of miles south to a different region of the state. To get that link together back then is incredibly fortuitous. Nowadays, it’d probably be a lot more simple because every horrible murder, it has a Twitter article linked to it. Back then, the dissemination of information wasn’t nearly what it is today.

Paul: [00:08:07] It was teletype, oftentimes, and then there may be bulletins that have been put out. We see this in these old case files in terms of an agency will push out a teletype that has some details about their crime saying, “Hey, looking to see if anybody else has something similar.” But it’s not very robust. But as Anne Marie and I, our relationship with East Area Rapist, we spent some time. In fact, I audited that cold case class. Remember that?

Anne: [00:08:35] Yeah.

Yeardley: [00:08:36] So, Anne Marie, you taught a cold case class?

Anne: [00:08:39] Well, myself and a group. It was a really cool class. What the purpose of the class was bring together, like, 25 students. But to come to the class, you submitted an unsolved murder. And then we spent the week going through them in a very specialized format. Paul will remember it well. We had them presented in a certain way. Some very famous cases were presented to it. And then we had experts that helped. I was the DA. But we had a pathologist, we have a DNA criminalist. Many of these people are our friends now. So, it was not just, “Let’s help them find new leads,” but it was also training, especially departments that maybe they don’t see a murder in 10 years.

[00:09:19] So, you’d be in this class, and they’d present the case, and then the pathologist would get up and say, “Okay, here’s the cause of death. Here’s the manner of death.” The DNA person would get up, Jill Spriggs, our friend, would say, “Okay, here’s how you read this lab report. Here’s what more you can do.” And so, it was great to give them new leads or ideas, but it was an incredible training experience, because they’d walk away with seeing 15 murders in a week that they may not see in their whole career.

Paul: [00:09:46] I still have that binder to this day, the cold case investigation class binder.

Anne: [00:09:51] We need to start that class again.

Yeardley: [00:09:53] That sounds like a phenomenal class. I would take the class, if I was allowed, or at least, I like to sit in the back.

Anne and Paul: [00:09:59] Yeah.

Anne: [00:09:59] It was like watching a movie. You didn’t want to leave to go the bathroom.

Yeardley: [00:10:01] I bet not. So, Anne Marie, you shared a real passion with Paul for cold cases. In fact, you started the cold case.

Anne: [00:10:09] Unit in our office. Right.

Yeardley: [00:10:11] And so, you met 20 so years ago. Anne Marie, you had studied DNA. You had more than a cursory knowledge of how DNA would operate, yes?

Anne: [00:10:22] I was assigned my first DNA case in 1994. It was a kidnap rape of a teenage girl. And so, I had to do a big hearing. It’s called an admissibility hearing. You have to prove to the judge that the science behind this DNA is reliable. It’s generally accepted and reliable. I wasn’t a science person in school, but I was forced to learn population genetics, which is statistics. It’s like bore the crap everbody. [Yeardley laughs] And then having a bunch of people from UC systems’ talk about how it’s applied to medicine. And so, that was in the mid-1990s. That was the early days, right?

Paul: [00:10:58] Yeah. Well, when Anne Marie is learning this and having to get DNA admitted as evidence, this is when DNA was not just readily accepted in the courts. This was new technology. And so, it was very, very contentious, where at times you would see experts within the field that are national level experts being brought in to a small county trial just in order to either get the courts to admit it or to try to prevent the courts from getting it in. And so, it was really a battleground.

Anne: [00:11:35] It was the days of O. J. It’s the same time period of the O. J. trials of all those DNA people testify. Actually, one of the defense attorneys that was one of O. J.’s defense lawyers on the DNA was from Sacramento and I’ve done many cases with him. All of this around the mid-1990s is when that case happened and then it all started coming to light like, “What is this stuff?”

Paul: [00:11:54] Ultimately, DNA became very accepted. The technology itself wasn’t being combated. It was how unique is this DNA profile, the statistics that were being testified to. But circling back around to Golden State Killer, we had his DNA. We just didn’t know who he was. In 2001, the type of DNA profile that had made the link between the East Area Rapist original Night Stalker series was amenable to being uploaded into the FBI’s CODIS system. So, in 2001, the Golden State Killer’s DNA is now searching up at the national level to try to find this guy. Fast forward, to roughly 2010, I decided, “I’m going to investigate this case.” I really latched on to a guy I thought was him.

Anne: [00:12:44] Yeah, got a lot of calls for Paul.

[laughter]

Anne: [00:12:46] “No, I got the guy. This is it.”

Paul: [00:12:48] Yeah, Anne Marie and I are on the phone, and I was like, “Hey, I’ve got a guy.” That’s when she told me about Ken Clark. She says, “Hey, the [unintelligible] Sheriff Homicide guy is also very interested in this case.” Pretty soon, there was a discussion about who else is working the case that we don’t know about. That’s when with Ken and Anne Marie and myself, we got this idea. It’s like, we need to get everybody in the same room. Anne Marie was critical with that thought process.

Anne: [00:13:19] I was just pushy. That’s actually what it was.

[laughter]

Yeardley: [00:13:22] Pushy work.

Paul: [00:13:24] So, around that 2010, 2011-time frame, that’s when, across the state, we all converged on Santa Barbara. This was how this, I call it a task force, but nobody was 100% dedicated to this series. In many ways, I think we refer to it as a working group, but for the first time, we were sharing information. We uploaded all the case files up into a very secure FBI based centralized location, where now I am seeing reports out of Sacramento I had never seen. I’m seeing Southern California, at least, parts of those case files that I had never seen. It was awesome. But the frustrating part was is that, well, the one thing that I was confident would solve the case was the DNA, and it’s been up in CODIS at this point for over a decade, it hasn’t hit.

[00:14:12] In 2012, we’re all in this room down in Santa Barbara and we’re brainstorming. I believe one of the other investigators brought up, “Well, what about this Y-STR technology?” There’s a genetic genealogist. Her name was Colleen Fitzpatrick. So, I say, “Okay, I’m the science guy. Let me look into it.” This was utilizing this male chromosome that’s passed down on the father side of any family, and Anne was like, “Oh, wow, we could actually utilize this type of genealogy to determine our killer’s last name,” because the surname is preserved in our culture. And so, I start doing a full deep dive on this form of genealogy in 2012 and it led me down so many rabbit holes.

Anne: [00:15:01] Well, I got lucky, and I got elected to be the DA in Sacramento, and I came in 2015. And so, I think what I was very fortunate about was then I got to help say, “Okay, we’re putting more people on this.” And then Paul knows these folks very well. Two people from my office that became part of the little small team that really solved the case, Kirk Campbell, who’s our homicide guy, and Monica Czajkowski, who’s our analyst, and they became part of this little dream team. And Paul really gets the credit for the idea. Him and Steve Kramer about the actual type of genealogy that was used to solve the case.

Yeardley: [00:15:34] And Steve Kramer was your guy at the FBI?

Paul: [00:15:37] So, Steve Kramer, he’s an interesting person from his career standpoint, because he’s a lawyer. At the time that I first met him, and there was a phone call. He called me out of the blue, and it was after our very last task force meeting, which was up in Sacramento, and Kirk and Monica were there. I had given a briefing to the group on a hit I had on this Y-STRs to this old man that– [crosstalk]

Anne: [00:16:03] Rudy.

Paul: [00:16:04] Rudy, [chuckles] who was up in Oregon, Portland, and was saying, “Hey, it’s not the killer, but I think he’s possibly related.” But Kramer had heard, he wasn’t at the meeting, but he had heard about me pursuing the genealogy. So, he calls me out of the blue and says, “Hey, I hear what you’re doing with DNA. I believe in that. How can I help?” This was such a huge moment for me because now I had somebody that was fully embracing what I was trying to pursue. We just are very similar and complementary persons. So, it really worked out well.

[00:16:42] Right at that time frame, I was just at wit’s end. Okay, I’m excited about this Y-STR thing, but I know it’s not going to be the guy. That may not pan out, but we got to pursue it. But I had also had another case. It was a 2002 homicide that I had actually gone out on. It was an Asian woman who had been killed and buried underneath her own home and kitty litter had been put on top of her body.

Dave: [00:17:02] You got your hands in every big-

[laughter]

Dave: [00:17:05] -notorious case. You mentioned the kitty litter. I’m like, “I know what he’s talking about.”

Paul: [00:17:09] [laughs]

Yeardley: [00:17:09] You do?

Dave: [00:17:10] Oh, yeah.

Dan: [00:17:10] Bear Brook.

Yeardley: [00:17:11] Oh. Yes. Oh, my God.

Paul: [00:17:14] The interconnections, and I’ll briefly explain it, but that case, unbeknownst to me in 2002 was ultimately what led to utilizing genealogy to solve the Golden State Killer case because the live-in boyfriend, the homicide suspect of kitty litter case, looking at his past and we couldn’t identify him. He had 20 different names. We didn’t know who he was, but his criminal history had been linked together through fingerprints and stuff over the years. But in 1986, he had abandoned a little girl, six-year-old girl down in Santa Cruz. He was charged with that. She was alive, had been sexually abused, and he had made a statement that he was her father, and mom had died in a car accident in Texas. The assigned homicide investigator on that case was like, “Oh, that’s bullshit.” We got his DNA, compared it to Lisa’s, like, a paternity test. He’s not her father.

Yeardley: [00:18:11] So, Lisa is the little girl?

Paul: [00:18:12] Lisa is the little girl that he abandoned. At least, that’s the name that she went by. Now, we’re convinced, she is an abducted child from somewhere. Myself and then my homicide investigative friend, Roxane Gruenheid, we spent 15 years using traditional methods and missing persons indexes and everything else to try to figure out who Lisa was, and we couldn’t. Then in February of 2017, Roxane calls me and says, “Hey, come over to my office.” And so, I go over to her office, which was across town, and Peter Headley, a detective from San Bernardino was on the conference line. And so, Roxane’s like, “Peter, tell him.” And Peter goes, “We’ve identified Lisa.” She’s this girl, her name is Dawn, and she’s from New Hampshire. And her mom is still missing, but it was like, “Okay, so, how did you identify her?” And he goes, “Well, I used a website called dnaadoption.com. There’s a genealogist there by the name of Barbara Rae-Venter. He was saying there’s something about SNPs and centimorgans, and I don’t understand it all.”

[laughter]

Paul: [00:19:24] Yeah, but it worked. As I’m listening to this, I’m going, “I wonder if that can be used to identify an unknown offender.” So, I drive scream across town to my office, and I immediately called this Barbara Rae-Venter, and I asked that question, “Would this be able to identify an unknown offender?” And her response was, “I see no reason why it wouldn’t work.” So, I ended up sending her some information. I didn’t tell her what case I was working. I just said, “Hey, this case is a major case. We had some type of genealogy testing that had previously been done.” So, I sent her that information. And she made a comment of, “Well, it’s too bad you don’t have SNPs. And a SNP, S-N-P stands for single nucleotide polymorphisms.

Anne: [00:20:11] Say it three times.

[laughter]

Dave: [00:20:14] A common spelling.

Paul: [00:20:15] I was familiar with theory of what a SNP was because in forensic conferences, they had explored using these SNPs as a way for identification, for use in crime samples.

Yeardley: [00:20:27] Can you say what it is? Like, what is a SNP?

Paul: [00:20:30] So, you think about DNA, DNA is, like, you’ve got a bunch of building blocks, like a layer of bricks, and you have four different colors of bricks. Each of those bricks is a nucleotide. You’ve got billions of nucleotides in your entire genome. But there’s certain points, certain bricks in your DNA that have a tendency to be different from person to person. It’s a single point. The way the SNPs are used for human identification purposes and ultimately, genealogy, is that when you start looking at hundreds of thousands of these single points and they’re inherited, you can start to see where people have segments of their DNA that are related to each other, because they’ve got the same single point changes.

Anne: [00:21:22] So, like in traditional DNA, what Paul and I did for years, they were looking at 25 places on the chromosome. The SNPs look at 700,000 to a million. So, that’s why the tool is so powerful is that that’s why you’re able to build out those family trees because you’re getting so far out in the genome and casting a much, much wider net for potential relatives.

Paul: [00:21:46] What it does is as, let’s say, you have a child, half DNA from mom, half DNA from dad. Well, during the process of creating the sperm and the egg to make that child, there is a little bit of shuffling of the genome that occurs. The DNA fragments and then reconvenes, and then that’s what gets passed on to your child. Well, that fragmentation is the critical step, because through the generations, as you have grandkids and great grandkids and stuff, the DNA gets more and more fragmented. After six, seven generations, if you could go back in time and– I might be related to Abraham Lincoln on paper, I’m not.

Yeardley: [00:22:29] [laughs]

Paul: [00:22:29] But if you were to test his DNA and my DNA, so many generations have passed, the amount of DNA that we share would be on the order of where it might not show that we’re related at all, even though we truly are. But that is part of the power of this is that it does differentiate through time. But when you share more and more of these fragments of DNA, that means you are closer in relatedness. So, of course, if you upload your sample in one of these genealogy databases and you go out and commit a crime, there would be 100% match. If your brother is in the DNA database, you roughly are going to have about a 50% match. But as you go through these generations, you get out to your cousins and your second cousins, not even just generations, but out wider, you share less and less DNA. But the amount of DNA that you share with these relatives tells us when we do that type of search, well, that’s on the order of a third cousin.

Yeardley: [00:23:32] Based on these SNPs.

Paul: [00:23:33] Based on the SNPs, we can see how much DNA you share, how big the fragments are. The bigger the fragments, the more DNA that you share, the closer you are related. So, when Barbara said, “Too bad you don’t have SNPs.” She stopped communicating and I thought, “Here’s a genealogist that doesn’t want to work with law enforcement.” But I start doing a deep dive on how SNPs are being used in the genealogy world. It was funny because Steve Kramer was really excited about the Y-STR. So, he’s really focusing in on the Y-STR stuff. Then as I’m learning SNPs, I’m going, “Holy smokes, this is powerful.”

Dave: [00:24:24] To extract a SNP, how much more involved is that process than the traditional law enforcement way that we determine someone’s DNA?

Paul: [00:24:35] Well, it’s a completely different technology. I wouldn’t say it’s any more or less involved. It utilizes a different technology than what the forensic law enforcement-based labs use entirely.

Anne: [00:24:47] And it’s private labs. As far as I know, we don’t have a public, like, a police agency lab or county lab. So, we send it to private labs. We know, now, since that time, you can talk about miniscule amounts of DNA that are now solving these cases. I mean, miniscule.

Dave: [00:25:04] That’s what’s frustrating. I go back to my work on child abuse, the number of rape or sexual assault kids that I’ve seen handled had involved in a case, unsolved murders that we’ve had where we’ve got either minimal DNA that is not enough to compare, or name a major contributor to, or no DNA at all. I remember asking our lab in my state, “Are you driving the Geo Prizm of DNA technology or [Yeardley laughs] are you in a Maserati?” Because then it’ll help me set my expectations on, “When I submit this, what are the chances anything comes back?” Because I’ve really got deflated by the number of times that we would submit something and I’d be like, “Oh, there’s got to be DNA on here,” and they’re like, “Nothing.” No fucking way.

[00:25:54] I just watched The First 48 and they got DNA [Yeardley laughs] off a raindrop that landed on a trash can that was out on the street. I’m like, “And we can’t find shit on a baseball bat that’s covered in blood?”

Paul: [00:26:08] There’s so many variables that would impact that because of grant monies that have been provided over the years, many labs had pretty close to the most modern equipment for that type of testing. It’s oftentimes, “Well, how good is the analyst?” This is a very human based aspect. How diligent did the analyst really pursue the evidence? Crime labs can get so backed up. Even California state labs, they implemented a policy. You can only submit three samples, three items of evidence. And so, you have to guess, which ones are going to be the most likely ones. And from my perspective, it’s so frustrating, because sometimes you will find the evidence that will solve a case in the least expected place.

Dave: [00:26:54] Exactly. And that policy exists in my state and used to frustrate the hell out of me. So, you just confirmed something for me, because I was going to have a question. But I’ve always said to people, they say, “My family is dealing with this, and a detective was assigned to our case, and this, this and this isn’t happening. But I’ve listened to your podcast and I know that this is a type of case where you were written a search warrant for this.” And I go like, “Any industry, any job, any customer service position, you are at the mercy of the assigned detective on your case. It translates to the lab analyst. You are at the mercy of the diligence and competence of whoever is assigned to that case.” That’s horrible to think, but it’s reality.  

[00:27:45] Not everybody has the same competency in a job. So, people would ask me, “Hey, my house got burglarized, and this agency,” that’s in my jurisdiction, “this detective got assigned to it.” And I’d be like, “Oh, you’re in luck. That guy’s totally squared away. He’s going to work his ass off,” or you’d be like, “[laughs] You’re fucked.”

Yeardley: [00:28:06] [laughs]

Paul: [00:28:07] Well, and this is where when I get involved with a case and I run across a situation to where the lab comes back and no DNA found or whatever, I don’t want their report. I want that analyst notes, because that’s where I will see what they really did or whether or not they were any good.

Anne: [00:28:25] It’s a huge deal, because you’re just relying on them with this lab report. Most people don’t understand the details of how much DNA do you have left, what was extracted, blah, blah, blah. That’s why Paul is good at what he did, because it’s always in the lab notes. I’ll give you an example. We had a case, rape, murder, no more DNA left from the rape kit from the victim. And then I’m like, “Well, why don’t you guys look at the envelope?” So, the envelope that the little swabs are put in, they found a full DNA profile. That’s the thing is you have to constantly pick at those notes. It’s not that they don’t want to do good work. It’s just you have to push and push and push on thinking outside the box on where that might be.

Dave: [00:29:06] So, I have a follow up question to that is, I was working in murder that Dan and Detective George, now Lieutenant George. We were all working on this murder and were heavily invested in this. We were the first three at the scene, like, dealing with this. I remember going to a meeting with this analyst and her supervisor.

Dan: [00:29:27] I was there.

Dave: [00:29:28] Yeah, Dan was there. It was after I sent this snarky email [Yeardley laughs] that I was like asking, “Are you working with the Geo Prizm or the Maserati of DNA technology?”

[laughter]

Dave: [00:29:40] Here’s my frustration. I don’t understand. Here’s a chance for forensics to really be the star of this case. “Can you walk me through how you are telling me that the suspect’s shoe you found no DNA in a well-worn boot that was never rained on or anything?” And they’re like, “Yeah, there’s no DNA in there.” I’m like, “Okay. So, walk me through how you collected the DNA.” They’re like, “Well, we swabbed the shoe.” And I’m like, “Show me where. What did you swab? Did you swab the bottom of the shoe? I wouldn’t expect to find their DNA there either.” And they’re like, “Oh, no. We swabbed a little bit on the tongue where your front of your lower ankle would brush up against. And then we swabbed a little bit in the heel cup.” And I go, “Just spitballing here. But what if you guys took the actual footbed, the soul out of the shoe, the insole, and just took a swab, and went from the toes back and forth, side to side, all the way to the heel cup? What if?” And they go, “Well, that’s not how we swab shoes.” And I go, “But entertain me here. This is an unsolved murder. Can you guys just do this just for shits and giggles for me?” And they’re like, “Yeah, we’ll fucking do it.”

[00:30:55] A couple of weeks later, “Hey, we got DNA off that.” [Yeardley laughs] And I’m like, “Bingo. Maybe I’m not an asshole.” I’m not trying to say that this analyst was, but that was the training is this is where we swab shoes for this. And I was like, “Are you shitting me? There’s not a person on the planet that would swab those areas. I don’t understand how that’s your policy. How is this a best practice?” I hope this case has highlighted some differences and allowed you to go, “Hey, maybe we should stop swab in these areas and we could maybe solve some cases if we change up our practices.” The same issue I had with analysts asking me, “I want your reports.” And I’d say, “Well, I don’t want you to have my report. I’m submitting this item of evidence, which is a sword. All I want you to tell me is if there’s human blood on it and if you can get DNA off of it. The report, don’t worry about it. I don’t want to influence your bias. I just want you to swab the areas that test positive presumptive for human blood.” And they’d say, “Well, no, I’m not going to do it without the report. I need to know why I’m doing it.”

[00:32:03] I’m like, “I think that sword ended up through somebody’s heart. That’s why I want you to do it. I’m not just trying to be troublesome, but we had the same issue. We could only submit three items at a time. We would go through that, you wait months, it comes back negative, they’d let us resubmit three more.” And I’m like, “This is absurd. This is getting silly.” But I asked for the analyst notes in this meeting, because they were presented in front of me, and I started looking, because I was like, “Where’d you swab on the sword?” “There’s nine spots circled.” And I’m like, “Oh, my God.” I took my camera out to take a picture of it, and she swiped it right back away from me and I was like, “Can I get a copy of your notes?” And she was like, “Absolutely not.” And I’m like, “Are we all on the same team here? If I asked you for your notes, would you ever have a problem giving them to me?”

Anne: [00:32:51] Well, they’re part of discovery anyway.

Dave: [00:32:52] I would hope so.

Paul: [00:32:53] But the interesting thing that’s going on, and it’s to my frustration is part of meeting accreditation standards. These note packets are becoming very controlled, where many labs have policies. They will not provide the investigating agency or anybody else copies of the analyst notes. It will only be provided under a discovery request. So, nowadays, when I consult on a case, I ask, “Hey, do you have the analyst notes? Can you call up the lab?” Most of the time, the labs are saying, “No, Detective, you cannot get copies of the notes.”

Anne: [00:33:32] To me, that’s ridiculous. When I was doing cold case stuff before, I usually told the cops, “Listen, you need to become ‘friends with the criminals.’ Bring them Starbucks and go meet them. And then you sit down, and I may disagree with you on the police report giving it to them, because then they can focus on especially the crime scene photos.” Then we would have meetings on cold cases, and we’d all sit down at a table and say, “Okay, here’s the crime scene.” And so, there was a good relationship building on that and then you didn’t waste resources on, don’t do this or don’t do that.

Dave: [00:34:03] The issue that I had why I said, “Well, I don’t want you to have my report,” is because of a learned experience where I had a previous case that I wanted a certain item, among others, to be checked for DNA. That person had asked, “Can I get your report?” And I was like, “Yeah, absolutely.” I emailed him a report, and I got the lab report back months later, and it said, “Based on information contained in the report, this item was not analyzed.” And I’m like, “I’m never sending them a fucking report again.”

Paul: [00:34:36] [laughs]

Yeardley: [00:34:37] Oh, my God. So, the lab technician who asked for your report read it and then drew their own conclusions about what items should and should not be tested, and they didn’t even consult you?

Dan: [00:34:48] Right.

Dave: [00:34:48] Like, “That’s not helpful.”

Paul: [00:34:50] Well, this is addressing very much a pet peeve of mine. What’s happening now is because of the fear of contextual bias with forensics.

Yeardley: [00:35:04] What is that?

Paul: [00:35:05] So, this is where if the analyst knows too much about the case, they may inadvertently utilize that information and sway their opinion on the case.

Dave: [00:35:18] That was my whole concern with bias. I was like, “I don’t want you to know those things, because I don’t want a defense attorney to come back and be like, ‘Oh, you’re a little bit too invested. And so, you steered this to go in the direction you want to keep it clean.”‘

Paul: [00:35:33] Now, I grew up in a lab that when I was employed, I was very much a generalist type criminalist. I worked in multiple forensic disciplines. I was a crime scene investigator. I was a scientist that was going out in the field. I was seeing the evidence in situ. I developed crime scene reconstruction expertise, blood pattern, interpretation skills, trajectory, all of that. So, when I am working a case, I bring all that to the table. Now, we have several generations of forensic scientists who have never been out at a crime scene. They have never seen the evidence in the field. All they are asked, “Here’s some swabs. Test it.” So, they are blinded, both purposefully as well as just through their experience, to be able to properly interpret their findings within the context of the case.

[00:36:29] So, that shifts the burden now onto the investigators or onto the attorneys. There are some investigators out there that can do that, there are some attorneys out there that can do it. Most can’t. I, across the nation now, am consulting on cases. When I’m looking at crime scene photos and I’m seeing what has been tested, and I’m going, “It’s so obvious. Over here is the probative evidence. You guys have missed the mark on the direction of the testing that you’ve gone on.”

Yeardley: [00:36:57] Because what you’re seeing is most lab technicians these days don’t get to visit the crime scene, and that is robbing them of context, and therefore, they’re not getting to see the whole picture.

Paul: [00:37:09] Exactly. And nobody within that jurisdiction has the skill set to be able to do that. So, we’re building silos. You’ve got the investigative silo, you’ve got the prosecutorial silo, you’ve got the forensic science silo, and nobody can communicate between them properly on the case.

Anne: [00:37:29] Part of the problem is that it may be analyst driven. It’s just like any other profession. There’s lazy people and there’s good people that work really hard, and it’s also funding driven. And so, when you’re not putting enough money into those services, it’s like asking CPS to investigate every child abuse case in the county. There’s too many.

Yeardley: [00:37:48] What’s CPS?

Anne: [00:37:49] Child Protective Services. So, a report of a neglect or abuse.

Dave: [00:37:53] Those case workers are more overworked than anybody in law enforcement.

Anne: [00:37:58] Yes. It’s a combination of things that can cause a case to go cold.

Dave: [00:38:02] I’m not trying to say that this analyst was lazy. I was like, “I don’t understand why we’re having to pull teeth here. Just work with me and help me adjust my expectations. If I’m watching too much CSI, call me on it.” It’d be like, “Hey, by the way, we don’t have a shoe print database that’ll give us a return in eight minutes [Yeardley laughs] of where it was bought, who bought it, what their favorite color is. Like, that doesn’t exist. So, I get it, just help me adjust my expectations.” But there was things where I’m like, “I know enough to know that doesn’t seem accurate or right.” Very frustrating.

Dan: [00:38:44] Going back to the early-1990s– You got out of the academy in 1994, is that right?

Paul: [00:38:48] I did.

Dan: [00:38:49] Anne Marie, you were a prosecutor in 1990?

Anne: [00:38:51] Yes, I started in 1990.

Dan: [00:38:53] So, this is the first couple of years that DNA is really coming to the forefront. Either of you, Paul or Anne, did you have to go around to different detectives agencies and train them on DNA on, “This is important, and this is how you collect this evidence, and here’s why it’s important?”

Paul: [00:39:16] Yeah. In the early days, I was training local agencies, as well as at the end of my career, I was going to the DA investigators classes. My role was to talk to them about how to interpret a DNA report. I was also saying, oh, there’s this genealogy thing out here that I’m really pursuing well before we had actually caught the Golden State Killer. So, there’s always been a need and there always will be a need. So, the people that are investigating the case, the prosecutors that are prosecuting the case, they have a fundamental understanding of how DNA is used, and what it tells you, what it doesn’t tell you based on what was found.

Anne: [00:39:59] It’s like any other profession. I did my first case in 1994. I realized then this is the greatest tool ever given law enforcement, hands down, find the truth no matter what it is. I knew it then. Then I came to Sacramento, did my first DNA case in the late-1990s of a serial child kidnapping pervert guy. And then I started teaching lawyers and I started teaching cold case classes. There’s the legal aspect to it, then there’s the science part to it that’s changing over time. The first time Paul came to Sacramento to tell me about this little idea– And I understand DNA.

[laughter]

Anne: [00:40:34] My eyes glassed over. I’m like, “Dude, you need to repeat that a few more times here, because I don’t get that.”

Yeardley: [00:40:37] [laughs]

Anne: [00:40:39] Because he starts talking about these SNP things and I’m like, “What the hell is that?” So, I understand it and then I’m thinking, “How does the whole world even understand what this is?” And now we’re in the weeds of, “Okay, we understand it works. How much do you need?” I was talking about a case yesterday. “Okay, you have 225 picograms. Is that enough to get a SNP? There’s 1,000 picograms and one nanogram, and you need a half a nanogram.” There’s math, which I’m not good at. So, constantly it’s evolving. I almost feel like we’re at the time of– Is it Star Trek or Star Wars where you’re going to come in and put your hands over the platform and you’re going to say, “Oh, Mr. Smith was here, [Yeardley [laughs] because we’ve gotten so advanced.” I think someday we’ll have this little SNP machine in the field for cops. I hope someday in our lifetime, probably not, well, we’re working, but-

[laughter]

Anne: [00:41:26] -where you’re out there, and you go back to the police force, and you collect your little swab from that shoe that you finally figured out where to swab, and put it in the machine in the field, and you have your genealogy profile right there. That’s what I hope for someday.

Paul: [00:41:38] And even today, right now, there are rapid DNA devices. But with the evolution, you start talking about the training. Each time, there had been an advance within a technology. Then there’s training sessions going on out to law enforcement. In fact, after Golden State Killer, Anne Marie had me go down to Santa Barbara– We flew in a tiny little Cessna in a plane. [laughs]

Anne: [00:42:01] I have a picture to prove it.

[laughter]

Paul: [00:42:03] Down to Santa Barbara, because she wanted me to present to all the DAs that had cases to the Golden State Killer, how this genealogy tool was used to catch DeAngelo. Then you also had me talk to Sacramento law enforcement. So, now here’s this new revolutionary tool, this genealogy, and I’m having to go out and I’m training up in Sacramento, and then I was actually down here at DA, Jackie Lacey’s request to talk to Los Angeles law enforcement. And that was within two months after DeAngelo was caught.

Anne: [00:42:38] Yeah, and the same was true for me. So, once we realized it worked, I’m texting all my DA colleagues. I’m like, “This shit is really good.” [Yeardley laughs] So, I text the San Diego DA. She’s great DA. She’s the top dog for the office. I’m like, “Can I come down there and talk to you guys about this?” Because they have a really good cold case unit. Go down there. They’ve become amazing at solving crimes. Talk to Fresno. They bring a bunch of people together. I remember the chief of police coming up, “Oh, we should use this on this Debbie Dorian case.” College kid raped and murdered. Now they have a guy charged with it. So, it’s all about you have to educate him what it does, because it is the greatest advancement in forensics in our lifetime. It just is. It just really, really is.

Paul: [00:43:23] It’s revolutionary. I do think part of the discussion of genealogy is just to try to dispel some myths about the tool, because after it came out that we had used genealogy to catch DeAngelo, I was the poster child of the person that violated everybody’s rights across the nation, right?

Anne: [00:43:44] He had his hands on all those people’s DNA.

Paul: [00:43:46] Yeah. [Yeardley giggles] BuzzFeed News was constantly hitting me up and they wanted interviews. This is something where the DNA I had access to was the Golden State Killer’s DNA that had been collected from inside a woman’s body, who he bludgeoned to death as he was raping her after he raped her. That is the one genetic bit of information that I truly had access to. Now, of course, I uploaded that profile into genealogy database. We had used initially two. It was this GEDmatch, which was a public open source type of genealogy database and then we had also used FamilyTreeDNA who were the ones that actually generated this SNP profile that we needed in order to be able to find relatives of the Golden State Killer. But I could never see anybody’s genetic information in these genealogy databases.

[00:44:40] In order to do that, I have to download their profile in order to get this SNP profile of them. Can’t do that from these websites. There’s no reason for me to do that either. So, this is where I really have an issue with calling it a genetic genealogy. It is DNA based, for sure, but fundamentally, once I get a list of people who share DNA, that’s all I know. They share DNA, how much DNA they share and what size fragments gives me an idea and how distantly or closely they’re related. With DeAngelo, when we got our initial results back, third cousins, okay, that tells us we have to build family trees of these people back in time to the great, great grandfather level. For DeAngelo, for the Golden State Killer, it turns out these were people born in the 1840s. But that building of the family trees is just straight genealogy that anybody does using ancestry.com, using findagrave.com, newspaper articles, looking at obituaries, it’s public records, census records.

Dave: [00:45:48] To me, it’s no different than searching Facebook.

Anne: [00:45:50] It’s very similar, but the difference from the public perspective, and this is where the misinformation is in the world is, they think you guys are going to find out if they have Parkinson’s or you’re going to go serve a search warrant on the pharmacy to see if they’ve getting medicine for this. One thing that we do to try to educate policymakers, legislators, whoever, or the public is, you as law enforcement have the same rights as anybody else does in these sites. You can create a fake Facebook account to go find a gangster. That’s legal. You can upload to a genealogy site like anybody else. What’s interesting to me about the privacy debate is in the world of adoptions, people thought they had contracts that protected themselves from their names being disclosed. Those are poof. Those are gone. So, kids that are adopted are now finding their biological parents.

[00:46:44] There’s a lot of secrets out there in these genealogy sites. And so, for law enforcement– I’m sorry, I’m just going to say it, you’re solving crime, you’re exonerating people that are innocent, you’re identifying unidentified human remains. And for goodness’s sake, we’re preventing crime by doing this work.

Dave: [00:46:58] It’s the greater good.

Anne: [00:46:59] It is.

Yeardley: [00:47:12] Before we wrap up, talk a little bit about since the Golden State Killer case, maybe both you, Anne Marie and Paul could talk a little bit about some of the other cases that were solved with this technique that you found really gratifying.

Paul: [00:47:26] Well, a personal one that I was directly involved with was this 1974 homicide out of Fort Worth, Texas. 17-year-old Carla Walker goes to a Valentine’s Day dance with her boyfriend, Rodney. They take off from the dance, driving around, having a good time with some friends, drop the friends off, and then they go to the bowling alley to use a restroom. Get back in the car, and there probably was some necking going on, maybe an argument was going on between them. But then Rodney makes statements that, as he’s on top of Carla, passenger door opens up, and a man with a gun pulls her out of the car, and he initially says shoots him.

Yeardley: [00:48:07] Shoots Rodney?

Paul: [00:48:08] Shoots Rodney. But no, he was likely pistol whipped. But then Carla is being drugged away by this man. And for, God, 50 years Rodney is prime suspect. I interviewed Rodney multiple times. This was for a TV show, but I’m truly investigating this case, and I’m sitting down with Rodney and talking to him on camera. We get a similar car that he was in and have him reenact, because I’m looking at blood patterns in the car going, “His statements aren’t adding up with the blood patterns.” His statements have changed over the years. Rodney had been under suspicion for a half century, basically. His life was forever changed by this event, because first, he lost this love of his life, if you want to call it that at age. He was 18 at the time. But then just to be clouded by, you’re the killer. And I was suspecting him, because his statements were so often, the physical evidence wasn’t adding up.

Dan: [00:49:06] Well, and he didn’t call the police. He went to the girl’s parents house right after this happened, didn’t he?

Paul: [00:49:12] After he regained consciousness, he drove to the parents’ house, which was literally a two-minute drive away from the bowling alley. Yet, it was an hour and a half later when he shows up there versus the time he said that she had been abducted. I was like, “Well, that’s enough time to go to work.” Her body was found two days later. Her dress had been torn apart, she had been raped, she had been killed, strangled. This is one of those frustrating cases is that there was actually vaginal semen. There was a syringe used to withdraw some of that, and then also a swab use. Pathologist confirms ton of sperm. Rodney completely denied having any type of sex with her that night. It’s like, easy case. Well, it turns out that evidence is gone. It’s missing.

Dave: [00:49:59] I already know. Murphy’s Law. Okay. Yeah, somebody destroyed it or threw it away mistakenly.

Paul: [00:50:04] But this is where it’s like with these cases, don’t rely upon what previous examinations have done. Redo everything. And so, had her dress, her pantyhose, her bra, some other items sent to a lab. And great DNA analysts did amazing work and had found a couple of semen stains. One on her dress and then one on a bra strap. The one on the bra strap was the best sample. Single source male. CODIS qualifying, went up in CODIS, no hit, and it was like genealogy. It went to a lab, and I’m not going to divulge which lab it is. This had 10 nanograms of male DNA in the sample.

Anne: [00:50:52] That’s a lot.

Paul: [00:50:53] This is a ton of sample. This lab consumed the entire thing and said, “Can’t do anything with it.”

Yeardley: [00:51:00] [gasps]

Paul: [00:51:01] So, at this point, I’m thinking, kill the case, right? The other stain, which was lesser quality because it was somewhat mixed and was only four nanograms. I consulted with the head of this other lab and he’s going, “I think we can definitely work with it.” He’s using a better technology. This is really underscoring how the genealogy DNA testing has now evolved from being this mass screening technology to build databases to now utilizing technology and optimizing technology to actually work with forensic samples that are typically very limited, degraded their crap samples. You can’t just use the standard technology and procedures. So, that sample does get sent to this other lab and they get a full SNP profile. They search and do genealogy, and they land on a guy who was living in Fort Worth, and his name was in the case file.

[00:52:08] So, Fort Worth PD goes and gets a direct sample, because you never, never, never make an arrest based on genealogy results. You always go back and get a direct sample and do traditional DNA testing. They get that direct sample. It matches the semen on Carla’s dress. And they pull Glen McCurley. I’m not sure I’m saying his last name right. And he confesses. He gives a statement.

Dave: [00:52:34] Been living with that for decades.

Paul: [00:52:36] “It’s not so much I’ve been living with it, like, there was a guilt. It was I was in that parking lot, I saw them arguing, I went to rescue her.”

Dave: [00:52:45] Huh.

Anne: [00:52:45] Huh.

Paul: [00:52:46] Yeah.

Dave: [00:52:47] And killed her.

Paul: [00:52:48] Yeah. But this is a case now where bad guy, and he likely has done others. They have some others that potentially he’s good for. He’s now taken off the street. Obviously, he’s elderly now. Rodney is free and clear.

Yeardley: [00:53:03] Right. But 50 years on.

Paul: [00:53:05] Yes.

Dave: [00:53:06] So, to consume that size of sample in its entirety, is that incompetence? Is that negligence? Is that an honest mistake?

Paul: [00:53:16] No, this is because this was in the earlier days of utilizing the genealogy tool. We utilized a lab, who was doing work for law enforcement at the time, but their process was set up to be that mass screening to build databases. They aren’t forensically trained, because we always assess a sample. As a forensic scientist assess a sample, how much is there? Do I need to consume the whole thing in order to be able to get a result? Or, can I only use a portion? If I only need to use a portion, that’s what you always do. But their whole thing was is whatever’s in this tube is going in the instrument, basically.

Anne: [00:53:59] That’s bad practice.

Dave: [00:54:01] Oh, God.

Paul: [00:54:02] For me, it was very enlightening, because I became very well versed about SNP technology, but not necessarily what was happening in the actual testing labs in terms of how they were approaching samples. The actual technologies that they were using. I’ve never utilized that type of instrumentation. But now, we’re seeing labs develop much better forensic awareness that do the genealogy testing, as well as the technologies that have the sensitivity to minimize the consumption of sample. That’s what you always want to do, because there’s always newer technologies coming down the pipe. You want to not kill a case on an existing technology. If you’re aware that, it’s a 50% chance we might get a result. But I’m going to take the only DNA that we have in this case that could solve the case and just completely wipe it off the map.

Dave: [00:54:54] Yeah, securing evidence, I used to always take twice the amount of pictures, twice the amount of swabs. I took, extra everything, because I was like, “It’ll happen on my case. Murphy’s Law is going to show up and ruin my case. Let’s make sure I get double of everything.”

Anne: [00:55:11] Well, that’s why the GSK got solved was because the pathologist took a second sample one of the murder victims. Just because.

Paul: [00:55:18] Yeah, this was an amazing thing. In terms of part of the marching down to utilize genealogy for GSK was, well, I had consumed all the DNA out of Contra Costa, in part, getting the original DNA testing done. Then I was doing that older genealogy, Y-STR stuff. It was off of rape cases. Cases that at the time were past statute of limitation. Southern California had the semen evidence from the Golden State Killer in their cases. And the question was, well, which case actually has single source evidence insufficient quantity that will work. At the time, we needed 200 nanograms of GSK DNA. This is bucket loads of DNA, which is like, “How am I going to find that?” But fortunately, Ventura under DA Greg Totten was like, “Yes, you can utilize our DNA. But the question was, is there enough DNA?” A lot of that DNA had been consumed over the decades. But then the investigator, I think he talked to the original pathologist and pathologist was like, “Well, my practice on homicide cases is to always collect two sexual assault kits.”

[00:56:33] One is given to the investigating agency, and one is kept at the coroner’s office. So, they go to the coroner’s office and there is a sealed sexual assault kit that had never been opened. And so, therefore, the swabs that pathologist had collected had never been touched. So, that gets sent to the Ventura Crime Lab and they get gobs of Golden State Killer DNA. To a point, they’re saying, “We’re going to send you a tube with 500 nanograms of his DNA.” And I was like, “I, in good conscience, cannot take 500 nanograms of your homicide evidence.”

Anne: [00:57:08] “I’ll take half.”

Paul: [00:57:08] “I will take half.” [chuckles] Exactly. And so, Steve Kramer had an agent out of the Ventura FBI office go in and get possession of that evidence. Then that was sent to two different labs. And then the one lab was able to get the SNP profile. It was that, like you said, over collection. That pathologist, what he did back in, that was a March 1980 case in Ventura. Double homicide, Charlene and Lyman Smith. So, Charlene’s vaginal swabs were what solved the Golden State. It’s what we used. And Ventura pathologist has taken a step up and beyond. Yeah, we were fortunate we had that in this case, and then boom.

Yeardley: [00:57:49] So, Paul, when you were doing the genealogy process to identify DeAngelo, can you reveal how distant a relative you got the first hit on from the public databases? Was it a second cousin, a sibling?

Paul: [00:58:05] Sure. Well, it really isn’t like a hit. When I searched a GEDmatch using the Golden State Killer’s DNA profile, I get a list of individuals out of that database that share a percentage of their DNA with the Golden State Killer. The amount of DNA that they share tells me or a genealogist how closely or distantly related they are. So, the initial list that we got out of GEDmatch, the closest relative was a third cousin. So, a third cousin is somebody who shares great, great grandparents with the Golden State Killer.

Yeardley: [00:58:49] Oh, wow.

Paul: [00:58:50] And we had also searched family tree DNA, which was a much larger database at the time, the GEDmatch. The closest relative was also a third cousin. So, third cousins are now that the genealogy tool has been used, and there’s a lot of experience. It is a doable relationship in order to be able to identify the offender. But it’s hard. You really want to see a second cousin or ideally first cousins, brothers, sisters, or if the guy was stupid enough to put his own DNA into a [Yeardley laughs] genealogy database, that would be nice. So, we started doing the genealogy working with third cousins, and then Barbara Rae-Venter, the genealogist, that was really the one showing us how this was done. She took it upon herself. She had access to the MyHeritage database, completely different genealogy database.

[00:59:46] I remember her sending the email out saying, “Oh, we may have caught a break here,” because she found a second cousin. And so, now we were one generation closer. And then the genealogy tool is a triangulation process. So, in essence, we were able to build out family trees between the second cousin and one of the third cousins, and show how they were related to each other, identify their common ancestor, the great, great grandparents, and then identify all the descendants of those great, great grandparents until we got into the generation in which we are confident the Golden State Killer was born, which we were pretty confident he was born between 1940 and 1960. Ultimately, we landed on DeAngelo using that second cousin and a third cousin.

Yeardley: [01:00:34] That’s incredible.

Anne: [01:00:35] You asked, Yeardley, about like what’s happened since. Across the country, I think there’s upwards of about 160 cases that we know of, there’s no centralized database tracking them, but we do the best we can. These are cases, first of all, they’re fascinating, because there are cases that, but for the genealogy, they would never have been solved. There are cases, like I’ve said earlier, that people were suspected that never committed these crimes. Some of these are folks that are, as I say, hiding in plain sight that just got up one day and decide to kill and go back to their lives. Some of them are fascinating, because they then get caught on genealogy and they try to kill themselves before the cops get them.

[01:01:18] In my county in Sacramento, we have a lot of cases that we wanted to solve. We knew the list and we’ve been very successful. I mean, serial rapists, committing rapes for 15 years. We had one guy that had committed a couple rapes in the early-1990s. He became an associate prison warden in Florida, and he gets busted on that. Then our most recent is a 1970, the oldest one in Sacramento, 1970 murder of a court reporter who’d happens to be engaged to the public defender. Same thing. The guy was living right there. A lot of these, you’ll find there in– It’s not necessarily their name in the report, but they may have lived in the complex and they had a line of sight to the woman.

Paul: [01:02:00] You covet what you see.

Anne: [01:02:01] Yes.

Yeardley: [01:02:02] Wow.

Anne: [01:02:03] So, GSK took 43 years to solve it. They had, I think, 650 investigators, 15 law enforcement agencies. I think there was $10 million spent on the case. 8,000 potential suspects, 300 people swab for DNA, didn’t produce anything. Then they come in and do genealogy. There was a team of, I think, six.

Paul: [01:02:25] Five law enforcement based and then one genealogist.

Anne: [01:02:27] Six folks. And I think it cost them about $207 or $217.

Yeardley: [01:02:33] Oh, I thought you were going to say $217,000.

Anne: [01:02:35] No, $217. It took, I think, 63 days. So, that’s 63 days on a case that was 43 years. So, then we go to NorCal Rapist. He had raped women for 15 years over 8 to 10 jurisdictions all over Northern California. So, that’s why he’s called NorCal Rapist.

Yeardley: [01:02:54] Yes, I remember that. Paul, you spoke to us about the NorCal Rapist on an episode of Small Town Dicks, and how genealogy led you to finally identify him as Roy Waller, right, as I recall.

Paul: [01:03:09] Yeah.

Yeardley: [01:03:09] And he was sentenced to something like 900 years in prison.

Paul: [01:03:13] Correct.

Anne: [01:03:13] Yes. It’s a 15-year investigation. Soon as the GSK, I’m like, “We’re doing NorCal.” It was probably solved in less than an hour.

Yeardley: [01:03:22] What?

Paul: [01:03:23] Yeah.

Anne: [01:03:23] Less than an hour.

Paul: [01:03:24] NorCal Rapist, in fact, I know Monica even said it was within five minutes. In part, we had prior genealogy information on NorCal Rapist using Y-STRs with a surname of Waller. When she was building out using the new genealogy tool, she immediately saw a branch with that name in it. Then within a few keystrokes, she was like, “Oh, here’s this Waller.” It turns out his driver’s license photo looked identical to the ATM photo when he’s wearing this clear, hard mask, which you could still see his facial features and it was like, “Yeah, this is obvious.” They did an awesome job on that.

[01:04:04] We blazed a trail and learned on Golden State Killer. But since then, individuals like Barbara Rae-Venter, CeCe Moore, Colleen Fitzpatrick, and then there’s a lot of other genealogists out there, they have become much more proficient at doing this tool to assist in law enforcement. And so, they are much quicker than what were, because, literally, Barbara is trying from Monterey, where she lives, trying to tell these law enforcement guys across California, “This is what you need to do.” [laughs] We’re just like, “Okay, we’ll do this.”

[laughter]

Yeardley: [01:04:41] That’s incredible. I’ll never tire of the fact that you’re like an Edison or an Alexander Graham Bell in your field. I know you looking at me right now shaking your head [Paul laughs] like, “No, no. no.” But the advance that you helped facilitate has changed everything, and that is extraordinary.

Paul: [01:05:03] I appreciate the kind words, but I didn’t invent this tool. I would say that myself and my partner on this, Steve Kramer, where we deserve credit is we didn’t take no for answer.

Yeardley: [01:05:18] See, now, that’s a big deal. So, hats off. It takes a village, but thank God you didn’t say no.

Paul: [01:05:25] Yeah. And obviously, it has worked out, not only for getting DeAngelo off the street, but for getting so many other families answers on these unsolved cases.

Dave: [01:05:34] For you as a DA, Anne Marie, when you have GSK, multiple jurisdictions, different regions of the state, NorCal Rapist, 8 to 10 jurisdictions involved there, who gets to prosecute that? Which venue takes that case and how do you as DAs negotiate that?

Anne: [01:05:54] That’s a big question. First off, the law allows on certain types of cases in California. If there’s multiple jurisdictions involved, then any one of the counties can have it. In the GSK, I think there were seven. There was Sacramento, Tulare, Contra Costa, Santa Barbara, Ventura, and Orange County. So, it was a big deal, it was a big discussion Again, I was very lucky to be the DA. So, ultimately, after conversations with the big dogs, where are we going to try this case, there’s potentially a lot of expenses involved. But to me it felt right because he lived in Sacramento at the time of his arrest, upwards of 50 rapes occurred in Sacramento, and he was arrested in Sacramento. So, after a lot of conversations, reasonable amongst the electeds, we all agreed.

[01:06:45] We’re a good size office. So, we bring the resources. And at the end of the day, it was a very good decision in my view. And ultimately, you all know the outcome and it was the A-Team that brought it. It was an A-Team from all the counties involved. These folks on this team were incredible.

Dave: [01:07:01] And just to wrap up on GSK, Joseph DeAngelo pled guilty in June 2020 to multiple counts of murder, and kidnapping, and was sentenced to life without the possibility of parole.

Paul: [01:07:14] Yeah.

Dave: [01:07:15] He will never see the light of day again.

Yeardley: [01:07:25] Maybe, we, at some point revisit this again. I have another conversation about genealogy, because for the greater good, there’s nothing bigger in law enforcement.

Dave: [01:07:35] Plenty can be said about catching actual suspects and identifying real suspects, but the hidden gem here is also exonerating people. Honestly, my biggest fear as a detective was, I’m going to get somebody wrongfully convicted. The worst feeling in the world would be, “Hey, that person didn’t do it. Here’s all the evidence you ignored.” You followed your own theory rather than following the evidence, and you just ruined this guy’s life. The fact that you can filter through and sort out who belongs on the suspect list and who no longer does, valuable, really valuable.

Yeardley: [01:08:14] Yeah. That’s incredible. What a fabulous byproduct.

Paul: [01:08:17] And just to really underscore genealogy, you start talking about clearing. We were utilizing traditional DNA to clear all these men, 300 plus men that we got their DNA from and directly compared to the evidence and eliminated them.

Yeardley: [01:08:32] In Golden State Killer case?

Paul: [01:08:33] In the Golden State Killer case. But think about this. Think about being at your house. I knock on your door and say, “Hey, your name has come up in an investigation.” You’re going to hink up about that. “Oh, by the way, it’s an investigation involving rapes homicides. May I have your DNA sample, so I can clear you, eliminate you.” I have just intruded into that man’s world. I have traumatized that man. He’s not the Golden State Killer. But also, and this is where it’s important from a genealogy standpoint, “I have just as a representative of the government taken possession of your DNA.”

Dave: [01:09:09] Yeah.

Paul: [01:09:10] Nobody talks about that.

Dave: [01:09:11] It’s intrusive.

Paul: [01:09:12] Genealogy in Golden State Killer, we only got DNA from one person in the process. Up until the time, we caught DeAngelo and that was a voluntary sample. It eliminated a person that I ultimately never contacted, but it told us we were close. If we hadn’t used that genealogy tool, we would have probably gotten DNA from hundreds of more men. This just shows the remote power that we have to preserve people’s lives from being interrupted during a normal course of investigation.

Yeardley: [01:09:47] It’s extraordinary to talk to the source of this investigation. I just can’t get enough.

Paul: [01:09:54] Well, and I think we should plug Anne Marie has a podcast, and I believe the first episode was you had me, Ken Clark.

Anne: [01:10:02] Yeah, I have a podcast. Okay, if you’re going to let me plug it now.

Yeardley: [01:10:04] Yes–[crosstalk]

Dave: [01:10:05] Yeah, please.

Anne: [01:10:06] It’s called Inside Crime Files with me. [Yeardley laughs] And it’s probably similar to you guys, but it’s cases where I believe really amazing police work was done to solve it or amazing things came out of it. And so, we did a four-parter on the GSK. So, yes, Paul was on an episode with some of the investigators, and I called it the Project Podcast, because it was all about these amazing projects that the law enforcement did to try to solve it. Genealogy was obviously the key. But one example was, I called it the Phonebook Project. So, you think about the fact that this guy is raping and killing in all these places all over California.

[01:10:43] You go back to the 1970s, we didn’t have the internet. We had hard phone books. So, Kirk is, “Let’s get a copy of every phone book from every zip code from every neighborhood of where these crimes happened, and let’s figure out if the same guy registered his phone in those neighborhoods, if he lived there.” So, then he basically got every phone book for every zip code. Then he had the police department write a program to digitize all those books. It was a pretty cool idea.

Yeardley: [01:11:13] Are you looking for–?

Anne: [01:11:14] We’re looking for the name of the suspect. Maybe he’s moving and putting his phone number in those zip codes. So, that was one segment. We did another segment with the two brothers of Keith Harrington to talk about the DNA stuff that they changed the world on. We did one with some of the rape victims to talk about the advocacy work they now do. So, it was just more about stuff that’s not the typical mainstream conversation. It’s about–[crosstalk]

Yeardley: [01:11:38] The ripple effect.

Anne: [01:11:39] Right.

Yeardley: [01:11:40] Thank you all so much.

Dan: [01:11:42] Incredible work, and I’ll never get tired of listening to this case.

Yeardley: [01:11:46] Totally agree.

Dave: [01:11:47] Agreed. Honestly, honored to be at the table with Anne Marie Schubert and Paul Holes.

Yeardley: [01:11:51] Same-same.

Paul: [01:11:52] Well, I just want to thank Anne Marie for everything she did over the years.

Anne: [01:11:57] Oh, same to you. It’s been a great ride. Lots more work to be done, but thank you very much for having me.

Dave: [01:12:07] That’s it. Another episode in the books. Thanks for listening. We’ll see you next week.

[music]

Yeardley: [01:12:17] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith and coproduced by detectives Dan and Dave. This episode was edited by Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel, and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in the briefing room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:20] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Dave: [00:00:36] Today’s Briefing comes at the request of someone you all know, Yeardley Smith. Hi, Yeardley.

Yeardley: [00:00:41] Hi, Dave. Hi. So happy to be here.

Dave: [00:00:44] We’re also joined by my brother, Dan.

Dan: [00:00:46] Hello. Yeardley’s question today is inspired in part by conversations we had last week with defense attorney, Lissa. So, Yeardley, I’m turning it over to you.

Yeardley: [00:00:56] Thank you, Dave. I’m really excited about this subject. So, we call this episode of The Briefing Room, The Dance, because you guys have often talked about the way you interview suspects. You call that The Dance. And I think it’s one of the most fascinating aspects of your job. It’s funny, you often gloss over it, but the way you interview, the way you do the dance is so nuanced that I think our listeners would really enjoy hearing your perspective on it, like, how do you conduct a suspect interview, particularly if you’re dealing with somebody who’s done a person crime, as you say, so they’ve hurt someone, injured them, violated another person in the worst possible way. So, how do you interview a person like that and gain their trust, so that they don’t shut down and say, “I want a lawyer,” and then the interview is over.

Dave: [00:01:55] Uh-huh. Interviews, for me, I separated them into two categories. One is, I’m familiar with the case, because I’ve been investigating it for days or weeks, even hours, and then suspect is taken into custody or comes in for questioning, and now I have a shot to take a run at the suspect. The other is, acute, like, incident, just happened, still have investigators out looking for leads, canvassing a neighborhood, et cetera. I’m waiting for reports to come in. A lot of those reports, if it’s an acute case, are going to be verbal, like face to face? You haven’t even written your report yet. So, my strategy is a little bit different depending on which case I’m getting, if it’s a historical case or it just happened today.

[00:02:51] How I prepare depends on the caliber of interviews that have already taken place in that case. So, say, it’s a case that I’ve already been investigating for days or weeks, and I’m very familiar with the initial reports that have come through. I’m already well versed in the facts of the case. When I go into an interview room, all I’m thinking is, “Let’s get the truth.” And I wonder what this guy or this– I’ll say guy because in my caseload is usually male offenders.

Yeardley: [00:03:23] We should tell our new listeners who might not know you that your former caseload was investigating sex crimes and child abuse.

Dave: [00:03:32] Right. On a case that I’ve been investigating, I’ve already done a ton of background on my suspect. I probably already run his computerized criminal history. So, I know what types of things he’s been arrested for in the past. If it lines up with the type of case that I have at this point, I’m going to look at social media. What kind of photos does the guy post? Is he family oriented? Does he have a bunch of biblical quotes on his page? Because those allow me to explore threads. Religious people know that, eventually, they’re going to be judged before God and they want to get things right while they’re on this earth. And part of that is the truth and validating a victim’s statement or a victim’s disclosure.

[00:04:19] So, there are people with consciences out there who are like, “I got to get this off my chest.” There are other straight evil people that just don’t give a shit and they’ll hurt whomever if it benefits themselves. They don’t care about the wake of damage they do.

Yeardley: [00:04:36] If you see somebody post a lot of religious scripture, let’s say, on their Facebook page, can you use that as a way in to say, “Hey, I know that you believe in God and you will be judged by God when everything is said and done”?

Dave: [00:04:55] I probably wouldn’t go to the judged piece of that, because my job as the investigator is to not judge. I’m there to arrange a potential meeting between a court, a DA, a defense attorney, and defendant. One of my big pet peeves with police officers is, you’ve seen the worst of humanity, day in and day out. You see horrible things, even if you’re a new cop. So, for a police officer to go into an interview and be judgmental or snippy or have attitude, I’m always like, “Well, either the game is too fast for you. You’ve lost sight of the finish line, which is, let’s just get to the truth. The act is already over with.”

[00:05:37] My feelings about the suspect and what they did are completely irrelevant. It has no bearing on the case whatsoever. The facts do. So, I want a police officer who’s doing questioning to be thorough, to be inquisitive, don’t just ask a question and move on. If they give you a little bit more narrative, I’m like, “Well, let’s go down that thread. I can get back to my–” Not prepared, but I had a general idea of what I wanted to do in an interview. If I think that I’m going to get a confession that day, I’m going to go for the confession. If it’s clear the person’s probably not going to ever confess to this, because they probably have previous exposure to the criminal justice system and everyone’s taught, they don’t ever talk to the cops. You see it all the time. So, someone who spent time in prison, I usually was like, “They’ve already been down this road. They’re probably not going to talk to me.”

Yeardley: [00:06:29] Do you Mirandize people at that point or are you afraid that if you read them their Miranda rights that they won’t actually talk to you that they’ll just clam up?

Dave: [00:06:40] Well, it depends. So, situations where you have to Mirandize versus some of the gray area versus you don’t have to Mirandize, there’s no gray area whatsoever. There’s differences. If you’re familiar with the differences, then there are times where I might be able to get more statements from someone totally lawful. I’m not violating anybody’s rights, but it’s all determined on this reasonableness. Would a reasonable person feel like they were free to leave? Would a reasonable person feel like they were being accused of a crime? In those situations, if somebody’s not free to leave and they feel like they’re being accused of a crime, I need to get Miranda out front. There are other situations where the interview turns and you realize, “Okay, now we’re getting into Miranda territory. I need to get that handled as soon as possible.” So, when we talk about familiarity with someone’s rights, someone being familiar with their rights, they’ve already been down this path.

Dan: [00:07:39] They’ve had attorneys in the past because of previous arraignments or previous court cases that they’ve gone through. So, they’ve heard all this advice. And lawyers typically tell their clients, “Don’t talk to the cops.”

Yeardley: [00:07:52] Don’t say anything.

Dan: [00:07:53] Don’t say anything.

Dave: [00:07:54] Right. In a situation where somebody’s not had that exposure to the criminal justice system, they’re going to want to cooperate. They’re going to want to talk. They want to explain themselves. They want to explain an alibi or why they did something or how they didn’t do something that they’re being accused of.

Dan: [00:08:13] Well, and sometimes, they just flat out think they’re smarter than you. Really, the first part of an interview is, I’m gathering information. And they are too. A lot of times they’re gathering information. They want to know how much we know. So, holding on to some of those things as a strategy. Sometimes you hit them right in the face with it and you tell them what you know. I remember doing interviews where I started out the interview with a suspect that I was familiar with. And we got in the room. I read her Miranda rights to her, said, “Do you want to talk to me?” She’s like, “Yeah, sure.” I just pulled out a surveillance photo from Walmart, and I put it on the table, and I said, “Who’s that?” That was the first thing that I said.

[00:08:57] She looked at it and she goes, “I don’t know who that is.” [Yeardley laughs] I said, “Do you see that tattoo on the right arm?” And she says, “Yeah.” And I said, “Well, you have the same tattoo on your right arm. That’s you.” And she’s like, “Okay, that’s me.” [Yeardley laughs] I mean, like, one minute confession, and then you go down the road. Now I can back up a little bit, and I can say, “So, what’s going on in your life right now that you are out committing these crimes?” Dave’s the same way, and I learned a lot from Detective Don, in watching him interview. You can have a game plan going in, but depending on the suspect, they’re either on board or not on board with that game plan. So, you better be nimble.

[00:09:42] I always found it. Of course, you have some sort of strategy. You have to cover the elements of the crime in your interview while you’re trying to get a confession. But you have to be light on your feet and adapt to whoever you’re talking to who’s across the table from you. Dave’s really good at that. I’ve watched his interviews. When Dave had a big case come in and he was going to sit down and interview somebody, I would always watch the interviews. A day or two later, if we ended up hanging out at my house or his house, we’d talk about it. He’d ask for feedback, and I’d give him feedback. I’d tell him what he did really well, and I would point out, like– In one of Dave’s first interviews, I pointed out, it was like, “You shouldn’t have taken a break right there. He was nibbling on the hook right there. He was almost going to bite.”

Yeardley: [00:10:32] The suspect was?

Dan: [00:10:33] Yeah. And you got uncomfortable and tired.

Yeardley: [00:10:37] And so, you literally left the room–

Dave: [00:10:39] Because I was uncomfortable. You’re a new-ish detective. Interviewing someone in plain clothes is different than interviewing someone in a patrol uniform. It’s a different vibe in the room. It’s a different look on camera. I have always gotten more out of people when I’m in playing clothes. My plain clothes, typically, unless I got called out in the middle of the night was business casual. Suit and no tie. Business casual. There’s a formality to that, but there’s also a casual quality to it.

Yeardley: [00:11:12] A comfortability, like, you’re comfortable in this environment and therefore, that might go a long way towards putting them at ease.

Dave: [00:11:20] Right. From the criminal or the suspect side of this equation, I’ve heard in the past, they’re like, “I want to talk to a detective.” Even when I was a sergeant, after having been a detective for a long time, I would have suspects who have no familiarity with me and they’d say, “Well, I’ll just talk to a detective.” And I’d be like, “Well, you’re going to be talking to a detective that I trained,” [Yeardley laughs] and has less than six months on this particular assignment. But I can arrange that absolutely, because I understand the dynamic. And how do new detectives get that exposure? You hand it off to them. “Here, this is your case. I’m certain you have more facts than I do. I’m just dealing with this person on this contact out in the streets.”

[00:12:04] This person has an attempt to locate flag on them. I call the detective that put this flag on them in the system. When the police come across you, your name is going to get run. They’re going to call a detective and they’re going to say, “Hey, see if that person is willing to come down to the police station. I’m driving in right now.” That detective, although new, is going to have more pertinent facts for the case than I am. So, I’d be like, “Absolutely, I can get you a detective. No problem.” Freeze up my patrol guys to go out and chase taillights and deter crime, do what we’re supposed to do.

[00:12:46] Going back to Dan’s interview with the female where he confronts her right away. He does that based on experience with the suspect familiarity and knowing, “Well, I’ve already been in this room before with this person and we did the runaround game for an hour and a half.” He got the hard part out of the way right at the beginning, and now it’s, “Okay. Well, you’ve admitted that this is you using the stolen credit card or whatever the case was.” Now we can go to what led up to this. That is powerful, because you can always go back to that person if they’re starting to stray and say, “Listen, you already admitted to the heaviest part of this whole case that it’s you committing this crime.” Let’s not worry about the other stuff. They might help you. They can help explain things.

Yeardley: [00:13:31] Dan, why in this particular case with this woman, for instance, who had the tattoo, why did you ask her, what’s going on in your life?

Dan: [00:13:39] I had a pretty good idea, and typically, it’s substance abuse, and I’m sensitive to that. So, you always want to know the why, right? I think that with these people, if I can empathize with them and try to get an understanding of what’s going on in their life, if they’re not happy with the direction of their life, some people, they just flat out aren’t ready to quit using and they’re going to commit crimes to support their habit until they’re ready. Sometimes, they’re ready in that interview room and they are begging for an intervention, and sometimes it’s the police that provide that intervention. So, I want to know those things.

[00:14:21] I think it also builds rapport and trust between me and whoever I’m interviewing. So, if they trust you, they’re probably more apt to tell you more. They’re going to give you everything. If they don’t trust you, they’re not. My job in that interview room is to gather information. Try to get a confession. Also, in a lot of the cases that I worked, I knew that there was going to be a lot of follow up on the back end. So, I’ve got, say, someone who burglarized the house, stole credit cards, stole guns, jewelry, I want to build trust with that person, and now let’s go down the road of trying to figure out where all that stuff is, so I can recover it and get it back to the victims.

[00:15:03] Many times, I would tell people like, “Hey, some of that jewelry you stole, those were heirloom pieces that had been in the family for hundred years. The woman’s ring was her grandmother’s wedding ring.” Those things are important. So, if I can track those things down, it’s really good for my victims, too. I’ve had victims just straight up break down and cry when I return property to them, because they thought it’s gone forever.

Dave: [00:15:29] Honestly, it’s in the suspect’s best interest too. They show compassion. They show remorse. They show, “Hey, I want to right this wrong that I did. I’m caught. Let’s just give the people back their property, or at least, I can tell them where I last saw it,” because property in this world of theft and substance affected folks, it’s probably changed hands a few times if it’s been more than a week. So, to track that stuff down is difficult, but it also shows some willingness on the suspect’s part to show some compassion, be contrite, and, “Hey, I screwed up. Let me try to fix it.”

Dan: [00:16:09] I would always tell these people, when I write my report, “This is going to go to the district attorney. Do you want them to read in this report that you are not cooperative and that you didn’t care about returning people’s property or the opposite that you were actually cooperative and you aided me in recovering this property? It’s going to look way better for you. You’re caught. You’ve got an opportunity here to help yourself out.”

Dave: [00:16:34] There’s huge value to that for a suspect. There’s huge value to that for the victim.

Yeardley: [00:16:41] Does the value to the suspect, will it necessarily or it might lighten their sentence? Is that what you’re saying?

Dan: [00:16:49] It can. Yeah. I think district attorneys that I’ve talked to will say, “This person, they weren’t cooperative at all. Why should I cut them a break?” Every detective, when you talk and present your case to a district attorney, those are conversations that are had. And DAs will flat out ask, “What do you think is appropriate in this situation?” And I’ll give them my opinion. They may take it, they may not. I’ve had DAs that said, “I don’t care that they helped out. They’ve committed four burglaries in the last two years. The first one, they did 13 months and they obviously haven’t learned their lessons. So, guess what? I’m hitting them with everything.” Yeah, those are all factors. I will say this, “I’ve never seen the court go harder on somebody who is cooperative.”

Dave: [00:17:39] I can say the same thing.

Yeardley: [00:17:41] Okay, good to know.

Dave: [00:17:43] Unless the court has no latitude.

Yeardley: [00:17:46] There’s a mandatory sentence kind of thing?

Dave: [00:17:48] Right. There’s mandatory sentences that have taken discretion out of judges hands.

Yeardley: [00:17:53] And, Dave, for your former caseload, which was sex crimes and child abuse, there are a number of mandatory sentences based on the kinds of things that you would find in their computer or the kinds of criminal acts that were committed. I think it would be interesting for our listeners to hear– Obviously, it’s all about gaining trust, so you get as much information as you can. But what if you’re faced with somebody for you, let’s say, Dave, the disclosure from the victim is highly credible. This person is a fucking scumbag. How do you present yourself like, “Hey, listen, I don’t think you’re a bad person. I think you made some bad decisions.”

Dave: [00:18:37] I have to eliminate any notion that I’m the judge here, because I am not. For me to put myself in that position, it shows a lack of professionalism. It shows a lack of skill. It shows a complete disregard for any strategy. You have to get someone to talk, because now you’re holier-than-thou and you’re standing in judgment. You think about kids, when they screw up and they have to go face their parents. They’ve got a frowny face to get their head down. Their posture is very submissive. I want a suspect to contribute to the conversation. I don’t want to have to carry that conversation. I want them to do most of the talking.

[00:19:19] I’ve never, ever seen someone be judgmental, a police officer, and have it turn out to be a success, because criminals and suspects and people with no exposure to the criminal justice process, we all know what it feels like to feel judged.

Yeardley: [00:19:34] Yeah, to feel shamed.

Dave: [00:19:36] And I’m like, “Well, I don’t want to talk to this guy. He’s sitting here judging everything I say.” When I’m in a room, even if it’s the most horrible thing I’ve ever heard, I can always say, “Hey, man, I’ve been in this room, I’ve heard a lot of horrible things in this room. There’s nothing you’re going to tell me that surprises me. Is that a bluff? Is it a lie?” Sometimes, because you don’t know what they’re about to tell you, and then your bar moves, [Yeardley laughs] and you’re like, “Okay, well, now my bar is way up here. Holy shit I did not see that coming.”

[00:20:09] So, taking judgment out of your interview tactics, number one, be familiar with the elements of every crime that you’re confronting the suspect about, because some of those crimes have an element that if you don’t have that element up front, the rest of the elements below it don’t even matter.

Yeardley: [00:20:26] What do you mean?

Dave: [00:20:29] I’m talking about, like, there are crimes when it has to do with intent. There’s plenty of cases out there where somebody screwed up, but they weren’t meaning to. They were reckless or they were negligent. It wasn’t intentional.

Yeardley: [00:20:43] Right. I see. So, for example, intention can mean the difference between first degree murder, second degree murder, or manslaughter. In the scope of the law, how you charge somebody, a lot of that has to do with intent, right?

Dave: [00:21:00] Exactly. The hit and run case where the gentleman ended up on the top of the car had to go several blocks west before being taken off of the top of the car.

Yeardley: [00:21:09] Impact. Yes. That’s what we called the episode on Small Town Dicks.

Dave: [00:21:13] In Impact, there was no intent by the driver to hit this pedestrian in the crosswalk. Was there negligence and recklessness? I would argue both. Shouldn’t have been driving, should have stopped right there. The act became way more egregious because of the events that followed the several blocks that this person was riding on top of suspect’s vehicle. Part of my intent for one of the crimes there would be manifesting extreme indifference to the value of human life. Now I would say, what, that suspect did in that case checks all the boxes. So, I know if I’ve got those elements and I just checked the big one, which is manifesting extreme indifference, I know that other things are going to be able to fall into place. I can fill in the gaps there.

[00:22:05] So, there are certain crimes where there’s an element that is essential, and then there’s other things below it that you also need to check the box on certain assaults with deadly weapons. Is it reckless? Is it negligent? Is it intentional? Is the weapon would it cause physical harm or is it capable of causing serious physical injury and or death? Different levels of crimes. One, the most serious crime and assault, especially involving a weapon, would have to do with what type of weapon is that, and when it’s used, can it cause serious physical injury or death? If I hit someone with a foam baseball bat, it’s different than hitting somebody with a tire iron. So, you have to be familiar with the elements of the crimes that you’re going to confront your suspect over.

[00:22:56] There are times where I’d be like, I’ve said it before. I don’t know what crime that is, but I’m certain you can’t do it, because it’s going to be in this family of crimes. So, I just got to find which elements fit that crime and not misapply that, because I’m going to forward this case to the district attorney’s office. They’re going to get my report and they’re going to do the same thing that I just did. They’re going to look for what crimes were charged and are the elements there. If I charge a crime and I’ve only checked two of the five boxes on the elements, that charge is getting dropped.

Yeardley: [00:23:28] Right. I see.

Dave: [00:23:30] Can’t prove it. You don’t have enough here. So, that’s a learning process for detectives and patrol officers as well is, “Oh. Okay. Yeah, I need that one too. Got it. All right.” It doesn’t make it a false arrest. It just means that I charged the wrong crime. This is why we have district attorneys and lawyers and grand jury processes, and judges. They can make those law determinations. I’m just a cop. [Yeardley laughs] I know how to read real good.

Yeardley: [00:23:59] [laughs]

Dave: [00:24:12] So, I want to be non-judgmental, I want to be familiar with elements of the crime, I want to be familiar with the suspect and their movements, because if we’re talking and I say, “Where were you last Thursday night?” And I’ve already dug into your background and you say, “I was at home all night,” and I’m like, “Well, I got two friends I already talked to and they said that you were at their house for a party.” Oops. Or, “I was asleep all night, but there was a party going on.” “I have multiple people at that party saying that you were one of the drunkest and stayed up the latest.” So, I want to be familiar with these things, so when they drop them in an interview, I can confront them on that or I just put it in my back pocket and I’m like, “I’ll save that one for later when I get confrontational.”

[00:25:00] Usually when someone would lawyer up or invoke their right to remain silent or have an attorney, whatever, you can see that coming. It’s usually very early on, like, first two minutes of an interview. After, we get the, give me your name, rank in horsepower, like name, date of birth, social security number, what’s a good address, phone number, email. You move on from that the initial stuff where I don’t need to advise you Miranda to ask your name.

Yeardley: [00:25:28] No, we did that really interesting Briefing Room, where you encountered the man on a bicycle in the middle of a night. He said, “I don’t have to talk to you,” and you said, “You’re right. You don’t.” And then when you encountered him an hour later, you’re like, “Now you actually do have to talk to me,” because you had reasonable suspicion. And actually, that’s what we called that episode on The Briefing Room, Reasonable Suspicion.

Dave: [00:25:52] Yeah. So, the order of questions is all going to be dependent on how the first few minutes of that interview goes. Do I feel like I’m going to get straightforward answers? If I ask your name out on the street or in an interview room, and you start with, “Uh?” [Yeardley laughs] It’s bridging. “I need more time to think of the bullshit answer I’m about to give you.” “Have you ever been arrested?” “Uh” That’s a yes. [Yeardley laughs] And you’re making assumptions when you hear those things, but it’s based on a lived experience of, every time I ask this question and that’s the first part of the answer, it’s always bullshit. And you learn a lot about what to do in the interview room from your time on the streets.

[00:26:35] When I’m out on patrol, I have a whole different set of expectations when I’m doing an interview, as opposed to a controlled environment where I’ve got a suspect in the detective section. We’re in a small room. I’ve got video. Everything is accounted for. It’s different on the streets. And for new cops, it’s a place to really start to learn human behavior out on the streets, interactions with people, be nosy, be curious, ask a lot of questions. So, within a few months of being on the street was the first time somebody gave me a bullshit name. We’re doing the run around, they still can’t find this person in the system and your FTO is looking at you like, “Have you figured it out yet? Because I knew this after the first uh.”

Yeardley: [00:27:17] [chuckles] Right. They didn’t give you their real name.

Dave: [00:27:20] You need that life experience. But that happens quickly when you’re on the streets. It doesn’t happen so quickly in the academy. You can’t watch cops. I used to say to people all the time, they’d be like, “How long you been a cop?” “Well, I’ve been doing ride alongs on cops since I was five years old.” “But you’re not a cop.” “I’ve seen some things though.” “That show was invaluable to me growing up, because you can see when people are about to run on COPS and Live PD, cops can see it. People who are body language folks, you just step back and you’re like, “Oh, okay. His bladed stance, he just looked over his shoulder. Look at his hands. Oh, he’s clenching his fists like he’s about to punch or run or punch and then run.”

[00:28:01] You see these indicators on COPS and on LIVE PD when you’re watching like, “Oh, here he goes.” So, when you’ve seen that and then you experience it as a police officer, I know when I ask your age and you say, “Uh.” “What’s your date of birth?” “Uh.” I know I’m about to get bullshit. It just might be a tick, but this is why we do a little baseline information gathering. At the beginning, I want to see their tempo, their rhythm to how they speak, how articulate are they? Are they prone to providing open ended narratives? Are they yes and no? These are all things I want to gauge is how deep is this conversation going to be? How is the exchange going to be? Are we going to talk or is this going to be a Q&A? I want to have a discussion. I don’t want a Q&A. It’s very sterile. It’s not compelling. I want to see the emotion. When I bring up something to a suspect, I want to see the reaction. So, when they start talking about some horrible or regretful thing they did, I want to see their emotions, body language, those types of things.

Dan: [00:29:04] Dave’s talking about body language, and I will say this. Sitting in an interview room, there are some things– So, if you’re watching First 48, and they show a lot of the suspect interviews or just witnesses coming in. I watch those interviews, and I see body language, and I see how people place their chairs in a room or their body.

Yeardley: [00:29:28] The people being questioned?

Dan: [00:29:30] Yeah. And so, typically, if you’re going to have a conversation with somebody, you’re face to face. Our bodies are lined together. Sometimes, I would put the chair in the room a little cockeyed just to see if this person is actually going to arrange their chair, where they actually square up with me. That, to me, is an indication of, “Yeah, I’m willing to talk to you.” But when people sit down and they turn their bodies away or they physically turn their chair away from you, I think that’s a pretty good indicator of how that interview is going to go, the interview that I had in Cut and Run.

Yeardley: [00:30:10] The Small Town Dicks episode, Cut and Run.

Dan: [00:30:12] Yes, with one of our suspects. He did that and he was evasive in all the questioning.

Yeardley: [00:30:19] Meaning, he turned his chair not squared up with you.

Dan: [00:30:23] Correct. So, I was facing him. He was facing–

Yeardley: [00:30:26] With one shoulder towards you.

Dan: [00:30:28] Yeah, and looking at me during the interview over his right shoulder. I interviewed that guy for hours over a couple of days, and he wasn’t cooperative with me. He was information gathering is what he was.

Yeardley: [00:30:45] From you?

Dan: [00:30:46] From me. He wanted to know how much I knew. He also thought he was the smartest person in the room.

Dave: [00:30:51] And he’s also a convicted felon prior to that, correct, Dan?

Dan: [00:30:54] Correct. We’re talking about murder here. So, I caught him in a lot of lies, and every time that I caught him in a lie, he would posture with me. These were all indications of, “Back off, buddy.” So, I learned a lot in that interview. It was a long interview over the course of a couple of days. He never really gave us much. If I had him locked into a corner, if I had him pushed into a corner on something, he would admit to that. Anything else, he would deny. Deny, deny, deny, until I presented him with, “Oh, here’s a photo of you walking out of a store carrying a bunch of swords that just happened to be the murder weapons.” [Yeardley laughs] And he’s like, “Oh, yeah, that is me.” So, now, he’s got to explain that away. But it was constant. I had to keep doing that.

[00:31:48] Every time if I went down a line of questioning, he would deny, deny, deny, and then I would have to present something that would pull him out of that that he had to actually answer to. He would posture and he would get loud and angry. He got angry. He always pointed at his arm, because he would get goosebumps when he got fired up. And so, during that interview, he would look at me if I was going somewhere that he didn’t want to go, he would point at his forearm.

Yeardley: [00:32:22] What a strange reaction.

[00:32:32] This brings me to another question. You guys have said in casual conversations with just the three of us that you would rather have a list of provable lies from your suspect than a confession, because a confession could be thrown out in a suppression hearing, but provable lies, you can present to a jury and destroy the suspect’s credibility. Can you speak to that a little bit?

Dan: [00:32:57] Oh, I would say that I’d rather have the confession.

Yeardley: [00:33:01] Oh, you would?

Dan: [00:33:02] But done correctly, where it’s bulletproof that you Mirandized correctly that you weren’t coercive in any way, which are things that I’ve seen. I’ve seen promises being made in interview rooms.

Yeardley: [00:33:16] You mean like, “I can get you a lighter sentence if you tell me the truth?”

Dan: [00:33:20] Yeah, that’s coercive. I can’t make those promises. That’s the DAs job. One thing that always bothers me, and I went to The Reid school of interviewing, and it’s valuable for some things.

Yeardley: [00:33:32] Can you explain what it is or what it’s based on-ish? It’s like an FBI technique, right?

Dave: [00:33:38] No, it’s a private firm that’s got a bunch of former law enforcement people in it.

Dan: [00:33:42] Yeah, it’s a nine-step process of an interview. To me, it’s very formal.

Dave: [00:33:47] It’s very structured like, “After this, you go to this, unless they do this, then you jump up to this.” It’s rigid.

Dan: [00:33:54] So, I see when I watch First 48 too.

Dave: [00:33:58] Like theTulsa guys.

Dan: [00:33:59] For anyone who hasn’t seen the show, these guys are much more conversational. They’re far less rigid. It’s more of a free-flowing conversation. And that’s the kind of technique that I usually employ in the interview room. But I have seen other departments who are much more focused on the Reid Technique.

Yeardley: [00:34:15] I know this because when Dan and I watch those shows together, he goes, “Oh, Reid.” And now I know, if you have two detectives questioning a suspect and they’ve pulled their chairs right up to the suspect, and then there’s bodily contact where, say, a detective puts their hand on the person’s shoulder to say, “Hey, listen, you could tell me the truth or whatever.” Isn’t that a Reid Technique, get right up in their grill?

Dan: [00:34:39] It is. There’s a time for that.

Dave: [00:34:43] The utility of Reid is limited in certain circumstances. Like you guys, I recognize little things in the Reid Technique, especially when part of the training for Reid is, leave the room, leave the suspect in there for several minutes, act like you got shit to do. And then come back with a folder full of papers, even if they’re empty.

Yeardley: [00:35:07] You mean even if the pieces in it are blank?

Dave: [00:35:10] Completely. It’s a prop. And you stand 3ft to 6ft away from the suspect while they’re seated, and you tell them like, it’s like a scripted, “My investigation shows that what you’ve just told me is incorrect.” And you drop the file folder on the table. “My investigation shows X, Y, and Z.” It’s a Reid 101. When detectives who have taken Reid training, see it, they’re like, “Oh, there’s another one.”

Yeardley: [00:35:39] What happens if they open that folder and all the pages are blank?

Dan: [00:35:42] You better not.

Yeardley: [00:35:43] [laughs]

Dave: [00:35:44] Yeah.

Yeardley: [00:35:44] That’s incredibly risky.

Dave: [00:35:46] I hated bluffing suspects. I wouldn’t bluff until I got way desperate like, “Okay, we’re nearing the end where this is a last chance effort.” I did not bluff. I hated lying to suspects, even though we’re able to. I love when people like, “You can’t lie to them.” “Fuck yeah, I can.”

Yeardley: [00:36:06] They lie to you. [laughs]

Dave: [00:36:08] They lie to me all the time. I can’t threaten, intimidate, coerce, or otherwise, promise things, but I can lie to you.

Yeardley: [00:36:14] I believe in the UK you are actually not allowed to lie to your suspect.

Dave: [00:36:18] Oh, thank God, we broke away.

Yeardley: [00:36:20] [laughs]

Dan: [00:36:22] Typically, here’s a lie that we might say in an interview. [cat meow]

Yeardley: [00:36:26] Oh, boy. Zipper is here offering her opinion as only Zipper can do. Please go on.

Dan: [00:36:32] Say, there’s two suspects and you say, “I just talked to your buddy in the other interview room and he’s talking.” Maybe you haven’t even talked to the guy yet.

Yeardley: [00:36:40] To the other suspect.

Dan: [00:36:41] To the other suspect, but you tell this person. That’s a lie that you might tell, but that’s a bluff too. I think bluffs are risky. I’d rather just be upfront and honest with people. I’m not going to give you everything though. I’m not going to show you all my cards. I want you to tell me what my cards are.

Dave: [00:37:01] Well, and part of that is because of what we’ve seen get suppressed is that this claim– the police were feeding the suspect info and facts, and basically, it was a Mad Libs of the confession that the suspect only gave a word here or there, but the rest of the narrative was written up by the detective. That’s not useful. I’ve seen it interviews too, where I’m like, “Oh, I can see where the defense would probably say, ‘This is a leading interview,’ and they’re just putting words in my client’s mouth.” That’s why Dan wants to hear it from the suspect. “I want to hear the facts from you. That way nobody can claim, ‘Well, you just fed him a bunch of information.'” In the 1970s and 1980s, they would have suspects that gave written statements, and then later on, there’d be this claim that, “Well, that statement was written by the police, and the suspect just signed it.” That’s a bad look. Even if it’s bullshit, it’s still a bad look. It better be in the suspect’s handwriting.

Dan: [00:38:02] Yeah. Now that most of our interviews are recorded by video, if someone writes it out, then you’ve got video proof of someone writing out a statement.

Yeardley: [00:38:11] But better be the suspect. It better not be the detective.

Dan: [00:38:14] Oh, no. I’ve never written– I’ve asked a suspect or a suspect said, “Can I write a letter to the victim right now?” “Sure, I’ll go grab you a pen. How many pieces of paper do you think you’ll need?”

Dave: [00:38:26] Absolute gold.

Dan: [00:38:28] So, I would let people do that. I would ask them if they were comfortable doing that. But you’re going to get their version of what happened. I’m not going to sit there and ask them questions while they’re writing that. I want them to just write it out and give me their version. And then you read it, and sometimes it’s a page and a half long, sometimes it’s like five sentences, but it gives you a gauge on how open this person is. If they’re not going to write everything out, if they’re going to give me three or four sentences, they’re not really being forthcoming.

Yeardley: [00:39:02] But it’s still a measure of culpability.

Dan: [00:39:04] Absolutely.

Dave: [00:39:06] However, you get a district attorney and a defense attorney that look at a five-sentence statement and all says is, “I’m sorry. I’ve always loved you. Take care of the family. I wish none of this had happened.” It doesn’t say anything. “I wish none of this had happened,” meaning, me being in an interview room and having to write a letter about me being sorry, in a very general and ambiguous way. That doesn’t help anything. I can understand when an attorney would look at that and say, “Well, you could have just thrown that in the trash because it’s worth nothing.” I love when people are like, “Well, that’s a confession.” “What did he confess to? Didn’t confess to anything. He just said he’s sorry, that he loves them, and he wish this didn’t happen.” That could mean any number of things.

[00:39:48] I used to ask my guys– and be specific. If you remember a certain day where there was a bad interaction with you and the child after something happened, reference it. It’s probably in their memory as probably the worst time this ever happened. If you take accountability for that, that’s huge. So, I would encourage specificity. Some guys gave it to me. Some guys would be like, “I’m not going to write a letter because they already know what’s up. I’m going to take a photocopy of that, I’m going to put it in the file, and I’m going to give the photocopy to the family and be that.” And say, “For what it’s worth, this is what suspect had to say to you and your child.”

[00:40:24] There’s utility in that and it is gold when it’s specific enough to address a name, a place, a location, a date, a certain type of interaction with the victim where you can be like, “Oh, they’re referring to this particular crime on this date that happened at this house when the child was eight.” That’s huge. So, written statements are gold. You just want it to be specific.

Yeardley: [00:40:54] Sure. Well, your fifth grade English teacher wouldn’t stand for this in place of a specifically referenced noun as in an act or a crime or something.

Dave: [00:41:04] Right. And I’ll say even police officers that I’ve been around that maybe don’t have the exposure to a suppression hearing or being in trial from suppression hearings all the way through the verdict and sentencing, if you don’t have the exposure to the utility of having a letter or having been in the room with somebody who’s confessing to horrible things, you might not know how to address that in your initial investigation, because you just don’t have any exposure to it. I learned these things from Don, sergeant David, Jeff, my former partner, 20 plus years working sex crimes and child abuse. But talk about working right next to an encyclopedia. I took a lot of things from him. He had a certain way of doing things very commanding in a room.

[00:41:53] I’ve always said like, “If I had a family member that was sexually abused or a victim of a crime in that family of crimes, I want Jeff to be the assigned detective on it.” Because I’ve seen him in an interview room, and the guy is fluid. He knows when to step on the gas. He knows when to push the brakes. He knows when to confront and say, “Get out of the car,” figuratively speaking. He knows all these things, because you think in 20 plus years, how much exposure to sex offenders, and personality types, and types of crimes has Jeff been involved in? Too many to count. There are times where I felt like I was getting nowhere in an interview, I would come out and Jeff would tell me, “It’s time to crawl on this guy’s face.”

[00:42:44] When we say crawl on somebody’s face, it doesn’t mean like the Hollywood version of, “Let’s turn the lights down. There’s just one light [Yeardley laughs] dangling down over the table, and I’m going to screw my gun into the side of his head.”

Yeardley: [00:42:56] Like a Black Ops kind of interrogation. [laughs]

Dave: [00:42:59] It’s nothing like that. He means, it’s time to confront this guy. I remember the first time I used it– It’s a Reid Technique, but it’s effective. Jeff told me, it was this suspect that I had on video committing this crime, but he just would not admit to it. All you see is the shoes in the video and I’m like, “Same shoes you’re wearing, dude.” “But tell me about what happened in this house.” “That’s not me.’ So, finally, I take a break. I think suspect asked to use the restroom, I was like, “Perfect,” because I need to retool my strategy here. Let the person use the restroom.

[00:43:32] I go out, talk to Jeff, and I’m like, “You want to take a shot at him?” He goes, “I’ll take a shot at him, but I want you to do this first. I want you to walk in there, start down that same path again, but physically put your hand up in front of yourself like a stop sign. I want you to put your hand up in between you and him, like you’re telling him, ‘Stop.’ I want you to actually say, ‘Stop. We are way past that.”‘ He goes, “Just try it.” This guy goes down there, we’re about two minutes into this other portion of the interview, and the guy’s not going to go there, and I just said, “Listen, man, stop. Stop right there. We are way past that.” And he just dropped his head and he’s like, “All right, I’ll tell you.”

Yeardley: [00:44:11] Wow.

Dave: [00:44:13] Jeff told me later, he’s like, “You interrupted his train of thought. Everything he’s about to tell you said, ‘I don’t want to hear any of that shit. I want the truth right now. Tell me what happened.'” He gave it up. Jeff knew that because he’d probably been watching me for 30 minutes going, “Just put your hand up and say, ‘Stop. We’re way past that.”‘ [chuckles]

Yeardley: [00:44:33] Right. But you wouldn’t think such a gesture though demonstrative would actually work. I don’t know. You just feel like if somebody’s hell bent on not telling you something, they’re not going to tell you. But in fact, that’s not true.

Dave: [00:44:57] I learned this from Dan. When he’s talking about the guy who would get very confrontational and his body language, I remember that case. But Dan just told Sergeant Dave, he’s like, “He’s too comfortable lying to me. He’s used to lying to me. I need someone to take a run at him, because he’s gotten so comfortable telling me bullshit that he’s not going to come off of it, because he knows what’s this guy going to do.” You got to introduce a new face to the interview room. We didn’t have a policy where we would interview with two detectives in the room. I would do that on occasion, if there was another detective who had additional information for me or there’s security risk. I’ve been in interview rooms where you’re like, “Fucking hope, this guy doesn’t come over the table, because he’s going to eat me up.”

Yeardley: [00:45:42] Oh, like you feared for your bodily safety?

Dave: [00:45:46] Yeah. I had a child pornography suspect who’s passed while he was in prison. But Dan remembers this case. Guy was enormous, bodybuilder. I mean, shredded. I don’t know what type of guy this guy is. I know what he’s into because I just served a search warrant on his house.

Dan: [00:46:02] That guy was like 6’7″, 260 and ripped.

Dave: [00:46:06] Less than 10% body fat. And he’d spent time in prison. He was nothing but a gentleman throughout our entire interaction. Even in the interview, he lawyered up. It was just because he told me, he goes, “The only reason I’m lawyering up is because I’ve been through this before.” He’s like, “I want to talk to you, but there’s no explanation for it and I’m not going to speak to you. It’s not personal. You won’t have any hassle out of me.” Well, it’s getting to be close to time to go to the jail and lodge him for X, Y and Z. He starts having a heart issue, his demeanor. Everything has changed about this guy. I think he’s having a– we call it a significant emotional day. Significantly emotional event in your life where he’s like, “Oh, shit, I’m going back to prison and this is bad stuff.”

[00:46:54] Previously been to prison for drugs, some pursuits, some thefts. Shit, we deal with in the law enforcement world all the time. Child sex abuse material is a different look when you’re a prisoner and he knew it. Well, he has this heart related event to the point that I call for an ambulance and fire personnel show up at the police department, go into the room, and they’re like, “He’s having an event. We got to get him to the hospital right now.” I was like, “Is this guy– is he playing me? Is he trying to get to where I’m going to be in an ambulance or in a hospital room with him and now he’s going to try to get away?” Total gentleman threw out. He apologized. He wouldn’t talk specifics. He said, “I’ll talk to you about anything,” and I said, “It’s all off the record, man. You already lawyered up, unless you tell me I want to go back on the record, none of this will go on my report.” I was at the hospital for six hours that day.

Yeardley: [00:47:47] And was he having a heart attack?

Dave: [00:47:49] Yeah, he had a heart attack. So, he gets lodged the following day in the jail, gets lodged in the jail, goes away to prison, pled guilty. Total gentleman. I don’t like what he did. I wasn’t judgmental of him. He was remorseful. Never gave us a problem. But it’s one of those where initially, I was like, “I don’t want to be in the room alone with this guy. I don’t know what he’s capable of.” I mean, he had whole cans.

Yeardley: [00:48:14] Right. [laughs] Snap you like a twig.

Dave: [00:48:16] Right. So, some departments have a policy where you’re going to have two detectives in there. It’s useful in some situations. You’ll have a detective. I typically want one voice in that room. So, when I see another detective jump, like when another officer shows up and you’re the primary officer on the call, but the cover officer shows up or a third-party shows up, and they start running people’s names and barking out orders and giving directions, I’m always like, “Oh, hey, you’re jumping my call right now. It’s my call. Don’t jump my call.” Same thing in an interview room. If you’re the secondary, unless I prompt you, I typically don’t want to hear you ask any questions. I want you to be able to point out when we take a break like, “Hey, let’s tease this out a little bit. He said something that I caught on.” I was never huffy about it, but it was my preference that I’d rather there just be one voice in that room.

Dan: [00:49:08] Yeah, that other officer, a lot of times too is just simply observing body language and making observations.

Yeardley: [00:49:15] An extra set of eyes.

Dan: [00:49:17] An extra set of eyes, because I’m not watching the suspect the whole time. I’m looking down at notes or whatever. This other detective can be in the room seated in a way where we talk about runners’ stance. I’m not saying all things about Reid Technique are bad. Reid Technique also teaches you a lot about body language interviews. That was my main takeaway from the Reid school that I went to was, those observations that I can make with people where I can tell that they’re being evasive or deceptive, those were important things to me. So, that’s what another set of eyes in that interview room can do is make those observations.

Dave: [00:49:57] Yeah. And I don’t fault agencies that do it that way. It’s just a personal preference. I’m sure there are detectives out there like, “I want two of us in the room every time.” Some of my preference was formed around dealing with detectives like Jeff and Don, and Sergeant David. Others were being around district attorneys who are like, “I don’t want a physically imposing presence at council table during the trial.” So, lots of times, the lead they call the case agent will be up at the table with the district attorney during the trial. I used to sit up there with certain district attorneys. I had others who I was an unknown commodity when I first started. They’re like, “You’re going to be in the front row. You’re not going to be with me at the table,” because there’s usefulness in having me at the table.

[00:50:42] So, the attorney, when he hears something, he’s like, “Is that a fact?” He would have to turn, roll his chair back, talk to me in the front row. In other situations where I’m at the table already, they just write a little note on their yellow legal pad, pass it over. It’s non disruptive. You answer it yes or no or, let me check. It’s useful to have the case agent up at the table, but attorneys, they don’t want it to look like the government needs five people piling on this suspect. It looks heavy handed. So, you limit the optics of that. Now, I’ve been in trials where there were three co-counsel with the suspect, and it’s just the DA and me in the front row. If I had that situation, I do agree. I think it’s a better look to have fewer people from the government up at the table.

[00:51:30] I’ve never seen two detectives up at the table. Only a couple of cases where there was co-counsel on the prosecution side. There are several cases where there were two defense attorneys with the suspect. Their strategy is the same. One of them is doing the questioning, the other one’s observing, recording, checking the case file, like, “Does this statement on the stand differ than what they gave the police officer eight months ago when they were first interviewed?” Doing valuable work for their client. It’s the same thing on the police side. I don’t want two people at the table. On the law enforcement side, I don’t want two people in the interview room. There are exceptions.

Yeardley: [00:52:06] Right. I think these conversations are so fascinating, gentlemen. Thank you so much.

Dave: [00:52:13] Lots more to talk about on that vein.

Yeardley: [00:52:16] Absolutely. We could definitely revisit this topic in the future. It’s just a great conversation with so much to learn about how you both do what you do. I can’t get enough. I loved it.

Dan: [00:52:30] Thank you. I would just add this on. My number one strategy going into an interview room was be respectful. Show them respect. Sometimes that’s all these people have is their own self-respect. So, you don’t want to take that away from them.

Dave: [00:52:44] Yeah, it’s poker. You can’t show emotion in there. The minute you act like, “That’s the worst thing I’ve ever heard somebody do to somebody else,” now we’re back into judgmental land and probably it’s going to be a short conversation after that.

Yeardley: [00:52:59] Yeah, definitely. Nobody wants to be shamed, even if they did the worst thing. Thank you, gentlemen, so much.

Dan: [00:53:06] You’re welcome.

Dave: [00:53:07] Thank you. It was a great question.

Yeardley: [00:53:09] Thank you. I just tried to do my part.

Dave: [00:53:11] I’m sure you listeners have some questions of your own. Feel free to drop us a line one of our social media accounts. Next week on The Briefing Room, we’ve got Paul Holes. He joins us to talk about forensics. It’s going to be gruesome and great. Can’t wait to hear it. And now for a little Briefing Room feedback.

[00:53:32] So, the first two episodes of our new podcast, The Briefing Room, we talked about active shooter response in schools. And as part of those two episodes, we had a discussion with two teachers from Texas. It was quite apparent there was a distinction between one school district and the other when it came to the caliber of training and the opportunities for training that these two school districts offer to their employees and their students. We got a lot of feedback from the first two episodes and many questions had to do with, “How do we ensure that our school district is getting up to date quality high caliber training to our teachers and our students?”

[00:54:22] My answer would be and I think probably most school resource officers would agree is that, reach out to your local police department or sheriff’s office, and ask them if they are conducting any active shooter response, any critical incident traumatic event type trainings, and get on the police department’s training calendar, and offer your school and say, “We want to have a training at our school. It’ll probably be on a teachers in service day or on a weekend, and we’ll run all the teachers and staff through this active shooter training.”

[00:55:01] It does two things. It gives the police officers an ability to really do some reconnaissance of the school grounds. They become familiar with the buildings they could potentially be entering. It also inoculates the folks who are being trained into a little bit of a stress response. I know that Dan has done that to varying degrees, but at some point, that training felt very real to some of the folks who weren’t used to hearing gunfire, even though they were shooting blanks. It’s not just a drill. It’s stressful.

Yeardley: [00:55:36] I remember, Dan, when you talked about participating in going to a training at a school, and you played the bad guy and you were so good at it, you made the teacher cry. So, when Dave says, “Yes, it’s a drill, but they’re trying to make it as realistic as possible,” and of course, you weren’t trying to make her cry.

Dan: [00:55:55] Not my proudest moment, but I wasn’t even shooting blanks. I had basically a Nerf gun that I was using. But I was heartless. I played a heartless person. I think that’s alarming to people that someone could be so heartless that a bad guy would not care at all about your misfortune or the pain you’re in. It’s a reality that we have as police officers, because we see it every day.

Dave: [00:56:22] I love that Dan made it real. That makes the training worthwhile and not just a waste of everyone’s time. I want you to be uncomfortable.

Yeardley: [00:56:31] Because also, chances are the actual incident will be hundred times worse than what Detective Dan was able to bring on that day.

Dan: [00:56:39] I’ll tell you what, the first time you hear a gunshot go off and you’re not wearing your protection, it rattles you. And so, I had a Nerf gun that day. I can’t imagine what these people would go through if it was a real incident and how loud a gun going off is. It’s not like television. It is loud.

Dave: [00:56:59] But to bring that back to the training piece, folks can reach out, their school district can reach out to the fire department and the police department, and they can team up together to create an active shooter or a critical incident trauma response training that can combine medics, and fire personnel with police, and schools’ staff and students. You can do that. Reach out to your police department and ask if they can help you coordinate an active shooter training. That’s a public service. The police department, they should jump at it.

Dan: [00:57:38] Yeah, and couple that with a stop the bleed training.

Yeardley: [00:57:42] Some triage.

Dan: [00:57:43] Not just triage, but, like, let’s really work on the first aid aspect of the aftermath because if we’re ignoring that part, then we’re failing too. Dave and I talked about it. We were buddies with some firefighters in our local town. We had a boat, so we wanted to make a first aid kit. Not that Dave and I are going to get hurt out at the lake, but what if somebody else gets hurt out the lake? It’s dangerous. Somebody gets hit by a prop on a boat.

Yeardley: [00:58:10] A propeller?

Dan: [00:58:11] Yeah, in the boating world’s cup prop. [Yeardley giggles] But there’s going to be a lot of blood, and Dave and I wanted to be prepared to respond to something like that if it happened. If I was a teacher, I think in our town, I think teachers could probably go down to the local fire department and say, “Hey, can I just get some basic supplies if the worst thing ever happened and there was a shooter at my school?”

Yeardley: [00:58:38] For first aid.

Dan: [00:58:39] For first aid. “Would you guys give me some of those things?” I would bet that the fire department would say, “Yeah, what do you need?”

Yeardley: [00:58:47] And they’d say, “I don’t know, can you help me?”

Dan: [00:58:49] Yeah.

Yeardley: [00:58:49] Then the fire department would say, “Okay, this is what you need.”

Dan: [00:58:52] Yeah. But honestly, the schools should be paying for all this stuff. There’s no excuse.

Dave: [00:58:58] There truly is no excuse. The stuff that teachers and staff are putting on their own personal credit cards is embarrassing.

Yeardley: [00:59:05] I agree.

Dave: [00:59:07] They shouldn’t have to do that, but I agree with Dan. If you went down to a local firehouse, they’ll hook you up. They’re happy to, if you tell them what it’s for, “I need stuff to stop bleeding.” They’re going to say, “You need tourniquets and you need big gauss, pressure bandages, stuff like that.” Stuff that soaks up blood and puts pressure on wounds.”

Dan: [00:59:27] Yeah. I would say at a minimum, you should have some tourniquets in your classroom available. They’re not that expensive. You can actually get them on Amazon. If your school district or your school won’t pay for those things, go on Amazon, look at tourniquets and learn how to apply it correctly. It’s invaluable. I’ve watched a tourniquet save a life.

Dave: [00:59:51] Thanks to everyone who listened for all the thoughtful comments we’ve received. We read every one of them. So, keep them coming.

Yeardley: [01:00:02] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith and coproduced by detectives Dan and Dave. This episode was edited by Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel. And our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts. And thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:20] Welcome to The Briefing Room.

[Briefing Room theme playing]

Dave: [00:00:36] Welcome to The Briefing Room and the rest of our discussion with Lissa, criminal defense attorney and former prosecutor. I’m joined by Emmy Award winning actress, Yeardley Smith.

Yeardley: [00:00:46] Ooh, fancy intro. Thank you, Dav, as I like to call you.

Dave: [00:00:51] And, of course, we’ve got the Gold Glove winning shortstop from the 2007’s Candy Softball Tournament, my twin brother, Detective Dan. Welcome.

Dan: [00:01:00] I don’t know what to say.

[laughter]

Yeardley: [00:01:04] Hello.

Dan: [00:01:05] I don’t get compliments from Dave. So, I’m a little shook right now, but thank you, Dave. Dave was a wonderful left-handed pitcher also.

[laughter]

Yeardley: [00:01:15] See how the twins can get along. Okay, Dave. Sorry. Carry on.

Dave: [00:01:22] In today’s Briefing, your civilized conversation between cop and defense attorney continues. When we recorded the conversation with Lissa, we originally thought this would be an episode of Small Town Dicks, but it doesn’t really fit there. And in many ways, this discussion was the inspiration for us creating The Briefing Room. A place where law enforcement can talk with the communities they serve. We invited Lissa back in order to talk more about the vital role she plays in the justice system. A role many see as the antithesis to law enforcement, but a role, when done with respect and integrity, is as vital to the balance of justice as any other component. And on that highfalutin note, let’s start with a wildcard for everyone in the courtroom. You, the jury. Let’s talk about what’s the quickest acquittal you’ve ever achieved in your defense attorney career?

Lissa: [00:02:15] Oh, who’s counting? 27 minutes?

Yeardley: [00:02:18] Ah.

Lissa: [00:02:19] [laughs]

Dave: [00:02:20] From time to recess and everyone walks out to the time that you’re back and the verdict is read. 27 minutes.

Lissa: [00:02:27] Yes.

Dave: [00:02:28] Which means about 15 of that was spent with a little break, everyone gets a drink, everyone goes to the restroom, wash their hands, comes back reconvenes, and votes probably twice, and then you’re back in the courtroom.

Dan: [00:02:40] Well, and you got to fill out the paperwork even. That’s what probably takes the longest in there. I’ve been on a jury in a criminal jury trial, and that’s what takes the longest.

Lissa: [00:02:51] They kept you?

Dan: [00:02:53] Ah, before I was in law enforcement.

Lissa: [00:02:55] Oh, okay.

Yeardley: [00:02:57] [laughs]

Lissa: [00:02:57] Detective Dan, just on a jury, being a detective? [laughs]

Yeardley: [00:03:02] Can you imagine?

Dan: [00:03:03] I’ve been in the box twice since I was in law enforcement. One was with two officers that I worked in the same agency with.

Yeardley: [00:03:11] Oh, they were also on the jury?

Dan: [00:03:13] No, they were the investigating officers for the case. I had worked graveyard the night before, and I worked graveyard the next night, and here I am at jury duty doing my civic duty. We don’t get special treatment. You can’t just write on the form when you get jury duty, “Hey, I’m a cop. There’s no way I’m going to be selected for jury duty,” because they have civil trials that are going on that need juries also. You’re not just excused, because you’re in law enforcement. So, I got actually called into the jury box and had to undergo voir dire. I’m like, “This is a joke. There’s no way I’m going to be on this jury.” I’d been there since 08:00 in the morning, and finally at 03:30 PM, they finally excused me and I went home and I slept for a couple hours and right back to work.

Lissa: [00:04:04] I was on jury duty recently too. It’s the same thing, because they assume that there’s civil trials going on too. I was one person away from getting in the box and I was like, “No way. This is not going to happen.” But I talked. I answered questions. I was surprised that the attorneys would even want to hear from me, because they assumed I probably had some pretty strong views on things.

Dave: [00:04:25] The defense attorney is like, “Let’s get her on there.”

[laughter]

Lissa: [00:04:28] [laughs] I don’t know who kicked me, because you can’t see it from the process, but I do know I was kicked. But I was very close to not being kicked and I was surprised. I had to stay the whole day too. They asked me opinions about law enforcement and I was like, “Really?” [laughs] Well, I have some of those. [laughs]

Yeardley: [00:04:48] [laughs]

Dave: [00:04:49] Local defense attorney here.

Lissa: [00:04:51] Yeah, [laughs] exactly.

Dan: [00:04:54] I remember they started asking me questions and they said, “Are you familiar with anybody who’s involved in this case?” And I was looking over at the council tables and the two case agents, I’m like, “Well, where do I begin?”

[laughter]

Dan: [00:05:07] I’ve done several cases with the prosecutor. I’ve been up against the defense attorney before. I work with both the case agents. And then they ask the follow up question, which I don’t know how ethical this was, but the follow up question was, “Do you have an opinion on the work of your two coworkers?”

Lissa: [00:05:27] Oh, no.

Yeardley: [00:05:28] Oh, boy.

Dan: [00:05:29] And I’m like–

Lissa: [00:05:30] Did the defense attorney ask that?

Dan: [00:05:32] Yes. I knew the judge. When they asked me the question, I looked over at the judge like, “Do you really want me to answer that?”

Lissa: [00:05:39] [laughs]

Dan: [00:05:41] And gave the pause like, “I’m going to give you a chance right here.” He just looked at me and nodded and I was like, “All right, that’s a green light.” If this doesn’t reek of a mistrial before we even started trial and I’m like, “My opinion is that they do complete and thorough work.” That was my answer.

Lissa: [00:05:59] This was the fear that I had when I was in the box. I didn’t want to poison the jury pool with a strong opinion either way. If I said something about the prosecutor, if I said something about the defense attorney, they were going to go, “Well, she’s a lawyer. She must know.” And that doesn’t give anybody a fair trial. I was afraid to speak, which is an unfamiliar feeling for me, but I had it. I didn’t know what to say and I tried to just be honest and forthright, but not go into, “I could wax poetic on this stuff all day, obviously, but I didn’t want to influence anyone because these are supposed to be members of your community that are just coming in and making a decision based on their life experiences, not yours.”

Dave: [00:06:42] So, how does a defense attorney go about the voir dire process of selecting a jury?

Lissa: [00:06:47] It’s such a weird situation to put people in.

Yeardley: [00:06:51] You mean the practice of gathering together this group of strangers, calling them a jury and then asking them to decide another stranger’s guilt or innocence.

Lissa: [00:07:01] Yes. It’s almost like meeting with a new client, but they don’t know you, and “Oh, can we talk about some of your deepest held beliefs and some of the most formative experiences in your life, and can you just tell everyone in the room real quick about it?” It’s awkward and artificial. For that reason, I will spend a day or two on jury selection in general, because you’re meeting new people and it’s going to take them a while to get warmed up and want to even talk with you.

[00:07:31] So, some attorneys will do half a day of jury selection or things like that. I’m one to two days on almost all of them, because I really want to get down to, “You have this opinion, but why? If I talk with you about it, how do you respond to that and will you give my client and the state a fair shot?” I really just want 12 people who are going to listen. I know that may sound like bullshit, but it’s not. I really just want 12 people who are going to come in and listen to me and listen to the state and try to figure this thing out with us.

[00:08:07] You’re not going to figure that out and talking to 50 people, because sometimes we call in 50, 60 people, especially for sex cases, because so many people have such strong views about that issue that it takes that many people to find 12 people who can just listen. Listen to what Dave has to say, listen to what I have to say, maybe what my client has to say and just go, “Okay, let’s figure this thing out.” That’s a really hard balance to strike and you really have to get to know people to get a sense of if they’re actually going to do that.

Yeardley: [00:08:35] I have a question for you, Lissa.

Lissa: [00:08:37] Yes, Yeardley.

Yeardley: [00:08:38] This could be fun if you can answer it. What’s the number one excuse you hear or tactic you see of people trying to get out of being chosen to be on a jury?

Lissa: [00:08:51] You can always tell the people that have asked someone they know, “Hey, man, I got jury duty. How do I get out of jury duty?” You just come in and you say, “Oh, well, I just can’t be fair.” “Okay, well, you’re not the first person to tell me that, sir. So, okay, why can’t you be fair?” “Well, I just don’t think I can sit in judgment of another person ever.” “Okay, great. So, your friend told you to say that. That’s fine.”

[00:09:15] Now let’s actually dig in and get to know you. “Do you want to be here?” I’ll just straight up ask people that. “Do you want to be here?” And they’ll be honest with you and say, “No.” [laughs] “Okay, well, I don’t want you here either then, because you’re not going to give anybody a fair shot if you don’t want to be here.” I’ve seen people say, “I have childcare issues, which I totally empathize with and are valid. I care for a family member. I can’t be on the jury because of that. There’s nobody else to care for. I have to work.” Well, everyone has a job, so that’s not going to fly.

[00:09:50] But people will try certain things, and you watch a lot of panels where someone will try an excuse, and everybody will be tuning in like, “Is this going to fly? Can I use this one too?” And they’re sitting attention, seeing how this will go, the first person to ask the judge this. And eventually, people just settle in and realize, “Look, it really needs to be a major thing, because we have to have enough people here to make this fair.”

Dave: [00:10:16] I’m just jogging my memory on one of these “oh, shit” moments, and you don’t have to give a verbal response?

Lissa: [00:10:23] Every time I walk into a courtroom, it’s an “oh, shit” moment for you, Dave. You know it. You’re like, “Oh, shit.”

[laughter]

Dave: [00:10:31] I remember jury selection, and I think it was a defense team you were associated with, where someone was updating their Twitter feed during jury selection and talking about how they didn’t want to be on the jury.

Lissa: [00:10:47] Yeah, that’s a big no-no.

Dan: [00:10:49] I think for a lot of people, this is their first look up the skirt of what actual criminal justice looks like in the United States.

Yeardley: [00:10:58] Well, sure. How else would you get to see that?

Dan: [00:11:01] Yeah. This is your first time seeing the wheels turn. And to me before, I was always interested in law enforcement, but when I got chosen to serve on that jury, I was actually looking forward to, “Hey, this is really interesting to me and I want to get this right.”

Lissa: [00:11:17] You really do want to get it right. Once the decision has been placed on your shoulders, then you feel the responsibility of it.

Dan: [00:11:38] So, you being an officer of the court.

Lissa: [00:11:41] Mm-hmm.

Dan: [00:11:42] One of my main criticisms of defense attorneys over the years has been these hypothetical scenarios and these imaginary suspects that sometimes get brought into murder cases.

Lissa: [00:11:56] Bushy haired stranger defense.

Dan: [00:11:58] Yes, exactly. You guys have a name for it. The bushy haired stranger defense is, it’s an alibi for the defendant.

Lissa: [00:12:08] That’s right.

Dan: [00:12:09] Essentially what it is, is this random person, this bushy haired stranger, so it’s like a white male with unkempt hair appears out of nowhere. He’s unknown to the victim, and he is the person who is responsible for committing the crime, not the actual defendant. Of course, the bushy hair stranger is probably America’s most prolific criminal, but nobody’s ever caught him.

Yeardley: [00:12:35] [laughs]

Dan: [00:12:36] So, where does that sit with you that? If I’m on the prosecution side, which I was as a case agent, I have to be able to prove my case. I think that that’s largely not true. When defense attorneys bring up these hypotheticals or these imaginary suspects and just throw them in there to see if the spaghetti sticks on the wall.

Lissa: [00:12:59] I know that there are defense attorneys who do that style. I don’t find that effective even to benefit my client and I don’t feel good about that. That’s not why I do this job. If I’m there to make sure that I can hold the state to its burden and that’s an important function of the system and part of being the state. My philosophy is systematic and surgical. It’s, “Okay, what are the weaknesses in the state’s case or what did they miss here? What is my client saying about what happened? What can I corroborate and try to bring in witnesses for that and what experts may educate the jury on what the state did or didn’t do?” That’s how I build a case. That’s how I think good defense attorneys build a case is they try to figure out, if your client has a defense.

[00:13:54] It’s not a big mystery. It’s, “Do you have a defense and can I assert it?” I look juries right in the eye when I argue to them. I don’t think of myself as some like charlatan that’s just in there trying to confuse people. I really try to draw their attention to details or exhibits that the state missed that I had to go then bring in. I think that if you’re in court and you’re lying, or you’re lying to a judge, or you’re fabricating things, you’re not doing a service to anyone, and you’re certainly not doing your job, and you shouldn’t be a member of the bar.

[00:14:33] I take my role as an officer of the court really seriously because of my own personal integrity. But even if you don’t want to believe that, I got something else for you. No, it’s my own integrity, but also I’m part of a system that I really believe in and that I think is the best that we have. It’s the best system in the world, in my opinion and it’s got faults, but it works. I can only make that work if I meet my duties as an officer of the court and bring things before the judge that are in good faith on my part.

Dave: [00:15:05] Given your experience on both sides of the fence here, just from an objective point of view, are we doing what’s right in the sense of justice?

Lissa: [00:15:15] Are you meaning as far as like reform prosecutors and the reform prosecutor movement?

Dave: [00:15:20] I guess the reform, but like dropping gang enhancements on charging documents for what are clearly gang involved shootings and murders. It’s a big deal to victims and their families. I’m sure it’s a big deal to the defendants who are getting lighter sentences.

Lissa: [00:15:38] Well, I think that goes to colliding philosophies, because if I’m understanding some reform prosecutors in the state where I practice, they’re making decisions that are really politically unpopular. But I probably take a different view than you do on that, Dave. Not probably, much to your surprise. A lot of these enhancements and prosecutors drawing them back are from defense attorneys running for and becoming DA and trying to enact the reforms that they wished they could have achieved for their clients. A lot of those center around mandatory minimums, which I do have really strong feelings about. Mandatory minimums provide prosecutors leverage in plea negotiations that impact whether or not people who are truly innocent go to trial.

[00:16:36] I don’t think you could find a defense attorney who really works their cases who could tell you that they have not had an innocent person consider pleading guilty to something that they didn’t do because of the exposure, because if you have mandatory minimums and you go to trial and you could get a decade, but you’re offered probation where you can stay home and support your family, you take probation every day of the week. It does not matter if you did it. I’m not saying that happens a lot in my practice, but I do practice the state with mandatory minimums and I have to have conversations with clients about that. Every defense attorney does.

[00:17:18] Like Dan says, when you go into a jury trial you first look up the skirt, basically, to use his phrasing of how the system works, but there is a whole system working before those jurors ever walk in, and there’s people caught up in that system making decisions about whether or not they’re going to go be in a cage. Sometimes, that’s not ultimately because you did it. It’s because of what could happen to you if the jury believes you did it.

Dave: [00:17:46] Right. Say you’re offered 45 years, and then the day of trial, they reduce it to 20 years, and you’re like, “Well, if I lose today, I’m going for 45 years. I’ll take the 20 even though you didn’t do it?”

Lissa: [00:18:02] Yes. When these reform prosecutors are coming out saying, “I want to take away these gang enhancements or I want to have more justice and sentencing,” it’s not because they think that what these people did is acceptable. I think society thinks that means that we’re “soft on crime,” and we just don’t care that this person did this, and it’s looked at as, how could you justify this conduct? But the people asserting that philosophy are a lot of times, people who’ve sat with clients making these decisions that really come down to risk as opposed to whether or not they did it. I think if you’ve never been part of the system, you think, I would never plead guilty to something I didn’t do, why the hell would I ever do that? Why the hell would I ever confess to something I didn’t do?

[00:18:50] If you look at the Innocence Project, a lot of the cases that come out of that were confession cases. And so, you just don’t know how you’re going to react when you’re in the situation and what decisions you’re going to be tasked with. Mandatory minimums and enhancements force conversations between lawyers and their clients and force leverage from DAs to have these other charges in the background. And sometimes, it happens where people plead and they didn’t do it or they confess and they didn’t do it. If you had a system that didn’t force those decisions, then would you maybe have guilty people going to court to assert their right to trial? Sure. Do you have that now? Sure. But you would have innocent people not having to make these decisions on risk assessment and feeling like, “Yeah, I can assert my right to trial and see what the jury thinks about this without other things looming in there. I’ll step off my soapbox now.” But I think when you ask about that issue, it’s really a different issue and a different philosophy that the prosecutors are trying to bring forward.

Dan: [00:19:54] I think it’s an important conversation to have about racial disparities in sentencing and mandatory minimums.

Dave: [00:20:01] The pendulum always swings. And Dan and I and Yeardley, we had a discussion the other night about the pendulum swings, and right now, it’s on a certain side. It’s going to swing back. It’s inevitable. But in the 1990s, they went really hard on drug crime. And I’m asked about these things fairly often. What do you think about all these inner-city black men that were sentenced to 20 plus years for dealing marijuana? I’m like, “Of course, I think that’s bullshit.”

Lissa: [00:20:28] Right. But if you talk to a weed cop in the 1990s work in drug cases, he wouldn’t tell you, “That’s bullshit.”

Dave: [00:20:34] Exactly. So, you know me, I’m fairly conservative.

Lissa: [00:20:39] No.

Yeardley: [00:20:40] [laughs]

Dave: [00:20:41] I do believe in making it right, some of these things that were so horribly criminalized back in the 90s. Nowadays, pot is legal, and a majority of the United States, I think, is certainly legal in my state, including some hard drugs are legal in my state. Should we have the ability to go back and revisit based on today’s standards?

Lissa: [00:21:05] I think for the war on drugs? Yes. Other crimes, I don’t know. The competing philosophies there are there needs to be finality. If we’re going to have a system in a tribunal that resolves conflict, then people need to have faith in that system that once the conflict is resolved, it’s resolved.

Dave: [00:21:22] Right. That you don’t say, “Hey, this is the decision for seven years. In seven years, we’re going to revisit your punishment.” And you’re like, “Well, I mean, you did murder six people.”

Lissa: [00:21:31] I think that’s a really good observation for why it’s so important to just have really good, thoughtful, measured, courageous prosecutors. Communities are better off with that, because if you impose an avenue to punish somebody, the prosecutor is the one who is going to control how that’s doled out. You need people who are not going to be afraid of the community saying, “Why would you do that? You’re soft on crime.” You need a prosecutor who can explain to the community why they used their discretion, so that when they use their discretion to put somebody away for a really, really long time. The community trusts that decision because it’s not just so they can throw the book at someone. It’s that they’ve really thought through whether or not this is the appropriate way to deal with the case.

[00:22:23] But the problem is not all prosecutors are like that. You’re going to have ones that are really power hungry and want to access these avenues and they can use that power in a way that helps no one. It doesn’t achieve justice. How does it provide closure to a victim if the wrong person gets convicted? It provides temporary closure and a good headline, that case closed, but who benefits from that?

Dan: [00:22:48] Yeah, it raises doubt. It shocks the conscience and the confidence that our citizens have in law enforcement and the justice system.

Lissa: [00:22:57] Which the good cops want them to have.

Yeardley: [00:22:59] The good cops want the community to have confidence in law enforcement and the justice system.

Lissa: [00:23:06] Yes.

Dave: [00:23:07] Right. It’s the procedural justice and police legitimacy that we talk about that the further extension is to prosecutors, is to judges in sentencing and fairness in prosecution, that it’s not just the cops out there. We’re just a piece of the wheel that is turning and it’s a big machine that is really difficult to steer.

Lissa: [00:23:34] I think some of the hardest decisions prosecutors have to make are not to file or to reduce a charge. Sometimes defense attorneys have to take really unpopular positions on how a case should be resolved and hope that the prosecutor is going to be able to explain that to the community on why that too is justice. That takes some political courage to go to the press or to the community and say, “I didn’t file this.” It could be in cases where people have died or been really injured in some way, but prosecution is not the way that they can deal with it or that the law is set up to deal with that particular circumstance. And not every community is lucky enough to have prosecutors that do that.

[00:24:30] I will say that I’m lucky in my community that I have several prosecutors that I work with that I thank them after certain cases, even that aren’t mine, just to say, “Thank you for doing that, because that was really hard,” and you’re probably going to take a hit in the paper for it. But that’s your job is to get justice. And sometimes, that’s not what is intuitive. It’s really easy to go to the community and say, “Yep, I threw the book at him. He got 25 years.” Everybody thinks, “Well, he must have done it. Good thing he got 25 years and throw away the key. Hopefully, he doesn’t make it that long.” That’s an easy thing for a prosecutor to do, but it’s really hard to say, “You know what? We couldn’t prove certain things, and we really took a hard look at it, and we talked with the victims about it. We decided that was justice.” I think that is the hardest, but probably the most important part of their job. Anybody can throw the book at somebody.

Dan: [00:25:23] I think my mind goes straight to Curtis Flowers. To give you some context, Curtis Flowers was tried six times by a Mississippi prosecutor for the murder of four people. Flowers was convicted four times, but every one of those convictions was overturned for either prosecutorial misconduct or racial bias. The other two trials ended in mistrials. After the US Supreme Court finally intervened, the state Attorney General eventually dropped the charges, but Flowers spent 23 years in prison while all of this was happening. There’s a good podcast about this case, and I think it’s called In the Dark, and you should check it out. But six prosecutions. If that’s not reasonable doubt.

Yeardley: [00:26:08] By the same prosecutor?

Dan: [00:26:10] I know. After the second trial, maybe you go to someone else and say, “Will you put eyes on this and give me your opinion?” Because he’s obviously, and you talk about being a little too invested in the outcome of a case. I think this is a prime example of, “Dude, take a step back and evaluate this.”

Dave: [00:26:30] I’d rather get an acquittal or charges dropped than a wrongful conviction. I don’t want a false confession. I used to be very hypersensitive to where I’d felt like someone was over confessing, because I’m like, “Hey, man, pull it back a little bit. Even now, I’m starting to question whether or not you’re being honest with me, even though I can corroborate a lot of what you’re saying.” My conscience is fairly overactive. I would not be able to live with that. Some of these officers or detectives that I see where they’re so invested and they refuse to see certain pieces of evidence and they refuse to hear alibi type stuff, you’re like, “Why? Don’t you just want to get it right?” I don’t want to just make an arrest.

Lissa: [00:27:20] But some people do.

Dave: [00:27:22] I want to put the right person in prison.

Lissa: [00:27:23] And that’s the problem. You need people of conscience on all sides. You need people of conscience with a badge, you need people of conscience in the prosecutor’s office, you need people of conscience on the defense side.

Dave: [00:27:34] When do we get that?

Lissa: [00:27:35] With me. Hello, I’m right here.

[laughter]

Yeardley: [00:27:40] So, Lissa, me as a layperson, and I’m sure all of our listeners are wondering, do you ever ask your clients, “Did you do it?” Do you literally ever ask them, “Did you do it?”

Lissa: [00:27:52] Yes.

Yeardley: [00:27:53] You do?

Lissa: [00:27:54] Mm.

Yeardley: [00:27:55] Do you ask the question to see how they answer? Do you ask the question also to see what they answer?

Lissa: [00:28:01] I have to lawyer you and say, it depends.

Yeardley: [00:28:03] [laughs]

Lissa: [00:28:04] It depends on the case. But yes, we talk about it.

Yeardley: [00:28:07] It just goes all into the bucket of information as to how you’re going to build the case?

Lissa: [00:28:12] Yes. If somebody tells me they did it, I don’t run to the DA and say, “Well, he did it. Case closed. Give me a deal.” It doesn’t change whether or not they have a right to a trial. It doesn’t change whether or not they have a right to make the state prove it. It doesn’t change whether or not the state did its job. So, therefore, I can’t let it change my perspective on if I’m going to fight for them, if the state doesn’t have it. This may sound flippant. In our system, it doesn’t matter if they did it, it matters if the state can prove it. If the state proves it, then the system has worked. I would rather have guilty people go free than an innocent person go to prison. And I think that’s how the system is built and I think that’s the only way it can work.

Dan: [00:29:17] I’ve always said, just being in athletics my whole life is you learn a lot more from losing than you do from winning. Me getting my ass handed to me on the witness stand by a defense attorney who was really well prepared solved my preparedness problem going into court.

[laughter]

Lissa: [00:29:34] Well, then you get better at it.

Dan: [00:29:36] I’m never going to let that happen again. I know it happened to Dave too.

Dave: [00:29:40] My first time in trial, and it happened, and I was like, “Oh.”

Lissa: [00:29:43] Oh, that’s what that feels like. I don’t like that. [laughs]

Dave: [00:29:45] Yeah, I’d like you to get your, “Can you uncrawl out of my ass right now?”

Yeardley: [00:29:50] [laughs]

Lissa: [00:29:52] Nope, because I’m winning.

Dave: [00:29:54] It was so embarrassing, [Lissa laughs] and it was one of those where I was just like, “Okay, you just got to sit here and wear it, because it is what it is.” And I said like, Dan, it’s the best lesson I ever learned.

Lissa: [00:30:07] And your investigations get better.

Dave: [00:30:09] Right. I left some clear holes. This defense was bullshit, and the jury saw right through it, but clearly, it pointed out some large gaps in my report writing and investigative skill, and I said, “I will correct that.”

Dan: [00:30:27] Side note, they should put an ejection button on the witness chair.

Yeardley: [00:30:33] [laughs]

Dan: [00:30:32] Where it’s like, it’s got a safety cover, but when you’re getting your ass handed to, you just hit the button and see you later, you’re gone.

Lissa: [00:30:39] So, I have to ask for a mistrial because cop ejected?

Dan and Dave: [00:30:42] Yeah. He’s out.

Dan: [00:30:44] I guess so. I guess, we’re done here.

Dave: [00:30:45] We’re not going to need you.

Lissa: [00:30:45] We don’t have to see you then. [crosstalk]

Dan: [00:30:48] Yeah.

Lissa: [00:30:48] I think that’s how I know if a cop has been trial tested. If I have them on the stand and they’re just not married to the facts and telling me what’s going on and they’re not taking my cross personally, it’s because they’re using it as an opportunity to get better. And that’s okay. If I go into courts in communities, where defense attorneys don’t go to trial very often and in retained work, you get called to different jurisdictions, because they want an out-of-town attorney and I can tell if the cops are trial tested or not within about 10 seconds of me crossing them. The number one signal to me is they’re pissed. “How dare I question them? Do I not know that they’re the law?”

[00:31:30] Well, yeah, I do, but I also know you didn’t do your fucking job. So, now we got to talk about it. If they come up and shake my hand afterwards, I know they’re going to just better and they’re going to put together better cases, which benefits everyone anyway. So, that’s fine. Go put together a better case next time. I want that because if you’re going to launch an accusation and I have to defend against it, I would like there to be evidence. So, go find it. The good ones say, “Yeah, okay, I didn’t do that. I’m going to do that the next time.” It just makes everyone better.

[00:32:00] If you use it as an opportunity to grow, you’re going to rise to the ranks and be a really, really good cop, because you’re going to know the tricks and you’re going to be able to anticipate it, which is, put another way, meeting your burden, which is really good.

Dave: [00:32:15] I used to write reports thinking, “If a defense attorney read this paragraph, how would they dissect it?” And I’d say, “Well, it can’t really dissect that. Okay, let’s go to the next one.”

Lissa: [00:32:29] That prevents confirmation bias. That’s really good.

Dave: [00:32:32] Yeah. We have some cops that tend to put commentary and opinion and conclusion in reports, and it’s a bad look. It’s a really bad look, I think, on the officer, because it shows that they can’t be objective. Our job is to report facts, so I can refresh my recollection, and completely and accurately portray what this victim or what this crime or what this situation was. I’m not supposed to come to any political conclusion about somebody that it doesn’t even matter.

Lissa: [00:33:08] It doesn’t because ultimately, you’re investigating. You’re just supposed to be investigating. You’re not the prosecutor. You don’t have anything to prove. You shouldn’t want to prove something. You should want to collect evidence, see where the evidence leads you. And then if you have enough evidence, then go forward. And so, when cops get offended, I’m like, “It’s just your job to investigate it. Go investigate. You’re not the state. That’s the prosecutor with the burden. You’re a witness and you’re here to testify about your investigation. So, tell me how you investigated.”

Dave: [00:33:42] It shows to me a lack of professionalism and maturity, like professional maturity. If you are on the stand being cagey, defensive, and just pouty or stand off-ish, you’re being short, I shouldn’t be able to tell the difference between you answering questions between Lissa or the prosecutor. It should look the same. If it doesn’t, then you’re doing it wrong.

Lissa: [00:34:07] And trust me, we’re not having a good day in court if you’re doing that, because if you’re super nice, “Yes, ma’am, no, ma’am,” looking at the jury, being friendly, guess what you look like, trustworthy and like a professional and someone that they should believe despite my cross? So, you’re doing a better job at meeting your goal anyway. [laughs] But it’s hard to see that.

Dave: [00:34:29] You’re probably going to have to answer 50 fewer questions that day than if you’re being an ass.

Yeardley: [00:34:36] I have a question for you, Lissa. Do you have a recurring lawyer nightmare? Because Dan and Dave have shared some of their law enforcement nightmares on the podcast. Like, let’s say, Dan is in a life and death situation in his dream. And when he fires his gun, the bullet doesn’t fire. It just dribbles out of the gun barrel, which sounds terrible. So, are there attorney nightmares that keep you up at night?

Lissa: [00:35:03] There’s a lawyer nightmare that I have. It’s recurring. I probably have it twice a month. It’s that I went all the way through, got my law degree, was practicing, and discovered that my undergrad messed up my degree and didn’t give me a bachelor’s, and because I don’t have a bachelor’s, I don’t qualify for law school. Then I worry that I can’t be a barred lawyer. So, I have to lawyer during the day and take undergrad bachelor’s classes at night to try to get my degree back and keep practicing. I didn’t say it would make sense, but that’s what happens to me about twice a month.

Yeardley: [00:35:42] That sounds like a nightmare that Lisa Simpson would have.

Lissa: [00:35:46] It really does. [Yeardley laughs] And depending on the month I’ve had, I yell at my undergrad guidance counselor like, “How could you fuck this up so badly? I can’t fucking believe you did this. Now I can’t be a lawyer.” In some of them, I have to stay in the dorms again. It’s all fucked up.

Dave: [00:36:02] All your acquittals get overturned?

Yeardley: [00:36:04] That’s what I was going to say.

[laughter]

Lissa: [00:36:07] God. Now, I’m going to have that dream. If I have that dream, I blame you.

Dan: [00:36:17] So, Lissa, before we wrap this up, I have one last question for you.

Lissa: [00:36:22] Okay.

Dan: [00:36:23] As a defense attorney who’s long listened to our podcast, obviously us being on the law enforcement side, sometimes, the stories we tell are a little one sided. What is your overall impression of the Small Town Dicks Podcast in the cases you’ve heard?

Lissa: [00:36:40] Well, first, I’d like to say I’m a long time listener first time guest. I’m a big fan.

Yeardley: [00:36:44] [laughs]

Dave: [00:36:45] She told me she wasn’t going to say that.

Lissa: [00:36:46] I promised Dave I wasn’t going to say that, but-

[laughter]

Lissa: [00:36:49] -the opportunity presented itself. You just kick the door open. I think you guys do a good job of going behind what the community sees about a case and trying to just get your perspective of people working through it. And cops are people at a job making decisions, trying to investigate a case. And that comes with a whole host of emotions, and stressors, and aspects of the job that a lot of people would have no idea about unless you were in the trenches, either as a prosecutor or a defense attorney that this is part of having a badge. Storytelling is a really powerful art and a way to convey experiences. And you guys don’t go super high level philosophical when it’s not needed. You’re telling a story and you’re explaining to people what this life is, and what these cases do to you, and what they do to the people involved.

[00:37:58] I don’t think that’s one sided. I think that’s you sharing your experience, which is powerful in itself. We’re all storytellers in a way. You’re telling a story when you’re writing a report. You’re putting together something called a narrative. You’re putting evidence together and you’re telling a story that better be backed up by evidence or I’m coming after you. But you’re telling a story. Defense attorneys do the same thing. We get up and we are our clients’ mouthpiece. We’re telling a story. If you’re not in there telling a story, you’re not doing your job. You can’t just go in and say, “These things happened. Therefore, this.” This is about people and their experiences that they’re going through, and that’s what you guys are sharing.

[00:38:40] So, I think that a podcast is a really powerful vehicle to bring people behind the curtain in a way that they wouldn’t otherwise get. So, I think it’s really helpful. I think that it’s not toot my own horn from my own episode, but I think it says a lot about what you guys are trying to accomplish that you would bring somebody in whose literal job it is to cross examine you on a stand and try to listen to that perspective too, because I think that by bringing me on and having me tell stories as much as I could, I’m letting people into the experience of this job, and that’s helpful.

Yeardley: [00:39:15] I totally agree. I think it’s really helpful. It’s also fascinating to hear how you do what you do. And that no matter who you’re defending, your job is the same, and that is to put on the best possible defense. That’s everything. I have a similar phrase in acting where whether I land a job that’s five lines or I’m the star of the show, my job is the same, and that is to deliver excellence to the best of my ability. When I decide that the job that’s five lines is worth less than the job where I star in it, then I’m an asshole and now I’ve dropped the ball and nobody wins.

Lissa: [00:39:58] That’s right. That’s what I find in a lot of my lower-level cases where I’m trying misdemeanors. The cops will get on the stand sometimes and say things like, “Well, I was just done with my investigation.” I’m like, “What would you have been done if it was a murder, because it’s the same burden in the courtroom? So, go do your job.” That is where if they think, “Oh, it’s just good enough,” that’s when things fall through the cracks. That’s when people get falsely convicted. That’s when defense attorneys get really stressed out, because we’re sitting on a case where someone didn’t do this, and now we have to prove it against the state that has a ton more resources than little old me. I fight, but I’m outgunned by the very nature of the system. If you can be vigilant and deliver excellence on all sides, then the system works, and it’s a really, really good one, one that I’m happy to be a part of as long as there’s cops like Dave and Dan who want to do this right, and that’s required for the system to work well.

Dan: [00:41:00] Thank you.

Lissa: [00:41:01] You’re welcome. I have a lot of respect for you guys.

Dave: [00:41:04] Likewise.

Lissa: [00:41:04] Thanks, Dave. I really appreciate you guys trusting me to come on. I know that I’m the first defense attorney that you’ve had on. So, I took that very seriously, and I’m grateful that you guys let me do it.

Yeardley: [00:41:14] I loved this conversation, Lissa. I loved it. Thank you for your candor and your humor. You’re so funny. This was great.

Lissa: [00:41:24] That’s really nice to say. Thank you.

Yeardley: [00:41:25] Thank you.

Dave: [00:41:26] Absolutely. It was a pleasure.

Next week in The Briefing Room, Dan, Yeardley, and I are joined by Paul Holes, to talk about interview techniques. We’ll separate fact from Hollywood fiction as we discuss, what works when you’re trying to get to the bottom of what happened?

[music]

Yeardley: [00:41:45] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith, and coproduced by Detectives Dan and Dave. This episode was edited by Logan Heftel, Soren Begin, Christina Bracamontes, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dave and Dan: [00:00:20] Welcome to The Briefing Room.

[Briefing Room theme playing]

Dave: [00:00:35] In today’s Briefing Room, we have, of course, Yeardley-

Yeardley: [00:00:39] Hello, Dave.

Dave: [00:00:40] -and Dan.

Dan: [00:00:41] Hello, team.

Dave: [00:00:43] After last week’s discussion about stop and frisk, we thought, “Let’s have a defense attorney on our show.”

Yeardley: [00:00:49] Yeah, someone who scrutinizes law enforcement investigation of a crime from a different angle than the DA does.

Dave: [00:00:57] Yeah. So, we’ve asked someone who works in our town to join us today. Please welcome defense attorney, Lissa.

Lissa: [00:01:03] Hello.

Yeardley: [00:01:04] Hello, Lissa. We are so pleased to have you. Thank you.

Lissa: [00:01:07] I’m so excited to be here. I’m honored that you wanted to have me on and talk with me.

Dan: [00:01:12] So, who are you charging these billable hours to?

Lissa: [00:01:15] I’m billing it all to Dave.

[laughter]

Yeardley: [00:01:19] Perfect. That works for me.

Dave: [00:01:21] It might surprise our listeners to know that a cop and a defense attorney can be friends. And not only friends, but we’re respectful of each other. To me, it’s a perfect example of the way things should work. It’s not personal in the courtroom. She’s doing her job, I’m doing mine. Truly, I appreciate the role defense attorneys have in the system. And early in my detective career, I had heard about Lissa.

Lissa: [00:01:51] Oh, really?

Yeardley: [00:01:52] Your reputation preceded you.

Dave: [00:01:55] You have a reputation is that you will fight and you will write lots of motions to suppress.

Lissa: [00:02:00] I do. Well, don’t do shit I have to suppress then, Dave. [Yeardley laughs] I won’t have to write it. [laughs]

Dave: [00:02:07] I get it. That’s why I just started making stuff up. [Lissa laughs] It’s more believable in court.

Lissa: [00:02:11] Well, now I’m going to cross examine you on that.

Dave: [00:02:13] Yeah. Right. [Lissa laughs]

Yeardley: [00:02:14] There you go.

Dave: [00:02:16] I’ve worked with and against Lissa, [Yeardley laughs] with the common teammate always being truth.

Lissa: [00:02:25] That’s right. Dave, are you going to cross examine me now?

Dave: [00:02:28] God, I’ve been waiting for this for years [Lissa laughs] and you are under oath. I think it’d be useful for us to get your CV, your background, and the career path of Lissa, and how you’ve landed where you are today.

Lissa: [00:02:45] Okay. Well, after law school, I was a prosecutor for just under four years. While I was a prosecutor, I tried all variants of misdemeanors and some felonies and handled a variety of different cases. I spent a year as a prosecutor doing solely domestic violence prosecution. So, that was a specialty that I had while I was on that side.

[00:03:14] In about 2012, I switched over to the defense side and have been doing retained and public defense ever since. The majority of my career is retained defense, but over the past year or so, I’ve started doing some court appointed work in various courts locally and the state level and federal level. I also do some victims’ rights representation, actually, stalking orders, protective orders, and litigating those sorts of cases. So, that’s my general practice.

Dave: [00:03:49] Like I said, Lissa and I have squared off where she was the defense attorney on a case that I had investigated, and I think at least once I’ve testified for the defense in a case that you were the defense attorney and going against your former employer, your old office.

Lissa: [00:04:09] Yes, I have to frequently litigate against my old office every day. A lot of my court appointed work and most of my retained work is against my former coworkers, some of whom I’m still very close friends with, but they’re my opponents when we go into court.

Yeardley: [00:04:26] If you watch any scripted procedural television show, you’ll see the lawyers go at it in the courtroom head-to-head, and then go out and have a beer together, and I always thought, “Is that real?” Is that real?

Lissa: [00:04:41] It is. For me, it is. Not for every defense attorney. The way that I practice it is, it can’t be like that with me and all of my opponents. There are some opponents who probably would not want to have a beer with me, but that might be mutual.

[laughter]

Lissa: [00:04:57] But there are several that I litigate against on a daily basis that I know are good people, and I’m happy to have as colleagues, and I hope that they feel when we go to court, I have a client to defend, and I’m going to fight them, and then I’m going to shake their hand afterwards. That’s how I try to practice with people who can practice that way with me.

Dave: [00:05:19] Lissa, just to get it out of the way, you’ve got some constraints about where you can go in discussing specifics. Can you just explain where your boundaries are when you come on a show like this, people hear from us, the detectives, and we’re giving them facts and intimate details? You have some constraints.

Lissa: [00:05:40] Yes. So, I cannot talk about specific cases or clients that I have defended. There are rules of professional conduct that lawyers have to abide by where I can’t reveal client confidences or talk about certain or any cases really, but I can talk about defense work in general, cross examining officers, and just my job and my experiences.

Yeardley: [00:06:09] That’s fair. When people find out you’re a defense attorney at a dinner party where they don’t already know you, probably they want to ask you, “How do you defend somebody that you suspect is guilty?” So, of course, that’s my first obvious question.

Lissa: [00:06:23] Sure. It doesn’t impact how I defend them. Whether or not a client tells me I’m guilty, it doesn’t change my duties to defend them. Guilty people have rights, and innocent people have rights, and those are the same rights. People ask me that. That’s usually the first question, especially if there’s a case that I’ve been doing that is in the press locally or is emotionally charged in some way and people say, “How do you do that? How do you talk to those people, and how can you defend what they did?”

[00:06:57] I’m not defending what they did or didn’t do. I’m making sure they get the process that they are do. The more emotionally charged an accusation or a case, the more that person needs me to put any emotion aside and defend them. If it’s a really, really heinous accusation that someone has launched against someone I’m defending, it’s my job to put that aside and see if they do have a defense, regardless of the emotional dynamics in the case. The more heinous the case is the more that’s needed, in my opinion.

Dave: [00:07:41] Lissa, I can say which of our Small Town Dicks Podcast episodes you were the defense attorney on, correct, since we don’t actually name the people involved?

Lissa: [00:07:51] I don’t know the answer to that, honestly, but I don’t think I can say which ones they are. I’m sorry, Yeardley.

Yeardley: [00:07:57] No, don’t be.

Dave: [00:07:58] I was going to tell her how offline you’ve always told me, they all confessed and said what a great Detective Dave was.

[laughter]

Lissa: [00:08:07] Mm, prove it, Dave.

[laughter]

Dave: [00:08:09] Right.

Lissa: [00:08:11] Because you ain’t got that. [laughs]

Dave: [00:08:12] Right. Maybe that’s not the case and I’m making that up.

[laughter]

Dave: [00:08:17] But, yeah, it’s always an interesting dynamic, because I don’t immediately know– When I arrest somebody, usually it’s a week or two, three weeks later where I find out who’s representing that person. So, it’s rare for me to go into an arrest already knowing which defense attorney I’m going to be dealing with. But there are times where I’ll get like a text message from Lissa and she’ll say, “Oh, hey, I read one of your police reports recently.” And I’m like, “Well, which one?” And she’ll say, “Okay, well, I guess, I’ll be seeing you soon.”

[laughter]

Dave: [00:08:50] So, it’s an interesting dynamic to be friends with a defense attorney, because there’s sometimes where even me on the police side, I’m like, “Hey, is this off the record?” She’s like, “Well, Dave, you know, it’s not off the record if it’s going to end up in court. If it goes to the facts, then nothing’s off the record.” So, she’s always been respectful of that boundary and I don’t think that I’ve ever revealed anything that she didn’t know already.

Lissa: [00:09:18] Nope.

Dave: [00:09:19] It’s not like talking to the press though. When you talk to the press and you say, “This is off the record,” if they burn that, you’re probably never going to work with that journalist ever again, because they’re supposed to protect their sources. Defense attorneys are officers of the court, so they are bound to the truth just as much as we are with keeping the defendant’s rights in mind.

Lissa: [00:09:41] I think that’s something people don’t realize about defense work is, I know that it’s not a popular profession. I get a lot of emotional responses from people if they find out that’s what I do and they don’t know me, but I’m bound to my representations in court just as much as the prosecutors are. Just because it’s a defense attorney saying something, it doesn’t mean that we aren’t bound to say things in good faith to the court, we have to. I will not go before a jury and say something that I don’t believe.

[00:10:15] So, we are bound in the same way, even though we may not be looked at the same way by juries or by cops or by society. We’re two sides of the same coin in the same system and we have to follow the same rules.

Yeardley: [00:10:37] Lissa, why did you decide to switch from prosecution to defense?

Dan: [00:10:41] Money.

[laughter]

Yeardley: [00:10:45] Thank you, Dan.

Lissa: [00:10:46] So, there was a massive budget cut within my office. They cut a third of the office. And so, when I was in there, I thought I was going to be a career prosecutor, and I was happy to be a career prosecutor, and I thought that was going to be my path and my role. When I was a law student, they let me try a case. I went to a different county in my state and tried a case, and people came in because they wanted to see the new kid trying a case, because I wasn’t even a barred lawyer yet. And they said, “Wow, she even looks like a prosecutor.” And I was like, “Yeah, this is a role that fits me.” I feel good about this, I feel good about my work. I like working with cops, I like getting to know cops, I like figuring out search warrant issues, and going and seeking those from judges. I had a blast doing it. It was a great job to have.

[00:11:33] Then budget cuts happen and I wasn’t sure what I was going to do. But it was a really nice interview process, because everyone knew that there were people out looking that weren’t necessarily bad lawyers. It was 8 out of over 30 that were just out looking because of an external force of funding. And so, you weren’t going into interviews with people wondering. It was a known thing in our community that this was happening. And that’s okay.

[00:12:01] I was thinking about doing family law. I started working in private practice and started doing criminal defense and just loved it and just knew, “Okay, maybe I’m even a better fit for this than I was as a DA. Maybe I’m better suited to sit down and get to know clients and figure out how to defend them as opposed to figuring out how to prosecute them.” I think that’s turned out to be true. But because I used to be on the other side, I think I can maintain friendships and professional relationships with people on the other side, because they’re not an enemy there where I used to be.

Yeardley: [00:12:40] Right.

Lissa: [00:12:41] So, I can use that perspective and just– and I’ll tell clients that too. I’ll tell people that are seeing if I can be their attorney that too. If you want 100% cop hater, I’m not your attorney, because there are people trying to do their job. And if they make mistakes, I’ll take them down if I have to fight for you, because that’s my job. But they’re people and they’re just trying to do a job. I think I have a different perspective being on both sides of it.

Yeardley: [00:13:08] Yeah, sure.

Dave: [00:13:10] I’ve had people that are not familiar with the system and they’re like, “Well, this one time I saw this cop got up and lied on the stand,” and I’m like, “It’s just so exceedingly rare for a police officer. I’m not saying it didn’t happen, but I recognize there’s a difference between getting it wrong, like testifying inaccurately versus intentionally deceiving and lying and just being factually. I don’t care about the facts. This is what I’m saying.” People that just say, “Well, that cop just got up and lied his ass off on the stand.” I’m like, “God, there’s so much to lose.”

Lissa: [00:13:49] There’s so much to lose. I’ve seen it happen. I know that because I’ve proved it. But I agree. It’s not like every cop gets on the stand and just lies from beginning to end, and they just all lie and all cops are liars. That’s what I say like, “If you want a cop hater, I’m not your defense attorney.” There are times where cops can get corrupt and then the thing is, you find a trail of cases, because then they start doing it all the time. That doesn’t mean all cops are lying. That means that that person was really problematic and they started lying and they got away with it, and so they lied some more.

Dave: [00:14:24] And we don’t like working with them either.

Lissa: [00:14:26] And you don’t like working with them either because how the hell are you supposed to have community trust when you got these people wearing the same badge you have? It doesn’t help.

Dan: [00:14:36] Law enforcement in the United States is very unique. In that, someone from the neighboring jurisdiction can say, “Hey, I’ve got probable cause to arrest somebody who’s in your city. Will you go grab them for me?” This is a tug of war you have, because one hand, you think, “This is my brother in blue and I should automatically trust this person. They took the oath and they took it as seriously as I did.” That’s a battle that you have. A lot of times I’d say, “Why don’t you send me your report, so I can read it?”

Lissa: [00:15:08] Good.

Dan: [00:15:09] Because if I don’t know you, I’m not going to just go out there. I mean, what if this person resists arrest and then I have to use force against them? And God forbid it, it turns into something more than just me putting hands on them when all I had to do is say, “Hey, send me a report real quick.”

Lissa: [00:15:27] Trust but verify.

Dan: [00:15:29] Yeah. That’s one of the unique things about law enforcement in the United States is, is that’s very, very common. That’s why sometimes, when we’ve had murder cases that have our suspect has crossed state lines and you call up these neighboring jurisdictions and say, “Hey, my suspect is rolling through your state right now. If you have contact with him, can you grab onto him?” And they’ll say, “You got a warrant, because they don’t know us from Adam?”

Yeardley: [00:15:54] Mm-hmm.

Lissa: [00:15:54] That’s right. You don’t know if you’re talking to one of the good ones or one of the problematic ones. I think it’s more problematic to not acknowledge that there are problematic cops in defense of a thin blue line and in defense of a brotherhood, which I understand why that exists and I understand why there needs to be trust within agencies, and you need to be able to trust your fellow officers because of the situations that you’re put in. But if you don’t acknowledge internally if there’s a problematic person and you defend them or you hide that in defense of a thin blue line, it hurts everyone, including you and your ability to do the job, because once you lose the trust of the community, you can’t effectively police them anyway.

Dan: [00:16:42] Yeah, that social contract is void.

Dave: [00:16:45] Right. We police with their consent.

Lissa: [00:16:47] You have to make the hard, courageous decisions to keep that social contract, and no one’s hoping you do that more than defense attorneys. We want your investigations to be good. We want prosecutors to only bring the cases they can prove in court, and they need to be able to trust their officers to bring them the good cases. The trust has to extend and there has to be people of conscience on both sides. That’s what I mean by that. If you hide things for the short-term gain of preserving an image in defense of a thin blue line, you’re only going to fester corruption further and hurt everybody. So, what’s the point?

Yeardley: [00:17:32] Since you guys have said you’ve been on opposite sides at a trial before, is it nerve wracking for either one of you? For Dave, you to be grilled by Lissa and Lissa, for you to tee up questions for Dave?

Dave: [00:17:45] For me, it’s not adversarial or it shouldn’t be. It does not make you look credible to be fencing with the defense attorney. What everyone’s going for is the fact. We’re just trying to establish a fact and the truth. There are certainly times where and I’m not speaking about Lissa, I’m speaking about other defense attorneys who try to be crafty, and you can see where they’re going, and they’re trying to paint you into a corner, and they are leaving out context about things that you’ve written in a police report. I always recognize that, “Okay, I see where you’re going with this.”

[00:18:21] There have been times where there’s been a little bit of that adversarialness, but I think juries also recognize when a defense attorney is trying to eliminate a portion of your answer, even though the whole answer is the truth, they just want you to repeat the last five words of that answer.

Lissa: [00:18:40] I agree and that’s not my style. I don’t think it’s an effective style. I will never confess fear of Dave. I will never be nervous crossing you. [Yeardley laughs] No, I don’t mind crossing him at all. For me, in a lot of the cases that I end up in that are the level of crimes that Dave investigates, my issue or what I’m trying to establish for the jury isn’t necessarily about the police. These are cases with witnesses that the case will hinge more upon those witnesses’ credibility or what they are able to testify to than what Dave or other law enforcement witnesses are going to be testifying about. I would have no problem if Dave got on the stand and he did not investigate a part of a case that I thought he should have. I would just ask him, “Did you do this or not?” But I also know that Dave would say yes or no.

[00:19:36] He’s not married to a certain fact. He’s just there to say what happened. And so, if Dave’s on the stand with me in a case, we can probably get through it pretty quickly. I think if the times Dave has been on the stand with me, we did get through it pretty quickly.

Dave: [00:19:52] Absolutely.

Lissa: [00:19:53] My issue that I was trying to demonstrate to the jury wasn’t about Dave’s credibility. That being said, Dave’s my friend, but if I did have an issue with Dave’s credibility on a case, he’s well aware that I would say it in front of the jury, but I haven’t had to do that.

Dave: [00:20:10] Right. Dan can probably recognize this as well. You get these police officers who like to spar with defense attorneys and want to fight, won’t even relent on a suggestion that your investigation was incomplete, even if it’s something small, where you’re like, “You know what? I probably should have done that, but I didn’t.” You take the fuel out of the fire, if you just concede a good point and I’m sure Dan’s been on the stand when he recognizes that he’s being asked some questions about, “Well, why didn’t you do this?” There’s probably a good reason why he didn’t. And maybe the defense attorney is putting on a show. There’s also times where you can be like, “That’s fair. I did not do that. That’s a great idea. Next time I will.”

Dan: [00:20:57] I think in a situation like that, and I have been, I think any police officer who’s actually investigated cases that made it to court that didn’t get dismissed, because a lot of cases do get dismissed because of lazy police work on the front end. But when you’re getting cross examined by a defense attorney and they bring up something that is probably a minuscule part of this case, if you make that into a bigger deal than it is, you’ve just done the defense a favor.

Lissa: [00:21:26] That’s right.

Dan: [00:21:27] If you just admit like, “You know what? Hindsight, I wish I would have done that.” That’s what prompts a prosecutor, if they know the case as well as you do to on redirect, come back to you and you can clear up that point. But I think what a lot officers do when they’re on the stand, they take things personally they’re not prepared. They haven’t reviewed their case well enough, so they’re not versed in their case where they don’t have to keep diving into their report. If you know your report and you know the case, I think it’s very easy for you to testify truthfully, and accurately, and realize that they’re trying to sow seeds of doubt in your investigative abilities, the path you chose in your investigation. And that’s where I see– I can’t even say younger officers.

[00:22:22] I’ve seen 20, 25-year veteran officers who just got eviscerated on the stand, because they’re not prepared and they take everything personally. The truth is the truth. So, just tell the truth. That’s really the bottom line. Just tell the truth.

Yeardley: [00:22:39] Right. So, Lissa, you had said a couple of minutes ago that if you had something to call Dave out on you, you wouldn’t have any bones about doing that. Does that quality in your work make you that frank in your relationships?

Lissa: [00:22:59] Yes. [laughs] What you see is what you get with me. [Yeardley laughs] I don’t know how to be anything else but me. And so, I’m not going to get up and be anything but authentic when I’m in court. And the people that I have in my life, no matter what they do, I think know that about me.

[00:23:19] When I’m in court, I have a client that I am trying to make sure gets what’s due to them. If that means I have to cross examine Dave, I have no issue doing that. I have no problem cross examining officers that I grew up with as a prosecutor. There are certain officers now that I took them before a jury and asked a jury to convict on their word that now I’m cross examining them. The ones that come up and shake my hand afterwards and say, “I really respect how you just ask me those questions,” probably did a better job for the state than the ones that get offended by what I’m doing.

[00:24:01] What I’m doing is trying to show the jury what the facts are, not whether or not this officer is a good person or a bad person. Any more than the states trying to show whether or not my client is a good person or a bad person. They’re trying to show what acts happened and how it happened, and they’re trying to see if they can meet their burden of proof. If I’m in trial, I don’t think they can. And so, it’s my job to point that out.

[00:24:32] The officers that end up doing the best job in trial and coming across is the most authentic are the ones that just say, “No, I didn’t do that.” Because if you think about it, where am I going to go with that? “So, Dave, isn’t it true that you didn’t do this part of the investigation?” “Well, no, I didn’t.” It’s like the wind draw out of my sails at that point. But if they come back at me and say, “Well, I didn’t do it because of this, this, and this,” well, I know they’re investigative techniques and I’m going to call them out and say, “But you should have, because if you would have X, Y, and Z.” If you just concede, then you concede. The jurors can write it down in their notebooks and we can move on with the trial.

[00:25:12] There have been times where I’ve had officers who have had trouble with me crossing them when before I was putting them up as state’s witnesses. We’ve worked through it. I think most of the time if I’m in court, the officers know that I’m going to be talking about my case and I’m going to be taking them on in the same way I’d be taking on any other witnesses. The ones that can’t understand that, I don’t really associate with. Maybe those are the ones who wouldn’t go out for a beer with me.

[laughter]

Lissa: [00:25:42] But the ones that will understand that they have a job to do, and I have a job to do, and we’re both just trying to do that.

Dan: [00:25:51] Dave and I, our step mom worked in the DA’s office. Then when a bunch of attorneys from the DA’s office went into defense work, she went to work for them. So, she was on both sides. I knew these guys as prosecutors, and then I also knew them as defense attorneys, and it was just never a big deal to me. They just had a different job to do. They were on the other side of it now. Now their job was to defend. These were very talented, smart attorneys. To me, it was valuable knowing that there’s men and women on both sides of that that it’s about the truth.

Lissa: [00:26:27] There really is.

Dave: [00:26:45] I think people might be curious about, “How does a case come to you?” Say, we’ve got a big-time crime and it lands in your lap, walk us through how you get that, how you start evaluating it, how you strategize, and how you put a game plan together on how am I going to defend this person?

Lissa: [00:27:04] Sure. So, for a big-time crime that’s retained, sometimes defense attorneys can represent people who think they might be under investigation, or they’ve been contacted and told they’re under investigation, or a search warrant has been executed on their house. That’s a pretty good sign. Something’s coming down the pike. And so, you can call a defense attorney for legal advice, if you’re under investigation and you haven’t been charged yet. So, in those types of cases, a potential client or a family member will call me and say, “I’m under investigation, I need some legal advice.”

[00:27:42] What I’m doing in those cases is either communicating directly with the detective on the case or communicating with the DA. Because by the time you’re in major crimes, a lot of times, as I’m sure your listeners know, and Dan and Dave definitely know, they’re in contact with prosecutors from the beginning on some of their bigger cases, asking them for advice and working with them to get warrants. And so, a lot of times, my first call is to the officer or the detective to say, “Who you’re working with on this one?” And they’ll tell me, and then I can say, “Okay. A lot of times, at least, I hope my reputation is that you don’t have to go chase my clients around.”

[00:28:21] If I know somebody’s under investigation and an officer calls me, I will be there with my client to have them surrender if they will extend me that professional courtesy. Most of them do. And then I can negotiate somebody going in to meet with the officer and get arrested right there and get taken into custody and it helps to have somebody that they have been working with that provides some comfort in a really stressful situation. And then the prosecution begins, and we start litigating.

[00:28:51] If somebody’s already in jail, it’s usually a family member that calls me and says, “I have a family member in jail. We’re looking for an attorney.” If they’re in custody, I’ll go visit with them and see if we’re a good fit to work together. I just sit down and get to know them, because I think it’s a very tempting instinct on anyone’s part to see this person as the accusation that’s happened. And they’re not. They’re a person that’s in the system that needs help.

[00:29:24] I don’t know what kind of help I’m going to be able to provide for them. It’s different in every case. I don’t go in and just say, “Okay, I see you’re accused of this, so I’m going to look at you in that lens now.” You are a person I’m going to sit down and get to know and figure out how this all happened and see if you can trust me and we can work together, and I just get to know them.

Yeardley: [00:29:45] Is there anything in that assessment process where you feel like, “If this happens, if I get a sense either that they’re not being truthful or they say something in a tone or tell us what the phrase is or something that you’re like, “That’s a red flag, this is not going to be a good fit.” Are there any absolutes like that?

Lissa: [00:30:06] The only time it’s an absolute is if they’re so upset that they can’t communicate with me at all and I’m just not the right person to be with them in this situation. That’s okay. I’ve done this a while, so I am used to talking to people in really stressed-out situations when they’re really scared. And so, most people I can get along with just fine, and we can sit down. I don’t go in and just immediately say, “Okay, tell me everything that happened.” I don’t even ask, not when I’m first meeting them, because I just want to get to know them and figure out what information they want. It’s different for every client. Some people are more concerned about things that I wouldn’t even think of, if they were arrested and I wasn’t there on some of my court appointed cases, sometimes they have a pet that needs to be fed.

[00:31:02] If I’m not talking with them about that in the first meeting, I’m not getting to know them, because they don’t want to talk with me about anything else yet. They want to make sure their dog is okay. All right, that’s what we’re talking about today, and that’s okay. It’s figuring out where they are and what they need from me in that moment. And then if they can trust me, then I can start helping them make decisions. But I just look at myself as a person with some specialized knowledge that can come in and just be with them in that situation and help them figure out what they’re up against, because a lot of times, they don’t know.

[00:31:33] Most people think that people accused of really heinous crimes are just a total asshole to everybody. I don’t talk to assholes all day long. I talk to people who are really scared. It’s easy for people to not think of someone in a jail cell as scared. They think of someone in a jail cell as, “Well, something must have happened and it must have been pretty awful, or you wouldn’t be in the cell.” And that’s not always the case.

Yeardley: [00:32:08] Lissa, what’s the first question you ask when you sit down with someone to get to know them?

Lissa: [00:32:14] I say, “What information can I give you right now? I talk for a living, so I can talk with you about the law and technicalities all day long, but some of that stuff doesn’t matter to you right now. So, what information can I give you right now to just start this off and help you feel a little bit more informed in a situation where you don’t have a lot of information?” A lot of times people just want to know, “Are they going to get out? What’s going to happen to them? Where’s their family? Does their family know? What is going on?” They’re in shock. And so, I don’t dig in right away. I don’t think it helps them trust me. I don’t think I’m going to really get very far until they trust me. And so, I just try to let them guide and it helps me understand what their fears are and what their priorities are, and then that helps me figure out how to defend them, because I’m their lawyer, and I can take a lot of actions on their behalf. But Criminal defense attorneys, their representation of their clients is really directed by the client.

[00:33:30] The rules are set up to where I make strategic decisions, I determine whether or not I’m going to call Dave on the stand and cross examine him. I determine if I’m going to file a motion to suppress something Dave did or my client’s statements, whether or not they go to trial or whether or not they take a deal is totally up to them. It doesn’t matter how much legal advice I give them. It’s their choice, because they have to live with the consequences of that decision. And so, they’re really directing. They’re the voice of the defense. And so, I’m just trying to figure out what that is initially and what their goals are, and then I can figure out what I can and can’t do for them.

Dave: [00:34:11] Obviously, there’s lots of negotiation that goes on in the weeks and months after a grand jury indictment. This is just out of sheer curiosity on the law enforcement end, but on some of these big ones where the initial offer is 30 plus years. You have to bring that to a client. Walk us through the mood of that room. I’ve had cases where the initial offer is dozens of years, and you know that you’re sitting very good as far as a prosecutor. Their perspective, they feel pretty good about the case if they’re offering decades in prison. But on the defense side, we never get into that room, so we never see what that looks like.

Lissa: [00:34:57] I’m going to give the general lawyer answer. It depends. That’s what we always say. But it does depend on the case. So, a lot of times I’ve already talked with clients about what their potential exposure is, given whatever the charges are. I try to tell them what I think other cases have settled for in certain prosecutors’ offices or other cases that I’ve had that are similar that prosecutors have offered what types of practices specific prosecutors have on how they structured negotiations, because each of them are in charge of their own caseload. They all answer to the elected DA, but they’re in charge of their own caseload and they’re determining the plea offers that they’re going to make. And so, they have their approaches to situations.

[00:35:48] I just try to prepare my clients for what potentially could happen. Then by the time, an offer comes down in a big case like this, it’s not going to be a week after. On misdemeanor caseloads, you can get offers at arraignments from these DAs that just say, “Take one misdemeanor, I’ll dismiss the other.” With these bigger major crimes, it’s not like that. Offers don’t come for months, sometimes. And that’s okay, because a lot of times when– well, I guess I’ll answer what the mood is like in the room first. It’s anticlimactic because I’ve been having theoretical discussions with them up until the point where a plea offer might be coming to prepare them, “Look, at some point, the DA is going to make you an offer. I will come in, and I will bring it to you, and then I’ll discuss your options with you.”

[00:36:39] It doesn’t mean that you have to take it. You order me. I counsel you, but you order me what to do. That’s how it should be. By the time I’m discussing a plea offer with any client, it’s not really that eventful of a meeting, [chuckles] because we’ve run so many potential scenarios. And then I tell them most of the time, “Just sit with it for a little bit. Now it’s actually here. Trial is not tomorrow. Just sit, let this percolate with you for a little bit and then ask me questions that you have about it.” So, the conversations prior to that and how I approach cases are more stressful than the actual by the time we’re getting down to brass tacks and numbers.

Dave: [00:37:21] Moving on from that, there comes a time where it’s time to, “We’re going to trial or we’re taking the offer.” I imagine there’s two buckets here. One, where you’re like, “I suggest we go to trial.” There’s others where you’re like, [laughs] “We’re not sitting pretty. [Lissa laughs] I’m telling you to take the deal” type thing. When somebody finally says, “You know what? I don’t want the deal,” and you’re sitting there with perceived apprehension about they got a mountain of evidence against you, what that does to you work mode wise, like does it flip a switch for, Lissa?

Lissa: [00:37:58] No, because they’re the ones who have to serve the time. And so, I’m already working the case from two angles. Anytime I take one. I’m working up the case. I’m looking at witnesses, I’m investigating possible defenses, because they can’t evaluate the plea offer until they know what their defense would look like anyway. And so, especially on some of these major cases, the cops are still getting evidence. Things are still being sent to the crime lab. The investigation is still underway. If my client is indicted, they’re still getting stuff to me.

[00:38:35] So, I figure if they want to go to trial, then I’ve prepared it. If they want to take a deal, then I’ve prepared it, so they can evaluate the deal. It’s a no-lose situation for me to take a really active approach to defense, which I do. Some defense attorneys don’t, I suppose. [laughs] Maybe that’s why people think I’m aggressive, but I actively defend cases, because once you’re at this level, the cases aren’t going to stop moving as soon as someone’s charged. Witnesses are still going to be talking to people, they’re going to be talking to the DA, they’re going to be talking to the cops, they’re going to be talking to your investigator, sometimes each other, when they shouldn’t be. It just depends on the case. And so, you have to move with the case as it’s going, which is why prosecutors don’t make offers in the beginning of these cases, because they don’t know everything they have, either.

[00:39:29] So, both sides get involved. The detectives are still doing follow up. Things are still moving, and we see where it settles and then go, “Okay, now we both know the universe of information.” The state does and the defense does. Is this reasonable or not? If it’s not reasonable from the prosecutor’s side, then I go back to them and I say, “That’s not reasonable. That’s not an offer.” And then they tell me, “Well, I’m not going to bid against myself. I’m not going to make you another offer.” And I say, “Okay, well, see you later.”

[00:39:57] Part of being known by my opponents is they know what meeting we’re having pretty quickly. So, if I come in and say, “Look, this isn’t an offer and here’s why,” they’ve had that conversation with me before. They understand how I defend cases.

Dan: [00:40:21] You talk about trial prep, and probably one of the first things you do as a defense attorney, I would imagine, is read the report or the reports. I’ve heard from other defense attorneys that I know that when they read a report, one of the first things they do is they look at who actually wrote the report. Working in a small area, defense attorneys, they get exposed to certain officers more than others or they’ve had history with a certain officer. Are there times when you read a report and you see the name at the bottom and you start licking your chops?

Lissa: [00:40:58] [laughs] Yes.

Yeardley: [00:41:00] Because it’s not a good report, or because it is a good report?

Dan: [00:41:03] Because it’s probably not a good report, and there are a lot of questions left unanswered.

Lissa: [00:41:11] Yes. The cops that do those lazy investigations are known. They’re known by the cops who don’t do lazy investigations, who are probably just as annoyed with them as we are, because they end up with cases in trial that maybe didn’t need to go to trial. Had they just done their job upfront? But, yes, there are certain officers where, if I see that they’re on a case, I have background with them and I know whether or not they do it right or not, most of the time.

Dan: [00:41:41] And you can say Dave’s name.

[laughter]

Lissa: [00:41:46] Yes. Whenever I read one of Dave’s reports, I’m like, “Oh, Jesus.” No, [Yeardley laughs] that’s not true.” I know certain ones that are frankly lazy or they’re not very good at their jobs. I know that I’m going to go investigate, and I’m going to find witnesses that they should have found, and I’m going to find evidence that they should have found. And they didn’t. Had they done that, maybe the case would have turned out differently. But instead, I have to pick up the baton and continue the investigation that didn’t happen. But that’s law enforcement is a job like any job. There’s going to be people who are really, really good at it, and there are going to be people who are in the wrong profession, and then they’re going to be people who are kind of middle of the road. That’s okay. The system is made up of people. And so, it’s just going to be different. But, yes, there are a few where I lick my chops.

Dave: [00:42:33] I imagine there somewhere you read the report, look at who wrote it and say, “We’re in for a fight right here, because I’m familiar with this person’s work.”

Lissa: [00:42:42] Yes, there are certain times where I’m reading and I see the name at the bottom and I go, “Well, it’s not just going to be the report. There’s more evidence coming. They’re going to be doing follow up, they’re going to be doing their job.” And that’s okay. Defense attorneys are members of the community where they defend in. We don’t want bad law enforcement in our own communities. We’re parents and we’re married to spouses with jobs in the community. We don’t want law enforcement to not do their job. It benefits our clients when law enforcement does their job right. It stops false convictions, it stops false charges, it stops cases from going into the system that could have been handled in the field.

[00:43:27] We don’t want mayhem and lawlessness either. [laughs] We’re just there as quality control because the cops weren’t there when a lot of crimes happened anyway. They’re there collecting the evidence after it happened. And so, sometimes, because they’re human, they’re going to get it wrong. They’re out there to make a call, to make an arrest, not to prove it beyond a reasonable doubt and that is so different. Sometimes, they make a call and they’re trying to do the right thing and it’s not the right call. Well, then the community should be happy that I’m there to step in, if the cops are trying to do their job, but they make the wrong call. The system has to have everyone to work. So, I don’t blame it on the cop necessarily, if they make the wrong call. There are some cops that make a lot of wrong calls, and then it’s a problem.

Yeardley: [00:44:35] I was thinking about when you sit down with your client that you’re going to defend and you need to get to know them, when you were in school, did you take a psychology course?

Lissa: [00:44:46] I didn’t.

Yeardley: [00:44:47] You’re assessing a lot of nuance in those interviews and throughout the course of whatever the case is, you’re sort of this de facto counselor.

Lissa: [00:44:57] Yes. I’m the one person that they can talk to candidly. The system is built that way, so that you can be honest with your lawyer. But as a human, and you’re sitting in the cell, and someone you’ve just met walks in and they say, “Okay, tell me about the worst day of your life. I’m betting it’s this you’re sitting in jail. Nice to meet you.” They’re not going to tell you anything right then, if that’s how you approach it. And so, I’m just assessing whether or not when they trust me enough to tell me certain things. And so, that’s different for every person and every client. It’s just sitting down. I try to think, “Okay, what would I want if one of my kids were in trouble? What would I want this lawyer to do for them?” “Okay, I’m going to go in and just try to talk with them like a person and figure it out.”

[00:45:51] Maybe that’s figuring out that they’re going to go to prison. Maybe that’s figuring out that they’re innocent. I don’t know what I’m walking into, but I know that I’m just going to sit with them and be with them in that situation, and then just see where it takes us. I don’t have a system outside of just figuring out what they need from me in that moment and then I work with them throughout. Maybe I should have taken a psychology class.

Yeardley: [00:46:15] No, I was just curious. Dan and Dave, when they describe what it’s like to interview a suspect or a victim, there are so many micro-assessments of what the body language is, what the inflection is, what the lack of inflection is. All of these cues that you get that are unspoken, that you, Dan and Dave is detectives, and now you as well, Lissa, need to read in order to put together a picture that then you can say, “This is the picture I got. Is that in fact, what–?” Is that an accurate representation of what you think happened?

Lissa: [00:46:54] As far as assessments are going, I’m just looking for when they let their guard down and they trust me. That’s going to be a comment that they make of, “Wow, I’m really glad that you’re here and I really feel like I can talk with you.” Okay. Rapport is getting built to where they feel like maybe they can confide in me what happened. Maybe it’s different than what the police have in their reports, but they’re afraid to tell me, because they don’t know me from Adam. So, if they can start relaxing, I try to crack some jokes, see if I can get them laughing, and then I say, “See, you laughed, even though you’re in jail, because this is not the end of your life.”

[00:47:35] You can laugh, you can crack jokes with me, I’m a person, and that’s okay. We’re just talking person to person right now. You’re allowed to have some dark humor in the situation, you’re allowed to talk with me, just open and candidly whenever you are ready to do that. And that’s disarming to a lot of people, anyway. A lot of people, I think, are afraid that you’re going to judge them and I tell them, “In these situations, it’s just not my job to judge you. It’s my job to sit with you and help you make decisions. That’s my job. And so, we just have to figure out what decisions we have to make together.” That usually calms people down and hopefully gets them to trust me, and then eventually, they talk when they’re ready. Every attorney-client relationship is different.

Dave: [00:48:20] See a theme there though? People talk when they’re ready.

Yeardley and Lissa: [00:48:23] Yes,-

Yeardley: [00:48:23] -actually.

Lissa: [00:48:23] -they do.

Yeardley: [00:48:24] Dave has said that a lot.

Dave: [00:48:25] Disclosures and victims and even suspects, when they trust you, when they feel safe, that’s when they will talk.

Lissa: [00:48:34] I totally agree with that from the disclosure side too, because I represent people who are trying to get protective orders against other people, and those aren’t easy meetings for them to have with me, but they talk when they’re ready, and that’s okay.

Dave: [00:48:49] You and I had discussed the other night when I approached you about coming on that we could also discuss some of your most proud moments as a defense attorney. I imagine you’ve got some victories out there. We don’t have to be specific about who’s involved, but for me, getting a conviction or not arresting someone that I thought I was going to arrest and then finding out, “Hey, you would have made a mistake if you had arrested him.” Those are the biggest moments of my career. I never want to convict somebody that was innocent. I imagine on a defense attorney side getting someone acquitted or charges dropped is a very, very righteous and rewarding feeling.

Lissa: [00:49:32] Yes. There’s a local rule in our courts where you cannot visually react to a verdict, if you’re in the gallery or if you are an attorney. I have a really difficult time following that one.

Yeardley: [00:49:49] [laughs] Literally, is it on the books, like a code of conduct, no reactions to any verdict?

Lissa: [00:49:57] Yes. And you’ll be instructed before a verdict comes down, the judge’s clerk will say, “No one in this gallery is to react. The parties are not to react.” That’s it. It is a really tough rule to follow, because everyone is invested by the time you’ve done battle like that. I’ve cried. [laughs] I’ve made gestures, small ones, because I really don’t want to get held in contempt. But by the time you’re there, it is really hard not to do that.

[00:50:31] What has surprised me about defense work, and something that I did not have any perspective on when I was a prosecutor, was that some of my biggest victories and proudest moments where I have truly, I think changed the course of someone’s life, because they have not been convicted of something or even had charges filed nobody ever knows about. Sometimes, it’s just me and the DA that know, and the detective, and that’s it. They don’t make the papers. They aren’t the flashy victories.

[00:51:05] When I think about what are the ones that really impact me the most, it’s people that are out just moving through society and not having this conviction on their record for something that they didn’t do, and I was able to step in and hopefully be working with a cop like Dave who might listen to me, because I know that Dave is the person that I could go to if I were representing a client that he was investigating and I could say, “Dave, I really have something here and I’d really like you to see it.” I know that he would at least sit down and listen.

[00:51:38] He may not agree with what I’m saying. He may have a totally different perspective on the case. But if you have good law enforcement on the other side who isn’t so invested in what they think is the truth and they’re willing to let a case unfold, then that’s how justice gets done. There aren’t many people who know about it except the people in the room when the detective decides not to arrest or the DA decides not to file.

Yeardley: [00:52:03] You’re like Superman catching the piano in midair before it smashes into the crowd of people on the ground.

Lissa: [00:52:11] I love that image. That’s exactly who I am, Yeardley. That’s why I’m going to tell everyone I am from now on.

Yeardley: [00:52:16] As well you should. [laughs]

Lissa: [00:52:19] I’m good with that.

[music]

Dave: [00:52:23] Lissa, I want to ask, if you’ll come back next week and talk with us a little more.

Lissa: [00:52:27] Absolutely.

Dave: [00:52:29] I know our audience will find this fascinating, and I know there are plenty of folks in law enforcement who should really listen. It’s all about respect, for yourself, for the law, for the suspect, the victim, the court, the process. That’s how you catch pianos in midair. So, until next week.

[music]

Yeardley: [00:52:50] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith and coproduced by detectives Dan and Dave. This episode was edited by Logan Heftel, Soren Begin, Christina Bracamontes, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:21] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Dan: [00:00:35] On this week’s episode of The Briefing Room, we’re talking about case law. Terry v. Ohio, a landmark decision that laid the foundation and boundaries for a police officer’s ability to detain and perform cursory searches of citizens. We’ll get into the background of Terry v. Ohio and we’ll discuss the relevance of the decision and how it applies to the streets today.

Dave: [00:00:58] So, it’s a case that occurred in Cleveland, Ohio, back in 1963. It was heard by the Supreme Court in 1967. So, you see kind of the delay in finally making it through all the appeals to finally make it to the US Supreme Court. But the basic gist of it is what people refer to as stop and frisk. There’s all kinds of discussions about stop and frisk and whether or not it’s constitutional, whether it’s applied evenly, those kinds of things, but a lot of situations that police encounter amount to a Terry stop. We call them Terry stops.

Dan: [00:01:38] One of the reasons we wanted to talk about this issue is to clarify what is legal under case law and what isn’t.

Dave: [00:01:44] Right. In this case in Cleveland, we have a plainclothes officer, his detail is working a foot beat. He walks around downtown in Cleveland, and he is specifically looking for shoplifters, pick-pocketers, robbers, people that are up to no good. 39-year police veterans, 35 of which he’s been a detective. So, this guy has a lot of experience people watching.

[00:02:14] On an October afternoon, he is on his foot patrol and notices two men who are about 300ft, 400ft away from him. He said that a lot of times he would just stop and watch people, just observe and see what they are up to. He doesn’t recognize these two gentlemen. He says that he sees these two men talking. One of them departs, walks down the street a little ways, stops in front of a store, looks into the window, walks a little bit further past the store, turns around, walks back, stares in the same store window, comes back to Mr. Terry.

[00:02:58] Terry then walks, does the same exact thing as his partner, Mr. Chilton, and goes up to the same store window, peers in the window, walks a little bit further past, comes back, looks in the window again, comes back down the street, confers with Mr. Chilton. Terry and Chilton repeat this each five or six times.

Yeardley: [00:03:21] Is the store open or closed?

Dave: [00:03:23] Store is open. So, this detective finds this to be suspicious behavior. I think that’s fair.

Dan: [00:03:30] What about you, Yeardley?

Yeardley: [00:03:33] I do, especially since you said the store is open. If you want to know what’s in the store, why don’t you go inside?

Dave: [00:03:39] Right. So, you talk about this officer with three decades, almost four decades of experience. He’s in his beat, in his neighborhood that he’s supposed to be patrolling. He has decades of trying to recognize suspicious activity. He sees this, and appropriately, his suspicions are aroused, like, “What are these guys up to?” A third person approaches these two gentlemen, and they talk for a little bit. And that person, the third person, walks away and goes in an opposite direction.

[00:04:13] This detective starts to pay more attention to this duo, Terry and Chilton, and thinks something’s going on. Are they about to do an armed robbery? He doesn’t know. So, he follows this group as Terry and Chilton, a little bit later, go the same direction as the third person who had approached them. They end up meeting back with this third person and this detective is like, “Okay, these guys are planning something. I’m going to go contact them.”

[00:04:45] This detective approaches this trio of people and identifies himself as a police officer. He’s at an obvious disadvantage. I mean, he’s outnumbered, he doesn’t have any back up there with him. He ends up putting his hands on Terry, spinning him around, and tells these three guys, “Hey, we’re going to go inside this business.” I’m guessing this officer wanted them in a more confined space to limit their movements and to ask the shop owner, “Can you call the police department, have them send a wagon down here? I need more bodies.” He performs a pat-down search of these three gentlemen.

[00:05:27] So, detective pats down Terry first, and he’s just patting the outer clothing. He doesn’t get intrusive, like going inside garments or anything like that, but he’s patting down for weapons. And inside Terry’s jacket coat pocket, he feels a pistol. So, he retrieves that, got one gun off of the three so far. He pats down Mr. Chilton, and Mr. Chilton has a gun on him as well. The third subject does not have a gun. So, two out of three have guns and it’s the two guys that this detective had been watching for many minutes. Terry and Chilton get arrested for carrying concealed weapons. At their trial, they go through a suppression hearing, basically saying, “This is a Fourth Amendment violation. This detective didn’t have the right to search us.”

Yeardley: [00:06:18] So, law enforcement’s right to stop and frisk these three men is the crux of this case. As in, does this detective have a reason to detain these gentlemen and pat them down or is that a violation of their right to privacy?

Dave: [00:06:34] Correct. So, when we talk about pat downs on a Terry stop, if I stop you on the basis of a Terry stop, which is reasonable suspicion, it’s not probable cause. It’s reasonable suspicion. So, less than 50%. Probable cause is more likely than not, so 51%. Reasonable suspicion is I have to articulate why I’m suspicious about this person that I’m stopping and why I believe they could possibly be armed. That can be difficult to do or it can be simple to do.

If I see a knife clipped to somebody’s pocket, I recognize that’s a knife clipped to somebody’s pocket. If I see a bulge in your pocket, I have an obvious responsibility to my own safety to say, “I don’t want that to be a big rock in your pocket, something hard that you can strike me with. I can pat down that pocket for my safety, because that’s potentially a weapon that could be used against me.” Now, if I pat it down and it’s a sock, that’s different, right, like a balled-up sock.

Yeardley: [00:07:42] Right. But you wouldn’t know that until you patted the person down.

Dan: [00:07:46] Right. It’s important to distinguish that when we talk about a pat down search or a frisk versus an actual search, they are different terms. A pat-down search is outside the clothing, over the clothing, where I’m patting pockets trying to determine whether or not I feel a gun or what’s obviously a knife or something that’s hefty that could be considered a bludgeoning weapon that could be used against me. It’s an officer safety issue. If you’re continuously putting your hands in your pockets after I tell you no, I might do a pat-down search to make sure that you’ve got nothing on you that you can hurt me with or potential evidence like a bag of drugs that you might throw in your mouth when you get your hand out of your pocket, so you destroy evidence. So, there’s reasons for us to be able to pat down.

[00:08:36] Folks, it’s for our safety. If we are inquiring about a crime, if we have reasonable suspicion, there are reasons for us to do pat-down searches. So, stop and frisk is like a pat-down search. You can feel through a pocket what a gun or a knife or something that’s hefty feels like versus a cell phone or car keys. I know what a meth pipe feels like as opposed to a marijuana pipe through clothing. So, it’s all kinds of different things.

[00:09:07] A search that we get either via consent or incident to an arrest, I can get into your pockets, I can check your waistband, I can check all these areas and more intrusively even without your consent. Obviously, you’re under arrest. I got to make sure you’re not bringing any contraband into the jail, and you’ve got nothing in the back seat while I transport you that you can hurt me with, like a gun in the small of your back. It’s happened. Cops have been shot from the back seat after missing guns on a search.

[00:09:38] So, I’ve seen people with drugs rubber banded inside their biceps, on the inside of their arms, so when they put their arms down, you can’t see anything. I’ve seen the same thing around calves. We’re really good at patting down mid sections and pockets, jeans pockets, and then we go down your legs, and a lot of times we’ll miss right behind your knees, the backside of your knees. And so, people will rubber band things trying to conceal them. They’ll put them in their socks, in their shoes, things where they don’t think the police are going to be able to feel this object. So, criminals are really creative about concealing things they don’t want the police to find. I’ve been fooled before. The worst is missing a handcuffed key in someone’s pocket, when you book them into the jail. Jail people do another search of your pockets, and they pull out, “Hey, you missed this” and you’re like, “Oh, I’m stupid.”

Yeardley: [00:10:32] Is that a universal handcuff key or they stole it from you?

Dave: [00:10:35] No, it’s universal.

Yeardley: [00:10:36] Really?

Dave: [00:10:37] Yeah. I can use one handcuff key to open every set of handcuffs I’ve ever come across in law enforcement.

Yeardley: [00:10:43] Then, why wouldn’t every suspect carry a handcuff key?

Dave: [00:10:47] A lot of them do.

Dan: [00:10:48] I’ve seen them on necklaces. They can even make them out of this hard plastic. I’ve seen them as part of a necklace of some other design and it breaks apart, and it’s a handcuff key, specifically for opening handcuffs. It’s not for any other reason to have.

Yeardley: [00:11:05] I was today years old when I found that out.

Dave: [00:11:08] Right. So, when we search someone incident to arrest, not just a pat-down search, but I’m getting in your pocket so I’m going to make sure that you’ve got nothing on you that can hurt me, it’s also for weapons and implements of escape, handcuff keys, because when you go into the jail, as the officer, I need to make sure that you’ve got no property on you, that I’ve done due diligence in making sure that I’m not bringing a suspect in who’s got a weapon or drugs.

Dan: [00:11:37] But again, the case we’re talking about today is about the more limited pat-down searches.

Dave: [00:11:44] So, in this case, Terry and Chilton, they try to get the discovery of their guns suppressed. I understand why. Like you’re charged with carrying a concealed firearm, I understand why you’d want that evidence thrown out, because then the case goes away. The trial court says, “No, sorry. This is all coming in.” And Terry and Chilton plead guilty. That triggers a series of appeals that ultimately finds its way to the US Supreme Court.

Yeardley: [00:12:15] Right. We actually have a clip of the defense argument before the Supreme Court. This is the actual audio from those arguments made on December 12th, 1967.

[clip begins]

Defense Lawyer: [00:12:27] But the product, once it has been removed, the danger has been removed. And we’re saying that in this case, since it was not based upon probable cause, we should not protect the constitutionally impermissible arrest by permitting the yield of that arrest to come into evidence against the defendant.

[clip ends]

Dan: [00:12:50] That’s legal speak, but what the defense is saying is that the guns the detective found cannot be the grounds for the charges, because they’re a fruit of an unlawful search.

Dave: [00:13:01] So, I think we’ll put a link to the case law.

Yeardley: [00:13:05] Yes, we’ll put the link in the episode description.

Dave: [00:13:08] It is fairly interesting, but the court basically said, “Under the Fourth Amendment of the US. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime, and has a reasonable belief that the person may be armed and presently dangerous.” So, while you need probable cause, PC, for an arrest, police can detain you with reasonable suspicion.

Yeardley: [00:13:42] Right. And here’s the state making that very argument to the Supreme Court, the argument that won the day.

[clip begins]

Judge: [00:13:50] This police officer in this instance had the right to investigate crime. He did see what one might, well say, were suspicious acts on the parts of people whom he thought might be preparing to commit a crime. He had a right, did he not, to pursue that farther to determine whether or not that he would have probable cause, perhaps for an arrest.

[clip ends]

Yeardley: [00:14:25] Okay, I’d like to break down what that Supreme Court audio was talking about in real-world terms, because probable cause means something very specific to you all in law enforcement. But most laypeople like me probably don’t know what those parameters are. So, Dave, can you give us a real-world example to help clarify that?

Dave: [00:14:47] Yeah. I had an example two years ago. I was a sergeant driving through a neighborhood that had been getting just hammered with people breaking into cars in the middle of the night. So, I would make it a point to drive through that neighborhood at 2, 3 in the morning, blacked out, no headlights, really slow, so you don’t hear the engine coming up, trying to catch somebody in the act. In the process of that, this neighborhood has railroad tracks bordering it to the south and a bike path bordering it to the north. This bike path is well known for being a highway that’s off the beaten path for people to get between neighborhoods without being detected by the police. Spike path, we don’t usually drive those. So, I made it a point to drive those.

Yeardley: [00:15:39] They’re wide enough for you to drive?

Dave: [00:15:41] Yeah. Single car can drive down that. It’s not what it’s made for, but I don’t expect to encounter too many people that are out for a jog at 02:30 in the morning.

Dan: [00:15:52] Right before I became a detective, I was on day watch. I would drive that same path and local residents, who were out walking their dogs or a couple were going for a walk, they would stop me and thank me for patrolling that path, because they’ve seen so much other stuff that goes on at night on that path. Stolen bikes. I’ve even recovered a stolen car on that bike path and they went back there to part it out, because you’re basically hidden from view of really anyone. It’s pretty heavily wooded and it’s remote.

Yeardley: [00:16:29] Interesting.

Dave: [00:16:30] So, in this case, I’m driving down this path, and I see a guy walking, and I had seen a bike, like the back red reflector on a bike, I had seen a flash of that as I had my spotlight and it just disappeared around a corner. I was like, “Oh, there’s a bicyclist who just came out of that neighborhood. I’m going to go find him.”

Yeardley: [00:16:51] So, just to play really dumb, what makes you think that guy on the bike isn’t just an insomniac and he’s out for a midnight ride?

Dave: [00:17:01] It’s a good question, and it comes down to the totality of the circumstances. This guy is in a neighborhood I patrol often at an hour that I know. Residents are typically not stirring. They’re not out for a walk. They’re not walking their dog. They’re not exercising. Garage doors are closed. House lights are off. So, to see a male in a hoodie wearing all dark clothing with a backpack on a BMX bike coming out of a neighborhood, I wouldn’t expect there to be any activity in, no paper boys, et cetera. And then to feel like he ducked out on me when he hit the bike path to avoid me, I’d say given the number of times that I’ve patrolled that neighborhood, all the observations I just went through that I would have a reason to believe that person is probably not from that neighborhood. So, I’m going to check him out.

[00:17:54] In this case, the guy doesn’t have bike lights. He doesn’t have a headlight, so he can’t be riding his bicycle around on city streets. So, I have PC to at least stop him, compel him to give me his identification. And if he doesn’t want to play ball, then we go from there. And so, I’m driving down this bike path, and all of a sudden, there’s a guy walking, and I’m like, “There’s no bike. I don’t see the bike. Did this guy just ditch the bike? What’s going on?”

Yeardley: [00:18:21] Does it look like the same guy, his same clothing? Can you tell that much?

Dave: [00:18:25] Different clothing. And so, I’m like, “I don’t think it’s the same guy.” So, it’s not against the law to walk down a bike path in the middle of the night. I’m looking for a bicyclist. There’s no sign of a bike, and there’s no way this guy changed outfits like Superman.

Yeardley: [00:18:39] [laughs]

Dave: [00:18:40] So, I’m thinking, I’ve got nothing on this guy. I really wanted to talk to that bicyclist. But I get out anyway and I said, “Hey, man, did you see a bicyclist just ride by?” And he’s like, “Actually, I did. Yeah, he’s going eastbound.” I was like, “Within the last 10 seconds?” He’s like, “Yeah.” I’m like, “Where did he go?” He wouldn’t answer me. He’s just really quiet and he’s like, “Can I go?” I said, “Hey, man, what’s your name?” And he goes, “You don’t have the right to ask me that.” I said, “Well, I can ask you that. You don’t have to tell me.” And he’s like, “Well, I’m not going to tell you.” I asked where he was going and he said he was headed east, but I didn’t get his name, and I conceded. I said, “You know what? You’re right. Have a good night, man.”

[00:19:20] So, he continues walking eastbound. I turn around and go back out to this other neighborhood that the bike path connects to my original target neighborhood. Look around for a few minutes and who do I come across? The guy who was walking and he’s on the opposite side of this neighborhood in the opposite direction that he had been walking and told me where he was headed. Now, I’m suspicious.

Yeardley: [00:19:45] Oh-kay. Right. So, he said, “I’m going east,” and then you encounter him again, and now he’s going west.

Dave: [00:19:51] He’s west and he’s on the west side of this neighborhood. It’s far enough that I’m like, “This guy must have ran.” So, I get out and I contact him, I stop him, and I said, “Hey, it’s me again.” And he’s like, “I told you I don’t want to talk to you.” And I go, “Well, before, you were right. You didn’t have to give me your name. But now, I’m suspicious.” He’s like, “Well, why?” “Because you are on the opposite side of a neighborhood in an opposite direction that you told me you were going in. You’re beating with sweat and you’ve got a backpack. Do you have a house in this neighborhood? What are you doing in this neighborhood?” And he says, “I’m just out for a walk, man.” I said, “Well, I’m going to need your name.”

[00:20:34] This begins a standoff. He’s not going to give me his name and he explains why he’s not. “I’m not required to. You just contacted me five minutes ago and said that I didn’t have to give you my name.” And I said, “Well, you ever heard of a case law called Terry v. Ohio?” And I explained Terry v. Ohio to him in a very simple way, but basically, I have now reasonable suspicion to believe that you’re up to something, and I believe that to be criminal activity, and I’m going to need to see some ID. You’re not free to leave. I want to make that clear. What’s your name?” “I’m not telling you.” “Okay.” So, I’m on the radio. Send me another unit. I already know how this is going to go.

[00:21:18] This guy made the mistake of having face tattoos. [Yeardley chuckles] So, I just start reading off to our dispatchers. “Can you run this guy? He’s got a tattoo under his right eye of a diamond. He’s got a tattoo on his neck of this.” And pretty soon, one of our officers named Connor, he gets me on the radio, and he goes, “It’s this guy.” I say the guy’s name. I said, “Oh, hey-” I think the guy’s name was Travis or something. “Hey, Travis.” And he looks at me like, “How the fuck did you figure that out that quick?” Just as I see the headlights of another police car coming up the street, I look at him, and I said, “Don’t run,” because I could see it on him. He’s flexing his hands, he’s starting to blade his stance like he’s going to run the opposite direction. And I’m like, “Here we go.” So, I just started to walk towards him just to put my hands on him, so you’re not getting away and the chase is on.

[00:22:13] He takes off. He made the mistake of wearing slides. He’s got the Adidas sandals on and basically just runs out of his shoes and stumbles and falls down and takes him into custody. I remember him being very upset with me until we’re in the car, and he said, “Can you explain that to me again?” And I explained, “Travis, I have reasonable suspicion and this is why. I’ll put that all in my report. You were right the first time. The second time, I was right. I’m not out here to jam you up until I have a lawful reason to.” But I think most people would agree, if you tell me you’re going one direction, and then I find you in the opposite direction, and now you’re covered in sweat, I think most people go, “Yeah, that seems a little bit suspicious. What’s he doing in that neighborhood now?”

Dan: [00:23:14] Now, where a lot of officers bungle this is the court decision is pretty clear. It has to be more than a hunch. You have to have articulable facts as to why you have reasonable suspicion that a crime is being committed, is about to be committed, or just has been committed. So, if you can’t articulate those things– And this is where sometimes young officers will just say, “He was acting suspicious.” Well, what’s suspicious? You have to articulate it. That’s where these cases, they end up going to suppression hearings, because you didn’t articulate in your report what was making you suspicious. It’s all based on your training and experience, the neighborhood you’re in. In the last three weeks, this neighborhood has been riddled with car thefts. People breaking into cars. That’s why specifically I was patrolling this neighborhood. These are all things that are relevant when you articulate these facts.

[00:24:13] If you just say, “He was acting funny. He gave me a weird feeling,” I’ve seen that in a report, what is that? What is a weird feeling? Can you tell me what a weird feeling is? Because I can tell you this. It’s not going to pass the smell test in front of a judge. But like Dave said, you just have to be able to articulate and take the loss when you have to take the loss like Dave did. Five minutes later, now, he’s developed some articulable facts and it’s a right to stop.

Dave: [00:24:44] That was a neighborhood that I would go through at least once a night, sometimes twice a night, every time I worked, and I would go at varying times. So, I had the rhythm of that neighborhood. I knew which guys went to work at 5, I knew which guys went to work at 3 in the morning. So, I had the rhythm of that neighborhood down very well. I had never seen this person ever in this neighborhood. That’s another articulable fact. It’s not like I just said, “Oh, there’s a pedestrian. I’m going to go out and contact him.”

Yeardley: [00:25:16] Dave, this Travis, as we’re calling him, was he the guy on the bike?

Dave: [00:25:21] He was not the guy on the bike. I ended up finding that guy on the bike later that night.

Yeardley: [00:25:26] [laughs] Don’t mess with Detective Dave. So, once you stop Travis the second time, and then dispatch gives you this information on him, who he is, stuff like that, other than the fact that you have this hunch that you have checked several boxes that give you reasonable suspicion that something isn’t right here, was anything going on with him? What was in his backpack? What was he up to?

Dave: [00:25:52] He had a warrant. He wasn’t being overly belligerent. He wasn’t screaming at me, calling me every name in the book or anything like that. He wasn’t compliant with his hands, I remember that. In his backpack, I think he had, we call it a rinse bag, like a little bag of drugs that wouldn’t even amount to one use, but clearly methamphetamine and some charger cords and stuff, like more than you or I would keep.

Yeardley: [00:26:18] To jump start a car kind of thing?

Dave: [00:26:21] Like phone charger cords.

Yeardley: [00:26:23] Oh.

Dan: [00:26:24] Every car burglar that I’ve ever encountered had a backpack and it was full of either burglary tools, so shaved keys, window punches, and they have charging cords everywhere.

Yeardley: [00:26:38] Those things are expensive.

Dan: [00:26:40] Yeah. And just to be clear, Terry v. Ohio also affords us the liberty and the right to pursue people when they run from us, if we can check those boxes of articulable facts that give us reasonable suspicion.

Yeardley: [00:26:54] So, just to be clear, the first time you contact Travis, he says, “I don’t have to tell you my name,” and he’s right about that.

Dave: [00:27:02] Yeah. I was looking for a guy on the bike with certain clothing on and it was clearly not him. So, I don’t have any articulable set of facts on the pedestrian. My whole focus was on this bicyclist, who I had seen peel off out of this neighborhood and catch the onramp to the bike path. So, I knew this bicyclist had just been in the neighborhood, I was going to be patrolling. And then I come across this pedestrian and I’m like, “Where did this guy come from?” But he was never my target and truly was just walking on a bike path when I first contacted him.

Yeardley: [00:27:36] So, the second time you contact him 5 or 10 minutes later, he’s now headed in the opposite direction he said he was going and he’s covered in sweat. And it’s based on your judgment when you say, “Give me your name,” that he is now obligated under the law to give you his name, he’s not allowed to refuse?

Dave: [00:27:56] On the second contact, no, because I’m covered by Terry v. Ohio.

Judge: [00:28:01] The question which was put to them by the officers, “What are your names?”, as to this, there was a mumbled, incoherent response made in reply to that particular question. And this, of course, coupled with his observations and conclusions which he had made previously. There was probable cause for this officer to further investigate for weapons under these circumstances to determine and to protect his own life here.

Yeardley: [00:28:34] So, I guess, what I’m getting at is to Travis, pedestrian, to him, the situation feels the same, even though he knows he may be up to some funny business. You are saying, “In my perception, the situation has changed, and now I’m compelling you to give me your name.”

Dave: [00:28:52] Right. I felt like I had a different set of facts between the first and second time that we met. I would hope that a reasonable person would go, “Okay, yeah, I think those are different facts.”

Dan: [00:29:02] Which is why we call it reasonable suspicion. So, for instance, you’re in a neighborhood. You as just a normal citizen say you’ve got a dog and you’re just letting your dog out. It’s 02:30 in the morning. You can’t sleep. Your dog wants to go out. You stand in your front yard. It’s a dark street. You’re not in the street, you’re not on the sidewalk. So, typically, streetlights will cast down on the sidewalk, and on the street back towards your house in your yard, it’s darker, right? You see down the street, a silhouette going back and forth across the street from driveway to driveway. Spends 10 seconds in one driveway, crosses the street, goes to another driveway, back and forth, back and forth. Reasonably, you would think, “Hey, that’s either a paperboy– It ain’t the mailman. It’s not UPS or Amazon. It’s either a paperboy, but I don’t see a big bag with a bunch of papers. I see a backpack and I see a flashlight flicker every time he goes to a driveway.”

[00:30:06] A reasonable person is going to say, that guy’s checking out cars to steal stuff. I think anybody in their right mind would side with the police, if the police stop that person, say, “Heck, yeah, stop that guy. What is he doing?” But you have to articulate it that way. If a police officer sees this happening, which Dave and I have both done, you just sit at the end of a street and just watch. You’re typing reports, you’re all blacked out in your car, and you’ve got a perfect view. And you can see silhouettes hundreds of yards away making their way towards you or away from you. You can see bike lights and those are the things that we would look for is, “I keep seeing the silhouette go back and forth, back and forth. Now, I’m going to go find that guy.”

[00:30:55] Other situations, private business at night, after hours, they’re obviously not open, and you’re driving by, and you see someone staring in the windows. I think that that’s suspicious. They’re not open. Are you window shopping?

Yeardley: [00:31:10] [laughs] Right, because it’s 2:30 in the morning and the shop closed at 06:00.

Dan: [00:31:15] Exactly. Not only that, you’ve probably got a righteous trespass in that situation also. The business isn’t open. I’ve also been to businesses– and this is why you go there, and you talk to someone. Our job is to investigate. So, I drive over there and I go, “Hey, man, what’s going on?” “Nothing.” “Do you work here?” “Yeah.” “Oh, yeah, what’s your boss’ name?” Then, we start going down the path. “Do you really work here?” “No, man, I was just looking in the window.” “Okay. Can I see some ID?”

Yeardley: [00:31:44] And you ask for identification in that case, because you are going to write at least a small report?

Dan: [00:31:52] No, I have a right to identify him though.

Yeardley: [00:31:55] Is that to see if he or she is wanted for any other crimes or–?

Dan: [00:32:01] If they have warrants, I also might do an FI, which is a field interview, which is a little card. It’s a 3×5 card. We’ve talked about FIs in the past. They’ve been really helpful in solving some crimes just by placing someone in a neighborhood when something bigger happened. You say, “You know what? I was in that neighborhood an hour before that incident, and I contacted a guy and I filled out an FI card. Let me find that Fi card,” and boom, you’ve got it. And you say, “Oh, the person that was in that neighborhood, he had a backpack. He had a pair of bolt cutters hanging out of the back of his backpack. I remember that, because it’s on this FI card that I wrote right here and say it was a car lot or something that got broken into and a padlock got clipped.” That’s a pretty good suspect.

Yeardley: [00:33:01] So, it seems like the first question law enforcement always asks is, “What’s your name?” It’s a starting point in terms of gathering information. It’s something, because you never know what’s going to happen down the line, whether it’s an hour from now, a week, a month.

Dan: [00:33:19] Or seconds from now, when he runs from you and you don’t find him.

Dave: [00:33:23] I want to know who I’m dealing with. When I run your name and dispatch comes back with a return, they tell me this is this person. They give me some brief identifiers. They also will list off any significant criminal history. So, I know if I’m dealing with somebody who’s got a history of assault, a history of theft, drugs, or sometimes, no contacts at all. Sometimes, they’ll say victim entries, which means they have been the complainant. They’ve been a victim of a crime before. It all informs me about the type of person I’m dealing with. I want more information. And so, we talk about officer safety when a police officer contacts you. It’s just normal for people to put their hands in their pockets, especially when it’s cold. Cops are afraid of pockets.

[00:34:12] We’re taught from day one, “Can you take your hands out of your pockets?” Because that’s where weapons get stored. I don’t want your hands in your pockets. I understand you want to put your hands in your pockets because you’re cold. So, I’d say, “Hey, can I at least pat your pockets down so I know there’s nothing in there? Then you could put your hands in your pockets, no problem. Just get out in front of it.” But people don’t like being told what to do by the government, right? So, sometimes when you ask somebody, “Hey, when you take your hands out of your pockets” and they refuse, that gets my blood pressure going, because I go, “Why wouldn’t you just take your hands out of your pockets? Now, I’m worried about who you are. Now, I’m also worried about what you have in your pockets and why you’re being noncompliant with a really simple request. Just take your hands out of your pockets, man. We’re a nervous bunch. I don’t want your hands in your pockets.”

[00:35:05] Or when somebody turns away and tries to conceal or secrete one of their hands so you can only see one plane of their body. I see those on body cam videos, and I’m like, “Here it comes. They’re going to pull a gun, they’re going to pull a knife, they’re going to pull a bag of drugs.” They call them furtive movements. When you’ve dealt with people in the criminal element for even a matter of weeks, that gets ingrained into your brain that you recognize when somebody’s doing the feigned compliance, or they’re about to run, or they’re about to fight clenching their fists, grinding their teeth, you can see the veins in their neck pop.

Yeardley: [00:35:46] So if you, as a law enforcement officer, feel a growing sense of danger, does that trigger the probable cause provision of Terry v. Ohio? Can you search a person or pat them down at that point?

Dan: [00:35:58] If I can articulate that I have concerns for my officer safety or safety for others around me, then I have reached that threshold and I can pat someone down for weapons.

Yeardley: [00:36:08] Okay.

Dan: [00:36:09] It’s not something that we’re really gauging. It’s a very fluid situation.

Yeardley: [00:36:14] Sort of on a case-by-case basis.

Dan: [00:36:16] Yeah. If you’ve been doing it long enough and you are experienced and you’ve trained and you’re knowledgeable, you just know when you’ve reached that threshold.

Yeardley: [00:36:26] Right.

Dan: [00:36:27] One of the first big fights that I got into, it was a guy that had been abusing his wife, and he was not on scene when I showed up. Her friends had showed up to support her, and we were standing in the front yard, and this victim’s husband came back, and she says, “Well, that’s him right there.” And I go, “Oh, well, hey, let’s go have a chat over here.” This doesn’t really have to do with Terry v. Ohio, but I’d always been told and I never really believed that when people are getting ready to fight you, they actually show you that they’re about ready to fight you.

[00:37:03] I remember watching this guy clench his fist while I was talking to him. He was looking back and forth over his shoulder, like, “Where am I going to run to after I hit this cop.” And then he literally pushed his sleeves up like a cartoon.

Yeardley: [00:37:20] [laughs] Like Popeye?

Dan: [00:37:21] When they get ready to fight with you, he pushed his sleeves up to his elbow and I was like, “Huh, I think this guy’s getting ready to punch me,” and he took a swing at me, and he missed, and the fight was on, and he went to jail. But that always stuck in my head. I just noticed these things and I was like, “Holy, they really do it. They really do do it.”

Yeardley: [00:37:46] [laughs]

Dave: [00:37:47] It’s funny. You can tell when somebody is going to fight, you can tell when somebody’s going to run, I got to be fairly good at it. A lot of people ran from me. I might not have caught them, but I was pretty good on a radio, so I could put people in a position to catch somebody. But I got fairly good at recognizing, “Okay, I’m about to be in a race that I’m probably going to lose.” I would say, “Do you want to stretch out before you take off?”

Yeardley: [00:38:11] [laughs]

Dave: [00:38:13] Just because I want him to know that I know you’re about to outrun me, but I saw it first. So, you see things like that. Every experience just goes in the piggy bank, right? You’re like, “I’ve seen this before.” So, going back to Terry stop, the ruling, and I think this is important, says, a stop and a frisk amount to “a minor inconvenience and a petty indignity.” That when a Terry stop is done correctly, it’s minor. It’s not that intrusive.

Judge: [00:38:45] The court stated further that this, of course, was just a minor inconvenience with the personal liberty that is guaranteed and that therefore, each citizen ought to be willing to give up this amount of his personal liberty in order that they might have effective law enforcement in the community.

Dave: [00:39:07] If a police officer has reasonable suspicion to stop you, it’s not up to you, the suspect or the citizen being stopped, to define what’s reasonable. I promise you, you probably don’t know the law as well as police officers do. You might, but if a police officer feels like he has a reasonable suspicion to stop you and says, “Hey, you’re not free to leave,” it’s time to start complying. It doesn’t mean you’re going to jail. It doesn’t mean it’s even going to take three minutes. It just means, “Hey, I have a reasonable suspicion to stop you, identify you, and make sure that everything’s on the up and up.” The courts recognize, that’s a minor inconvenience to the citizen. But it’s an essential job function for police officers.

Yeardley: [00:39:53] Yeah, but what if I don’t agree with you stopping me? What if I have a problem with that?

Dan: [00:39:59] I’d say you’re welcome to your opinion about that, and you may feel like you’re not being legally detained. I can tell you that that’s not the time to protest. You’d rather use the legal system to protest it, so in court, potentially. That’s when you protest. What we’re looking for in that situation is compliance. That is not the time for debate and that’s safest for everybody involved. Now, I’m not saying that there aren’t officers who abuse that, because obviously they do. And this is why we have case law.

Yeardley: [00:40:33] Right. I know there was a controversial use of stop and frisk in New York City, which led to a class action lawsuit and changes in the policy when that policy was challenged in 2013. Can you tell me how did what they were doing in New York differ or did it differ from Terry v. Ohio?

Dan: [00:40:55] There were two main criticisms. Stop and frisk was being used way too often and it was racially motivated. Those are problems. I know they were in some neighborhoods that were high crime neighborhoods, but they found some disparities racially among who was actually being stopped and frisked. That created the controversy, is that it wasn’t– Again, it wasn’t about articulable facts. It was just, “Hey, see those guys walking down the street right there? Let’s go stop them and frisk them.”

Dave: [00:41:25] Applied too liberally and unevenly, and without articulable facts, then we’re not operating in this sweet spot that’s between reasonable suspicion and probable cause. If you can get to reasonable suspicion and probable cause, you’re covered. But if you fall short of reasonable suspicion, you’re not operating within the law.

Dan: [00:41:47] This is where police lose some of our liberties, because case law changes and they rewrite the rule book on us. There were officers that I worked with, where they did some questionable things, and you go talk to them and say, “Dude, you can’t do that.” I’d hear him defend it, I’d hear him say, “Well, so and so taught me.” And I would say, “Well, so and so is wrong.” This conversation could go on and on. That’s why it’s imperative that you have good FTOs that are up on case law that understand procedure. So, yeah, we’re always a decision away from losing some of these–

Dave: [00:42:24] Authority.

Dan: [00:42:25] Yeah. Terry v. Ohio, when applied correctly, it’s invaluable to the police. Applied incorrectly, it’s terrible.

Yeardley: [00:42:36] Right. So interesting. I love these discussions about case law and the things that law enforcement need to comply with to do the job in the best possible way. There are some incredibly nuanced, but all really valuable and I think it’s great for the public to know. So, thank you, both.

Dave: [00:42:57] Yeah, it’s just important to note that throughout that decision, the word reasonable and unreasonable is used over and over and over again just like the other cases.

Yeardley: [00:43:08] Reasonable should be put at the top of every door of every precinct.

Dave: [00:43:12] Educated and well trained and well-intentioned cops are very familiar with that term.

Dan: [00:43:17] I don’t know. Putting a sign over every door, it seems a little unreasonable though.

Yeardley: [00:43:21] [laughs] [The Briefing Room theme playing]

Dave: [00:43:27] These Terry issues are challenged in courtrooms every day across the country. I’ve been on the losing end of a couple of these challenges and guess what? I learned. I didn’t take it personally and I made the adjustment.

Thanks again to our listeners. We’re back next week with a 2-parter, a lengthy discussion with someone from the dark side, one of my favorites, Lisa, the defense attorney.

[music]

Yeardley: [00:43:55] The Briefing Room is produced by Gary Scott and me, Yeardley Smith and coproduced by Detectives Dan and Dave. This episode was edited by Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts. And thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in the briefing room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:21] Welcome to The Briefing Room.

[Briefing Room theme playing]

Dave: [00:00:35] Today on The Briefing Room is Part-2 of our discussion on classroom safety and training for active shooter situations. Once again, we’re joined by two teachers, both in public schools in Texas. Jennifer and Kenzie, welcome back.

Jennifer and Kenzie: [00:00:49] Thank you.

Kenzie: [00:00:50] We appreciate you for having us on.

Jennifer: [00:00:52] Most time nobody asks us, so this is nice.

Kenzie: [00:00:55] Exactly. Yeah. [giggles]

Yeardley: [00:00:57] So, I have a question. Do you feel like this Active Shooter Critical Incident Training is really, basically, a band aid that we’re not addressing the root of the issues? For instance, mental health. These school shooters are usually young people, have reached a breaking point for whatever reason, and they feel they have no resources. Perhaps, they don’t have any resources to deal with adversity. And now they’re taking it out on some group of people they feel has humiliated them, has wronged them in some way. I feel in all of these trainings, not that you shouldn’t have the training, you absolutely should, but the core issue isn’t actually being addressed.

Kenzie: [00:01:44] Yeah, for sure. Again, because I grew up, I went to high school while all of this was so prevalent. We had kids that everybody looked at sideways and was like, “Well, someone’s going to shoot up to school. It’s going to be that kid.” Because it almost feels like a cookie cutter of, like they’re always young white males. That’s a pandemic in and of itself right there. What is going on with this demographic that we are not taking the time to understand why this keeps happening? It blows my mind, because– You’ll hear politicians say, “Well, it’s not a gun problem. It’s a mental health problem.” But we’re not addressing the mental health problem. I agree with you. I agree with you. I think that there are way, way too many guns. I think there’s too much access to them too easily, but that is a different issue. Why aren’t we talking about this? Because they go against the, “Well, it’s a gun issue. No, it’s a mental health issue.” And then the conversation stops. Where is the mental health funding?

Yeardley: [00:02:48] Where are those resources?

Kenzie: [00:02:49] Yeah, where’s the resources for that? It’s frustrating when, to your point, you’re putting quite literally a band aid on a bullet hole here. It seems like everybody wants to talk in circles around each other and nobody wants to, actually, try to fix it. For us, I don’t know about you, I didn’t sign on to be a first responder. I’m not getting paid enough to be a first responder. I didn’t agree to this. Not that you all get paid enough either, but it’s very frustrating and especially, for me, it being my second year, I shouldn’t already feel like this. I have wanted to do this job since I was in kindergarten. That’s all I’ve ever wanted to be. I knew what I wanted to do with my life. And two years in and it’s like, “Am I going to die or am I going to burn out from all of this and be done in three years?” It feels like everything is always just caving in on us.

Jennifer: [00:03:47] I always feel like, “Not even am I going to die, but am I going to respond improperly and have to tell somebody else their child is dead?”

Dave: [00:03:55] Well, along those lines, have you guys had a moment where you went, “Okay, honestly, if this happens, what would I do? How does this go down in my mind”?

Jennifer: [00:04:07] Yeah. Every time I’m in my classroom, every time. If they come in this door, we might have time to get out this way. If I hear it in the other building, could I get out

this back door? If they’re already in the hall, is there enough space for everybody

to hide in the bathroom?

Kenzie: [00:04:22] I’ve got two exit plans for my classroom. I have an exit plan for each special that they go to. We, as a grade level, have practiced our exit plan for lunch, should the kids be at lunch or at recess? It’s just always in the back of your mind.

[Briefing Room theme playing]

Dan: [00:04:41] Do you guys want to have an SRO at every school?

Jennifer: [00:04:44] I have mixed feelings about that. I don’t hate the idea, but I’ve heard just people making points about, “Well, they’re humans and they’re going to see certain things and not see certain things.” It can give some of the kids that get in trouble all the time, maybe a negative interaction with the police. But I think probably the good would outweigh, especially if it was a police officer that was dedicated to and trained to dealing with elementary age school children that it could be really beneficial.

Dave: [00:05:18] You got to have the right person.

Kenzie: [00:05:20] The SRO that we have, we share him with the closest middle school to us, and he’s fantastic. He will come and he’ll sit at the cafeteria tables with the kids while they eat lunch and just talk to him. And he walks around handing out the police badge stickers, the junior police officer. When we discussed authority figures in social studies, I emailed with him, and he came and did a presentation for our kids. He’s fantastic with our kids.

[00:05:45] To Jennifer’s point, it has to be the right personality, but I’ve seen the way that our kids react to him and I know that when he’s there, the teachers all feel safer. Whether we’re conscious of that or not, there’s somebody there that knows what they’re doing should something bad happen. Even if it’s as simple as like, one time we were out at recess and there was like a big black bag on the outside of the fence, and we were like, “What is that?” We were able to just call the office and he came down and checked it out and it was fine. It was just somebody’s backpack that they had left, but we couldn’t tell what it was.

[00:06:21] So, even for stuff like that, that might not seem like a big deal. I knew that he was on campus that day and that we could have him come check it out. So, I think in that way, I would appreciate the safety net of having that person already there and not having to worry about, “Well, it’s not his day at our school,” and it’s going to take him eight minutes to drive here.

Jennifer: [00:06:43] That’s an interesting point that Kenzie is making that I can honestly tell you that in all of my 26 years, four school districts, every single level that I’ve taught, I have never been in a school with a dedicated SRO.

Yeardley: [00:06:57] Wow.

Dan: [00:06:58] That’s surprising.

[Briefing Room theme playing]

Dan: [00:07:04] On Small Town Dicks, we recently had a former school resource officer, Detective Aaron, on the podcast.

Yeardley: [00:07:10] That’s right. He was a guest in Season 11, and he did an episode called Split Second.

Dave: [00:07:16] When we recorded that episode, we actually asked him about his time as an SRO, but that audio didn’t fit into the story he was telling. Let’s play that piece now. I think it’s interesting to hear some similarities in our teachers’ experience.

Aaron: [00:07:35] I always say that, “All SROs could be cops, but not all cops can be SROs.” You don’t want your SRO to be somebody that’s there as a punishment, because you want someone that can build relationships, that’s so important. That’s such an important part of the job, because once I build those relationships with my principals, superintendents, your assistant superintendents, they’ll come to you if you have those relationships. That’s why it’s so important to be approachable.

Dave: [00:08:03] We get a lot of questions like, “If I’m in an active shooter, active killer situation? What should I do?” I want this to come from somebody who’s actually an instructed trainer who’s dealt with this, who’s been on school campuses now for– I know your career, Aaron. Multiple shootings on a school campus. You bring much more credibility to the discussion than I do on this thing.

Aaron: [00:08:33] Well, the one thing that I would tell my own children and other children is to evacuate themselves from the situation. If you’re not there, you can’t be hurt. So many times, we get people that will stay in a classroom when they could have left and then they’re just basically sitting ducks. That’s one of the biggest things is to leave, if you can. If you can, absolutely leave the situation.

Yeardley: [00:09:02] What if you don’t have a way to evacuate? What’s the advice for people who are stuck in that room?

Dan: [00:09:08] Well, I know you barricade, right?

Aaron: [00:09:10] Right. Absolutely. We teach, if you can’t get out, then you better damn well make sure that no one else can get in. We go through a lot of scenarios. We’ve talked to teachers about prep in their classrooms, “What could you do to secure this room?” We’ve talked about placing a piece of furniture somewhere that could be useful, but then when the time is right, you can move it and completely block a door and make it secure, so no one’s getting in that room.

Yeardley: [00:09:38] I see. So, like an extra piece of furniture, something heavy that you could then move to serve as a barricade.

Aaron: [00:09:44] Absolutely. We’ve talked about putting locks on doors from the inside, a way that you can secure it, so no one is getting that room. We also stress these doors are not stopping rifle rounds, they’re not stopping pistol rounds. They’re going to go right through there. So, you still need to secure that door. You don’t want to be right in front of the door. You want to be off to the side somewhere to still seek additional protection. And then let’s say either they get in the classroom and it’s a surprise.

Yeardley: [00:10:13] Who gets in the classroom?

Aaron: [00:10:15] The killer.

Yeardley: [00:10:15] Okay.

Aaron: [00:10:16] Let’s say they get in the classroom or the room that you’re in, and either they defeated your lockdown measures or they surprised you and you weren’t able to conduct those lockdown measures, that’s when you fight back. Seconds matter, when it comes to active killers. Seconds matter.

Dave: [00:10:34] I would agree with that. Law enforcement, in my experience, has been very clear for well over a decade. One officer is sufficient to go address an active shooter. Every minute that you allow this suspect to have free reign of a property or a premise is more victims.

Aaron: [00:10:55] I’ve been in law enforcement long enough to remember. We initially were like, “Okay, we’re going to have four people. We’re going to go in as a pot of four,” is what we called it. Well, then we realized, that’s not happening quick enough. Now it’s like, “No, if it’s just you, then you’re going by yourself. If you can wait a second or two, absolutely.” Because you’re going to be more proficient with two officers. But if you don’t have that option, then you’re going in as a solo officer and you’re going to have to stop that threat. Or, at least, part of the problem is not even stopping the threat, engaging the threat because once you engage the threat, they’re not accustomed to that level of violence. So, they’ll have a predetermined exit strategy, which often includes suicide. So, if you’re engaging the threat and they’re like, “Okay, it’s here.” Now they’re switching their attention to you and not to the students.

[00:11:49] We’re here to protect the students and the citizenry. That’s why it’s so important to follow our training and to do exactly what you’re talking about, to get in there and engage the threat, so we can keep civilian casualties at a minimum.

Dave: [00:12:06] We have body armor, we have tourniquets, we have radios, we have guns, we have all kinds of things to address that situation. So, with our department and doing active shooter training, one police officer can grab suspects attention and pull it away from kids who are armed with backpacks and books. So, go get that suspect’s attention on someone with body armor and a rifle. Get there now.

Aaron: [00:12:33] Absolutely.

Dave: [00:12:35] On the school administrative side, when a district sets up training on this topic, wherever they are, they should contact law enforcement and bring them in from the beginning. Talk to the people that deal with this every day.

Aaron: [00:12:48] Right. It’s funny, because people would come up with all these ideas, but no one would include the SRO in this. That’s why it’s so important for an SRO to build those relationships, because if you’re not building those relationships, no one’s going to come and talk to you. When you’re talking about security at a high school, we should be the expert on that. I want them to come and talk to me.

[Briefing Room theme playing]

Dave: [00:13:18] That was Detective Aaron in a little outtake from Small Town Dicks. It sounds like the training Kenzie’s school implemented is similar to what Aaron teaches, but Kenzie’s school is ahead of the game compared to where Jennifer’s school is.

Dan: [00:13:36] Kenzie, in your training, did they talk about at all like after care? If there’s an active shooter and you survive, did they provide any training as far as first aid, what equipment to buy? Like in law enforcement, every cop in the United States should at least have a tourniquet. That’s just bare minimum. You should have a tourniquet. And I’m wondering if they provide you with those things to have in your classroom.

Kenzie: [00:13:59] No. We get booboo boxes from the nurse at the beginning of the year that has band aids and the little things to hold a lost tooth, and little bit of gauze, and some sanitizer wipes, and that’s it. The training that we did, it really stopped at, “Okay, the cops are now here. So, now we’re going to stop.” I would love training like that. It always has shocked me that we don’t have to be CPR certified.

[00:14:29] In my own time, I’m working towards getting CPR certified, we had a kindergartener last year that choked on his snack and the teacher didn’t know what she was doing, but she did the Heimlich and it was fine. But that kind of rattled me a little bit, because it was right across the hall for me and I was like, “Okay. I don’t know that I would know what to do in that situation.” So, a lot of that, I think, falls on our shoulders to do it ourselves. But I wish that we did have training. I know how to use an EpiPen, but that’s about as far as my medical training goes from the school.

Dan: [00:15:00] Do you think that there’s a disconnect between these administrators now and what you guys need on the front lines? Just some basic things that maybe administrators, and to some degree, now it’s politicians are running school boards and they don’t want to allocate funds to things that what you, Kenzie, Jennifer, like you’re the boots on the ground and they’re not listening to you what you guys really need.

Dave: [00:15:26] Absolutely. I see how these policies are driven like any other policies in an organization by people at the top who never reached out and said, “Hey, Jennifer, Kenzie, you grab your other teacher friends and meet us in the cafeteria. We’re going to have a 30-minute brainstorming session on what needs to happen around here.” I would bet that parents in your districts are like, “This training needs to be at the top of the list. Why do our teachers not have the resources and the money to make their classroom secure and safe for our students?” I’m surprised and I know how the government works.

[laughter]

Kenzie: [00:16:06] Yeah. It really comes down to the school board. We had a very heated election in my district this past fall. There were three open spots on the school board. Three were up for re-election and then three were unopposed. One of them had never had a child go through our school system. They had only ever done private school. The other one spent their entire campaign going on the whole inappropriate books in our library and just about as politically charged as you can get. Unfortunately, both of them won, because they preyed on fear of the parents. The one with the library books was actually actively involved in a lawsuit against our district.

[00:16:48] So, as teachers, we sit here and we can’t do anything on the clock to influence people to vote, but we are welcome to post on our own social media as we’re allowed to do anything on our own personal time. And I just for months, I saw teachers blasting, “Please do not vote for this. This is not true.” Our superintendent sent out numerous emails. We have a wonderful superintendent. He sent out emails about these people in the most neutral way possible that he could just “please educate yourself before you vote,” so on and so forth. To see those kinds of people get elected to the board of people that make all of our decisions, that then in a way, it feels like we have no say, because we can go to the forums, and we can sit up there, and we can say what we want to say, but at the end of the day, they’re the ones voting.

[00:17:43] It’s incredibly frustrating for me. Being in Texas, I expect what I expect from our state politicians. But when it’s happening in your backyard and when it’s happening to you, and then in turn influences every decision you make and everything that happens to you, it leaves you feeling very hopeless. I left that situation feeling very upset, because I love my district, and I love my superintendent, and I feel very fortunate to have the training that I have, and all of that stuff. I just am fearful of what’s going to happen when they start voting on new stuff. Is this really how the parents in our community feel? Because it’s absurd to an extent.

[The Briefing Room theme playing]

Dan: [00:18:44] School shootings are obviously the extreme when it comes to school safety. So, we wanted to ask the teachers. People were actually in the classroom every day with these students. What are the things they see and ways to intervene in children’s lives long before it turns to violence?

Kenzie: [00:19:02] As a teenager, your frontal lobe is not developed. You don’t know what you’re doing. And so, kids are mean and impulsive. I think, at least, what I’m seeing on the elementary level, kids don’t get consequences now the way that they used to. When I was in elementary school, kids would get suspended and kids would have ISS and that kind of thing.

Yeardley: [00:19:27] What’s ISS?

Kenzie: [00:19:28] In School Suspension. So, you can either get out of school suspension or in school. Out of school is usually for a more serious infraction and it’s where you have to stay home. You’re not allowed to come in the building for three or four days. In school is basically where they would just keep you in the office and you do all of your work in the office instead of being in your own classroom. But the push now is, again, from up top that these are not people that are in the classroom. Taking a kid out of the classroom takes away their classroom instruction. So, we should really just try to keep the kids in the classroom as much as possible.

Jennifer: [00:20:00] Right. And the first response to any child’s infraction is to the teacher, “What have you done to try to fix this already?” It’s never like, “What is the child’s responsibility? Well, how have you tried to solve this problem?”

Kenzie: [00:20:11] I’m sure that just continues to get worse. The older the kids get, the more physical that they get. I know COVID behaviors have just infiltrated everybody’s classroom and we’re still seeing fallout from the pandemic. For our kids age group, they’ve never gone to school outside of COVID. They were in kindergarten last year, and a lot of them didn’t go to preschool because of COVID. So, I’ve got a handful of kids in my class, and I noticed this last year too. Whatever it is, their first instinct is to hit. If somebody takes a pencil from them, they smack them. If somebody makes a mean face at them, they kick them. Their first instinct is physical for some reason.

Dave: [00:20:54] That was going to be my question. Have you noticed a marked difference between behavior issues and socialization of children, two, three years ago versus 2022?

Jennifer: [00:21:07] Yeah, I see it mainly with the social emotional development. They simply don’t know how to work in a group or with other people or they’re very young emotionally. They’re lacking quite a bit of social skills.

Dave: [00:21:22] The formative years where you learn these skills, I suppose you can recover that, but you’re not going to thrive like a child who had, what we call a normal school upbringing, that a lot of their development seems to have been stunted and it comes down on the behavior side.

Kenzie: [00:21:40] Absolutely.

Dave: [00:21:41] And you guys are seeing that anecdotally in your classrooms?

Kenzie: [00:21:44] Yeah. I know at my school, I hear the third and fourth grade teachers say that their kids read on a first grade level. It’s not just academics. They are reading on a first-grade level and they’re acting like they’re in first grade. I have friends that teach high school that say, “What is going on with these kids? They have no respect, they have no sense of respecting authority.” They just simply refuse to do their work. There’s no reason for it. It’s not even that they’re disruptive. They’re just, “I don’t want to do it, so I’m not going to do it.” So, with all of our existing hats, now we’re adding one more on top of it. I say every day, I’m like, “I feel like I’m running out of time to teach, because I’m just putting out fires the whole time.”

Dave: [00:22:23] I used to go on ride alongs with Dan. And I recall going to some of these family disputes, where the child runs the household, and I’m sure as teachers, you guys see this, where a child thinks they run the classroom, and then you meet the parents and you go, “I see how life is at home, probably-“

Jennifer: [00:22:40] Absolutely.

Dave: [00:22:41] -that this child hasn’t learned anything about discipline, or respect, or manners, and that’s as we’ve always said in law enforcement. We can predict behavior issues in children based on the calibre of humans that are bringing these kids into the world and parenting them. Actually, parenting them.

Kenzie: [00:23:00] Right or not. Lack thereof.

Dave: [00:23:02] Yeah. I remember being on a call with Dan, and he turned to a parent and said, “You want me in five minutes to solve what’s taken you 15 years to screw up? You have not taught your child to be a valuable human, who contributes to your family and to their community. Your child is disruptive, gets kicked out of school, and you want me to come here and fix your problem in a few minutes.” I imagine you guys are running into that to a much larger degree now.

Jennifer: [00:23:34] Absolutely. Last year was my first year. And so, I tried to do my best to just get through it, but this year I really enjoy my class. They get along a lot better. Last year, nobody got along with anybody, but I do have three or four this year that just you come home and you want to pull your hair out.

Dave: [00:23:51] So, do we have to worry about four to seven years from now, what adversity in this child’s life looks like? When they’ve been able to find Dad’s gun that’s hidden in the closet, and they have a bad day, and they go, “You know what? Tomorrow is my time to get some revenge.” We haven’t taught kids how to deal with adversity or failure.

Kenzie: [00:24:10] When I was teaching many, many years ago in a different district, there was a particular young man that was well known through Pre-K kindergarten, first grade for doing very terrible things, social, emotional type things, just extravagant behaviors. Every single person that had anything to deal with him said, “That one’s going to prison someday.” We knew it wasn’t even like a guess. And I’m still in the same area. Before his 18th birthday, he was arrested for capital murder.

Yeardley: [00:24:43] Oh, my God.

Kenzie: [00:24:43] Nobody was surprised.

Jennifer: [00:24:45] For me, I worry that when I have these students who hurt another, not just, “Oh, he bopped them on the head.” I have a student who genuinely hurt another kid and drew blood, because he was angry at him. You can’t say, “Oh, he’s six, he didn’t know.” He was angry and he got physical. I put in a conduct referral, which is supposed to send him to the office, and they pull him, and he gets to sit in the office on his iPad all day. And then they call mom and dad, and mom and dad are like, “Okay, we’ll take care of it.”

Kenzie: [00:25:21] Or, say, “He would never do that. He doesn’t behave like that at home.”

Jennifer: [00:25:24] “He would never, but he did. And there’s proof, but he would never.” So, I think for me, there’s a fear in me that we are going to see these kids that have these tendencies that if we jumped in now and stopped them, then that could be the end of it, but we don’t dole out adequate consequences to match the action. I get told this all the time by my admin, “Well, there’s six.” “I don’t care that they’re six. They’re developing human beings. If you don’t start it now, then to your point about the 15-year-old, 15 years later, what’s going to happen?”

[00:26:02] I just worry that we’re going to see them continue to escape by, parents aren’t giving them the discipline they need, the school’s not giving them the discipline they need, and then they’re going to get into a situation, where something happens and they either go to jail or somebody else gets very seriously hurt or killed. It will have been, because nobody advocated for that kid to get in trouble.

Dave: [00:26:27] I’m guessing teachers, just like police officers have been saying, “We don’t have a crime problem. We have a parenting problem.”

Kenzie: [00:26:32] Absolutely.

Dave: [00:26:33] We have adults now who never were parented as kids, and this is what it looks like when they turn 18 or when they turn 15, and now they’re capable of pushing dad around the house, and mom has no say in the house anymore, and they just start running their own life, and they end up in jail. We’ve been saying it for years. I’m sure, Jennifer, and your [chuckles] 20 plus years. Like you said, that kid’s going to end up in prison one day.

Jennifer: [00:27:03] My friends and I joke that it’s a result of the iPad generation.

Kenzie: [00:27:07] We get kids that don’t know how to talk to each other. We get kids that don’t know how to speak to adults. I have one or two kids in my class all day long, “Can we use the iPads? Can we get the iPads? When do we get to have the iPads?” I’m like, “Sweetie, we already did our 20 minutes of technology this morning. We’re not getting them again.” And they get angry. Then you know you’re using iPads at school or the Chromebooks or whatever it is, they go home, they get handed the iPad. So, I think that social media and technology and all these things.

[00:27:38] My kids know things at six and seven that I didn’t know until middle school or high school. I have kids constantly flipping each other off. These are not kids that you would say, “Oh, they come from the wrong side of the tracks.” These are kids that shouldn’t know that and whose parents, when you tell them, they’re appalled that they know it, and it’s because they’ve got unsupervised internet time. They go home, they get their tablet, and they get on YouTube, and think of all the things they’re going to see on YouTube. So, it’s very much is a parenting problem, but I think the issue that at least I see with mine is it’s more of the ignorance of the parents and what they are not doing, which is then just creating these monsters.

Yeardley: [00:28:21] I was listening to a podcast the other day, one of the Brené Brown– I think it was Unlocking Us, and she’s a social worker and a researcher of shame and vulnerability. She was talking about a study that was done with young people where they talked about boundaries. They used to ask this wide swath of young people, “What sort of boundaries did you get in place?” There was almost this competition of, “Oh, my God, my parents wouldn’t let me do this, and I couldn’t do that, and I had to be home by then.” Then the kids who had no boundaries, who had no supervision like that just went into a total shame spiral, because the net of that conversation was, “Nobody cared enough about me to actually ask me what I was doing or to supervise me.”

[00:29:12] So, this idea that you are somehow imposing your will and you run the house, I think, as the parents, and that that is detrimental to your children, I think is proving to be the complete opposite. As you grow up, you want something to push against. I want it in my relationships as an adult. I just feel like there’s such value in that compromise. You don’t live in a vacuum.

Jennifer: [00:29:40] Yeah. In small children like the age that we’re dealing with, they crave those boundaries. They crave the structure. They want to know, how do you want me to do this? They don’t want you to just say, “Line up.” They want to know, how do I line up? Who do I line up with? What does my body look like when I’m lining up? What am I thinking about? Where do I look? What is everybody else doing? How do I fit in? They really want to know, what do I really supposed to do here?

Yeardley: [00:30:05] They crave it.

Jennifer: [00:30:06] Yeah, they do.

Kenzie: [00:30:07] The best way to redirect them is to go, “Oh, I love how Jennifer is standing. She’s got her hand up.” Because then they go, “Oh, I want that price. I want to be the one that she points out and says, ‘I want to be like that.”’ I have a student who, for the life of him, cannot sit still when we’re on the carpet doing lessons. I quite literally took tape and taped a square on the floor to give him a physical boundary. And it worked. It’s like he just needed a visual of his boundary, of his guideline. And that works for him. So, if you can imagine a kid like that at school who needs a tape square to sit correctly, going home and being allowed to do whatever he wants, of course, that’s what happens.

Dan: [00:30:49] I’ve said on this podcast before. I’m not a parent. I don’t have kids. I’m not an expert in parenting. I am an expert in bad parenting. And I’ve seen it so many times and I’m sure you have too. But it was part of my word track when I would counsel parents, I would say, “If you’re a parent, it’s not your job to be their best friend. Your job is to be their parent. Be their friend when they get out of college. But up until they’re 18, 19, 20 years old, those kids are looking at you like they don’t want you to be their best friend. They want you to be their dad or their mother.” So, do that.

Kenzie: [00:31:22] Absolutely.

[The Briefing Room theme playing]

Yeardley: [00:31:37] I want to know from both of you, why you wanted to become a teacher? Jennifer, you first.

Jennifer: [00:31:42] For me, my mom was a teacher and I had a degree that didn’t really lend itself to anything else. I got a degree in Spanish literature and I love teaching language. So, I’ve always been a dual language teacher or a Spanish teacher at the high school level. I like teaching English to Spanish speakers and I like teaching Spanish to English speakers. So, I’ve always gotten a lot of enjoyment out of that.

Yeardley: [00:32:02] Fabulous. Kenzie?

Kenzie: [00:32:05] My first-grade teacher was the best teacher I’ve ever had. Ever since then, I had always wanted to be a teacher. My high school offered a– it’s called Ready, Set, Teach. It’s a program where you get to go into an elementary school in your district and work for– It was a double block class, so two class periods. After doing that, it was like, “Yeah, okay, I’m decent at this. This is what I want to do.” So, I was able to test that out before I went to college. It just solidified that for me. I love working with children, and I love the primary grades. You’ll hear every teacher talk about this, but those light bulb moments, like seeing the kid get it for the first time, and especially with our age group, they are so young and they’re learning so much.

[00:32:50] As frustrating as it can be sometimes to wear all of the hats that wear, it’s a very unique experience and I feel like it teaches me a lot about myself and it teaches me a lot about the world around me, because kids see things so differently than we do. So, regardless of everything going on around us, the kids are why we do it.

Jennifer: [00:33:11] And as teachers, thank you for actually listening to us.

Kenzie: [00:33:14] Yeah.

[laughter]

Jennifer: [00:33:14] Normally, not really anybody’s interested in hearing us, we don’t feel like we have much of a voice. So, it’s very nice to actually be asked.

Dan: [00:33:23] Oh, we’re honored that you joined us. We really are.

Yeardley: [00:33:26] We are.

Dave: [00:33:26] Jennifer, Kenzie, really appreciate your time.

Kenzie: [00:33:29] Thank you.

Jennifer: [00:33:30] You are very welcome. We appreciated the opportunity.

Dan: [00:33:33] Thank you for doing what you do. It’s so important and we need more like you.

Yeardley: [00:33:37] We sure do. Thank you.

[The Briefing Room theme playing]

Yeardley: [00:33:49] I want to ask, what can be done here? Obviously, we won’t have all the answers and we’ll leave it to our audience to give us feedback too. But for me, it leaves me feeling like this is chaos. There’s so little coordination on the macro level to help these teachers do what they need to do to keep their environments safe.

Dave: [00:34:15] There are things that we can do right away that makes our schools safer. It’s little things like security type things, doorstops, putting a cover over the windows, those are immediate things. Bigger for me is let’s really start hitting the training piece and really wrapping teachers and administrators in schools in with law enforcement and medical personnel. It’s really what that active shooter situation is going to look like, so let’s train for it.

Yeardley: [00:34:48] While I think it’s productive for teachers to be creative about how to keep their classes safe, I don’t think it should be up to the teachers.

Dave: [00:34:59] Teachers shouldn’t have to pay for this stuff. It should be provided to them.

Dan: [00:35:02] These episodes are about training. We can talk about training and funding and the construction of these schools, but the solutions to all these issues and these problems that we’re identifying, it should not fall on the teachers and the students. That’s the bottom line.

Yeardley: [00:35:20] Yeah.

Dan: [00:35:22] I think you want touch on things like the value of human life and are we teaching our kids that we should be valuing human life?

Yeardley: [00:35:31] Each other respect and curiosity and kindness.

Dave: [00:35:35] For our listeners, we have a question for you. These two episodes were primarily focused on training that’s available to both law enforcement, first responders, teachers and students. But the conversation is much bigger. Do you want to hear more about this topic? If our listeners have questions or comments or want us to cover a certain aspect of this topic or any others, please send us your suggestions. We get Briefing Room and Patreon material from our listeners all the time.

[00:36:06] Thanks to our guests, Kenzie, Jennifer, and Aaron. In next week’s Briefing, our episode will be covering the case law, Terry vs. Ohio.

Yeardley: [00:36:16] It’s a great episode.

Dave: [00:36:18] I think it goes a long way towards letting listeners understand why cops are able to do what they do in certain situations.

Yeardley: [00:36:28] If you’re thinking just as a layperson like me like you don’t want to lessen on case law, this episode about Terry vs. Ohio is nothing like that and it really goes to the heart of why Dan and Dave wanted to start The Briefing Room in the first place. So, don’t miss it.

[00:36:47] The Briefing Room is produced by Gary Scott and me, Yeardley Smith, and coproduced by Detectives Dan and Dave. This episode was edited by Soren Begin, Logan Heftel, Christina Bracamontes, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts, and thank you to you, the best fans in the pod universe for listening.

[00:37:40] Honestly, nobody’s better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dave and Dan: [00:00:20] Welcome to The Briefing Room.

[Briefing Room theme playing]

Dave: [00:00:35] Hi, I’m Detective Dave.

Dan: [00:00:37] And I’m Detective Dan.

Dave: [00:00:39] And we have, of course, Dan’s better half, Yeardley.

Dan: [00:00:42] Welcome.

Yeardley: [00:00:43] Hello, Dav, as I like to call you.

Dave: [00:00:45] Great to have you here. So, today on The Briefing Room, we’re going to be talking about school shootings. We’re going to focus on school safety, specifically how prepared or unprepared our classrooms are for an active shooter. You’re going to hear from two teachers who work in the state of Texas, where policymakers have found themselves in the tragic shadow of the mass shooting in Uvalde that left 19 children and two adults dead.

Dan: [00:01:10] We’re asking these teachers how safe they feel, what could be done better to prepare them, what kind of training they’re getting, and what is their relationship to local law enforcement.

Yeardley: [00:01:19] But before we get into the bigger conversation, I think you two should explain what The Briefing Room Podcast is about.

Dan: [00:01:27] It was Dave’s idea. He should talk about it.

[laughter]

Dave: [00:01:31] Happy to. I think for us, Small Town Dicks is so focused on individual cases. They might be two or three episodes long, but in individual case, we talk to the detective who explains their investigation. Through this process, we were getting a lot of questions and we had broader subjects that we wanted to talk about that impact law enforcement and their communities, but they’re not case specific. It’s a topic. It reminded me of sitting in briefing before your shift, where the watch commander provides background on what’s happening in our city since your last shift.

[00:02:13] In this instance, it’s an opportunity for us to really talk about what cops are doing out on the street from day-to-day, why cops do what they do, and also to discuss where cops go out of bounds.

Dan: [00:02:28] I agree. I think an unintended benefit that we’ve gotten out of this podcast is having an opportunity and a platform where we can educate the public a little bit on how we do business and why we do it the way we do it. Also, like Dave pointed out, there are plenty of examples of when it goes wrong. I think this is a unique opportunity and platform to address some of those things.

Dave: [00:02:53] And hopefully we can provide the answers to our listeners.

Yeardley: [00:02:57] Do you worry that The Briefing Room might be too inside baseball, so to speak, like, only for those who are in law enforcement or really follow law enforcement? Basically, who is The Briefing Room for?

Dan: [00:03:11] The Briefing Room is for anyone who wants to understand the perspective of law enforcement. The first FTO I had, first Field Training Officer I had, his name was Dan also. Dan instilled in me that we have an opportunity to educate when we’re out on patrol, when we go to a call, when we make a traffic stop, it’s not always about enforcement.

Dave: [00:03:34] In a perfect world, the relationship between the public and the police is like we’ve talked about in prior Behind the Badge episodes. We talk about this social contract between the police and the public they serve that, if law enforcement is violating the terms of that contract, you lose public trust, you lose legitimacy. And in a perfect world, we work harmoniously. The community feels served and they feel like they’re a part of the solution, that’s the perfect world. We don’t live in a perfect world, but we can adjust. That type of system seems to be fractured. I would say that it’s obviously fractured.

Yeardley: [00:04:22] In these tumultuous times, do you think that The Briefing Room could build a bridge between communities and policing whether you’re for or against police?

Dave: [00:04:34] That’s a tall order. However, I hope that The Briefing Room lends itself to a more trustworthy relationship between the police and the public that we provide information that allows the public to understand where the police are coming from. Of course, the public has a say in how police departments move forward. We’re serving the community. We’re all on the same team, even though it doesn’t feel that way a lot of times. I’d be living in a vacuum if I thought that the entire public thought that police officers were great and all we do is help people. It’s clearly not the case. This is just an opportunity for us, our little team, to say, “This is my experience in law enforcement,” and all we can be is genuine.

Yeardley: [00:05:24] What does it mean to you, Dan and Dave, to be veteran law enforcement officers?

Dan: [00:05:31] We often talk about that it shouldn’t be a job. Police work, it should be a calling. For me, a calling is something bigger than me, and I really think that law enforcement has an opportunity to benefit something bigger than themselves.

Dave: [00:05:47] For me, I felt a calling to help people. I felt a lot of pride putting on a uniform that in a moment of chaos and uncertainty, I can show up and help people feel safer.

Dan: [00:06:02] The Briefing Room for us is about what it meant for my brother and I and people who work in the justice system, what it meant for us to do the job the way it’s supposed to be done.

[pensive music]

[00:06:25] Thurston, Columbine, Parkland, Sandy Hook, Uvalde, everyone knows what these names mean. Education Week, which tracks school shootings counted 51 last year. 51 school shootings in 2022. That was the highest number since tracking began five years earlier. 39 people were killed and 101 were injured. The worst was in Uvalde, Texas. There’s plenty to debate around the causes and solutions, from gun control to mental health. What we wanted to focus on today is training. We wanted to know what kind of training our teachers receive regarding active shooters. So, we invited two teachers who work in the Texas public school system. Neither of these teachers has been a part of an active shooting and neither are from Uvalde. but who better to talk to about best practices for school safety than the people who are unfortunately on the front lines? Our teachers.

[00:07:29] We are very grateful to have two guests. Jennifer, welcome.

Jennifer: [00:07:33] Thank you. It’s nice to be here.

Dave: [00:07:35] And we have Kenzie as well. Thank you for being here.

Kenzie: [00:07:38] Of course. Thanks for having me.

Dave: [00:07:40] So, kind of some background. You don’t have to say the specific city that you’re in, but give us an idea of your school district, what grade levels you teach, and an idea of class sizes, and anything else that’s important about your specific school. Jennifer?

Jennifer: [00:07:58] I’m in a public school district. I’ve taught in four districts in this area in my career. I’ve been a teacher for– This is my 26th year. I’ve done everything from kindergarten through 12th grade except for middle school. I’m currently in a kindergarten and first grade combination class and I have 19 students.

Dave: [00:08:18] What’s your favorite age group?

Jennifer: [00:08:20] I love kindergarten and 12th grade, the best.

[chuckles]

Dave: [00:08:23] Really?

Yeardley: [00:08:24] That’s so funny.

Dan: [00:08:24] Nothing in between.

Yeardley: [00:08:26] Nothing in between. [laughs]

Jennifer: [00:08:26] I like them all in between, except for middle school, but my favorites are kinder and the ready to graduates.

Dave: [00:08:33] Is there a reason why?

Jennifer: [00:08:36] They’re both still really interested in learning. It’s high stakes for the seniors and it’s still fun for the kinders.

Dave: [00:08:42] You said 19 students in your class currently?

Jennifer: [00:08:46] Currently, yes.

Dave: [00:08:47] And Kenzie?

Kenzie: [00:08:49] Yeah. So, on the opposite end of the spectrum, this is my second year of teaching. I am in also a public school in a different part of Texas than Jennifer. My school district is fairly affluent, but my particular school is a Title 1 school. I have only ever taught first grade. I student taught first grade and then last year and this year, I’ve been in the same school and the same grade level, and I currently have 22 students.

Dave: [00:09:14] Okay. And what’s a Title 1 school?

Kenzie: [00:09:17] So,Title 1 is essentially, they look at our percent of kids who are on free and reduced lunch, so low-income families. All that means, essentially, is that we get extra funding from the government to help with those students, giving them extra opportunities, extra programs at school.

Jennifer: [00:09:36] I’m also in a Title 1 school, but in my district, we don’t get extra [chuckles] money to buy things for the kids. So, you’re lucky, Kenzie.

Kenzie: [00:09:43] Yeah, we’re very fortunate.

Dave: [00:09:45] Always comes down to budgets, right? [Kenzie chuckles] Kenzie, your age group again?

Kenzie: [00:09:51] First grade. So, six and seven.

Dave: [00:09:53] Okay.

Yeardley: [00:09:54] Kenzie, if the teachers are also given some funds to spend on their classes, what do you spend it on?

Kenzie: [00:10:02] Yeah. Last year, because it was my first year, the district gave me $150, this year, every year after teachers get $100, and like you said, a budget thing approved within our district. I’m very lucky that my school particularly gets a lot of donations of school supplies, so I didn’t have to spend most of mine on school supplies for individual students. But I spent most of mine last year on things to get my classroom set up. So, a class set of clipboards, class set of whiteboards, a lot of markers and crayons and that kind of thing. Then this year, I bought a lot of books, a lot of children’s books to fill up our library a little bit more. And then I have also bought snacks before.

Dave: [00:10:46] Jennifer, I saw you nodding while Kenzie was describing those things. Similar circumstances for you?

Jennifer: [00:10:54] Yeah, absolutely. Our school does hand out backpacks with individual school supplies at the beginning of the year for the kids. But kinder and first grade students, a box of crayons last time about, you know, 15 minutes. It takes some time-

[laughter]

Jennifer: [00:11:09] -to break them and lose their scissors and cut everything up. So, yeah, we spend a lot of money replacing those things as the year goes on.

Dave: [00:11:18] I can’t imagine $100 or $150 goes very far.

Jennifer: [00:11:21] No, not at all.

Kenzie: [00:11:23] No. It doesn’t. [giggles]

Dave: [00:11:24] You have to make fairly critical decisions on what you’re going to spend money on and bring into your classroom, but at the same time, having to worry about that and then having to worry about violence. My understanding is about 40 states require school districts to put on some sort of training that has to do with active shooters. I’m guessing in the state of Texas, it’s no different.

Jennifer: [00:11:51] Yes. At least for my district, we have to, I’m assuming it’s a statewide thing.

Dave: [00:11:56] Jennifer, do you remember the first-time active shooter training was even brought up as a topic?

Jennifer: [00:12:02] Yeah, they don’t bring it up specifically as active shooter training. It’s one of the drills that we practice monthly. We have a monthly fire drill and then one additional. So, probably twice a year, we do an active shooter drill in class with the kids. For my district, at least, the training is 130 minutes online, Self-Paced Critical Incident Training is what they call it.

Dave: [00:12:28] Do you recall how many years ago the first critical incident or active shooter related trainings were kind of floating around in schools?

Jennifer: [00:12:37] It’s been about five years that it’s been required beginning of the year training, but it’s been around probably 10 years as far as counting it as one of the drills that we do monthly.

Dave: [00:12:50] As an educator with a wealth of experience, is there a point early on with these drills where you’re thinking to yourself, “What on Earth is happening that we’re having to have these drills in a school?”

Jennifer: [00:13:02] Definitely. If you think that I need to know how to do that, then probably before we’re doing a drill, I should have some type of a heads up or training or like what’s the objective, because it seems to me and it always has been, that the objective is just to get the kids to cooperate with the drill, so that they can check off that box.

Dave: [00:13:26] Okay. And so, the feeling I’m getting is that the training is more just to say, “We did it,” rather than it being very practical and realistic?

Jennifer: [00:13:34] Absolutely.

Dave: [00:13:35] Is that accurate for you as well, Kenzie?

Kenzie: [00:13:38] I have a completely different experience. Our district currently requires us to have our active shooter “training” every other year. So, every two years you have to have it updated. Because this is only my second year, I don’t know when that was implemented, but I did get the impression that my coworkers had done it, at least, once or twice before. So, I would assume about the same timeline that Jennifer is saying.

[00:14:00] Ours is actually where the local police department comes in and they give us the statistics of in an active shooter situation, the first five minutes is when the majority of the damage is done and really explaining that even if the police departments across the street, they can only get there so fast. So, kind of helping us to frame it as this unfortunately does, then fall onto our shoulders and being our responsibility.

[00:14:27] And then we got split up into groups and they ran us through three different scenarios where the first one, we were told to hide. We could not fight back. We could not do anything to defend ourselves. We just had to find a hiding spot in the classroom. They came in with nerf guns and two by fours on hinges slapping together to make the gunshot noise and tried to find us and shoot us and whatever. Then the second time, they brought us back into the main area, we talked about it. How did it make us feel? Did we feel like that was the most efficient way to save ourselves, that kind of thing? The second time through, we were told to use whatever we could to block the door and to keep the shooter from coming in. So, everybody was in groups of 10 or so when we were all in different classrooms.

[00:15:15] My group, we pushed bookshelves and dust and stacked chairs. I think they gave us 30 seconds to do it. And then once they tried to get in the door, we were throwing things at them. And then we came back out and talked about it. And that time, no one got shot in my room. The first time we all got shot. The last time they did it to where it was imitating, almost a passing period. So, we were supposed to be just walking back and forth in the hallway. And then when we heard the noises, we were supposed to find a room. In that time, me and a few of my coworkers actually opened a window and got out the window. When we came back and talked about at that time, he explained to us that for so long. The advice to teachers has been stick them– I remember, we went into lockdown when I was in kindergarten, because somebody robbed a bank across the street.

[00:16:07] So, this has been going on since I was a kid. The whole premise of it was just you sit in the corner in the dark, and you lock the door, and you wait for it to be over. But as we know, if you’re all sitting together in one location, it’s going to take him five seconds to take everybody out. So, the officer explained to us that the best things that you can do, your first option should always try to be get out. You should always try to get out. I have gone into my room after that training, made sure my windows open, figured out where I would take them, how I would get them out, how to keep them calm. If you can’t do that, then you basically armed the kids with scissors and heavy things to then throw at the person should they get in your room.

Jennifer: [00:16:50] Wow.

Dave: [00:16:51] I see Jennifer is like, “Well, we didn’t get that kind of experience.”

Jennifer: [00:16:55] Nope.

Yeardley: [00:16:55] And do you wish you had, Jennifer?

Jennifer: [00:16:57] Yeah, that would be a lot more useful. It is printed as an option in the little guidebook of possible responses of which drills are going to be happening and how to respond for each one. Bit absolutely no practical application and none at my particular school. We don’t have windows that actually open. Nobody could get out a window. We’d have to break it.

Dave: [00:17:25] So, Jennifer, after the Uvalde shooting, has your school district recognized, “Hey, we’ve got some gaps in our training. We need to get on this.” Or, is there kind of this, “That only happens in other places?”

Jennifer: [00:17:39] We have made some hard changes to the exterior of the building, but not– As far as I know, there’s no changing in teacher training. We’re a large enough district that we have our own police department. So, I’m sure that the school district police officers did receive training that’s different and updated.

Dave: [00:18:01] Okay. Do each of your schools actually have a school resource officer who is on site?

Jennifer: [00:18:09] No. I don’t know anywhere that an elementary school campus has a dedicated officer. They float.

Kenzie: [00:18:17] We share ours with the middle school. That’s closest to us. All of the high schools have their own. I think some even have two. And then the way that our district is set up is each middle school is assigned one or two that then also have one or two elementary campuses that they visit as well. So, on average, I see ours maybe two times a week for an hour and that’s it.

Dave: [00:18:39] Okay.

Jennifer: [00:18:40] I see them probably twice a year, max.

Dave: [00:18:44] The differences are one district seems to– I hate to be critical, but Jennifer, I think you’re recognizing there might be some–

Jennifer: [00:18:56] Inequities? [chuckles]

Dave: [00:18:57] Maybe some neglect in how to deliver the training. Where Dan and I worked, we worked often at different schools throughout our district. We do a lot of planning, and visualizing, and scenario-based training that even when I’m driving around and I hear a call come out, as a police officer, I think, “If there was an active shooter right now at this school, where would I go and how would I get there and which way would I approach?:” Do teachers do the same things where you guys are thinking, “Right now, if I was at this spot in this hallway, way far away from my classroom, what am I going to do if I start hearing gunshots?”

Jennifer: [00:19:37] Absolutely.

Kenzie: [00:19:38] Yeah. Because I was born in 98, I’ve lived my life like that. So, anytime I go anywhere, I’m constantly– And I know it’s not just me, it’s anybody my age, we’re scanning, figuring out where’s the exit? How are we going to get out of here? What could we do if something happened? I always say that Sandy Hook was my pivotal moment, because I was in middle school and I remember sitting there and hearing the news and my mom calling me. I was at lunch. For us, it’s just never ending. We grew up with that. So, I definitely now knowing that not only am I already doing that for myself, but now I’ve got 22 six year olds that I’m responsible for keeping safe, in addition to all of the other hats that I have to wear in a day-to-day basis. It doesn’t matter where we are. I don’t even think for me, at least, it’s not a conscious thought. It’s just something that happens.

Jennifer: [00:20:32] Yeah, I would agree with that. It obviously came to me later in life, but always, especially when you’re with somebody else’s children.

[pensive music]

Dave: [00:21:01] Do your principals or the administration of these school districts, do they allow teachers to improvise their own defense of their classrooms? Can you bring in extra lumber to block a door? Can you bring in even a gun? I know that’s a hot topic, guns don’t belong in schools. But do they allow you guys to bring in things or are there school policies against bringing in your own protection?

Jennifer: [00:21:29] For my own personal school, the amount of improvisation that we do, I mean, mainly what it is, we have windows in our doors, and when we’re doing our lockdown drills, you have to cover up the window. We sew our own curtains to cover the window.

Yeardley: [00:21:44] Seriously?

Jennifer: [00:21:45] Yeah.

Dave: [00:21:46] You do what you have to do.

Jennifer: [00:21:48] Yeah, that’s what we have.

Kenzie: [00:21:50] We’re given fire hose, like chopped up fire hose, because if you put it over the top of the door, where the hinges that it won’t open. At least based on that training, I don’t know about school policy, but they have pretty much told us, “You have the autonomy of saving your class. So, do what you got to do and that’s fine.” And then anytime we do drills and stuff, we do the same as what she’s saying, where they just cover the windows, cover the doors, and that kind of thing. But we were instructed to teach our kids to use the scenario of a bear. “There’s a bear that broke loose, it got into the school. What are we going to do if that bear comes in our classroom? You’re going to throw things at it. We’re not all going to just sit here, because if we just sit in the corner together, then the bear could get to us easier.”

[00:22:37] They’ve made such a horrifying topic, kid-friendly in a way, so that you can teach those kids what to do, should that situation, God forbid, ever happen without scaring them and telling them what’s going on. But I do really appreciate that they’ve given us the autonomy of deciding, what can we do that’s best in that situation?

Dan: [00:23:02] Are there discussions that occur amongst teachers where you talk about different technology that’s out there regarding how to secure a door or– What are your thoughts on those things?

Kenzie: Yeah, I giggled when you said that, because I remember this summer, my teammates and I talking about what we were putting on our Amazon wish list for our classrooms. And we all put privacy screens for the windows on our doors and two or three of my teammates put door jams, like the ones you take to hotels that you put in the door and then shut the door on. So, yeah, we discuss it. Unfortunately, you just have to take the emotion out of it and discuss it as if this is just something I’m adding to my classroom wish list for the year, and let’s hope I don’t need it, but that way I have it.

Jennifer: [00:23:50] Yeah. Same. We do the same thing. Absolutely. We talk about it and come up with our own ideas and little things that we can improvise that we can use ourselves, for sure.

Dave: [00:24:00] And, Jennifer, is there frustration? I’m pretty shocked at the level of training that you guys haven’t received. Clearly, I’m not sliding you it’s what’s offered is what’s offered. It sounds like teachers are already having their own discussions about these matters. But to see one school district that is more up to speed than one that seems to be kind of in the Dark Ages when it comes to this training.

Jennifer: [00:24:28] Absolutely. I’m actually as shocked as you guys are hearing about the differences between Kenzie’s school district and my district.

[pensive music]

Dave: [00:24:40] I’m thinking about the day after Uvalde. Every officer that I know that’s had active shooter training, we were all scratching our heads like, “What’s going on? What’s happening?” I think the public doesn’t understand what the police are going to do when they arrive. When you have a situation like Uvalde, where you have hundreds of officers failing to act when there’s still an active shooting that’s occurring, I have a big problem with that. What kind of discussions were happening in the teachers lounges at your schools?

Jennifer: [00:25:16] Absolutely. I mean, that unfolded over a week or 10 days about what the actual response was or wasn’t. Every teacher that I know of was just jaw dropped like, “What? They were there and they didn’t do anything?” That would never have occurred to me that that would be a response. I’m in a major metropolitan area. I am not out in a rural area. I am downtown. We’re not far from police. We have plenty of available response. I would never think of that being the response or that happening.

Kenzie: [00:25:53] Well, and I think we saw a very small version of that. Wasn’t it the parkland shooting, where the SRO left and everybody was at the time, it was like, “What are you doing?” For him, at least, you could say he’s one person. So, he got scared, he didn’t have backup, whatever. But for us, when watching Uvalde, the worst part, I think, for me was watching the video footage of them standing in the hallway, just standing there and knowing that there were parents trying to get in the building, that they were arresting and putting their energy on that instead of putting their energy towards the people inside the building. And then there was the whole thing where the woman, they said the teacher was the one that left the door open, and then it came out about that.

Yeardley: [00:26:40] That that wasn’t true, that the teacher didn’t leave the door open. I remember that.

Kenzie: [00:26:44] Yeah. It was like the whole thing just felt like, “Why are we deflecting from the fact that you didn’t do your job correctly?” Once again, just like everything else, trying to put it on the teacher. That’s, I think, where a lot of our speaking for myself, but I feel like most of us feel the same way, is we already aware. We’re teachers, we are parents, in a sense, we are counselors, we are therapists, we are nurses, we are peer mediators, especially in lower elementary, we are doing everything all day long having to make upwards of thousand spur of the moment decisions every day. And now you’re going to add this on to that, also? We can’t even count on you helping us? So, I think that’s for me, at least, it was like it just almost made me feel very hopeless.

Jennifer: [00:27:36] Yeah, it’s crushing.

Kenzie: [00:27:38] Mm-hmm.

Dave: [00:27:39] Kenzie, I understand why parents– After watching cops do nothing, I understand why parents were so upset outside that scene. “Get in there and do something, you’re the ones with guns.” The shooting’s occurring and you wait for 10 minutes, then a half an hour, now you’re at 45 minutes, over an hour, and there’s no change in the police response. I 100% understand why parents would say, “You know what? I’m going to go protect my child since they won’t.” I understand that reaction, 100%.

[00:28:19] There’s an elephant in the room that we have to talk about that law enforcement is just like every other job. Law enforcement has people that have no business being police officers who are carrying guns and badges. And the fear factor, I’ve seen folks on calls freeze up that I would have never expected to freeze up and then later on, you’re like, “Oh, he froze up again.” There are cops out there that have the freeze response. There’s also cops out there that are like, “Well, my commander just ordered me not to enter that building. So, no matter what, I’m not going to be insubordinate, because then I’m going to get suspended, if I tell this chief where to stick it, because I know that’s a stupid order.” There’s guys that are afraid to do that. And I understand that dynamic as well. I’m going to tell my boss, “Screw you. I’m doing whatever I want anyway.”

Kenzie: [00:29:16] Yeah, sure.

Dave: [00:29:18] An officer is expected to follow orders. Officers can disregard an order if it’s unlawful. An officer has some discretion and can address that with the person giving them the order, but you can’t just go off and do your own thing. There has to be a reason why you are refusing an order. It’s imperative in one of these chaotic, enormous, mass shooter type situations where you have a crime scene that is hundreds of yards long and it’s in a building that’s tens of thousands of square feet, it is imperative that everyone is on the same page. This is why we follow orders.

[00:30:00] So, you have a cohesive unit that has the same goal, same objectives, and that group is working with the same set of facts and information. When we deviate from that, we have problems. However, when we’re talking about refusing orders, if command staff at that Uvalde scene told everyone in that building to stand down, those officers are in a really difficult situation. “Do I disregard the order and now I’m insubordinate? Is there a reason why that order is being given? Is there information that I don’t know?”

[00:30:34] In this case, it seemed like just simply an order for inaction, which is– It’s unacceptable, it’s unforgivable in this situation. I can speak for Dan and I, because we had experience with this was, if there’s an active shooter, we’re not going to wait for the whole cavalry to arrive. We’re going to go and address that situation as soon as we get to the campus. We might wait 5 or 10 seconds if we see another patrol car pulling up where we now have an extra set of eyes, but we are not going to delay addressing that or at least trying to contain that situation. It’s all about timeliness in your response. I guess, that’s probably for law enforcement who have trained on active shooters that we’re going hunting. It is a hunting expedition, which means actively pursuing and hunting bad guy. The lack of urgency at Uvalde is kind of a head scratcher for us.

[00:31:38] When I say it’s a head scratcher, it really just pisses me off. I don’t know what they’re doing. They don’t know what they’re doing. People can accuse me of being a Monday morning quarterback and say, “Well, you don’t know what you would do in that situation.” I’d say, “Well, I know what I wouldn’t do.” It was what I saw with command staffs in action the day of the Uvalde shooting. It was shameful.

[pensive music]

Dan: [00:32:22] You brought up the Parkland shooting, and recently, we had the honor of speaking to one of the officers who was first to respond to that shooting. It’s a guy that I’ve known for many years. I played baseball with him. And it was really interesting to get his perspective, because he was from a differing agency than the SRO who was employed at Parkland, worked for. Infamously, everyone knows the SRO at Parkland didn’t go into the building, he fled while these shots were ringing out. So, it was interesting to me to hear from my friend, George, who had many different trainings on active shooters at different schools. He knew the layout of that school, even though it wasn’t in his jurisdiction. He and his department proactively trained at that school, because they knew there was a chance that someday, maybe something would happen there.

[00:33:14] Now, you’ve got this other jurisdiction. So, their active training was voluntary, which is really surprising to me, because this is part of our job now and that’s the reality of it is active shooters are part of the American fabric. It’s really terrible to have to say that.

Yeardley: [00:33:34] Are you saying the jurisdiction that Parkland was in, that training was voluntary?

Dan: [00:33:38] It was voluntary training for that sheriff’s office?

Yeardley: [00:33:41] That’s insane.

Dan: [00:33:41] Which most people, if their job is, “Hey, on your day off, we want you to voluntarily come in,” guys aren’t going to do that.

Jennifer: [00:33:50] Teachers are quite familiar with that problem. [giggles]

Dan: [00:33:52] Absolutely. If it’s voluntary, you’re not going to show up.

Dave: [00:33:56] Here’s a question. When you have these drills, do the students and the teachers roll their eyes and just go through the motions? Are they joking? Are they running around like, “Oh, I’m getting shot at,” making fun of things? What’s the reception of these trainings in your district, Kenzie?

Kenzie: [00:34:11] Yeah, at least, again, speaking from lower elementary, the key with young kids is you have to walk that line of serious without scaring them. And we have long conversations about this at the beginning of the year. Similar to Jennifer, we do a fire drill every single month, which is mandated by the state. And then we do two-lock drown drills a year. So, one in the fall and one in the spring. And we use the lock out hold, secure those emergency systems. When we do a lockout, we still do what we did. When I was kids, where we gather them in the back of the room, we turn the lights off, we lock the door. I like to have conversations with mine while that’s going on about– We do this to practice it, because if you practice it, you don’t have to think about it if it ever was to happen.

[00:35:09] Same thing with fire drills. We do this to practice, so it is in your memory and where to go and where to find me should it ever actually happen. I try to give them real examples of, when I was in middle school, there was a kid who caught the orchestra room on fire, because he put popcorn in the microwave for too long. And so, I’ll tell them stuff like that. And then they think it’s funny, but then it’s like, “Okay, well, that happened to her, so it could happen to me.” I tell them the story of the guy that robbed the bank when I was in kindergarten. That’s the only time in my life I ever had a real lockdown, but I still remember it and this is why we do what we do. So, I would say, from what I noticed, we’re very serious when we do stuff like this and we make them take it seriously.

[00:35:54] As far as middle and high school go, it’s very hard, I think, to make high school and middle school kids take drills seriously. I also think that with this generation, especially, humor is the way that they cope. By making light of a situation and giggling and laughing at something, deep down they know that this is a possibility. A lot of them have, again, just like I did grown up seeing this and just assume that this is just how life is because it’s the only life that they know.

Jennifer: [00:36:24] Yeah, I agree. My kids are very serious. They don’t maybe understand the actual possibilities, but they know that we’re doing this for a serious reason, and that they need to behave, and they’re all very compliant for the most part. They understand and they pay attention. I do the same thing. We do it with all of our procedures at the beginning of the year, and let them know that it is serious and that we’re doing it to keep everybody safe just in case something scary did happen. We need to practice and they’re very, very respectful of it. They do know it’s a real possibility, they’ve seen it, and they know it’s kids their age and they recognize themselves in these situations. And so, they are a little bit silly during the drills, but you still get 99% compliance and they are looking to authority to call the shots in those situations.

Dave: [00:37:16] And the parents of these students, when the new school year started back in August or September, what’s the mood and the temperature with parents after Uvalde?

Jennifer: [00:37:29] That happened the last week of school for my district, and there were a lot of kids that did not come back after that. That was the end of their school year. There was a lot of discussion with parents that it was very difficult for them to send their child to school. Just a very emotional response from parents, especially of small children and being in Texas. But I would say there was much more of a response that last week of school than at the beginning of this year. It’s just kind of time passed on. Here we go. Another school year.

Kenzie: [00:38:05] Yeah, I would agree. It was the last week of school for us too. I’m up in North Texas, so I’m hours away from Uvalde, and our district, and our principal sent out an email and I don’t feel like– I at least saw that we had a bunch of students absent that last week. I had a couple of parents that did reach out to me and say, “We’ve talked with them about this at home, so if they bring it up at school, that’s why.” But for the most part, I didn’t really notice any changes with parents at school. I would say that it was the teachers that I noticed that were just more visibly shaken up and upset.

[00:38:48] Then in coming back to school during our professional development week, we went through a decent amount of training on what TEA, our Texas Education Agency, what they had handed down as far as, “In the wake of Uvalde, this is what’s changing. Your door has to be locked at all times and has to be closed.” If TEA comes in to audit us and my door is propped open because I have a kid going to the bathroom and I left it open, we would fail our audit.

[00:39:17] They definitely cracks down on all of those safety measures trying to ensure that we are more safe. I did have a coworker that said that they had a student in their class, I want to say it was third or fourth grade that had a bulletproof backpack that they came with at the beginning of the year. I know they sell those and that’s horrifying and sad, but that’s the only thing that I’ve seen as far as the parents are concerned.

Dan: [00:39:45] Kenzie is talking about TEA and that there are some guidelines that were released. Jennifer, you’ve been doing this for 26 years. I mean, that’s a long time.

Jennifer: [00:39:53] It is.

Dan: [00:39:55] These guidelines they come down, I’m sure things have changed over the years from when you started your career to now.

Jennifer: [00:40:01] I mostly see the difference in what’s expected of me personally. Like, I can’t leave my classroom door open, if I need to go take a child, a parent calls and needs the child to come to the office to go home for an appointment. I have to have a badge and a key for two kids to get through the door, so that that kid can get into the office, and then somebody else is designated to open the door when they knock, and you have to teach the kids not to open the door for adults. They can only open the door for students that they know.

[00:40:38] If we’re out on the playground and somebody needs to go to the bathroom, if you’re the only teacher out there, you can’t take. They’re not allowed. There’s no way for them to get to a bathroom, because you would have to leave your students unsupervised while you use the key to get in one door and the badge to get in the other door, and the classroom key to get into the classroom to use the restroom, and it’s a 10-minute process, and you can’t leave the kids unattended.

Yeardley: [00:41:04] So,what does that kid do who needs to go to the bathroom, just holds it?

Jennifer: [00:41:08] Yeah. Or, if they tell you it’s an emergency and there’s nobody else out there, recess is over. You just have to take them all in if they can’t wait. We try to go in groups of two teachers. I have a small school, so there’s only two teachers per grade level. So, we try to both be out there at the right time, so that there is somebody to let somebody in a classroom if we need to. Same thing if somebody falls and scrapes their knee, recess is over. We all have to go inside, so that we can get this kid, and clean him up and, get him to the nurse, which is the same process of sending somebody to the office. You have to have a badge and a key and train a team of two kids to take them over there, so that you’re not leaving your class unattended while you’re sending somebody to the nurse. It’s made it quite difficult.

Yeardley: [00:41:54] It’s really cumbersome.

Jennifer: [00:41:57] It is.

Dan: [00:41:57] Well, it’s sad to me, because I think back to me booking people into the jail when I would arrest them and a jail runs much the same way.

Jennifer: [00:42:06] Yeah, it feels like it could be a lot alike. They padlock our parking lot at 08:30 in the morning and they don’t open it until 02:45. So, we weren’t even told this. I had taken a half day for an appointment, and I went out and got in my car and I couldn’t get out of the parking lot. I didn’t realize that this is happening. They didn’t give us a key, because they don’t have the budget to make that many keys for all of the padlocks. So, just things like that.

Dave: [00:42:35] Yeah. You’re thinking about policies and practices that are able to be implemented and make sense and we’re locking cars into a parking lot where– What if there’s a big fire and people need to leave? [laughs]

Jennifer: [00:42:52] It wouldn’t be me leaving, because I don’t have a key.

Dave: [00:42:54] Right. So, you guys had mentioned earlier about teachers being relied upon to be counselors, and nurses, and mediators and you wear all these hats. And law enforcement feels that way a lot of times as well. We don’t feel like we’re asked, “Hey, X school district just came to us and said, ‘We’re thinking about updating our Active Shooter Critical Incident Policy. We’d love to have a police officer or somebody from command staff or SWAT. Come over here and give us kind of a no BS assessment on what our plan is or help us plan it ourselves.'” We’re not even brought into the conversation a lot of times. It seems like you guys have the same frustration when it comes to policies that are handed to you rather than working with you, it’s being done to you.

Jennifer: [00:43:47] For sure.

Dave: [00:43:47] You lose the granularity of detail that you get in the weeds with people who are dealing with front line issues, but you have admin staff that never deal with these things, giving you policies on how to handle things, they’re never going to experience.

Jennifer: [00:44:03] Absolutely.

[pensive music]

Yeardley: [00:44:14] You all have talked about how these trainings have evolved over the last few years. And there’s some criticism that these training scenarios can feel so realistic that they become their own traumatizing experience, even as the goal is to be prepared for the absolute worst. As Dan said, the unfortunate reality is that active shooters are part of American life now. So, my question is, how do you see this critical incident training evolving in the future? Where else do you think it can go?

Jennifer: [00:44:47] Unless they change something outside of the actual school building, policy wise or rule wise or training wise with society, I don’t know where else it can go. The trauma would come in if you actually had to experience a real-life event. I think we do a pretty good job of sheltering the children from the trauma of it and making it as matter of fact for them as we can. But I don’t think there’s any way to avoid the trauma to the faculty and staff unless something else changes.

Kenzie: [00:45:21] Yeah. An interesting conversation that I keep saying, especially after Uvalde. We’re at the point now where the young adults that are doing these horrible things grew up in a school system that had lockdown drills. So, they know exactly what the procedures are and they know exactly what to expect. He knew going in that school that they were all going to be hiding in a corner, because that’s what we’ve been taught. We were taught it when I was in kindergarten all the way up through 12th grade. So, I think that in shifting it to training where they tell you you can run, you can throw things. I was never taught as a kid to throw things. But I also, when we did lockdowns, they never really explained to us why we were doing a lockdown. It’s a safety thing.

[00:46:15] I tell my kids, “There are bad people in the world and it’s not that they’re trying to hurt you, but it’s to keep us safe from a potentially bad situation.” That usually seems to be enough for them. But I think that we’ve already made the changes that I can see us making in teaching us to arm the kids with scissors, and staplers, and books or get them out completely. To Jennifer’s point, I don’t see how we could on our level, for us at least, how we could change anymore if nothing above us is ever going to change, which it feels like it won’t.

[pensive music]

Dave: [00:46:58] That’s it for this episode. Jennifer and Kenzie will be back next Friday for Part 2 of this series. We’ll also have Detective Aaron, a former school resource officer, who will provide the law enforcement perspective. And Dan and I will share our thoughts about ways to improve awareness and training.

[00:47:16] For anyone who needs help or find themselves in crisis, the National Suicide Prevention Lifeline can be reached by texting HOME. That’s H-O-M-E to 741741. Or, you can speak directly to a trained crisis counselor by dialing 988. Thanks for listening to our first episode of The Briefing Room. And thank you to Jennifer and Kenzie for sharing your experiences and to Yeardley and Dan for the insightful questions. We’ll see you at the next briefing.

Yeardley: [00:47:46] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith and coproduced by Detectives Dan and Dave. This episode was edited by Logan Heftel, Soren Begin, Christina Bracamontes, Chris Ray, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

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