TELEPHONE: (315) 348.8200 PUBLIC SAFETY CENTER Fax (31) Mo-z12 "yo CHURCHLL ROAD ‘OSIVEGO, NEN YORK 13126, Office of the District Attorney asi wooor GREGORY S. OAKES Assist. FIRST ASSISTAN DISTRICT ATTORNEY ! Cos SssTRCT ATTORNEYS pismricr arronvey eet RONER nates. NICHOLSON MATTHEW J BELL KATHLEEN M. MACPHERSON ROBERT E.GENANT iivesrioaToR August 10,2015 ‘ALLISON ONEILL COURTNEY E HAVILAND HOURS. CHRISTOPHER ‘CHARLES H. CIESZESKI Hon. Denil King Acting Oswego County Court Judge 25 Bast Oneida Steet Oswego, NY 13126 Re; People. Gary Thibodeau ~ Indictment No. 94-161, Dear Judge King {nad intended to tal upon my Filing of July 17, 2015 regarding the admissibility ofthe "Van Zandt report” and defendants renewed motion for the court to receive the content of Micha! Bohrer's box (Exhibit 53). After further consideration, 1 sk thatthe cour please accept this letter ‘asa supplement to my nti response. Tn addition othe grounds se fort in my response of July 17,2015, the People oppose the dmission ofthe report because the document consists of hearsay. Although the partes have refered tothe offered document asthe "Van Zandt report," i ppears that Clinon Van Zandt isnot the author ofthe document. Indeed, the opening paragraph makes clear tha the affan is someone ‘other than Van Zandt. Thus, to the extent that Defendant is offering the document to express the opinions of Clinton Van Zant, the court should preclude is admission on hearsay grounds ‘Additionally, the People oppose the introduction of the report andor testimony from Clinton ‘Van Zandt on the grounds that Defendant has failed to show thatthe type of profile evidence being offered has gained general cceeptance as reliable within the particular field in which it belongs. See People v, Wesley, 83 N.Y.24 417,423 (1994), In herlete of July °7,2015, Adomey Pecbles suggest that this court should follow the standard for admissibility st forth by the United States Supreme Court in Daubert v, Merrell Dow. Pharns, 509 U.S, 379, 113 3,Ct. 2786 (1993). See 83 N.Y 2d at FN2. However, the Supreme Court was addressing the standard that applied to expert testimony under the Federal Rules of Evidence, which do not govern New York State courtsIn Wesley, the Coust of Appeals affirmed that New York courts are sil bound by the Frye test ather than the mote leient federal rules. See 83 N.Y.2d at 423. In recent decisions, the Court ‘of Appeals has continued tc use the Frye standard, See People v, Collins, ~= N.Y.S.3d 2015 WI. 4077176, 2015 N.Y. Ship Op, 25227, N.Y Sup, July 02,2015; State of New York v. Hans, N.YS.3d—,2015 WL 3754727, 2015 N.Y, Slip Op. 25196, April 27,2015. Consequently, this ‘age is governed by that standard, which requires a defendant to show that the expert testimony is ‘generally accepted us reliate within the particular field “The cour should exclude the proffered evidence because defendant has filed to show that the profile evidence contained within the Van Zandt report is generally accepted as reliable inthe appropriate related fel, (Indeed it is unclear exaetly under what field such testimony falls. Is it triminology? Is it psychology?) In fac, there are lav review and scholarly articles that all into {question reliability ofthe (pe of profile evidence that Defendant secks to introduce. See James ‘Aaron George, “Offender Profiling and Expert Testimony: Scientifically Valid ot Glorified Results," Vanderbilt Law Review (2008), citing to See David Canter, "Offender Profiling and Investigative Psychology,” |. Investigative Psychol. & Offender Profiling 1, 4-6 (2004) (Giseussing psychological studies that cal into question these fundamental assumptions) The cour need not ok at scholaly articles to realize the practical limitations of profile evidence, though. While Defendant cites to Clinton Van Zandt’ laudable workin regards othe (Oklahoma City bombing ar developing « profile that fit Timothy MeVeigh, the profiling techniques wsed by the FBT are not without limitation. Te FBI hs also developed erroneous profiles at times, suchas ding the Centennial Olympic Park bombing at the 1996 Summer Olympics in Adanta which led to Richard Jewell being wrongly identified as the potential bomber. (la fairness to Clinton Van Zand, the People do not know whether or to what extent he was {involved in the Olympic bombing investigation.) “To be clear, though the People donot need to establish that such profile evidence is unreliable. Under the Frye standard, as the offering party, Defendant caries the burden of demonstrating that profile evidence is generally accepted as reliable. In that regard, ts unknown, “whether the conclusions anc character profile developed by Van Zandt in 199i ill accepted today. For the cout to rece ve the report or permit testimony on the same, Defendant should first be required to demonstrate tat the opinion offered by Van Zand two decades ago is til applicable and considered reliable, ‘While Defendant dru an analogy between profile testimony and the introduction of expert testimony on the subject of Child Sexual Abuse Aevommodation Syndrome (CSAAS), the ‘comparison is inappropriate because the defense has failed to cite ro any peer-reviewed publications ‘that supports the reliability of profile testimony. See People v. Spieola, 16 N34 441, 453-54 (011), sting 19 Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child ‘Abuse & Neglect 177 [1983]; se also Roland C. Summit, Abuse ofthe Child Sexual Abuse Accanmodation Syndrome, !1Child Sexual Abuse 153 [1982]. Farther, testimony 01 the subject of CSAAS is offered to help explain characteristics ot bbchavios of the viet that seem incongruous with how a juror may expecta vitim to reac. Essentially, the testimony is offered to dispel juror misconceptions. The courts have made clear that CSAS testimony may not be offered to show that asexual assault fook pace or that defendant was the person who committed the offense. See People v. Bennett, 79 N.Y.2d 464, 472-473 (1992). 2Although Defendant stats that he simply wishes to use the Van Zandt report to explsin ‘behaviors of Michael Bohrer that may seem unusual to jury, it's clea thatthe defense is seeking to tse the profile evidence in oder to establish his culpability. As noted inthe People's filing of July 17,2015, during this hearing, Defendant has offered no evidence that directly connets Michael Bohrer to this offense. Insizad, the defense has offered testimony about vague statements that have ‘been atibuted to Bobrer, hoping this court wil infer or impute a sinister meaning. In the absence of evidence that diretly links Michael Bohrer to this offense, Defendant secks to use his prior bad acts (e, Milwaukee convictions), uneomtaborated allegations by his ex- wife, and suspicion of wrongdoing (i.e. Beacon City) to portray im as someone who was capable ‘of kidnapping Held, Deferdant now secks to amplify the propensity evidence with profile testimony to show that he isthe typeof person who could commit the instant offense. Essentially, hn is seeking to use both propensity evidence and profile evidence to "bootstrap" eachother when either is inherently reliable ‘The admission ofthe profile testimony detracts from the ultimate issue of who kidnapped Heidi Allen, Any probative value of soc testimony is substantially outweighed by the danger of nfs prejudice, confusion of the issues or misleading the jury. Itis likely that ajury would give such estinony unde consiseration and abundon thei fact-finding esponsibiiy. ‘To be clear, the People are not vouching for Micheel Bohrers character. Bohrer may very ‘well bea monster. His prior convictions certainly show that he has demons in his past. However, that he may be capable of committing ths typeof offense does not mean that he committed this particular crime. A jury might not appreciate the distinetion, which is why this court must be the patekeeper and preclude the profile evidence offered by Defendant Vhaxeg klar carecoré s, oaKEs Distie Attorney ec: Lisa Peebles, Esq, Oswego County Court Ceri Gal Heather, Esq