Keywords

deposition; detective; finding; homicide; interview; investigator; robbery; security plan; surveillance; vendor

Miller v. Jason Cartwright and Greater Legion Hall

Mildred Miller was the owner of Old Lace Antique Jewelry, a well-known boutique specializing in purchasing and selling antique jewelry in the historic part of town. Her store was professionally surveyed and designed to protect her inventory with state-of-the-art security hardware; a customer couldn’t just open the door and walk directly into her shop. Visitors were required to ring a bell, and Mildred or her sister would buzz open the door if they recognized the person or the customer looked “legitimate.” If the visitor did not appear trustworthy, they wouldn’t open the door. If the sisters absolutely didn’t like the potential customer for any reason, including anything from grooming to ethnicity, they simply would say, “Sorry, we’re closing for inventory,” and close temporarily.

The high point for Mildred’s business each year was the antique and jewelry show held in the Greater Legion Hall. Sellers had to pay a fee to show their inventory; the size of the fee was in relation to the size of the show space (i.e., “booth”). Jason Cartwright was the promoter of the annual event and coordinated everything from publicity, advertising, assignment of selling spaces, special needs, and security during the event. Typically there were over 200 different vendors with their exhibits in the sales area.

Mildred and Jason had known each other for years. He wasn’t an antique dealer, but he went around the country promoting antique shows as a unique and specialized business. By virtue of that long connection with the trade, he was quite accustomed to eccentric, cranky, or cagey shopkeepers.

Mildred always insisted on the very center of the hall, the largest selling space. She placed her lockable showcases in a large square and during the three-day event she, her sister, and two nieces (who were learning the business) manned the booth. Because she was wary and ever-alert, her business had never lost as much as a costume jewelry ring.

This year, she had various pieces on display, and according to her, the value exceeded $750,000 at retail prices. No one knew the real value.

Jason’s security plan this year was the same as the years prior. During the hours the show was open, armed guards were stationed at the two main entrances, and a guard was posted at the vendor’s door by the kitchen area. The officers were equipped with two-way radios and Jason assumed the role of chief of security. The contractual understanding was the protection of merchandise was the sole responsibility of the vendors and the presence (and costs) of the uniformed officers was simply to provide a security presence and action in the event of an emergency.

Every door, including emergency exits, was alarmed. All the windows were protected with breaking-glass sensors (electronic devices that hear and react to the unique sound of breaking glass). The alarm system also included two “panic buttons,” smoke sensors, and water-flow sensors.

When the show closed each evening, the vendors locked their goods in the cases and took home exceptionally valuable pieces. Once the public vacated the building the doors were all locked and chained. Three guards remained on duty, two wandering the floor (more or less overseeing the lockdown by each merchant) and one manned the vendor door (overseeing the departing workers). Once the building was confirmed empty of all customers and vendors, the three guards were relieved by the night guard, who chained himself in by roping the chain around and over the doors panic hardware. Lights were turned off except for scattered low-illumination bulbs to allow the interior guard to make his hourly rounds.

On the morning of the last day of the show, the vendors filtered in and went to their respective booths to prepare for the day. When the Miller sisters and one niece walked to their area, Mildred screamed and fainted. Her cases had been opened and most of her inventory was simply gone! Jason was in the building and he ran to the scene, then quickly radioed for the police and instructed the security guards to seal the building so no one else could come in or leave. Within a matter of minutes, the vendor of a neighboring booth shouted and pointed to a rope dangling through an opening in the ceiling.

Investigation revealed there was a modified penthouse-like structure on the roof of the great hall that housed air-conditioning units. The access doors of that structure were not alarmed nor were they equipped with locks. The burglars, either current employees, ex-employees, or professional burglars with contacts with the hall or with the air-conditioning service company, entered the penthouse and carefully removed some of the wood flooring. Looking through that opening one could see the upper side of the suspended ceiling tiles. It was then a simple matter to remove some of the ceiling tiles, tie a rope, and lower themselves down (and pull themselves up) the rope dangling down into the center of the hall. Other ropes left behind in the penthouse indicated they were used to pull up baskets of goods for eventual removal from the property. Inspection of the exterior of the building revealed physical evidence as to where and how the building was scaled.

The interior guard, who was allowed to sit in the kitchen office and watch television between patrols, never heard a sound, and when he made his regular rounds he saw nothing suspicious. Mildred was financially wiped out and several other merchants sustained significant losses. The police never solved the crime.

Mildred filed a lawsuit against the promoter and owner of the Greater Legion Hall claiming they were negligent in their obligation to protect her property.

The plaintiff’s expert opined the guard should never have been allowed to watch TV and should have been continually patrolling instead. I served as the defendant’s expert and testified the security measures were reasonable and adequate, but were defeated by a professional criminal plan that even confounded the police.

I countered the plaintiff’s expert with my opinion of the security measures in place, and, considering the relatively small area (albeit it was a large enclosed hall), constant walking would have been an unreasonable requirement of a security officer. I further stated no security executive or professional consultant would have recommended or required a guard to constantly patrol such a relatively small space, which was already secured with chained doors. In view of the strategy of chaining the doors, I considered the guard’s presence more of a fire watch than a crime prevention assignment. In my opinion, there was no negligence in the protective strategy for the event, including no negligence in the absence of alarms or locks on the penthouse because of the unforeseeability of a professional criminal attack in that kind of building.

The jury found there was no negligence, therefore the Greater Legion Hall was not liable for the loss.

Brown v. Ace Alarm Company

Benny’s Place was a typical local bar tucked back in a zone between very modest homes, commercial buildings, and the railroad yards. As a rule, only locals patronized the bar. A new face or stranger would be hard-pressed to linger after one bottle of beer. It was almost like a private club or family.

Hal Brown was a brakeman for the railroad, and when he was in town he could be found at Benny’s. Hal, for his own safety while working in the railroads switching yards at night, carried a small automatic pistol in his overalls and had done so for years. Some people knew it, some probably didn’t.

On the fateful night of November 14 the bar was jumping. The jukebox never stopped; if it did Margie Trimm, the bartender, put in more quarters. The little bumper-pool table was busy and the smoke hung heavy halfway down from the ceiling. It was, as always, noisy with chatter and laughter.

As is typical, the clock on the wall was 20 minutes fast. As the hour of 2:00 a.m. approached, Margie called out “Last call!” At about 1:55 a.m., bar time, only Margie, Hal, and three other patrons were still there. Margie approached the door to lock it when she was violently forced back in by two men in masks rushing in, each carrying a handgun. The assailants shouted for everyone to lie face down on the floor. One jumped the bar and shouted for Margie to come to the register because he couldn’t get it to open. He threatened to kill her if she didn’t comply. Margie pulled the bills from each slot, including the twenties, knowing that the bill compartment was alarmed. The alarm configuration would activate when all the paper money was removed; the spring clamp that holds the bills in place would make contact with the brass plate screwed to the bottom of that part of the register drawer. When that metal-to-metal contact was made, it automatically made the necessary connection to transmit the silent signal to Ace Alarm Company’s central station. Receipt of the signal indicated to the operators in the central station a robbery was in progress and they would promptly contact the police. Because the police station was only five blocks away, Margie assumed the police could arrive in no more than three minutes, if lucky.

In the meantime, the second robber was methodically searching each of the four men lying on the floor, taking watches, wallets, and searching pockets, in no particular rush.

Both Hal and Margie were worried. She knew Hal was armed. Hal knew of the silent alarm and was praying the police would arrive before the robber started to search his pockets. They both silently prayed, amid the constant flow of obscenities and insults. Hal’s prayer must have been more fervent, realizing if the search revealed the gun the robber would most likely suspect he was a police officer and kill him.

The police did not arrive before the suspect came across the gun in Hal’s pocket and that criminal shot Hal to death in the back of the head as he laid there on the floor. The robbers ran from the bar into the night and escaped.

The police were never informed of an alarm signal from the bar. The police weren’t informed of the robbery because the alarm did not work, as designed and required. They did finally come as a result of Margie’s 9-1-1 call.

Hal’s family obtained an attorney who filed a civil action against the alarm company for negligently installing and/or maintaining the robbery alarm system. I was retained by that attorney and served as the security expert and expert witness. The complainant alleged, as noted earlier, negligence in the maintenance of their system.

The alarm company records, obtained through the discovery process, included a request for the production of documents that revealed the “hold-up alarm” devise installed in Benny’s Place had never been tested since its installation several years earlier, despite the contract requiring inspections. Of course, the bar received a bill every month for the hold-up alarm. In my professional opinion, the failure to regularly test the alarm was negligence. Had that alarm been properly maintained it would have immediately signaled this grave event, and more likely than not, the police would have intervened and Hal’s life would have been spared.

The matter settled to the benefit of the Brown family.

Fujimoto v. Mid-Pacific Island Princess Hotel

An attractive young tourist, Chieko Fujimoto, arrived in the idyllic paradise of the mid-Pacific and checked into an upscale hotel, the Mid-Pacific Island Princess. World War II swirled around this area in general and the island in particular. The hotel has a huge lobby open to the front to welcome incoming guests; the other side of the lobby looks out over the ocean. Palm trees are everywhere. After getting settled in Chieko decided to go shopping.

Chieko hailed a cab in the driveway in front of the hotel and asked the driver, Richie Soto, to take her to a shopping district. She sat in the front seat and, as they drove, she asked Richie where she could purchase marijuana. All the taxi drivers had been warned that “undercover spies” were being deployed to catch islanders selling dope, so he claimed ignorance of any drugs. She accepted that and spent part of the day shopping while Richie waited for her at each location. He returned her to the hotel and she spent the evening socializing with her tour group.

The Island Princess allowed taxi drivers to park and walk into the vast lobby to solicit business. Later, Chieko and the same driver spotted each other and he offered her transportation again. She again sat in the front seat. Not far from the hotel she noticed marijuana in his ashtray. Irked by his earlier claim of not having “grass,” Chieko called Richie a liar. He told her to “screw off” and the verbal exchange accelerated. In a fit of anger Chieko clawed his face with both hands. Richie instantly struck back with his right hand and stopped the taxi abruptly where the two continued to battle. He choked Chieko to death and dumped her body in a remote spot on the island. He then went about his business as though nothing happened.

The next day Chieko’s body was spotted and traced to the hotel. Witnesses informed the police she had been seen the day before talking to Richie in the lobby and the two disappeared together.

Richie was at home. The police asked him to come down to the police station, which he did. Richie admitted driving Chieko the first day and told the detective she asked for a ride yesterday, but he was already booked. The scratches on Richie’s face aroused the detective’s suspicion; when asked how they got there, Richie claimed he got scratched chasing one of his roosters.

“Brudda Richie,” said the detective, “that dead lady has your skin under her fingernails. Now tell me that rooster story again and we’re going to have an unpleasant relationship.”

“No trouble between us, bro,” replied Richie. “She was fixin’ to scratch out my eyes and I had no choice but to protect myself. I choked her to make her stop scratching me. When she passed out I threw her out of the cab. I didn’t mean to kill her. It was an accident.”

The main cause of action in the suit brought by the victim’s family was that the hotel allowed unscreened, unknown taxi drivers and strangers to enter and wander the lobby of this elegant hotel without any oversight and solicit tourists to join them for remote rides on the island. The plaintiff’s theory was, had the drivers been properly screened, restricted from entering and freely mingling with the guests, and required to cue-up and await the doorman’s signal when a guest needed a taxi, as is common in respectable hotels worldwide, this crime would never have happened. Bottom line, the hotel was negligent in how it controlled vendors providing services to guests.

As the expert for the attorney defending the hotel, two colleagues (investigator Skip Melberne, the premier investigator in the state of Hawaii and an expert in resort hotels, and John Takeshima, a polygraph examiner) and I departed from Honolulu with two tasks. The first was to visit the island and inspect the various luxury hotels, including, of course, the defendant property, and benchmark those hotels with Mid-Pacific Island Princess Hotel. The second task was to interview Richie in the commonwealth’s penitentiary with the specific goal of getting him to again admit he committed the crime.

Richie had originally confessed and, per the presentencing agreement, was sentenced to 20 years in prison. Once Richie was named as a defendant, along with the Mid-Pacific Island Princess Hotel, in the civil action, he changed his story and claimed he was not the murderer. He retracted his confession. This retraction was a knotty issue in the defense of the hotel because it would tend to support the argument an unknown stranger from another island could have been the assailant.

With the cooperation of the warden, Melberne and I entered the prison and were guided to a table and chairs for our interview with Richie. Takeshima waited outside, standing by in the event a lie detector test was requested by Richie, something we were prepared to offer if he insisted he didn’t commit the crime.

Prison officials didn’t seem interested in listening, so it was a casual, open-air chat, unlike any other in-prison interviews I had experienced.

Interviews aimed at obtaining an admission when conducted by two interviewers usually evolve into a “good cop/bad cop” scenario—that is, one is more friendly and understanding than the partner. I can’t recall which role I fell into, nor does it matter here. Richie at first, as expected, claimed he didn’t do it. He claimed it had to do with bringing shame on his relatives, a very important issue in the culture of this island community. We eventually brought him around to choosing which of two positions would be worst: the shame of accidentally ending someone’s life, or the shame of being an intentional liar. He chose the second and admitted his retraction was not true. He did not want to be known as a liar and did not want his relatives to bear the shame of him being a liar. That task was completed.

The “benchmarking” survey of hotels on the island disclosed all the hotels’ lobbies were wide open for tropical ventilation purposes. We concluded the casual island lifestyle was most permissive with respect to who could enter hotel lobbies, and the standards and practices on the U.S. mainland and other metropolitan areas simply didn’t exist. As long as the taxi driver was clean, sober, and well-groomed, he or she was welcome to enter the lobby and offer excursions or rides to any interested guests. It was viewed as a service. With respect to unknown or unlicensed drivers, every resident of that island knew each other, and, it appeared, were related to each other one way or another.

The Mid-Pacific Island Princess Hotel’s practices were in keeping with industry custom and practice. It was not a dangerous property, nor were any of its security measures inadequate or lacking. In my opinion the complaint lacked merit.

The matter settled to the satisfaction of all parties.

Kenworth v. Patriot’s Plaza

Patriot’s Plaza is a red-brick, multi-use, four-story commercial building with a huge interior atrium in its center, from ground to ceiling. It’s located in the center of what locals call Old Towne, part of a downtown renovation project. Tenants include retail shops, law offices, various cafés and small restaurants, and accounting offices, to name a few.

There’s no central authority that overseas this six-square-block area of Old Towne, other than the city and its police department. The only security I saw happened to be at a bar; they were the typical door hosts who check ID and deal with intoxicated patrons or disturbances inside.

Several women visiting from out of state, including Fern Kenworth, were on a day shopping trip while their husbands attended a business conference. They found their way into Patriot’s Plaza, browsed through some of the shops, made a couple little purchases, and had a light Italian lunch. Fern then asked where she might find the ladies’ restroom. It was on the northeast corner of the atrium on the second floor. Stepping away from the open atrium, she went down an empty hall to the women’s restroom. Further down the same hall was a men’s restroom.

Fern entered the room through a single, unlockable door. Three toilet stalls were directly ahead of the entrance. The sinks were to her right, over which was hung a large mirror. Fern noted a pair of what appeared to be women’s boots in the center stall. She entered an adjacent stall and, while seated on the toilet, noticed the person who had been next to her flushed the toilet and left that stall.

The next thing Fern knew the room was pitch black. The person who had been sitting in the adjacent stall had turned off the light switch. Alarmed, she yelled out, “Hey you’ve turned off the lights,” not suspecting it was an intentional act. At that moment her stall door opened and a figure began to grope her. She struggled to pull back in the limited space, was struck in the face, and her glasses fell off. Fern screamed for help with no response. Her assailant was a man, but she couldn’t see his features. For whatever reason the man released his hold, left the stall, and exited the restroom. It took a few moments for Fern to adjust her clothing and feel her way to the entrance door (she knew it was the door because the lighting outside the room illuminated the crack at the bottom). She turned on the lights, looked outside the restroom, and saw no one.

Fern returned to her friends and relayed her traumatic experience. They immediately entered a shop and asked the clerk to call the police. While waiting for the police, the group asked for the building manager and was told the property manager was in another building and not available. A police report was filed and the ladies returned to their hotel.

A lawsuit was filed against the property manager for not providing some form of security, even for some form of key control to restrict access to the restrooms, a rather common practice.

I was retained by the plaintiff’s counsel, and upon my inspection of the Old Towne district in general and the Patriot’s Plaza specifically, there clearly was a need for some security presence, such as a uniformed officer one would expect to find in a shopping center. Albeit minimal protection, one officer could have been a reasonable expense, and could strategically be seen moving about in the Patriot’s Plaza and the six square blocks that comprised Old Towne. Two public restrooms were the only such facilities in the entire complex, and they were out of sight down a remote side hall. One flight of stairs down was an exit door from the building, so anyone could come and go without being noticed.

I inspected the interior of the men’s restroom walls based on my experience as a vice officer early in my career, and found indications some sexual contacts had occurred in that room, including the presence of solicitation messages such as “Meet here Thursdays 2:30” in very small print. Infrequent inspections of the restrooms by security would have been a normal and reasonable activity. When it became known security checks of the restrooms occurred on a regular basis, sexual deviancy would go elsewhere. My opinion in this matter was there was a need for some security presence.

Had I been retained as a security management consultant to assess Old Towne and Patriot’s Plaza prior to this incident, which was a major portion of my consulting practice, I would have recommended the deployment of a uniformed officer as a deterrent to crime, in keeping with custom and practice in the shopping-center industry. Of course, I was not so retained. More importantly, I was not asked a question while on the stand that would have allowed me to share what I would have done, which may have been thought-provoking for some jurors.

The plaintiff was from out of town, as was I. I could sense the local people may have been sympathetic to Fern and had no issue with my credentials or judgment, but they simply didn’t want to punish the owners and management of this staid, traditional part of the city. The defense attorney argued this was a totally unforeseeable incident and there was no duty to provide security. This is a common defense position, depending on the circumstances of course, and indeed that has been my position in some cases.

The jury found for the Patriot’s Plaza.

Hernandez v. June Department Stores

The armored car arrived in the service alley at 11:45 a.m., its scheduled time to pick up the daily deposit for June Department Store, prepared by the cashiers in the secured cash office. The store was located on the corner of a major intersection. The front of the store had two sets of double doors and faced north on a major boulevard. The west side of the store had two sets of double doors and faced a highly trafficked boulevard. The east side had one set of doors; it bordered an active alley and service corridor.

The three-story store opened at 9:00 a.m. and two plainclothes store detectives, equipped with two-way radios, inconspicuously patrolled the store’s three floors and basement. Both were on duty when the armored truck arrived, even though they weren’t aware of the truck’s arrival, nor should they have been. Their focus was on customers browsing the store, looking for indications of possible shoplifting.

The driver, Billy Brown, remained in the truck with the engine running while the second guard, Carlos Hernandez, dressed in his uniform and cap, exited the vehicle through the cargo compartment door located on the passenger’s side. Once he closed that door it self-locked, requiring a key to reenter the truck with the “coal bag” containing the store’s bank deposit bags.

Carlos was an experienced armored car guard and had been properly trained. He carried the empty canvas bag in his left hand while his right hand rested on the handle of his .38 caliber revolver. He entered the store through the single set of eastern doors, turned left, and walked south past the cashier’s window to the cashier office door with a small 10×10 inch window and pushed the button. The head cashier, Mary Fiorini, looked through the interior door window and, recognizing the guard, buzzed open the first door.

Carlos was now in a “man-trap” (a short hallway between two locked doors), and, in keeping with policy, he now exhibited his armored service company credentials. Mary, in the cashiering vault area, released the latch and allowed him access. Carlos set about his duties of signing for the numbered sealed bags and placed them in his “coal bag.” The canvas bag is similar in size and construction to a firewood bag one finds in homes with fireplaces. It should be noted at some stops a dolly is required to wheel the bags because of the weight, especially in businesses that frequently use coins. The bank bags on this trip, as usual and as expected, were not heavy, but they did contain currency and bank checks amounting to thousands of dollars.

At about 11:00 a.m., prior to the truck’s arrival, two men entered the store through separate doors and browsed the displayed merchandise on that main floor. Neither of the two were unusual in appearance nor were they acting suspicious. In the normal course of events both men came under brief surveillance by each of the two store security agents, but there was no indication in their behavior they might be shoplifters or considering shoplifting. Rather, they appeared to be “killing time” waiting for someone. This store, located in a major metropolitan area, had heavy foot traffic. It was often a meeting place because of its reputation, location, and a lunch room on the third floor.

Carlos, now with the bag in his left hand and his right hand on his gun handle, was buzzed out the cashier’s room inner door, then again buzzed through the door leading onto the sales floor. As he commenced the long walk northbound back to the set of doors facing out to the waiting armored truck, the two male customers approached Carlos from his rear left side, each carrying a handgun. Before he realized what was occurring, they shot him dead inside the store, snatched the “coal bag,” ran across the store to the doors on the west side, and disappeared.

Because the walkie-talkie radios were both “open,” Billy thought he heard shots but wasn’t sure exactly what had happened. He called Carlos, but there was no response. Billy immediately called his office, who called the police.

The Hernandez family filed a lawsuit against the store alleging negligence for (1) scheduling an armored car to arrive at a predictable time each day, therefore facilitating the likelihood of a planned robbery; (2) the two security agents were negligent by allowing single strangers to wander aimlessly for nearly an hour without making a purchase; (3) trained security officers should have realized an armored car was due, because of its regularly scheduled visit, and should have called the police before the incident as a preventative measure; and (4) the store’s agents should have been armed and, had they been armed, they could have shot the robbers either before the hold-up or as they fled through the store.

I was retained as the store’s expert witness. A university professor teaching criminal justice was the plaintiff’s expert.

The professor testified in deposition that the agents should have been armed, should have realized the two men could be waiting for the armored car, and could (and should) have prevented this tragedy if they had been properly trained. He also testified that store detectives should escort armored guards to and from the cashiering operation and, had they done so, while armed, the robbery and death would not have happened. The professor admitted he had no private sector experience or retail experience.

I testified in deposition that store detectives were never armed and the local police would object to such employees carrying guns; indeed, the state law prohibited the use of guns by these private citizens. I testified that the protection of daily receipts and bank deposits was outside the area of responsibility of store detectives; indeed, that’s why specialists in securing and transporting money were contracted out to the armored car company. I testified security agents are trained for the classic indicators of possible shoplifting and their failure to suspect the two “customers” of being armed robbers was fully understandable, especially in view of the fact store detectives had no information about, interest in, or duty to be aware of armored truck schedules or even the risk of such an event. Considering it was the first robbery and death of an armored truck guard in this chain store’s history, I also testified it was an extraordinary event.

The attorney representing the store was so persuaded by my testimony that his case was a “slam-dunk” defense, he didn’t bother to call me to testify during the trial.

According to the report and discussions post-trial, the decision to go “bare,” i.e. not produce an expert, was a fatal trial error. The jury was most impressed with a criminal justice professor, and his testimony and opinions went unchallenged. The jury found the store negligent in not arming their security personnel and not training them to help protect the daily bank deposit. To this day, I roll my eyes when I think of that professor’s opinions and the jury’s decision.

The store was held liable for the death of the guard.

Brown v. Elanta Department Stores

Elanta Department Stores, a fashion department store chain, followed the unusual protection strategy of using off-duty police officers to patrol the interior of their stores, as opposed to the more traditional strategy of deploying in-house store detectives and investigators. The upside of using officers for the company was avoiding costs of normal employee benefits, such as vacation and sick pay, health insurance, and a retirement program. They also had the unusual benefit of having local police service in store and under their control. Additionally, it was more likely the store would enjoy some immunity against a lawsuit in the event an officer stopped a customer for shoplifting when the customer in fact had not stolen any merchandise.

The downside of using police officers was their demand for a much higher hourly wage than a regular employee because they viewed their time on the job in the store as “time and a half.” Put another way, they were expensive. Another negative factor was an officer scheduled for a given shift at times couldn’t show up for work because of the demands of the police department, such as an emergency or unexpected event. Then the store had to go without security or scramble to find a last-minute substitute. Working for the store was a far lower priority than that of the officer’s primary employer—the city police department or county sheriff’s department.

Because the ongoing cost of two police officers in each store during store hours was considerable, the company’s finance division developed a new strategy of using TV cameras operated by regular civilian employees and deploying only one police officer at a time. The company purchased and installed the cameras and published a job description that mandated the camera operator could not leave the camera room. If the operator observed someone conceal or attempt to steal merchandise, that information would be forwarded to the police officer in the store, who would deal with the culprit. On the face of it the plan seemed reasonable, but in reality there were frequent occasions when what the camera operator saw and reported was not a theft, and the customer stopped by the police was most indignant, to say the least. However, the police officer, because of his or her authority, could smooth over the mistake, something a store’s loss prevention agent couldn’t do.

Invariably, there were times when the police officer scheduled to work simply didn’t show up for work and only the store camera operator was on duty. Store management didn’t want to engage in security work, so they ignored the job description and instructed the operator to go ahead and leave his or her post and go onto the selling floor to make detentions. Some managers went so far as to purchase metal policelike badges that read “Elanta Police” for the camera operators.

One newly hired part-time camera operator, Jason Peters, a local city fireman, regularly worked alone without a police officer in the store. Jason made a number of detentions for shoplifting and was praised by the store manager for his work, although company policy prohibited camera operators from making detentions.

Early one evening, Jason was working alone. He observed an attractive young woman, later identified as Janelle Brown, place an item of merchandise, a red wallet, in her coat pocket. Jason left the camera room, located Janelle on the selling floor, displayed his Atlanta police badge, and escorted her up to the privacy of the camera room located on the second floor of the store. Janelle surrendered the stolen wallet when he asked for it. Company policy specifically stated no female should be questioned or processed without the presence of another woman to serve as a witness. This policy was designed to ensure against any subsequent claims of indecent suggestions, remarks, or other impropriety. Jason was aware of the policy.

Jason completed the required paperwork for a person in custody. When done, instead of calling the police to report what had happened, Jason put down the pen and informed the worried and upset detainee, in very descriptive and obscene language, that if she would not submit to sexual intercourse he would call the police, and they would take her to jail. Literally terrified and crying, Janelle stated she would rather go to jail.

Jason arose from his desk chair and instructed Janelle to accompany him. They left the camera room and climbed the stairs to the fourth floor. She quietly wept and her body shook as they went up the stairs. There were no employees in the area. This floor wasn’t open to the public, but, rather, was used for some stock and storage, dimly lit, and was rarely visited by employees.

In a remote part of that floor was the storage area for the display department’s various props, including seasonal decorations like a sled and reindeer. Near those displays Jason forced Janelle to undress, by intimidation and threats of bodily harm, and raped her on folded furniture mats lying on the floor. She was crying throughout the ordeal.

When done, Jason allowed her to dress. He returned Janelle to the security camera room, reminded her he knew her address from the detention report, and threatened her and her family if she told anyone what had transpired. Jason said he would tear up the report for the police and she was free to leave the store. He escorted Janelle to the front door and saw her off.

Janelle walked to the corner and down the side street and west side of the large store and reentered. She approached an employee behind a counter in the jewelry department and said she had been raped and needed to see the store manager. The manager appeared, and when he saw how upset Janelle was and when she said she had been raped by the security officer, he immediately took her to his office and called the police.

By the time the police arrived, Jason had completed his shift and left the store.

Detectives found the detention report identifying Janelle and noted that Jason had logged the arrest on a clipboard bearing the names of all persons arrested month-to-date. Jason was subsequently arrested, charged with rape, prosecuted, changed his plea to guilty at the time of trial, and was sentenced to 15 years in the state penitentiary.

Janelle retained legal counsel, who commenced a search for a retail security expert. I agreed to being retained. The task for the expert was to assess the protection program to determine if the store was in any way exposed to liability or responsible for the conduct of its employees. Was the store negligent? More often than not, a plaintiff law firm will draw up a complaint and causes of action without the benefit of an expert’s input and subsequently locate and retain the expert. The expert, when queried, will either agree or disagree with the theory of liability and, in that discussion, the attorney may decide to retain or not retain the expert. Both sides make a choice.

Once a lawsuit is filed, counsel for the defendant will commence his or her search for the same kind of expert, and the battle lines are drawn and the process of discovery commences. The end result of the process of discovery is the expert forms his or her opinions and each side is provided with those opinions. An expert’s opinions can, in and of themselves, persuade one side or the other to avoid trial and settle.

My numerous findings and subsequent opinions in this matter included, but were not limited, to:

The bottom line: the store’s security/loss prevention program was below the industry’s standard of care and failure to oversee and supervise security staff amounted to gross negligence. The matter settled.

Washington v. Crestview Country Club

Hank and Millie Washington and their two daughters, 19-year-old Kenesha and 22-year-old Cherese, resided in the exclusive and private community of Crestview Country Club. They were one of four African-American families who were property owners in that community. The heads of these households were professionals, and they all were active in the social activities of Crestview. Hank and Millie both had Ph.D. degrees from prestigious universities, and Millie was a popular partner in the women’s golf club with her nine handicap.

There were three entrances through which all traffic entered and exited the property. The main entrance, the west gate, was used primarily by residents and their guests; the east gate was used primarily by vendors, employees, and a wide range of service vehicles, such as lawn maintenance, pool maintenance, plumbers, electricians, etc.; and the north gate was remote, at the backside of the country club, and was sparsely used by any vehicle bearing the required windshield decal or individual whose name or company was on the daily gate entry list.

Each gate was staffed and controlled by security. The main gatehouse at the west gate was typically staffed by three officers, the east gate gatehouse was staffed by two officers, and the north gate had a small gatehouse room for only a single officer who could sit on a stool during the long periods of time between a vehicle entering or leaving. They were all well-lit during hours of darkness.

When a vehicle approached the main gate, drivers would be directed to the entry road next to the gatehouse and the officer would step out of the gatehouse; and if the vehicle displayed a residential decal, it was waved through without the need to stop. If no decal was on the windshield, the officer would inquire as to why—for example, if the auto was a loaner or belonged to some family member who did not live in the community. In those cases, a temporary sign was placed on the dashboard and the car would proceed in. If the vehicle was driven by a guest it would enter the designated guest lane and the officer would approach the driver, determine his or her business, compare the driver to the daily gate entry list, issue a temporary one-day permit, and the vehicle was allowed into the property. When the visitor exited the property there was no requirement or need for the temporary permit to be returned because it was dated.

A similar entrance procedure was in place at the east and north gates, although there was only one lane to enter and a different colored decal or pass was required for nonresidents.

The issue of authorized access was important to the homeowners’ association. Monthly meetings, as well as the weekly community newsletter, invariably addressed the responsibility of residents to arrange for passage if they were going to change vehicles and remember to advise the main gate of anticipated visitors so they could be logged. Residents were reminded of the need to comply with the association’s rules and officers’ directions. On those exceptional incidents when an unauthorized vehicle slipped through or was allowed in, that was highlighted in the newsletter. Some people joked at the notion that even the governor couldn’t enter unless he had a decal or his name was on the list.

The Washingtons were long-time residents of Crestview; their daughters grew up there. When Kenesha was a freshman in college she met a young man at a party, James Cooper, who was not a college student. Kenesha brought him home to meet her parents. Mr. and Mrs. Washington were concerned that James wasn’t “going anywhere.” Although it was awkward for them, she would invite him over, arrange for him to obtain a vehicle pass, and visit with the family. James was Kenesha’s first serious boyfriend, and she was in love. Kenesha tried to tactfully warn her about getting too attached and to encourage her see and date other young men, but to no avail. It wasn’t long before their worst fears were realized. Kenesha became pregnant and, for reasons never clear to the family, James ended up in jail. As best they could tell, it had to do with narcotics.

Before and after the birth of her baby, Kenesha kept in contact with James by writing to him and they had occasional phone conversations, but the relationship cooled when he started persisting she drop out of college and marry him when he was released. He was also asking for money.

Unexpectedly, James was released and told Kenesha he wanted to see the baby. She arranged for him to enter the country club. James arrived in a somewhat pricey collector’s car, a yellow English MG roadster. Their first meeting after his release from jail was cordial, but stiff. James made over the baby, while the family awkwardly sat around the living room engaged in small talk. James and Kenesha stepped outside for a short time and started to argue in hushed tones about her quitting school and his insistence on living together. James was demanding, rude, and on the verge of being threatening. Everyone was relieved when he left, but he promised to return.

After a couple more visits so James could see the baby, Kenesha broke off their relationship. James became abusive on the phone and said he was entitled to see his son and he would come over, no matter what she said. In that argument Kenesha reminded him he had failed to provide any support for his child and, until he did, he wouldn’t see his son again. James was so angry and loud that Kenesha was trembling when the conversation ended and, for the first time, she felt uneasy over her and the baby’s safety.

Because of his threat to visit, invited or not, Kenesha informed her family, who decided to prepare a notice for the security department to deny access to the property at the entrance gates. Kenesha had a colored photo of James standing next to the yellow MG. Millie crafted a warning notice with the photo, name, and description of James, stating he should not be allowed access to the club property. It further stated if James appeared at any gate, the officer should phone the Washingtons. Their phone number was prominently displayed. The notice was signed on the bottom by Millie and dated.

Kenesha and Cherese met with the captain of the security force and informed him they were afraid James would come to their home and could be violent. The posting of similar notices wasn’t unusual, but neither was it common. They asked if he would post the warnings in the gatehouses. The captain said he would and the sisters returned home with a sense of relief.

Ten days later, two Sundays before Christmas, Hank arose early in the morning, made coffee, read part of the Sunday morning paper, and went to pick up the Christmas tree the family had selected the day before. His wife and daughters slept in.

About one hour after leaving, Hank returned home with the tree tied to the top of the car. As he turned the corner on which his house stood, he noticed the front door appeared partially open, which struck him as peculiar. Instead of entering the garage (because of the tree on his car’s roof) he parked in the driveway and walked to the front door. To his utter shock his wife, wearing her nightgown and robe, was lying immediately inside the door in a pool of blood. It was apparent she had a massive wound to her face from a gunshot. Barely alive, she moved ever so slightly. In a state of panic, Hank ran down the hall to the closest phone and called 9-1-1, shouting for medical assistance. He then ran to the hallway that led to his daughters’ rooms and discovered Cherese lying partially in the bedroom and partially in the hall, as though she had come to the door to see what the noise was about. She was in her nightgown, covered with blood, dead. Like in a nightmare, he ran to Kenesha’s room. She was partially covered with the sheet and blankets, but she too had been shot and was motionless. The baby was untouched.

Emergency, rescue, and police personnel were soon on the horrific scene. Millie survived, but with facial scaring, some speech impediment, and nightmares.

The first and immediate question was: Who would do such a thing?

Hank provided all the information he had on James. Two days later James was arrested and booked for suspicion of homicide.

A law firm known to the Washingtons was contacted and within a year a complaint was filed against James, the Crestview Country Club homeowners’ association, and Fidelity Security Company, the contractor that provided security services on the property.

The complaint against James, for damages, was a given. The thrust of the complaint against the other two defendants was for negligence—that is, failure to provide adequate security as required by allowing James to enter the property and commit the crime. Had they restricted his access and denied him entry, the crime, more likely than not, wouldn’t have occurred.

I was retained by the plaintiffs (the Washingtons) as a security consultant and possible expert witness, assuming my investigation convinced me the theory of security negligence was meritorious.

My task was to review every document generated in the discovery process, which included the police murder book (the collection of every police report, photos, maps, measurements, etc.). Documents also include reports of all interviews, all depositions taken of witnesses, all records and reports maintained by the security department, the homeowners’ association’s minutes of their meetings … ad infinitum. I also visited the property to inspect the guardhouses, patrol procedures, bulletin boards, post orders, and historical records of incidents and issued permanent parking permits as well as visitor parking passes.

My review of police reports revealed that during their early investigation, the rather confused and distraught Hank, the only witness who was able to provide any information, including his suspicion of James, recalled Millie had told him about giving security a warning poster to keep James from coming in. The warning posted in the main gatehouse was taken as evidence. There was no mention of the other two gatehouses.

Among the records was clear evidence that James was the assailant, despite his denial, and he was speedily convicted and sentenced to life imprisonment for the murder of his child’s mother, her sister, and the felonious assault with a firearm against Millie. James was never deposed because, not long after he was interviewed by the homeowners’ association’s lawyer, James was murdered in prison. Whatever he shared about the event with counsel was forever protected as lawful, privileged communication between client and attorney. That was a blow to the plaintiff’s case because, if he was truthful, valuable evidence could be introduced about how he entered the property.

The essence of the defendant’s position was there was no negligence, there was no proof or evidence the assailant entered through any secured gate, and, if James was the assailant, he had to scale a perimeter fence to get to the Washington’s home. The perimeter fence, a wire-topped cyclone fence, was a reasonable and universally accepted barrier to deter intruders. Warning notices to deny access were honored in the normal course of their gate control procedures. The club’s security procedures and practices were in keeping with or above the security standards of care in environments similar to this private country club and residential area. The bottom line: they were not negligent.

After all my work, I concluded, based on the report of an almost insignificant police interview with the guard, Lyle Oosten, that James entered through the north gate. Oosten was on duty at the remote north gate in the early-morning hours of the crime; a detective conducted that interview two days after the shooting.

After some preliminary comments about the importance of the investigation, the detective asked a very nervous Oosten if many cars came through his gate during those early-morning hours. Oosten said he had a few come through. He was asked if a yellow MG roadster driven by a young black man had come through his gate, and said he didn’t remember. Oosten, an elderly gentleman, was assigned to this particular post because it was less demanding than the much busier gates, and he wasn’t capable of patrolling the community in a radio car.

In my view, Oosten wasn’t telling the detective the truth about the yellow car because he feared for his job and was afraid to be held in any way responsible for the deaths of the girls. His answer of “I don’t remember” regarding the question about that very distinctive, unusual car driven by a young black man (particularly considering) there were very few black residents in that community) during the typically quiet early-morning hours was not plausible. If indeed no such car came through his gate, the answer should have been, “No such car came through my gate while I was on duty. You might want to check with Harry Smith who gave me a 30-minute lunch break. Maybe it came through then.” During my deposition, under oath, I was pressed by the defense attorney as to how I could say the car was allowed to slip through a secured gate without absolute proof. My response was it was a matter of judgment. It was based on the preponderance of information that James was the assailant. He had to drive about 40 miles to get to the property, and it was most unlikely he would or could scale the fence and leave his car exposed along a fence line. It would be a difficult chore to walk the two miles from the closest fence line, in the dark, commit the crime, and then repeat the hike. It was my opinion he couldn’t get in the main gate but knew about the alternate entrance. I opined that he drove to the north gate. The security guard would have seen the headlight approaching and come out of his shack. The driver could have displayed an earlier temporary pass through the window, and the older gentleman waved him through. Or, he stopped and the older gentleman came out and they visited (it’s lonely out there), and then was convinced by the fast-talking James it was okay for him to enter. I recall so clearly how this defense attorney and I looked at each other, eye to eye, for what seemed like a long time, and then she went on with other questions. She volunteered that her security expert said he had no way of knowing if the assailant entered via a gate and he went so far as to say, “Who knows, the murderer could have even parachuted in,” and laughed.

The matter never went to trial. It settled.

Postscript: A year or two later I had occasion to talk with the attorney who had originally retained me on this case. He informed me the defense attorney who stared at me when I offered my opinion had talked with James in prison as his defense attorney in this civil case. This was just before James was killed. James had told her he approached the north gate, the old gentleman came out, James commented on how cold and lonely he must be out there, they had a congenial visit, James showed him his old temporary pass, said he was a regular visitor, and the guard let him in. She knew as our eyes were fixed on each other, my opinion was dead on. Surely, as we looked at each other she had to consider my opinion uncanny, and how could I possibly know?