Murder

Des Moines Murder Defense Lawyer

While a prosecutor from 1977-1980, attorney Peter W. Berger immediately handled serious cases. Soon, attorney Berger handled all sex crimes and was assigned to the major offense bureau. In one sexual abuse trial, for the first time in Polk County, Mr. Berger prosecuted three defendants simultaneously which resulted in three convictions as charged. After four years with the Polk County attorney's office, Mr. Berger returned from private law practice as a special prosecutor in four cases.

Haley BassThey included the prosecution of two defendants in the separate trials of State v. Doris Wolfe, and State v. Lane Wolfe. The trial was the first televised murder trial in Iowa. The second defendant was tried in Council Bluffs on a change of venue. Both cases resulted in convictions as charged. After serving as a special prosecutor, Mr. Berger focused his full attention on private trial practice. Soon after that, Mr. Berger successfully defended a police officer who was charged with manslaughter. An example of another case was the successful defense in State vs. Breese where Mr. Breese was found not guilty of manslaughter for shooting and killing an individual who had come to his house asking for a reward for his stolen wallet. The state claimed Mr. Breese shot him in the back, but skillful forensics by Mr. Berger proved otherwise.

Since that time, Mr. Berger has defended or been otherwise involved as a consultant in numerous other violent crime defenses, including murder and kidnapping. A recent case was the televised first-degree murder trial of State v. McGee, where the jury returned a lesser verdict than what was originally charged by the prosecutors. Mr. Berger successfully defended Haley Bass on the charge of first-degree murder in August 2013. This photo shows Mr. Berger walking Haley from the jail after she was found not guilty following a week-long jury trial, and is often consulted as a criminal law expert as seen in the recent WHO TV video.

A Vigorous Defense Designed to Protect the Rights of the Accused

Voluntary manslaughter, involuntary manslaughter and vehicular homicide are all types of cases Mr. Berger has prosecuted and defended. Vehicular homicide usually results from reckless driving or intoxication, resulting in the death of another driver or pedestrian. Voluntary manslaughter is usually characterized as a "heat of passion killing" that is not legally justified, whereas involuntary manslaughter arises out the reckless commission of a public offense that results in the unintentional death of another person. Frequently, when first-degree murder is charged by the prosecutor or by a grand jury, there are plea negotiations which sometimes result in settlement. However, under Iowa sentencing law, murder in the second degree carries a mandatory minimum of 50 years, which has made plea bargaining moves difficult.

Just as some in-car GPS systems record where the car has been, cellphones send out "pings" to the nearest cellphone tower. By simply subpoenaing cellphone records, the police can actually track where and when that cellphone was at any given time. They determine which was the nearest cellphone tower that was pinged by the cellphone. The records also show when calls or texts were made and to whom, and show when communications were received by that cellphone. So, for example, if cellphone records are different than what witnesses testify to, and/or where an accused person says he was, that is a major problem for the accused. It is very important that an experienced trial lawyer such as Mr. Berger recognizes and knows how to deal with all of these forensic issues.

Defending Against Manslaughter and Other Charges

Voluntary manslaughter, involuntary manslaughter and vehicular homicide are all types of cases Mr. Berger has prosecuted and defended. Vehicular homicide usually results from reckless driving or intoxication, resulting in the death of another driver or pedestrian. Voluntary manslaughter is usually characterized as a "heat of passion killing" that is not legally justified, whereas involuntary manslaughter arises out the reckless commission of a public offense that results in the unintentional death of another person. Frequently, when first-degree murder is charged by the prosecutor or by a grand jury, there are plea negotiations which sometimes result in settlement. However, under Iowa sentencing law, murder in the second degree carries a mandatory minimum of 50 years, which has made plea bargaining moves difficult.

An Excerpt From a Book About Murder Trials Handled by Mr. Berger

MurderThe following is an excerpt from a book("Life on the other side": "Why you should go", Aspatore, Chapter 9) attorney Berger has written about his experiences in the trials of State v Wolfe (Mr. Berger as prosecutor) and State v O'Leary (Mr. Berger as defense attorney).

In 1980, I associated with another lawyer who did not do any criminal work. I accepted criminal appointments for a relatively short time, and let everyone know where I landed. That year, I was re-hired by the Polk County attorney as a special prosecutor to try the first televised murder trials in Iowa, the Wolfe cases. (Polk County Iowa District Court, 1980; Doris Wolfe, and Lane Wolfe, change of venue to Pottawattamie County) I charged Mrs. Wolfe, and her two sons, with shooting and drowning Mr. Teer (her second son was granted immunity to compel testimony). Soon after those convictions, I had the opportunity to successfully defend Officer O'Leary in another televised trial. Now, I was formally on the "other side" of a big case. In O'Leary, (Madison County Iowa District Court, 1982) I was faced with the dilemma of how to use available limited resources in the officer's defense, but still utilize my experience as a prosecutor. What happened next is an important lesson to be learned.

Although budgets are strained all over, it is worse in the private sector. For most starting lawyers, especially when court-appointed, it is a different world than working for the government. Payment for legal time, depositions, and experts are doled out sparingly.

Initial Forensics Provide a Misleading Assumption

The deceased, Mr. Swinehart, was shot and killed by Officer O'Leary at close range behind the veterinary clinic in Stuart, Iowa. Swinehart had just been released from a mental hospital in Las Vegas, and was seen acting very strangely around town (including lying across railroad tracks and running in and out of phone booths). O'Leary was told by the mayor to talk to Swinehart. When he did, Swinehart grabbed the officer's gun and forced him to drive behind the clinic, ranting about how they were being invaded by Martians. I found this sketch in his belongings:

An Iowa State Patrol trooper testified at trial that he drove 130 mph from a hundred miles away, when O'Leary coded on the police band "man with a gun, mine". By the time police units arrived from neighboring towns, Swinehart was dead from one circumscribed gunshot wound to the chest, fired at a distance of 24 inches.

Forensic pathologist Dr. Earl Rose from University of Iowa Hospital testified for the state. Dr. Rose, among other things, may be best remembered by footnotes in various assassination books as the Dallas, Texas, medical examiner that was brushed aside by the Secret Service when he tried to take control of President Kennedy's body. He said that Swinehart was executed while defenseless lying on the ground, because he had a clean, supported exit wound. On the other hand, O'Leary testified he had regained control of the weapon, but Swinehart lunged forward and he fired in self-defense.

Since "unlimited" resources were no longer available, and there would be, at best, a small stipend for a defense expert not likely of Dr. Rose's reputation, the defense team (me) had a big problem. In researching this wound, I discovered in the Journal of Forensic Sciences, experiments that then assistant Washington D.C. medical examiner, Dr. Doug Dixon, had performed. He was a noted forensic pathologist who worked on the Jonestown massacre and Canary Islands plane crash cases. I called Dr. Dixon "out of the blue," told him of the case, and there was little money available to pay him. He was flattered and astonished about my proposed utilization of his experiments. He agreed to come to Winterset, Iowa for the trial, without compensation.

Research Reveals a Hole in the Prosecution's Case

Coincidentally, before Swinehart's death, Dr. Dixon fired 52 bullets into pigs during shored exit wound experiments. He fired a .357 magnum, 158-grain ammunition, the same as Officer O'Leary used! In one of the experiments, pigs were wrapped tightly in cloth (as well as supporting the exit wound in other shots with glass, wood, and concrete). The shots were fired from a distance of twenty-four inches. Fortunately that was the same also! The deceased, as well as the animals, had the same type of exit wound, where the tissue was not "flapped" outward. Then, in another stroke of good luck, Dr. Dixon went through his forensic archive of shootings in Washington D.C., and brought the slides to the trial of a drug shooting there. In the Washington shootout, the deceased was wearing a coat and two sweaters, and was leaning forward across the top of a yellow Lincoln Continental during a drug transaction. He was shot from across the top of the car, in the same location as Swinehart's wound, but with a larger caliber gun. Dr. Dixon put the two exit wounds side-by-side on a monitor for the jury to see. They were both supported (shored) and very similar. Because of that, Dr. Rose's assumption that Officer O'Leary had executed Swinehart while lying on the ground was soundly defeated. What Dr. Rose missed, was that the tension created at Swinehart's back midline, while wearing four layers of clothing, then lunging at Officer O'Leary, was the wound support, not the ground.

The Traps Are Set by the Defense

The doctors testified in person. It was important to undermine Dr. Rose, and to bolster Dr. Dixon's credibility. Dr. Rose's credentials were impeccable. He still was not ready for what was coming. After he gave a professorial lecture about lividity (settling of blood when the heart stops pumping) and blanching on cross-examination, Dr. Rose testified that the blanching seen as a white line around Swinehart's waist was caused by a restrictive belt. The problem: there was no belt, and Swinehart was wearing two restrictive pairs of pants when he died. To alert the jury, I asked the identical series of questions of Dr. Dixon. He testified the lividity could have been caused by several things, including a belt or restrictive clothing. In preparation for his testimony, Dr. Dixon examined all of the evidence, including what Swinehart had worn, before formulating his opinion that the restrictive clothing was the cause of the "white line" around Swinehart's waist, and that Dr. Rose was wrong. This was critical, because now it was becoming clear that Dr. Rose had not thought "outside the box," and he may have jumped to incorrect conclusions.

The second trap was more interesting. When talking about the supported clean exit wound with Dr. Rose, I had him comment on the demonstrative evidence, which consisted of a life-size mannequin with long rods demonstrating the point of entry, the exit angle, and the ground exit angle of the bullet, most of it ricocheted away. In reality, Swinehart had never been on the ground while alive, but use of the exhibit refuted Dr. Rose's opinions. He agreed with me that if Swinehart was shot while on the ground, when the mannequin was laying flat against the ground the exit wound was fully supported. Then Dr. Rose agreed with me, and even got excited, when I partially raised the mannequin off the platform at an angle. Now the entry and exit rods lined up more easily explaining the full trajectory of the bullet which ricocheted from the ground. All trial lawyers live for the next moment. When I raised the mannequin slightly at greater heights, and the entrance and exit rods were starting to correspond better, the exit hole became farther from the ground. The moment of truth came when Dr. Rose reluctantly admitted that what I demonstrated was no longer a supported exit wound. This is where I played the trump card with Dr. Dixon, who by now was an excited volunteer. Dr. Dixon again refuted Dr. Rose's testimony, just as he did in the lividity/belt testimony. He pointed out that if Dr. Rose was correct, and Swinehart had been executed while lying on the ground, there would have been bullet fragments ricocheted back into Swinehart's clothing and body. There was none of that. Dr. Rose couldn't "have it both ways," because the angle of entry had to match the angle of exit of the rest of the bullet fragment. That exit "rod" angled from the ground, away from the mannequin, was established through testimony of the State case agent who tested the angle with a "pencil" at the scene.

The Reality of the Situation

In reality, what happened was completely different than what Dr. Rose thought. After he alerted other officers of his predicament, using coded radio transmissions, and after he was ordered by Swinehart to drive behind the veterinary clinic, Officer O'Leary briefly regained control of his weapon. During that struggle, a round discharged into the ground, and most of the slug ricocheted into the distance (at the angle demonstrated in the exhibit), with a small part of the bullet still lodged in the ground. After gaining some separation, Swinehart lunged at Officer O'Leary with arms outstretched. Officer O'Leary fired from 24 inches away, and the bullet left a clean supporting back wound, because of the tension caused in Swinehart's jacket material. The officer was acquitted, and it was very satisfying sitting in a corner of the old courtroom watching his family cry and celebrate with him.

The foregoing is an excerpt from "Transitioning From Prosecutor To Defense Attorney" chapter written by Attorney Peter W. Berger, published by Aspatore Books, (a Thomson Reuters business) copyright 2012.

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If you have been charged with manslaughter or murder, or any serious assault, it is crucial to get experienced legal representation on your side.