Posted May 1, 2010 4:30 AM CDT
By Mark Hansen, Photographs by J. Craig Sweat
Joel Hardin can tell a lot about a person by following his or her footsteps.
Or so he says. But you’ll have to take his word for it, Hardin says. Aside from a handful of people he has trained and still works with, there is nobody else in the world who is doing what he does.
The retired U.S. Border Patrol agent runs a private training and consulting business where he teaches tracking, goes on search-and-rescue missions, and consults with prosecutors and defense lawyers as an expert in criminal cases.
Hardin says a good tracker—or “sign cutter,” as he prefers—can determine a person’s size, shape, height, weight and carriage by the “signs” he or she leaves behind when moving through an area: footprints, scuff marks and the way light reflects off a particular surface.
And that’s just for starters. A good tracker can usually tell whether the person being tracked is used to walking or is familiar with his or her surroundings, Hardin says. An experienced tracker who follows a trail long enough may be able to draw “very definite and accurate” conclusions about that person’s frame of mind, personality, background, intentions, even nationality.
Hardin apparently is so good at what he does he can tell whether a child he is tracking is approaching a stranger or someone familiar, whether a person he’s following is excited or dreads the prospect of going to work, whether he’s tracking a “normal” 15-year-old or one with the mind of a 5-year-old.
Hardin once claimed he could tell that a murder suspect was a young Mexican male by the way the suspect maneuvered his way through a raspberry patch.
He still insists he can tell the difference between an Asian and an American, or a “Westerner,” as he calls them, by the way an individual walks, unless the Asian has been fully assimilated into the Western world.
Westerners “always have somewhere to go and are always in a big hurry to get there.” They tend to take longer strides with more pronounced heel strikes than Asians, who typically take shorter steps and “put their feet down more flatly” than Westerners, Hardin cheerfully explains.
“The fact of the matter is people from different countries walk differently,” says Hardin, who says his conclusion is based on a lifetime of observing people and is borne out by scientific research showing that certain people have a more pronounced “heel-toe” way of walking than others.
Now 70, Hardin spent 25 years with the Border Patrol, where he says he first discovered his “special expertise” in tracking, often as a consultant to law enforcement on criminal investigations and missing persons cases. He helped in the hunt for the Green River serial killer and the search for convicted Soviet spy Christopher Boyce after Boyce escaped from a federal prison in 1980.
REVIVING A MURDER CASE
After his retirement in 1990, Hardin opened his training and consulting business in Clearwater, Idaho (for which he also serves as program administrator and chief instructor). From there, he says, he’s taught thousands of law enforcement officials and search-and-rescue personnel how to track, while working on more criminal cases than he can count. Hardin says he is usually involved in about a half-dozen active criminal investigations at any one time for one side or the other.
In one of those cases tried in Seattle last year, Hardin’s analysis of crime scene photographs helped reopen a murder investigation that had been dormant for more than 30 years, leading to the trial and conviction of a suspect in the stabbing of a 16-year-old girl.
But that conviction, now on appeal, has brought renewed focus to Hardin and his tracking expertise, rekindling a debate spanning several decades as to whether his expertise is any kind of evidence at all.
Carla B. Carlstrom is senior deputy prosecuting attorney in King County, Wash. She hired Hardin in 2007 to review the original crime scene photographs from the 1975 murder of Diana Peterson, who had been found stabbed to death one chilly February morning in the backyard of her Puget Sound home.
James Groth, then 16, was Peterson’s friend and neighbor. He had spent part of the previous evening watching television with the victim and a friend in the basement of Peterson’s home.
Groth had initially denied any knowledge of the crime, saying he had been at a bowling alley that evening. He was given a lie detector test, the results of which were labeled “deceptive.” He later admitted that he had come across the victim’s body—lying face down with a knife in her back—as he took a short cut through the Petersons’ backyard on his way home. He told nobody what he had seen.
Police zeroed in on Peterson’s 19-year-old boyfriend and next-door neighbor, who owned the pearl-handled hunting knife found in the victim’s back. The boyfriend, Tim Diener, also failed a lie detector test regarding his involvement in the murder.
Diener was arrested in the murder but was released pending the outcome of lab tests on the boots and a pair of jeans he had been wearing (with a small bloodstain in one of the pockets) on the night of the crime.
Inexplicably, those tests were never done and the case fell by the wayside. In 1987, all of the physical evidence—except for the murder weapon and the crime scene photos—was inadvertently destroyed by a police sergeant who was clearing the evidence locker to make room for material from newer cases.
The case was all but forgotten until 2006, when a detective assigned to the sheriff’s cold case squad decided to review the case file, which led him—and eventually Carlstrom —to believe that Groth, not Diener, was the real killer. But they had no DNA, no fingerprints, no eyewitnesses, no physical evidence of any kind that could tie Groth to the crime.
Carlstrom was familiar with tracking—a detective in the county sheriff’s department who had attended a lecture by Hardin in 1989 has become a master tracker and an instructor in his program. Carlstrom, who had also worked on cases with Hardin in the past, asked him to take a look at the original crime scene photos to see what he could see. And, lo and behold, Hardin seemed to strike paydirt.
Although he couldn’t identify any of the shoeprints in the photos as either Peterson’s or Groth’s, Hardin said two sets of shoeprints consistent with theirs were “commingled” in two places at the crime scene around the time of the murder. That meant that the two people had been “physically engaged,” or standing virtually toe-to-toe and stepping in each other’s prints, he said, as if they had been dancing or struggling.
Hardin also said he could tell that the person in the shoes consistent with Groth’s was still at the crime scene after the person whose shoes were consistent with the victim’s had been stabbed. He had stepped in the victim’s blood, Hardin said.
Carlstrom was impressed. “It’s amazing what [a tracker] can tell from a person’s footfalls,” she says.
Finding the tracking evidence “compelling, though by no means conclusive,” Carlstrom decided to call Hardin as the state’s tracking expert at Groth’s first-degree murder trial last May at the King County courthouse in downtown Seattle.
BUT IS IT SCIENCE?
Hardin himself won’t say whether he thinks what he is doing is scientific, only that the courts have decided that it is. Carlstrom allows that tracking may not be scientific in the same way DNA testing is, but says it is specialized knowledge that goes back hundreds of years and is useful in certain scenarios, such as the Groth case.
Julie Lawry, Groth’s public defender, thinks Hardin might be a great tracker—the kind she’d want on the case if one of her own kids was missing in the woods. But she thinks Hardin’s evidentiary value is something less than scientific. In fact, she thinks it’s bunk.
Lawry says Hardin’s findings in the Groth case were “total bullshit.”
“It’s like tarot card reading,” she says. “There’s no science to it. He just makes it up as he goes along.”
At trial, Lawry moved to exclude Hardin’s testimony as neither scientific nor relevant, unable to shed light on the defendant’s innocence or guilt.
She argued that Hardin had no business testifying as an expert about shoeprint impression or crime scene reconstruction, particularly on the basis of 34-year-old crime scene photos in which he claimed to see things that others—even crime scene experts—could not see.
She brought in retired FBI agent William Bodziak, one of the world’s leading authorities on footwear impression evidence. Bodziak, now of Palm Coast, Fla., has spent 37 years evaluating footwear impressions, 29 of them with the FBI. He reviewed the crime scene photos in the Groth case at Lawry’s request and was outraged by Hardin’s claims.
Bodziak says he could make out a partial print in a few of the photos of a very common sole design that has been used on a wide variety of footwear, including work boots, hunting boots and the boots worn by many police and emergency responders since 1937.
But he says there’s no way that Hardin or anybody else could tell from a set of 34-year-old crime scene photos—many of which were dark, out of focus or taken at weird angles—exactly whose shoes had made the prints or when they were made.
“I think he’s dangerous and he needs to be stopped,” Bodziak says.
Crime scene reconstruction expert Jon Nordby of University Place, Wash., also reviewed Hardin’s analysis of the photos, and he testified that there was nothing scientific about what Hardin had purported to do.
“I conclude that the ‘forensic photo analysis’ provided through the tracker report has no scientific standing and no cognitive status above unsupported speculative opinion,” Nordby told the court.
But Superior Court Judge Laura Inveen sided with the prosecution, citing the Washington state Supreme Court’s holding in a 1992 case involving the admissibility of Hardin’s expert testimony, State v. Ortiz. Judge Inveen rejected the contention that Hardin’s reliance on old photos rendered his tracking skills inadmissible as new or novel scientific evidence.
“Although examining sign from photographs is not ideal, and may have limitations,” the judge wrote, “a tracker’s experience and training may allow him to formulate conclusions solely from a photograph.”
SKEPTICISM AND CONTEMPT
What a tracker does, Hardin says, is read the “sign story,” or the tale that he says is always written in the physical evidence of a person’s presence or passage through a particular place at a particular point in time. He says trackers can’t see anything others can’t see; they just recognize the significance of what they are seeing, which anyone else should be able to divine once it’s been pointed out to them.
One of the few things a tracker can’t generally tell from a set of footprints anymore is the gender of the person who made them, Hardin says, because women and men these days tend to wear interchangeable footgear and often do the same kind of work. Though if the “sign maker,” as he likes to call them, is wearing high heels, you can still “pretty much assume” you’re tracking a woman.
Hardin says he doesn’t keep track of his success or error rates, except to ask some of the people he’s successfully tracked whether his observations about them had been correct. And his work has never been subjected to peer review mostly because he doesn’t have any peers outside of his students. But rest assured, he says: He never draws any conclusions about a case without first running them by two of his senior trackers, or sign cutters.
“We challenge and check each other’s work,” he says.
Still, Hardin’s insights have been regarded with great skepticism—even contempt—among criminal defense lawyers since the early 1980s, when he first testified as an expert in the prosecution of a 22-year-old Bellingham, Wash., man for the brutal rape and murder of an elderly woman.
The man was tried and convicted three times, but his first two convictions were reversed—the first time because of rebuttal statements improperly admitted; the second because a juror had learned of the first trial, and the reason for the reversal. Both were unrelated to Hardin’s testimony.
While the case did not turn on Hardin’s testimony—there was physical evidence and a clumsy confession by the defendant—Hardin’s claim that he could identify from footprints racial and physical traits, even national origin, raised concern that he was elevating arcane personal observations to the level of physical science.
During each of those trials, Hardin, then a U.S. Border Patrol agent, claimed that he had followed the killer’s trail from the victim’s house across a field and through a raspberry patch to a housing development where the defendant, Mario Ortiz, and his family lived.
And he didn’t stop there. Hardin said he had been able to tell that the person he was tracking was between 5 feet 7 inches and 5 feet 8 inches tall and weighed between 140 and 160 pounds, that the suspect was obviously familiar with raspberry bushes by the zigzag manner in which he had avoided the wire supports, and that he had probably been approached by—and had managed to reassure—a barking dog that had crossed his path.
On cross-examination Hardin claimed he could tell he had been tracking a “young Mexican male.” He went on to explain how he could distinguish between a “plain old Mexican” who was crossing the border to find work and a Mexican who was smuggling drugs, and how he was able to distinguish people from “walking-oriented cultures” from those in car-oriented societies like ours.
After his third conviction, Ortiz appealed, based in part on Hardin’s testimony, which he said should not have been allowed. But the Washington Supreme Court, in an en banc ruling, upheld the conviction, saying Hardin’s testimony was admissible as lay or expert opinion.
Justice Charles Z. Smith, however, in a strongly worded dissent in which he was joined by Justice Robert Utter, said he was “greatly disturbed” by Hardin’s claim that he could determine a person’s nationality through tracking.
“It defies reason and logic ... that anyone—including Mr. Hardin—could determine, based solely upon ‘sign cutting’ or tracking techniques and interpretation of the trail, that the person being tracked was a ‘young Mexican male,’ ” Smith wrote. “Even if the testimony is determined to be competent, such a conclusion was unduly prejudicial to appellant Ortiz, who is a young (age 22) Hispanic (Latino) male of Mexican ancestry.”
L. Diane Emmons, Ortiz’s court-appointed lawyer at his first trial, says she couldn’t believe what she was hearing when Hardin testified.
“I was in a state of shock, frankly,” she says. “I thought to myself, is he really saying what I think he’s saying? That he can determine a person’s nationality from tracking?”
Whatcom County, Wash., public defender Jon Komorowski, who represented Ortiz at his second and third trials, says he found Hardin’s testimony “blatantly racist.”
“I don’t think you can determine the race of an individual based on the tracks he or she makes,” he says, “and I don’t know anybody other than Joel Hardin and the prosecutor who thinks that’s possible.”
But Whatcom County prosecuting attorney David S. McEachran, who tried Ortiz all three times, still speaks highly of Hardin, whom he says he has used at trial in only that one case but would readily use again if he ever had occasion to.
McEachran says Hardin never claimed that he could identify a Mexican based on something that is intrinsic to Mexicans—only that the suspect was a person of a certain size and shape who came from a walking-oriented society and had a familiarity with raspberry bushes, a description that applied to many Mexicans living in the area at the time.
Criminal defense lawyers in Washington cite State v. Ortiz as one of the darkest chapters in state supreme court case law and still joke about the extent of Hardin’s self-proclaimed expertise. “Do you think he can tell what I think of him from my shoeprints?” one asked recently on a defense lawyers’ discussion list. “He might be able to figure it out if your shoeprint was in his ass,” another responded.
Even Hardin’s self-professed caseload is regarded with some skepticism. Though he claims to have been involved in thousands of cases, he can only recall six or seven cases in four states—in both state and federal court—in which he has actually testified as an expert in tracking, each time for the prosecution.
Hardin reminds some old-timers of Louise Robbins, a college anthropology professor who became something of a celebrity on the criminal trial circuit in the mid-1970s for her seeming ability to see things in a footprint that nobody else could see. You could show her a partial shoe print on virtually any surface, for instance, and Robbins claimed she could identify the individual who made it. You could give her a ski boot and a sandal, and Robbins contended she could tell whether they had ever been worn by the same person.
Robbins, who died of brain cancer in 1987, testified as an expert mostly for the prosecution in nearly two dozen criminal cases in the United States and Canada over a 10-year period before being sidelined by her illness. Her purported foot-reading abilities have been thoroughly debunked by the scientific community.
“Hardin makes Louise Robbins look like an amateur,” says Bodziak, the retired FBI expert, who has become one of Hardin’s biggest critics.
Bellevue, Wash., criminal defense lawyer Robert Perez had his own run-in with Hardin several years ago and still laughs about the experience. “There’s no other way to put it,” he says. “This guy is a nutcase.”
Perez represented a man in what he saw as a straightforward trespassing case. His client, a man in his 50s who had become infatuated with a younger co-worker, had been caught inside the woman’s home on a video surveillance camera while she was at work.
The client, who had used a key to enter through the front door, was charged with residential burglary with sexual motivation, Perez says. In Washington, “sexual motivation” is an aggravating factor attached to alleged crimes committed for the purpose of sexual gratification, which would not only increase the penalties if his client were convicted of the burglary charge but would also have required him to register as a sex offender.
Prosecutors brought in Hardin and a team of eight fellow trackers, who spent the better part of a Saturday afternoon several weeks after his client’s arrest combing through the grass around the victim’s house looking for evidence that his client may have been peeping in the woman’s windows while masturbating, Perez says.
Perez, who was allowed to witness the investigation, watched as Hardin and his team canvassed every square inch of the woman’s property, marking various places in the grass with blue tape, jotting down notes, filling out tracking report forms and taking hundreds of photographs.
All the while, he says, the trackers could be overheard using jargonistic phrases such as “we then cut for sign”—which Perez viewed as a way of legitimizing what would otherwise be considered pure speculation about the meaning of a certain patch of grass being bent one way or another. “CSI wannabes,” Perez calls them.
When they were done, the trackers prepared a 24-page report documenting everything they found, which included not only three sets of footprint impressions but also a spot in the fence with a couple of loose boards, a pink-colored piece of chewing gum and several exterior light fixtures with missing bulbs.
“If you want a good laugh sometime, ask me to show you a picture one of these trackers took of a patch of grass that they describe as a footprint,” Perez says. “I guarantee that you will find Waldo before you see a footprint.”
Perez says that he can afford to laugh about the experience now because prosecutors ultimately declined to use the tracking evidence at trial. But he didn’t think it was very funny at the time. “It was a total waste of time and taxpayer money,” he says.
A JUROR’S SHRUG
As for Groth, his second-degree murder conviction is still on appeal. He is currently serving a more than 16-year prison sentence, and Elaine Winters, the lawyer from the Washington Appellate Project in Seattle who is handling his appeal, says she doesn’t yet know what specific grounds will be included. But public defender Lawry says the appeal is sure to include the judge’s decision to allow Hardin to testify.
Prosecutor Carlstrom says she has no doubts that Groth is guilty. And she downplays the significance of the tracking evidence to the jury, citing remarks by some of the jurors after the verdict that they didn’t place a lot of stock in what Hardin had to say.
“We thought it was more important than the jury apparently did,” Carlstrom says.
Juror Loretta Smith, who was once an avid hiker and camper, says she was impressed by Hardin’s apparent tracking abilities. But she says the jury “didn’t pay too much attention” to the tracker’s testimony because Hardin wouldn’t, or couldn’t, say that any of the prints in the photos were made by Groth or the victim.
Hardin has moved on to his next case, preparing to testify as a prosecution expert at the first-degree murder trial of a King County man accused of drowning his 3-year-old stepdaughter in the family swimming pool to collect on a life insurance policy he had taken out in her name.
The defendant, 39-year-old Joel Zellmer, claims that the girl must have left the house to eat some birthday cake placed in a trash can outside the home and fallen into the pool when she tried to wash her hands.
Hardin won’t discuss his role in that case, the trial of which got under way in early March. But he is expected to testify that the shoes the girl was believed to have been wearing at the time had never been submerged in water, the implication being that the defendant had forced her head underwater while holding her by her feet.
But public defender Lawry still can’t get over her last case, the one she thinks might have landed an innocent man in prison.
“I don’t know who [killed Diana Peterson],” she says, “but I know damn well the evidence doesn’t show that Jim Groth did it.”
If there is an upside to the way the trial came out, she says, it is that the Washington Supreme Court will now have an opportunity to revisit and vacate its holding in Ortiz, which would not only mean a new trial for Groth but an end to Hardin’s career as an expert witness, at least in that state.
In fact, she’s counting on it, which explains why she keeps a stack of files from the Groth trial in the hallway just outside her office.
“I want to be ready” when it happens, she says.