Probable Cause Affidavit

On Sunday afternoon, October 1, 2000 Floyd County Superior Court Judge Richard G. Striegel issued an arrest warrant for David R. Camm for the murders of his wife Kimberly Camm, his seven year old son Bradley Camm, and his five year old daughter Jill Camm. Dave was arrested later that day at the ISP post in Sellersburg after he had undergone a lengthy interrogation by Detectives Mickey Neal and Darrell Gibson and during which he adamantly maintained his innocence.

The warrant for Dave's arrest was based upon an affidavit. An affidavit is a legal document and its purpose is to set forth facts in order for a judge to determine whether or not probable cause exists in order to officially charge someone with a crime. It is therefore called a probable cause affidavit, or in police parlance, a PC affidavit.

As is normally the case, the original probable cause affidavit in the Camm case was based upon an investigation conducted by a police agency, and in the Camm case that obviously was the Indiana State Police. The lead investigator, Detective Sean Clemons, was the affiant, meaning he signed his name verifying the truthfulness of the warrant. The affidavit was prepared on Sunday afternoon, October 1, 2000 under the direction of Floyd County Prosecutor Stanley O. Faith and his chief assistant, Susan Orth.

The affidavit was then presented to Judge Striegel, who found that based upon the facts presented in the document, that probable cause existed for the arrest of David Camm, and he so ordered his arrest and also that there be no bail for Camm. A judge is supposed to be a disinterested third party and as such, can therefore independently weigh the merits of the affidavit in order to make the determination if probable cause exists.

The next question is what is probable cause? Probable cause is rooted in the 4th Amendment to the U.S. Constitution which has two clauses. The first clause insures that the people be protected from unreasonable searches and seizures (including the seizure of property or arrest of an individual) and the second clause states that "no warrants (search/seizure/arrest) shall issue, but upon probable cause."

Probable cause has been described by many different people in many different ways, but one good definition is that the elements of fairness and common sense are used when reaching a determination; a determination which is based upon unbiased facts that there is a substantial possibility that a person committed a crime.

In order to reach the substantial possibility conclusion, a judge must evaluate the allegations contained in the affidavit in order to determine if the conclusion reached is valid. The statements claiming to be factual which are presented in the affidavit are normally presumed to be truthful and the representations are presumed to be accurate.

The affidavit which drew the conclusion that David Camm was responsible for the murders of his family was written and the arrest of Dave came less than 70 hours after he called the State Police post on September 28th (in actuality, the conclusions were reached within 48 hours). For such a relatively short period of investigative time, one would believe that the investigation had secured very critical and very damning evidence against Dave and, of course, that the facts and representations in the affidavit were accurate and truthful.

An affidavit usually begins with sufficient background in order for the judge to have a basic understanding of the crime and the identity of the affiant. In paragraphs one and two of the affidavit, Clemons told the judge that he was a detective with the Indiana State Police and that on September 28, 2000 he was called to David Camm's residence and that three people had been shot: Kimberly Camm, Bradley Camm and Jill Camm.

The Fourth Amendment also mandates that the allegations are supported by Oath or Affirmation. Detective Clemons, at the beginning of the affidavit, advised, "Detective, Sean Clemons being duly sworn upon his oath states as follows:" and then recited the following evidence as having been processed at the crime scene:

According to Clemons, the information in the affidavit was obtained from pathologists Tracy Corey Handy and Dora Hunsaker (Clemons had her first name wrong; it was Donna Hunsaker). Dr. Corey Handy was the Chief Medical Examiner for the State of Kentucky and her offices were located in Louisville. Dr. Hunsaker was one of her leading assistants.

Both pathologists confirmed the obvious: Kim and Jill were each killed with a single gunshot wound to the head as outlined in paragraph i and Brad was shot through his torso as noted in paragraph j. There were three .380 shell casings which were recovered at the crime scene and it was a logical inference that a .380 gun was the murder weapon.

What was the correlation between the usage of a .380 murder weapon and David Camm? There was no such connection made by Clemons and as it was later determined, the murder weapon was a .380 Lorcin, a very cheap gun and a favorite of street thugs and drug dealers.

Was there any probable cause contained in paragraphs i or j to justify the arrest of David Camm? No. There was no probable cause.

The source of the other allegations in the affidavit came from either Robert Stites and/or Clemons himself. Reviewing those allegations:

Paragraphs a, c, f and h are intertwined with one another:

All four paragraphs mention either high Ph (in actuality, it is pH) cleaning substance, cleaning solution, strong odor of bleach, and once again, cleaning substance. The inference is very clear: the crime scene and specifically the flow of blood from Kim's head had bleach added to it so that the crime scene could be "manipulated."

Although four paragraphs deal with the cleaning substance or bleach, there is but one allegation as to the alleged usage of it at the crime scene and that is in paragraph h. The blood flow (from Kim's head wound) was inconsistent with the viscosity of blood and therefore water and a cleaning substance was added.

Why was anything added to the blood flow? According to Clemons, it was the "manipulation" of the crime scene. What did the perpetrator hope to gain by adding that solution and how would it have disguised or hidden any evidence? The affidavit did not contain any reasoning behind why such a manipulation had ostensibly occurred and there was absolutely no connection, or nexus, between the allegation and David Camm being the one responsible for its usage.

Additionally, when the ISP laboratory finally had chemical testing conducted on the residue of the blood flow there was no chemical presence. Nothing had been added and the conclusions drawn in the probable cause affidavit weren't accurate.

As previously discussed in the Crime Scene and Blood Spatter Expert sections, the flow of blood from Kim's head wound and the resulting change in color of the liquid was a natural occurrence. The red blood cells and the serum in the blood had separated and the two distinct colors were therefore a natural phenomenon which had occurred over a period of time.

(It's interesting to note that in the second trial of Camm, Clemons was stumped when asked to explain viscosity, the term used by him in the affidavit.)

The stains on the back deck had been there for months and later were discovered under the large potted plant and the adjacent grill. No one, including the "crime scene reconstructionist" had bothered to more fully examine the deck, but rather came to the quick conclusion that there was a trail of cleaning solution that had been thrown over the back deck.

The blood transfer on the house? According to Clemons' later trial testimony, it was blood from an insect.

The bottom line: there was absolutely no probable cause contained in those four paragraphs and nothing which would indicate that David Camm had committed any type of crime, much less murder.

Continuing with paragraph b: As noted in the Blood Spatter "Expert" section, Robert Stites was not a crime scene re-constructionist nor was he a Blood Stain Pattern Analyst (BSPA). He nonetheless rendered an opinion that the shirt worn by Dave had "high velocity blood mist." Stites later admitted in the second trial that he had lied about his qualifications, education, and his experience. He wasn't an expert at all and therefore couldn't render any type of qualified opinion about high velocity misting.

What probable cause did Robert Stites provide? He provided no probable cause.

Paragraph d. was the result of Clemons' interview with Debbie Ter Vree, Dave's aunt and neighbor to the rear of his property. Detective Clemons interviewed her and claimed that the sounds she heard between 9:15 and 9:30PM "can be interpreted as gunshots."

Debbie Ter Vree never told Clemons that she heard three gunshots. As to the timing of the sounds she did hear, she said the sounds occurred shortly before the police arrived at her door. She said she thought they sounded like Bob, her husband, was pounding on the computer desk where he was sitting in an adjacent room.

It was later determined that the sounds she heard actually were made by Dave, when he was pounding on the tailgate of his truck in anguish after Sam and Phillip had arrived at the scene. Sam and Phillip arrived just moments before the police and it was within minutes that Trooper Mary Hager went to check on the Ter Vrees in their residence.

In the second trial of Dave, Detective Clemons testified that he "surmised" that Debbie Ter Vree heard gunshots and further that he "construed" the sounds to have been gunshots. He acknowledged that when interviewed that she never used the word gunshots or implied that the sounds she heard were gunshots.

Construed, surmised, and interpreted were the words used by Detective Clemons. His allegation was his own interpretation and was not that of Debbie Ter Vree.

What was the probable cause in paragraph d? There was no probable cause.

Paragraph e. alleged that Jill had a recent tear in the vaginal area consistent with sexual intercourse. The pathologist, Dr. Tracy Corey, never made any such comment. She has repeatedly stated and testified that the injuries were "non-specific blunt force trauma" meaning that the cause of the injuries could not be determined. The cause, as she later testified, could have been any number of things.

In fact, her official report of the autopsy of Jill revealed, "Blunt trauma of the external genitalia (hymen intact)." During the second trial, Dr. Corey responded to the following questions:

Q. "And in your written opinion does it say anything about sexual intercourse? I didn't see it in your report?"

A. "No ma'am. In fact it doesn't even say sexual abuse it says trauma."

Q. "That's because there's multiple possible causes for these injuries."

A. "Yes ma'am."

It was Sergeant Sarkisian, according to Clemons' later testimony, who told him that the injuries were consistent with sexual intercourse. The allegation, of course, didn't make any reference to who may have caused the injury or that the injury, which was blunt force trauma, may have resulted from something radically different than "sexual intercourse."

Nonetheless, paragraph e. made it to the affidavit even though the allegation couldn't be supported and there was no linkage whatsoever between Jill's injury, whatever the cause, and Dave. The horrendous inference that Dave had sexual intercourse with his little angel trumped the probable cause affidavit and later trumped two juries. At no time, in any proceeding, or in any allegation by anyone, has there been any evidence whatsoever that Dave harmed his little girl in any way whatsoever.

How many times can a person vehemently refute the allegation that he is responsible for injuries to his little girl's genitalia? A thousand? A million? A billion? What is the magic number that will overcome the indelible stain of the allegation? The answer is that the horrible and horrendous allegation will always linger.

What was the probable cause contained in paragraph e? There was absolutely no probable cause. In fact, if there was any evidence whatsoever that David Camm had molested his little girl, the prosecutor had an absolute duty to charge him with the crime of molestation. There have never been any such charges because there is no evidence. There is no evidence because it never happened.

That leaves paragraph g. According to Clemons' investigation, witnesses who played basketball with Dave said that he left the game on or around 9:00PM. In reality, that was simply not factual.

The eight remaining players, Dave included, played four on four games and left the gym as Jeff Lockhart set the alarm at 9:22PM. The other seven players, as well as the alarm records, corroborated the event and therefore the time as reflected on the alarm records.

Who provided Clemons with the 9:00PM time? According to Clemons, he thought that Dave himself said that he left at 9:00PM. Yet, in Dave's ISP interviews, he said that he believed the time he left the gym was around 9:15-9:20. He didn't know the exact time but his estimate was close to the actual time of 9:22PM when Jeff Lockhart, with Dave nearby, set the alarm.

(Note: Clemons also testified that he didn't read any of the reports dealing with the interviews of Camm until months after Camm was arrested.)

Clemons also said that it was possible that he got 9:00PM from Sam or Phillip Lockhart. Sam left shortly before 9:00PM and he left Dave at the gym. He therefore didn't personally know what time Dave left and has never claimed otherwise.

Phillip left the gym with Dave and the two actually drove out of the east side of the parking lot together, so Philip couldn't have been the source who claimed that Dave left at 9:00PM and not after 9:22PM.

Indeed, in Trooper Hager's report of her interview of Phillip Lockhart, he related that he and Dave left the church gym around 9:20PM.

Clemons later testified, however, that his affidavit was essentially correct because 9:00PM was basically the same as 9:18PM which is the time he believed the alarm was set rather than 9:22PM. In an investigation where the police were claiming that minutes were critical, 9:00 and 9:22PM were claimed to have been essentially the same.

Indeed, Clemons later said that Dave could have killed his family and cleaned and manipulated the scene all within seven minutes. Eighteen minutes wasn't significant, however, and 9:00PM and 9:18PM were essentially the same.

What probable cause existed in the allegation in that paragraph? There was no probable cause. The affidavit was radically wrong about the time Dave left the gym.

(Note: In fact, the theory of the timing of the murders later shifted about two hours, or from the original time frame offered in the affidavit, 9:15-9:30PM, to 7:19PM after the prosecutor discovered a phone call from the Camm residence at that time. Prosecutor Faith actually claimed that Dave made a phone call to a client while waiting to kill his family. It was then that the basketball players became liars.

That 7:19PM unanswered phone call was actually made at 6:19PM and a Verizon billing official testified to that time in the first trial. "Fresh Eyes" investigator Gary Gilbert later used the same refuted "evidence" in the affidavit filed by him on November 16, 2004, claiming under oath that there was a 7:19PM call made from the Camm residence; that allegation was also later dropped after testimony from another Verizon billing official.

One should also ask this simple question: If the police and the prosecution believed that the basketball players were telling the truth about the time they got to the gym, who played, who watched, and the sequence and times they individually left, why did they claim that they were lying about not seeing David Camm leave or return? They weren't liars when the police and prosecution's theory was that Dave killed his family after the games were over or between 9:15 and 9:30PM. That they were liars only later presumed that the basketball players knew that the theory was going to change and that they were lying in preparation for the changed theory. Is it even remotely possible that 11 people would lie to protect a person who had left the gym and then who presumably slaughtered his family? Does that make any sense? Was common sense just abandoned?)

If not one of the paragraphs in the affidavit contained probable cause to believe that David Camm murdered his wife and children, how can the totality of the affidavit contain any probable cause at all?

The affidavit filed on October 1, 2000 was flawed, inaccurate and drew conclusions that weren't valid. It used the opinion of a person who was designated as a "crime scene re-constructionist" but yet wasn't qualified to give opinions. It also contained the interpretation of an investigator who inaccurately described sounds as being gunshots and who also claimed that a critical difference of at least 22 minutes didn't impact on the conclusions he reached.

The probable cause affidavit was filed because there was a rush to judgement. A rush to judgement that was horribly wrong. The probable cause affidavit didn't contain any probable cause but it did contain the horrible and highly inflammatory allegation that a father violated his little girl.

The highly inflammatory allegation that David Camm molested his little girl has continued to overshadow any semblance of due process such as proof beyond a reasonable doubt and has trumped any judicial proceeding in the seven years since it was first alleged. Probable cause wasn't established but a hatred of David Camm was firmly entrenched in the mind of the public.