“The original grainy video that has been shown repeatedly on TV is only a small part of the story here.”
That’s Cuyahoga County prosecutor Timothy J. McGinty, referring to a video depicting the shooting death of 12-year-old Tamir Rice.
His remarks came just after he announced that criminal charges would not be pursued against either Cleveland Police Officer Timothy Loehmann, who shot Rice on Nov. 22, 2014, or Officer Frank Garmback, who was driving the patrol car.
Much of the grand jury’s decision hinged on how the two officers perceived Tamir Rice as they approached the site of the shooting. And thanks to a 3D laser scanner, we know what this looked like.
This gadget is an emerging piece of technology in U.S. law enforcement that has featured in some of America’s biggest shooting incidents last year. Tamir Rice, San Bernardino, the slaying of New York City officer Randolph Holder — all of these crime scenes were documented using 3D laser scanners from the tech company FARO. These scanners preserve crimes scenes — collecting almost every visible detail. In recent years, more and more law enforcement agencies have adopted the scanners as part of their forensic routine.
Since 2009, the Federal Bureau of Investigation, the Department of Justice and the Department of Homeland Security have spent nearly $1 million on FARO scanners. Department of Defense: $18 million. Both considerable sums given that the company offers some of the least expensive laser scanners on the market for forensic analysis and surveying.
As they approached on that fateful afternoon, Garmback and Loehmann would have seen Rice sitting under a gazebo, according to the prosecutor’s final report. Earlier that day, Rice had traded his WiFi-enabled phone to friend for a malfunctioning toy BB gun. The friend had tried to disassemble and fix the fake firearm, and then reassembled it without the orange safety tip. Rice took the toy to the park outside Cudell Recreation Center, one of his regular hangouts. He aimed the toy at car tires, the heads of friends and his 14-year-old sister.
A person sitting on a bench saw Rice and called the police: “There’s a guy with a pistol. It’s probably fake, but he’s, like, pointing it at everybody…He’s sitting on a swing right now, but he keeps pulling it in and out of his pants, and pointing it at people. He’s probably a juvenile; you know?”
A Cleveland 911 operator didn’t relay two key details — Rice’s probable juvenile status and the suspicion that the gun was likely fake — to the police dispatcher, according to the case report, so Garmback and Loehmann entered the scene with the impression that a black male had been threatening people with a gun. They drove into the park, where they skidded to a halt at the gazebo.
We have a sense of what this looked like thanks to 3D laser scanners:
This virtual reality reenactment of the Tamir Rice incident shows the perspective of the officers as they drove toward the area where Rice was shot.
The Ohio Bureau for Criminal Investigation (BCI) collected the 3D laser scans for this reconstruction. Typically, this action would be done “as soon as the crime happens,” according to BCI special agents familiar with the case, but the scans for Rice case occurred five months after the shooting.
When asked why it took so long, BCI special agent supervisor Dennis Sweet said the scan wasn’t requested until the county prosecutor took over the case in January 2015. But even then, it took another three months.
The reason speaks to the secondary function of 3D reconstruction: storytelling.
Let’s back up. Using 3D scanning technology, lawyers can guide a jury through a realistic crime scene. The virtual walkthroughs might include animations of people, or as with the Tamir Rice investigation, recreate an officer’s perspective as he drives through a park.
“We’re able to show the officer’s point of view or sometimes the victim’s point of view, which just wasn’t able to happen before,” BCI special agent supervisor Dennis Sweet said. “We were able to take pictures before, but the scans allows us to take a look at angles and aspects that we never had access to before.”
The BCI agents and forensic experts that we interviewed couldn’t specifically comment on the Tamir Rice grand jury, but they said that such visualizations can be a powerful tool for making arguments in court. A juror might spot something that wasn’t mentioned in arguments.
“Instead of taking a jury back out [to a scene] several months, several years later, you can take them into a scene as it was the day that it was scanned. You have a more realistic, cleansed view of the scene,” Sweet said.
What role did these scans play in some of this year’s biggest shootings?
The Pennies of San Bernardino
You undoubtedly saw this image from last month’s mass shooting in San Bernardino.
It’s the bullet-riddled car carrying Syed Rizwan Farook, 28, and Tashfeen Malik, the married couple suspected in the mass shooting deaths at the Inland Regional Center that killed 14 and seriously injured 22.
His unit saw hundreds of pieces of evidence, and thanks to FARO’s laser scanners, they could capture and document such evidence in a single scan in just 15 minutes.
“It is the most complete documentation tool, aside from digging up the house and bringing the entire house with me,” said Russ, who is a crime scene specialist with San Bernardino County sheriff’s department.
The final standoff in San Bernardino was one of the multiple crime scenes that the unit analyzed that day with a 3D laser scanner. His sheriff’s department adopted the procedure more than five years ago for car collisions and crime scenes. His unit focuses on homicides and officer-involved shootings. It’s a race against the clock to document a scene in its original state.
Recording a crime starts by placing a FARO laser scanner, which resembles a box camera, onto a tripod, in the center or near a crime. Russ hits the start button and the device sweeps up and down and spins 360 degrees, while emitting three laser beams. The beams reflect off objects and travel back to the scanner, where they’re recorded by a light detector. All the while, the FARO scanner captures pictures of the scene.
“They’ll capture up to 1,000 feet of data in each direction, plus full color photographs, with an accuracy of 2 millimeters [seven hundredths of an inch],” said Kelly Watt, a regional manager of FARO’s forensic division. In other words, these lasers could tell the difference between whether you stacked one or two pennies on the ground.
The degree of resolution gives texture to a crime. Russ and his colleagues also take traditional photos at crime scene, but laser scanning has become an essential part of the routine.
FARO’s most expensive, long-range model costs $59,000, said 3D forensic reconstructionist and FARO distributor David Dustin, and the company also sells a handheld model for tight spaces — like the interior of a vehicle — for $11,000 or $12,000. By contrast, crime scene scanners from competitors, such as Leica, cost $150,0000 to $200,000, “depending on the bells and whistles,” Dustin said.
Russ will capture a scene from multiple vantage points. The scanner can also be flipped upside-down and placed under a car or down a manhole. An average scan collects 44 million data points, Russ said. Some scenes require 50 to 60 scans — that’s billions of data points. When Russ heads back to his crime lab, a computer program stitches the images together, creating a 3D memory of the crime scene.
The final product is similar to Google Street View: You can “walk” through the street. You can zoom in on things. Russ, a prosecutor, or a member of a jury can then venture through this virtual crime scene on a laptop, spotting items of interest like glass shards, bullet shell casing or a weapon. For example, rather than the traditional method of using strings to measure blood spatter, like in the TV show Dexter, the software can automatically calculate these patterns, which removes human error.
“It can figure out where a person was hit and even determine if it was a defensive wound or an aggressive attack,” Watt said. “For a collision, you can do a crush analysis. If a vehicle has been struck, we can estimate the speed of the vehicle based on crush damage and manufacture specs on the vehicle.”
Watt says the Secret Service uses FARO laser scans to case an area before a presidential visit, catching places where bad guys might conceal weapons, place explosives or hide for an attack. The technology also extends outside the realm of crime scenes.
Summer Decker scans skulls with the laser scanners to reconstruct a person’s appearance.
“It’s called virtopsy or virtual autopsy. The first thing that we do is a laser scan of the body to capture bite marks, bruises and other things that we might lose when we open the body,” said Decker, director of Imaging Research at USF Health’s department of radiology. “Little ridges, bumps and holes on a surface are such important information to scientists. If we had to take a photograph then we wouldn’t be able to capture this texture.”
Decker has been working with law enforcement agencies, including the FBI, to perfect these techniques. Her recent work has involves solving cold cases in South Carolina.
“We can laser scan the skulls in question, 3D print the faces and then have families identify the faces in the 3D model,” Decker said. “Or we can look at the surface of pubic symphysis — the area where the two parts of the pelvis intersect in the front — to determine someone’s age, their lifestyle or whether or not they had children if they’re a female.”
Decker says that the virtopsy with human remains has existed for approximately a decade, and she is working on a version with Microsoft for virtual headsets like the HoloLens.
“That’s what I see coming. We’re going to be putting these goggles on juries and say look around and tell me what you see,” Decker said.
How the jury reacts to these vivid depictions along with a lawyer’s arguments can be crucial to winning a case.
But why didn’t we see Rice’s point of view?
Law professor Carrie Leonetti has collaborated with some pioneers of virtual reality — like Stanford’s Jeremy Bailenson — to discuss how immersive technology will influence courtrooms.
The emerging question is whether virtual reality can be used as a tool to sway a grand jury, said Leonetti, associate professor of constitutional law, criminal procedure and evidence at the University of Oregon in Portland. The answer is yes and no.
Take Rice’s case for example. Video analysis, the 3D reconstruction, officer testimony and witness reports painted the following picture for the Tamir Rice grand jury, according to the case report. Garmback and Loehmann drove into the park and onto the grass with their cruiser at 15 to 22 miles per hour and approached the gazebo where Rice was sitting. Rice stuck something, presumably the toy gun in his pants, turned to walk away, but then turned back and approached the car. Garmback slammed on the brakes and the car slid 40 to 70 feet.
“Due to the wet conditions with snow, mud, wet grass and fallen leaves, Officer Garmback’s cruiser went into a skid and did not stop anywhere near where he intended,” said assistant prosecutor Matthew Meyer.
Cuyahoga County assistant prosecutor Matthew Meyer walks through the 3D reenactment of the Tamir Rice encounter.
This skid placed Officer Loehmann’s door right next to Rice. The investigation’s video analyst and Officer Loehmann say Rice reached into his pants as the car arrived, and both officers claim that they yelled “show me your hands” as the car slid to a stop.
“The security video shows Officer Loehmann opening the door approximately one second before shooting Tamir,” the case report reads. Rice was five to nine feet away when the first of two shots hit him. Those were the conditions upon which he died.
Once the Cleveland police turned the case to the Cuyahoga County Sheriff’s Office in January, the prosecutor’s office subsequently requested the Ohio Bureau of Criminal Investigation to reenact the crime scene using the 3D laser scanners.
“We used it in two ways: To make accurate measurements of objects at the scene,” said Joseph Frolik, director of communications and public policy for Cuyahoga County prosecutor’s office. “And then they recreated vantage points, so there would be a rough approximation of what you would have seen at the scene.”
BCI special agent Daniel Boerner said his unit mimicked the officers’ perspective by scanning at the approximate height of the officers as they sat in the police car. The team then used placards to represent the evidence — two cartridge cases, a cell phone, a magazine, and an air soft gun — and documented the scene. The resulting 3D reconstruction video shows the perspective of the officers as they approached Rice.
But what about Tamir Rice’s perspective? During the case debriefing, Meyer highlighted a video of the officer’s view, but it isn’t stated if a reconstruction of Rice’s viewpoint was ever requested.
“When cases like Tamir Rice or Eric Garner happen — where police officers aren’t indicted for a fatal shooting — the public allegation or outcry is the prosecution didn’t try hard enough in the grand jury,” Leonetti said.
If true, this scenario may seem one-sided, but Leonetti says that isn’t unusual for grand jury proceedings.
“A lot of the procedural fairness rules of a regular trial — where a jury decides guilt or innocence — just don’t apply to a grand jury setting,” Leonetti said. “The US Department of Justice requires their prosecutors give balanced grand jury presentations as a matter of internal policy, but there’s very little regulation to what a [city or county] prosecutors can show a grand jury.”
In these cases, it’s ultimately up to the prosecutor to present what is relevant and to advise the grand jury on laws that he or she thinks are relevant, Leonetti said. Typically, a judge and defense attorney aren’t present. (For an explainer, check out this piece from KQED). That’s because the grand jury isn’t trying to determine guilt. Its job is to determine whether a criminal act occurred, based on how the law is written.
3D laser scans are inherently unbiased, according to Russ, Boerner, Decker and the other forensic experts we interviewed. The device measures everything that it sees –and you can’t bias light. Russ said law enforcement will study these scans for hours or days to spot every possible piece of trace evidence.
But the 3D reconstructions can also support arguments in trial, said Eugene Liscio, a 3D forensic specialist who wasn’t involved in the Tamir Rice case. He cites the case of David Camm, a former Indiana State Trooper convicted twice of killing his wife and children before being exonerated in a third trial. Liscio used 3D laser scans to recreate whether or not Camm shot his son in the back seat of an SUV:
“The reconstruction wasn’t the central issue, but it made a point. People look at it, and they get it right away. It explained certain reasons why certain things may have happened or not.” Liscio said. During the Camm trial, jurors asked to switch between viewpoints, which Liscio could easily do on his laptop.
Leonetti agrees: “3D reconstructions are certainly more powerful. It’s much less likely that a jury will dispute a version of events with a 3D reconstruction versus a version of events backed by 2D photographs.”
However, she continues that any piece of evidence — 3D scans, photographs and witness testimony — can be spun in a grand jury because “the normal rules of evidence don’t apply.”
“Even heresay doesn’t apply. You can call one person to tell them everything that someone else told them in a grand jury, which you could never do in a criminal trial,” she said.
The fact that the BCI acquired the scans five months after the shooting isn’t an issue or an unusual procedure as long as the reenactment accurately represented the witness testimony and video footage, Leonetti said. The main concern is that “there’s never any judicial review or inquiry into whether a prosecutor presented balanced evidence in a grand jury.”
Going forward with virtual reality and the law, Leonetti says society should be most concerned about the “equality of arms.” Anyone can get an investigator to take photographs, but not everyone, such as a public defender, has the budget to create a 3D reconstruction.
It remains unknown to the public if multiple viewpoints in the 3D reconstruction were displayed in the Tamir Rice grand jury. No one interviewed for this story could discuss the specifics of the grand jury.
If it did exist, such a reconstruction might show a police car cutting over a grassy park, slamming on its brakes and skidding somewhat out of control to a stop. A door would open, and a gun emerge in less than a second.
Liscio said it’s never one piece of evidence that makes a verdict. It’s a collection of things.
“What the scanning does is add subjectivity, and it adds clarity. It can make things much clearer for a juror so they can make a better decision,” he said.