Andrews Report

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Table of Contents

INTRODUCTION 3

THE RILEY FOX CASE, ITS INVESTIGATION AND ITS REINVESTIGATION 6

The Crime 6

The Initial Investigation 7

The Case against Kevin Fox 9

The Confession 16

The DNA Evidence ' 24

The Reinvestigation and Real Story of the Crime 25

CRITIQUE OF THE FOX INVESTIGATION 29

RECOMl\1ENDATIONS 36

THE ANDREWS INTERNATIONAL TEAM 43

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Private & Confidential

INTRODUCTION

There were no winners in the Riley Fox case. The Fox family suffered, and continues to suffer, an unimaginable loss and, in its aftermath, a harrowing ordeal. Riley Fox, a child of three, was kidnapped, sexually abused, and drowned in a muddy creek. Within five months, her father Kevin Fox, was wrongly accused of the crime and imprisoned for eight months, under threat of the death penalty, until DNA evidence exonerated him. His wife Melissa Fox, bereft of her daughter and her husband, was left alone to contend with the immense emotional consequences of the murder and the arrest. Tyler Fox, Riley's older brother, suffered through an extended interview about the crime shortly after Riley's death and eventually saw his father wrongly accused of, and arrested for, a crime he did not commit.

The Will County Sheriffs office made major mistakes while investigating this case, targeting the wrong man and missing opportunities from the beginning that potentially would have led to the killer. Of course, it is far easier in hindsight to determine where the investigators went wrong, and it is important to note that Andrews International found no indication that they did so intentionally. Instead, well intentioned, if overzealous, investigators followed what they believed to be sound leads and sound practice in the case. It is now clear that they ignored, or were unaware of other substantial leads and information that may have led them to very different conclusions regarding how this crime was committed and about Kevin Fox's culpability. It is also clear that management of the investigation by ranking supervisors in the Will County Sheriffs Department chain of command was almost nonexistent. The responsibilities fell largely to the assigned investigator to direct and manage the activities of other investigators from different units in his department, as well as investigators from federal, state, and local agencies. The investigators' conception of sound investigative practice was flawed in many respects, including their then-current practice in conducting interviews, administering polygraphs, and recording confessions. Most of all, they had a flawed conception regarding how to manage a case of this complexity in terms of keeping options open, incorporating new facts, repeatedly revisiting known facts and evidence, and resisting the temptation to prematurely narrow the focus of the investigation to a single target.

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Several of the investigators that Andrews International interviewed expressed profound regret and contrition about the course the case eventually took. They were not out to "get" Kevin Fox. In some respects, they were victims themselves, of their own inadequate training for and limited experience with crimes of this severity and of the general lack of a management system and sound practice in the Criminal Investigative Section of the Will County Sheriff's Office.

Recognizing these problems, Sheriff Paul Kaupas has retained Andrews International to review the entire Fox case and to make recommendations for improving the systems, protocols, and methods that failed so dramatically in this instance. Sheriff Kaupas urged the consultants to conduct a thorough review, shining a light on all the facts and circumstances of this case to improve the quality of the Sheriff's Office's investigative function.

Andrews International conducted an independent evaluation of the Criminal Investigations Section, reviewing and evaluating procedures, staffing, management, and organizational structure in addition to comparing Will County practice to best practices in policing and criminal investigations. Andrews International also reviewed the entire Riley Fox case file and interviewed most of the personnel from the Sheriffs Office, as well as investigators from other agencies involved in the case and its investigation. Although the sheriff urged all current and former Will County Sheriffs Office personnel to cooperate with the Andrews International study, several of the principal supervisors and investigators declined to be interviewed, as did the former State's Attorney and his deputy.

This report summarizes Andrews International's findings in the case and recommendations for going forward. Sheriff Kaupas has committed to act decisively on the findings and recommendations. Conducting an investigation is never an exact science and eliciting confessions from guilty persons is a complex process in which mistakes will sometimes be made by investigators in pursuit of a criminal. That is the reason why frequent training, procedural safeguards, and sound management are so important to the investigative process. In serious cases, investigative managers should exercise continual oversight and critical review of the

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investigative team, and the State's Attorney's legal team should thoroughly vet both the case and the confession well beyond establishing probable cause, as they proceed to prosecute a defendant.

A crime of these dimensions, a crime that shocks the conscience of the community, can never be treated as business as usual either by investigators or by their managers. Investigators will try to do whatever is necessary to bring the culprit to justice, but the managers and government attorneys playa somewhat different role. They too want to solve the case, but their function is also to ensure that there is no rush to judgment and that innocent people are not ensnared in the traps laid for the guilty. Although Will County investigators erred in targeting Kevin Fox, the failures in oversight in this case, by both investigative managers and the State's Attorney's Office, were actually more glaring. Andrews International hopes that the recommendations of this report will help correct the problems we have identified in the Sheriffs Office and in the interactions between the Sheriffs Office and the States Attorney's Office so that future cases have a better foundation in both the established evidence and in sound investigative practice.

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THE RILEY FOX CASE, ITS INVESTIGATION AND ITS REINVESTIGATION

The Crime

Riley Fox was kidnapped and murdered on June 6, 2004. She was taken from her home in Wilmington, Illinois in the early morning hours, and her body was found in Forked Creek in a part of the Forsythe Woods Forest Preserve at about 3: IS pm the same day by volunteers who had joined the search for the missing girl. Kevin, Riley's father, had been caring for her and her brother Tyler on the day of June Sth because their mother Melissa had left for Chicago where she planned to spend the night and participate in a march the following day in support of breast cancer research. During the day on June Sth, Kevin had taken the children to an art supply store to purchase materials to make posters that they were to hold up at the Chicago march, which they were all planning to attend the following day. During the evening of June 5th, Kevin left both children at the home of their maternal grandmother Sandy Rossi while he and his brother-in-law Tony Rossi attended a concert in Chicago, Kevin and Tony returned to Wilmington between midnight and 1 pm. They had been drinking in Chicago and mayor may not have been intoxicated by the time they reached Wilmington. Kevin dropped off Tony, picked up the kids, and returned home. The children's beds were unmade, so Kevin put them to sleep in the living room, with Riley on the couch and Tyler on a chair and an ottoman. Kevin smoked a cigarette on the porch and watched television before going to sleep at about 2:30 am.

It is now been established that Scott Eby, a person known to the Wilmington Police, whose criminal record included three burglary convictions, entered the Fox residence in the early morning hours of June 6th, while Kevin was sleeping, and carried off Riley Fox. He drove her to the Forsythe Woods Forest Preserve, some three miles from the Fox residence, sexually abused her, and drowned her in Forked Creek.

Kevin Fox was awakened by his son Tyler at 7:S0 am on June 6th• Tyler told him that Riley was gone. Kevin began to search for her, queried a neighbor by phone about whether she had seen Riley or not, and continued to search until he called a non-emergency 411 number to report her

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missing at about 8:30 am, a fact that would later appear suspicious to the Will County investigators. He did not call his wife, a fact that would also appear suspicious to the investigators. She happened to call him and, after learning that her daughter was missing, hurried back from Chicago. Upon her return, she was overheard arguing with Kevin and asking him angrily: "Did you do something stupid? You better not be lying to me." There were also conflicting reports about Kevin's emotional state on the day of the murder. A detective from the Will County Sheriffs Office, who interviewed Kevin that evening, reported that Kevin was flatly unemotional, but neighbors and Wilmington Police officers remembered him as being increasingly distraught during the actual search. When Riley's body was found in the afternoon, Kevin Fox was at the Wilmington Police Station being interviewed by a detective from the Illinois State Police. When he learned of his daughter's death at about 4:30 pm, Kevin reacted emotionally, punching the walls of the room and eventually collapsing.

The Initial Investigation

The investigation was initiated on the day of the crime. The Wilmington Police, Will County Sheriffs Office personnel and Illinois State Police personnel were all involved. Crime scenes at Forked Creek and the Fox residence were processed by the Crime Scene Investigations Unit of the Will County Sheriffs Office. No decisive evidence was found at the Fox Residence, but one possible piece of evidence was discovered in Forked Creek about ~ mile downstream from where Riley Fox's body was found. A pair of sneakers was discovered, which, much later, was determined to have been purchased in prison, with the letters "EBY" on the back of the tongue of each sneaker, which is now known to spell the name of Riley Fox's murderer.

Portions of the possible crime scene at Forked Creek were not processed. These included toilet facilities on the rise above the creek and a nearby trash receptacle. It is now known that the violation of Riley Fox took place in one of the toilet facilities and that Eby disposed of her underwear in the trash receptacle. Personnel from Will County Crime Scene Investigations did look into the toilet facilities and noticed that the floor of one of them was covered with a viscous, oily substance. Park police had taped off the area, but it was never treated as part of the crime scene by the investigators.

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An autopsy was conducted the day after the murder, and oral, anal and vaginal swabs were taken from Riley's body. Riley had been bound by duct tape on her mouth and wrists. The swabs and the duct tape, together with the other crime scene evidence, was sent initially to the Illinois State Police crime lab and subsequently hand delivered to the FBI crime labs on June 14th, According to Will County investigators, they were promised a speedy analysis of the evidence, including any DNA found, and they were confident that the FBI lab was the premier crime lab in the county. Yet, five months later they were still waiting for a response regarding whether DNA had been found and what could be learned from this evidence.

The autopsy also determined that Riley Fox had not been raped but, instead, penetrated by a finger or other comparably sized object. The extent of her injuries would later be a matter of dispute. The Will County detectives understood that her sexual injuries were relatively minor, but the examining physician Would later testify in civil court that he had never asserted that her injuries were minor and that they were in fact quite severe, particularly for a child. This misunderstanding may have contributed to one emerging theory of the crime, that a sexual assault had not OCCUlTed and that Kevin killed his daughter accidentally. The theory contends that he attempted to cover up the accident, and in doing so had penetrated her with this finger to make it appear she was the victim of a sexual predator. In the minds of the investigators, the theory of the simulated sexual assault was supported by what they believed to the minor nature of her injuries. They seemed to have believed that a sexual predator would have done more damage.

The Illinois State Police conducted a canvass of the neighborhood around the Fox residence. Their reports include interviews with neighbors who attested to Kevin Fox's devotion to his daughter and with a former officer with the Will County Sheriff's Office who said that he had often seen Kevin playing with his children. They also learned that there may have been a burglary the night of the murder at the next house east of the Fox dwelling, where a hole had been cut in a screen door to provide access to an inside latch. The resident who reported this situation had not missed any property, and the inside of the house appeared to be undisturbed. A


section of the screen was' cut out and collected as evidence, With the discovery of the body and the second crime scene at Forked Creek, however, the possible burglary scene was overlooked, and so far as Andrews International could detemine, it was never processed by any of the police agencies involved in the investigation. It is now known that Scott Eby did indeed burglarize this home, stealing $40 from a purse, before moving on to the Fox residence,

It was at the Forked Creek scene on the day of the murder that the several police agencies involved determined which agency would take lead responsibility in the case. It was decided that the Will County Sheriffs Office would take over the investigation.

Will County detectives interviewed Kevin Fox, Melissa Fox, and Tony Rossi on the day of the crime. Kevin, in fact, gave three separate interviews that day: 1) in the morning, to the Wilmington police detective who responded to the initial 411 call; 2) in the afternoon, to the Illinois State Police detective with whom he was speaking when told of his daughter'S death: and 3) in the evening, to a Will County detective, who was assigned as lead investigator on the case and who interviewed Kevin at the Will County Sheriffs Office. Kevin repeated the same consistent story in each ofthese interviews.

Investigators also began a review of sexual predators in Wilmington and the surrounding area. This review did not tum up any leads to Scott Eby, the alleged killer, who had no record of sexual crimes at the time of Riley Fox's abduction. The investigators did not conduct a similar review of burglars in the area, which would have turned up a lead to Eby, who had three prior burglary convictions. The investigators also sought any surveillance tapes from cameras along possible routes between the Fox house and the Forsythe Woods. Unfortunately, footage on the tape they did fmd was poorly lit and provided only vague images of the passing vehicles.

The Case Against Kevin Fox

According to the Will County investigators, Kevin Fox was under suspicion from the first day. The case against him was built in their minds from a handful of evidentiary components, described by the investigators as "red flags," that seem in retrospect to be extremely scant:

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1. Kevin's Delay in Calling after Riley Was Discovered to be Missing - Tyler Fox woke Kevin Fox at 7:50 am to tell him that Riley Fox was missing. He spent 40 minutes searching for her before he called the non-emergency 411 number to report her disappearance. The investigators later said that their suspicions were aroused by both the time lapse and the use of the 411 number. It seemed to them that a father, concerned for his missing child, would have called sooner and would have called 911. But they did not consider how a man would behave if he were pretending to be concerned for his missing child. The investigators' eventual theory ofthe case was that Kevin had faked her abduction and that he knew perfectly well that she was dead and where her body could be found. Under their theory, therefore, he was only pretending to look for her. There are entirely reasonable explanations why a father might delay in calling the police, including that he believed there was an innocent reason for Riley's absence and that he was not the panicking type. As one of the investigators told Andrews International, people in Wilmington did not believe that this type of crime could ever occur in their safe, almost rural, community. There is also a reasonable explanation for why he called 411, not wanting to create a stir over a child who might be hiding or playing somewhere. But why would a man who was trying to persuade the police and others that his daughter has been abducted call 411 and delay in making the call? Would he not be far more likely to do just the opposite and call 911, simulating a panicked state and telling the police that his daughter had been kidnapped? There have been, in fact, many cases in which people have called 911 to cover up crimes that they themselves have committed. One might also ask how it was possible for Kevin Fox to be asleep when Tyler Fox came to him, within just a few hours of having drowned his own daughter. In all likelihood, would he not have been awake, in an agitated state, and rehearsing his story for the police in his mind? Investigators read far too much into the 411 call and its timing. This was not suspicious behavior, and its very casualness should have led them to the opposite conclusion of the one they reached.

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2. Kevin Fox's Demeanor on the Day of the Murder - A Will County detective reported Kevin was flatly unemotional when he interviewed him in the evening after the search for Riley and the discovery of her body. But according to testimony in the civil case emerging from Fox's arrest and other sources, other people, including Wilmington Police officers, reported that he was increasingly frantic during the search itself. In addition, when told that his daughter's body had been found he was explosively emotional, pounding walls with his fists and ultimately collapsing. The investigators, working on the premise that murdered children are often found to have been killed by their parents, came to conclude from observations of an unemotional Kevin that he might be the culprit. Yet, they ignored other information about Kevin's emotional state both before and after the crime; most importantly that Kevin was, by all reports, a doting father, especially devoted to his daughter Riley. They also overlooked the possibility that Kevin may have been exhausted by the time of his evening interview and hence less expressive than he might have been otherwise.

3. Kevin's Failure to Call Melissa Fox and Her Comments after Returning Home - Kevin did not call Melissa even after he called the police and only spoke to her because she happened to call him. This failure was deemed suspicious by the investigators, but is hardly so. Once again, a man who was trying to persuade the police and his wife that the girl had been kidnapped would be far more likely to call than not to call. A man who was ashamed about having lost his daughter, however, might well delay in admitting it to his wife. According to witnesses, Melissa was angry with Kevin upon her return and was overheard asking him: "Did you do something stupid?" and adding, "You better not be lying to me." Yet, this was not a reason to suspect Kevin. It was natural for the mother to be angry about the missing child, and she may have regarded Kevin as being capable of carelessness. But her words clearly indicate that she did not suspect him of anything worse. One does not address a person one suspects of killing one's child with the interrogatory "did you do something stupid?"

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4. No Signs of Forcible Entry at the Fox Home ~ There were no signs of forced entry at the Fox house, which the investigators deemed suspicious. Kevin said that he had locked the front door and found it open in the morning. A retired Will County officer who lived nearby saw it open at about 6 :45 am. It was also swiftly established that the backdoor lock had been broken for some time, long enough that the Foxes had followed the routine of holding it shut by placing a hamper in front of it. Most burglars try doors before resorting to breaking and entering, and so a burglar could have gained entry easily and without disturbing locks, doors, or windows. It should be noted here that the principal Will County investigators did not visit the Fox residence on the day of the crime or, indeed, until two weeks later. This seems poor practice in a case of this severity. Principal investigators should always visit the scene of the crime and be personally aware of all the surrounding circumstances and particularly of the actual layout and conditions at the crime scene. The broken back door, the open front door, and the cut screen in the house to the east all suggested the possibility of a burglar, despite the lack of any signs of forced entry. It certainly was not implausible that a burglar working the neighborhood would have tried the back door and found it open and left through front door, leaving it ajar. Had the investigators kept an open mind about this possibility, they might have researched local burglars as well as sex offenders and found a record of Eby's burglary convictions. This, in turn, may have caused a member of the investigative team to remember the sneakers with Eby's name in them. Instead, the investigators discounted the report of the possible burglary nearby and judged it to be unrelated.

5. The Interviews with Tyler Fox ~ On June 22nd, 16 days after the murder, Tyler Fox, Riley's older brother, was interviewed in what is called a victim sensitive interview (VSI) by a child counselor. During the course of this interview, Tyler acknowledged that his father had left the house during the night of the murder but, pressed multiple times to say that Kevin had taken Riley with him, Tyler declined to do so. Investigators seemed to weigh Tyler's memory that his father left much more heavily than his uncertainty about Riley. Kevin Fox himself had said that he had left the

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house to smoke a cigarette on the porch, and this could have been the departure to which Tyler was referring. Yet, for investigators, Tyler was referring to a second departure that fit their theory of the crime. They may have interpreted Tyler's increasing distress during the interview.: when pressed again and again on the question of whether Kevin took Riley, as the child's unwillingness to implicate his father; but, just as easily, it could have shown the child's unwillingness to tell untruths about his father and his emotional reaction to being pressed, by an apparent authority figure, to do exactly that. Tyler had a second interview the same day with a Will County investigator, and the two walked through the Fox residence together. Tyler was again pressed about whether Kevin had taken Riley somewhere and this time is reported to have said that he did not know. The investigative report memorializing the second interview with Tyler is an equivocal document. It twice states that Tyler said he thought that Kevin took Riley somewhere that night. But it also states that Tyler was not sure if Kevin was carrying Riley when Tyler saw him leave and that he was not sure if Riley was still on the couch after Kevin left. Asked why he believed that Kevin took Riley, Tyler is quoted as saying that Kevin was the only one who left the house that night. This, then, is a tentative conclusion the child has drawn rather than something he has observed. Riley is gone, Kevin is the only one who left the house, therefore, Kevin took Riley. The child's logic is of course flawed because the boy was asleep most of the night and in no position to determine who entered or left the house. He told investigators that the squeaking front door would have awakened him had anyone else passed through it. This is of course doubtful, especially as the person who did pass through it was an experienced burglar. The investigators credited these speculations by Tyler causing them to lose sight of the fact that he never asserted in either interview that he actually saw his father take Riley outside.

6. The SUV on the Surveillance Video - The investigators secured a surveillance videotape of an SUV -type vehicle traveling on a possible route from the Fox residence to the Forked Creek location in the early morning on June 6th, the day of the

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murder. They surmised that the vehicle might be Kevin's Ford Escape. In late July, they were able to gain possession of the Ford Escape, which the Foxes had traded in, and to run tests with it, driving it past the security camera at night so they could compare the original tape with the tapes of the Ford Escape. They also had a crime scene technician process the vehicle at that time. Independent observers, including former detectives working with Andrews International, say that there is no particular resemblance between the vehicles other than that both vehicles are SUVs. It is apparently even difficult to ascertain with certainty that the vehicle on the first tape is an SIN. For investigators to consider this murky and virtually unreadable videotape as an important piece of evidence in the case against Kevin Fox is a powerful indicator of how much they had narrowed their search by late July and early August.

The physical evidence collected from the Fox house, the Forked Creek location, and the Ford Escape did not provide any substantial leads to the investigators and did not incriminate Kevin Fox in any way. The only important lead to emerge from the crime scene searches was the one that was not followed the sneakers with Eby's name in them. The significance of this evidence was missed twice. It was missed once because the detective with the Wilmington Police never learned about the sneakers. This detective would have recognized Eby's name because he knew Eby as a criminally inclined individual. It was missed a second time because Will County investigators did not know that the Wilmington Police made contact with Eby on the very day of the murder. Eby had called a friend and left a message on her telephone answering machine at 7: lOam on the morning of the murder in which he threatened to commit suicide. The friend did not retrieve the message until 2:00 pm and called the Wilmington Police at 911 to report the suicide threat. A sergeant, who had been at Kevin Fox's house because of the Riley Fox disappearance, responded with another police officer to Eby's home, which was 1.1 miles from the Fox residence. They were dispatched there simply on a "welfare check" and were unaware that Eby had left a message that he was going to commit suicide. When they arrived at Eby's home, Eby, after vomiting in front of the responding officers, claimed that he had been drinking heavi1y the night before and was okay. He also asked if "they found that little girl yet?"

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Taken together, Eby's name on the shoes, Eby's criminal inclinations, and Eby's threat of suicide on the day of the murder certainly would have constituted sufficient evidence to make Eby "a person of interest" in the Riley Fox investigation, and further research would have led to the discovery that Eby had three prior burglary convictions. Unfortunately, these facts were never assembled or reviewed partially or in their totality, and the Will County investigators reported that they were not aware of them.

In summary, there was no solid evidence even to suggest that Kevin Fox had killed his daughter. Without the assumption that murdered children are frequently killed by their parents and without the emerging theory that Kevin had killed Riley by accident, or thought he had killed Riley by accident, and then had staged the abduction to cover up his error, investigators would have had nothing to link Kevin Fox to the crime. Even with the theory, there was virtually nothing to support it:

• He was slow to call the police.

• He called 411 instead of 911.

• He showed a lack of emotion in the evening after the search (although ample emotion

during the search and after the discovery of the body).

• He did not call his wife during the search.

• He was berated by her when she returned.

• He had a broken backdoor lock.

• He was seen by his son leaving the house without his daughter, which he had already stated he had done.

• He owned a SIN that only generically resembled a car caught on a murky videotape.

• He was not implicated by any of the forensic evidence.

Taken in its totality, this evidence adds up to exactly nothing. It certainly did not constitute probable cause. It should also be noted that, in addition to this inconclusive evidence against Kevin, there was significant evidence in his favor, including the fact that neighbors attested to

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his devotion as a father and the fact he was able to relate a consistent story in three different interviews with three different police officers on the day of the crime.

In light of Kevin's confession in October 2004, investigators must have felt justified in their suspicions and in the case they had built against him. It was a flimsy case, however, and the confession itself would prove to be equally flimsy.

The Confession

On October 27, 2004, after a long interrogation by Will County detectives and after failing a polygraph test that was administered between two of the several interrogation sessions, Kevin Fox confessed to killing his daughter by accident, and faking her abduction and sexual abuse. Prior to this confession, the Riley Fox case had been stalled for nearly five months. Kevin Fox was the only suspect under consideration, and the Will County detectives decided to interrogate him in the hopes that he would confess.

Informed that investigators wanted to talk about the case, the Foxes were called to the Sheriff's Office at about 7:00 pm on October 26th• They were quickly separated, and the interrogation of Kevin Fox began. It took place in a series of roughly one-hour increments separated by breaks. Kevin signed a waiver allowing investigators to speak to him without his lawyer present. Kevin maintains, however, that he asked for a lawyer early in the evening and was never provided one. During the second interview increment, beginning about 8:30 pm, the detectives accused Kevin of the murder, falsely telling him that they had fibers that implicated him in the crime and claiming that they had video of his Ford Escape on the road to the forest preserve. As Kevin realized that he was the target of their investigation, he became belligerent and angry, and, according to the investigators, threatened to punch them in the face. Also during the second interview increment, Kevin agreed to take a polygraph test. There was a third interview increment, involving different investigators that lasted until about 10:45 pm. Then, all interrogation ceased, and Kevin and the investigators waited for the polygraph examiner to arrive. The test was administered between 1:30 am and 2:10 am. According to the polygraph examiner, Kevin furnished deceptive answers.

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His failure apparently increased Kevin's vulnerability to the investigators' pressure, and he became more fatigued during a second round of interrogation that followed the polygraph. For approximately a one-hour period following the test, Kevin spoke with the polygraph examiner and with his wife. Three more interrogation increments followed, from 3 am to 4 am with one pair of investigators, from 4:55 am to 5:45 am with a second pair of investigators, and from 6:15 am to 7 am with a third pair of investigators. Kevin describes an increasingly coercive interrogation in which he was shouted at, shown photos of his dead daughter, told that she was begging him to confess, threatened with gang rape in prison, and subjected to aggressive physical behavior. He does not assert, however, that he was in any way physically attacked or abused. He also maintains that a detective entered the interrogation room claiming to offer a deal from the State's Attorney of a three-to-five year sentence in exchange for a plea of accidental death. Andrews International was not in position to determine the veracity of Kevin's claims, but it is clear that the interview was designed to elicit a confession and that the investigators pressed very hard for one. Kevin says that he was not free to leave this interrogation and that he decided to confess to end the interrogation ordeal. He also maintains that he purposely sprinkled his statement with details he knew to be false and that could be easily disproved because it was his intent all along to retract the confession. He confessed at about 7:00 am to accidentally killing his daughter and then covering up the crime by simulating a sexual attack and leaving her in the creek. He talked to investigators for the next hour providing details of the crime. The confession was videotaped between 8:22 am and 8:42 am on October 27th•

Kevin's videotaped confession is itself highly questionable evidence. The suspect is led throughout by a detective who repeatedly prompts him and provides details of the supposed crime, eliciting mumbled affirmative replies from Kevin who says "yes" to the various acts that detective imputes to him. At no point in the confession does Kevin provide an unbroken narrative of the crime, and it is not clear from the tape that he could do so. It is also unclear whether the investigators truly believed in this narrative of the crime themselves.

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The narrative as told by Kevin and the detective is as follows: Kevin accidentally hit Riley with the bathroom door, knocking her back and striking her head against the bathtub or floor. (Kevin maintains that he knew at the time of the confession that the door in question had a hollow core and that the tub was too far from the door for Riley to have been knocked into it by the door). In the confession narrative, Kevin believes Riley to be dead at this point. (She could not have been dead because the autopsy established drowning as the cause of death). In the confession narrative, she was wearing only her tee shirt because she had been on the toilet. Kevin then took her to his Ford Escape, placed her in the back seat, and drove her to Forked Creek. In the confession, he describes first setting out for his mother-in-law's house, then heading to the hospital, and then turning toward to the creek. When he reached forest preserve, he parked to the east of the bridge crossing the creek, although this detail is provided in the confession by the investigator who references their previous conversations.

Kevin then says that he put Riley in the creek. Asked ifhe did anything "to or with her body," he replies that he put duct tape on her. It is established that, still believing Riley to be dead, he taped her mouth and wrists with duct tape that he had taken previously from his other car, a Ford Bronco. The investigator makes the point that by taking the duct tape with him as he headed for his mother-in-law's house he must already have been planning to simulate an abduction: "So therefore you already had this idea of something you've got to do in order to get rid of the body before you started driving around."

Resuming the narrative of the crime, Kevin says that he went down the hill. The investigator inquires: "and you're carrying her down the hill to the bank of the creek?" Kevin says yes, and there is a long pause. The investigator inquires: "Did you do anything else prior to placing her in the creek?" There is a longer pause. The investigator says: "I understand this is very difficult for you, Kevin. . . I know this is hard to talk about. Earlier when we talked you told us that you placed your finger in her vagina." Kevin replies 'yes.' The investigator inquires further:

"And you told us that it was the pinky finger on your left hand, is that correct?" Kevin concurs. They establish that the whole purpose of penetrating her was to make it appear that she had been

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abducted by a sexual predator. Kevin says that he placed what he believed to be her dead body in the river. He then drove home, stopping to throw the duct tape into a dumpster outside a store.

Kevin says he went home and fell asleep until Tyler woke him at 7:50 am and told him that Riley was gone. At this point, Kevin lapses back into his pre-confession story saying that he started to look around the house, went outside to look around, and came back in and called a neighbor "to see if Riley was over there," all of this related as if he had been truly searching for her and not merely simulating a search. Later, one of the investigators has to confirm with him that, all the while he was searching, he did, in fact, know where Riley was because he had "placed her there."

Did the investigators really believe this narrative line or were they engaging in an interrogation technique by which a suspect is encouraged to admit to a less serious offense, such as a coveredup accident, that carries less guilt and culpability, in order to start the suspect down the road to admitting to the actual crime? The investigators knew that the child was not killed by accident in the Fox home and that the cause of death was drowning. They also knew, or should have known, that there were no wounds on Riley's head sufficient to cause death or even unconsciousness. Hence, the narrative line of the confession was demonstrably false, and the investigators should have known it. Was this confession, then, just the first step toward eliciting a fuller confession in which they hoped Kevin would admit to the sexual abuse and murder? If so, why did the investigators not attempt to gain that fuller confession?

In addition to not being supported by any physical evidence, the overall theory of the accident and cover-up was deeply flawed. Parents do kill their children, both purposefully and by accident, but usually the accidental deaths are caused by beatings that raged out of control. The children often have a history of abuse and wounds from previous abuses. Parents do sometimes intentionally murder their children, and sometimes by drowning, but these unhappy souls are frequently the subject of severe psychological disorders, which Kevin did not exhibit, as an adult or a child. The parent(s) in accidental or intentional cases sometimes dispose of the body and then tell a story to the police about the child vanishing or being kidnapped, and they are usually

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tripped up by forensic evidence and inconsistencies in their own stories. The theory that Kevin Fox believed he had killed his child by accident, in innocent circumstances and not as a result of a beating, and then covered up this innocent, if careless act, by faking a sex crime and a murder was farfetched in the- extreme. The theory presupposed that a father, already deeply distressed by the child's death, would first think it necessary to fake an abduction to cover up an innocent accident and would then sexually desecrate his daughter'S corpse.

There is strong evidence that the detectives did not actually believe the accident/cover-up theory but only advanced the idea to Kevin during his interrogation on October 26-27, 2004 to induce him to confess. On October zs", one day later, the lead investigator on the case signed a complaint that did not charge Kevin Fox with unknowingly drowning his daughter, as he had admitted in his confession, but with four counts of First Degree Murder "with intent to kill" and with Predatory Criminal Sexual Assault. His acts were characterized in the charge as "exceptionally brutal and heinous behavior indicative of wanton cruelty." Kevin was to retract his confession almost immediately, so it appears that neither party to the October 2th confession, not the Will County investigators and certainly not Kevin Fox, actually believed it to be true. It should be noted here that it is quite rare for sexually abusive parents to kill their victims. The dynamic of parental sexual abuse usually involves the parent exercising psychological control over the child, making homicide or violence of any kind unnecessary.

The interrogation of Kevin Fox, like many interrogations in the United States in the past 50 years, was conducted in accordance with principles of interrogation laid down by John Reid, a Chicago Police Department detective who went on to a long and successful career as a private sector authority and trainer on the subject of eliciting confessions from criminal suspects. Reid was also one of the original designers of the polygraph machine. The lead investigator in the case acknowledges taking the Reid course in interrogations and confessions. Reid advised that the goal in interrogations is to isolate the suspect and to play upon his guilt and his suppressed need to speak about what he has done. Reid outlined several paths to this goal, including exaggerating to the suspect the strength of the evidence against him and guiding the suspect in constructing a self-justifying narrative of the crime, called "minimalization" in Reid's teachings.

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Essentially, the interrogators seek to bond with the suspect, sympathizing with his predicament and offering narrative lines that might justify, at least in part, the terrible crime, encouraging the suspect to admit to some part of the truth. It may be that the Will County detectives were using such a technique when they encouraged Kevin to admit that he had killed his daughter by accident and then covered up the crime by faking an abduction. Exhaustion often plays a role in this process as the suspect is worn down by repeated questioning and loses the ability to maintain a consistent account of what happened. A polygraph, if a suspect is willing to take the test and goes on to fail it, undermines the suspect's story further. Alone, beleaguered, and fatigued, the suspect eventually surrenders, admitting to the "minimalized" story or sometimes to the more serious crime. Reid's methods have elicited confessions from many guilty persons. Unfortunately, they have also been used to elicit confessions from people who were entirely innocent.

The videotaped Fox confession is, in fact, strikingly similar to other false confession cases. It appears that the investigators, in the course of interrogating Kevin, unwittingly supplied him with the details of the crime. This happens in most false confessions. The investigators go over the ground again and again as they are interrogating the suspect, and the suspect, in essence, memorizes his part. He learns what details are important to investigators and when he decides, for whatever reason, to falsely confess, he parrots back these details, which the investigators take as confirmation that he is, in fact, guilty. In the Fox confession, investigators are at pains to establish what happened to Riley's underwear because she was not wearing it when her body was found and the underwear itself was not recovered at the murder scene. It is now known from the confession of Scott Eby that he removed her underwear at the murder scene and threw them away in a trash receptacle near Forked Creek. Together, the investigators and Kevin concoct the story that she was not wearing underwear because she had been on the toilet. Similarly, investigators want to establish where Kevin got the duct tape and what he did with the roll. This leads to an utterly fanciful story about taking the duct tape from his other car, a Ford Bronco, and eventually throwing it away in a store dumpster, neither of which events occurred. To be fair to the investigators, Kevin, like many people who have made false confessions, also embroiders the story with details about crying by the creek and crying when he returned home,

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and he offers what sounds like a heartfelt statement of apology as if he actually believed that he had done something wrong. Investigators in these situations should be acutely aware of the suggestibility of some human beings. In breaking down the suspect's story, investigators can sometimes break down their very sense of reality. Then, instead of an inquiry after the truth, the interrogation becomes a collaboration between the investigators and the disoriented suspect in making up a story that roughly fits the known facts of the case.

To viewers who know that Kevin is innocent, the most striking thing about the videotaped confession is his reluctance to describe sexually violating his daughter. He simply will not say the words. The investigator supplies the story, and Kevin quietly affirms it. Believing Kevin to be guilty, the viewer might interpret this reluctance as sign of guilt. Knowing him to be innocent, the viewer realizes that not only was he not capable of doing such thing to his daughter, he could not even say it.

The investigators and their managers were pleased with the break in the case that Kevin's confession represented, and the State's Attorney moved to charge Kevin on the basis of the confession. Neither seemed to recognize that a case should not stop with a confession. It is incumbent upon the authorities to test the assertions of a confession against the known facts and evidence in the case. The description of the crime in Kevin's confession could not have been true because the autopsy of Riley Fox did not support it. She had no head wounds or other wounds that would have rendered her unconscious. Had Riley been unconscious, she would certainly have regained consciousness during the drive to Forked Creek, the duct taping, the sexual violation, and the submerging in the creek. She would also have remained warm to the touch, which would have alerted her father that she was alive. Further investigation should have been conducted in order to corroborate or contradict the narrative line in the confession. In addition, the State's Attorney representative, having viewed the confession, should have raised questions about the way the suspect was led by investigators in telling the story, particularly in light of the fact that the confession had been retracted within hours.

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The State's Attorney went on to announce that he was seeking the death penalty in the Fox case, ignoring the provision in Illinois law for a 60-day contemplation period during which a prosecutor is permitted to consider the case before recommending capital punislunent. The State's Attorney was in a close election race for his post, which he eventually lost, and the election was only several days away. These heated circumstances may have clouded his judgment It is important to note, however, that Kevin Fox had not confessed to sexually abusing and murdering his child, a heinous offense that might warrant the death penalty. He had confessed to an accident and to foolishly covering up the accident and consequently inadvertently drowning his daughter, whom he believed to be already dead. Why was this a death penalty case? There is no evidence to support the allegation that one or more Will County detectives conspired with the State's Attorney to falsely accuse Kevin Fox. However, it does appear that State's Attorney exploited the Fox case in his election campaign, and this may be a reason why his legal team did not vet the Fox case or the Fox confession as thoroughly as they should have. So far as Andrews International was able to determine, no further research was ordered to corroborate the confession by either the Will County investigative managers or the State's Attorney, and investigation on the case essentially ceased.

At 9:05 am on October 27th, after the confession was recorded, Kevin was transported to the Will County Adult Detention Facility. There, he consulted with a lawyer, Kathleen Zellner, whose services had been secured by his brother Chad Fox. He retracted his confession immediately. According to Ms. Zellner, the story he told her that day never varied thereafter. Ms. Zellner was immediately convinced that Kevin was innocent, and on November 4, 2004 commenced a civil action in U.S. District Court, charging false arrest and a variety of other civil rights violations by the investigators, the Will County Sheriff's Department, and the States Attorney. She also saw clearly that possible DNA evidence recovered on the day of the crime might be instrumental in establishing Kevin's innocence. She initiated efforts to have the DNA tested at a private lab. Denied bail in a capital murder case, Kevin Fox would spend the next eight months in jail.

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The DNA Evidence

Samples recovered from Riley Fox's vagina and the duct tape removed from her mouth and wrists had been hand delivered to the FBI on June 14, 2004. The Will County investigators say that the local FBI liaison had offered the FBI lab services and promised priority status for the DNA testing in the Riley Fox case, and the investigators were pleased to have the assistance of what is widely viewed as the premier crime lab in the country. In the five months prior to Kevin's interrogation and arrest, however, the Will County investigators were unable to obtain a definitive answer from the case manager at the FBI Crime Laboratory Section that handled DNA examinations regarding whether or not any DNA had been recovered.

It is unclear what happened after the confession. FBI personnel maintain that Will County investigators called to request they suspend all testing. The Will County investigators acknowledge making a call, but maintain that they never intended to stop the testing of DNA found on Riley Fox's body but only the testing of various other pieces of evidence that had been sent to the FBI. It has been charged that the Will County investigators attempted to suppress the DNA evidence after they secured the confession, but this seems highly unlikely. The investigators were convinced of Kevin Fox's guilt at the time of the confession, and in their view, DNA evidence would have implicated Kevin further and confirmed their case. It is far more likely that this conversation between Will County and the FBI was a misunderstanding, with the Will County investigators attempting to halt unnecessary lab work on what they considered to be extraneous evidence in light of the confession, and the FBI mistakenly believing that Will County had requested them to stop all testing, including testing the DNA from Riley Fox's body.

The DNA found on the swabs from Riley Fox's vagina and on the duct tape was only a partial DNA profile, known at Y-STR, which cannot be used to positively identify a single individual. As a matter of policy, neither the Illinois State Police Laboratory nor the FBI Laboratory conducted tests or reported findings on partial samples in 2004, presumably because the results

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of such tests were deemed inconclusive and could not be entered into the nationwide DNA database called CODIS, Yet, while a Y ~STR sample cannot identify a single individual, it does provide sufficient information to rule out entire classes of individuals. Ms. Zellner knew that if the sample ruled out Kevin Fox it would also demonstrate the presence of another person, who had handled the duct tape and penetrated Riley Fox's vagina. She therefore pressed for a transfer of the DNA evidence from the FBI lab to The Bode Technology Group, Inc. in Lorton, Virginia, where the Y~STR was detected and analyzed. The newly elected Will County State's Attorney concurred with and supported this request.

Bode received the DNA samples in four increments over a five month period: 1) a baby blanket sample on December 9, 2004; 2) 26 additional samples on April 19, 2005; 3) 11 samples on April 29,2005; and 4) two samples of Kevin Fox's DNA on May 31, 2005. The Bode report dated June 16, 2005, stated: "Based on Y ~STR data, Kevin Fox can be excluded as the source of the male DNA found in the non-sperm fraction of the vaginal swabs." These results were later confirmed by the Illinois State Police Lab.

The new Will County State's Attorney, who had been elected the previous November, decided to release Kevin Fox on June 17, 2005 and to drop the charges against him. Kevin was marked by the accusations, however, for the next five years, and some people in his hometown, based on the widely circulated news reports after his confession and arrest, continued to believe him to be guilty.

The Reinvestigation and the Real Story of the Crime

On June 18, 2009, the Federal Bureau of Investigation agreed to reinvestigate the Fox case at the request of Will County State's Attorney. The FBI did not assert jurisdiction but proceeded with what is known in the FBI as a liaison case.

The FBI assigned 30 agents to the case, under the direction of Special Agent Lori Warren. They conducted a canvass of the Faxes' neighborhood and developed numerous possible leads, one of which was a lead to Scott Eby, A woman who had known Eby told the FBI about his peculiar

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behavior and comments when the two passed by a memorial to Riley Fox in the Wilmington neighborhood where the Faxes had lived. When Agent Warren checked Eby's name through NCIC, her research revealed that Eby was in prison, and an interview with Eby's mother further revealed that he had been convicted of raping his stepsister in 2005.

It appears that Eby was following the Fox case in the year after the murder. When Kevin was released on June 17,2005, Eby must have believed that the police would be coming after him soon. On July 31 st, he was arrested for raping his stepsister after telling her that he would be going away to a place where he would not be able to have sex for a long time. He was convicted of this rape and imprisoned in the Lawrence Correctional Center. It was there that agents Lori Warren and Jeremy Resar visited him on May 18, 2010. Although he did not make a statement to them at that time, he wrote out a confession after the agents had left, prepared a farewell note to his mother because he intended to commit suicide, and made a call to his brother on a recorded prison phone in which he admitted his involvement in the Riley Fox case. Learning about the call, the agents returned on May 26th and were able to tape a full confession to the Riley Fox murder.

On November 12,2010, Eby pled guilty to five counts of First Degree Murder and one count of Predatory Criminal Sexual Assault of a Child and was sentenced to life in prison without parole. The actual story of Riley Fox's murder is now known from Eby's confessions. He had been in the neighborhood for several hours on the night of Riley Fox's disappearance, checking for unlocked doors. He burglarized the house to the east of the Fox residence, cutting a hole in the screen door to gain access to the latch and removing $40 from a purse he found inside. He moved on to the F ox residence at about 4 am and found the backdoor to be standing "wide open." He entered the house with the intent to burglarize the dwelling, saw Riley Fox asleep on the couch, and formed the plan to abduct her. He also saw that Kevin was deep asleep in the bedroom. He left the house by the front door, backed his car into the driveway, opened the trunk, returned to the house, and carried off Riley, with his hand over her mouth, again through the front door, which he left unlocked and ajar. He had a bandana covering his face. Riley was awakened and appeared terrified when he picked her up. He placed Riley in the trunk of the car

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and drove to Forked Creek, with the car radio playing loudly to cover any screams or other sounds Riley might make.

Eby drove around the barrier at the entrance to the park and to the end of the parking lot where the bathrooms stood. He carried her down a hill to a wooded area over a wooden bridge. He is unable to remember for certain, but thinks he may have duct taped her wrists at this point. He removed her underwear and tried to rape her in the woods but failed to become aroused or erect. It should be noted the Eby asserts he is not attracted to very young children and that his actual fantasies are about 12-year-old girls, not 3-year-old girls. Bothered by mosquitoes, Eby picked up the child and carried her back to the toilet structure and placed her on the floor of the restroom. Again failing to become erect, he penetrated her with his finger, causing her to cry out. Most poignantly of all, he says that she cried out repeatedly: "I want my daddy," hoping to be saved by the very man who would later be accused of killing her. Eby observes in his confession that her mouth could not have been taped at this point because he could hear her distinctly. It is probable he taped her mouth before drowning her. While all this was going on, Eby's bandana slipped, and Riley saw his face. He says that he panicked and decided to kill her. He carried her to the creek, waded into the water fully clothed, and drowned her by holding her head under water at the shoulders until she stopped struggling. Thinking that his sneakers had left telltale marks in the mud, he removed them and threw them in the creek. He took a quart of oil from his car and spread oil on the floor, stool, and door of the toilet facility to cover any fingerprints or traces of Riley's blood. He threw the empty oilcan and Riley's underwear in the nearby trash receptacle. He stripped off his wet clothes down to his boxer shorts; He drove out of the park, around the entrance barrier, and down the gravel road. He says that a woman, who was taking out her garbage, looked him "dead in the face." He confirms that he attempted suicide a short while later after returning home that morning.

As already shown in this report, forensic and circumstantial evidence, all of which was available on the very day of the crime, support this account of how the crime occurred. The neighbor living east of the Fox residence reported to the police that a hole had been cut in her screen door, possibly indicating the presence of a burglar in the neighborhood. The lock on the Faxes' back

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door was broken, providing easy access for the burglar. The sneakers that Eby threw into the creek were recovered and were marked in both shoes with Eby's last name. Eby called a friend and left a message on her phone answering machine the morning of the murder threatening to commit suicide and later asked the officers who responded to his house if "they found that little girl yet?"

In retrospect, it is a tragedy that this simple narrative of the crime and the evidence to support it was lost in the "noise" of the case. Investigators were too quick to dismiss the idea that the Riley Fox murder may have been a stranger crime and they were too focused on Kevin Fox to correct their error. Key information was not widely known among the investigative team, and they were never able to connect the dots that led to Eby. The FBI was fortunate to find a witness who did lead them to Eby, but they found that witness because they cast a wide net and because they approached the case without preconceptions. The process of an investigation, by its nature, is the process of narrowing the field, eliminating possibilities, and then focusing on what remains. It is therefore essential that investigators guard against narrowing the field prematurely and against eliminating possibilities before they have been thoroughly examined. We want to get the bad guy, but we want to get the right guy.

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CRITIQUE OF THE FOX INVESTIGATION

Any critique of an investigation gone wrong must begin with an acknowledgement that investigative work is by no means an exact science, Investigators frequently deal with people who are trying to deceive them, and it is part of their job to see through the deceits to the truth, It is also part of their job to suspect people who others might presume to be innocent. As they cull through the physical evidence, interview multiple sources, witnesses and suspects, and try to understand a complex sequence of events, investigators will sometimes lose their way and target an individual who is entirely innocent, as Will County investigators did with Kevin Fox. Andrews International emphasizes that primary protections against this kind of misstep are the institutional frameworks in which investigations are conducted. Supervisors should serve as more than just cheerleaders or schedulers for their detectives. In a major case, sergeants, lieutenants and even deputy chiefs should be familiarizing themselves with the case and holding their investigators to rigorous standards of evidence and proof. Investigators can become so convinced of an individual's guilt that they may lose sight of what the law means by probable cause. It is the role of the State's Attorney to master the details of the case sufficiently to ensure that citizen are not targeted, arrested and charged on the basis inadequate evidence to establish probable cause.

It is also important to acknowledge that it is far easier to see where the case went wrong when the real culprit has been apprehended and has confessed than it is to conduct the actual investigation itself. With that proviso, Andrews International offers the following critique of the Riley Fox investigation:

• Lack of Oversight and Direction - The Fox case was an unguided missile. The meetings held by the investigators about the case were scattershot, disorganized, and unproductive. The lead detective was left largely on his own in managing this complex case, but case management should not have been his responsibility. Unfortunately, an experienced and respected detective sergeant had retired prior to the Fox murder and was not available to

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excise oversight. Our interviews disclosed that neither of the new sergeants in the Criminal Investigations Section nor the lieutenant in charge of the section exerted any meaningful control. The new sergeants did not have investigative backgrounds and had neither the experience nor the knowledge to manage a complex murder case. Supervisors in investigative work should act as first line of defense against false accusations, pressing their investigators on evidentiary issues and testing the cases built by their subordinates with rigorous skepticism. This kind of oversight was entirely lacking in the Fox case. The investigative process may also have been disrupted by the fact that there were two other homicides in Will County in the month of June, one of them occurring the day after the Riley Fox murder. As Will County has only two to six homicides per year, June 2004 was a busy time for the investigative unit and its supervisors, especially for supervisors with limited experience in overseeing investigations

• Lack of a Forum to Review the Evidence ~ The Fox case was a case in which key evidence was overlooked. The investigators never engaged in an item-by-item review of all the evidence to determine what they had. This evidence would have included the canvass of the neighborhood by the Illinois State Police on the day of the crime that turned up statements from neighbors that Kevin Fox was a doting father who loved his daughter. Such a review might also have given more credence to the report of a possible burglary at a neighboring house. In addition, it might have brought investigators back to the sneakers with Eby's name written on them. It should be noted the crime scene report did not mention the lettering on the sneakers and that any investigator working exclusively from that report would not have know about the letters. Further research on these sneakers might have established that the sneakers were stocked in a prison store. That discovery could have led to an entirely new line of inquiry and might also have resulted in the Wilmington detective learning about the sneakers and whose name was written on them. In case of this severity, an item-by-item review of the collected evidence should be standard procedure and additional reviews of the evidence should occur whenever the case is stalled.

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• Investigators Failure to Visit the Crime Scene - Andrews International consultants were surprised to learn that the primary investigators in the Fox Case did not visit the Fox residence until two weeks after the crime. To guard against forming a false imaginative picture of how a crime was committed it is critically important that investigators visit any scenes related to the crime to see these scenes for themselves rather than relying on the reports of others. Being on the scene might have helped them to understand that the "burglar-as-culprit" thesis was not so unlikely as they believed, given the possible burglary next door and the unlocked backdoor to the Fox residence. More than five years later, in appeals of the civil case emerging from Kevin Fox's arrest, investigators were still arguing that the lack of forced entry to the Fox residence justified their suspicion of Kevin when it was plain from the first day of the case that forced entry was not

necessary.

• Incomplete Processing and Canvassing of the Forked Creek Crime Scene - The Crime Scene Investigation Unit of the Will County Sheriffs Office missed the toilet facilities and the trash receptacle in their analysis of the Forked Creek site. It is not clear that processing of those locations would have provided additional important evidence. Eby said that he had coated the floor of the toilet facility with oil to cover his tracks, which would explain the viscous oily substance the Crime Scene personnel observed there. He also said he disposed of the oilcan in the garbage. Possibly, the trash receptacle might have yielded some new evidence, including Riley Fox's underwear and the oilcan but this is not certain. On the other hand, the Crime Scene personnel did find the sneakers, downstream from the body, and they were a key item in the case, although they were virtually ignored. It was a significant management failure that the one piece of tangible evidence found at the murder scene, besides Riley Fox's body itself, was not an occasion for both follow-up and wide dissemination among the entire investigative team. The entire team should have seen the sneakers themselves or clear digital photos of the sneakers. The authorities also neglected to conduct a canvass of the neighborhood around the Forked Creek site. This was also a significant failure. Although it cannot be known what might have been discovered by such a canvass, it is possible that someone

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saw a car, a suspicious person, or some type of suspicious activity in the early morning hours, In fact, we know from Eby's confession that at least one person did see him, the woman emptying her garbage as he drove out of the park.

• Premature Narrowing of the Investigation - Investigators had no reason to narrow the case to Kevin Fox except that he was their only suspect in October 2004, almost five months after the crime had occurred. They were certainly frustrated by their inability to develop any leads, but that was not a reason to target Kevin Fox and try to extract a confession from him. A case of this kind should not be limited to known suspects. We live in the age of "stranger" crime, in which unknown persons commit terrible acts against complete strangers. Although murdered children are frequently killed by people who know them, sometimes they are killed by people who do not.

• Leading Interview Technique - Conducting a Reid-style interrogation, as described above, the investigators led Kevin Fox toward a theory of the crime that they had developed. It is still unclear whether they, themselves, believed the story of the crime that they were urging Kevin to accept and acknowledge. Isolated and feeling increasingly beleaguered, Kevin did what the Reid technique is designed to elicit - he confessed - but only to the minimal offense possible given the facts of the case. He later said that he was broken down both mentally and physically by the interrogation technique. The investigators provided details of the crime to the suspect enabling him to tell a plausible story in his false confession. They also provided narratives to the suspect, but they seemed to have been confused themselves about which narrative was actually true. With the investigators' help, Kevin told a story that was demonstrably false. Yet, it was accepted as a valid confession by all parties, except Kevin himself. It has already been observed in this report that the general shape and content of Kevin's confession is strikingly similar to other confessions now known to have been false. Investigators, their supervisors, and the State's Attorney all should have all been more alert to the possibility of a false confession and should have recognized that the confession that the investigators extracted from Kevin Fox was largely a story of their own devising. In light of the

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disclosure in recent years of wrongful convictions, some based on false confessions and some based on misidentification by mistaken eyewitnesses, it is critically important that investigative managers remain alert the possible pitfalls in securing a confession and building a case. People do admit to crimes they did not commit, and this phenomenon should recognized by everyone in the law enforcement profession, and especially the managers of investigative units.

• Use of the Polygraph - The issue of the polygraph test is a complex one. Although a polygraph can be a useful investigative tool, there is a reason why polygraphs are not admissible as evidence in court. Guilty persons have lied successfully in polygraph examinations, and innocent people have mistakenly been found to be lying. In missing and murdered child cases, it is not unusual to ask the parents, the caretakers, or the last persons known to be with the child to take a polygraph exam to eliminate them as suspects, but this is usually done under much less stressful circumstances than experienced by Kevin Fox on the night of his interrogation, when Kevin had already been accused of killing his daughter. Experts consulted by Andrews International said that it was quite possible that a false positive could result because of the stress that Kevin was experiencing. It is also quite possible that had Kevin been given a polygraph exam under less stressful circumstances that he would have passed easily, allaying the investigators' suspicions. On the other hand, as part of the process of breaking down a suspect and undermining the suspect's story, a polygraph can be effective tool when used in conjunction with an ongoing interrogation because it makes the suspect feel that he cannot lie and further weakens his ability to tell a consistent false story. The key here, for investigators using a polygraph in this way, is to remember that a polygraph administered in these circumstances is even less reliable than a polygraph is ordinarily. The investigators themselves should not be convinced of the absolute veracity of polygraph results and should remember that they are using the device, the test, and the questionable results to elicit further admissions from the suspect that will prove their case. The test itself proves nothing. Will County investigators seemed to lose sight of this distinction during the Fox interrogation.

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• State's Attorney's Failure to Vet the Case - The State's Attorney failed to properly review and vet this case before charging Kevin Fox with First Degree Murder and Predatory Criminal Sexual Assault. Any lawyer should have known that the confession itself was questionable, and the State's Attorney should have been at the forefront in seeking corroboration of the confession in the physical and circumstantial evidence. It is also clear from the videotape that Kevin Fox had not confessed to premeditated murder or to sexual assault, and there was no other evidence besides the confession supporting the State's Attorney's move to charge him with these crimes and seek the death penalty. There should have been extensive follow-up investigation, overseen by the States Attorney, if for no other reason than to prepare for a successful prosecution; but Andrews International found no evidence of any investigations to corroborate the confession or to build a stronger case.

• Lack of Follow-up Investigation - Even without being pressed by the State's Attorney, the Will County investigators should have pursued their own investigation of the confession. Was it really possible for the girl to have been knocked across the bathroom by a hollow core door? Was it really possible that she remained unconscious for the entire time that she was transported to Forked Creek, sexually violated with a finger, and placed in the creek? If not, what actually happened? The investigators should have been asking these questions.

• Insufficient Knowledge and Training About DNA - The Will County Investigators did not know about Y -STR DNA testing, as most investigators around the country would not, especially in 2004. They did not realize that the partial samples recovered from Riley Fox's body might possibly eliminate Kevin Fox as a suspect. To be fair, they could not elicit an answer from the FBI about whether DNA of value had been found. The FBI failed to move forward on the DNA evidence for four months before Kevin Fox's arrest. But if the FBI laboratory had tested the sample, following standard procedure at the time, it would not have reported the existence of Y -STR, nor would have the Illinois State

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Police Laboratory. As a matter of policy, both labs did not test or report findings about partial DNA samples in 2004, and such samples could not be entered into the national DNA database called CODIS. It took a private attorney, with some knowledge of DNA testing, to recognize the potential value of this evidence and to press for its transfer to a facility that could identify Y-STR, test it against Kevin Fox's DNA, and eliminate him as a suspect. All parties to the Fox case would have been better served had the sample had been tested swiftly as originally promised by the FBI.

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~~. -------------------------------------

RECOMMENDATIONS

1) All detectives should be sufficiently trained in DNA that they understand the state of the art in DNA testing, can identify what they should submit for examination, and increase their expertise in recovering DNA and collecting samples in the field. They should be knowledgeable enough to ask the right questions about the samples they are submitting and the procedures they are requesting from the laboratories with which they work. Detectives in the Kevin Fox case simply did not know what could be learned from the evidence they had in hand. Therefore, they did not press for the test the ultimately exonerated Kevin Fox. DNA evidence is a rapidly evolving science and its identification capabilities will probably increase further with time. Law enforcement must stay abreast of what is possible in the field. An investigator's knowledge about DNA might make the difference in some future case to prevent an innocent person being charged.

2) In any important case, or major crime, an experienced supervisor should be designated to function as the manager of the case. This supervisor should conduct and lead meetings attended by all investigators assigned to the case, including liaisons from other departments or agencies and crime scene investigators. The lead detective in the case should not play this role.

3) Physical evidence recovered should be discussed in detail at the meetings and in most circumstances should be shown to the investigator by presentation of the actual objects, in digital photos, or in detailed reports. The Eby sneakers are a glaring example of physical evidence that simply was overlooked. Evidence should not be filed and forgotten. It should all be reviewed and, if the case is stalled, it should all be reviewed again by all the detectives involved in the case, not just the lead detective. As the instance of the Eby sneakers demonstrates, the piece of the evidence that seems entirely tangential to case can be the key.

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4) At the case meetings, the investigators should each describe what investigative steps they have taken, what they have learned, and whatever developing opinions they may have about the case. Although there is a lead investigator, on important cases to which multiple detectives are assigned, the case discussion should be led by the supervisor in charge. The team of investigators should be encouraged to review all the facts of the case that have been developed and to critically assess any theories, suppositions, and hunches put forward by the lead investigator or other members of the group. Suppositions that Riley Fox was probably killed by someone who knew her went largely unchallenged throughout the five months prior to Kevin Fox's confession, yet there was no convincing reason to believe that this was so.

5) The supervisor should encourage devil's advocates who might challenge or question any facts or theories of the case being presented. The investigators talked about "red flags' that led them to suspect Kevin Fox. What about "green flags, exculpatory evidence that pointed away from Kevin Fox, especially the nature of his relationship with his children. It is probably too much to expect from any investigative unit that someone be assigned to prove the suspect innocent while everyone else is trying to prove him guilty, but dissenting voices should be encouraged. The detective from the Wilmington Police, who knew Kevin Fox and had known him as teenager, was startled to see him accused. He told Andrews International that he even blamed himself for being blind to what Kevin capable of doing. Of course, he was absolutely correct in his original assessment of Kevin that he was not capable of murder. A dissenting voice like his might have slowed the rush to judgment.

6) At each meeting, the case manager should assign specific follow-up tasks to each investigator and require detailed, timely reports on the results of each assignment. As the initial and new leads require further follow-up they must be added to the follow-up list. These follow-up reports should be available for perusal by all of the assigned investigators, and the investigators should be encouraged review the reports of their fellow investigators to keep current with the case.

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7) Although crime scene investigation is a technical field requiring technical expertise, investigators should playa role in how the physical evidence is managed and assessed. There is a tendency in the police profession to gather up everything at crime scenes and let the lab personnel sort the evidence out. In the Fox case, a significant amount of time was devoted to assessing evidence from the Rossi house, which was in no way a crime scene. On the other hand, the single piece of tangible evidence found at the murder site, Eby's sneakers, was somehow overlooked. Investigators should be aware of the evidence as it is found and should be working closely with evidence technicians to understand what they have in hand and what might be learned from it. The fact that Will County evidence technicians and detectives were housed in different locations may have hindered cooperation, but separate facilities are a common arrangement in investigative divisions in many police departments. What is critically important is that the evidence technicians are regarded as part of the investigative team and that their opinions about the value of evidence are elicited and given weight and that the investigators, in turn, provide guidance in the management and analysis of the physical evidence.

8) A false confession is at the heart of the Riley Fox case. The first step in preventing false confessions is to videotape the entire interrogation, not just the confession. If that is done, it will be possible to determine how the false confession was constructed and how investigators unwittingly supplied the raw material for the story that the suspect tells in the confession. Kevin Fox did not arrive at the Will County Sheriffs office on the evening of October 26th with any part of the story that he told on the morning of October 27th. Somehow that story was constructed in the course of the interrogation, and it was constructed in a way that satisfied the detectives' need to account for the known facts in the case. Detectives should be made acutely aware of the possibility of this kind of leading interrogation and of the fact that investigators may deceive themselves as they are trying to unravel the perceived deceits of others. Andrews International recommends training in false confessions, false convictions, and mistaken

38


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eyewitness identifications, so that investigators and their supervisors are fully aware the possible pitfalls in the interrogation process.

9) Training records of sworn personnel in the Will County Sheriffs Office are maintained by adding a Certificate of Attendance to the personnel folder of a deputy or supervisor when they have attended and successfully completed a training course or session. In addition, sworn personnel must attend yearly in-service training focused on changes in laws and changes in specific police operational procedures, such as handling domestic violence incidents or dealing with emotionally disturbed persons. The mandated inservice training is not focused on developing or improving investigative abilities. There are basic investigators courses and numerous courses available at regional training programs that many of the investigative personnel have attended, including Reid techniques of interviewing, death investigations, managing crime scenes, and investigating sex crimes. A certificate in each deputy's personnel folder records this training. The lieutenant in charge of the Criminal Investigations Section reports that he requires all new investigators to attend a basic investigators course and requires attendance at a homicide investigators course as investigators gain experience in the investigative assignment. Andrews International recommends that investigative training records be maintained for all members of the Special Operations Bureau including the deputy chief in command. Each sworn officer would have a separate training record of when they attended the Basic Criminal Investigation Course and all other investigation courses attended thereafter. This information should be managed by the deputy chief. The deputy chief should oversee an investigator development plan, requiring mandated training, including the basic investigation course and the wrongful conviction training mentioned above. New investigators and supervisors should be assigned to duties commensurate with their training and experience. These training records should be taken into account when considering moving or promoting personnel to an investigative assignment.

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~~-. -----------------------

10) The management and organization of the Investigative function in the Will County Sheriff's Department is as follows: the Enforcement Division of the Will County Sheriff's Office currently comprises 216 sworn deputies and supervisors who are responsible for all patrol and investigative functions in Will County, other than Internal Affairs investigations. It is currently managed by a chief deputy who reports to the Sheriff. The Enforcement Division is divided into a Patrol Bureau and a Special Operations Bureau. Each of these bureaus is designed to be managed by a deputy chief. The crime investigative function in the Sheriff's Office is called the Criminal Investigations Section. It is part of the Special Operations Bureau and managed by a lieutenant. In 2009, the deputy chief who commanded the Special Operations Bureau retired and he has not yet been replaced. His duties were taken over by the deputy chief of the Patrol Bureau. The Patrol Bureau and the Enforcement Bureau are both significant components of the Sheriff's office, and they have significantly different functions. The Special Operations Bureau requires a manager whose full-time duties are devoted to overseeing and managing the investigative function. The manager appointed to this position should have experience in managing investigations, should be fully cognizant of contemporary issues in criminal investigations, including wrongful convictions, and have up-to-date training in the various components of the investigative function. This manger should be able to playa hands-on role in the management of a major crime such as the Riley Fox case. Andrews International recommends that the Sheriff fill this position with a qualified candidate as soon as possible.

Conclusion

In the aftermath of the Riley-Fox case Sheriff Kaupas undertook an extensive re-staffing and reorganization of the Will County Investigative Section. Important changes include:

• The assignment of a new lieutenant/commanding officer with investigative experience who implemented reforms including training requirements, reporting procedures, and protocols.

• The assignment of new detectives to the section.

• The assignment of new detective sergeants who have sound investigative experience.

40


~8:~;-------------------------------------

• The improvement and expansion of detective training.

• The implementation of a new and dependable case management system.

• The establishment of a good rapport and strong liaisons with the State's Attorney's office.

Many of the recommendations that Andrews International has made regarding managing

criminal investigations, after our review of the Riley Fox case, have been incorporated into the

by-laws of the Will/Grundy Counties Major Crimes Task Force (MCTF) that was implemented

in July of 2009. The operating guidelines and principals of the MCTF evolved in part from the

"Task Force Model" that has operated in the Will County Investigative Section since 2005. The

Will County Sheriffs Department Investigation Section participated in at least six MCTF

callouts, supplying personnel and investigative support. The task force was formed to "enhance

the ability of all law enforcement agencies in Will and Grundy Counties to solve major crimes."

The task force by-laws institutionalize the concept of the management of a major case

investigation, with a clearly designated officer-in-charge, who is described as the task force

commander and who is "responsible to the chief of the agency activating the task force for all

activities related to the investigation". It also defines the role of the investigation division

commander reporting to the task force commander. The investigation division commander will

assign investigators to specific tasks and ensure they complete and document their assigned

tasks. A major crime is defined as: homicide, attempted homicide, non-parental lddnapping,

serial arson, rape or sexual assault, in-custody death investigation, and police-involved shooting

or deadly-force incident.

41


The Major Crimes Task Force since 2009, and the Will County Sheriffs Office Investigation

Section since 2005, have established the following investigative protocols:

• Qualified and experienced managers overseeing investigations.

• Crime scene investigators and a crime scene supervisor serving as an integral part of the investigative team.

• Liaison with the State's Attorneys Office on any legal issues that may arise.

• An officer-in-charge or investigation manager to conduct meetings as information develops and share new information with all investigators assigned, as well as to solicit information and theories from investigators.

• Timely reporting and documenting of all investigative steps and follow-up of leads, and the entry of this information into a searchable computerized reporting system.

Andrews International recommends that current investigators with the Will County Sheriff's Office and the investigators who participated in the Riley Fox case should all participate in a review and analysis of the case to understand how the case went wrong and how to guard against future errors. We believe that this report itself could serve as a departure point for further discussion of the mistakes that were made and the opportunities that were missed. The videotaped Kevin Fox confession, viewed with the knowledge that the story told on the tape is entirely invented, may also provide insight into the whole problem of false confession. This review of the case should not be an exercise in finding fault. It should be an exercise in identifying the necessary methods and safeguards to prevent future mistakes and to ensure successful investigations and prosecutions in the future.

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~----------------

THE ANDREWS INTERNATIONAL TEAM

The Andrews International Team for the Riley Fox case review consisted of John Timoney,

Robert Knapp, and Patrick Harnett.

John Timoney is a Senior Vice President of Consulting and Investigations with Andrews International. He was Chief of Police in Miami, Florida for seven years and, prior to that, served four years as the Police Commissioner in Philadelphia, Pennsylvania, where he commanded a diverse police force of approximately 7,000 officers. He spent 29 years as a member of the New York City Police Department, where he rose through the ranks to become the youngest NYPD four-star chief in history. During Chief Timoney's seven years as Miami Police Chief, he lowered crime in all major categories and implemented one of the most progressive deadly physical force policies in the country, reducing the number of police shootings of civilians, including 20-month and 12-month periods when not a single shot was fired at a civilian by a member of the Miami Police.

Chief Timoney's joined the NYPD in 1967 and served in a variety of assignments within the including various precincts, the Organized Crime Control Bureau, Chief of Department's Office, and the Office of Management, Analysis and Planning. He was the recipient of 67 Department medals, including the prestigious Medal of Valor. He was appointed First Deputy Commissioner in 1995, the second highest rank in the NYPD. In that capacity, he led the reorganization of the Department, including the merger of the NYPD with the Transit Police Department and the Housing Police Department, resulting in a unified police agency of 39,000 officers and 9,000 civilian employees .

.John Timoney holds two Master's degrees. He is a vocal proponent for greater formal education of police officers and democratic policing throughout the world, and is considered among the nation's leading authorities on terrorism. He founded the International Institute for Democratic Policing and conducted a security needs assessment in Haiti, as well as an evaluation of detainee

43


facilities in Guantanamo Bay, Cuba. In July 2007, Timoney traveled to Iraq as part of an independent commission to assess the readiness of the Iraqi military and police forces to achieve primacy in the fight against terrorism. Chief Timoney is the past President of the Police Executive Research Forum and is Co-Chairman of the FBI's South Florida Joint Terrorism Task Force. Chief Timoney has authored a book, Beat Cop to Top Cop: A Tale of Three Cities, published by the University of Pennsylvania Press.

Robert Knapp is a Senior Vice President and Regional Counsel for Andrews International where he is based in the New York office. He has enjoyed a distinguished career as an investigator in both the public and private sectors. 11r. Knapp has conducted and managed complex white-collar crime and money laundering investigations and implemented technology policies, systems and procedures. He has been successful helping clients minimize risk and recover assets both domestically and internationally. Mr. Knapp served as legal counsel and investigative manager for more than 28 years with the Federal Bureau of Investigation. As legal counsel to the U.S. Ambassador in charge of the Office of Foreign Mission in Washington, D.C., 11r. Knapp negotiated with foreign officials in Europe, the former Soviet Union, and China.

11r. Knapp was also Supervisory Special Agent (SSA) with the FBI's Forfeiture and Asset Seizure team in New York, where he supervised investigations of money laundering and developed strategies to use federal forfeiture statutes in organized crime, drug, and white-collar crime cases. He later became SSA in charge of Organized Crime Investigations where he investigated organized crime utilizing money laundering, civil and criminal asset forfeiture, and RICO statutes. Mr. Knapp supervised the federal monitor appointed for the carting industry on Long Island, New York.

Following his career with the FBI, Mr. Knapp worked with a leading financial firm as Director of Asset Protection and Recovery and developed a nationwide system of databases, credit data and methods of analysis. In addition, he designed and implemented due diligence procedures for clients to establish bona fides and sources of funds, while helping to ensure compliance with the policies of the Foreign Asset Control Office of the U.S. Treasury. Mr. Knapp received the FBI's

44


Director's Award for Sustained Exceptional Performance. He earned his Law Degree from St. John's University in Brooklyn, New York and his Bachelor of Arts from lana College in New York. He is admitted to practice law in New York, Washington, D.C. and Michigan.

Patrick Harnett served as a senior consultant on the Riley Fox Case review. He was appointed Chief of Police in Hartford, Connecticut in June 2004 and oversaw a major overhaul of the Police Department and the development of a Neighborhood Policing Plan. The plan was widely acclaimed by the Hartford community, well received by HPD supervisors and officers, and had achieved historic reductions in Robbery (22%) and Auto Theft (29%) by the time Mr. Harnett resigned in 2006.

Mr. Harnett retired from NYPD as a three-star Chief of the Transportation Bureau in 1998, after a 32-year career. He served as a detective for ten years in robbery and homicide units. He implemented NYPD's Crime Stoppers Hotline and commanded the Department's Major Case Detective Squad, managing complex and high-profile cases across the entire city. Mr. Harnett was also the Commanding Officer of the Emergency Service Unit, the elite Tactical (SWAT) and Rescue component of NYPD. From 1995 to 1997, he was Chief ofNYPD's Narcotics Division where he developed and implemented a highly successful "turf-based" drug enforcement strategy that assigned narcotics units to specific locations and held them accountable for not only for reducing narcotics but also for reducing violence.

After retiring from the NYPD, Mr. Harnett served for several years as the First Deputy Director of the New YorklNew Jersey High Intensity Drug Trafficking Area (NY/NJ HIDTA), a federal program created to fund effective narcotics strategies through cooperative efforts of federal, state and local law enforcement officers. Since 2000, except for the two years that he was in Hartford, Mr. Harnett has worked as a consultant, conducting operational and organizational reviews of police organizations. He assisted police departments to implement the CompStat system (based on the leadership and accountability program developed in NYPD) that increased effectiveness and reduced crime by clarifying lines of communication, authority and accountability.

45


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