How to Try a Serial Killer

On January 24th, Netflix dropped a new docuseries called Conversations with a Killer: The Ted Bundy Tapes, which delves into hours of recorded interviews with Bundy while he was on death row and chronicles the back story of the serial killer and some of the women he victimized. I personally have yet to get through the whole thing because I've needed to take mental health breaks every other episode. Mercifully, Netflix has also released a new batch of Unbreakable Kimmy Schmidt episodes which are truly the antithesis of the Bundy series.

Amidst the drama of Bundy's escapes, crimes, and trials, some basic criminal law details get left out. I've been asked to take a step back and look at the logistics behind putting someone on trial who's committed crimes in multiple states and is wanted by the FBI and multiple state law enforcement agencies. What follows is a crash course on how to try a serial killer.


If you haven't seen the series yet or aren't familiar with Ted Bundy's extensive Wikipedia page like I am, he perpetrated a number of gruesome murders and kidnappings throughout the 70s, first in the Seattle area, then in Colorado and around Salt Lake City. He was then arrested in Salt Lake City for kidnapping and attempted criminal assault after a woman he likely intended to murder escaped from his vehicle before he could harm her. He was convicted for that crime in Utah and later extradited to Colorado to stand trial for a murder there. While being held in CO for that trial he escaped TWICE. First out of a courtroom window and second by losing weight and slithering out of a hole in the roof of his cell.

That's not to say all mediocre white men are Ted Bundys,
but Ted Bundy most certainly was a mediocre white man.

After his second escape, Bundy made his way to Florida where, in January 1978, he bludgeoned five different women in their sleep, killing two of them. Then, in February, he abducted and murdered a 12 year old. Luckily for all of us old Teddy was a bit of an idiot and was arrested that same month for driving a stolen vehicle. Prosecutors were able to gather enough evidence to pin him to both the January murders and the murder of the 12 year old in February. For the January attacks, he would be convicted of two counts of murder, three counts of attempted murder, and two counts of burglary. He received two death sentences. For the February murder he would be convicted again and handed a death sentence. He was executed by electric chair in 1989.

The Bundy Tapes series provides a baffling amount of detail about all of this and goes extensively into his background and personality. I personally think murderers should be forgotten asap, but there is an understandable morbid curiosity especially regarding the psychology of mass murderers. As far as I can tell though he was truly just a vapid, self-important white man who couldn't handle his own mediocrity. That's not to say all mediocre white men are Ted Bundys, but Ted Bundy most certainly was a mediocre white man. He did poorly on his LSATs, flunked out of a number of law schools, and thought women were objects he could possess. Combine toxic masculinity with murderous sociopathy and you've got yourself one hell of an elixir. I think that's the extent of psychoanalysis and attention we ought to give the man himself and I'm ready to move on to The Law behind these murder trials.

Ladies love to be like 19 different men shredded me to my core and every time it turned out to be a gift and a chance to learn about myself and dudes love to be like one girl broke up with me and now I'm the worst person alive.

— luke o'neil (@lukeoneil47) January 18, 2019

^ T e d  B u n d y ^

Jurisdiction

Let's get some real basics out of the way that, like taxes or how to check your tire pressure, are ever taught in school but then you get out into the real world and people talk about them as though it's common knowledge.

There are two branches of law within the legal system: civil and criminal. For our purposes, it's important to know that civil cases can be brought by private actors (like you, or me, or the families of murder victims), as well as governmental actors. Civil cases include personal injury claims, wrongful death claims, etc. These result in different types of damages (money paid to the victims, for example) but do not result in prison time. Criminal cases, however, are brought by the government - either at the state or federal level. If the case is brought at the state level (by state prosecutors), then state law governs the proceeding. If the case is brought at the federal level (by federal prosecutors), then section 18 of the United States Code and the Federal Rules of Criminal Procedure apply.

This is just important to know because different courts (state and federal) apply different law to murder cases. Additionally, it's important to know the difference between civil and criminal remedies because I think a common tenet that many people assume is inherent in our justice system is that if you have been wronged then you deserve your day in court. However, for criminal matters the perpetrators only get tried if the government decides to try them. And for civil matters it sometimes isn't prudent to bring the person who wronged you to court at all. I'll get into that later. Here is a wildly simplified graph I found on The Internet to illustrate the US dual court system. The left side is federal and the right side is state.

Most crimes are tried at the state level. Assault, theft, arson, kidnapping, murder--all states have statutes in their state codes that list all the criminally punishable crimes that a state prosecutor can try a defendant for. States only have jurisdiction (authority) over crimes that happen within their borders. The federal government only gets involved in a murder case under very specific circumstances, like if it's committed on federal land or on a body of water, or when the murders are on a larger scale and cross state lines such that states don't have the capacity to fully handle the cases on their own. While that certainly applies here, the FBI only became involved because of Bundy's escape across state lines.

Ultimately it was the state of Florida, not the federal government, that tried Bundy for the murders that occurred there. It's unclear why, after he was apprehended in Florida, he was not sent back to Colorado to stand trial for the murder he was indicted for there. Likely, since he was in Florida and thus under Florida's jurisdiction and the state had ample evidence to connect him to the crimes he committed there, Colorado officials didn't push for extradition and instead decided to let Florida handle him. If Florida had been unsuccessful in their murder trials against Bundy, undoubtedly other states would have brought cases against him for other murders he committed. Considering the fact that, earlier in 1977, a group of law enforcement officials from five states convened in Colorado to share notes on the evidence they had against him, there were a number of states that wanted a piece of ol Ted. Florida just happened to be the first to successfully catch him and mount a case against him.


Evidence

Now, let's talk about evidence. Pretend you're the prosecution. First of all, for a murder trial you need to prove that someone was murdered. If you don't have the corpse, that becomes difficult, especially in a pre-DNA science world, but not impossible. Without a body, you must rely entirely on circumstantial evidence, first to prove that the victim is, indeed, dead, and second to prove that the defendant is the one who killed her.

Circumstantial evidence is evidence that does not directly prove the crime but only provides a sufficient inference that the defendant committed the crime. It's the difference between having a witness who says, "I saw the defendant shoot the victim with a gun, the bullet enter the victim's body, and the victim die as a result," and having a witness who says "I heard a gun shot and found the defendant standing over the body with a gun in his hand." Some circumstantial evidence is more tenuous than others, but your goal as the prosecutor is to gather as much of it as possible to prove the defendant is guilty. Without the body, you have the added layer of proving that the victim was murdered in the first place. That's why in crime shows they are always VERY INTENT on getting the murderer to tell them where the body is.

After you've established that the victim is dead, and that the defendant did it, you must prove that the defendant killed the victim intentionally, that is: purposely or knowingly. Intent is often a murky area for homicide cases, which is why defendants can also be tried for lesser crimes like manslaughter and negligent homicide. For manslaughter the state just has to show that the defendant killed the victim and was being reckless when doing so. So maybe he didn't say "I am going to murder this person" but he was instead just brandishing a machete and waving it around near the person's head with full knowledge that machetes can kill people, for example. In the Bundy cases, intent was less of an issue because of the brutality of the murders. If the state could prove Bundy committed the murders, it could easily prove he did so intentionally. No one who breaks into a sorority house at night and bludgeons four different women could be considered to just be acting "recklessly."

Unfortunately sometimes (oftentimes) justice is not found in a courtroom.

For the state in both Bundy trials, their biggest hurdle was in providing enough circumstantial evidence to convince a jury that Bundy was the one who committed the crimes. I'll remind you that to criminally convict someone, the state must convince the jury beyond a reasonable doubt that the defendant committed the crime. That means if there is any flicker of a doubt in a juror's mind that the person didn't commit the crime, the defendant should go free. This high burden of proof is meant to promote a foundational element of our penal system: that it is better to let a guilty man go free than to imprison an innocent one. Which is WILD if you know anything about our criminal justice system in America and how broken it is. I highly recommend reading Just Mercy by Bryan Stevenson for a deep dive into how often our system gets it wrong. But I digress, because Ted Bundy was 100% guilty as charged.


The Aftermath

So Ted Bundy is found guilty, put in prison, and sentenced to die. But what about the potentially 30 plus other victims he is thought to have murdered throughout his life? Where is their day in court? Unfortunately sometimes (oftentimes) justice is not found in a courtroom. Bundy was given the death sentence (thrice), so the likelihood of him being released for any reason was slim to none. He did win stays on two out of those three death sentences - meaning he appealed to a higher court and they decided that, for various reasons, the death penalty was unjustified and should be postponed pending a new trial. This is why Florida tried him for three different murders and gave him three death penalties - to make sure he couldn't get a stay on all of them. Of course, other states could try to extradite him and try him for murders that were committed in their borders, but what would be the point if he was likely to be put to death? Murder trials are arduous and wildly expensive and often open old wounds and cause further trauma for victims' families.

In certain cases, victims' families can bring civil cases against the murderers of their loved ones for wrongful death, to at least get money damages for their pain and suffering. For example, after OJ Simpson was acquitted, the families of his victims still won their civil cases against him and received damages as a result. This is because the burden of proof is lower for civil cases. Instead of "beyond a reasonable doubt," in civil cases the plaintiff has to prove their injury by a "preponderance of the evidence," meaning that the jury just has to believe that the evidence tends to prove the defendant's guilt, a lower hurdle to overcome. However, it makes no sense to bring a civil case against defendants who have no money, as in Ted Bundy's case. The plaintiff might win but will never actually receive any money and will have spent thousands of dollars in attorney fees. Instead, the families of the other women Bundy murdered were simply left with the gaping hole where their loved one used to be, and the comfort of knowing that her killer was at least behind bars.


Think I'm wrong? Feel free to drag me in the comments below. Or, better yet, write a rebuttal article and if it's any good I'll publish it. Email proselawblog@gmail.com.

Have any burning legal questions about pop culture or current events you want me to analyze? Pop it in the comments or slide into my DMs over on Instagram or Twitter.

sources:
{1} Conversations with a Killer: The Ted Bundy Tapes, Netflix

{2} Geoffrey Nathan, How Can Murder Become a Federal Crime? (last accessed Jan. 29, 2019).

{3} Model Penal Code § 210

{4} Guide to Criminal Prosecutions in the United States, Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition (last accessed Jan. 29, 2019).

{5} Bundy v. State, 455 So.2d 330 (S.C. FL) (June 21, 1984)

{6} A number of Wikipedia articles I cited via links throughout the post.


related reads:
{1} Ann Rule, The Stranger Beside Me

{2} Kevin Sullivan, The Trial of Ted Bundy: Digging Up the Untold Stories

{3} Al Carlisle PhD, Violent Mind: The 1976 Psychological Assessment of Ted Bundy

{4} Michele Foucault, Discipline and Punish (if you're tryna get REAL philosophical - delves into the history and evolution of penal systems, especially the death penalty)

*DISCLAIMER* Nothing I write on this blog should ever be taken as legal advice. This entire project is just me applying my limited knowledge of The Law to the news and trying my best to analyze it all. I am not an expert in anything. I don’t even have my JD yet.