Unusual use of decoy in Las Vegas homicide investigation spurs legal debate

A team of investigators with the Metropolitan Police Department’s downtown area command spent weeks camped out near the areas where two homeless men were killed earlier this year.

They had video surveillance trained on a mannequin under a blanket.

Starting the day after the second man was slain, they dressed the decoy in different clothing such as jeans, sweatpants, shirts and boots, Capt. Andrew Walsh told the Las Vegas Review-Journal on Tuesday.

“We really had to think beyond the traditional way that we normally do things,” Walsh said. “That’s where the idea came from.”

‘THINKING OUTSIDE THE BOX’

The first killing occurred about a month prior, in early January, when a man was found bludgeoned to death while wrapped in blankets near the southeast corner of City and Grand Central parkways.

Police had no other leads. The captain didn’t want to let the community down if the killer, or killers, decided to strike again.

“Could I live with the idea that he came back a third time, and we didn’t do anything about it? No,” Walsh said. “How could I ever explain to the community and my bosses that even though we had two, I didn’t think he would come back for a third?”

Walsh wouldn’t say whether the mannequin was disturbed before Feb. 22, when surveillance captured Shane Schindler bashing the blanketed decoy with a 4-pound ball-peen hammer.

Now the 30-year-old faces an attempted murder charge.

“This is an example of great police work, thinking outside the box and doing what needed to be done to get a dangerous person off the street,” said Steve Wolfson, the county’s top prosecutor. “We believe in the sufficiency of our decision to charge attempted murder, and we’re looking forward to presenting evidence in court.”

FACTUAL IMPOSSIBILITY

But the law could be interpreted in conflicting ways.

Even if Schindler had whaled on the mannequin for hours, his attempt to murder would never be successful. It’s what’s known in the legal world as a factual impossibility.

Public Defender Phil Kohn put it simply: “You cannot kill a mannequin.”

Murder involves the “unlawful killing of a human being … with malice aforethought, either express or implied,” according to Nevada law. Kohn said the operative words of that definition are “human being.”

“A mannequin is not a human being, and it can’t be charged as a homicide, and it can’t be charged as an attempt homicide,” he said. “One should not be held culpable if it is legally impossible to commit a crime. And this is the perfect example of that.”

The decoy was set up to look like a person, but Schindler told police he knew it was a mannequin.

INTENT TO KILL

Longtime criminal defense attorney Tom Pitaro said prosecutors must prove the defendant’s intent to kill.

“It’s complicated and simple at the same time, but it’s really as simple as that,” he said. “The impossibility of it doesn’t negate an attempt.”

Defense lawyer Josh Tomsheck, a former prosecutor, said attempted murder has three prongs: intent to commit a crime, acting toward the commission of that crime and failure to commit the crime.

“There’s nothing to preclude them from bringing the charge in a criminal complaint,” he said. “Whether or not that charge holds up is a different story.”

UNUSUAL USE OF DECOY

Robert Langford, a criminal defense attorney who also has worked as a prosecutor, said decoys are common tools in police investigations, but the ploy is rarely used in murder cases.

Vice cops often pose as johns in prostitution stings. Back in 2003, a Metro detective acted like a drunk vagrant with cash dangling from his pockets in an effort to thwart street-level robberies.

But another veteran defense attorney, Robert Draskovich, agreed with Kohn that the mannequin could not be killed because it was an inanimate object.

“This district attorney’s office never lets the law get in the way of leveling charges,” he said. “You can’t kill something that was never alive.”

Both Walsh and prosecutor Marc DiGiacomo declined to comment when asked whether the dummy had been given a name.

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter