Friday, July 31, 2009

BILL DILLON CASE (1); FREED AFTER SERVING 27 YEARS; CONVICTION BASED ON "INFALLIBLE SCENT-TRACKING DOG"; DOZENS WRONGLY CONVICTED ON SAME EVIDENCE?


"PRESTON AND HIS FOUR-LEGGED SO-CALLED EXPERT WERE DISCREDITED IN 1987. BUT THE STATE OF FLORIDA NEVER REVIEWED CASES ON WHICH HE’D TESTIFIED . AND NOBODY EVER TOLD BILL DILLON – WHO SAT IN PRISON ANOTHER 20 YEARS BEFORE HE EVER KNEW A THING ABOUT IT. IT WASN’T UNTIL 2006 THAT HE HEARD PRESTON WAS A FAKE."

REPORTER RANDI KAYE; CNN: AC360;
PHOTO: BILL DILLON ON HIS RELEASE FROM PRISON;

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Background: Bill Dillon, was 22 when he was sentenced to life in prison in 1981, for killing a man in Canova Beach on the eastern coast of the state. During the trial, Dillon was adamant that he had not committed the crime. But a man named John Preston testified in court that he and his scent-tracking German-Shepherd connected Dillon to the killer’s bloody t-shirt. Preston, who billed himself as a "scent-tracking expert", said his dog, “Harrass 2,” even tracked Dillon’s scent repeatedly in later tests. Nearly three decades later, in 2007, DNA testing proved that Dillon’s DNA did not match the DNA on the killer’s shirt. The dog was wrong. Just eight months ago, after 26 years behind bars, Bill Dillon walked out of prison a free man. Preston was exposed by a Florida judge in 1984, who became suspicious of Preston and set up his own test for Harrass 2. The dog failed terribly. CNN unearthed documents which demonstrated that Harrass 2 could not even follow a scent for one-hundred feet. The judge determined the dog could only track successfully when his handler had advance knowledge of the case. Preston and his four-legged so-called expert were discredited in 1987 - but according to CNN, "the state of Florida never reviewed cases on which he’d testified . And nobody ever told Bill Dillon – who sat in prison another 20 years before he ever knew a thing about it. It wasn’t until 2006 that he heard Preston was a fake." The Dillon case is now attracting massive media attention in response to the Florida’s Innocence Project's well publicized concerns that dozens of inmates around the country may have been wrongly convicted as a result of John Preston and his dog. The focus now shifts to Florida's response to the Innocence Project's call for an investigation of those cases. Meanwhile, CNN informs us that Preston, the dog’s handler, died last year. He was never charged with perjury or convicted of a crime."

See the CNN video here:
http://ac360.blogs.cnn.com/2009/07/30/fake-scent-tracking-dog-sends-man-to-prison-for-life/
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The Bill Dillon story - subject of a CNN expose - was recently told by reporter Randi Kaye, a correspondent for AC360

A cut-line for the story indicates that "Dillon was sentenced to life in prison in 1981, at the age of 22."

"A Florida man who was convicted of murder in part because of the work of an allegedly infallible scent-tracking dog, is free now, because the dog and the dog’s owner has been exposed as a fraud," the story begins;

"Unfortunately for Bill Dillon he had to spend 26 years in prison before the error in his case was rectified," it continues;

"Bill Dillon, was 22 when he was sentenced to life in prison in 1981, for killing a man in Canova Beach on the eastern coast of the state.

During the trial, Dillon was adamant that he had not committed the crime. But a man named John Preston testified in court that he and his scent-tracking German-Shepherd connected Dillon to the killer’s bloody t-shirt. Preston said his dog, “Harrass 2,” even tracked Dillon’s scent repeatedly in later tests.

Dillon expected to remain in prison for the rest of his life – all because of “Harrass 2,” and his handler, Preston, who billed himself around the country as a so-called scent -tracking expert.

But nearly three decades later, in 2007, DNA testing proved that Dillon’s DNA did not match the DNA on the killer’s shirt. The dog was wrong. Just eight months ago, after 26 years behind bars, Bill Dillon walked out of prison a free man.

“Supposedly the dog got my scent three times,” Dillon told CNN, “and I never saw freedom again.” Dillon also said he remembers the dog’s “huge” head from the trial and that he looked like a “bear.”

In 1981, DNA testing wasn’t used in criminal investigations so authorities relied simply on the presumed legendary nose of Preston’s German Shepherd. Preston testified that his dog had tracked Dillon’s scent to a piece of paper he had touched, and had even tracked Dillon to a room he was in at the courthouse.

Preston and his dog had a track-record – he had convinced juries more than a hundred times of his dog’s miraculous talents. In Dillon’s case, Preston even told the court his dog had the ability to track a scent under water; to actually smell below the water. CNN consulted tracking dog experts in Florida about this. They told us “no way, that’s not possible.”

In 1984, before Preston was exposed as a fraud, he told ABC News that he believed he was never wrong. Tim McGuire, a dog-tracking expert with Florida’s Volusia County Sheriff’s Department, said it was implausible that a dog could have picked up Dillon’s scent back in 1981 eight days after the murder, and just after a massive hurricane had blown through the area.

McGuire viewed videotapes of Preston’s dog, Harrass 2, at work. In the tapes, there are multiple times when the dog urinates on evidence. “The dog should work methodically.” But McGuire said he did not consider what Harrass 2 was doing, “work.”

Preston was exposed by a Florida judge in 1984, who became suspicious of Preston and set up his own test for Harrass 2. The dog failed terribly.

Documents obtained by CNN show he could not even follow a scent for one-hundred feet. The judge determined the dog could only track successfully when his handler had advance knowledge of the case.

Dillon thinks Preston and his scent-tracking dog were part of a larger conspiracy.
“Preston could lead the dog to the suspect or the evidence,” alleges Dillon, but “any cases that were weak, not good enough to go to the jury, they [the prosecution] fed Preston information, paid him good money to come and lie.”
Florida’s Attorney General told CNN it is not aware of any evidence of a conspiracy involving John Preston and his dog.

Preston and his four-legged so-called expert were discredited in 1987. But the state of Florida never reviewed cases on which he’d testified . And nobody ever told Bill Dillon – who sat in prison another 20 years before he ever knew a thing about it. It wasn’t until 2006 that he heard Preston was a fake.

Florida’s Innocence Project believes dozens of inmates around the country may have been wrongly convicted as a result of John Preston and his dog. It is calling for an investigation of those cases. Meanwhile, Preston, the dog’s handler, died last year. He was never charged with perjury or convicted of a crime.ILL"


Harold Levy...hlevy15@gmail.com;

THE FATIMA MIAH CASE: A MORE DETAILED ACCOUNT; 24 DASH.COM; SHE WAS ORIGINALLY CHARGED WITH MURDER FOLLOWING DEATH OF HER SON;



"ALL THE EXPERTS AGREED, OR WERE PREPARED TO CONCEDE, THAT THERE HAD BEEN CASES IN THE PAST IN WHICH THE "TRIAD" OF INJURIES HAD BEEN CAUSED BY ACCIDENTS.

THEY WERE ALSO UNABLE TO EXCLUDE THE MOTHER'S ACCOUNT THAT THE INJURIES WERE CAUSED BY A "SHORT FALL".

THE JUDGE SAID THAT, SINCE THERE WAS A "FUNDAMENTAL CONFLICT OF EXPERT OPINION" ON THE CAUSE OF DEATH AND NO "CLEAR EVIDENCE" TO BACK ONE SIDE OR THE OTHER, HE WOULD HAVE TO DIRECT THE JURY TO ENTER A NOT GUILTY VERDICT."

REPORTER HANNAH WOODERSON; 24DASH.COM;

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"A young mother accused of shaking her eight-month-old son to death walked free from court today after a judge threw out a manslaughter charge against her," reporter Hannah Wooderson's story began, under the heading, "Mother cleared of shaking baby to death."

"The case of Fatima Miah could have implications for similar prosecutions up and down the country, the Old Bailey heard," the story, published on Wednesday July 29, 2009, continued;

"Miah, 27, who has faced two trials over the allegation since her baby Anas died in May 2007, told police that he collapsed after falling off the sofa.

"She has been described in court as a "caring, dutiful wife and a loving mother".

Today Judge Timothy Pontius ordered jurors formally to clear her after he was asked to make a ruling on the conflicting evidence of medical experts about the cause of the child's death.

He said: "It is my firm view that - unusually - there is no evidence upon which this jury could find, to the extent they feel sure, that the expert opinion supporting the prosecution allegation of non-accidental death is to be preferred."

Edward Brown QC, prosecuting, said: "This case has been brought to the attention of the very highest level of the Crown Prosecution Service and we have to consider the nature of the ruling.

"We will have also to decide whether the ruling has any general application because there are cases up and down the country either pending or being heard or which have been heard."

Some lawyers believe the case may have implications for the whole basis upon which scientific evidence is used in "baby-shaking" cases.

Miah, who spent six weeks in custody after her initial arrest but has since been on bail, was hugged by her junior defence barrister, Nerida Harford-Bell, in the dock after the judge made the ruling.

The part-time dentist's receptionist, of White City, west London, was originally charged with murder after the death of her son.

The court heard that at the time her husband Mohammed, 32, was working long hours at KFC in Shepherd's Bush and was unable to help her much but in court she denied that she was under pressure.

On the day Anas died an ambulance was called to the flat and he was found on the floor, not breathing, and his heart stopped for 40 minutes.

Miah faced her first trial at the Old Bailey in November last year but the murder charge was thrown out by a judge and jurors were unable to agree their verdict on the charge of manslaughter.

She denied prosecution claims that she had shaken the boy in a fit of temper, leaving him with the brain injury from which he died.

The mother faced a second trial this year but after hearing both the prosecution and the defence case that the judge decided to throw it out.

At the heart of the case was the presence of a "triad" of three specific injuries: subdural haemorrhage (bleeding on the brain), retinal haemorrhage (bleeding in the eye), and encephalopathy (swelling of brain tissue).

This "triad" would normally be used to provide "a strong pointer towards a conclusion that those injuries were not accidentally caused".

The judge said that there was evidence that all three of these injuries had been brought on by "trauma of some kind" and the prosecution argued that having all three together proved "non-accidental death".

But defence experts said that the subdural haemorrhage was unlikely to have been caused by shaking and one said it may have been the result of a loss of oxygen caused by choking on vomit.

All the experts agreed, or were prepared to concede, that there had been cases in the past in which the "triad" of injuries had been caused by accidents.

They were also unable to exclude the mother's account that the injuries were caused by a "short fall".

The judge said that, since there was a "fundamental conflict of expert opinion" on the cause of death and no "clear evidence" to back one side or the other, he would have to direct the jury to enter a not guilty verdict.

There was no evidence of external injuries and the mother had no previous convictions or history of abuse.

"Indeed, the character evidence, from witnesses called both for the defence and prosecution, is positive, describing her as a caring, dutiful wife and a loving mother," said the judge.

He said it would be impossible to rely on "inconsistency" in her account of what happened as proof that she had tried to allay suspicion of what happened, given her "obvious and understandable distress at the time".

Some lawyers believe the judge's ruling called into question the reliance on the "triad" of injuries to prove baby-shaking cases.

A man on the jury nodded when the judge explained the reasons for his decision and said he hoped that they agreed, while two female jurors waved goodbye to Miah as they filed out of court.

The judge told them: "This case is one of particular difficulty, as such cases always are. We read about them.

"In recent years there have been cases of baby-shaking and infant deaths which have hit the headlines. They are never straightforward and they are never easy.

"There is no evidence which could prove the strength of support necessary to enable you to conclude so that you are sure of it that Anas's death was non-accidental and specifically that the defendant shook him."

He said that, while there was some evidence which may make them "suspicious", it could not be enough.

Miah declined to comment when asked for her reaction outside court."


The article can be found at:

http://24dash.com/news/Communities/2009-07-29-Mother-cleared-of-shaking-baby-to-death

Harold Levy...hlevy15@gmail.com;

Thursday, July 30, 2009

THE FATIMAH MIAH CASE: BBC NEWS TELLS US THIS WAS HER SECOND TRIAL;


""IT IS MY FIRM VIEW THAT - UNUSUALLY - THERE IS NO EVIDENCE UPON WHICH THIS JURY COULD FIND, TO THE EXTENT THEY FEEL SURE, THAT THE EXPERT OPINION SUPPORTING THE PROSECUTION ALLEGATION OF NON-ACCIDENTAL DEATH IS TO BE PREFERRED," SAID JUDGE TIMOTHY PONTIUS."

BBC NEWS: 29 JULY, 2009;

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"A mother accused of shaking her eight-month-old baby son to death in west London has been cleared due to "conflicting medical evidence," the BBC News story began, under the heading, "Mother acquitted of killing baby."

"The 27-year-old, who was acquitted of manslaughter, denied she had shaken her son in fit of temper which left him with a brain injury in May 2007," the story continues;

"She was described as a "loving mother" at the Old Bailey.

The judge ordered jurors to clear her after he was asked to make a ruling on conflicting medical experts.

"It is my firm view that - unusually - there is no evidence upon which this jury could find, to the extent they feel sure, that the expert opinion supporting the prosecution allegation of non-accidental death is to be preferred," said Judge Timothy Pontius.

'Triad of injuries'

The woman, who has faced two trials over the allegation, told police that her son had collapsed after falling off the sofa.

At the heart of the case was the presence of a "triad" of three specific injuries: bleeding on the brain, bleeding in the eye and swelling of brain tissue.

This "triad" would normally be used to provide a strong indication that injuries inflicted were not caused accidentally.

The judge said there was evidence that all three of these injuries had been brought on by "trauma of some kind" and the prosecution argued that having all three together proved "non-accidental death".

But defence experts said that the bleeding of the brain was unlikely to have been caused by shaking and one said it may have been the result of a loss of oxygen caused by choking on vomit.

All the experts also agreed, or were prepared to concede, that there had been cases in the past in which the "triad" of injuries had been caused by accidents."

The story can be found at:

http://news.bbc.co.uk/2/hi/uk_news/england/london/8175279.stm

Harold Levy...hlevy15@gmail.com;

JURYGATE: RIGHTS CENTRE SAYS PROBE BY PRIVACY COMMISSIONER INTO SECRET VETTING OF JURORS IS NOT GOOD ENOUGH: CALLS FOR INDEPENDENT INVESTIGATION;



"GIVEN THE LACK OF STANDING OF POTENTIAL JURORS IN THE SYSTEM AND THE WIDESPREAD NATURE OF THE VIOLATIONS, A PUBLIC INQUIRY OR INDEPENDENT INVESTIGATION THAT FULLY EXPLORES THE INCIDENCE OF THE VIOLATIONS AND THE APPROPRIATE PROTECTIONS FOR THE PUBLIC IS NECESSARY TO RESTORE PUBLIC CONFIDENCE IN THE SYSTEM."

DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS;

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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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This Blog recently reported on an interesting "brief" on secret jury vetting published by the David Asper Centre For Constitutional Rights at the University of Toronto which concluded that, "the prospect of intrusive background checks will only worsen negative public sentiment and may encourage more people to avoid their civic obligations."

The brief examines an investigation into Ontario's "jurygate" scandal which is currently being conducted by the province's Information and Privacy Commissioner.

The brief explains by way of "background" that:

"The David Asper Centre for Constitutional Rights (“the Centre”) has been invited to provide our views on the legal issues arising from the purported conduct of background checks on prospective jurors in criminal trials within the Province of Ontario. According to media reports, the prospective juror background checks were discovered by a defence lawyer who had heard that a prosecutor in an unrelated trial had admitted that the Crown had sought police assistance to identify prospective jurors with a criminal record or “other relevant occurrences in their lives relative to their ability to be appropriate jurors”. His subsequent investigation revealed documents written on behalf of the Crown to OPP detachments and other police services requesting comments about “disreputable persons we would not want as jurors”. Though once seen as limited to the Barrie area, the allegations have been raised in at least five separate trials in the Barrie, Windsor, Thunder Bay and Toronto areas. The Information and Privacy Commissioner has initiated an inquiry, with the assistance of the Ministry of the Attorney General, which will include questionnaires, investigative teams and briefs solicited from organizations.
Given its focus on constitutional rights, the Centre’s submissions will focus on analysis and recommendations in two key areas. First, we will present an overview of the impact of background checks on the Charter rights of jurors and the accused. Second, we will examine the potential broader systemic implications of the allegations, in respect of access to justice principles as they relate to the constitutional rights of those affected."


An "executive summary" reads as follows:

"Jurors are innocent members of the public in a criminal trial. They have not been charged with a crime. Nor did they consent to invasive background checks conducted by state agents, which disclosed private information about their mental illnesses and family problems to prosecutors. The widespread allegations of background checks conducted by police and utilized by Crown Attorneys to vet potential jurors threaten to undermine the fundamental tenets of our justice system if they are not properly addressed. Given its mandate, the submissions of the David Asper Centre for Constitutional Rights focus on the breaches of the jurors’ Charter rights and their broader systemic implications, with a particular emphasis on access to justice principles.

The Charter Rights of Jurors
S. 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure”. Following the Tessling criteria, the jurors had an objectively reasonable expectation of privacy in the contents of their police files. The fact that the police, a third party, had possession of the information does not diminish this expectation. When the subject has a reasonable expectation of privacy, a warrantless search is prima facie unreasonable. The Court has made exceptions for searches authorized by a reasonable law and conducted in a reasonable manner. But the Juries Act does not expressly authorize the confirmation of juror eligibility through background checks. While sections 38(2) and 42(1)(d) of FIPPA may generally authorize obtaining further information about jurors, all reasonable searches must be consistent with Charter principles. The prosecutors’ actions clearly went beyond what was necessary to determine eligibility. Moreover, the additional information was not legally relevant to the jury selection process. The searches were a fishing expedition in which the Crown searched all potential jurors with no grounds for reasonable suspicion. The searches were not reasonably conducted and therefore infringed the jurors’ s. 8 rights.

The Charter Rights of the Accused
The Crown has a general legal obligation to disclose all relevant information to the accused. The decision of some prosecutors to withhold the information about prospective jurors, which was pertinent to the defence’s case, is a serious breach of legal ethics and may infringe the accused’s right to a fair hearing under s. 11(d). The purported widespread nature of the practice threatens the integrity of countless past jury trials. This aspect of the conduct of prosecutors is admittedly beyond the scope of the Privacy Commissioner’s mandate and thus necessitates toward a broader independent investigation or public inquiry.

Systemic Implications
Potentially, the rights of thousands of prospective jurors have been breached. This gives rise to a significant access to justice problem. Many jurors are unaware that their rights have been infringed. Even if they are aware, jurors have no standing in the criminal proceeding and no access to remedies. Furthermore, even where procedures are available for jurors to challenge privacy breaches, the U.S. experience indicates that extremely few jurors are willing or able to initiate separate litigation. The avoidance of jury duty by citizens is pervasive and well documented. The prospect of intrusive background checks will only worsen negative public sentiment and may encourage more people to elude their civic obligations. This is likely to exacerbate existing concerns about jury representativeness, with particular regard to the underrepresentation of racialized and Aboriginal people.
The Court has stated that fairness is the “guiding principle of justice and the hallmark of criminal trial”. There is no doubt that the prosecutors’ actions were contrary to Crown policy and longstanding Supreme Court jurisprudence. These Charter breaches may bring the administration of justice into serious disrepute. On the basis of our analysis, we conclude that a full public inquiry or an independent investigation with a broader mandate is crucial to prevent the broader implications of these infringements from materializing.

Summary of Conclusions and Recommendations
1. The interpretation of the legislation respecting the legality of the background searches must take into consideration the Charter rights of the individuals affected. Given the preceding analysis and assuming the facts as set out in the letter of request, we conclude that there have been Charter violations in respect of the privacy rights of prospective jurors.
2. We also conclude that there are serious implications for the public’s perception of the administration of justice which could seriously impact the willingness of people to serve on jury duty which already imposes significant hardship on individuals.
3. Given the lack of standing of potential jurors in the system and the widespread nature of the violations, a public inquiry or independent investigation that fully explores the incidence of the violations and the appropriate protections for the public is necessary to restore public confidence in the system.


The full version of the brief - with footnotes - can be found at the following address:

http://www.aspercentre.ca/Assets/Privacy+Commission+Brief.pdf

Harold Levy...hlevy15@gmail.com;

Wednesday, July 29, 2009

BAYNE'S CASE: OPPOSITION TO SEIZURE OF CHILDREN FOLLOWING ALLEGATIONS OF BABY SHAKING SYNDROME ALLEGATIONS MOUNTS IN BRITISH COLUMBIA;

"THE TWO BOYS, NOW AGED THREE AND FOUR, AND A 19-MONTH-OLD GIRL, WERE APPREHENDED BY THE MINISTRY IN SEPTEMBER, 2007 BECAUSE THE COUPLE WAS SUSPECTED OF SHAKING THE GIRL AND CAUSING A HEAD INJURY.

THE BAYNES BELIEVE THE INJURY WAS CAUSED WHEN THEIR YOUNGEST SON TRIPPED AND FELL ON THEIR DAUGHTER’S HEAD.

DR. PETER STEPHENS, ONE OF EIGHT DOCTORS PREPARED TO TESTIFY ON THE BAYNES’S BEHALF, SAID SHAKEN-BABY CASES ARE DRIVEN BY POLITICIANS WHO DON’T WANT TO APPEAR “SOFT” ON CRIME, AND BY SOCIAL WORKERS WHO RELY ON THE OPINION OF DOCTORS UNAWARE OF CHRONIC SUBDURAL HEMATOMA.

“PEOPLE LIKE THE BAYNES ARE COLLATERAL DAMAGE IN THE WAR ON CHILD ABUSE,” HE TOLD THE PROGRESS IN A TELEPHONE INTERVIEW FROM HIS NORTH CAROLINA HOME."

REPORTER ROBERT FREEMAN; THE CHILLIWACK PROGRESS;

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A Surrey B.C. counsellor has added his voice to that of critics - including numerous medical experts on shaken baby syndrome - who are calling for the return of his children, the Chilliwack Progress reports;

(In a letter to supporters, Paul and Zabeth Baynes say, "Baby Bayne was taken away from her mom and dad when she was only 6 weeks old only because she was born with a rare diseased, Glutaric Acidemia, but was misdiagnosed as "Shaken Baby Syndrome". Her two brothers were taken away right after the parents talked to Global TV.")

"Surrey councillor Marvin Hunt is personally stepping into the fight of a former Hope couple to regain custody of their children seized more than two years ago by the B.C. Children’s Ministry," the July 27 story by reporter Robert Freeman, begins;

"And Hunt is not alone among the doctors, social workers and others imploring the ministry to follow its own rules and return the three children," the story, which ran under the heading "Surrey councillor joins critics of child ministry," continues;
.
"Hunt said he will join a demonstration Thursday outside Premier Gordon Campbell’s office in support of Paul and Zabeth Baynes.

“I find it beyond belief that these kids are still within the care of the ministry,” Hunt told The Progress last Wednesday.

Hunt said as a politician he always looks for the missing pieces in government policies that create such problems, but in this case “all of the pieces of legislation are in place.”

“But what we have ... is an absolute abuse of the system here,” he said. “There is no point in time where the system has lawfully worked through the paper process on behalf of these people.”

Hunt said he does know the remedy, but questioned whether some in the ministry “should be in this type of work.”

He noted that at one point the children were returned to the care of the grandparents, but were re-apprehended by ministry staff, apparently miffed because the couple “broke trust” and went to the media with their story.

Retired social worker Ray Ferris said the ministry is “blatantly breaking” the province’s child welfare legislation, and showing “a complete lack of ethics” in its dealings with the Hope couple.

“They’ve gone so far, they’ll get egg on their face if they back-track now,” he said.

A review is supposed to occur when any child is held in care longer than 12 months, but Ferris said the Baynes’s were never asked to take part in a review, so only the ministry’s view was reported.

The two boys, now aged three and four, and a 19-month-old girl, were apprehended by the ministry in September, 2007 because the couple was suspected of shaking the girl and causing a head injury.

The Baynes believe the injury was caused when their youngest son tripped and fell on their daughter’s head.

Dr. Peter Stephens, one of eight doctors prepared to testify on the Baynes’s behalf, said shaken-baby cases are driven by politicians who don’t want to appear “soft” on crime, and by social workers who rely on the opinion of doctors unaware of chronic subdural hematoma.

“People like the Baynes are collateral damage in the war on child abuse,” he told The Progress in a telephone interview from his North Carolina home.

He said the baby girl’s head injuries were not caused by being shaken, but by the lack of oxygen to her brain caused by a chronic subdural hematoma.

Nobody knows for sure how these chronic conditions start, Stephens said, but they could begin as early as birth and a “minor bump in the bathtub” trigger a re-bleed.

Whoever is last seen with the child when the brain damage is finally discovered, is the one who is mistakenly blamed, he said.

Zabeth Baynes said the ministry’s allegation that she’d shaken her baby and caused the injuries “came as a complete shock” so the couple decided to look for experts in the field.

She said the doctors were not chosen because of their opposition to the “shaken-baby” syndrome, but for their research in the field.

“We did not shake our baby, we knew that,” Baynes said, and the doctors were sent the medical files for review.

The ministry is not commenting on the case because it is before the courts.

But Minister Mary Polak said in a statement last month that social workers “make judgment calls that most of us cannot imagine ... with the prime motivation to keep children safe.”

“There are going to be isolated cases in which questions will be raised about those decisions,” she said, but the ministry makes executive summaries of case reviews public “to ensure accountability and strengthen and enhance practice."


The story can be found at:

http://www.bclocalnews.com/fraser_valley/theprogress/news/Surrey_councillor_joins_critics_of_child_ministry.html

Harold levy...hlevy15@gmail.com;

THE FATIMA MIAH CASE; ANOTHER BRITISH WOMAN FREED AFTER "EXPERT" SHAKEN-BABY SYNDROME EVIDENCE TROUBLES COURT; CALLED "LANDMARK" CASE;


"EDWARD BROWN QC, PROSECUTING, SAID THE RULING WOULD HAVE IMPLICATIONS FOR MANY OTHER SIMILAR CASES, AND THE SCIENTIFIC EVIDENCE USED IN SHAKEN BABY PROSECUTIONS.

"THIS CASE HAS BEEN BROUGHT TO THE ATTENTION OF THE VERY HIGHEST LEVEL OF THE CROWN PROSECUTION SERVICE AND WE HAVE TO CONSIDER THE NATURE OF THE RULING. WE WILL HAVE ALSO TO DECIDE WHETHER THE RULING HAS ANY GENERAL APPLICATION BECAUSE THERE ARE CASES UP AND DOWN THE COUNTRY EITHER PENDING OR BEING HEARD OR WHICH HAVE BEEN HEARD," HE SAID."

REPORTER ROSEMARY BENNETT; THE TIMES ONLINE; JULY 29. 2009;

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The Times Online July 29 reported earlier today that Fatima Miah, a mother accused of shaking her baby son to death, had been freed after a judge ordered jurors not to convict her of manslaughter because the expert evidence was too divided.

"A young mother accused of shaking her baby son to death has walked free from court after a judge ordered jurors to clear her of manslaughter," the story by Social Affairs Correspondent Rosemary Bennett, begins.

"The judge said expert evidence was too divided for the jury to come to a conclusion as he threw out the charge," the story continues, under the heading, "Mother free in landmark baby shaking case."

"Legal experts said his decision would have serious implications for similar prosecutions up and down the country.

Although most medical experts still stand firmly behind Shaken Baby Syndrome, a minority of sceptical scientists fear that it is wrong, mistaking symptoms found in innocent accidents with deliberate killing.

Fatima Miah, 27, has faced two trials over the allegation that she shook her eight-month-old baby, Anas, to death in May 2007. She has always maintained he collapsed after falling off the sofa.

Judge Timothy Pontius said that, since there was a fundamental conflict of expert opinion on the cause of death, and no clear evidence to back one side or the other, he would have to direct the jury to enter a not guilty verdict.

"It is my firm view that - unusually - there is no evidence upon which this jury could find, to the extent they feel sure, that the expert opinion supporting the prosecution allegation of non-accidental death is to be preferred," he said.

Edward Brown QC, prosecuting, said the ruling would have implications for many other similar cases, and the scientific evidence used in shaken baby prosecutions.

"This case has been brought to the attention of the very highest level of the Crown Prosecution Service and we have to consider the nature of the ruling. We will have also to decide whether the ruling has any general application because there are cases up and down the country either pending or being heard or which have been heard," he said.

Ms Miah spent six weeks in custody after her initial arrest but has since been on bail. She had been described in court as a caring, dutiful wife and a loving mother.

The part-time dentist's receptionist from west London denied prosecution claims that she had shaken the boy in a fit of temper, leaving him with the brain injury from which he died.

Shaken Baby Syndrome came to prominence over a decade ago during the trial of Louise Woodward, the au pair who was found guilty of shaking baby Matthew Eappen to death. A series of reports said it was being under-diagnosed with up to 100 babies a year affected.

Most recently a child minder Keran Henderson, was jailed for the manslaughter of Maeve Sheppard, a baby in her care who a jury concluded had been shaken to death. Earlier this year, she left prison and is on probation having served half her sentence. She has always maintained her innocence.

(THE CHARLES SMITH BLOG PUBLISHER'S NOTE: THIS STORY DOES NOT MENTION THAT KERAN HENDERSON WAS RECENTLY FREED - HAVING SERVED HALF OF HER SENTENCE - PENDING AN APPEAL TO BE HEARD LATER THIS YEARS;THIS FALL. AFTER HER CONVICTION THE JURY FOREMAN AND ONE OTHER JURY TOOK THE EXTRAORDINARY STEP OF PUBLICLY QUESTIONING THE VERDICT - AND THE "EXPERT" EVIDENCE CALLED BY THE PROSECUTION; HAROLD LEVY;)

At the heart of the case was the presence of three specific injuries. They were subdural haemorrhage, or bleeding on the brain, retinal haemorrhage or bleeding in the eye, and encephalopathy or swelling of brain tissue.

This triad of injuries would normally be used to provide a strong pointer that those injuries were not accidentally.

But defence experts said that the subdural haemorrhage was unlikely to have been caused by shaking and one said it may have been the result of a loss of oxygen caused by choking on vomit.

All the experts agreed, or were prepared to concede, that there had been cases in the past in which the triad of injuries had been caused by accidents. They were also unable to exclude the mothers account that the injuries were caused by a short fall.

New research due to be peer-reviewed this summer from biomechanics in the US will suggest bangs on the head from a fall are far more dangerous to infants than shaking. Researchers at the Wayne State University in Detroit used crash-test dummies and real corpses - including dead infants - to help them reach their conclusions.

Ms Miah left the court without making any comment. Two female jurers waved her goodbye after the decision and she was hugged by her junior defence barrister.


The story can be found at:

http://news.bbc.co.uk/2/hi/uk_news/england/london/8175279.stm

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ; WHY ARE THE PROSECUTORS SO UPSET BY THIS DECISION; A "REAL FORENSIC SCIENTIST" SPEAKS HIS MIND;

\

"IT’S INTERESTING TO SEE PROSECUTORS SO WORRIED ABOUT THIS RULING. MAYBE NOT BEING ABLE TO MISREPRESENT WHAT THE LAB REPORTS MEAN, WITH THE ACTUAL LAB ANALYST PRESENT, IS A CONCERN?

A REAL FORENSIC SCIENTIST;
PHOTO: JUSTICE ANTONIN SCALIA;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

------------------------------------------------------------------------------

From time to time I have the pleasure of landing on a sight which bears the intriguing title, "Bench Notes: CSI Episode Reviews and Other Comments by a Real Forensic Scientist."

I enjoyed this fellow Bloggist's delightful riff published on July 21,2009, under the heading "More Melendez-Diaz Whining."

"No the sky won’t fall, but forensic scientists are going to have to do a more complete job," the "Real Forensic Scientist" writes.

"Not only analyzing the evidence, and writing reports, but also explaining their results to the trier of fact, and defending their opinions against cross-examination," he continues;

"It’s interesting to see prosecutors so worried about this ruling. Maybe not being able to misrepresent what the lab reports mean, with the actual lab analyst present, is a concern?"

A faur question, indeed!

The post can be found at:

http://mail.google.com/mail/#inbox/122a90a6260e9371

Harold Levy...hlevy15@gmail.com;

Monday, July 27, 2009

UP-DATE; SASKATCHEWAN; FLAWED X-RAYS, CT SCANS AND MAMMOGRAPHS; HEALTH REGION SAYS PRELIMINARY REVIEW SHOWS DISCREPANCIES IN TSATSI'S RADIOGRAPHY;



"THE REVIEW OF MORE THAN 69,000 DIAGNOSTIC IMAGES READ BY TSATSI DURING HIS FIVE YEARS OF EMPLOYMENT WITH THE HEALTH REGION IS ONE OF THE LARGEST RADIOLOGY DIAGNOSTIC IMAGING REVIEWS IN CANADIAN HISTORY.

KIRWAN SAID MORE THAN 12,000 EXAMS HAVE BEEN SENT BY THE HEALTH REGION TO BE RE-READ BY RADIOLOGISTS IN REGINA AND EDMONTON. REPORTS HAVE NOW BEEN RECEIVED ON 2,550 EXAMS WITH DIFFERENCE OF INTERPRETATIONS NOTED IN 312 EXAMS. AS THE REPORTS ARE RECEIVED THE HEALTH REGION IS FORWARDING THE INFORMATION TO THE FAMILY PHYSICIANS AND NOTIFYING PATIENTS, EVEN WHEN THERE IS NO CHANGE IN INTERPRETATION."

REGINA LEADER-POST;

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Background: Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

The Canadian Broadcasting Corporation reported on May 31, 2009, that: "Questions of competency were raised 2½ years ago about the radiologist (Dr. Darius Tsatsi) whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says."
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"Preliminary findings of a third-party audit of Yorkton radiologist Dr. L. Darius Tsatsi's diagnostic work has disclosed that differences of interpretation in 116 of 312 exams were considered to have the potential to affect patient care," the Leader-Post story published earlier today begins;

""We may never know how the differences of interpretation could have potentially affected health outcomes really. We may never really know that in any real true sense,'' Sunrise Health Region CEO Joe Kirwan said on Monday," the story, under the headline "Preliminary review shows discrepancies in Dr. Tsatsi's radiology exams", continues."

""If you have got chronic or ongoing health issues, you are going to be under constant care anyway. If it is episodic or a one-time thing, it may have already been cured and we won't know that if there is any lingering effects. We may never know that."

Kirwan said he was not privy to what medical conditions were associated with the files that came back flagged as potentially putting patient care at risk.

The health region and the Ministry of Health ordered the review May 20 following notification by the College of Physicians and Surgeons of Saskatchewan of serious concerns about possible misinterpretations. The college, the medical licensing regulator, raised the concerns following a quality assurance audit last year of 103 of Tsatsi's case files, which revealed a significant difference of clinical interpretation.

The review of more than 69,000 diagnostic images read by Tsatsi during his five years of employment with the health region is one of the largest radiology diagnostic imaging reviews in Canadian history.

Kirwan said more than 12,000 exams have been sent by the health region to be re-read by radiologists in Regina and Edmonton. Reports have now been received on 2,550 exams with difference of interpretations noted in 312 exams. As the reports are received the health region is forwarding the information to the family physicians and notifying patients, even when there is no change in interpretation.

"I fully understand the concern of individuals and family members and am very sorry for the anxiety caused by this review," Kirwan said.

"Our normal health services continue throughout the review and we recommend that people not hesitate to see their family physician if they have tests that are part of the review and they are not feeling well."

Any patient who has to have a repeat of a diagnostic test because the initial exam diagnosis was questionable will have their exams expedited, Kirwan said.

The process of reviewing the remaining exams will continue in reverse chronological order from 2009 going back to 2004."


The article can be found at:
http://www.leaderpost.com/health/Preliminary+review+shows+discrepencies+Tsatsi+radiology+exams+Sunrise+Health+Region/1833520/story.html

Harold Levy...hlevy15@gmail.com;

UP-DATE; SASKATCHEWAN; FLAWED X-RAYS, CT SCANS AND MAMMOGRAPHS; DR. TSATSI'S ALLEGATIONS AGAINST COLLEGE; OTHER DOCTORS RALLY TO HIS DEFENCE;



"WHILE ACKNOWLEDGING THE REGION, THE MINISTRY AND THE COLLEGE HAVE A RESPONSIBILITY TO PROTECT PATIENT SAFETY, THE DOCTORS STATED THEY BELIEVE THE WAY THE MATTER WAS HANDLED “WAS PREJUDICIAL AND DAMAGING TO ALL PHYSICIAN RELATIONSHIPS IN THE REGION.”

“WE ARE LEFT WITH THE PERCEPTION OF AN UNSEEMLY EAGERNESS TO INFLICT PUNISHMENT AND PENALTIES. IN SPITE OF THE FACT THAT THE MATTER (OF TSATSI’S COMPETENCE) IS STILL SUBJUDICE. IT WILL TAKE A LONG TIME FOR ANY PHYSICIAN IN SASKATCHEWAN TO FEEL SAFE FROM PERSECUTION BY AN OVERZEALOUS BUREAUCRACY,’’ THE STATEMENT SAID."

REPORTER ANNE KYLE: LEADER-POST;

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Background: Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

The Canadian Broadcasting Corporation reported on May 31, 2009, that: "Questions of competency were raised 2½ years ago about the radiologist (Dr. Darius Tsatsi) whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says."
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The support expressed by other Saskatchewan doctors for Dr. Darius Tsatsi is the subject of a story by reporter Anne Kyle published in the Leader-Post on July 24 under the heading, "Dozens of doctors in Sunrise Health Region show support for Dr. L. Darius Tstasi."

"REGINA — Some doctors in the Sunrise Health Region have thrown their support behind Yorkton radiologist Dr. L. Darius Tsatsi whose diagnostic work is being scrutinized as part of a massive medical diagnostic audit," the story begins;

"“We, the physicians of Sunrise Health Region, would like to unanimously support our well respected colleague, Dr. Tsatsi, whom we feel had been treated extremely unfairly by the Sunrise Health Region,’’ the medical staff said in a statement released Friday," the story continues;

"The statement signed by 35 doctors expressed disappointment with how the region handled the review process saying that by publicly releasing Tsatsi’s name before the review and competency hearing processes were completed may have compromised his career.

In May the health region and the Ministry of Health announced a retrospective review had been ordered of more than 69,000 diagnostic images read by Tsatsi during the five years he worked in the region.

The audit was triggered by the findings of a College of Physicians and Surgeons of Saskatchewan quality assurance review in 2008 of 103 of Tsatsi’s case files that identified a number of variances in the interpretation of some of the diagnostic images.

“Once the college made the health region and the province aware of its concerns, there was an obligation, in the interest of patient safety, to get information out to the public as soon as possible,’’ region spokeswoman Sharon Tropin said.

She added the region’s CEO met with medical staff to inform them of the situation prior to going public.

“I’m not sure how we could have properly informed people without Dr. Tsatsi’s name becoming involved. The fact is, he, himself, had placed his name in the public forum,’’ she said, referring to Tsatsi’s legal challenge of the college’s review process in March, which is a matter of public record.

While acknowledging the region, the ministry and the college have a responsibility to protect patient safety, the doctors stated they believe the way the matter was handled “was prejudicial and damaging to all physician relationships in the region.”

“We are left with the perception of an unseemly eagerness to inflict punishment and penalties. In spite of the fact that the matter (of Tsatsi’s competence) is still subjudice. It will take a long time for any physician in Saskatchewan to feel safe from persecution by an overzealous bureaucracy,’’ the statement said.

While the doctors said they support the quality assurance program, a fair competency review process and the need to inform patients when findings come out of those processes that could potentially harm patients, they disagree with the disclosure of Tsatsi’s name.

Tropin said the region feels for Tsatsi and his family, but also feels for the patients and their families who at this time need assurances that their test results are accurate.

“We are definitely trying to be as open about disclosure of patient safety issues as possible. In this day and age of Internet, and text messaging, information flow, keeping things in a closed environment is neither desirable nor possible,’’ Tropin said.

“In this instance, our obligation was to the patients and to get accurate information to them as soon as possible.’’"

The article can be found at:

http://www.leaderpost.com/health/Dozens+doctors+Sunrise+Health+Region+show+support+Darius+Tstasi/1826344/story.html
Harold Levy...hlevy15@gmail.com;

Harold Levy...hlevy15@gmail.com;

UP-DATE; SASKATCHEWAN; FLAWED X-RAYS, CT SCANS AND MAMMOGRAPHS; DR. DARIUS TSATSI'S ALLEGATIONS AGAINST COLLEGE; THE OTHER SIDE;



"QUEEN’S BENCH JUSTICE GRANT CURRIE WROTE: “THE MATERIAL (FILED WITH THE COURT) LEADS TO THE CONCLUSION THAT THE COLLEGE HAS TREATED DR. TSATSI FAIRLY ... HAS TREATED HIM AS IT TREATS ANY OTHER PHYSICIAN AND, MOTIVATED BY ITS OBLIGATION TO THE PUBLIC, HAS TREATED HIM WITHOUT REGARD FOR HIS RACE, COLOUR OR NATIONALITY.’’"

REPORTER ANNE KYLE; REGINA LEADER-POST;
-------------------------------------------------------------------------------

Background: Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

The Canadian Broadcasting Corporation reported on May 31, 2009, that: "Questions of competency were raised 2½ years ago about the radiologist (Dr. Darius Tsatsi) whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says."

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A story in the Saskatchewan Leader-Post provides another side to the allegations recently made at a press conference by Dr. Darius Tsatsi;

"REGINA — Contrary to Dr. L. Darius Tsatsi’s assertions, a Saskatchewan judge concluded in March that the College of Physicians and Surgeons of Saskatchewan treated the Yorkton radiologist fairly," the story, by reporter Anne Kyle, begins;

"On Wednesday, Tsatsi — who is at the centre of one of the largest medical diagnostic audits in Canadian history — called a news conference to defend his reputation and his work, claiming he was being unfairly targeted by the college, which was biased against him," the story, which ran under the heading "Court finds Tsatsi treated fairly by College of Physicians and Surgeons of Saskatchewan," continues;

"“The Health Ministry, the regional authorities and College of Physicians and Surgeons of Saskatchewan ... have misinterpreted the facts, misled the public about my work, the nature of the investigation against me, my qualifications, certification and related facts,’’ Tsatsi said.

Responding to the allegations, the college’s legal counsel, Bryan Salte, noted a March 17 court decision concluded that, “Dr. Tsatsi had been treated fairly, that he was treated without bias, that he had no bases to complain and that the college had been quite fair.’’

Queen’s Bench Justice Grant Currie wrote: “The material (filed with the court) leads to the conclusion that the college has treated Dr. Tsatsi fairly ... has treated him as it treats any other physician and, motivated by its obligation to the public, has treated him without regard for his race, colour or nationality.’’

Salte noted that while the college did the initial quality assurance assessment of Tsatsi’s work that triggered the retrospective review, it was Sunrise Health Region and the ministry that ordered the audit of the more than 69,000 diagnostic images read by Tsatsi while employed by the region.

The college’s 2008 assessment of 103 of Tsatsi’s case files identified a number of variances in the interpretation of some of the diagnostic images. It was those differences in clinical opinions and the potential for misinterpretation of test results that prompted the region and ministry to call for a review to mitigate patient safety concerns.

Under the Medical Profession Act, the college is responsible for ensuring licensed doctors are competent in their skills and knowledge to practise in Saskatchewan.

The act stipulates that, in respect to proceedings before a competency hearing committee, “the protection of the public and safe and proper practice shall take priority over the rehabilitation, treatment and welfare of a person registered under the act.’’

While recognizing this process is stressful for Tsatsi, Salte said the college council has a duty to investigate and make a determination whether he is competent if it has reasonable grounds to believe his skills and knowledge are lacking.

As part of that process a competency committee is convened to investigate and hold a competency hearing to make that determination. It is then up to the council to decide what action should be taken."

No date has been set for Tsatsi’s competency hearing.


The story can be found at:

http://www.leaderpost.com/health/Court+finds+Tsatsi+treated+fairly+College+Physicians+Surgeons+Saskatchewan/1821948/story.html

Harold Levy...hlevy15@gmail.com;

Sunday, July 26, 2009

JURYGATE: SECRET BACKGROUND CHECKS COULD ENCOURAGE FURTHER "AVOIDANCE OF JURY DUTY" PAPER SUGGESTS; AUTHORS CALL FOR PUBLIC INQUIRY;




"THE AVOIDANCE OF JURY DUTY BY CITIZENS IS PERVASIVE, THE AUTHORS WROTE, ADDING THAT THE PROSPECT OF INTRUSIVE BACKGROUND CHECKS WILL ONLY WORSEN NEGATIVE PUBLIC SENTIMENT AND MAY ENCOURAGE MORE PEOPLE TO AVOID THEIR CIVIC OBLIGATIONS."

FROM PAPER PUBLISHED BY THE DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS AT THE UNIVERSITY OF TORONTO;

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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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The Toronto Star reports a constitutional rights centre's call for a public inquiry into Ontario's Jurygate scandal in a story by reporter Peter Small which appeared in Friday's paper under the heading "Wider probe into jury checks urged," and the sub-heading, "Research centre says the rights of thousands of prospective jurors could have been breached."

"A constitutional rights centre at the University of Toronto's law school is calling for a public inquiry or wide-ranging independent probe into why police conducted secret background checks on jurors at the behest of the Crown," the story begins;

""Potentially, the rights of thousands of prospective jurors have been breached," says the paper, which was solicited by the province's information and privacy commissioner as part of her investigation of the practice," the story continues;

""Jurors are innocent members of the public in a criminal trial. They have not been charged with a crime. Nor did they consent to invasive background checks conducted by state agents," says the submission by the David Asper Centre for Constitutional Rights at U of T.

In May, a scandal erupted after defence lawyers discovered that Crown prosecutors were asking police to do database searches on prospective jurors without their knowledge.

Jurors were flagged for minor criminal records, provincial offen-ces, mental health histories and even their attitudes toward police.

The revelations have led to three recent mistrials – one in Windsor and two in Barrie.

"The searches were a fishing expedition in which the Crown searched all potential jurors with no grounds for reasonable suspicion," says the 14-page paper, written by U of T Professor Lisa Austin, research assistant Kerri Lui and Cheryl Milne, executive director of the centre.

Milne said in an interview that although Information and Privacy Commissioner Ann Cavoukian has launched an investigation into the practice, her mandate is too narrow to address all the issues.

She can look into breaches of privacy legislation. "But what has happened goes beyond just those sorts of breaches," Milne said. "It's really something that goes to the essence of the criminal justice system."

Milne said there is a potential for many past jury trials to be called into question, as in the Askov case, in which a Supreme Court of Canada finding of breaches of constitutional rights led to thousands of cases being thrown out.

The avoidance of jury duty by citizens is pervasive, the authors wrote, adding that the prospect of intrusive background checks will only worsen negative public sentiment and may encourage more people to avoid their civic obligations."


The Toronto Star article can be found at:

http://www.thestar.com/article/671149

Harold Levy...hlevy15@gmail.com;

Saturday, July 25, 2009

MELENDEZ-DIAZ CASE: VIRGINIA DEFENCE LAWYER SAYS DECISION COULD LEAD TO ALTERNATIVE DRUG TREATMENT COURTS; WHAT'S WRONG WITH THAT?


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"SETTING A TIME LIMIT FOR DEFENDANTS TO NOTIFY THE COURT SOLVES THE STATE'S STATUTORY PROBLEM, SAID GENE HART, A DEFENSE ATTORNEY FOR 13 YEARS.

BUT HART, A ROCKINGHAM COUNTY DEMOCRAT WHO IS CHALLENGING LOHR IN THE 26TH HOUSE DISTRICT, SAID THE COURT RULING IS LIKELY TO LEAD TO OTHER CHANGES IN THE WAY THE LEGAL PROCESS WORKS.

ONE OUTCOME OF THE MELENDEZ-DIAZ CASE MAY BE TO INCREASE THE ABILITY OF DEFENSE ATTORNEYS TO GET BETTER DEALS FOR THEIR CLIENTS, HART SAID.

THE PRESSURE TO HAVE A LAB TECHNICIAN IN COURT, HART SAID, COULD ALSO LEAD THE STATE TO EXPAND ALTERNATIVE COURTS THAT STRESS DRUG TREATMENT."

DEFENCE ATTORNEY GENE HART; AS REPORTED BY JEFF MELLOTT ON DNRONLINE.NEWS;
PHOTO: JUSTICE ANTONIN SCALIA;
-------------------------------------------------------------------------------

Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.------------------------------------------------------------------------------
I really enjoyed reading defence lawyer Gene Hart's prediction that the pressure to have a lab technician in court could also lead the state to expand alternative courts that stress drug treatment in reporter Jeff Mellott's story on dnronline.news published on July 23, 2009;

It boggles my mind that the people who run our criminal court systems should need a decision like Melendez-Diaz to push them toward an alternative drug treatment court system - as exists at the Old City Hall courthouse in Toronto - to try to stem drug addiction and put an end to the revolving court door process;

Jeff Mellott's story ran inder the heading, "General Assembly To Address High Court Ruling On Lab Techs.

"HARRISONBURG - A recent U.S. Supreme Court decision has led Gov. Timothy M. Kaine to call a special session of the General Assembly for Aug. 19, and Del. Todd Gilbert, R-Woodstock, is ready with draft legislation," Mellott's story began.

"The court ruling, handed down June 25 in Melendez-Diaz v. Massachusetts, requires that lab technicians who conduct tests on court evidence be made available to defendants for cross-examination," the story continued;

"To ease scheduling of the court appearances of the limited number of lab technicians statewide, a proposal that General Assembly staff drafted for Gilbert would require the prosecution to notify the defense of its intent to use a document called a "certificate of analysis."

If the defense attorney objects, the lab technician would have to testify, according to the proposed legislation. The notice would allow the lab technician to be scheduled for court and prevent case dismissals.

In a statement Gilbert released Wednesday, the delegate, a 12-year career prosecutor, called the Supreme Court decision "shortsighted."

The ruling, he said, "is tying the hands of prosecutors attempting to convict and punish drug dealers and drunk[en] drivers."

Since the ruling, Gilbert said the commonwealth's attorney's office he works in has subpoenaed lab technicians as a precaution against potential defense efforts to get cases dismissed.

Session Support

Valley lawmakers were supportive of the special session after Kaine set the date Wednesday.

"After talking to local law enforcement and the commonwealth's attorneys' offices, we need to act sooner rather than later on this issue," said Del. Steve Landes, R-Weyers Cave, in a statement.

Del. Matt Lohr, R-Broadway, said "drug dealers and drunk[en] drivers should not be allowed to walk free on the technicality that the lab analyst is not present."

State Sen. Ken Cuccinelli, R-Fairfax, the Republican candidate for attorney general, urged the governor to call a special session in a letter on July 10.

Kaine, however, had been looking to see if the state could remedy the problem administratively, instead of through legislation.

Court Case

In Melendez-Diaz, the court noted defendants have the right to face their accusers under the Sixth Amendment to the U.S. Constitution.

This means that lab technicians involved in testing case evidence must appear in court.

Until the ruling, judges in Virginia and elsewhere accepted written reports to validate evidence.

According to The Associated Press, the ruling has raised concerns that the Virginia Department of Forensic Science's 160 employees would be unable to keep up with their lab work if they were constantly in court.

Last year, the department handled nearly 60,000 cases statewide, the AP reported.

"This [ruling] has caused a logistical nightmare for lab personnel and prosecutors across Virginia. As a result, drug and DUI cases are in jeopardy all over Virginia," said Gilbert, an assistant commonwealth's attorney in Frederick County.

Remedy

Gilbert plans to show defense attorneys and prosecutors his draft legislation for possible improvements.

Gilbert's hope is that the proposed legislation would reinstate reliance on the test reports.

"We trust the integrity of our lab system. We trust the validity of these tests," he said.

Setting a time limit for defendants to notify the court solves the state's statutory problem, said Gene Hart, a defense attorney for 13 years.

But Hart, a Rockingham County Democrat who is challenging Lohr in the 26th House District, said the court ruling is likely to lead to other changes in the way the legal process works.

One outcome of the Melendez-Diaz case may be to increase the ability of defense attorneys to get better deals for their clients, Hart said.

The pressure to have a lab technician in court, Hart said, could also lead the state to expand alternative courts that stress drug treatment.

Other Business

Dealing with the ruling should not be the only business conducted during the special session, said Democrat John Lesinski of Washington on Wednesday.

Lesinski is challenging Gilbert in the 15th House District.

While in Richmond, Lesinski hoped lawmakers would also take up accepting federal stimulus money to expand unemployment benefits.

The Republican-controlled House of Delegates turned down the money while in session earlier this year, but Democrats supported accepting it.

- The Associated Press contributed to this story.


Harold Levy...hlevy15@gmail.com;

Wednesday, July 22, 2009

UP-DATE; SASKATCHEWAN; FLAWED X-RAYS, CT SCAN AND MAMMOGRAPHS; DR. DARIUS TSATSI FIGHTS BACK; SAYS HE IS A VICTIM OF RETRIBUTION; CBC REPORTS;



"THE HEALTH REGION HAS ORDERED A REVIEW OF ABOUT 70,000 X-RAYS, CT SCANS, MAMMOGRAMS AND ULTRASOUNDS AFTER PEERS FOUND PROBLEMS WITH MORE THAN 100 OF TSATSI'S CASES GOING BACK FIVE YEARS.

BUT TSATSI SAID THE MAMMOTH REVIEW IS THE RESULT OF AN ONGOING DISPUTE BETWEEN HIMSELF AND THE COLLEGE, CLAIMING HE WAS HELD TO A HIGHER STANDARD THAN OTHER DOCTORS WHILE HE WAS GOING THROUGH CERTIFICATION IN SASKATCHEWAN. HE FILED A LEGAL ACTION ALLEGING UNFAIR TREATMENT AND LOST."

CBC NEWS;

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Background: Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

The Canadian Broadcasting Corporation reported on May 31, 2009, that: "Questions of competency were raised 2½ years ago about the radiologist (Dr. Darius Tsatsi) whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says."

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CBC news reported yesterday that Dr. Darius Tsatsi has gone public in his battle against the Saskatchewan College of Physicians and Surgeons in a story which ran under the heading "Suspended radiologist says he is victim of retribution."

"Dr. Darius Tsatsi was featured in a CBC-TV report in 2005 on his family's first Christmas in Canada. (CBC)A Yorkton physician, suspended while thousands of patient test results are reviewed, said Wednesday Saskatchewan's College of Physicians and Surgeons is making him a scapegoat because he once sued them," the story begins;

"Dr. Darius Tsatsi agreed in May to a voluntary suspension from his role as a radiologist with the Sunrise Health Region after health officials claimed to have found serious problems with his work," the story continues;

"The health region has ordered a review of about 70,000 X-rays, CT scans, mammograms and ultrasounds after peers found problems with more than 100 of Tsatsi's cases going back five years.

But Tsatsi said the mammoth review is the result of an ongoing dispute between himself and the college, claiming he was held to a higher standard than other doctors while he was going through certification in Saskatchewan. He filed a legal action alleging unfair treatment and lost.

He alleged Wednesday that the review of his work was ordered as retribution for taking the college to court.

"If you are alone, different, and you dare to question, we will show you. You'll be re-examined whether your previous assessment was good or not. Even if the reason for the re-assessment is not sufficient or fitting, we will re-examine you again and again. This has been a modern-day lynching."

Says he couldn't defend himself
Tsatsi claimed he was never able to defend himself when his work was questioned.

"I don't believe they're real. I make mistakes like everyone else. If you read what they say, if you had access to that document, it says, 'Look, Dr. Tsatsi is not dangerous.' "

Tsatsi said he has not been allowed to examine any of the images under review and that the situation has ruined his career and harmed his family.

Meanwhile, Saskatchewan's College of Physicians and Surgeons denies Tsatsi's allegations.

The college's legal counsel, Bryan Salte, said it's obviously difficult to have one's work questioned. But the role of the college is the protection of the public.

"The college obviously has an obligation to be fair to physicians in the position of Dr. Tsatsi," said Salte. "The court found that that's what we had done, and certainly, we intend to continue doing that. But the real purpose of the process is to try to make sure the public is protected and that the physicians that they receive treatment from are practicing to an appropriate standard. That's what the college seeks to do."

Tsatsi had his privileges suspended May 14 after questions over "the interpretation of diagnostic images" arose.

The health unit believes there were "potential misinterpretations" of some of the images.

Tsatsi was one of three radiologists at the Yorkton Regional Health Centre.

A preliminary review of Tsatsi's work was conducted last year by the College of Physicians and Surgeons of Saskatchewan. The college had three other doctors take a second look at 103 of Tsatsi's cases covering the period May 28 to Nov. 14, 2008.

The result was "significant clinical differences of opinion" in some of the cases, the health region said.

Another 70,000 exams, going back five years, are now under review — a process that will take months.

Tsatsi was trained in South Africa and has been working in Saskatchewan since 2004. He has also worked in the Cypress Health Region in the province's southwest and the Prince Albert Parkland Health Region.

Officials have said Tsatsi twice took an exam to be certified in Saskatchewan and has failed both times. While he has one more chance to pass, while the investigation is underway, Tsatsi has agreed not to practice radiology, officials said.

Tsatsi said he is reviewing his options — including legal action against the college, the health region and the Saskatchewan Ministry of Health."


The CBC story can be found at:

http://www.cbc.ca/canada/saskatchewan/story/2009/07/22/sask-physician.html

Harold Levy...hlevy15@gmail.com;

JURYGATE; DEFENCE LAWYERS PREDICT A "SLEW" OF APPEALS BASED ON SECRET BACKGROUND CHECKS ON JURORS, TORONTO STAR REPORTS;



"DEFENCE LAWYERS HAVE PREDICTED A SLEW OF APPEALS IN THE WAKE OF REVELATIONS THAT POLICE CONDUCTED SECRET BACKGROUND CHECKS ON PROSPECTIVE JURORS AT THE BEHEST OF PROSECUTORS.

AYRE'S LETTER WAS IN RESPONSE TO ONE FROM FRANK ADDARIO, PRESIDENT OF THE CRIMINAL LAWYERS' ASSOCIATION, WHO DEMANDED THAT THE MINISTRY "COLLECT AND PRESERVE ALL RELEVANT INFORMATION REGARDING THE EXTENT AND DURATION OF THE PRACTICE ACROSS THE PROVINCE.""

REPORTER PETER SMALL; THE TORONTO STAR;

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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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The Toronto Star reports that appeals based on secret vetting of juror's background's will lead to numerous appeals.

"The province's chief prosecutor is pledging to dig up cases where secret jury background checks were made and notify the defence lawyers involved," the Star's Peter Small reported yesterday in a story headed, "Ontario reveals juries given secret background checks."

"In a letter to the province's defence lawyers, John Ayre says he has asked two senior managers to review all available Crown files over the past three years in the Barrie and Windsor areas, where the practice has chiefly taken place and has led to three mistrials," the story continues;

""Where it appears that any type of background check was conducted and the information was not disclosed, defence counsel of record will be notified and provided with disclosure of any available material," Ayre says in his July 14 letter.

A ministry spokesperson said that the notices are going out this week.

Defence lawyers have predicted a slew of appeals in the wake of revelations that police conducted secret background checks on prospective jurors at the behest of prosecutors.

Ayre's letter was in response to one from Frank Addario, president of the Criminal Lawyers' Association, who demanded that the ministry "collect and preserve all relevant information regarding the extent and duration of the practice across the province."

Addario told the Star that he accepts Ayre's pledge at face value.

"The disclosure of what happened and where is an important ingredient to resolving the uncertainty that hangs over cases affected by the practice," Addario said.

Crown prosecutors in Barrie and Windsor have had jury panel lists with notes beside prospective jurors about minor infractions, health records and even their attitudes to police.

Ontario's privacy commissioner, Ann Cavoukian, has ordered a probe.

In his letter, Ayre said that a number of defence counsel across the province have already been making inquiries about specific cases.

"They have been given a response, or a response is pending," Ayre said.

On May 26, Ayre issued a memo reminding Crowns that it is not acceptable to check prospective jurors for anything beyond whether they have indictable – the most serious – criminal offences.

Criminal lawyer Ben Fedunchak is raising the issue of juries vetting in the Barrie murder trail of a youth convicted of stabbing 14-year-old Brayton Bullock in 2006.
Fedunchak, who represents the youth who was about to be sentenced, last week asked Justice Alfred Stong for the verdict to be thrown out largely on the basis that the Crown secretly vetted potential jurors.

The case returns to Barrie Superior Court on Aug. 25.


Harold Levy...hlevy15@gmail.com;

Tuesday, July 21, 2009

MELENDEZ-DIAZ CASE: ARE WORRIES ABOUT SOTOMAYER'S TOUGH-ON-CRIME JURISPRUDENCE MISPLACED? SOME QUESTIONS THAT SHOULD HAVE BEEN ASKED; RADLEY BALKO;



"THIS IS ALL THE MORE TROUBLING GIVEN THE CRITICAL ROLE SOTOMAYOR WILL LIKELY PLAY ON KEY CRIMINAL JUSTICE CASES DURING HER LIKELY TENURE. IN THE LAST TERM ALONE, THERE WERE SIX CRIME CASES IN WHICH THE DEFENSE POSITION WON ON A 5-4 VOTE, WITH DEPARTING JUSTICE DAVID SOUTER CASTING A VOTE WITH THE MAJORITY. IN ONE OF THOSE CASES, MELENDEZ-DIAZ V. MASSACHUSETTS, THE COURT HELD THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE GIVES CRIMINAL DEFENDANTS THE RIGHT TO CROSS-EXAMINE ANY FORENSIC EXPERT WHOSE WORK IS SUBMITTED AS EVIDENCE, A PARTICULARLY IMPORTANT DECISION GIVEN A DAMNING REPORT ON THE RELIABILITY OF FORENSIC SCIENCE ISSUED EARLIER THIS YEAR BY THE NATIONAL ACADEMIC OF SCIENCES. THE DECISION HAS ALREADY SENT SHOCKWAVES THROUGH THE CRIMINAL JUSTICE SYSTEM."

RADLEY BALKO; REASON MAGAZINE;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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The Melendez-Diaz case has prompted another column by Radley Balko, a senior editor at Reason Magazine - in this Bloggist's view one of the most perceptive commentators on the U.S. criminal justice system.

The column ran yesterday under the heading, "Criminal Justice Missing From Sotomayor Hearings" and the sub-heading, "No one cares to discuss the Supreme Court's most important function: protecting the rights of the accused."

"Last week's confirmation hearings for Supreme Court nominee Sonia Sotomayor included much of what we expected: Probing questions from Republicans on hot-button culture war issues such as abortion, gay marriage, gun control, race, and affirmative action; and deference, deflection, and fawning praise from Democrats. Almost entirely left out of the discussion was a subject you might think has some relevance to the Supreme Court: the criminal justice system," the column begins;

"Determining the extent of constitutional protections for suspects and defendants may well be the Supreme Court's most important task," it continues;

"The framers of the Constitution thought so: four of the 10 amendments that make up the Bill of Rights lay out explicit protections for criminal defendants. Yet even though the Court has addressed a number of important Fourth, Fifth, Sixth, and Eighth Amendment cases in recent years, Sotomayor was never seriously challenged on her record of criminal justice jurisprudence. The few times these issues were broached at all, it was in the form of a friendly question from a Democrat, phrased to demonstrate that Sotomayor will be as tough on crime as any Republican appointee.

Sen. Chuck Schumer (D-NY), for example, noted with satisfaction in his introductory comments that over the course of her career, Sotomayor has "ruled for the government in 83% of immigration cases, in 92% of criminal cases." Sen. Amy Klobuchar (D-Minn.), a former prosecutor, used a portion of her Q&A with Sotomayor to highlight and praise instances in which Sotomayor was willing to excuse police officers who violated the Fourth Amendment. Democrats on the Senate Judiciary Committee also brought in law enforcement officials to testify in support of Sotomayor, including former Manhattan District Attorney Henry Morgenthau, former FBI Director Louis Freeh, and a representative from the Fraternal Order of Police. Republican members didn't call a single witness to critique Sotomayor's record on crime from the right. No wonder some criminal defense attorneys are worried.

One person neither party asked to testify is Jeffrey Deskovic, who was convicted at age 17 of a rape and murder he didn't commit. In 2000, Sotomayor and another judge on the 2nd Circuit Court of Appeals issued a curt, two-page ruling that refused to even consider Deskovic's innocence claim because his attorney filed four days late (the attorney says he was given bad information by a court clerk). "We have considered all of petitioner-appellant’s remaining arguments and find them to be without merit," the opinion read. Deskovic, who had already served 10 years, went on to serve another six before DNA testing led police to the actual killer. In a moving essay earlier this month, Descovic asked to be heard.

I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

Last month, Vice President Biden told a gathering of law enforcement organizations that Sotomayor "has got your back," a startlingly inappropriate (even for Biden) assurance about a potential Supreme Court justice. Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers.

But Biden isn't the only one to share that assessment. Sotomayor's confirmation has been endorsed by eight major law enforcement groups. The L.A. Times reported last month that according to former colleagues, Sotomayor's time as a "zealous prosecutor" made her into "something of a law-and-order judge, especially when it comes to police searches and the use of evidence." New York criminal defense lawyer Gerald Lefcourt said Sotomayor "always seemed to be leaning toward the government," adding that she was "very police-like. Dismissive of what the defendant had to say about anything." Slate's Emily Bazelon also reported on one extraordinary case in which Sotomayor was able to convince a more conservative 2nd Circuit judge to join her in overturning a jury verdict against an off-duty police officer accused of threatening and assaulting a truck driver, on grounds that even off-duty cops have broad powers to make arrests.

If a Republican nominee had such a criminal justice track record, leftist advocacy groups would probably be up in arms—or at least concerned. And rightly so. But even criminal justice groups have been conspicuously quiet. The American Civil Liberties Union did publish a thorough review of Sotomayor's judicial record, but has maintained a sort of passive support for her nomination. Executive Director Anthony Romero said that although "the ACLU does not officially endorse or oppose US Supreme Court candidates, I have never been personally prouder of any appointment." Romero must have a short memory. The ACLU explicitly opposed Samuel Alito in 2006, and was publicly critical of John Roberts in 2005.

This is all the more troubling given the critical role Sotomayor will likely play on key criminal justice cases during her likely tenure. In the last term alone, there were six crime cases in which the defense position won on a 5-4 vote, with departing Justice David Souter casting a vote with the majority. In one of those cases, Melendez-Diaz v. Massachusetts, the Court held that the Sixth Amendment's Confrontation Clause gives criminal defendants the right to cross-examine any forensic expert whose work is submitted as evidence, a particularly important decision given a damning report on the reliability of forensic science issued earlier this year by the National Academic of Sciences. The decision has already sent shockwaves through the criminal justice system.

But just before ending its most recent term, the Court agreed to hear a case from Virginia (PDF) that raises similar issues regarding DNA testing. This has led some Court watchers to speculate that the minority in Melendez-Diaz sees Sotomayor as a potential ally who may join them to limit the scope of—or even overturn—last term's ruling. Sen. Klobuchar did ask Sotomayor about Melendez-Diaz, but only to express her disappointment with the ruling and her hope that the Court, presumably with Sotomayor's help, will overturn it. Sotomayor gave a typical confirmaiton hearing answer, acknowleding Klobuchar's concerns, stating that Melendez-Diaz is now established law, but ultimately refraining from speculating on how or whether she might limit its impact.

The New York Times reported in January that the Court is inching ever closer to eliminating or rendering impotent the Exclusionary Rule, which bars evidence obtained through illegal searches from being admitted at trial. Chief Justice John Roberts, the paper explained, is a longtime opponent of the rule, having led a campaign to repeal it as a young attorney in the Reagan administration. Replacing Souter, a fairly reliable defender of the Exclusionary Rule, with a former prosecutor like Sotomayor will likely at least narrow the rule’s application. Wall Street Journal reporters Jess Bravin and Nathan Koppel came to a similar conclusion last month, writing that while Sotomayor "stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice."

Content-free as they were, last week’s hearings were a tidy composite of the national debate over criminal justice issues. Which is to say that there really isn't any such debate. By conventional wisdom, defendants’ rights have traditionally been a concern only of the left. But you'd never know that by observing national politics. Criminal justice activists are fond of saying that Republicans are evil, but Democrats are spineless. That's not entirely accurate. Democrats such as Biden have been plenty active in dismantling constitutional protections against police power. Some of today's most draconian federal crime statutes were authored by Democrats.

Even as DNA testing has exposed serious flaws in a process once believed to be mostly (or at least tolerably) just, politics still really only affords one acceptible position on crime: We need to get tougher on it.

It's possible that worries over Sotomayor’s tough-on-crime jurisprudence are misplaced. Perhaps thus far in her career, her written opinions were bound by existing case law and procedural rules, and that as a precedent-setting Supreme Court justice she'll prove to be a staunch defender of the Exclusionary Rule and the Confrontation Clause, and her sensitivity to innocence claims will be sharpened by cases like Jeffrey Deskovic's.

It's possible. The problem is that we really have no idea. Because no one bothered to ask."


The column can be found at:

http://www.reason.com/news/show/134889.html

Harold Levy...hlevy15@gmail.com;

Monday, July 20, 2009

A POWERFUL, UNEQUIVOCAL DEFENCE OF MELENDEZ-DIAZ: THANK YOU MATT KAISER; IT'S ABOUT TIME;



"SECOND, CROSS EXAMINING LAB TECHNICIANS MATTERS. IT IS NOT A “MERE TECHNICALITY.” THESE PEOPLE MAKE MISTAKES. WHEN THEY MAKE MISTAKES, PEOPLE GO TO PRISON FOR THE WRONG THING. THEIR LIVES ARE DESTROYED; THEIR CHILDREN GROW UP WITHOUT A PARENT. HAVING A CHECK ON WHAT THE LAB TECHS DO WILL MEAN THAT THEY SCREW UP LESS, AND THAT FEWER INNOCENT PEOPLE GO TO PRISON. BOTH ARE REALLY GOOD THINGS TO HAVE IN A CRIMINAL JUSTICE SYSTEM."

MATT KAISER; THE KAISER BLOG;
PHOTO; JUSTICE ANTONIN SCALIA;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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I have found it difficult to understand why American defence lawyers - and their organizations - have not come up with a more vigorous defence of the Melendez-Decision as a necessary weapon for avoiding miscarriages of justice caused because of forensic breakdowns;

That's why I was pleased to stumble on Matt Kaiser's Blog - published earlier today - called "Why Melendez-Diaz is good policy."

"In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing," Kaiser begins;

"This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people," he continues.

Be sure to point if you cross a lab tech:
I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.

One writer argues that Melendez-Diaz is a bad idea because,

The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.

I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.

First, the rumors of the death of the drug prosecution are greatly exaggerated. For better or worse. criminal defendants, and criminal defense lawyers, do not behave like union members being forced to work under an unfair contract. Criminal defendants do not, and generally will not, coordinate a systematic strategy of refusing to plead so that they can overwhelm the state.

Sure, there will be some lawyers who insist on taking cases to trial where prosecutors are unwilling to offer a reasonable plea (though I can see a pretty easy fix for that). Defense lawyers will be watching closely how the government in each jurisdiction handles getting their witnesses to court.

I practice in federal court. Federal judges are notorious for bending the court’s schedule to accommodate government witnesses. And if the prevailing judicial winds are that they think Melendez-Diaz is a technicality to be worked around, they’ll be more willing to be accommodating. Of course, they won’t be endlessly flexible, and it will vary significantly by judge.

In most jurisdictions, I don’t think there will be a great rush of defendant’s to trial, but, rather, a great pressure on prosecutors to cut much better deals to make taking a plea worth not betting that the state can’t call it’s witnesses.

So, to summarize point one – the sky is not falling.

Second, cross examining lab technicians matters. It is not a “mere technicality.” These people make mistakes. When they make mistakes, people go to prison for the wrong thing. Their lives are destroyed; their children grow up without a parent. Having a check on what the lab techs do will mean that they screw up less, and that fewer innocent people go to prison. Both are really good things to have in a criminal justice system.

That said, maybe I’m wrong. So, what I encourage any reader to do is to email me any instance of a lab tech being crossed well. Any error being pointed out, any failure to maintain a chain of custody, or do the testing properly.

Melendez-Diaz is going to mean a lot more lab techs get crossed a lot more aggressively. If something’s working, please share it.


Matt Kaiser's Blog - the Kaiser Blog - can be found at:

http://thekaiserlawfirm.com/blog/

Harold Levy...hlevy16@gmail.com;