Sunday, September 24, 2017

U.S. Supreme Court Melendez-Diaz case (Massachusetts): Fascinating Slate post headed 'Black Robes and Crystal Balls' shows how some U.S. Supreme Court justices have been tempted to predict the future - and wonders how often do they get it right. One of their examples is relevant to this Blog..."In 2009’s Melendez-Diaz v. Massachusetts, the Supreme Court ruled that forensic analysts who create laboratory reports for criminal trials must testify if called by the defense. Scalia’s majority opinion reasoned that these reports are “testimonial” evidence and that their authors are thus “witnesses” under the Confrontation Clause. In a dissent, a deeply irked Kennedy wrote that such analysts will “now bear a crushing burden” and would often be unavailable to testify. As a result, myriad “guilty defendant[s]” will “[go] free on a technicality.” (Did Kennedy get it right? (HL);




STORY: "Supreme Court justices like to predict the future. They aren’t very good at it," by Mark Joseph Stern, published by Slate on September 19, 2017.
 
PUBLISHER'S NOTE: This clever post by Slate writer Mark Phillip Stern examines the temptation of U.S. Supreme Court justices to "play oracle" - and the accuracy of their prophesies. Among these prognostications is Justice Anthony Kennedy's prediction that requiring forensic analysts to testify at criminal trials  as in the decisive Melendez-Diaz  case will let innumerable guilty people off the hook.  Right or wrong? Read on! (P.S. The other examples in the  post - found at the link below - may not deal with forensics but are certainly well worth the read. HL);

Harold Levy; Publisher; The Charles Smith Blog.
 



GIST: "The justices of the U.S. Supreme Court are given lifetime appointments to decide paramount questions of law that affect almost every aspect of American life. It is therefore unsurprising that from time to time these extraordinarily powerful secular jurists attempt to play oracle. Justices prefer to lob prophecies when they are writing in dissent—usually, though not always, to forecast some calamitous consequences that will inevitably flow from the majority’s ruling. But how often do these supreme prognosticators actually get it right? Here’s a roundup of the justices’ most famous predictions and a status update on whether they have yet come to pass.........In 2009’s Melendez-Diaz v. Massachusetts, the Supreme Court ruled that forensic analysts who create laboratory reports for criminal trials must testify if called by the defense. Scalia’s majority opinion reasoned that these reports are “testimonial” evidence and that their authors are thus “witnesses” under the Confrontation Clause. In a dissent, a deeply irked Kennedy wrote that such analysts will “now bear a crushing burden” and would often be unavailable to testify. As a result, myriad “guilty defendant[s]” will “[go] free on a technicality.” History has, in this instance, smiled kindly upon Scalia. In September, SCOTUSblog’s Andrew Hamm reviewed two empirical studies evaluating the real-world effects of Melendez-Diaz. One found that the impact of the decision on lab analysts was “none to minimal.” The ruling did trigger a small increase in subpoenas, but this “initial impact … subsequently waned.” The other study found that many defendants waive their right to make analysts testify and that forensic labs “have not found the burden intolerable.” Scalia had posited in his opinion that “the sky will not fall after today’s decision”; he appears to have been correct, Kennedy’s dire warnings notwithstanding. In fact, intervening events have only proved the wisdom of his judgment. Recent crime lab scandals have revealed that tens of thousands of people have been sentenced to prison on the basis of falsified forensic reports. In Massachusetts, the misdeeds of analysts Annie Dookhan and Sonja Farak alone resulted in as many as 42,000 wrongful convictions. Defendants’ constitutional right to interrogate such analysts at trial to evaluate their candor and competence has never been more vital. "

The entire post can be found at:
http://www.slate.com/articles/technology/future_tense/2017/09/supreme_court_justices_try_to_predict_the_future.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Saturday, September 23, 2017

Eric Kelly and Ralph Lee: New Jersey; False confessions: Star-Ledger sends powerful message to state's prosecutors: Agree to let these wrongfully convicted men out of prison; Star-Leger also sends a message to the state Attorney General: Step in and take over this reinvestigation; Editorial is headed: 'Passaic prosecutors made a mess of this murder case. Time for the AG to take over.' ..." Both men were convicted on false confessions, their lawyers say. Kelley, who suffered brain damage in a car accident, likely folded first; then detectives may have used what he said to lean on the second suspect, Lee. Their tales had glaring discrepancies. The blood and body were found in the back of the store, yet the men said the killing happened at the front. Police never recovered the knife used or the clothes they wore in a blood-soaked scene. They said it was a blitz attack, but a witness said a man in a green hat was browsing, pretending to be a customer. This isn't as unusual as it seems: As many as 1 out of 4 people exonerated by DNA testing falsely confessed, according to the Innocence Project. New Jersey should consider creating a permanent conviction review unit for situations like this, to separate reinvestigations from the players involved in original prosecutions, and ensure objectivity."


PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects    (especially juveniles)  are to widely used interrogation methods  such as  the notorious ‘Reid Technique.’

EDITORIAL:"Passaic prosecutors made a mess of this murder case: Time for the AG to take over," published by The Star-Ledger on September 22, 2017.

PHOTO CAPTION: "New DNA evidence prompts new trials for two men who have been jailed decades for murder. Eric Kelley and Ralph Lee say they were pressured to sign false confessions two decades ago."


GIST:  "The Innocence Project found stunning new DNA evidence from the scene of a 1993 murder in Paterson, exonerating two men who have served decades in state prison, and implicating an ex-con who is still on the loose. You might think that prosecutors in Paterson would be moved. But instead, they are fighting the release of the two men, even after a judge found that this new evidence "would probably change a jury's verdict if a new trial was granted," and called a detective's refusal to reconsider it "the best example of tunnel vision that one can imagine." For now, the wrongfully convicted men languish behind bars and the likely culprit - a man whose rap sheet includes an eerily similar knifepoint attack - remains free. And it only gets more outrageous. Because prosecutors refuse to even question this convicted felon whose DNA was discovered. They wouldn't talk to Eric Dixon to find out why his hat was found just feet from the body, investigate his other crimes or notify the victim's family. It was only thanks to the Innocence Project and Princeton-based Centurion ministries that a judge ordered the prosecutor's office to finally obtain Dixon's record from local police. That's how we learned how similar his prior knifepoint robbery in Paterson was to this crime, the stabbing of a young man minding his uncle's video store. Yet not only is this prosecutor's office, headed by Camelia Valdes, refusing to investigate Dixon, it's actually protecting him by making ludicrous claims in court - saying unequivocally in a legal brief that he did not commit this murder, without ever having spoken to him. That's not just tunnel vision. It's malpractice. It only makes it harder to ever bring the true killer to justice. Time for the state Attorney General, who has line authority over county prosecutors, to step in and take over this reinvestigation. The state Office of Attorney Ethics should also consider sanctions against Passaic prosecutors, who appear to be violating their oath here. A prosecutor's job is to seek justice, not just defend a conviction at all costs. And in the meantime, the least prosecutors can do is agree to let the wrongfully convicted men, Eric Kelley and Ralph Lee, out of prison. When Byron Halsey was cleared by new DNA in Union County, prosecutors let him out with reasonable conditions. Kelley and Lee have had to wait three years since this DNA discovery, on top of decades already served. Lee's health has deteriorated; he wasn't even well enough to come to court. Why is he still wallowing in prison instead of home with his family? Both men were convicted on false confessions, their lawyers say. Kelley, who suffered brain damage in a car accident, likely folded first; then detectives may have used what he said to lean on the second suspect, Lee. Their tales had glaring discrepancies. The blood and body were found in the back of the store, yet the men said the killing happened at the front. Police never recovered the knife used or the clothes they wore in a blood-soaked scene. They said it was a blitz attack, but a witness said a man in a green hat was browsing, pretending to be a customer. This isn't as unusual as it seems: As many as 1 out of 4 people exonerated by DNA testing falsely confessed, according to the Innocence Project. New Jersey should consider creating a permanent conviction review unit for situations like this, to separate reinvestigations from the players involved in original prosecutions, and ensure objectivity. When a young detective on this original case, Richard Reyes - still on the job - was recently asked in court if he would have investigated Dixon at the time if he knew his DNA matched the hat, he refused to say yes. Now the prosecutor's office is doubling down on that willful blindness. How is that justice for the wrongfully imprisoned, the true killer or the victim?"

The entire editorial can be found at:
http://www.nj.com/opinion/index.ssf/2017/09/passaic_prosecutors_made_a_mess_of_this_murder_cas.html

Clicking on the above link takes the reader not only to the editorial but to a link to a 'Special Report' headed: "They confessed: Will DNA free them?" Important read. HL.

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.







Austin Crime Lab. Texas. Austin Monitor: Austin’s crime lab failure points to a national crisis in the USA..."Local officials have stepped forward to address the problems with the Austin lab – committing $10 million and counting to the project by the end of 2018. But these measures may not be enough. Although DNA evidence seems objective, in reality, it is subject to the same biases that plague the rest of the U.S. criminal justice system. And getting to the root of these issues will require a national response."..."The forensics science community is working on giving the auditors more power, but, until then, the labs are only monitored using the informal guidelines in place. Until that happens, DNA evidence is far less objective than most people realize. A summary of the Austin crime lab audit from the Capital Area Private Defender Service emphasizes just how unreliable it can be. The report notes that labs are often working with incomplete, low-quality DNA from “grimy, chaotic crime scenes.” And then analysts must sort out who the DNA belongs to from several unknown individuals. The procedures the Austin lab was using led analysts to lean towards suspects already identified by police, instead of taking into account all possible suspects the DNA could point to. While this type of confirmation bias is particularly disturbing, analyzing DNA is often more subjective than it seems. This can be a particular problem when it comes to juries, who often have the impression that DNA evidence is infallible."



 QUOTE OF THE DAY: “When you mix police work and science, they don’t always speak the same language.”

EMILY LEBLANC.

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

STORY: "Austin’s crime lab failure points to national crisis," bu Cate Malek, published by The Austin Monitor on September 19, 2017. (Thanks to CSI DDS  (Forensics in Focus) for bringing this story to our attention);

GIST: "The latest audit of the Austin Police Department’s crime lab would read as a comedy of errors, if the stakes weren’t so high. Some concerns in the report released last fall are simpler to fix – equipment failures or cross-contaminating evidence. Reading further though, the lab had flaws in many of its most fundamental operations. It was not only using scientifically unsound testing procedures, but its staff was often not even following those low standards. As disturbing as these revelations are, the Austin lab is not alone. Similar scandals have occurred in labs in major cities across the country, including neighboring Houston, as well as St. Paul, Detroit, New York and Philadelphia. In 2015, the FBI lab in Washington, D.C., was shut down after it admitted “that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence” over a period of 20 years, according to the Washington Post. Those trials included 32 death sentences. Local officials have stepped forward to address the problems with the Austin lab – committing $10 million and counting to the project by the end of 2018. But these measures may not be enough. Although DNA evidence seems objective, in reality, it is subject to the same biases that plague the rest of the U.S. criminal justice system. And getting to the root of these issues will require a national response. Travis County Judge Sarah Eckhardt has emphasized the need for “eyes on the system” operating underneath the belief that “sunshine is the best disinfectant.” In doing so, Eckhardt is pointing out one of the fundamental problems Austin will have going forward. While the city has taken on the responsibility to turn the lab around, local officials don’t have the scientific background to monitor forensic analysis. “When you mix police work and science, they don’t always speak the same language,” said Emily LeBlanc, a leading advocate for survivors of sexual assault in Austin who has been closely involved in reforming the DNA lab. In fact, the auditing agencies designated to watch the lab in the past missed the warning signs for almost a decade. Before 2016, the Austin lab had been passing audits with no problems. It was not until lab staff members defended their use of unsound testing procedures that the Texas Forensic Science Commission was alerted to the problems there and instigated a new audit. At their meeting on Aug. 18 of this year, members of the commission tried to understand how the Austin lab could have been passing its regular audits. Pamela Sale, vice president of ANAB, the national accrediting body that had been monitoring the lab, explained that the auditors had done nothing wrong during their past reviews of the lab’s work. “I know it’s going to sound shocking when I say it,” Sale said at the meeting. “But there were no non-conformities with our (auditing) process.” She went on to clarify that the auditing process could be improved, but that one of the issues is that there is no commonly agreed-upon set of standards that forensics labs around the country have to follow. Instead, there are informal guidelines that labs can choose to follow or not. Mike Coble, a DNA expert, clarified further. Coble works in the Applied Genetics Group at the National Institute of Standards and Technology, which is responsible for setting national forensics testing guidelines and training crime labs to follow them. He said that while most of the labs around the country attempt to follow best practices, auditors don’t actually monitor their testing procedures. The only requirement auditors check on is whether the lab has a testing protocol. “The protocol could be excerpts from ‘Harry Potter,’” Coble said. Beyond that, the auditors “don’t have the teeth” to say whether the testing protocol is actually effective. The forensics science community is working on giving the auditors more power, but, until then, the labs are only monitored using the informal guidelines in place. Until that happens, DNA evidence is far less objective than most people realize. A summary of the Austin crime lab audit from the Capital Area Private Defender Service emphasizes just how unreliable it can be. The report notes that labs are often working with incomplete, low-quality DNA from “grimy, chaotic crime scenes.” And then analysts must sort out who the DNA belongs to from several unknown individuals.  The procedures the Austin lab was using led analysts to lean towards suspects already identified by police, instead of taking into account all possible suspects the DNA could point to. While this type of confirmation bias is particularly disturbing, analyzing DNA is often more subjective than it seems. This can be a particular problem when it comes to juries, who often have the impression that DNA evidence is infallible. “It’s extremely important to get (DNA evidence) right because people do watch too much ‘CSI’ and put a lot on that (evidence),” Eckhardt said. “If it’s not scientifically defensible that’s a big problem.” This is the second part in a series about Austin’s DNA Lab. Part One in the series is online here.

The entire story can be found at:

https://www.austinmonitor.com/stories/2017/09/austins-crime-lab-failure-points-national-crisis/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Friday, September 22, 2017

Brendan Dassey: Illlinois; False confessions; 'Making a murderer.'...Brendan Dassey faces crucial hearing Tuesday before federal appeals court, reports USA Today Network; Reporter Andy Thompson; September 22, 2017..."The key issue is whether detectives coerced a confession from Dassey, who was 16 at the time of Halbach’s murder, or if they acted within the scope of proper police procedure."



"Brendan Dassey’s lawyers have racked-up some monumental victories in the past 13 months. They laid the groundwork for a federal judge to overturn Dassey’s conviction in the 2005 murder of Teresa Halbach — a ruling that was later affirmed by a federal appeals panel. But there have been setbacks as well. Dassey’s attempts to be freed from prison on conditional bond were rebuffed and, more importantly, the full U.S. Court of Appeals for the Seventh Circuit in Chicago decided last month to re-hear the case, which was prominently featured in the Netflix docu-series “Making a Murderer.” Oral arguments will be held on Tuesday. The court’s ruling — which is a virtual lock to be appealed to the U.S. Supreme Court — could ultimately determine whether Dassey will be re-tried, released from prison, or serve out his life sentence. The key issue is whether detectives coerced a confession from Dassey, who was 16 at the time of Halbach’s murder, or if they acted within the scope of proper police procedure.  “The full court could go either way,” said former Wisconsin Supreme Court Justice Janine Geske. On Aug. 12, 2016, U.S. Magistrate Judge William Duffin, who is based in Milwaukee, overturned Dassey’s conviction, ruling that investigators made “repeated false promises” that rendered his confession to the crime involuntary.  The Wisconsin Department of Justice appealed, and, on June 22, a three-judge panel at the Seventh Circuit affirmed Duffin’s ruling by a 2-1 margin.  But that didn't settle the issue. In early August, the Seventh Circuit granted a request by the state justice department to have the entire panel of judges rehear the case. It is known as an “en banc” review."

The entire story can be found at the link below:

http://www.postcrescent.com/story/news/2017/09/22/brendan-dassey-faces-crucial-hearing-tuesday-before-federal-appeals-court/676870001/?for-guid=b7fd3c24-69bc-e511-8eff-90b11c341ce0

False confessions: Nagee Green: New York: On-going trial: Bulletin: Cornell homicide retrial: prosecutor tells jury to connect the dots, defense says dots don't connect..."During opening statements Wednesday though, defense attorney Joseph Joch said there is no proof that Green wielded the knife that stabbed Nazaire. "We wouldn't be here if they (police investigators) hadn't spent three hours breaking Nagee down to the point where they got him to accept their theory that he must have inserted the knife into Anthony Nazaire ..." Joch pointed to several of the same elements from the last trial which likely lead to the jury deadlock of 10-2. He told jurors that the knife found at the crime scene did not have Nazaire's blood on it and pointed to the fact that nobody saw the stabbing happen. He also said that video evidence produced by the prosecution during the last trial does not show Green fighting with Nazaire."... The Ithaca Voice reports: Reporter Joenen Almendarez; September 21, 2017;

 
PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number  of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects    (especially juveniles)  are to widely used interrogation methods  such as  the notorious ‘Reid Technique.’



Harold Levy: Publisher: The Charles Smith Blog.



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

"After days of jury selection, opening statements for the Cornell homicide case started yesterday with a prosecutor calling for the jury to connect the dots for a conviction and the defense saying that there is no evidence that the defendant killed anyone. Nagee Green is on trial a second time after a jury was deadlocked over a murder charge against him in June. Green is accused of fatally stabbing Anthony Nazaire in the chest during a street brawl that broke out after a party at Cornell University on Aug. 28, 2016. Police arrived at the scene within minutes but Nazaire, an Ithaca College student from Brooklyn, died at the scene. Despite the deadlock on the second-degree murder charge, Green was convicted of first-degree assault for stabbing Rahiem Williams, another Ithaca College student involved in the brawl, multiple times in the back.  (Photo caption): Defense attorney Joseph Joch says there is no evidence to prove that Nagee Green killed Anthony Nazaire on Aug 28, 2016 during a street brawl at Cornell University.)    During opening statements Wednesday though, defense attorney Joseph Joch said there is no proof that Green wielded the knife that stabbed Nazaire. "We wouldn't be here if they (police investigators) hadn't spent three hours breaking Nagee down to the point where they got him to accept their theory that he must have inserted the knife into Anthony Nazaire ..." Joch pointed to several of the same elements from the last trial which likely lead to the jury deadlock of 10-2. He told jurors that the knife found at the crime scene did not have Nazaire's blood on it and pointed to the fact that nobody saw the stabbing happen. He also said that video evidence produced by the prosecution during the last trial does not show Green fighting with Nazaire. But prosecutor Eliza Filipowski said the video evidence — gathered primarily through short social media clips — is crucial to the case. One video clip shows Green wielding a knife as he swings it toward someone else during the fight. Filipowski points out that Green can be heard saying, "I kill out here," as he swings the knife, though the Joch argues that the audio in the video is too distorted to understand. She also described a second video clip where Green can be seen running toward Nazaire and Williams. The trial started again Thursday morning."
https://ithacavoice.com/2017/09/cornell-homicide-retrial-prosecutor-tells-jury-connect-dots-defense-says-dots-dont-connect/
  
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.




False Confessions (4): Eric Kelley; Ralph Lee: Major Development: New Jersey court vacates 1996 murder convictions based on DNA identifying another suspect...Innocence Project; Centurion Ministries..."Lawyers for Kelley and Lee presented witnesses at the earlier hearing who testified about the false confessions, a leading cause of wrongful convictions, contributing to more than 25 percent of the 351 DNA exonerations nationwide. A forensic psychologist evaluated Kelley and determined that he is “more suggestible than approximately 98 percent of the normal population,” making him vulnerable for making a false confession during custodial interrogation. A former detective who now specializes in police interrogations identified faults in the manner in which the men were questioned and pointed out discrepancies, contradictions and the lack of corroboration in the mens’ statements. In reversing the convictions today, the court said that “this is probably one of the best examples of tunnel vision one could imagine.” The court also addressed the false confessions, noting “During the trials and this motion, the State has relied heavily on the statements given by the defendants when they were initially arrested. However, history has shown many instances where false confessions are given and DNA has proven the defendant or defendants not guilty notwithstanding a confession.”


PUBLISHER’S NOTE: This Blog is interested in false confessions because of the disturbing number  of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects    (especially juveniles)  are to widely used interviewing methods  such as  the notorious ‘Reid Technique.’

Harold Levy: Publisher: The Charles Smith Blog.

----------------------------------------------
STORY: "New Jersey Court Vacates 1996 Murder Convictions Based on DNA Identifying Another Suspect, published by The Innocence Project on September 15, 2017.

GIST: Today, a New Jersey Superior Court Judge vacated the 1996 felony murder and robbery convictions of Eric Kelley and Ralph Lee based on DNA evidence identifying another suspect.  It is now up to prosecutors to decide whether they will dismiss charges or retry the case. “With such compelling DNA evidence demonstrating Mr. Kelley and Mr. Lee’s innocence and pointing to the true assailant most prosecutors would have moved to overturn these convictions long ago,” said Vanessa Potkin, Post-Conviction Litigation Director at the Innocence Project, which is affiliated with Cardozo School of Law.  “We are grateful for the court’s decision, which came after a year of hearing new evidence and argument and careful deliberation.” Kelley, represented by the Innocence Project, and Lee, represented by Centurion Ministries, were convicted of the 1993 murder of Tito Merino based largely on contradictory statements they made to police after the police took them into custody. At the Paterson detective bureau, the two were interrogated separately for several hours. Kelley, who suffers from significant cognitive impairments because of a brain injury from a car accident and has difficulties processing information, was interrogated first and allegedly admitted to the crime. Detectives admitted that they fed the information supplied by Kelley when interrogating Lee. The interrogations were not recorded and there are no notes of what occurred. The only evidence of the confessions are typewritten statements officers prepared that were signed by Kelley and Lee. Kelley allegedly told police where the knife used in the murder was hidden and where stolen property was fenced. However, the police were not able to corroborate the claims, and the purported confessions were contradicted by the crime scene evidence. Prior to their arrests, police were searching for one suspect in the murder of Merino, who was stabbed to death during the robbery of the Paterson video store where he worked. A green and purple plaid baseball hat that did not belong to anyone in the store and was not present prior to the murder was recovered near the victim’s body. Police submitted it for DNA testing believing it could help identify the killer, but DNA testing wasn’t as advanced then and the testing was inconclusive. The court ordered retesting of the hat in October 2010 over the prosecutor’s opposition. Male DNA was identified, excluding Kelley and Lee. The profile was entered into the FBI’s DNA database of convicted felons and matched to a man who matched to the age and physical description of the person a witness observed in the store around the time of the murder. Just three months prior to the crime, this man had been released from prison after serving three years for a similar knifepoint robbery of a nearby store. Lawyers for Kelley and Lee presented witnesses at the earlier hearing who testified about the false confessions, a leading cause of wrongful convictions, contributing to more than 25 percent of the 351 DNA exonerations nationwide.   A forensic psychologist evaluated Kelley and determined that he is “more suggestible than approximately 98 percent of the normal population,” making him vulnerable for making a false confession during custodial interrogation. A former detective who now specializes in police interrogations identified faults in the manner in which the men were questioned and pointed out discrepancies, contradictions and the lack of corroboration in the mens’ statements. In reversing the convictions today, the court said that “this is probably one of the best examples of tunnel vision one could imagine.”  The court also addressed the false confessions, noting “During the trials and this motion, the State has relied heavily on the statements given by the defendants when they were initially arrested.  However, history has shown many instances where false confessions are given and DNA has proven the defendant or defendants not guilty notwithstanding a confession.” Reacting to the decision, Potkin added, “We now know that the primary evidence used to convict Mr. Kelley and Mr. Lee is unreliable and objective scientific evidence points to their innocence.  We hope that the prosecutor’s office will move quickly to dismiss the charges and finally initiate an investigation into the person whose DNA was found at the crime scene.” Mr. Kelley remains incarcerated, but the Innocence Project will be making a bail application on his behalf in the coming days.  Meanwhile, the prosecution must now decide whether to dismiss the indictment or retry the case."



The entire story can be found at: 
https://www.innocenceproject.org/new-jersey-court-vacates-1996-murder-convictions-based-dna-identifying-another-suspect/?utm_source=Main+IP+Email+List&utm_campaign=de57688261-EMAIL_CAMPAIGN_2017_09_14_TonyWrightSite&utm_medium=email&utm_term=0_016cb74fd6-de57688261-350264629

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Thursday, September 21, 2017

Rodney Reed; Texas: Videotaped TV interview on "Death Row Stories" could make the difference between life and death for inmate who has already spent nearly two decades on Texas’ death row for the 1996 murder of Stacey Stites, which he insists he didn’t commit, CNN reports..."A Texas court has allowed Reed and his attorneys to present their case before a judge next month. They plan to argue that a videotaped interview raises questions about the whereabouts of Stites’ then-fiancé, Jimmy Fennell, the night before her murder. Police identified Fennell — a former police officer who is currently in prison for rape — as a suspect during their investigation into Stites’ killing, but he was never charged. “If the facts that are alleged are proven, and in this case it’s essentially on video, then Mr. Reed is entitled to a new trial,” said Bryce Benjet, an Innocence Project attorney who is representing Reed. Reed and his attorneys have argued that forensic evidence linking Reed to the crime was the product of a hidden relationship between Reed and Stites."


STORY: "TV interview could help death row inmate," by CNN Wire, published by WGNO ABC posted by CNN on September 12, 2017.


GIST: "Rodney Reed has spent nearly two decades on Texas’ death row for the 1996 murder of Stacey Stites, which he insists he didn’t commit. Now, he may get a chance at a new trial. A Texas court has allowed Reed and his attorneys to present their case before a judge next month. They plan to argue that a videotaped interview raises questions about the whereabouts of Stites’ then-fiancé, Jimmy Fennell, the night before her murder. Police identified Fennell — a former police officer who is currently in prison for rape — as a suspect during their investigation into Stites’ killing, but he was never charged. “If the facts that are alleged are proven, and in this case it’s essentially on video, then Mr. Reed is entitled to a new trial,” said Bryce Benjet, an Innocence Project attorney who is representing Reed. Reed and his attorneys have argued that forensic evidence linking Reed to the crime was the product of a hidden relationship between Reed and Stites. During the investigation of the murder, Reed told police he had never met Stites, a statement he now says he made out of fear he’d be treated unfairly because Stites was engaged to a police officer. Fennell testified during Reed’s 1998 trial that he and Stites were home together at the apartment they shared the night of April 22, 1996. Fennell testified that he stayed up to watch TV when Stites went to sleep around 9 p.m. When Stites left the next morning for her 3:30 a.m. shift, Fennell said he was asleep. But in an interview with “Death Row Stories” videotaped last year, Fennell’s friend and Bastrop County Sheriff’s investigator Curtis Davis offered a different story. Davis said that Fennell told him that he had been out drinking with some fellow officers the night of the 22nd and came home late, likely around 10 or 11 p.m. after Stites had gone to bed. According to Davis, Fennell told him these details on April 23, 1996, as they waited for word on Stites’ whereabouts. Police were searching for Stites after she failed to show up for work and the truck she had been driving had been discovered around 5 a.m. Her body was found later that day and a coroner determined she had been raped and strangled. A full transcript of Davis’ interview with “Death Row Stories” is below: “The statements that [Davis] made in the interview are the first I’ve ever heard of this account, and they’re sort of night and day from what Jimmy Fennell said had taken place,” Benjet told CNN. After Stites’ murder, Fennell moved to Georgetown, Texas, where he joined the local police force. But he eventually landed behind bars In 2008, Fennell pleaded guilty to charges of kidnapping and improper sexual activity with a person in custody, after a woman he detained when responding to a domestic dispute call accused him of rape. Fennell was sentenced to 10 years and is scheduled to be released in September 2018. Benjet said that the inconsistencies around Fennell’s whereabouts in the hours surrounding Stites’ murder must be considered within the context of what he called “substantial forensic evidence showing that the victim was killed hours before the state believed the crime took place and that the body had been moved, all of which is inconsistent with Mr. Reed’s guilt.” Reed’s legal team plans to submit that forensic evidence, along with the videotaped interview, at the writ of habeas corpus hearing scheduled to begin on October 10 in Bastrop County District Court. It could be the first step toward a new trial for Reed. It’s not the first time that questions have been raised around Reed’s 1998 murder conviction: just days before he was scheduled to die, a court stayed his execution in 2015 because of new witness testimony and forensic analysis. But it wasn’t enough to earn him a new trial. Reed’s execution date is stayed indefinitely pending the court’s ruling on the evidence."

The entire story can be found at:

http://wgno.com/2017/09/12/tv-interview-could-help-death-row-inmate/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Wednesday, September 20, 2017

Significant Development: Sonja Farak: Massachusetts: Bulletin: American Civil Liberties Union asks for dismissal of all drug cases affected by her misconduct...By Reporter Shira Schoenberg; Mass Live. September 20, 2017..."The ACLU's request to the Supreme Judicial Court comes after an SJC ruling in a separate case involving Hinton Drug Lab chemist Annie Dookhan, who pleaded guilty in 2013 to falsifying the results of drug tests. In that case, the Supreme Judicial Court did not allow for all cases touched by Dookhan to be automatically dismissed. But the court said prosecutors must review all 24,000 cases and determine which ones could be prosecuted again. Ultimately, 21,500 cases were dismissed due to the scandal. The ACLU, joined by the Committee for Public Counsel Services, Hampden County Lawyers for Justice and others, is now arguing that every case involving Farak should be dismissed. They argue, in a court motion, that because the attorney general's office did not disclose information relevant to the case about Farak's mental health history, that misconduct warrants the dismissal of all related cases. There are thousands of cases potentially affected. A Hampden Superior Court judge ruled in June that the "intentional and deceptive actions" of two assistant attorneys general "ensured that justice would certainly be delayed, if not outright denied, and in the process, they violated their oaths as assistant attorneys general and officers of the court." The ACLU says the Farak case is worse than the Dookhan case because of the prosecutorial misconduct. "It cannot be blamed on a sole 'bad apple,' because Farak's conduct was just the beginning," attorneys for the ACLU wrote. "Farak's misconduct was compounded by the (attorney general's office's) discovery violations because Assistant Attorney Generals intentionally suppressed evidence about Farak's drug abuse and deliberately deceived the Superior Court and defense lawyers."


 QUOTES OF THE DAY: "The ACLU says the Farak case is worse than the Dookhan case because of the prosecutorial misconduct. The organization wrote in its court brief that the Farak case "represents a complete collapse of the criminal justice system." "It cannot be blamed on a sole 'bad apple,' because Farak's conduct was just the beginning," attorneys for the ACLU wrote. "Farak's misconduct was compounded by the (attorney general's office's) discovery violations because Assistant Attorney Generals intentionally suppressed evidence about Farak's drug abuse and deliberately deceived the Superior Court and defense lawyers." "Every single case affected by Sonja Farak and the Amherst lab scandal should be dismissed -- and prosecutors should be held accountable for identifying and notifying defendants with potentially tainted convictions, both in this scandal and others," said David Hoose, president of Hampden County Lawyers for Justice, in a statement."

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"The American Civil Liberties Union of Massachusetts is asking the state's highest court to dismiss all cases tainted by the misconduct of former state drug lab chemist Sonja Farak. "Doing right by the victims of the drug lab scandal is critical to restoring the integrity of the criminal justice system and an important step toward addressing the criminalization of substance abuse," said Carol Rose, executive director of the ACLU of Massachusetts, in a statement. Farak was arrested in 2013 for stealing samples from the Amherst drug lab to feed her own addiction. She later pleaded guilty to evidence tampering and drug charges. The fallout from her case is ongoing. The ACLU's request to the Supreme Judicial Court comes after an SJC ruling in a separate case involving Hinton Drug Lab chemist Annie Dookhan, who pleaded guilty in 2013 to falsifying the results of drug tests. In that case, the Supreme Judicial Court did not allow for all cases touched by Dookhan to be automatically dismissed. But the court said prosecutors must review all 24,000 cases and determine which ones could be prosecuted again. Ultimately, 21,500 cases were dismissed due to the scandal. The ACLU, joined by the Committee for Public Counsel Services, Hampden County Lawyers for Justice and others, is now arguing that every case involving Farak should be dismissed. They argue, in a court motion, that because the attorney general's office did not disclose information relevant to the case about Farak's mental health history, that misconduct warrants the dismissal of all related cases. There are thousands of cases potentially affected. A Hampden Superior Court judge ruled in June that the "intentional and deceptive actions" of two assistant attorneys general "ensured that justice would certainly be delayed, if not outright denied, and in the process, they violated their oaths as assistant attorneys general and officers of the court." The ACLU says the Farak case is worse than the Dookhan case because of the prosecutorial misconduct. The organization wrote in its court brief that the Farak case "represents a complete collapse of the criminal justice system." "It cannot be blamed on a sole 'bad apple,' because Farak's conduct was just the beginning," attorneys for the ACLU wrote. "Farak's misconduct was compounded by the (attorney general's office's) discovery violations because Assistant Attorney Generals intentionally suppressed evidence about Farak's drug abuse and deliberately deceived the Superior Court and defense lawyers." "Every single case affected by Sonja Farak and the Amherst lab scandal should be dismissed -- and prosecutors should be held accountable for identifying and notifying defendants with potentially tainted convictions, both in this scandal and others," said David Hoose, president of Hampden County Lawyers for Justice, in a statement."
http://www.masslive.com/politics/index.ssf/2017/09/aclu_asks_for_dismissal_of_all.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Daniel Holtzclaw: Oklahoma; Controversial DNA analyst Elaine Taylor: A former police officer sentenced to 263 years in prison for murders; Allegations of flawed DNA and testimony; Alleged concealment of presence of male DNA which supporters say could back up the defence; Revelations of mishandling of evidence; A secret court hearing; And now Fox 25 digs deeper and deeper and reveals the city's discovery of 4000 deleted emails: (Much grist for our Blog. HL): Story is headed: "Oklahoma City finds 4,000 deleted emails connected to controversy of cop's conviction."..."The independent analysis indicated the presence of male DNA could back up the defense theory of secondary transfer of miniscule DNA samples. Holtzclaw’s supporters argue that male DNA and the small amount of female DNA that matched one of the victims could have come from mishandling of evidence by OCPD detectives."


PHOTO CAPTION: "Former OKC police officer sentenced to 263 years in prison to be served consecutively."

GIST: "The City of Oklahoma City has found thousands of emails it said were deleted from the account of a now retired police lab employee. The DNA analyst, Elaine Taylor, retired earlier this year and the city said it deleted all her emails when FOX 25 requested records pertaining to her work on the Daniel Holtzclaw case. Holtzclaw is serving a 263-year sentence after a jury convicted him on multiple charges connected to the rape and sexual assault of several women while he was an Oklahoma City Police Officer. In his appeal of that conviction, Holtzclaw has argued the DNA testing and testimony was flawed. The revelations about potential mishandling of evidence and testimony that was outside the bounds of science led to a two-day secret hearing in Oklahoma County District Court.The more than 4,000 pages of emails and attachments were released after a legal battle at the Court of Criminal Appeals. Attorneys representing Hotlzclaw asked for a court order to prevent the city from destroying any more records, citing the FOX 25 report about the last records release related to the case. The Attorney General’s office argued the court order was unnecessary because the city has now placed holds on all accounts and emails related to Holtzclaw’s case and had taken steps to recover the deleted emails. The new release of emails includes an exchange that began with the internal sharing of a FOX 25 report about the controversial billboard that was briefly installed in northeast Oklahoma City. “Please see the new article on Holtzclaw,” Captain Ron Bacy, the head of the department’s investigations bureau emailed to Taylor in November of 2016. “It raised a question.” The question raised was about undisclosed male DNA being present in Holtzclaw’s case. Taylor responded to Bacy with a copy of her lab report writing that “Gayland [Gieger, the lead prosecutor] never brought it up and neither did Scott [Adams, Holtclaw’s original defense attorney]. This is not new evidence it has always been in my report and is not new evidence. Is everyone in a tizzy? I was never asked about it and no one ever got upset because it was in his car.” Taylor referenced a DNA sample from the inside door handle of Holtzclaw’s patrol car that did contain an unknown male DNA sample. However, that is not the DNA that is a concern in Holtzclaw’s appeal. It was an independent scientist in Iowa that first noticed the glaring discrepancy. “During the analyst's testimony she said had no evidence of male DNA in them, but actually both of those samples did,” said Erica Fuchs, a biologist who was research the lab results in the Holtzclaw case. The testimony in question revolved around the DNA profiles found on the fly of Holtzclaw’s pants. “Right away I could see that both samples had a Y chromosome in them,” Fuchs told FOX 25, “So this told me that there was DNA from at least one male in both of the samples.” Testimony at trial indicated Holtzclaw was not a contributor to the DNA found in uniform pants. However, Fuchs and other DNA experts said the science showed that Holtzclaw could not be excluded as a contributor in any of the four samples taken from the fly of his pants. The independent analysis indicated the presence of male DNA could back up the defense theory of secondary transfer of miniscule DNA samples. Holtzclaw’s supporters argue that male DNA and the small amount of female DNA that matched one of the victims could have come from mishandling of evidence by OCPD detectives. An hour after Taylor sent her report, Bacy writes back “Don’t worry. Everything is fine.” Prior to that exchange, in August of 2016, Taylor sent herself an email that contained several scanned pages from a book about forensic DNA typing. The pages are from a chapter about the Y Chromosome and testing on the Y Chromosome. In May of 2017, the Attorney General’s office filed its first motion to discuss part of the case under seal. That motion would lead to the secret court hearing that FOX 25 has learned centered around issued related to DNA testing. In a previous records release from Oklahoma City FOX found an email dated May 9, 2017 sent from District Attorney David Prater to all of his prosecutors. “Please notify me immediately if you have a pending case wherein Elaine Taylor, OCPD DNA Lab employee, is endorsed as a witness” Prater wrote. The email chain would lead to exchanges that included Deputy Police Chief Johnny Kuhlman, who also testified before a judge and prosecutors on the first day of the secret hearing. The email over testing concerns included a warning that some prosecutors were unaware of the retesting DNA concerns and warned of the potential impacts it might have on their cases. The emails reveal several criminal cases have been marked for retesting since the identification of concerns with Taylor in the Holtzclaw case. Prater told FOX 25 at the time his request was only related to Taylor’s retirement and not to any concerns his office had about her work. Taylor had retired in February, three months prior to the email chain."

The entire story can be found at:

 http://okcfox.com/news/fox-25-investigates/oklahoma-city-finds-4000-deleted-emails-connected-to-controversy-of-cops-conviction
 
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Tuesday, September 19, 2017

George Powell 111: Texas; Was bad science (faulty forensic video analysis as to height) a factor in his conviction? Temple Daily Telegram (TDT) backgrounder for on-going hearing. (An Innocence Project of Texas case)...Reporter Deborah McKeon; September 16, 2017; "The store clerk told people the robber was about 5 feet, 6 inches tall, but she picked Powell out of a phone lineup. Powell is 6 feet, 3 inches tall..."The Bell County District Attorney’s office called on Michael Knox, a former Florida police officer, to explain the disparity in heights. Knox, using photogrammetry, estimated the robber was at least 6 feet, 1 inch tall. The Texas Forensic Science Commission in 2014 started investigating Knox’s determination of the suspect’s height and, in 2016, used Powell’s case to raised questions about the reliability of the video analysis performed by Knox."


PUBLISHER'S NOTE: This is an important case on  use of expert forensic video analysis to explain  disparity of heights in identification evidence. As the Temple Daily Telegram reports in a backgrounder published before the hearing began on Monday: "The executive director of the Innocence Project of Texas, Michael Ware, will be in the Bell County 27th District Court courtroom at Judge Jon Gauntt at 9 a.m. Monday to bring up information he strongly believes will clear his client. Ware is advocating for George R. Powell III, convicted in 2009 for aggravated robbery and sentenced to 28 years in prison. Powell’s been in prison for almost 10 years.........A man wearing sunglasses and a baseball cap in June 2008 went into a 7-Eleven in Killeen, pointed a gun and demanded money. Police suspected that man of similar robberies at other area stores, and a surveillance video captured the robbery. The video went on the evening news, and a phone tip led them to Powell. The store clerk told people the robber was about 5 feet, 6 inches tall, but she picked Powell out of a phone lineup. Powell is 6 feet, 3 inches tall. The arrest affidavit gave few additional details other than what the robber wore. He had on a white baseball cap and sunglasses and showed the clerk a silver handgun. In response to his demands, the clerk gave the man money from the register and cartons of cigarettes. The man left the store. The clerk immediately identified Powell as the man she said who robbed her at gunpoint, the affidavit said. She said that she was positive of her identification. The Bell County District Attorney’s office called on Michael Knox, a former Florida police officer, to explain the disparity in heights. Knox, using photogrammetry, estimated the robber was at least 6 feet, 1 inch tall. The Texas Forensic Science Commission in 2014 started investigating Knox’s determination of the suspect’s height and, in 2016, used Powell’s case to raised questions about the reliability of the video analysis performed by Knox. A woman who believed in Powell’s innocence persuaded Powell’s family to hire two men to examine the video. Their analysis said the robber was actually 5 feet, 7.5 inches — and that ruled out Powell. A new analyst, Grant Fredericks, taught video analysis at the FBI National Academy in Quantico. His examination said that the man in the video was between 5 feet, 5.8 inches and 5 feet, 9.4 inches. Knox re-examined the evidence, used new photos of the scene and changed his measurements to at least 5 feet, 10.4 inches. Ware said Thursday that Knox’s measurement was about six inches off. Another key element in Powell’s conviction was the testimony of Demetric Smith, who said that Powell, a fellow inmate at the Bell County Jail, admitted to robbing the 7-Eleven and other stores and gas stations. However, in April 2016, Smith recanted in a handwritten, sworn and notarized statement sent to Bell County District Attorney Henry Garza. He said that he lied on the stand to try and get a better plea deal on a burglary charge he faced." The entire backgrounder can be found at:
http://www.tdtnews.com/news/article_b437a7e4-9b35-11e7-acf6-5f09dd3414bf.html

See the TDT report on yesterday's hearing 'Hearing starts to determine if man wrongfully convicted', by reporter Deborah McKeon) at the link below: "George Powell III walked into a Bell County courtroom Monday morning, already a convicted man serving a 28-year sentence for allegedly committing several 2008 armed robberies. Powell still maintains his innocence, and the Innocence Project of Texas believes him. Monday’s hearing at 9 a.m. with state District Judge John Gauntt officiating was full of twists and turns, and Powell’s future wasn’t determined by the evening.
 In 2009, Demetric Smith testified at Powell’s trial that Powell admitted to him while they were both inmates in the Bell County Jail that he was guilty of several robberies in Bell and Coryell counties.
Smith, scheduled to testify Monday through a video conference walked out of the room in which he was held and refused to cooperate. Smith didn’t testify, possibly because he fired his attorney Friday when he learned he could be charged with perjury for submitting two very different accounts, Innocence Project attorney Walter Reaves pointed out. Bell County District Attorney Henry Garza received a sworn and notarized affidavit in April 2016 from Smith that said he’d lied about Powell to get a better deal on his own burglary of a habitation charge, which should have been enhanced because of his many criminal convictions. When he took the stand in 2009, Smith lied and said he wasn’t benefitting from his testimony about Powell, Reaves said. The Innocence Project attorneys later revealed through questioning Assistant District Attorney Mike Waldman that Smith was offered consideration for his cooperation but no upfront deal. Because Smith was called the “best snitch they ever had” by some investigators and because of his cooperation with the district attorney’s office and the Killeen Police Department in other cases, he was sentenced to only two years in jail instead of the 5- to 99-year sentence he could have received. Waldman abandoned the enhancement paragraphs, he said. He said that is a typical kind of arrangement made through the district attorney’s office. A lot of Monday’s testimony centered on the height of the man who committed the Bell and Coryell robberies in 2008. Different witness accounts and height estimates were discussed, as well as the method used to determine the robber’s height. The general opinion was that the robber was 5 feet, 5 inches to 5 feet, 7 inches, and Powell is 6 feet, 3 inches tall. An affidavit by Smith’s mother, Diane Smith, was read by Innocence Project Executive Director Michael Ware. She said that her son admitted to her in a phone conversation that he was going to lie about Powell’s guilt to get a better deal.  The admission of an audio question-and-answer session with Smith, during which he allegedly admitted lying, wasn’t admitted into testimony yet because it must be authenticated and Gauntt must decide on its admissibility. The final person called to the stand by Assistant District Attorney Sean Proctor was Fred Burns, another Bell County assistant district attorney who once prosecuted Smith. Burns described Smith as a sociopath and a career criminal, as well as a prolific letter writer who frequently wrote motions regarding his case. Burns said he believes Smith sent the affidavit as a desperate effort to undermine the prosecution. He also described Smith’s mother as someone who would lie for her son. The hearing recessed for the day at 4:50 p.m. and will continue on another day that wasn’t yet determined Both the state and defense attorneys gave their opinions of the day’s hearing to a Temple Daily Telegram reporter. “It’s going as I expected,” Proctor said. “I haven’t been surprised so far by anything from the witnesses who took the stand. It’s kind of been a repeat of the 2009 trial with more bells, whistles and experts.” Proctor’s final analysis was that the decision should have been left with the jury’s decision and not the opinions of experts. “It’s become more about forgetting the eyewitnesses and the facts and, instead, giving weight to the experts.” Ware had his own slant on Monday’s proceedings. “I think it’s ironic that the state is putting on evidence that their star witness is a pathological liar after they used him to get a conviction,” Ware said.
 http://www.tdtnews.com/news/article_295b540a-9cce-11e7-8fd3-5b4f53796327.html

See previous post of this Blog: (November 20, 2016) at the link below: "George Powell III: Texas: Reporter Chuck Lindell focuses on his case in a compelling story headed: 'Bad science: Was the conviction of a Central Texas man built on bad science, lies?..."Powell’s conviction hinged on a dispute over the height of the robber. The clerk at the 7-Eleven told police that the man wearing sunglasses and a ball cap who pointed a gun at her was about 5-foot-6. Powell, however, stands 6-foot-3. To account for the discrepancy, prosecutors called to the stand an expert who examined video footage of the robber as he walked past the height-measurement strip next to the store exit. Michael Knox, introduced as an expert in forensic video analysis, testified that the 7-Eleven surveillance video showed a suspect at least 6-foot-1. Although Knox “had never before estimated height based on photos or videos,” the appeal said, jurors convicted Powell of aggravated robbery. In 2014, however, the Texas Forensic Science Commission voted to examine Knox’s determination as part of its role in helping judges, prosecutors and lawyers better use forensic evidence at trial. The commission hired a national leader in forensic video analysis who — using industry-standard methods that Knox did not, including three-dimensional laser scanning and measurement scale analysis — determined that the robber was no taller than 5-foot-9, and could have been as short as 5-foot-6."
https://smithforensic.blogspot.ca/search?q=powell

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

False Confessions (3): Another perspective on the Netflix ‘Confession Tapes’: Jonathan Vankin in Inquisitr: 'Are Sebastian Burns And Atif Rafay Innocent? Facts Behind Chilling Docu-Series."..."Despite the fact that Rafay’s family members were killed in extraordinarily violent fashion — the killer mercilessly bludgeoning the three to death with a baseball bat — no traces of blood or other evidence of the crime were found on either suspect despite five days of forensic testing. Since 2015, despite losing their final appeal, Rafay has fought to have the case reopened saying that the RCMP investigators whom he believed were organized crime members pressured him into the confessions with their threatening demeanor.“It would seem very possible after watching Goodfellas that Mr. Big would simply kill me because I was potentially a threat to him,” Rafay said in a 2015 interview with Canadian television. “That seemed completely convincing – in a way that would only be convincing to an 18-year-old kid.” In addition to the lack of physical evidence against them, Rafay and Burns had an apparently unshakeable alibi."


PUBLISHER’S NOTE: This Blog is interested in false confessions because of the disturbing number  of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects    (especially juveniles)  are to widely used interviewing methods  such as  the notorious ‘Reid Technique.’

Harold Levy: Publisher: The Charles Smith Blog.

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STORY: 'Netflix Confession Tapes'; Are Sebastian Burns and Atif Rafay Innocent? Facts behind chilling docu-series, by Jonathan Vankin, published by Inquisitr on September 11, 2017. (Inquisitr is an aggregate news and media website owned by Daniel Treisman, an Israeli businessman who relaunched the website in 2011. The site views itself as a 'multi-news aggregator' that publishes both trending news and original articles. The news website caters to a global audience, and its newly introduced slogan is "News Worth Sharing.")

GIST: "The Confession Tapes, a chilling new Netflix true crime documentary series, debuted on the streaming service September 8, and the first two episodes take up the shocking case of Sebastian Burns (pictured above right) and Atif Rafay (above left), two Canadian teenagers who were accused and eventually convicted of the brutal and shocking murders of Rafay’s parents and sister in Bellevue, Washington, on July 13, 1994. The two friends, now in their early 40s, have been serving three consecutive life terms each, with no possibility of parole, since their convictions in 2004 — a decade after the crimes. In The Confession Tapes, documentary director Kelly Loudenberg makes a compelling case that Burns and Rafay are innocent of the horrifying murders. The remainder of this article may contain SPOILERS for Episodes 1 and 2 of The Confession Tapes. Though the facts of the case are a matter of public record, readers unfamiliar with the story may want to stop reading and come back to this article after watching the two-part episode, titled “True East.” But if they didn’t do it, why did Burns and Rafay confess, apparently in great detail, to the crimes? Who would confess to a crime — particularly a gruesome triple murder — that he did not commit? False confessions are the theme of the entire Confession Tapes series, with each episode documenting a case in which confessions were obtained by police using questionable and even blatantly deceptive methods — calling into doubt the guilt of the suspects who often end up convicted and sentenced on the basis of their confessions alone. The surprising conclusion viewers may draw from the series is that false confessions are much more common than generally believed. In the case of Burns and Rafay, their confessions were elicited by undercover detectives from the Royal Canadian Mounted Police (RCMP) — Canada’s equivalent of the United States FBI — using a controversial technique known as “Mr. Big,” a method that was and remains illegal in the United States.The undercover investigators posed as Mafia mobsters, attempting to recruit the two desperate and naive young men — whose lives had already been effectively ruined by the murder accusations — into their enterprise. But the phony mobsters told Burns and Rafay that first, they needed to know everything about their involvement in the murders. According to Innocence Project expert Ken Klonsky, who has taken up the Burns and Rafay case, Burns — who was approached first — denied repeatedly that he was in any way involved with the savage triple murder. “Their confessions to the RCMP mobsters took many months of heavy handed interviews to obtain,” Klonsky wrote in a blog post about the case. “No juror was shown video evidence of Sebastian’s constant denials that he had anything to do with the crime, while the RCMP has disposed of almost the entire taped interrogation. What remains are the sessions that implicate Burns and Rafay.” Burns finally “confessed” to the men he believed were mobsters, constructing a story from what he had absorbed from news media accounts of the killings, according to Klonsky. Rafay mainly echoed his friend’s “confessions.” According to Klonsky, outside of the supposed confessions, “no hard or scientifically gathered evidence ties (Burns and Rafay) to the crime.” Despite the fact that Rafay’s family members were killed in extraordinarily violent fashion — the killer mercilessly bludgeoning the three to death with a baseball bat — no traces of blood or other evidence of the crime were found on either suspect despite five days of forensic testing. Since 2015, despite losing their final appeal, Rafay has fought to have the case reopened saying that the RCMP investigators whom he believed were organized crime members pressured him into the confessions with their threatening demeanor.“It would seem very possible after watching Goodfellas that Mr. Big would simply kill me because I was potentially a threat to him,” Rafay said in a 2015 interview with Canadian television. “That seemed completely convincing – in a way that would only be convincing to an 18-year-old kid.” In addition to the lack of physical evidence against them, Rafay and Burns had an apparently unshakeable alibi. They were seen and positively identified watching a movie at a Bellevue theater at 10 p.m. on the night of the murders. But neighbors specifically recalled hearing loud thumping noises from inside the Rafay home at 9:50 p.m., ruling out the presence of the two then-teens at the site as the killings were taking place, as the theater was too far from the Rafay home to be reached in 10 minutes flat — even assuming that Rafay and Burns did not stop to thoroughly cleanse themselves of any blood evidence. But prosecutors simply called into question the neighbors’ memories of the time. In fact, the evidence against them was so inconclusive, that it took investigators in Washington six months to name Burns and Rafay as suspects in the murders."

The entire story can be found at:
https://www.inquisitr.com/4491044/netflix-confession-tapes-sebastian-burns-atif-rafay-innocent/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

Monday, September 18, 2017

False confessions (2): ‘The Confession Tapes; ’ Film Critic Nick Schager says "The Confession Tapes provide a harrowing look at false murder confessions; "After ‘Making a Murderer’ and ‘The Keepers,’ Netflix’s reign over the true-crime genre continues with ‘The Confession Tapes."..."To recount these cases, Loudenberg marries her grainy VHS confession tapes to archival footage, new interviews with primary players and evocative dramatic imagery (a tour through a crime-scene garage, close-ups of broken glass, a bloody dollar bill, and a polygraph machine scribbling lines on a piece of paper). It’s a style that diligently follows the Errol Morris book of true-crime filmmaking, and yet its lack of formal adventurousness is offset by the precision of the director’s technique, as well as by an overarching air of despair."

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PUBLISHER’S NOTE: This Blog is interested in false confessions because of the disturbing number  of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects    (especially juveniles)  are to widely used interviewing methods  such as  the notorious ‘Reid Technique.’



Harold Levy: Publisher: The Charles Smith Blog.


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PASSAGE OF THE DAY: "The Confession Tapes’ various tales feature recordings of men and women denying responsibility for hours on end, only to eventually succumb to the narratives fed to them by cops. That, in almost every instance, there’s no corroborating evidence to back up these statements—save for circumstantial tidbits that hardly rise to a “reasonable doubt” standard—means that these people have been put away for crimes based solely on their own admissions. It’s a portrait of dubious law enforcement methods resulting in legal railroading, and one whose outrageousness is amplified by the fact that, after the verdict, there’s very little recourse to be undertaken on behalf of the convicted."

COMMENTARY:  ‘The Confession Tapes’ Provides a Harrowing Look at False Murder Confessions, by Nick Schager, published by The Daily Beast on September 17, 2017. (Nick Schager is a NYC-area film critic and pop-culture writer whose work also appears in The Village Voice, Esquire, New York Magazine’s Vulture, Maxim, Complex and The A.V. Club.)