Wednesday, December 12, 2018

Back in action: On-going: Valentino Dixon: New York; Supreme legal analyst Jeffrey Toobin (one of my favourites HL) notes that "everything went wrong" in the Dixon case - including a terribly flawed eyewitness identification process..."By now we know the weaknesses of eyewitness identifications from old-fashioned lineups and photo arrays. According to a 2014 report from the National Academy of Sciences, the best way to conduct lineups (with photos or in person) is “double-blind”—that is, when neither the administrator nor the eyewitness knows who the suspect is. This reduces the chance for the police to offer non-verbal, or more explicit, clues about who the suspect is. This dubious photo array, certainly, should have been the basis for strong defense testimony during Dixon’s trial, but his attorney called no witnesses at all—which is astonishing, considering how many people were present when Jackson was killed. Dixon’s lawyer could have called a parade of witnesses who said they were at the scene and didn’t know who did the shooting—and that alone could have provided the jury with reasonable doubt. And this was especially true because the prosecution produced no motive and no physical evidence linking Dixon to the crime."


PASSAGE OF THE DAY: "The story of Dixon’s conviction and 27-year incarceration reads almost like a checklist of some of the major flaws in our system. Eyewitness misidentification: check. Prosecutorial blindness: check. Inadequate defense: check. Dixon was unfortunate, to put it mildly, in that all of these defects converged in his single case, but he was by no means unusual in suffering because of any one of them." 
----------------------------------------------------------

STORY: "Valentino Dixon's Case: Everything Went Wrong," by Jeffrey Toobin, published by Golf Digest on December 7, 2018. (Jeffrey  Toobin is a Golf Digest contributor and the chief legal analyst for CNN);


GIST: "The most extraordinary thing about the saga of Valentino Dixon is that it is not extraordinary at all. It is, of course, unusual and wonderful that Dixon developed his gift for sketching golf courses in prison—and that his talent drew the meticulous attention of Golf Digest’s Max Adler—but the specifics of the case look all too familiar. Dixon’s prosecution represents a textbook study in everything that can go wrong in the criminal-justice system—and, all too often, does. The story of Dixon’s conviction and 27-year incarceration reads almost like a checklist of some of the major flaws in our system. Eyewitness misidentification: check. Prosecutorial blindness: check. Inadequate defense: check. Dixon was unfortunate, to put it mildly, in that all of these defects converged in his single case, but he was by no means unusual in suffering because of any one of them. According to the National Registry of Exonerations, exposing these kinds of errors (and plenty of others) has freed more than 800 prisoners since 2013. The murder of Torriano Jackson on a hot August night in 1991 would have been difficult to solve in the best of circumstances. A crowd of 70 or so people had gathered. There was a brawl. The grappling turned to shooting. More than two dozen shots. Shell casings from three different guns on the ground. A dead body. Who did it?  Police seized on Dixon as a suspect, and why not? He was out on bail after pleading guilty to a weapons charge. So hours after the shooting, the police arrested him. Three eyewitnesses said Dixon did it. Case closed, right? But the weaknesses in the case—huge ones—quickly became apparent. LaMarr Scott told the local media and then the police that he had committed the murder, not Dixon. Scott even offered to take a polygraph, but the criminal-justice personnel turned him down. They had their man: Dixon. In time, Scott would recant his confession, but his words alone established more than reasonable doubt about Dixon’s guilt. What should have happened? By now we know the weaknesses of eyewitness identifications from old-fashioned lineups and photo arrays. According to a 2014 report from the National Academy of Sciences, the best way to conduct lineups (with photos or in person) is “double-blind”—that is, when neither the administrator nor the eyewitness knows who the suspect is. This reduces the chance for the police to offer non-verbal, or more explicit, clues about who the suspect is. This dubious photo array, certainly, should have been the basis for strong defense testimony during Dixon’s trial, but his attorney called no witnesses at all—which is astonishing, considering how many people were present when Jackson was killed. Dixon’s lawyer could have called a parade of witnesses who said they were at the scene and didn’t know who did the shooting—and that alone could have provided the jury with reasonable doubt. And this was especially true because the prosecution produced no motive and no physical evidence linking Dixon to the crime. Above all, though, the responsibility for miscarriages of justice falls on police and prosecutors—who failed abysmally in Dixon’s case. Scott’s confession should have been the tipoff that something was wrong with the case against Dixon, but law enforcement doubled down and—this is rare—charged two witnesses, who backed Scott’s confession, with perjury. The charges made the pair nearly useless as defense witnesses, which might well have been the real justification for prosecuting them in the first place. The way the case unfolded gives every indication that law enforcement made up its collective mind from moments after the shooting and then tried to shoehorn all of the evidence into a believable narrative of Dixon’s guilt. This sort of bullheadedness, the refusal to test one’s own assumptions and conclusions, is a cancer in our system. And it’s impossible to look at the story of Valentino Dixon without seeing the unending theme of American justice—and that’s race. Dixon is African-American, and virtually every other person involved in the case was white, and that includes the police chief, prosecutor, trial judge, defense attorney and all 12 members of the jury that convicted him. Dixon recently retained lawyers, and they plan to bring two civil cases against the city of Buffalo and the state based on New York’s Unjust Imprisonment Act; juries in these cases have awarded more than $1 million for each year of wrongful imprisonment. Still, Valentino Dixon’s case will always be a reminder of what happens to a black man facing a white man’s rigged system of justice—that, alas, turns out to be par for the course."

The entire story can be read at:
https://www.golfdigest.com/story/valentino-dixons-case-everything-went-wrong

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

See earlier post of this Blog  - October 5, 2014) - at the link below on the need to take a scientific approach to eyewitness identification: "Eye-witness identification: Time Magazine goes "Behind the messy science of police lineups," after a National Academy of Science report " recommends sweeping changes as to how police department conduct lineups as researchers remain at odds."

STORY: "Behind the messy science of police lineups,"  by reporter Josh Sanburn, published by Time Magazine  on October 3, 2014.

SUB-HEADING: "A National Academy of Sciences report  recommends sweeping changes as to how police department  conduct lineups as researchers remain at odds."

SUB-HEADING:  "In 1984, Thomas Haynesworth—an 18-year-old resident of Richmond, Va.—was accused of rape by five women, one of whom had identified Haynesworth by spotting him on the street. Later, four other victims picked his face out of a police lineup. That was the man who raped them, they said. One of them even told the jury, “He had a face I couldn’t forget. Haynesworth was convicted in three of the attacks and sentenced to 74 years in prison. But he was innocent."

GIST:  "According to the Innocence Project, eyewitness misidentification has been a factor in 72% of convictions that have been overturned by DNA testing. The National Registry of Exonerations, which works in conjunction with the University of Michigan, traces 507 of the 1,434 exonerations back to mistaken witness identification. But according to researchers, many police departments don’t know the underlying problems associated with troublesome lineups, don’t have the resources to conduct better ones, or are confused as to the best way to go about them. On Thursday, the National Academy of Sciences, a non-profit organization of experts and academics around the U.S., released the first comprehensive report to review decades of literature on lineups while offering sweeping recommendations on how they should be conducted, including ensuring that those administering them are not aware of the suspect’s identity, developing standard instructions for witnesses so as to not bias their pick, videotaping the ID process and recording confidence statements from witnesses at the time of an identification. “Eyewitnesses that lead to erroneous convictions are very disturbing,” says Tom Albright, a professor at the Salk Institute for Biological Studies, who co-chaired the committee. “It’s bad for society if the bad guys go free, and it undermines the criminal justice system, which is a serious long-term problem potentially.”".........The NAS recommendations steer clear of the back-and-forth entirely. But most lineups researchers praised the report’s findings overall, including Wells. “This is a huge shot in the arm,” Wells ( Gary Wells, an Iowa State University professor who has been the leading researcher on lineups for years) says. “It’s a ringing endorsement of the science. And now we have the task of bridging the gap between the science and the legal system.”"

The entire story can be found at: "

http://time.com/3461043/police-lineups-eyewitness-science/

The National Academy of Science release: "A new report from the National Research Council recommends best practices that law enforcement agencies and courts should follow to improve the likelihood that eyewitness identifications used in criminal cases will be accurate. Science has provided an increasingly clear picture of the inherent limits in human visual perception and memory that can lead to errors, as well as the ways unintentional cues during law enforcement processes can compromise eyewitness identifications, the report says. “Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard -- and any of these limitations can produce mistaken identifications with serious consequences,” said Thomas Albright, director of the Vision Center Laboratory at the Salk Institute for Biological Studies and co-chair of the committee that wrote the report.  The report focuses on identifications of strangers rather than of family members or others well-known to the witness. Problems with eyewitness identifications have long been documented, and many of the cases in which DNA evidence later exonerated an innocent person involved at least one mistaken eyewitness. Research in recent decades has revealed many factors that can lead to such mistaken identifications, the report says. Conditions during the commission of the crime such as dim lighting, brief viewing times, stress, or the presence of a visually distracting element such as a gun or knife can influence people’s perceptions. Gaps in sensory input are filled by expectations that are based on an individual’s prior experiences with the world, which can bias perceptions. Studies also have shown that eyewitnesses are more likely to make mistakes when making an identification among people of another race rather than when making an identification of a person from the eyewitness’s own race. In addition, memory is often an unfaithful record of what was perceived through sight; people’s memories are continuously evolving. As memories are processed, encoded, stored, and retrieved, many factors can compromise their fidelity to actual events. Although the individual may be unaware of it, memories are forgotten, reconstructed, updated, and distorted."
http://smithforensic.blogspot.com/2014/10/eye-witness-identification-time.html

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

Read National Registry of Exonerations entry  - by masterful scribe Maurice Possley - at the link below: "At about 1 a.m. on August 10, 1991, nearly 100 people were hanging out at the intersection of East Delevan and Bailey Avenues near Louie’s Texas Red Hots in Buffalo, New York, when a fistfight broke out.

Two brothers, 17-year-old Torriano Jackson and 20-year-old Aaron Jackson, were atop 19-year-old Mario Jarmon, kicking and punching him, when someone yelled, “Watch out, he’s got a gun!” As people scattered, more than two dozen gunshots rang out.

When the shooting stopped and people began to return to the intersection, Torriano Jackson was dead. Aaron Jackson and Jarmon were wounded. A bystander, 17-year-old John Sullivan, suffered a graze wound on his leg.

Police collected 27 nine-millimeter shell casings, one .22 caliber casing, one .32 caliber casing, and two guns—a .32-caliber pistol and a .22-caliber pistol.

Not long after, police said an anonymous caller said the shooting was the culmination of a feud over a girl named Heather Smith, who had dated one of the Jackson brothers and 21-year-old Valentino Dixon.

Sullivan, who was a friend of Torriano Jackson, viewed a photographic lineup and identified the gunman as someone he knew as “Tino.” Sullivan said he saw the gunman stand over Torriano Jackson and fire at least five shots at the prone and already wounded Jackson.

Less than 10 hours after the shooting, police arrested Dixon at Jarmon’s house, just a couple of blocks away from the shooting.

Dixon was subsequently identified in photographic lineups by Sullivan, Aaron Jackson, and a bystander, Emile Adams. Dixon was charged with the murder of Torriano Jackson, the attempted murder of Aaron Jackson, the assault of Sullivan, and criminal possession of a weapon.

At the time, Dixon was out on bail awaiting sentencing after he pled guilty in June 1991 to two drive-by shootings—one in April 1990 that injured no one, and another in November 1990 that left one man slightly wounded.

Police interviewed Mario Jarmon at the hospital. He said Torriano Jackson shot him. Two other witnesses, including Dixon’s half-brother, Leonard Brown, said the gunman was 19-year-old Lamarr Scott.

Three days later, a Buffalo television station reported that someone else had confessed on videotape to being the gunman. The station did not identify him, but police quickly learned the man was Scott. At the time, police believed that Dixon was a drug dealer and that Scott worked as his bodyguard. Detectives interviewed Scott, who said that he shot the Jackson brothers after they began shooting at his friend Jarmon. Scott offered to take a polygraph test. That offer was rejected and police discounted Scott’s confession.

Witnesses described the gunman as six feet tall and more than 170 pounds (some said the gunman was heavy-set). Scott was just over six feet tall and about 200 pounds. Dixon was 5 feet, 7 inches tall and about 130 pounds.

Police interviewed Heather Smith, who said that she was a close friend of Aaron Jackson. Asked about Dixon, Smith said, “I never heard of him.”

The Erie County District Attorney’s Office presented evidence to a grand jury. Among the witnesses called were Scott, Jarmon, and Brown. Scott recanted his earlier confession and implicated Dixon as the gunman. Brown and Jarmon, however, told the grand jury that Scott was the gunman.

As a result, Jarmon and Brown were charged with perjury.

In August 1991, Dixon was sentenced to 3 1/3 to 10 years in prison for the two shootings to which he previously pled guilty.

Dixon went to trial in June 1992 in Erie County Supreme Court. The prosecution’s evidence consisted largely of the testimony of Sullivan, Aaron Jackson, and Adams—all of whom identified Dixon as the gunman—although the physical descriptions they gave right after the shooting fit Scott, not Dixon.

Sullivan, who was facing a rape charge at the time of the trial, admitted that he was a friend of Torriano Jackson and that the shooting occurred after he had spent the day drinking beer, snorting cocaine, and smoking marijuana. He estimated that he was 100 to 150 yards away when he saw Dixon firing his weapon.

Adams testified he saw two people walking toward the brawl involving the Jackson brothers and Jarmon. He said Dixon was the shooter, although he admitted that at the time, he said the gunman was “heavyset” and that Dixon was not heavyset.

Aaron Jackson testified that just before the shots were fired, he and Torriano had Jarmon on the pavement and were beating him. He first told police that he didn’t know who the gunman was. When he was shown a photographic array that included Dixon, he said he couldn’t be sure if Dixon was the gunman because “it happened so fast.” At the trial, however, Jackson identified Dixon as the gunman. Confronted with his prior statements, he said, “My memory gets better with time.”

On June 12, 1992, the jury convicted Dixon of second-degree murder, attempted murder, assault, and criminal possession of a weapon. He was sentenced to 38 1/3 years to life in prison.

Later that year, Jarmon and Brown were convicted of perjury. Jarmon was sentenced to 2½ to seven years in prison. Brown was sentenced to 2½ to five years in prison.

In April 1995, the Appellate Division of the New York Supreme Court upheld Dixon’s convictions on appeal.

In 2003, Dixon moved for new trial. The motion said that Adams had recanted his identification of Dixon as the gunman, saying the police threatened to charge him with perjury unless he falsely identified Dixon. The motion also cited Scott’s admission that he was the gunman as well as the testimony of Michael Bland, who initially told police he didn’t see who had the gun, but now claimed it was Scott.

The motion said three other witnesses had been located who identified Scott as the gunman. One of those witnesses said that after the shooting, Scott came to her home to hide and admitted that he was the gunman.

In July 2004, the Buffalo News published an in-depth investigation of the case. Scott confessed to the newspaper that he was the gunman. Scott said that he and Dixon had driven to Jarmon’s home and they walked to the intersection to hang out. When they saw the fight between the Jacksons and Jarmon, Scott said he went back to Jarmon’s home, retrieved the TEC-9, and came back. He said he got the gun for self-defense and that Torriano Jackson opened fire at him, so he shot back.

“I shot back in self-defense, yes,” Scott told the newspaper. “After that, I ran down the street, and I threw the gun. I went home. That was it….Because (Torriano Jackson)…opened fire on us, I emptied the clip.” Scott was in prison by then. In November 1993, he had robbed a group of teenagers and shot one in the face, leaving him a quadriplegic. Scott was convicted of attempted murder and sentenced to 25 to 50 years in prison.

A month later, in August 2004, Dixon’s motion for a new trial was denied. He was denied permission to appeal.

In September 2004, after Dixon’s family gathered more than 800 signatures on a petition asking for a new trial, Erie County District Attorney Frank Clark said his office would review the case to determine if a miscarriage of justice had occurred. Nothing came of the review.

In 2005, Dixon filed a federal petition for a writ of habeas corpus. More witnesses had come forward saying either that Scott was the gunman or that Dixon was not the gunman. The results of two polygraph examinations also were filed. The examiner said Dixon was truthful when he denied being the gunman or telling Scott to falsely confess to the shooting. Antoine Shannon, Dixon’s half-brother, was found to be truthful when he said Scott was the gunman.

The petition was denied in 2009.

In July 2012, Golf Digest magazine published an article that showcased Dixon’s pastel pencil sketches of golf courses. Dixon, who had dropped out of Buffalo Academy for the Visual and Performing Arts to pursue drug dealing, said he had never played a round of golf, but hoped one day to do so.

In 2017, Dixon applied for a gubernatorial pardon, but no action was ever taken on the request.

In May 2018, Dixon’s attorney, Donald Thompson, filed another post-conviction petition seeking a new trial. By that time, Dixon was the subject of two investigative reports that asserted he was innocent. The Golf Channel had followed up the Golf Digest article with a program highlighting the statements of witnesses who said that Scott was the gunman. In addition, students from the Georgetown University Law’s Prisons and Justice Initiative, under the direction of Professor Martin Tankleff, who was exonerated in 2008 of a murder he did not commit, reinvestigated Dixon’s case and created a video documentary containing interviews with more witnesses who said Dixon was not the gunman.

Not long after, Erie County District Attorney John Flynn agreed that the office’s conviction integrity unit would review the case. After interviewing 30 witnesses, including 12 who either identified Scott as the gunman or said Dixon was not the gunman, as well as Scott, who continued to assert he was the gunman, the prosecution agreed that Dixon’s conviction should be vacated.

On September 19, 2018, Scott pled guilty to manslaughter in return for a sentence that would run concurrently with the 25 to 50 year sentence he was serving. That same day, Dixon’s convictions for second-degree murder, attempted murder, and assault were vacated and the prosecution dismissed the charges. The conviction for criminal possession of a weapon remained intact because the TEC-9 that Scott said he used in the shooting belonged to Dixon.

Dixon was then released from prison more than 27 years after his arrest in 1991.
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5379

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, December 11, 2018

Back in action: On-going: Forensic hypnosis: Texas: Welcome Development: A bill has been filed to eliminate forensic hypnosis from Texas courts, Grits for Breakfast reports..."Pam Colloff, Mandy Marzullo and I wanted to take a forensic-hypnosis-certification course this year, but could not find one given in the state of Texas throughout all of 2018. Most practitioners boast gray hair and decades-long resumes, and there doesn't appear to be an eager new guard anxious to stake their careers on a practice that's perhaps a half step above a tarot-card reading in terms of investigative utility. The Texas Legislature should absolutely pass Sen. Hinojosa's SB 130, and while they're at it, they should get rid of this ridiculous certification at TCOLE. It can't be fixed. There's no scientific version of hypnosis-based memory enhancement to fall back on, even if the agency wanted to revise its trainings, which mostly don't occur anymore."


PASSAGE OF THE DAY: "Neither can the Legislature count on the Forensic Science Commission to address the question, although they have received multiple complaints on the topic. That's because, by statute, they are only allowed to consider forensics related to "physical evidence." So hypnosis has somehow slithered through unintended gaps in the government's forensic-vetting apparatus. That leaves the issue on the Legislature's doorstep. The case seems easy to make: In 2018, a curriculum suggesting police try to get witnesses to engage in "automatic writing," or teaching cops to implant post-hypnotic suggestions, doesn't even pass the laugh test. And yet that's the state of evidence Texas courts have allowed, with the Court of Criminal Appeals reaffirming the admissibility of hypnotically induced testimony as recently as 2004. Courts in Texas have until now abdicated their duty to protect the public from junk science when it comes to admissibility of forensic hypnosis. In such instances, it's necessary and proper for the Legislature to step in."

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

POST:   "Bill filed to eliminate forensic hypnosis from Texas courts," publishedf by Grits foir Breakfast on November 14, 2018.

GIST: "Many thanks to State Sen. Juan "Chuy" Hinojosa for filing SB 130 to eliminate forensic hypnosis from Texas courtrooms. Grits has been fascinated with this topic since we first discussed it on the podcast last year, and reporters at the Dallas News and the Dallas Observer have covered the subject as well. A recent Psychology Today column on the topic concluded that the "cons" related to forensic hypnosis outweighed any "pros." Most states' courts do not allow it. In this Twitter-string in response to SB 130, I briefly made the case for ending the practice. In essence, modern brain science has shown most of the thinking behind it is garbage. For example, recently I purchased a copy of the textbook the Texas Commission on Law Enforcement requires for forensic hypnosis trainings. That learned tome informs us that the "conscious" mind takes up 1/8 of the brain and the "subconscious" 7/8(!), with memories stored in the latter. It suggests "automatic writing" may be "useful in eliciting suppressed" memories, as well as "age regression," allowing witnesses to reenact past events. Another Tweet in that string cited to the TCOLE curriculum for forensic hypnosis wondering aloud why the state would require detectives being trained in forensic hypnosis to demonstrate proficiency in post-hypnotic suggestions? (Item 14) Should detectives really be taught to implant memories in hypnotized witnesses? That seems dubious, at best. There was a time when more than 800 Texas peace officers boasted forensic hypnosis certifications. Today, just two agencies - Texas DPS and the Harris County Sheriff's Office - employ nearly all of the fewer than two dozen forensic hypnotists in the state. Indeed, forensic hypnosis appears to be a dying profession in Texas. There aren't many trainings conducted anymore. Pam Colloff, Mandy Marzullo and I wanted to take a forensic-hypnosis-certification course this year, but could not find one given in the state of Texas throughout all of 2018. Most practitioners boast gray hair and decades-long resumes, and there doesn't appear to be an eager new guard anxious to stake their careers on a practice that's perhaps a half step above a tarot-card reading in terms of investigative utility. The Texas Legislature should absolutely pass Sen. Hinojosa's SB 130, and while they're at it, they should get rid of this ridiculous certification at TCOLE. It can't be fixed. There's no scientific version of hypnosis-based memory enhancement to fall back on, even if the agency wanted to revise its trainings, which mostly don't occur anymore. Anyway, TCOLE doesn't have sufficient curriculum staff to revise outdated police trainings, which is a budget question this blog will be revisiting later. They could use three additional FTEs for that purpose, according to the "exceptional items" request in their LAR. (And that's a no-BS request; their backlog is worrying.) Neither can the Legislature count on the Forensic Science Commission to address the question, although they have received multiple complaints on the topic. That's because, by statute, they are only allowed to consider forensics related to "physical evidence." So hypnosis has somehow slithered through unintended gaps in the government's forensic-vetting apparatus. That leaves the issue on the Legislature's doorstep. The case seems easy to make: In 2018, a curriculum suggesting police try to get witnesses to engage in "automatic writing," or teaching cops to implant post-hypnotic suggestions, doesn't even pass the laugh test. And yet that's the state of evidence Texas courts have allowed, with the Court of Criminal Appeals reaffirming the admissibility of hypnotically induced testimony as recently as 2004. Courts in Texas have until now abdicated their duty to protect the public from junk science when it comes to admissibility of forensic hypnosis. In such instances, it's necessary and proper for the Legislature to step in. Bully for Chuy Hinojosa for doing so."

The entire post - with links to great background materials - can be found at the link below:
http://gritsforbreakfast.blogspot.com/2018/11/bill-filed-to-eliminate-forensic.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;  

Monday, December 10, 2018

Back in action: On-going: Dennis Oland: New Brunswick: Second week of trial to begin Tuesday. More helpful background material from the CBC... "A former deputy chief of the Saint John Police Force made false statements at Dennis Oland's first murder trial and to Halifax police officers investigating his conduct, an independent investigator hired by the New Brunswick Police Commission found. Glen McCloskey, a 30-year-veteran of the force, had no active role in the investigation into Richard Oland's homicide in July 2011. But he walked around the bloody crime scene twice before forensic testing was complete and later encouraged another officer not to tell the court about it, according to the summary of investigator Barry MacKnight's report to the commission. The report was among stacks of court documents related to Dennis Oland's defence lawyers' fight for third-party records at hearings earlier this year as they prepared for his retrial. The documents include prosecutors' emails about McCloskey and another officer's tour of the crime scene. They were under a publication ban but became public after it was decided the retrial would go ahead last month without a jury"



PUBLISHER'S NOTE: One can access live CBC coverage of the proceeding at the following link:
Follow the live blog here


STORY: "Ex-deputy police chief made false statements at Oland murder trial, investigator finds," published by CBC News on December 10, 2018. (Excellent background for on-going retrial set to resume tomorrow.  The retrial - loaded with significant  forensic issues -  is expected to last as long as four months. I am dipping into it from time to time. HL);

PHOTO CAPTION: "Glen McCloskey retired as deputy chief of the Saint John Police Force in April, before he was scheduled to face an arbitration hearing in connection with the Oland case."

PHOTO CAPTION: "Dennis Oland's retrial for second-degree murder is scheduled to continue on Tuesday and last four months."
 
GIST: "A former deputy chief of the Saint John Police Force made false statements at Dennis Oland's first murder trial and to Halifax police officers investigating his conduct, an independent investigator hired by the New Brunswick Police Commission found. Glen McCloskey, a 30-year-veteran of the force, had no active role in the investigation into Richard Oland's homicide in July 2011. But he walked around the bloody crime scene twice before forensic testing was complete and later encouraged another officer not to tell the court about it, according to the summary of investigator Barry MacKnight's report to the commission. The report was among stacks of court documents related to Dennis Oland's defence lawyers' fight for third-party records at hearings earlier this year as they prepared for his retrial. The documents include prosecutors' emails about McCloskey and another officer's tour of the crime scene. They were under a publication ban but became public after it was decided the retrial would go ahead last month without a jury. The defence has alleged the Crown conspired before the first trial to conceal the fact McCloskey had gone through the crime scene, which officers were trying to keep free of contamination while the head of forensics collected evidence. Richard Oland, 69 was found dead in a pool of blood in his office at 52 Canterbury St. on the morning of  July 7, 2011. The multimillionaire suffered 45 sharp- and blunt-force injuries to his head, neck and hands.​ His son, Dennis, 50, who met with the prominent businessman the night before, was found guilty in December 2015 of second-degree murder. His conviction was overturned 10 months later because of an error in the trial judge's instructions to the jury. MacKnight's report to the police commission stemmed from testimony at Oland's first trial that suggested McCloskey tried to keep his presence at the victim's office unknown to the court. MacKnight said he found McCloskey committed five breaches of the Police Act: two counts of discreditable conduct, and one count each of deceitful behaviour, neglect of duty, and being party to a breach of the professional code of conduct. A further allegation of neglect of duty was deemed unsubstantiated. McCloskey, who is now retired, declined through his lawyer Nathalie Godbout to comment, citing the ongoing court proceedings.  At Dennis Oland's first murder trial, retired Staff Sgt. Mike King testified that in 2014, either before or during the preliminary inquiry, McCloskey told him he didn't "have to" tell anyone he'd entered the crime scene. McCloskey was an inspector at the time and King's supervisor. King testified he replied to McCloskey that he had "never lied on the stand in 32 years" and he "wasn't about to start." During his own testimony the next day, McCloskey said he'd never asked anybody to lie under oath. He alleged it was King who lied because he was angry about being passed over for a promotion. McCloskey said he entered Richard Oland's office twice the day after the homicide — once to "observe the body" and then again out of "curiosity."  He admitted he went farther during his second trip into the crime scene, with Const. Greg Oram, than the head of forensics allowed the first time, and he wore no protective gear. McCloskey said he noticed some small drops of blood on the floor and he might have touched or even opened the back door, in the foyer outside the office, which Oland's defence lawyers contend would have been the preferred exit for the "killer or killers." The door was never tested for fingerprints or DNA evidence because it had been contaminated."

The entire story can be found at:
https://pressfrom.info/ca/news/canada/-107794-ex-deputy-police-chief-made-false-statements-at-oland-murder-trial-investigator-finds.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;  

Back in action: On-going; Joe Bryan; Flawed blood splatter testimony; Texas; Major (Disappointing Development)..."Despite compelling evidence that the forensic testimony used to convict former Texas high school principal Joe Bryan of murder was wrong, a Texas judge today recommended that Bryan’s conviction stand, and that he not be granted a new trial."..."Bryan, now 78 and in poor health, has served 31 years in prison despite lingering questions about who shot his wife, Mickey, in 1985. Judge Doug Shaver’s decision stunned Bryan’s attorneys, who had hoped for a different outcome after the seeming collapse of key elements of the prosecution’s case in September, during the final day of hearings over whether Bryan should be granted a new trial. In a dramatic moment at the hearing, a defense witness read an affidavit from retired police Detective Robert Thorman, the bloodstain-pattern analyst whose testimony had proved critical in convicting Bryan. In it, Thorman conceded that both his findings and testimony had been rife with errors. “My conclusions were wrong,” he wrote. “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.”

 Blood clipart blood splat #1042


PASSAGE OF THE DAY: "Thorman’s flawed testimony at Bryan’s trials was at the heart of a two-part investigation by ProPublica and The New York Times Magazine in May that questioned the accuracy of the bloodstain-pattern analysis used to convict Bryan, as well as the training of the experts who testify in such cases. Bloodstain-pattern analysis is a forensic discipline whose practitioners regard the drops, spatters and trails of blood at a crime scene as clues that can sometimes be used to reverse-engineer the crime itself. In July, Bryan’s case commanded the attention of the forensics community when the Texas Forensic Science Commission — which investigates complaints about the misuse of forensic testimony and evidence in criminal cases — announced that the blood-spatter analysis used to convict him was “not accurate or scientifically supported.” Spurred by the Bryan case, the commission had already moved to end the practice of allowing law enforcement officers with minimal training in bloodstain-pattern interpretation to testify in Texas, stipulating that such analysis must be performed by an accredited organization if it is to be allowed in court. Bryan’s request for a new trial will now go before the Texas Court of Criminal Appeals, the state’s highest criminal court."
----------------------------------------------------------
STORY: "Judge in Joe Bryan Case Rejects Defense Pleas for New Trial," by reporter Pamela Colloff, published by ProPublica on December 6, 2018.



SUB-HEADING: Texas’ highest criminal court will now decide the fate of Bryan, a former high school principal who has been in prison for 31 years for the murder of his wife, Mickey. A forensic expert who testified against him has admitted his conclusions in the case were wrong.

The entire story can be read at:

 https://www.propublica.org/article/judge-in-joe-bryan-case-rejects-defense-pleas-for-new-trial

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; 

Sunday, December 9, 2018

Back in action: On-going; Facial scanning technology; Reporter Sam Biddle issues a strong warning against not only ubiquitous facial recognition, but its more sinister cousin: so-called affect recognition, technology that claims it can find hidden meaning in the shape of your nose, the contours of your mouth, and the way you smile..."AI Now’s 2018 report is a 56-page record of how “artificial intelligence” — an umbrella term that includes a myriad of both scientific attempts to simulate human judgment and marketing nonsense — continues to spread without oversight, regulation, or meaningful ethical scrutiny. The report covers a wide expanse of uses and abuses, including instances of racial discrimination, police surveillance, and how trade secrecy laws can hide biased code from an AI-surveilled public. But AI Now, which was established last year to grapple with the social implications of artificial intelligence, expresses in the document particular dread over affect recognition, “a subclass of facial recognition that claims to detect things such as personality, inner feelings, mental health, and ‘worker engagement’ based on images or video of faces.” The thought of your boss watching you through a camera that uses machine learning to constantly assess your mental state is bad enough, while the prospect of police using “affect recognition” to deduce your future criminality based on “micro-expressions” is exponentially worse."


PASSAGE OF THE DAY:"Faception has purported to determine from appearance if someone is “psychologically unbalanced,” anxious, or charismatic, while HireVue has ranked job applicants on the same basis. As with any computerized system of automatic, invisible judgment and decision-making, the potential to be wrongly classified, flagged, or tagged is immense with affect recognition, particularly given its thin scientific basis: “How would a person profiled by these systems contest the result?,” Crawford added. “What happens when we rely on black-boxed AI systems to judge the ‘interior life’ or worthiness of human beings? Some of these products cite deeply controversial theories that are long disputed in the psychological literature, but are are being treated by AI startups as fact.” What’s worse than bad science passing judgment on anyone within camera range is that the algorithms making these decisions are kept private by the firms that develop them, safe from rigorous scrutiny behind a veil of trade secrecy."

PASSAGE OF THE DAY 2: "That’s because “affect recognition,” the report explains, is little more than the computerization of physiognomy, a thoroughly disgraced and debunked strain of pseudoscience from another era that claimed a person’s character could be discerned from their bodies — and their faces, in particular. There was no reason to believe this was true in the 1880s, when figures like the discredited Italian criminologist Cesare Lombroso promoted the theory, and there’s even less reason to believe it today. Still, it’s an attractive idea, despite its lack of grounding in any science, and data-centric firms have leapt at the opportunity to not only put names to faces, but to ascribe entire behavior patterns and predictions to some invisible relationship between your eyebrow and nose that can only be deciphered through the eye of a computer."
 
STORY: "Artificial Intelligence Experts Issue Urgent Warning Against Facial Scanning With a “Dangerous History” by Sam Biddle, published by The Intercept on December 6, 2018. ( Sam Biddle is a reporter based in Brooklyn, focusing on malfeasance and misused power in technology. While working at Gizmodo and Gawker, he covered stories ranging from vast corporate data breaches and celebrity hackers to trafficked webcam models and Facebook privacy. As the editor of Valleywag, he provided a critical, adversarial view of the startup economy and Silicon Valley culture. His work has also appeared in GQ, Vice, and The Awl.)

PHOTO CAPTION: "A man watches as a visitor tries out a facial recognition display at the Global Mobile Internet Conference in Beijing, on April 26, 2018. "

GIST: "Facial recognition  has quickly shifted from techno-novelty to fact of life for many, with millions around the world at least willing to put up with their faces scanned by software at the airport, their iPhones, or Facebook’s server farms. But researchers at New York University’s AI Now Institute have issued a strong warning against not only ubiquitous facial recognition, but its more sinister cousin: so-called affect recognition, technology that claims it can find hidden meaning in the shape of your nose, the contours of your mouth, and the way you smile. If that sounds like something dredged up from the 19th century, that’s because it sort of is. AI Now’s 2018 report is a 56-page record of how “artificial intelligence” — an umbrella term that includes a myriad of both scientific attempts to simulate human judgment and marketing nonsense — continues to spread without oversight, regulation, or meaningful ethical scrutiny. The report covers a wide expanse of uses and abuses, including instances of racial discrimination, police surveillance, and how trade secrecy laws can hide biased code from an AI-surveilled public. But AI Now, which was established last year to grapple with the social implications of artificial intelligence, expresses in the document particular dread over affect recognition, “a subclass of facial recognition that claims to detect things such as personality, inner feelings, mental health, and ‘worker engagement’ based on images or video of faces.” The thought of your boss watching you through a camera that uses machine learning to constantly assess your mental state is bad enough, while the prospect of police using “affect recognition” to deduce your future criminality based on “micro-expressions” is exponentially worse.
“The ability to use machine vision and massive data analysis to find correlations is leading to some very suspect claims.”
That’s because “affect recognition,” the report explains, is little more than the computerization of physiognomy, a thoroughly disgraced and debunked strain of pseudoscience from another era that claimed a person’s character could be discerned from their bodies — and their faces, in particular. There was no reason to believe this was true in the 1880s, when figures like the discredited Italian criminologist Cesare Lombroso promoted the theory, and there’s even less reason to believe it today. Still, it’s an attractive idea, despite its lack of grounding in any science, and data-centric firms have leapt at the opportunity to not only put names to faces, but to ascribe entire behavior patterns and predictions to some invisible relationship between your eyebrow and nose that can only be deciphered through the eye of a computer. Two years ago, students at a Shanghai university published a report detailing what they claimed to be a machine learning method for determining criminality based on facial features alone. The paper was widely criticized, including by AI Now’s Kate Crawford, who told The Intercept it constituted “literal phrenology … just using modern tools of supervised machine learning instead of calipers.” Crawford and her colleagues are now more opposed than ever to the spread of this sort of culturally and scientifically regressive algorithmic prediction: “Although physiognomy fell out of favor following its association with Nazi race science, researchers are worried about a reemergence of physiognomic ideas in affect recognition applications,” the report reads. “The idea that AI systems might be able to tell us what a student, a customer, or a criminal suspect is really feeling or what type of person they intrinsically are is proving attractive to both corporations and governments, even though the scientific justifications for such claims are highly questionable, and the history of their discriminatory purposes well-documented.” In an email to The Intercept, Crawford, AI Now’s co-founder and distinguished research professor at NYU, along with Meredith Whittaker, co-founder of AI Now and a distinguished research scientist at NYU, explained why affect recognition is more worrying today than ever, referring to two companies that use appearances to draw big conclusions about people. “From Faception claiming they can ‘detect’ if someone is a terrorist from their face to HireVue mass-recording job applicants to predict if they will be a good employee based on their facial ‘micro-expressions,’ the ability to use machine vision and massive data analysis to find correlations is leading to some very suspect claims,” said Crawford. Faception has purported to determine from appearance if someone is “psychologically unbalanced,” anxious, or charismatic, while HireVue has ranked job applicants on the same basis. As with any computerized system of automatic, invisible judgment and decision-making, the potential to be wrongly classified, flagged, or tagged is immense with affect recognition, particularly given its thin scientific basis: “How would a person profiled by these systems contest the result?,” Crawford added. “What happens when we rely on black-boxed AI systems to judge the ‘interior life’ or worthiness of human beings? Some of these products cite deeply controversial theories that are long disputed in the psychological literature, but are are being treated by AI startups as fact.” What’s worse than bad science passing judgment on anyone within camera range is that the algorithms making these decisions are kept private by the firms that develop them, safe from rigorous scrutiny behind a veil of trade secrecy. AI Now’s Whittaker singles out corporate secrecy as confounding the already problematic practices of affect recognition: “Because most of these technologies are being developed by private companies, which operate under corporate secrecy laws, our report makes a strong recommendation for protections for ethical whistleblowers within these companies.” Such whistleblowing will continue to be crucial, wrote Whittaker, because so many data firms treat privacy and transparency as a liability, rather than a virtue: “The justifications vary, but mostly [AI developers] disclaim all responsibility and say it’s up to the customers to decide what to do with it.” Pseudoscience paired with state-of-the-art computer engineering and placed in a void of accountability. What could go wrong?"

The entire story can be read aT:
https://theintercept.com/2018/12/06/artificial-intellgience-experts-issue-urgent-warning-against-facial-scanning-with-a-dangerous-history/

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, December 8, 2018

Back in action: On-Going: Virginia: Flawed hair tests: The Daily Press editorializes on a review of cases in which examiners had testified to the probability that hair entered into evidence belonged to a single person. (And the 'numbers' of potentially affected cases for the review are huge. HL)..."The initiative that kick started this review in Virginia was actually led by the FBI after three DNA exonerations between 2009 and 2012 in which all three defendants were convicted on faulty microscopic hair comparison testimony. The FBI trained hair examiners across the country, and in 2015, the FBI, The Innocence Project, the U.S. Department of Justice and the National Association of Criminal Defense Lawyers found at least 90 percent of the trial transcripts the FBI analyzed included erroneous statements made by hair examiners. The FBI's finding caused some states to consider their own examiner testimony, revealing just how complicated a review can become. So far, the staff at the Virginia Department of Forensic Science has reviewed about 150,000 of the million cases."


PASSAGE OF THE DAY: "The faulty testimony of hair examiners doesn't necessarily mean defendants were wrongly convicted, but it does open a door for evidence to be retested. Why bother with this hassle, especially if it may bring discomfort to victims' families? Because our country is built on an assumption of equal justice. "The whole idea of equal justice under law means that you've got to play by the rules. It has nothing to do with the underlying subject matter. You just tell the truth." Those are the words of former U.S. Solicitor General Kenneth Starr, and they summarize why this review of old cases is important. Applying equal justice means no one should be sitting behind bars without first being given due process. And how could such a procedure take place with the use of misleading testimony? That's not to say those examiners intentionally misled juries into believing the suspects were guilty. But now that we know more about the DNA in hair samples, the state needs to review as much testimony as possible to ensure it is not holding innocent people in prison."

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

EDITORIAL:  "Testimony worth the second look," by the Daily Press Editorial Board, published on November 24, 2018.

SUB-HEADING: "Faulty testimony that relied on collected hair samples is being reviewed to ensure defendants were justly tried." Hollywood makes it look easy. Detectives collect samples of blood and lipstick, chance fingerprints and other DNA evidence haphazardly lying around crime scenes. The clues are used to tie ghastly cases together for prosecutors in neat, nearly hour-long episodes. The world we live in is not that clear-cut. And the ever-present technology, science and skilled personnel that seals the case for Hollywood's gumshoes is not as readily available and does not produce as clear a result as it does on television. Hair samples are one such example. The Virginia Department of Forensic Science is reviewing cases in which examiners had testified to the probability that hair entered into evidence belonged to a single person. Experts say that kind of testimony is flawed because science can't definitively link any single hair sample to an individual.Now, the department is reviewing cases where such testimony may have been used as the linchpin to a guilty verdict. The problem with such a review is that there are about a million case files in the archives from between 1973 and 1994 that need to be digitized and searched. The cases already digitized also need to be scrutinized. Record keeping involving case transcripts is not uniform in Virginia, meaning in some instances, the written records of examiners' courtroom testimonies may have already been destroyed or filed away in hard-to-retrieve places. When a transcript isn't available through the court reporter or clerk, the review team is turning to prosecutors, defense attorneys and even defendants to see if they have a copy of the documents. The initiative that kick started this review in Virginia was actually led by the FBI after three DNA exonerations between 2009 and 2012 in which all three defendants were convicted on faulty microscopic hair comparison testimony. The FBI trained hair examiners across the country, and in 2015, the FBI, The Innocence Project, the U.S. Department of Justice and the National Association of Criminal Defense Lawyers found at least 90 percent of the trial transcripts the FBI analyzed included erroneous statements made by hair examiners. The FBI's finding caused some states to consider their own examiner testimony, revealing just how complicated a review can become. So far, the staff at the Virginia Department of Forensic Science has reviewed about 150,000 of the million cases. Of those, 358 had a positive probative association. Of those, 16 cases involved a suspect who was tried and convicted and the department was able to get the transcripts. The team sent seven notifications to defendants, intended to inform them their trials had questionable testimony from a hair examiner. Of the seven, four notifications are pending because the department hasn't been able to track down the defendant or their family. The faulty testimony of hair examiners doesn't necessarily mean defendants were wrongly convicted, but it does open a door for evidence to be retested. Why bother with this hassle, especially if it may bring discomfort to victims' families? Because our country is built on an assumption of equal justice. "The whole idea of equal justice under law means that you've got to play by the rules. It has nothing to do with the underlying subject matter. You just tell the truth." Those are the words of former U.S. Solicitor General Kenneth Starr, and they summarize why this review of old cases is important. Applying equal justice means no one should be sitting behind bars without first being given due process. And how could such a procedure take place with the use of misleading testimony? That's not to say those examiners intentionally misled juries into believing the suspects were guilty. But now that we know more about the DNA in hair samples, the state needs to review as much testimony as possible to ensure it is not holding innocent people in prison. This review is, perhaps, a telling litmus to the state judicial system's record keeping. That is to say, if authorities cannot easily retrieve and review records needed for this process, who's to say they will have the ability to find any valuable records for other cases? We are not saying warehouses of needless files be stored for decades at taxpayers' expense, but the authorities responsible for how cases are evaluated should have a frank discussion about the current state of record keeping and retrieval. Ultimately, this review will consume both time and money, but it may prevent innocent people from needlessly spending precious time behind bars. And freedom, in our free society, is a priceless commodity."

The entire story can be read at:
https://www.dailypress.com/news/opinion/editorials/dp-edt-dna-evidence-1125-story.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; 

Friday, December 7, 2018

Back in action: On-going: New York: Silvon Simmons; Anatomy of a cover-up... Fascinating story from 'Techdirt.'..."Man Shot By Cops Claims Shotspotter Found Phantom 'Gunshot' To Justify Officer's Deadly Force." "Simmons had been engaged in 'Minding Your Own Business,' which can apparently be nearly-fatal. Returning from a trip to a convenience store shortly after 9 pm, Officer Ferrigno cut in front of him, hit Simmons with his spotlight, exited his car with his gun drawn, and opened fire when Simmons began running. According to Simmons' amendment complaint [PDF] filed in August, Ferrigno never stated he was police officer before opening fire. Simmons, blinded by the spotlight, was unsure who was shooting at him. Even if he had known it was cop, he still would have had no idea why he was being stopped, much less shot at. The number of bullets fired matters, as Tracy Rosenburg of Oakland Privacy reports. Something seriously messed up happened after the shooting."


PASSAGE OF THE DAY: "Having reverse-engineered a narrative to support the shooting, cops set about charging Simmons with attempted aggravated murder, attempted aggravated assault on a police officer, and criminal weapon possession. Simmons spent more than a year in jail before being acquitted on all charges. The wounds he sustained are permanent. The dark and disturbing wildcard in this lawsuit is a Shotspotter gunshot detection device. The sensor reported no shots that night. What it detected during the shooting of Simmons was determined by the device to be "helicopter noise." That alone is concerning, considering the main job of the Shotspotter is to spot gunshots. But that all changed once a police officer got involved. The Shotspotter forensic report says the incident switched from "helicopter noise" to "multiple gunshots" at an officer's request. This officer requested something extra though: an additional gunshot to support the narrative used to charge Simmons with murder/assault and give Officer Ferrigno post-incident permission to shoot the man fleeing from him."

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

PUBLISHER'S NOTE: As the Wikipedia entry below indicates - 'Shotspotter'  - a gunshot location system -  can be used by police"to direct first responders to the scene of the gunfire. But the entry also tells us that gunshot location technology like 'Shotspotter' can provide "Additional benefits (which)  include aiding investigators to find more forensic evidence to solve crimes and provide to prosecutors to strengthen court cases resulting in a higher conviction rate. the following report, shows how police attempted to cover up the framing of an innocent  by manipulating shotspotter data. Fortunately the court saw thorough this blatant abuse  of technology by police for nefarious purposes.

Harold Levy: Publisher; The Charles Smith Blog.

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

STORY:  "Man Shot By Cops Claims Shotspotter Found Phantom 'Gunshot' To Justify Officer's Deadly Force," published by Techdirt.

SUB-HEADING:  "from the so-are-cops-still-losing-the-tech-race-or-whatever? dept."

GIST: "A lawsuit originally filed early last year makes some very disturbing allegations about police officers and their relationship with their vendors. New York resident Silvon Simmons was shot three times by Rochester Police Officer Joseph Ferrigno. Simmons was unarmed, but was hit with three of the four bullets fired by Ferrigno as he ran way from the officer. Shortly before being shot. Simmons had been engaged in "Minding Your Own Business," which can apparently be nearly-fatal. Returning from a trip to a convenience store shortly after 9 pm, Officer Ferrigno cut in front of him, hit Simmons with his spotlight, exited his car with his gun drawn, and opened fire when Simmons began running. According to Simmons' amendment complaint [PDF] filed in August, Ferrigno never stated he was police officer before opening fire. Simmons, blinded by the spotlight, was unsure who was shooting at him. Even if he had known it was cop, he still would have had no idea why he was being stopped, much less shot at. The number of bullets fired matters, as Tracy Rosenburg of Oakland Privacy reports. Something seriously messed up happened after the shooting. A gun was found in the yard several houses away from where Simmons was stopped. Cops tried to tie this weapon to Simmons to justify Ferrigno's deadly force use, despite the gun being located in the opposite direction of Simmons' flight path. Not that it would have mattered if it had been found in the same yard where Simmons lay "playing dead" in order to not get shot again by his unseen assailant.
A Ruger revolver was said to have been recovered at the site an hour or so later. The Ruger did not belong to Silvon Simmons. His fingerprints and DNA were not on the recovered gun. The only shell casings recovered at the site were the four bullets from the officer’s Glock. The Ruger had an empty magazine and it was not in the lockback position, indicating it had not been recently fired.
Simmons offered to give the officers even more evidence, but since it was exculpatory, they weren't interested.
Simmons requested his hands and clothing be checked for gunpowder residue. The request was denied. Simmons repeated the request in writing while intubated at the hospital and was told to stop writing questions.
Having reverse-engineered a narrative to support the shooting, cops set about charging Simmons with attempted aggravated murder, attempted aggravated assault on a police officer, and criminal weapon possession. Simmons spent more than a year in jail before being acquitted on all charges. The wounds he sustained are permanent. The dark and disturbing wildcard in this lawsuit is a Shotspotter gunshot detection device. The sensor reported no shots that night. What it detected during the shooting of Simmons was determined by the device to be "helicopter noise." That alone is concerning, considering the main job of the Shotspotter is to spot gunshots. But that all changed once a police officer got involved. The Shotspotter forensic report says the incident switched from "helicopter noise" to "multiple gunshots" at an officer's request. This officer requested something extra though: an additional gunshot to support the narrative used to charge Simmons with murder/assault and give Officer Ferrigno post-incident permission to shoot the man fleeing from him.
A Rochester police officer acknowledged at the criminal trial of Silvon Simmons that he left the shooting scene after midnight, returned to the fourth floor at the Central Investigations Division of the Rochester Police Department, logged onto a computer and opened a chat session with Shotspotter, where he provided the location, time, the number of possible shots and the caliber of the weapons allegedly fired. Officer Robert Wetzel also testified that Shotspotter responded to him that they found a fifth gunshot at his request.
Shotspotter's forensic analyst certified the report, testifying that five shots were fired. Shotspotter somehow managed to detect another gunshot hours after the incident, using only the guidance of an officer who desperately needed another shot on the record. The company's forensic expert basically admitted this much while testifying.
This conclusion was based solely upon information provided to Shotspotter by the Rochester Police Department.
There may have been a simple way to prove/disprove the existence of another gunshot -- one that can't be traced to the weapon found or have been observed by anyone but the officer who needed a justification for his deadly force deployment. Spotshotter retains recordings… usually. But somehow this essential recording capturing an officer-involved shooting vanished.
[Shotspotter forensic analyst Paul] Greene testified at the criminal trial that there was “no way to go and look at the original file that was recorded and there is no way to listen to all the audio from that day”. The reason there was no way to do this was that both Shotspotter and the Rochester Police Department had lost the audio recording from the night of April 1, 2016.
Whatever doesn't agree with the narrative had to go, and so Shotspotter's recording went. Shotspotter has customers to please and shareholders to earn profits for. If the customer isn't happy with the product, they're unlikely to keep buying more. If keeping a customer happy means deleting recordings and certifying altered forensic reports, so be it. Whatever it takes to ensure the revenue stream keeps flowing -- even if "whatever" means framing a gunshot victim for a crime he didn't commit.

The entire story can be read at:
https://www.techdirt.com/articles/20181204/08442041156/man-shot-cops-claims-shotspotter-found-phantom-gunshot-to-justify-officers-deadly-force.shtml

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; 

Back in action: On-going: Barry Jones: Arizona; Intercept series (by reporter Liliana Segura) on Arizona's ugly efforts to do everything in its power to keep him on death row. (A monumental series. HL)..."The case is the latest in a growing number of cases in which prosecutors have presented false or misleading forensic testimony that have sent defendants to death row for the alleged murder of a child. In April 2018, Vicente Benavides was exonerated after spending nearly 26 years on California's death row for supposedly raping, sodomizing, and murdering his girlfriend’s 21-month-old daughter. In fact, the toddler had not been raped and may have died from internal injuries sustained from being hit by a car. The California Supreme Court called Benevides’s wrongful conviction a product of “extensive,” “pervasive,” “impactful,” and “false” forensic testimony. At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child."


PASSAGE OF THE DAY: (From Death Penalty Information Centre entry below.) "On July 31, 2018, U.S. District Judge Timothy Burgess granted a new trial to Jones, who has spent 23 years on Arizona’s death row, finding that if Jones had been competently represented at trial, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” Jones has consistently maintained his innocence. Jones’s case was tainted by what Judge Burgess called a “rush to judgment” by police investigators. His conviction was based largely on questionable eyewitness testimony from two 8-year-olds, combined with unreliable forensic testimony. A medical examiner who testified against Jones later gave contradictory testimony about the timing of the victim’s fatal injury that would have ruled out Jones as a suspect. Police failed to investigate evidence pointing to other suspects, and Jones’s defense team failed to examine alternative theories of the crime. Jones was also convicted of raping Gray, despite the lack of any evidence that the alleged rape occurred at the time she sustained her fatal abdominal injury. Judge Burgess found that both Jones’s trial lawyer and the lawyer Arizona appointed to represent him in his state post-conviction proceedings were ineffective, and that both failed to conduct professionally appropriate investigations into the case. He wrote that trial counsel “failed to perform an adequate pretrial investigation, leading to his failure to uncover key medical evidence that Rachel’s injuries were not sustained on May 1, 1994”—the day the prosecution said Jones raped and killed her—and unreasonably “fail[ed] to impeach the state’s other physical and eyewitness testimony.”

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

PUBLISHERS' NOTE: Kudos to Intercept scribe Liliana Segura  - an extraordinary criminal justice reporter - for her monumental series on the Barry Jones Case - which  reeks of junk science and other forensic issues of interest to the readers of  this Blog.  Segura frames the series around several pivotal questions: His conviction was overturned: Why is Arizona doing everything in its power to keep Barry Jones  on death row? Rather than allow its case against Jones to withstand the scrutiny of a new trial, the state is determined to undo the order that threw out his conviction. "Readers can find the four parts at the link below: (I will be  following developments closely. HL)

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

(For background see the Death Penalty Information Centre entry at the link below): "A federal district court has vacated the murder conviction of Arizona death-row prisoner Barry Jones (pictured) in the death of 4-year-old Rachel Gray, and has ordered the state to immediately retry or release Jones. On July 31, 2018, U.S. District Judge Timothy Burgess granted a new trial to Jones, who has spent 23 years on Arizona’s death row, finding that if Jones had been competently represented at trial, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” Jones has consistently maintained his innocence. Jones’s case was tainted by what Judge Burgess called a “rush to judgment” by police investigators. His conviction was based largely on questionable eyewitness testimony from two 8-year-olds, combined with unreliable forensic testimony. A medical examiner who testified against Jones later gave contradictory testimony about the timing of the victim’s fatal injury that would have ruled out Jones as a suspect. Police failed to investigate evidence pointing to other suspects, and Jones’s defense team failed to examine alternative theories of the crime. Jones was also convicted of raping Gray, despite the lack of any evidence that the alleged rape occurred at the time she sustained her fatal abdominal injury. Judge Burgess found that both Jones’s trial lawyer and the lawyer Arizona appointed to represent him in his state post-conviction proceedings were ineffective, and that both failed to conduct professionally appropriate investigations into the case. He wrote that trial counsel “failed to perform an adequate pretrial investigation, leading to his failure to uncover key medical evidence that Rachel’s injuries were not sustained on May 1, 1994”—the day the prosecution said Jones raped and killed her—and unreasonably “fail[ed] to impeach the state’s other physical and eyewitness testimony.” Sylvia Lett, Jones’s former appellate attorney, summarized the judge’s findings, saying, “He saw the state’s investigation for what it was, which was shoddy, the defense investigation for what it was, which was nonexistent, and he said, ‘That’s not fair.’ And that’s how it’s supposed to work.” A decade ago, the federal courts would have considered Jones’s ineffective assistance claim waived because of his prior lawyers’ failures to raise it in state court, and Jones likely would have been executed. However, in 2012 in Martinez v. Ryan, the U.S. Supreme Court ruled that federal habeas corpus courts may review a state prisoner’s claim that his trial lawyer was ineffective if the failure to raise the claim in state court resulted from additional ineffective representation by his state post-conviction lawyer. The federal courts had originally refused to hear Jones’s claim, but after Martinez was decided, the U.S. Court of Appeals for the Ninth Circuit sent the case back to the district court for further consideration. The case is the latest in a growing number of cases in which prosecutors have presented false or misleading forensic testimony that have sent defendants to death row for the alleged murder of a child. In April 2018, Vicente Benavides was exonerated after spending nearly 26 years on California's death row for supposedly raping, sodomizing, and murdering his girlfriend’s 21-month-old daughter. In fact, the toddler had not been raped and may have died from internal injuries sustained from being hit by a car. The California Supreme Court called Benevides’s wrongful conviction a product of “extensive,” “pervasive,” “impactful,” and “false” forensic testimony. At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child."  https://deathpenaltyinfo.org/node/7166

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

Segura Intercept Series:


Thursday, December 6, 2018

Back in action; On-going; Shaken Baby Syndrome: Blogger Sue Luttner (On SBS) brings to light two Ohio decisions "which seed hope."


PASSAGE OF THE DAY: "My best hope is that Judge Carr might notice a pattern in the child abuse suits that come through his court. A few popular but unproven tenets of child abuse medicine—that the triad proves shaking, for example, and the symptoms are always immediate, or that spiral fractures mean abuse—continue to derail accurate diagnosis and mar the good work that child abuse physicians otherwise do."

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

POST: "Ohio Decisions Seed Hope," by Sue Luttner, published on her informative Blog "On SBS' on December 2, 2018.

GIST:  In this post, Ms. Luttner comments  on  two decisions this fall in Ohio which she says offer hope for the wrongfully accused, while underscoring both the ironies and the complexities of misguided accusations of child physical abuse. (She says one of them opens the door to possible legal accountability for the casual over-diagnosis of abuse.) The first decision relates to the 2016 assault conviction of child care provider Chantal Thoss. The second is day care worker Beth Gokor's civil law suit against rhe doctor who concluded that the spiral fracture to the boy’s leg must have been an inflicted injury, not an accident. As Ms. Luttner comments on the Gorkor  case: I can understand why the unanimity of opinion among child abuse experts gives the impression that shaking theory is well established—that conclusion, alas, is one of the reasons this fight is so difficult. The problem is that shaking theory was adopted before it was proven scientifically, and the research since that point has been premised on the assumption that convictions and plea bargains prove abuse. My best hope is that Judge Carr might notice a pattern in the child abuse suits that come through his court. A few popular but unproven tenets of child abuse medicine—that the triad proves shaking, for example, and the symptoms are always immediate, or that spiral fractures mean abuse—continue to derail accurate diagnosis and mar the good work that child abuse physicians otherwise do."


The entire post - well worth the read - can be accessed at the link bellow
https://onsbs.com/2018/12/02/ohio-decisions-seed-hope/

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;