Wednesday, January 31, 2018

Hysteria: "Remembering when ‘sketchiest of evidence or none at all’ was plenty."... Some more relevant analysis (Judith Levine in the Boston Review) from the "Little Rascals Day Care Case Blog."..."In its review of exonerations from 1989 to 2012, the National Registry of Exonerations reported that among convictions for crimes that never occurred, over half involved child sexual abuse: ‘Two-thirds of these cases were generated in a wave of child sexual abuse hysteria that swept the country three decades ago.”


PASSAGE OF THE DAY: "With the sketchiest of evidence or none at all, child protective agencies removed kids from their parents. Credulous juries sent day-care workers to prison on charges of ‘satanic ritual abuse.’ Adults denounced their aging parents, guilty of nothing more than imperfect love, as sadistic rapists. It took only one accusation to ruin a person’s life. Bus drivers, babysitters, divorcing fathers, and boyfriends at the wrong end of a grudge lost jobs, families, and reputations with one accusation, one newspaper item."

PUBLISHER'S NOTE: For several years I have been following a Blog  on what has become known as the "Little Rascals Day Care Case" by former Charlotte journalist Lew Powell. I have learned a great  deal about waves of fear and hatred, and  prosecutions motivated by mass hysteria  from Mr. Powell's Blog and recommend it heartily to our readers.  Lew Powell writes that he didn't cover the Little Rascal's case, and does not know anyone involved. "My motivation is simple outrage and shame over how North Carolina prosecutors maliciously denied justice – and continue to deny exoneration – to seven innocent defendants." He has been described as "an early and persistent critic of the madness who  does not waiver in his plea for belated justice."

Harold Levy: Publisher; The Charles Smith Blog:

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POST: "Remembering when ‘sketchiest of evidence or none at all’ was plenty, by Lew Powell, published on his Blog  on January 8, 2018.

GIST: Excerpt from  'Will Feminism’s Past Mistakes Haunt #MeToo?(Dec. 8) by Judith Levine in Boston Review:  “Because [this movement] was about sex and children, hysteria was not far behind. Before long, an industry of feminist and Christian therapists and self-help writers were claiming that virtually every behavioral quirk or emotional trouble could be traced to sexual abuse, even if – especially if – the alleged victim did not remember it. ‘If you think you were abused and your life shows the symptoms, then you were,’ wrote poet Ellen Bass and journalist Laura Davis in their massive bestseller The Courage to Heal  (1988). The symptom checklists in it and similar books include everything from arthritis to feeling ugly. Bass’s book launched a battery of unscientific ‘therapeutic’ and forensic interviewing techniques to extract false and ‘recovered’ memories of sexual depredation. …“A new crusade marched under the banner ‘Believe the Children.’ With the sketchiest of evidence or none at all, child protective agencies removed kids from their parents. Credulous juries sent day-care workers to prison on charges of ‘satanic ritual abuse.’ Adults denounced their aging parents, guilty of nothing more than imperfect love, as sadistic rapists. It took only one accusation to ruin a person’s life. Bus drivers, babysitters, divorcing fathers, and boyfriends at the wrong end of a grudge lost jobs, families, and reputations with one accusation, one newspaper item. In its review of exonerations from 1989 to 2012, the National Registry of Exonerations reported that among convictions for crimes that never occurred, over half involved child sexual abuse: ‘Two-thirds of these cases were generated in a wave of child sexual abuse hysteria that swept the country three decades ago.”

The entire post can be found at the link below:
https://www.littlerascalsdaycarecase.org/wordpress/?p=3032

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, January 30, 2018

William Amor: Illinois; Arson 'science'; False confession; Bulletin: "Expert reiterates opinion at murder trial that fatal Naperville fire was accidental," The Chicago Tribune reports. Freelance Reporter Clifford Ward)..."During his testimony Monday and Tuesday, Carpenter said that had the fire been set with an open flame, it would have taken about two minutes to create the smoke and fire conditions Miceli reported on her 911 call. Details of the Miceli fire indicate it was started by a cigarette smoldering in a recliner that eventually burst into flames and trapped Miceli, Carpenter testified. All three residents were smokers, according to testimony. About three weeks after the fire, Amor confessed to setting it with a lit cigarette and vodka-soaked newspaper, which has since been acknowledged as an impossible method for starting a fire. His defense team from the Illinois Innocence Project says Amor was coerced into confessing during an interrogation session where police served Amor with divorce papers filed by his wife. Prosecutors say Amor’s confession was made willingly, and he hoped to collect insurance money from the fire. The trial will continue Wednesday with another defense fire expert slated to testify. The trial, a bench proceeding before Judge Liam Brennan, is expected to conclude Friday."




"A fire science expert Tuesday reiterated his opinion that the 1995 fire that killed a Naperville woman was accidental, setting the stage for two additional experts expected to testify this week in the murder trial of the woman’s former son-in-law, William Amor. Douglas Carpenter, an engineer and combustion science specialist, concluded his second day of testimony as a witness for the defense in the DuPage County trial of Amor, 62, who is accused of the arson killing of Marianne Miceli. Amor was found guilty of the crime in 1997, but his conviction was vacated last year, in part due to Carpenter’s testimony at hearing in 2016 that the fatal fire that killed Miceli was accidental and likely caused by a cigarette left in a living room reclining chair. Carpenter testified Monday and gave the same conclusion — that the fire was accidental. He said that was the most scientifically reliable explanation for the Sept. 10, 1995, blaze at the Bailey Road condo where Miceli, 40, lived with her daughter, Tina, and Amor, who had married Tina earlier in 1995.According to previous testimony Tina and Amor had left the condo to go to a movie. About 20 minutes later, Marianne called 911 to report the fire and was overcome by smoke as she spoke to the operator. During his testimony Monday and Tuesday, Carpenter said that had the fire been set with an open flame, it would have taken about two minutes to create the smoke and fire conditions Miceli reported on her 911 call.
Details of the Miceli fire indicate it was started by a cigarette smoldering in a recliner that eventually burst into flames and trapped Miceli, Carpenter testified. All three residents were smokers, according to testimony. About three weeks after the fire, Amor confessed to setting it with a lit cigarette and vodka-soaked newspaper, which has since been acknowledged as an impossible method for starting a fire. His defense team from the Illinois Innocence Project says Amor was coerced into confessing during an interrogation session where police served Amor with divorce papers filed by his wife. Prosecutors say Amor’s confession was made willingly, and he hoped to collect insurance money from the fire. The trial will continue Wednesday with another defense fire expert slated to testify. The trial, a bench proceeding before Judge Liam Brennan, is expected to conclude Friday."

http://www.chicagotribune.com/suburbs/naperville-sun/news/ct-met-naperville-amor-arson-trial-20180130-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.


Kristine Bunch: Indiana: (Arson 'science')...Helping the Wrongfully Convicted in Wyoming Prove Innocence. The Innocence Project..."The conviction was largely based on what was thought to be evidence of arson at the time. In the following decades fire science changed dramatically and the so-called evidence of arson was debunked. A more reliable technique called fire toxicology emerged and revealed that the fire that killed Kristine’s son was accidental. Based on this new evidence she was exonerated after spending 17 years in prison. Had this case occurred in Wyoming, Kristine probably would not have been able to get her conviction overturned. You can help by supporting legislation that would change Wyoming’s law to ensure wrongfully convicted people like Kristine Bunch have an opportunity to prove their innocence."


(PASSAGE OF THE DAY) - From U.S. Registry of Exonerations entry: "After discussing the case with Hilary Ricks and reading the trial transcript, Raley approached three fire forensic experts — Jamie McAllister, John DeHaan, and John Malooly — who concurred in the view that the arson testimony presented by the prosecution at Bunch’s trial in all likelihood had been wrong. Raley and CWC staff counsel Karen Daniel agreed to join Ricks in representing Bunch. One of the first things they did was subpoena ATF files on the original investigation. In response, the ATF surrendered previously undisclosed documents showing that — contrary to the trial testimony of William Kinard, the ATF analyst — no heavy petroleum distillate had been found in the bedroom. No HPD, as it was known in ATF shorthand, was found anywhere in the trailer.  Kerosene had been found only in the living room, where there was an innocent explanation for its presence: The family had used a kerosene heater in the living room during winter months, and when filling it sometimes spilled kerosene on the floor. The critical sample in Tony’s bedroom was completely negative. Because Kinard’s trial testimony that a liquid accelerant had been found in both the bedroom and living room left an inescapable impression that the fire had been set, the ATF documents were highly exculpatory. Yet they had been withheld from Bunch’s trial counsel in violation of the U.S. Supreme Court’s 1963 decision in Brady v. Maryland requiring prosecutors to turn over exculpatory materials to defense lawyers prior to trial."

STORY: "Helping the Wrongfully Convicted in Wyoming Prove Innocence," published by The Innocence Project. (2018).
 

GIST: "In Wyoming, a wrongfully convicted person has only two years from the date of their guilty verdict to present new evidence of their innocence–even if there’s no way the evidence could have been discovered in that time. This is a huge barrier to freeing the innocent. For example, Kristine Bunch was convicted in 1996 of setting a fire that killed her 3-year-old son in Indiana. The conviction was largely based on what was thought to be evidence of arson at the time. In the following decades fire science changed dramatically and the so-called evidence of arson was debunked. A more reliable technique called fire toxicology emerged and revealed that the fire that killed Kristine’s son was accidental. Based on this new evidence she was exonerated after spending 17 years in prison. Had this case occurred in Wyoming, Kristine probably would not have been able to get her conviction overturned. You can help by supporting legislation that would change Wyoming’s law to ensure wrongfully convicted people like Kristine Bunch have an opportunity to prove their innocence."

The entire story can be found at:
https://www.innocenceproject.org/wyoming/

Read the U.S. Registry of Exonerations post on Christine Brunch - by Rob Warden - at the link below; "Kristine Bunch, a client of the Center on Wrongful Convictions, languished behind bars for more than 17 years after she was arrested and charged with setting a fire that claimed the life of her three-year-old son, Anthony, on June 30, 1995, in a trailer home they shared in Decatur County, Indiana. "Shortly after the fire, Brian Frank, a state arson investigator, concluded that it had started in two places and that a liquid accelerant, such as kerosene or charcoal lighter fluid, had been used to start it at both locations. Six days later, based largely on Frank’s findings, Bunch was charged with arson and felony murder. "At her trial, which opened on February 26, 1996, Frank told the Decatur County Circuit Court jury: “There were two separate fires. One was in the south bedroom, along the south wall. That was caused by the liquid accelerant being present. The second fire originated at the doorway, the area of the doorway of the south bedroom into the living room. And there was a liquid accelerant poured across the floor of the living room that went to the front door of the mobile home.” Frank’s testimony regarding the accelerant was corroborated by William Kinard, a forensic analyst with U.S. Bureau of Alcohol, Tobacco, and Firearms (ATF), who testified that he had identified “a heavy petroleum distillate” in flooring samples taken from both the living room where the fire was believed to have started and from the bedroom in which Anthony died. Tom Hulse, an independent arson investigator, testified for the defense that the cause of the fire should have been “classified as undetermined” because there was “a probability” that it had been accidental. On March 4, 1996, the jury found Bunch, then 22 and pregnant, guilty of murder and arson. The following April 1, Decatur County Circuit Court Judge John A. Westhafer sentenced her to concurrent prison terms of 60 years for murder and 50 years for arson. On June 9, 1998, the Indiana Supreme Court affirmed the murder conviction — citing the presence of a heavy petroleum distillate in several locations — but vacated the arson conviction on double jeopardy grounds. Bunch’s family retained an Indianapolis attorney, Hilary Bowe Ricks, who filed a petition for post-conviction relief with Westhafer in 2006. A few months later, Betsy Marks, a supporter of Bunch’s, wrote the Center on Wrongful Convictions requesting assistance. Dan Tran, a CWC volunteer from Suffolk University Law School, read Betsy’s letter, saw immediately that Bunch’s innocence claim might have merit, and referred the request to CWC staff attorney Jane Raley. After discussing the case with Hilary Ricks and reading the trial transcript, Raley approached three fire forensic experts — Jamie McAllister, John DeHaan, and John Malooly — who concurred in the view that the arson testimony presented by the prosecution at Bunch’s trial in all likelihood had been wrong. Raley and CWC staff counsel Karen Daniel agreed to join Ricks in representing Bunch. One of the first things they did was subpoena ATF files on the original investigation. In response, the ATF surrendered previously undisclosed documents showing that — contrary to the trial testimony of William Kinard, the ATF analyst — no heavy petroleum distillate had been found in the bedroom. No HPD, as it was known in ATF shorthand, was found anywhere in the trailer.  Kerosene had been found only in the living room, where there was an innocent explanation for its presence: The family had used a kerosene heater in the living room during winter months, and when filling it sometimes spilled kerosene on the floor. The critical sample in Tony’s bedroom was completely negative. Because Kinard’s trial testimony that a liquid accelerant had been found in both the bedroom and living room left an inescapable impression that the fire had been set, the ATF documents were highly exculpatory. Yet they had been withheld from Bunch’s trial counsel in violation of the U.S. Supreme Court’s 1963 decision in Brady v. Maryland requiring prosecutors to turn over exculpatory materials to defense lawyers prior to trial. In 2008, Raley, Daniel, and Ricks filed an amended petition for post-conviction relief, attaching affidavits from McAllister, DeHaan, Malooly, and Richard Hansen, an electrical engineer, in support of Bunch’s claim of innocence. The petition argued that she was entitled to a new trial because developments in fire science since her conviction constituted new evidence of her innocence and because her rights had been violated by the withholding of the ATF documents. After Westhafer agreed to hold an evidentiary hearing, Ronald S. Safer, managing partner of the Chicago law firm of Schiff Hardin LLP and a member of the CWC Advisory Board, joined Bunch’s legal team, along with Kelly M. Warner, also of Schiff Hardin. After the evidentiary hearing in October 2009, Westhafer took the case under advisement for eight months before denying relief on June 8, 2010. “While [Bunch] had new resources available to her at the post-conviction hearing, new experts do not create new evidence,” he wrote. “The issues raised and the conclusions reached — while packaged differently — remain basically the same as they were at trial in 1996.” He added that he did not believe the ATF documents would have changed the outcome of the trial. The defense appealed, and Jon Laramore of Faegre Bake Daniels LLP, a leading Indianapolis law firm, joined the legal team. Safer argued the case before a three-member panel of the Court of Appeals of Indiana on July 13, 2011. Eight months later, on March 21, 2012, the court reversed the conviction, holding two-to-one that Bunch was entitled to a new trial both because the evolving fire science met the legal criteria for new evidence and because the undisclosed ATF evidence “directly contradict[ed] Kinard’s trial testimony supporting fires originating in two places.” On August 8, 2012, the Indiana Supreme Court unanimously declined to disturb the Court of Appeals decision. Bunch, who had earned undergraduate degrees in English and anthropology from Ball State University in prison, was released on her own recognizance 24 days later — 17 years, one month, and 16 days after her wrongful arrest. She walked out of the Decatur County Jail, where she had been sent to await retrial, and into the arms of her family who had steadfastly supported her throughout her ordeal. Eight days before Christmas 2012, the prosecution dropped the charges. Bunch later filed a federal civil rights lawsuit which was pending as of October 2015."

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, January 29, 2018

William Amor: Illinois; Arson (science); False confession; On-going trial. "Defense expert at murder retrial: Deadly fire likely caused by smoldering cigarette," The Chicago Tribune reports"... "A cigarette smoldering in a chair likely caused the 1995 fire that killed a Naperville woman, a fire expert testified Monday at the murder trial of the woman’s former son-in-law. The witness, called by the defense at the retrial of William Amor, said the source of the blaze that killed Marianne Miceli was probably not an open flame but more likely a carelessly discarded cigarette that caused the smoky conditions in which Miceli died at age 40. “It’s the most scientifically reliable conclusion you can come to,” said Douglas Carpenter, vice president of a combustion engineering company in Maryland."..." In his testimony Monday, Carpenter repeated his assertion that it’s impossible to start a fire with a lit cigarette and vodka-soaked newspaper, as Amor had confessed in 1995. Amor’s lawyers from the Illinois Innocence Project contend police coerced his confession."


STORY: "Defense expert at murder retrial: Deadly fire likely caused by smoldering cigarette,"  by reporter Clifford Ward, published by The Chicago Tribune on January 29, 2018.

GIST: "A cigarette smoldering in a chair likely caused the 1995 fire that killed a Naperville woman, a fire expert testified Monday at the murder trial of the woman’s former son-in-law. The witness, called by the defense at the retrial of William Amor, said the source of the blaze that killed Marianne Miceli was probably not an open flame but more likely a carelessly discarded cigarette that caused the smoky conditions in which Miceli died at age 40. “It’s the most scientifically reliable conclusion you can come to,” said Douglas Carpenter, vice president of a combustion engineering company in Maryland. Amor, 62, is being retried for the arson murder of Miceli, who was killed in the fire in her condo on Sept. 10, 1995. A jury found Amor guilty in 1997, and he served 20 years in prison before his conviction was tossed out last year.Carpenter testified for Amor in the hearings in 2017 that led DuPage County Judge Liam Brennan to overturn Amor’s conviction. In his testimony Monday, Carpenter repeated his assertion that it’s impossible to start a fire with a lit cigarette and vodka-soaked newspaper, as Amor had confessed in 1995.  Amor’s lawyers from the Illinois Innocence Project contend police coerced his confession. DuPage County prosecutors deny Amor made his admission under duress and say he also had a financial motive — his mother-in-law’s insurance money — to start the fire. At the time, Amor was 39 and had been married for about five months to Miceli’s daughter, Tina, then 18. The three lived together in the condo, and Tina, now divorced from Amor, testified last week that all three were smokers. Carpenter testified Monday that he did not believe the fire was caused by an open flame because that type of incendiary fire did not comport with the evidence in case, mainly Marianne Miceli’s 911 call. According to testimony from Amor’s ex-wife, the couple left the condo around 6:20 p.m. that day to go to a movie. Twenty minutes later, Marianne Miceli called 911 to say there was smoke coming into her bedroom from under the door and that her exit was blocked by the flaming chair. A minute later, she was overcome. Firefighters arrived quickly and found her body on the bedroom floor. Carpenter said in his analysis that a chair set on fire by open flame would have produced the effects Miceli described in just a few minutes — far more quickly than the 20-minute time frame between the couple leaving and Marianne Miceli’s 911 call. Prosecutors will cross-examine Carpenter on Tuesday when the bench trial before Brennan continues."



The entire  story can be found at:
http://www.chicagotribune.com/suburbs/naperville-sun/news/ct-met-naperville-arson-murder-retrial-20180129-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.



Motherisk: Major Development: Defunct drug and alcohol hair testing lab at the Hospital for Sick Children in Toronto: B.C. child advocate charges that the B.C. Motherisk case review is flawed...."Among Richard’s criticisms: The review was conducted internally instead of by an independent outsider. It was based solely on the information contained in child welfare files and did not include court records or interviews with child protection workers. It examined only a fraction of the total number of Motherisk cases in B.C."..."The Vancouver Sun has previously reported that 8,000 newborns and adults underwent Motherisk testing in B.C. between 1997 and 2015. For the B.C. review, Sick Kids provided the province with the records for 5,727 Motherisk hair tests conducted from 2005 to 2015 related to child welfare agencies. From those, the province isolated 843 cases of kids in care connected to an individual with a positive Motherisk hair test. As a result of B.C.’s ongoing review, the province has made permanent the moratorium on the use of hair-strand testing in child-protection cases, which it imposed in May 2015. “Although there are other laboratories available to B.C. that could provide this test, the methodologies they use are unknown and there are major risks involved in utilizing hair strand tests to make child welfare decisions,” the report states."


STORY: "B.C. child advocate says Motherisk case review flawed," by reporter Rachel Mendleson, published by The Toronto Star on January 29, 2018.




SUB-HEADING: "Review of hair tests finds they did not play key role in custody cases, but watchdog criticizes findings."

 PHOTO CAPTION: "Bernard Richard, B.C.'s Representative for Children and Youth, says the province's ongoing review of Motherisk cases is flawed. 

GIST: "The child advocate in B.C. is raising concerns about the objectivity and limited scope of the province’s ongoing review of Motherisk cases, dismissing the initial findings as “self-serving.” A review by the B.C. government of child protection cases involving Motherisk’s flawed drug and alcohol hair tests concluded last month that the results “were not the key determinant in the decision to keep children in care.” The first phase of the review, launched in 2016, looked at open child protection cases involving 71 children who were in the sole custody of the province. Fifty-six per cent of those children were indigenous. B.C. is among four provinces — including Ontario, New Brunswick and Nova Scotia — that have launched reviews in the wake of the scandal involving discredited hair-strand testing at the Hospital for Sick Children’s now-shuttered Motherisk lab, which has cast doubt over a handful of criminal cases and thousands of child protection cases across the country. The B.C. review pinpointed only one instance in which a hair test result “appears to be one of the determining factors to remove a child” but the hair test did not affect subsequent decisions in that case, according to the report, which noted all the cases reviewed involved other factors and “multiple, substantiated child protection reports.” However, B.C.’s Representative for Children and Youth, Bernard Richard, said the report is the product of “a flawed process . . . on a number of fronts.” Among Richard’s criticisms:
  • The review was conducted internally instead of by an independent outsider.
  • It was based solely on the information contained in child welfare files and did not include court records or interviews with child protection workers.
  • It examined only a fraction of the total number of Motherisk cases in B.C.
The cases targeted for review were pulled from a list that included 843 children in care that were linked to a positive Motherisk hair test conducted between 2005 and 2015. Child welfare agencies nationwide have relied on Motherisk testing primarily as proof of parental substance abuse. “It is difficult for us not to reach the conclusion that this is a very convenient finding for the ministry, because it justifies them not taking further steps,” Richard said. “There are no perfect solutions, but clearly there are better processes than the one in B.C.” All of the provincial reviews are internal, except in Ontario, where the $10-million Motherisk Commission, established under the Public Inquiries Act, is probing individual cases as well as offering counselling and legal assistance to affected families. The commission has drawn criticism for not looking at all affected cases, but lead counsel Lorne Glass has said he believes all cases where children have been permanently removed from their families will be reviewed. So far, of the 1,275 cases reviewed in Ontario, the probe has identified 57 cases where the Motherisk testing had a substantial impact — roughly four per cent.
B.C.’s deputy director of child welfare, Alex Scheiber, who led that province’s review, said his ministry was the first in Canada to proactively establish a process to examine affected cases. The scope of the first phase was intentionally limited to quickly pinpoint high-priority cases, so placement decisions could be reversed if necessary, he said. “We are aware of the limitations of doing an internal review like this. That’s why we’re doing a second phase of this (review), because we recognize that there are other areas we need to explore to do a (complete) review,” he said. Scheiber said the province is waiting for a report from Ontario’s Motherisk Commission, whose mandate was recently extended until the end of February, to define the scope for the second phase of the review. He declined to comment on whether B.C. should establish an independent commission, similar to Ontario’s, to review Motherisk cases. The Star first exposed questions about the reliability of Motherisk’s hair testing in late 2014, after the results came under scrutiny in a criminal appeal, which led the province to appoint a retired judge to review the lab. The review concluded in December 2015 that Motherisk’s tests were “inadequate and unreliable” for use in criminal and child protection proceedings from 2005 to 2015. The Vancouver Sun has previously reported that 8,000 newborns and adults underwent Motherisk testing in B.C. between 1997 and 2015. For the B.C. review, Sick Kids provided the province with the records for 5,727 Motherisk hair tests conducted from 2005 to 2015 related to child welfare agencies. From those, the province isolated 843 cases of kids in care connected to an individual with a positive Motherisk hair test. As a result of B.C.’s ongoing review, the province has made permanent the moratorium on the use of hair-strand testing in child-protection cases, which it imposed in May 2015. “Although there are other laboratories available to B.C. that could provide this test, the methodologies they use are unknown and there are major risks involved in utilizing hair strand tests to make child welfare decisions,” the report states."

The entire story can be found at:
https://www.thestar.com/news/canada/2018/01/29/bc-child-advocate-says-motherisk-case-review-flawed.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;...Fox 25 News reports that the State has asked for more time to file secret response to secret hearings in Holtzclaw case...Fox quotes letter from Holtzclaw's sister Jennifer to State Attorney General expressing frustration at delay..."Daniel's lawyers filed a motion in August, five months ago to unseal the secret proceedings so that Daniel and the entire public can know what happened behind closed doors when prosecutor Gayland Gieger, who disseminated false information about the DNA evidence to the jury and to the public, was allowed by District Court trial judge Timothy Henderson to question witnesses about crime lab analyst Elaine Taylor's work." ..."Holtzclaw’s defense attorneys want the court to reveal what was discussed during the secret hearing they were not allowed to attend. The attorneys also cited a FOX 25 investigation that revealed the city initially destroyed emails from the police analyst who retired following Holtzclaw’s conviction. The city since searched the hard drive and recovered thousands of records it initially presumed were lost. Separate FOX 25 investigations revealed the two-day hearing focused on that analyst (Elaine Taylor) and her testimony during Holtzclaw’s trial."


STORY: "State asks for more time to file secret response to secret hearings in Holtzclaw case," by reporter Phil Cross, published by FOX 25 News on January 8, 2018.


GIST: The court may have to wait longer to hear whether the state feels the findings of a two-day secret court hearing should remain a secret. The public will have to wait longer, because while the court has ordered a response, justices directed it be filed under seal to prevent the public from accessing the document. The Attorney General’s office is defending the conviction of Daniel Holtzclaw, who is serving more than 200 years in prison after being convicted of sexually abusing women while working as an Oklahoma City Police Officer. Holtzclaw’s defense attorneys want the court to reveal what was discussed during the secret hearing they were not allowed to attend. The attorneys also cited a FOX 25 investigation that revealed the city initially destroyed emails from the police analyst who retired following Holtzclaw’s conviction. The city since searched the hard drive and recovered thousands of records it initially presumed were lost. Separate FOX 25 investigations revealed the two-day hearing focused on that analyst and her testimony during Holtzclaw’s trial. Some of that testimony has been contradicted by outside forensic scientists. The state is asking for more time to respond to the defense motion to unseal the records related to the secret hearings. The court has not ruled on that request. In a statement to FOX 25, Holtzclaw’s sister, Jennifer said: “Today, the Oklahoma Attorney General’s office asked the Oklahoma Court of Criminal Appeals for an extension of time to respond to Daniel Holtzclaw’s motion to unseal secret proceedings. This is beyond frustrating. Daniel's wrongful conviction is being compounded by more injustice. Time and again, the state Attorney General has dragged its feet on vital matters in Daniel's case. Daniel has waited 11 months for the state to reply to his appeal of his criminal convictions. The appellate process was derailed by blatantly illegal secret hearings on the forensic evidence in his case, which Daniel and his lawyers were not notified of until after they occurred in June and in which Daniel and his lawyers were denied the opportunity to participate. Daniel's lawyers filed a motion in August, five months ago to unseal the secret proceedings so that Daniel and the entire public can know what happened behind closed doors when prosecutor Gayland Gieger, who disseminated false information about the DNA evidence to the jury and to the public, was allowed by District Court trial judge Timothy Henderson to question witnesses about crime lab analyst Elaine Taylor's work.
Daniel and our family hope the Court of Criminal Appeals will act decisively to ensure that justice delayed does not become more justice denied.”

The entire story can be found at:

http://okcfox.com/news/local/state-asks-for-more-time-to-file-secret-response-to-secret-hearings-in-holtzclaw-case

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, January 28, 2018

False Memories: Robert Thorson: An intriguing commentary on how we shape our fallible memories, published by The Hartford Courant..."Robert Thorson praises Oliver Sacks' book, which looks at how memories are formed and their fallibility."


PASSAGE OF THE DAY: (ON OLIVER SACKS): "Our memories and our motives are inseparable. Essentially, the "us" in "us" is a bundle of memory that makes choices based on that bundle. "Recollection could have no force, no meaning, unless it was allied with motive," he writes. "The two have always been coupled together."Following this setup, he devotes a whole chapter to "The Fallibility of Memory," citing his own proven failures as examples. "It is startling to realize, though, that some of our most cherished memories may never have happened — or may have happened to someone else." Looking back on his case files, he writes of "imagined or real abuse in childhood, of genuine or experimentally implanted memories, of misled witnesses and brain-washed prisoners, of unconscious plagiarism, and of the false memories we all have based on misattribution or source confusion." He concludes that "in the absence of outside confirmation there is no easy way of distinguishing genuine memory or inspiration, felt as such, from those that have been borrowed or suggested."

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COMMENTARY: "Robert Thorson: How We Shape Our Fallible Memories," by Robert Thorson, published by The Hartford Courant on January 4, 2018.  Robert M. Thorson is a professor at the University of Connecticut's College of Liberal Arts and Sciences. His column appears every other Thursday. He can be reached at profthorson@yahoo.com. Thanks to the Wrongful Convictions Blog for drawing this commentary to our attention. HL;



Saturday, January 27, 2018

San Diego: California; Yet another slew of cases possible affected in part by a now-discredited DNA interpretation method reported by The Forensic Magazine..." "The District Attorney’s Office has alerted lawyers for more than 250 defendants who were convicted over a 13-year period that their conviction relied in part on using a now-discredited DNA interpretation method — and they may have a chance at a re-examination of their case. The notice, a two-page letter from interim District Attorney Summer Stephan sent to lawyers starting Monday, could have the effect of changing guilty verdicts handed down by juries at trials from 2003 through 2016. The office sent out letters on 254 cases, all involving convictions of either violent or serious felonies."..."At issue is how DNA that is a mixture of more than one person can be interpreted by crime labs and analysts. In 2010, the leading DNA forensic science working group in the country revised the guidelines for interpreting such samples. The new guidelines were more conservative. Samples previously deemed to have the DNA of a suspect would now be considered to be inconclusive. Also, the key DNA statistic that gives the odds a person chosen at random would match the mixture sample by chance — known as the "Combined Probability of Inclusion" — would be lower. Both changes favored defendants. The San Diego Police Department crime lab adopted the new standards in 2011, and informed the DA’s office about the change in a memo. The criminal defense community was never formally notified, and did not generally know of the change until 2016, when a lawyer representing a San Diego man serving a life sentence turned up the memo detailing the change in interpretation while working on an appeal."


PASSAGE OF THE DAY: "The veteran defense lawyer received five such letters on Monday for five different clients he represented during that time. Among them was Robert Chavira, convicted in 2012 for a series of brazen armed robberies at Fashion Valley Mall and Barona Resort & Casino. Chavira was given one of the longest sentences in county court history — 450 years to life, plus another 288 years. Throughout the case Chavira insisted he was innocent, and a co-defendant who testified at the trial said Chavira was innocent. Among the evidence against him was DNA found on a ski mask whose profile matched Chavira’s, Armstrong said. Neck said that his unit is open to hearing from lawyers or defendants who pleaded guilty but believe they too may be innocent, either because of the DNA issue or any other."

STORY: "San Diego DA Review Identified 254 Cases That Could Be Re-examined Because of DNA Issue," by reporter Greg Moran, published by The San Diego Union-Tribune on January 26, 2018.

GIST: "The District Attorney’s Office has alerted lawyers for more than 250 defendants who were convicted over a 13-year period that their conviction relied in part on using a now-discredited DNA interpretation method — and they may have a chance at a re-examination of their case. The notice, a two-page letter from interim District Attorney Summer Stephan sent to lawyers starting Monday, could have the effect of changing guilty verdicts handed down by juries at trials from 2003 through 2016. The office sent out letters on 254 cases, all involving convictions of either violent or serious felonies. The letters are not an acknowledgment that the convictions are invalid, or that prosecutors even suspect there are problems with them, and don’t precisely spell out how a case wil be handled. Stephan wrote that in “appropriate circumstances” some of the DNA matching conclusions could be re-calculated, or some evidence — if it still exists — may be retested. She pledged to work with defense lawyers “in any case in which our confidence in the conviction is undermined.” That does not mean that a different DNA result will automatically reverse the conviction, in cases in which there is other evidence of guilt such as eyewitness testimony or other physical evidence. At issue is how DNA that is a mixture of more than one person can be interpreted by crime labs and analysts. In 2010, the leading DNA forensic science working group in the country revised the guidelines for interpreting such samples. The new guidelines were more conservative. Samples previously deemed to have the DNA of a suspect would now be considered to be inconclusive. Also, the key DNA statistic that gives the odds a person chosen at random would match the mixture sample by chance — known as the "Combined Probability of Inclusion" — would be lower. Both changes favored defendants. The San Diego Police Department crime lab adopted the new standards in 2011, and informed the DA’s office about the change in a memo. The criminal defense community was never formally notified, and did not generally know of the change until 2016, when a lawyer representing a San Diego man serving a life sentence turned up the memo detailing the change in interpretation while working on an appeal. The cases selected by the office fill certain criteria only: defendants who were charged with a violent or serious felony and went to a jury trial where a type of DNA evidence — known as a mixture sample, containing genetic material from more than one person — was used. Also, they had to be still in custody. The criteria excludes people who pleaded guilty before a trial — which constitute the vast majority of cases in the criminal justice system. In 2016, 92 percent of all cases in San Diego were resolved by a guilty plea and not a trial. Also, those who were sentenced and have since been released are not included. The letter is the product of an exhaustive review initiated by prosecutors about two months ago of cases that ended in a jury trial conviction in San Diego courts between 2003 and 2016, said Deputy District Attorney Brent Neck, head of the office’s Conviction Review Unit. That review identified 1,500 cases, winnowed to the 254 that filled the criteria. The move comes about three months after a San Diego Superior Court judge’s decision to overturn the 2011 murder conviction of Florencio Jose Dominguez based largely on the change in the interpretation guidelines, and the fact that the defense lawyer was not informed of the change at the lab. Under the new standards Dominguez would be excluded as a source of DNA on a bloody glove that was key evidence in the case. Lawyer Matthew Speredelozzi discovered in 2014 that change had been made. He also learned that the DA’s office was told about the change in 2011 but did not widely inform the defense community. In August 2016 Dumanis sent out a letter to lawyers informing them of the change and inviting them to call the office if they believed they had an affected client. Only one lawyer responded, Neck said. After the conviction was overturned last October, Stephan, who was appointed in June to fill the term of Dumanis who resigned to run for a seat as a county supervisor, ordered prosecutors to do a review of cases. “Summer wanted us to be proactive on this, so that’s what we did,” Neck said. Speredelozzi, who is preparing to defend Dominguez in a retrial, was skeptical. “I get the feeling they are doing this not because they want to review all these cases, but because they want to fix the PR problem they had with the Dominguez case,” he said. Chief Public Defender Randy Mize said he expects his office to get many of the cases, including those for defendants whose attorneys are retired, deceased or can’t be located. “We’re going to devote the resources we need to these cases and determine if the evidence is such that the cases need re-investigating,” he said. Letters are also being sent to private criminal defense lawyers such as Kerry Armstrong. The veteran defense lawyer received five such letters on Monday for five different clients he represented during that time. Among them was Robert Chavira, convicted in 2012 for a series of brazen armed robberies at Fashion Valley Mall and Barona Resort & Casino. Chavira was given one of the longest sentences in county court history — 450 years to life, plus another 288 years. Throughout the case Chavira insisted he was innocent, and a co-defendant who testified at the trial said Chavira was innocent. Among the evidence against him was DNA found on a ski mask whose profile matched Chavira’s, Armstrong said. Neck said that his unit is open to hearing from lawyers or defendants who pleaded guilty but believe they too may be innocent, either because of the DNA issue or any other. Prosecutors in Orange County have made a similar effort, Neck said, to offer to review old cases with mixture DNA. Despite the fact that the guidelines changed years ago, other prosecutors in California have not taken similar steps. Jessica Brand, the legal director of the criminal justice reform group the Fair Punishment Project, said the case review was good, though it also fell short. “This is putting people on notice that they have a case, and the DA acknowledging there is a problem has some value,” Brand said. She said it’s problematic that people who pleaded guilty — sometimes in the face of the DNA evidence — are excluded. She noted that Stephan in the letter expresses confidence in the integrity of the verdicts and expects only a few cases would be affected. Brand faulted the office for not alerting defense lawyers in 2011 when they were informed in the memo that the guidelines had changed. “They did not make a good faith effort to disclose this in the first place,” she said."

The entire story can be found at:

https://www.forensicmag.com/news/2018/01/san-diego-da-review-identified-254-cases-could-be-re-examined-because-dna-issue

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.

Levon Brooks: Radley Balko is well suited to write an obituary on Levin Brooks, who he describes as "a Mississippi man wrongly convicted by bad forensics."... "Levon Brooks died earlier this week. Brooks and Kennedy Brewer were convicted of the separate rapes and murders of two little girls in the early 1990s in Noxubee County, Miss. They were convicted primarily because of the testimony of forensic witnesses Steven Hayne and Michael West. Hayne found marks on the bodies that he thought were human bite marks. West then confirmed and matched the marks first to Brooks and then to Brewer. These are the two wrongful convictions that drive my forthcoming book, which I co-wrote with Tucker Carrington, director of the George C. Cochran Mississippi Innocence Project. So I’ve come to learn quite a bit about Brooks’s life and what a remarkable man he was."


PASSAGE OF THE DAY: "Brooks was strong — he had to be. But he was also empathetic. He and Brewer were convicted of separate crimes that were committed by another man. They were finally exonerated when that man was identified through DNA testing, and who then confessed to both crimes. When the real killer was arraigned, Brooks and Brewer went to the hearing. Brewer, quite understandably, had planned to ask that the state seek the death penalty. Brooks talked Brewer out of that. They didn’t know who this man was. They knew nothing about why he did what he did. (It turns out he may have had undiagnosed schizophrenia.) Brooks knew the little girl he was accused of killing. He had dated her mother. This man was responsible not only for raping and killer that little girl but also for Brooks’s subsequent incarceration. Yet if the system could make a mistake with him, it could make mistakes with others. He wanted no part of an execution. That speaks volumes about the kind of man he was."

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POST: "Levon Brooks, a Mississippi man wrongly convicted by bad forensics, dies at 58," by Radley Balko, published on his Washington Post Blog 'The Watch' on January 26, 2018. (Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces.")

GIST: "Levon Brooks died earlier this week. Brooks and Kennedy Brewer were convicted of the separate rapes and murders of two little girls in the early 1990s in Noxubee County, Miss. They were convicted primarily because of the testimony of forensic witnesses Steven Hayne and Michael West. Hayne found marks on the bodies that he thought were human bite marks. West then confirmed and matched the marks first to Brooks and then to Brewer. These are the two wrongful convictions that drive my forthcoming book, which I co-wrote with Tucker Carrington, director of the George C. Cochran Mississippi Innocence Project. So I’ve come to learn quite a bit about Brooks’s life and what a remarkable man he was. Brooks was convicted just as he was settling into a new job that he loved, at a local club where he served as bouncer, cook, greeter, parking attendant and whatever else needed doing. He had also just learned that he was about to have a daughter. He served 18 years. He told me a couple years ago that he was determined not to let prison change the man he saw himself to be. He would survive, but with cunning and charm, not with violence. Levon got a job as a cook at Parchman Penitentiary, which he leveraged to win favor with his fellow inmates. He used his flare for art to draw greeting cards, then sold them to prison staff to send to their relatives. He then used all of that favor he’d earned to help other inmates he could tell were struggling. He was a decent man.



Brooks was finally exonerated in 2008. Years later, he was given a $50,000 per year stipend for his wrongful incarceration. He gave much of it away, and remained living with his fiancee (later to become his wife) in their modest home in rural Noxubee County. His one splurge: He and his wife opened a tiny little restaurant behind their house. On weekends, they’d invite the neighborhood to watch football during the day. At night, everyone danced. A couple years ago, he and Dinah got married there. Brooks was strong — he had to be. But he was also empathetic. He and Brewer were convicted of separate crimes that were committed by another man. They were finally exonerated when that man was identified through DNA testing, and who then confessed to both crimes. When the real killer was arraigned, Brooks and Brewer went to the hearing. Brewer, quite understandably, had planned to ask that the state seek the death penalty. Brooks talked Brewer out of that. They didn’t know who this man was. They knew nothing about why he did what he did. (It turns out he may have had undiagnosed schizophrenia.) Brooks knew the little girl he was accused of killing. He had dated her mother. This man was responsible not only for raping and killer that little girl but also for Brooks’s subsequent incarceration. Yet if the system could make a mistake with him, it could make mistakes with others. He wanted no part of an execution. That speaks volumes about the kind of man he was. Just a few months before he died, Brooks and Brewer lost their lawsuit against Hayne and West, the forensics “experts” whose testimony sealed the two convictions. The federal appeals court found that while the two experts may have been grossly negligent, they were protected by qualified immunity. It was a cruel blow to two men who had already endured far more than their fair share of cruelty. And yet Brooks was a joyous man and incredibly charismatic. He had a way of drawing you in, of quickly making you feel like an old friend. Within minutes of my meeting him, he was already making plans for he and I to go hunting. The last time I saw him, he told me that he was happy — that for the first time since getting out of prison, he felt as happy as he’d been before he went in. It was an odd thing to hear, because just a few minutes earlier, he had shown me the chemo pump attached to his abdomen. Levon Brooks’s life was unfair — incredibly, cruelly, unspeakably unfair. Somehow, against all odds, he still found joy in it."

The entire Post can be read at:

https://www.washingtonpost.com/news/the-watch/wp/2018/01/26/levon-brooks-a-mississippi-man-wrongly-convicted-by-bad-forensics-dies-at-58/?utm_term=.21863cc301d8

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.

Anthony Ray Hinton; Alabama; Biologist/journalist Steven Austed asks why law enforcement finds it so difficult to admit its mistakes - using the Anthony Ray Hinton case as an example..."The entire case depended on a forensic match between bullets fired from that gun and those recovered at the crime scene. The state's ballistic examiners indeed declared a match and this was enough to convict Hinton and get him sentenced to death. Hinton never wavered in proclaiming his innocence. In 2002, his new legal team from the Equal Justice Initiative, engaged three of the nation's top firearms examiners, including the former Chief of the FBI's firearms and tool mark unit, to re-examine the ballistics evidence. All three agreed that none of the six bullets were marked with sufficient clarity to match them to the gun in question or with one another for that matter. When asked to explain to these examiners how he had determined the original match to the weapon, the State's expert refused to cooperate. This could have been the end of the story. The prosecution could have decided to re-examine the evidence themselves or even have dropped all charges because the best experts in the country could not validate their only evidence linking Mr. Hinton to the crimes. But they chose not to. In fact, they fought re-opening the case all the way to the U.S. Supreme Court, which voted unanimously that Mr. Hinton was due a new trial. At that point prosecutors gave up, decided not to re-try him, and he was released. Let's consider the damage that could have been avoided here."


PASSAGE OF THE DAY: "Of all the fields that could benefit from admitting its mistakes, law enforcement seems to be the most resistant to doing so. Why is this? People in law enforcement are no different than the rest of us. My  hunch is that it is a byproduct of our adversarial justice system, that emphasizes winning rather than unbiased inquiry. For whatever reason, a consequence is that while medical care continually improves its safety record, there is no evidence of any improvement in the rate of false convictions in our legal system. In fact, a recent study of exonerations in one of the world's leading science journals estimated that about 1 in 25 death sentences imposed in the United States is a false conviction. We wouldn't accept this sort of error rate in our mail delivery system but apparently we do in judging our most serious crimes. A little error reduction might be in order. One particularly egregious example of a refusal to admit error is the case of Anthony Ray Hinton, who was convicted and sentenced to death in 1985 for two murders in Birmingham, Alabama that he didn't commit. He was exonerated and released from prison nearly 30 years later on Good Friday 2015, having become one of the longest-serving, falsely imprisoned individuals in American history. The case against him was flimsy from the beginning."

COMMENTARY: "Learning from mistakes in law enforcement,"  by reporter Steven Austad, published by AL.Com on January 7, 2018.  (Steven Austad is Chair of the Biology Department at UAB. Before becoming a research scientist, he had various lives as an English major, a newspaper reporter, a New York City taxi driver, and a Hollywood wild animal trainer. Living now in Birmingham with his veterinarian wife, 6 dogs, 2 parrots, and a cat, he enjoys nothing more than communicating how science works to the general public.)

GIST: "Just before Christmas 1994 Betsy Lehman, a 39 year-old prize-winning health reporter for the Boston Globe suddenly and unexpectedly died as she was about to be discharged from the Dana-Farber Cancer Institute where she was being treated for breast cancer. More than 2 months later, during a routine record check, it came to light that she had died from an accidental overdose of the chemotherapy drug she had been receiving. This was particularly shocking as the Dana-Farber is widely regarded one of the world's premier cancer research institutions. Roughly 25 medical staff involved in Ms. Lehman's care could have caught the error, but didn't. Medicine is practiced by humans and humans make errors. What matters in medicine as in life is how we respond to our errors once they are discovered.vThe Dana-Farber responded by publically admitted its mistake, launching a massive investigation of what caused it, and ultimately installing a host of new, more rigorous patient safety procedures. Those procedures have become a model for maximizing patient safety at numerous other hospitals across the country. As I've noted before, admitting mistakes is not something we are wired to do easily. If possible we nearly always prefer to cover up an error or shift the blame. Yet progress and improvement depends upon learning from our mistakes and to do that you have to admit them. That's how we get better at anything not just hospital care. Of all the fields that could benefit from admitting its mistakes, law enforcement seems to be the most resistant to doing so. Why is this? People in law enforcement are no different than the rest of us. My  hunch is that it is a byproduct of our adversarial justice system, that emphasizes winning rather than unbiased inquiry. For whatever reason, a consequence is that while medical care continually improves its safety record, there is no evidence of any improvement in the rate of false convictions in our legal system. In fact, a recent study of exonerations in one of the world's leading science journals estimated that about 1 in 25 death sentences imposed in the United States is a false conviction. We wouldn't accept this sort of error rate in our mail delivery system but apparently we do in judging our most serious crimes. A little error reduction might be in order. One particularly egregious example of a refusal to admit error is the case of Anthony Ray Hinton, who was convicted and sentenced to death in 1985 for two murders in Birmingham, Alabama that he didn't commit. He was exonerated and released from prison nearly 30 years later on Good Friday 2015, having become one of the longest-serving, falsely imprisoned individuals in American history. The case against him was flimsy from the beginning. He had no history of violent crime. There were no witnesses to either murder.  No evidence of any kind linking him to the killings was found at either crime scene or in his car or at his home. However, investigators did find a gun, belonging to his mother with whom he shared a house, which was the same caliber as that used in the murders. The entire case depended on a forensic match between bullets fired from that gun and those recovered at the crime scene. The state's ballistic examiners indeed declared a match and this was enough to convict Hinton and get him sentenced to death. Hinton never wavered in proclaiming his innocence. In 2002, his new legal team from the Equal Justice Initiative, engaged three of the nation's top firearms examiners, including the former Chief of the FBI's firearms and tool mark unit, to re-examine the ballistics evidence. All three agreed that none of the six bullets were marked with sufficient clarity to match them to the gun in question or with one another for that matter. When asked to explain to these examiners how he had determined the original match to the weapon, the State's expert refused to cooperate. This could have been the end of the story. The prosecution could have decided to re-examine the evidence themselves or even have dropped all charges because the best experts in the country could not validate their only evidence linking Mr. Hinton to the crimes. But they chose not to. In fact, they fought re-opening the case all the way to the U.S. Supreme Court, which voted unanimously that Mr. Hinton was due a new trial. At that point prosecutors gave up, decided not to re-try him, and he was released. Let's consider the damage that could have been avoided here. There was the damage to Mr. Hinton, who served 13 more years in hell than he needed to. And there was the lost opportunity to begin an investigation and re-evaluation of the training, competence, and procedures at the state forensic laboratories to help prevent future miscarriages of justice. Tellingly, another Alabamian exonerated in the same year as Mr. Hinton, Beniah Alton Dandridge, had been also been falsely convicted due to flawed forensic analysis, in this case a mistaken fingerprint identification by the Alabama state forensic lab. Mr. Dandridge had been imprisoned 20 years by then. Learning how to reduce future errors is one large benefit of admitting one's mistakes. Another benefit is that it allows us to at least partially right-the-wrong by compensating people who are damaged by our mistakes. This is basic fairness, something I think we all agree on. The Dana-Farber Cancer Institute reached what the Boston Globe reported to be a multimillion dollar settlement with the family of Betsy Lehman. But as law enforcement hates to admit error, they also hate to see compensation paid for false convictions, because it is unavoidably a public admission that they had made a mistake. As the trickle of criminal exonerations in the 1990's turned into a stream in the early 2000's and a flood more recently, 32 states including Alabama passed laws defining the monetary amount due those who were wrongly incarcerated. In Alabama the minimum amount for each year of incarceration was set at $50,000. For Anthony Ray Hinton, that means he is owed a minimum of about $1.5 million.  Of course, it is not that simple. The state Committee on Compensation for Wrongful Incarceration and the State Division of Risk Management must both agree that such compensation is really warranted and the State legislature must then appropriate the funds. In Mr. Hinton's case, both of the appropriate entities have approved payment and State Senator, Paul Bussman (R, Cullman) sponsored a bill in the last legislative session to appropriate the funds.  That bill never made it out of committee, however. Unsurprisingly, state prosecutors, whose approval is thankfully not required, have resisted.  Assistant Attorney General James Houts has been vehemently opposed to any compensation for Mr. Hinton, saying that a lack of the ability to match the bullets to the gun "is not evidence of innocence," the presumption of innocence, a core value of our justice system, apparently having slipped his mind. The legislature is about to reconvene.  Senator Bussman, reiterating his view that "if they still think he is guilty, they should re-try him; if not, they need to compensate him," has assured me that reintroducing his compensation appropriation bill will be one of the first things on his agenda for the new session.  At a time when Alabama is trying to shed its reputation for racial injustice, after Mr. Hinton has been exonerated for nearly three years, isn't it time for our legislature to do the right thing?"

The entire commentary can be found at: 
http://www.al.com/living/index.ssf/2018/01/learning_from_mistakes_in_law.html

Read the National Registry of Exonerations entry by Maurice Possley at the link below: "On February 23, 1985, 49-year-old John Davidson, the assistant manager of Mrs. Winner’s fried chicken restaurant in Birmingham, Alabama, was fatally shot in an after-hours robbery. About $2,100 was missing from the safe. Davidson was still alive when an exterminator came to the restaurant and found him in the restaurant cooler with two gun shot wounds in the head. Davidson died on February 25 following surgery. The two bullets were removed and turned over to police. On July 2, 1985, 39-year-old Thomas Wayne Vason, the night manager at Captain D’s restaurant in Bessemer, Alabama, was found dead in the restaurant’s cooler. He had been shot twice in the head and $650 was missing from the safe. Two bullets were removed from Vason’s body. Police investigators said that based on their examination, the bullets in both crimes were fired from the same gun. There were no fingerprints or other items of physical evidence. Police believed that both men were confronted in the parking lots of the restaurants after closing up for the night and that both were ordered back inside and forced to open the safes. Because both men were found shot in the restaurant coolers, the media branded the perpetrator the “Cooler Killer.” On July 25, 1985, 55-year-old Sidney Smotherman, the night manager of Quincy’s Family Steak House in Bessemer, closed the restaurant and on his way home stopped at a grocery store shortly after midnight. Another restaurant employee, who coincidentally stopped at the same store, later said that a black man appeared to be watching Smotherman while shielding his face. Smotherman left the store after making a purchase and while driving home, his car was bumped from behind by another car. When he got out, the driver of the other car emerged with a gun. The gunman forced Smotherman to drive the gunman’s car to Quincy’s and go inside and empty the safe. The gunman ordered him to go to the restaurant’s freezer. Smotherman, who was aware of news accounts of the two other restaurant robbery/murders, said he told the gunman he wanted to be in the cooler because it was not as cold. Smotherman knew that he could lock the cooler from the inside. The gunman agreed and when Smotherman walked into the cooler and turned to pull the door shut, the gunman fired two shots. One struck Smotherman in the head, but did not pierce his skull. Instead, the bullet traveled under his skin and exited down his neck and wound up in his shirt pocket. The other bullet took off the end of a finger of his hand that he had raised to try to protect himself and ricocheted into the cooler. As he fell down, Smotherman kicked the door shut and it locked automatically. Smotherman waited about 10 minutes and then emerged and called police. Police compared the two bullets from this shooting and said their examination showed that all six bullets in the three crimes were fired by the same gun. An artist for the Bessemer newspaper worked with police and Smotherman to create a composite sketch. Reginald White, an employee of Quincy’s, told police he recognized the sketch as 29-year-old Anthony Hinton, a man he knew from a second job he had in nearby Hoover, Alabama. White said that about two weeks prior, Hinton approached him and asked him if he was still working at Quincy’s. When he said he was, Hinton asked if “Mr. Don” was the manager. White said that he told Hinton that there was a new manager who had just bought a new Fiero automobile. White said Hinton also asked what time the restaurant closed. The police prepared a photographic lineup for Smotherman, who selected Hinton as the man who robbed and shot him. On July 31, 1985, police went to Hinton’s home where he lived with his mother. They found an old, very-worn .38-caliber revolver under his mother’s mattress, but failed to find any evidence linking him to the crimes. He was arrested that day and charged with the robbery of Smotherman. The gun was turned over to the Alabama Department of Forensic Sciences. Examiners test-fired the gun and said that all six bullets from the three crimes were fired by the gun. The police then charged Hinton with capital murder in the deaths of Davison and Vason. Hinton went to trial in Jefferson County Circuit Court in September 1986 on the capital murder charges. He never went to trial on the robbery and shooting of Smotherman. Smotherman identified Hinton as the gunman who robbed and shot him. Smotherman’s co-worker identified Hinton as the man he saw following Smotherman in the grocery store. White testified about his conversation with Hinton prior to the robbery and shooting of Smotherman. The state firearms experts testified that the bullets from all three crimes had been fired from the gun found under Hinton’s mother’s mattress. The trial court authorized Hinton’s attorney to spend $1,000 to retain a ballistics expert. The attorney could not get a qualified expert for only $1,000, so instead of requesting more money, the lawyer hired a retired civil engineer whose experience was confined to working with heavy artillery in World War II. The expert had no training or experience in firearms identification, he did not know how to use a microscope to examine bullets, he did not test-fire the gun and he admitted during cross-examination that he was visually impaired—he only had one eye. He testified that the results of his examination were inconclusive. Hinton testified in his own defense and said he was working at a warehouse where employees were locked inside from midnight until 6 a.m. on the night of the robbery and shooting of Smotherman at Quincy’s. He denied involvement in all three crimes. He said he was driving a small red Nissan at the time of the Quincy’s robbery and owned a small yellow Volkswagen—neither of which fit the description of the larger automobile that Smotherman said his attacker was driving. On September 17, 1986, the jury deliberated for an hour before convicting Hinton of both murders. In December 1986, the jury voted 10-2 to sentence Hinton to death. Hinton had taken a polygraph examination and although the examiner said Hinton showed no deception when he denied involvement in the crimes, the trial judge declined to allow the jury to hear the polygraph results. His convictions and death sentence were upheld on appeal to the Alabama Court of Appeals and the Alabama Supreme Court. In 1998, Equal Justice Initiative, a non-profit organization in Alabama that provides legal assistance to indigent defendants and prisoners, began representing Hinton. In 2002, EJI commissioned a re-examination of the bullets and gun by three different experts. One was a forensic consultant named John Dillon, who had worked on ballistics identification at the Federal Bureau of Investigation’s forensics laboratory and, from 1988 until he retired in 1994, had been a chief in the identification unit at FBI headquarters in Quantico. The other two experts had worked for many years as firearms examiners at the Dallas County Crime Laboratory and had each testified as experts in several hundred cases. All three experts examined the physical evidence and testified that they could not conclude that any of the six bullets had been fired from the revolver. The prosecution’s response was to ignore the findings and argue that the EJI experts essentially said the same thing that Hinton’s ballistic examiner said at trial—that the results were inconclusive. In February 2014, the U.S. Supreme Court vacated Hinton’s conviction and death sentence and ordered a new trial. The Court ruled that Hinton’s trial lawyer had provided a constitutionally inadequate legal defense by failing to seek more money to obtain a qualified ballistics expert. The Court also held that the trial judge had been mistaken when he said the defense was entitled to only $1,000 for an expert. The statute relating to such expenses, which at one time had a $1,000 cap, had been amended prior to Hinton’s trial to allow for “any expenses reasonably incurred” as long as the expenses were approved in advance by the trial judge. Subsequently, in preparation for a retrial, the prosecution had new experts re-examine the bullets and gun. The prosecution experts also concluded that they could not link the bullets from the victims to the gun found in Hinton’s home. On April 2, 2015, a judge granted the motion by the Jefferson County District Attorney to dismiss the charges and Hinton was released. Efforts to pass legislation in 2017 approving compensation for Hinton failed."
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4669

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, January 26, 2018

Barry and Honey Sherman: Ontario. "Barry and Honey Sherman were murdered, police say at a press conference earlier today (as contrasted with original statement of murder-suicide HL)" The Toronto Star reports..." Det.-Sgt. Susan Gomes declined to discuss possible suspects or motives at a news conference, citing only “six weeks of investigation” as evidence. There was no sign of forced entry into their home. “I believe they were targeted,” Gomes said. “We haven’t developed any suspects, outside of understanding that people are outstanding for — or a person is outstanding for — this offence. The billionaire couple were last seen alive on the evening of Wed. Dec. 13 — two days before their bodies were discovered, Gomes said. Neither communicated with friends, family or associates from that point onward. Homicide detectives probing the case had classified it as suspicious, but there was a running controversy over how they died. An early theory floated by police sources the day the bodies were discovered was that it was murder-suicide. But the Sherman family, which hired high-profile criminal lawyer Brian Greenspan, a team of private investigators and a retired pathologist, disagreed."


PASSAGE OF THE DAY: "The murder-suicide theory was hinted at when, on the night the bodies were discovered, Toronto police officers made statements on the record to reporters indicating that no suspects were being sought and there were no signs of forced entry at the Sherman homes. By Saturday, reporters had heard the words “murder-suicide” as a theory by police sources. That prompted the family to issue a statement decrying the theory, and to hire the private investigation team."

STORY: "Barry and Honey Sherman were murdered, police say," by Chief Investigative Reporter Kevin Donovan and crime reporters Wendy Gillis and Emma McIntosh, published b the Toronto Star on January 26, 2018.

SUB-HEADING:  "Toronto police released the home back to the Sherman family Friday morning after six weeks of searching." (Toronto police say they believe billionaire Apotex founder Barry Sherman and his wife Honey were targeted and killed in a double homicide. Police say they have 127 witness statements and are hoping for more people to come forward. (The Canadian Press))

GIST: "Toronto police believe Barry and Honey Sherman were victims of a targeted attack and are treating their deaths as murders, the lead investigator said Friday afternoon. The Shermans were found dead in their North York home just before noon on Fri. Dec. 15. An autopsy concluded they died from “ligature compression.” Det.-Sgt. Susan Gomes declined to discuss possible suspects or motives at a news conference, citing only “six weeks of investigation” as evidence. There was no sign of forced entry into their home. “I believe they were targeted,” Gomes said. “We haven’t developed any suspects, outside of understanding that people are outstanding for — or a person is outstanding for — this offence. The billionaire couple were last seen alive on the evening of Wed. Dec. 13 — two days before their bodies were discovered, Gomes said. Neither communicated with friends, family or associates from that point onward. Homicide detectives probing the case had classified it as suspicious, but there was a running controversy over how they died. An early theory floated by police sources the day the bodies were discovered was that it was murder-suicide. But the Sherman family, which hired high-profile criminal lawyer Brian Greenspan, a team of private investigators and a retired pathologist, disagreed. Gomes said police have spent more than 1,000 hours investigating the case, with 127 witness statements taken so far, four terabytes of surveillance video gathered and 150 bulk or packaged items seized from 20 searches. That includes a detailed sweep of the Shermans’ primary home in North York — a three-storey residence that warranted six weeks’ worth of efforts, Gomes said. “Legal complexities in some executions have been challenging given the litigious nature of Barry Sherman’s businesses, in particular the search and seizure of electronics in Barry Sherman’s workspace at Apotex,” Gomes added. The Sherman family released a statement after the police news conference. “The announcement by the Toronto Police Service that the tragic deaths of their parents are being investigated as a double homicide was anticipated by the Sherman family,” the statement read. “This conclusion was expressed by the family from the outset and is consistent with the findings of the independent autopsy and investigation. “The family continues to support the Toronto Police Service in their efforts to seek justice for their parents and pursue those responsible for these unspeakable crimes.” At the Sherman home on Old Colony Rd., near Bayview Ave. and Sheppard Ave. E. on Friday morning, the scene appeared to be virtually the same from when the investigation began in mid-December. Withered, dried-up flowers remained where they were left weeks ago. That changed at 11 a.m. when officers began removing the police tape that had stretched around the property since Dec. 15. Shortly after, at 11:06 a.m., a police car that had been parked in the front of the house left the scene. Former Toronto police Det. Martin Woodhouse, part of Klatt Investigations, hired by the Sherman family, arrived at the home. Woodhouse pulled his car into the driveway and took out a small video camera, appearing to film the outside of the house. Woodhouse spoke with private security, who arrived around the time police left. The private security then put up their own caution tape around the property, replacing the police tape that the officers just removed. Last week, the Star published a story detailing the preliminary findings of the private team assembled by the Sherman family. It concluded that the Shermans were the victims of a double murder, a killing that had the appearance of a contract hit, according to sources. Though their bodies were discovered on the Friday, it is believed by the private investigation team that they died between late Wednesday and Thursday afternoon. They were found in a semi-seated position, legs stretched out front, and men’s leather belts wrapped around their necks and looped over a low railing that surrounds their indoor pool — details Gomes confirmed Friday. “They were wearing their clothing,” Gomes said. Marks that appear to indicate their hands were tied at some point were observed by both the provincial pathologist who conducted the first autopsy, and a second pathologist hired by the Sherman family to do a second post mortem, the Star reported last week. No ties or ropes were found at the scene. Gomes didn’t confirm those details Friday. The detective would not comment when asked if investigators believe the Shermans were killed in that location, or whether their bodies had been placed there. Gomes said police are looking into anyone who accessed the Sherman home — which was up for sale — including those who used a lock box. She said investigators have a list of people who had access to the home and it was “significant.” “Anybody who has had access to that home in the last so many weeks and months leading up to that weekend and those days? Important to us, absolutely,” Gomes said. Police have an “extensive” list of people they want to speak with, she added. Gomes would not say if the home was found intact, or whether anything valuables, such as jewelry or art, were missing. Greenspan has said that the theory of murder-suicide is “unsupportable as a matter of logic,” according to people who knew the Shermans well. They were building a new home, had winter trip plans and were very involved with their children’s and grandchildren’s lives. The murder-suicide theory was hinted at when, on the night the bodies were discovered, Toronto police officers made statements on the record to reporters indicating that no suspects were being sought and there were no signs of forced entry at the Sherman homes. By Saturday, reporters had heard the words “murder-suicide” as a theory by police sources. That prompted the family to issue a statement decrying the theory, and to hire the private investigation team. Greenspan has said his hope is to provide a “second lens” on the investigation but he stressed he did not want to interfere. Gomes said she was “absolutely not” concerned about the private investigators compromising the police probe. “They haven’t distracted us from the get-go, and they will not distract us as we carry on.” Forty-eight hours after the bodies were discovered, Toronto homicide detectives took over the probe from the divisional officers who initially responded Friday. Police have yet to release the results of toxicology analysis done at the Centre of Forensic Sciences in Toronto on the Shermans. Greenspan’s team had its own analysis done at an American lab and sources say the results were negative for anything that would have contributed to the couple’s death. Meanwhile, Jeremy Desai, the CEO of Apotex, the giant Canadian generic drug company that Sherman founded, announced Friday morning that he resigned to pursue other opportunities. He has held that position since 2014."

The entire story can be found at:
https://www.thestar.com/news/gta/2018/01/26/toronto-police-to-update-on-barry-and-honey-sherman-death-case-friday.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.