Monday, March 18, 2019

Robert Yell: Kentucky: Outdated arson 'science': Major Development: His 2006 Arson Conviction has been dismissed..."Thursday March 14, 2019, more than two years after granting Robert Yell a new trial, Logan Circuit Court Judge Tyler Gill dismissed, Mr. Yell’s 2006 arson and manslaughter indictment, ending a more than decade-old legal battle."..."Following a two-day evidentiary hearing, Judge Gill ruled from the bench that Mr. Yell was entitled to a new trial. In his written order, he found the testimony of the Commonwealth’s fire investigation experts was “based on obsolete and erroneous techniques, ‘rules of thumb’, and assumptions, and none can be relied upon as true.” Despite this ruling, former Commonwealth’s Attorney Gail Guiling appealed the new trial. While the appeal was pending, just a month after Judge Gill’s ruling, Mr. Yell was released on bond after serving twelve years of his fifty-two year sentence. Upon review of the case, however, the Kentucky Attorney General’s Office moved to dismiss the appeal. Now newly-elected Logan County Commonwealth’s Attorney Paul Neil Kerr II has followed suit, moving for the dismissal and noting there is currently no evidence to again convict Mr. Yell of an intentional fire. Said Kerr in the motion, “[i]n light of the evidence being excluded, the Commonwealth is currently unable to present a case sufficient to survive a motion for directed verdict.”


PASSAGE OF THE DAY: "In 2004, Mr. Yell’s trailer burned down, resulting in the death of his two-year-old son, and severe burns to his 11-month-old daughter. Fire investigators determined that the fire was intentional based on the presence of 1) low, deep burns at 2) three separate points of origin; 3) V and U patterns; and 4) unconfirmed “alerts” by an accelerant detection canine. The 2006 trial resulting in Mr. Yell’s wrongful conviction relied on the testimony of these fire investigators, despite their inability to provide scientific explanations for why their findings were indicative of arson. In 2016, counsel for Mr. Yell, Krista Dolan, Staff Attorney with the Innocence Project of Florida and then-attorney with the Kentucky Department of Public Advocacy, filed a motion for a new trial. The basis of the motion was that Mr. Yell’s due process rights had been violated based on the admission of evidence at trial now known to be scientifically invalid. The motion was supported by the affidavit of a fire investigation expert funded by the Kentucky Innocence Project. The Innocence Network also filed an amicus brief in support of Mr. Yell’s motion. Following a two-day evidentiary hearing, Judge Gill ruled from the bench that Mr. Yell was entitled to a new trial. In his written order, he found the testimony of the Commonwealth’s fire investigation experts was “based on obsolete and erroneous techniques, ‘rules of thumb’, and assumptions, and none can be relied upon as true.” Despite this ruling, former Commonwealth’s Attorney Gail Guiling appealed the new trial."

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STORY: "2006 Arson Conviction in Logan County dismissed,"  published by WKBO  on March 14, 2019.

GIST: "Thursday March 14, 2019, more than two years after granting Robert Yell a new trial, Logan Circuit Court Judge Tyler Gill dismissed, Mr. Yell’s 2006 arson and manslaughter indictment, ending a more than decade-old legal battle. “It feels like a dream. I’ve just been fighting this for so long, I thought it would never come to an end,” Yell said. In 2004, Mr. Yell’s trailer burned down, resulting in the death of his two-year-old son, and severe burns to his 11-month-old daughter. Fire investigators determined that the fire was intentional based on the presence of 1) low, deep burns at 2) three separate points of origin; 3) V and U patterns; and 4) unconfirmed “alerts” by an accelerant detection canine. The 2006 trial resulting in Mr. Yell’s wrongful conviction relied on the testimony of these fire investigators, despite their inability to provide scientific explanations for why their findings were indicative of arson. In 2016, counsel for Mr. Yell, Krista Dolan, Staff Attorney with the Innocence Project of Florida and then-attorney with the Kentucky Department of Public Advocacy, filed a motion for a new trial. The basis of the motion was that Mr. Yell’s due process rights had been violated based on the admission of evidence at trial now known to be scientifically invalid. The motion was supported by the affidavit of a fire investigation expert funded by the Kentucky Innocence Project. The Innocence Network also filed an amicus brief in support of Mr. Yell’s motion. Following a two-day evidentiary hearing, Judge Gill ruled from the bench that Mr. Yell was entitled to a new trial. In his written order, he found the testimony of the Commonwealth’s fire investigation experts was “based on obsolete and erroneous techniques, ‘rules of thumb’, and assumptions, and none can be relied upon as true.” Despite this ruling, former Commonwealth’s Attorney Gail Guiling appealed the new trial. While the appeal was pending, just a month after Judge Gill’s ruling, Mr. Yell was released on bond after serving twelve years of his fifty-two year sentence. Upon review of the case, however, the Kentucky Attorney General’s Office moved to dismiss the appeal. Now newly-elected Logan County Commonwealth’s Attorney Paul Neil Kerr II has followed suit, moving for the dismissal and noting there is currently no evidence to again convict Mr. Yell of an intentional fire. Said Kerr in the motion, “[i]n light of the evidence being excluded, the Commonwealth is currently unable to present a case sufficient to survive a motion for directed verdict.” “While the fire in which Mr. Yell lost his son was a horrible tragedy, it was not an arson, and so was not a crime,” Dolan said. “We applaud the Commonwealth for recognizing that there is not sufficient evidence of arson to proceed to trial, and we are confident that further investigation won’t yield such evidence. The law always lags behind science, but we are happy that here, science prevailed.” Amy Robinson Staples of the Exoneration Project, who also represents Mr. Yell added: “Today has been a long time coming for Mr. Yell, who can finally begin to fully grieve the tragic loss of his son and obtain some closure. We are hopeful that Mr. Yell’s case can serve as an example in the Commonwealth and throughout the United States and prevent further convictions based on unreliable, junk arson science.""


The entire story can be read at:
https://www.wbko.com/content/news/2006-Arson-Conviction-in-Logan-County-dismissed-507184811.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.

Sunday, March 17, 2019

Kathleen Folbigg: Australia: Spotlight on SIDS - Sudden Infant Death Syndrome: ABC news provides excellent backgrounder for Judicial Inquiry set to begin Monday, under the heading, "Kathleen Folbigg wrongful conviction argument supported by fresh evidence." (Reporter Quentin McDermott)..."Today's hearing will focus on recent research into SIDS (Sudden Infant Death Syndrome) and SUDI (Sudden Unexpected Death in Infants), and the incidence of reported deaths of three or more infants in the same family, from natural causes. Following an opening statement from Counsel Assisting the Inquiry, Gail Furness SC, evidence will be given by two sleep specialists. The first, Rosemary Horne, is a deputy director of the Hudson Institute's Ritchie Centre at Monash University, while the second, Dawn Elder, is head of the Department of Paediatrics at the University of Otago. Allan Cala, who was the chief medical expert at Folbigg's trial, is expected to give evidence on Tuesday, as will Stephen Cordner, who did not give evidence at the trial, but who wrote a lengthy report which was attached to the petition, and John Hilton, who conducted the autopsy of Folbigg's third child Sarah, and gave evidence at the trial. The ABC understands that Dr Cala stands by the opinion he expressed at Folbigg's trial, that she smothered all four of her children. But, both Professor Cordner and Professor Hilton disagree."


PASSAGE OF THE DAY: " Folbigg was found guilty by a jury in 2003 of three counts of murder, one count of manslaughter, and one count of maliciously inflicting grievous bodily harm in respect of her four children between February 20, 1989 and March 1, 1999.She is currently serving a minimum 25-year sentence for these convictions. The inquiry was announced in August last year, more than three years after Folbigg's legal team submitted a petition on her behalf to the Governor of New South Wales. Former chief judge of the District Court, the Honourable Reginald Blanch AM QC, will preside at the inquiry, and counsel assisting the inquiry is Gail Furness SC. Speaking nine days after an investigation into Folbigg's case was broadcast by the ABC's Australian Story, Mark Speakman, the New South Wales Attorney-General, announced: "I have formed the view that an inquiry into Ms Folbigg's convictions is necessary to ensure public confidence in the administration of justice. Today's decision is not based on any assessment of Ms Folbigg's guilt. "The petition appears to raise a doubt or question concerning evidence as to the incidence of reported deaths of three or more infants in the same family attributed to unidentified natural causes in the proceedings leading to Ms Folbigg's convictions."

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 KEY POINTS: "
  • In 2003, Folbigg was found guilty of killing all four of her children
  • There is growing expert medical opinion that there are plausible natural causes for the children's deaths
  • After genetic evidence is presented next month, Folbigg will give evidence herself.
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STORY: ""Kathleen Folbigg wrongful conviction argument supported by fresh evidence," by reporter Quentin McDermott, published by ABC News on March 17, 2019.

GIST: "Fresh evidence will be presented to an inquiry starting today, suggesting that — on medical grounds at least — there is a strong case that Kathleen Folbigg was wrongly convicted of killing all four of her children. The new evidence adds to a growing body of expert medical opinion that there are plausible natural causes of death for all four children. Folbigg was found guilty by a jury in 2003 of three counts of murder, one count of manslaughter, and one count of maliciously inflicting grievous bodily harm in respect of her four children between February 20, 1989 and March 1, 1999.
She is currently serving a minimum 25-year sentence for these convictions. The inquiry was announced in August last year, more than three years after Folbigg's legal team submitted a petition on her behalf to the Governor of New South Wales. Former chief judge of the District Court, the Honourable Reginald Blanch AM QC, will preside at the inquiry, and counsel assisting the inquiry is Gail Furness SC. Speaking nine days after an investigation into Folbigg's case was broadcast by the ABC's Australian Story, Mark Speakman, the New South Wales Attorney-General, announced: "I have formed the view that an inquiry into Ms Folbigg's convictions is necessary to ensure public confidence in the administration of justice. Today's decision is not based on any assessment of Ms Folbigg's guilt. "The petition appears to raise a doubt or question concerning evidence as to the incidence of reported deaths of three or more infants in the same family attributed to unidentified natural causes in the proceedings leading to Ms Folbigg's convictions. "The direction establishing the inquiry requires Mr Blanch to have particular regard to this evidence in conducting the inquiry." Mr Speakman added: "At the conclusion of the inquiry, Mr Blanch will prepare a report. "If of the opinion that there is a reasonable doubt as to the guilt of Ms Folbigg, Mr Blanch may refer the matter to the Court of Criminal Appeal for further consideration." Sarah Folbigg may have died earlier than thought: One key piece of fresh evidence that has been submitted to the inquiry is the observation that Folbigg's third child Sarah may have died earlier in the night than previously thought, in August 1993. Consulting forensic pathologist Johan Duflou said in his view, taking into account the temperature of the body and the stomach contents, "this would suggest that Sarah died closer to the time she was put to bed by [Folbigg's husband] Craig at around 21:00 hours, rather than when found by Folbigg at around 01:30 hours." Professor Duflou's view challenges the argument presented by the prosecution at Folbigg's trial, that she was present with all four of her children when they died. Key concerns with Kathleen Folbigg's case:
  • Three senior forensic pathologists who will give their opinions this week are expected to agree that the most likely cause of death for Folbigg's fourth child, Laura, was myocarditis — an inflammation of the heart muscles
  • A fourth expert who has written a report for the inquiry supports this view
  • Caroline Blackwell, Conjoint Professor at the University of Newcastle School of Biomedical Sciences and Pharmacy, has submitted a statement saying the detective who led the investigation into the deaths of Folbigg's children turned down the opportunity for tests to be conducted into whether infections had played a part in the deaths, because it was "too expensive"
  • Folbigg's third child Sarah may have died several hours earlier than first thought — casting doubt on the allegation that Folbigg smothered her
  • Further expert opinion casts doubt on the allegation that Folbigg tried to smother her second child, Patrick, when he was four months old
  • Folbigg has notified the inquiry that she will give evidence about the diary entries she made, when hearings resume in April
Today's hearing will focus on recent research into SIDS (Sudden Infant Death Syndrome) and SUDI (Sudden Unexpected Death in Infants), and the incidence of reported deaths of three or more infants in the same family, from natural causes. Following an opening statement from Counsel Assisting the Inquiry, Gail Furness SC, evidence will be given by two sleep specialists. The first, Rosemary Horne, is a deputy director of the Hudson Institute's Ritchie Centre at Monash University, while the second, Dawn Elder, is head of the Department of Paediatrics at the University of Otago. Allan Cala, who was the chief medical expert at Folbigg's trial, is expected to give evidence on Tuesday, as will Stephen Cordner, who did not give evidence at the trial, but who wrote a lengthy report which was attached to the petition, and John Hilton, who conducted the autopsy of Folbigg's third child Sarah, and gave evidence at the trial. The ABC understands that Dr Cala stands by the opinion he expressed at Folbigg's trial, that she smothered all four of her children. But, both Professor Cordner and Professor Hilton disagree. No medical basis for concluding homicide: expert: In his report accompanying the petition, Professor Cordner wrote that: "If the convictions in this case are to stand, I want to clearly state there is no pathological or medical basis for concluding homicide. "The findings are perfectly compatible with natural causes. He added: "Put simply, there is no positive forensic pathology support for the contention that any or all of these children have been killed." In his own statement submitted to the inquiry, Professor Hilton said he was "in substantial agreement with the comments, views and opinions" expressed by Professor Cordner in his report. Significantly, Professor Hilton backs Professor Cordner's view that Folbigg's fourth and oldest child, Laura, died from natural causes — in this case the illness known as myocarditis, or inflammation of the heart muscles.
"Laura died with, and highly probably because of, florid myocarditis," Professor Hilton wrote. "There was no medical evidence demonstrable or demonstrated in the report of the post-mortem examination to support another cause for her death." Professor Duflou backed the views of Professor Hilton and Professor Cordner in his statement to the inquiry: "In my opinion, there is without doubt myocarditis of a severity which can readily cause sudden and unexpected death … in this case, no competing cause of death has been identified at autopsy; therefore based purely on the autopsy findings, the cause of death would be given as myocarditis." However, he added: "Acknowledging that there is no other obvious cause of death in Laura, I nevertheless consider it not unreasonable to give the cause of death as undetermined in the alternative, as proffered by Dr Cala. "The reason for this is the knowledge that myocarditis can be incidental to death, and the fact that three siblings died leads one to consider causes of death, where death is not simply due to myocarditis but that the myocarditis may have been a contributor or incidental to death in this case." Dr Cala 'was incorrect' to exclude myocarditis: Professor Cordner noted: "Dr Cala was of the view that Laura died with myocarditis rather than from it, but his reasons for this do not hold water in my view." He said that where Dr Cala described the myocarditis at Laura's autopsy as "patchy and mild; I think it is better described as widespread and at least moderate in degree". "I do think Dr Cala could have justified the cause of death as he gave it: Undetermined," Professor Cordner said. "He was incorrect to argue that there were medical and pathology reasons for excluding myocarditis." Another medical expert, Robert Clancy, submitted a statement backing the notion that there are plausible natural causes of death for Laura and Folbigg's other three children, Caleb, Patrick and Sarah. Professor Clancy, an immunologist and microbiologist, is Emeritus Professor in the School of Biomedical Sciences and Pharmacy, Faculty of Health and Medicine at Newcastle University. He wrote: "I agree with the diagnosis made by professors Cordner and Duflou in the case of Laura, as acute myocarditis …
"I am uncertain why the pathologist (Dr Cala) did not identify myocarditis as the cause of death in Laura … "I see no evidence that any child has been mistreated or any evidence of external trauma or internal evidence of suffocating or alternate cause of death other than SIDS or myocarditis. "Any conviction of Folbigg based on medical grounds, in my opinion, would be unsafe." Patrick had no 'obvious evidence of inflicted injury': In the case of Patrick, Folbigg's second child, fresh medical opinion is being submitted to this week's inquiry that challenges the prosecution's view that Folbigg attempted to smother him when he was four months old, in October 1990, and when Folbigg says she found him gasping, blue around the lips, lifeless and floppy. He was revived and lived for a further four months. Monique Ryan, director of the Neurology Department at the Royal Children's Hospital, Melbourne, who reviewed the medical records relating to Patrick, said in her report to the inquiry that: "Patrick was admitted to hospital on multiple occasions. "On no occasion was he reported to have shown any obvious evidence of inflicted injury," Professor Ryan said. "His CT scans and ophthalmological examination did not show the changes often seen in children subjected to non-accidental injuries." Specifically in relation to the acute life-threatening event when his mother found him apparently lifeless, Professor Ryan said: "I am not convinced that Patrick's clinical history is consistent with him having neurologic deficits resulting from a single hypoxic-ischaemic episode occurring on October 18, 1990. "He was … very unwell at the time of presentation. "On the same day, however, a head ultrasound and EEG were normal, and within a few hours of admission he was described in the nursing notes as feeding well. "Had Patrick sustained a severe hypoxic-ischaemic insult on the morning on October 18, 1990 — one sufficiently severe to cause the changes seen on his subsequent imaging and his post-mortem examination — it is difficult to imagine that he would have been able to feed well that day, and that his EEG could have been entirely normal." This week's inquiry will also consider evidence that infections may have played a role in the deaths of one or more of the Folbigg children. Professor Caroline Blackwell, Conjoint Professor at the University of Newcastle's School of Biomedical Sciences and Pharmacy, told the inquiry in her statement that: "Despite some reluctance to consider that minor infections can trigger SUDI or SIDS, there is a growing body of evidence that infection plays a role in these." Dr Cala 'has ignored the evidence': Professor Blackwell, an infectious diseases specialist, wrote that, in her opinion, Dr Cala "has ignored the evidence implicating infection in SUDI published prior to 2003". "Since 2003 there is increasing evidence that these factors need to be considered," she said. "This is not, as Dr Cala implied, a vague theory by microbiologists, or 'junk science'. "The findings have been reported in well-respected, peer-reviewed scientific and medical journals and presented at major national and international meetings." Professor Blackwell said her conclusions, "particularly for Sarah and Laura", agree with the opinion of another forensic pathologist, Roger Byard, from the University of Adelaide, that "potentially significant organic illness was present in these children". The ABC approached Dr Cala for comment, but he had not responded at the time of writing. Professor Clancy also backed the view that infection may have played a role in Sarah's death.  He told the inquiry that: "The bacteria of the type found in Sarah's lung tissue are commonly present in children that die unexpectedly and without any readily identifiable alternate cause of death. "This is not unique, but rather characteristic of any disorder where the protective immune mechanisms in the airways are compromised. "A confident diagnosis of SIDS can be made as the cause of death in Sarah on clinical grounds. "The microbiological report in my opinion adds confidence to this diagnosis by the finding of both streptococcus and staphylococcus species in the lung cultures … the presence of these bacteria acquired prior to death due to a unique abnormality of impaired airways clearance reinforces the probability of SIDS as the cause of death in Sarah." Professor Blackwell also revealed that in 2000 — three years before Folbigg was sent to trial — she was approached by Detective Inspector Bernie Ryan, the officer heading the police investigation into the deaths of Folbigg's four children, who asked for information about sudden infant deaths. She said she advised him that "my research team had screened tissues and body fluids from infants who died of unexplained causes and identified toxins of staphylococcus aureus in over half of the SIDS/SUDI infants tested". Professor Blackwell said that: "More recent findings have indicated that S. aureus is one of the major isolates from infants who die suddenly and unexpectedly." 'Too expensive': Police turn down toxin test: Professor Blackwell said she told Detective Ryan that she could test for the toxins at the University of Edinburgh, and "I suggested that the costs would be modest". But Detective Inspector Ryan, she alleges, "said it was too expensive as there would need to be someone accompanying the samples and to watch each step of the process". Professor Blackwell said that, as a result, the tests did not go ahead. Professor Blackwell is expected to give evidence on Friday. Detective Inspector Ryan has declined to comment. Kathleen Folbigg will answer questions about diaries: Following this week's hearings on the forensic evidence, further genetic evidence will be presented to the inquiry next month. Following that, Folbigg will herself give evidence about the diaries she wrote, and what she meant by some of the diary entries she made. Ms Folbigg did not give evidence at her trial in 2003 and spoke about her diaries last year for the first time, exclusively, on Australian Story. "You've got to understand that those diaries are written from a point of me always blaming myself," Ms Folbigg said in one phone call. "I blamed myself for everything. It's just I took so much of the responsibility, because that's, as mothers, what you do.""

The entire story can be read at: 
https://www.abc.net.au/news/2019-03-18/kathleen-folbigg-new-evidence-suggests-wrongly-convicted-killing/10910200

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.




Space to play or pause, M to mute, left and right arrows to seek, up and down arrows for volume

60 Minutes Australia: Carol Matthey, a woman formerly accused of four children’s murder, says notorious serial killer Kathleen Folbigg could be innocent," Sammi Taylor reports on 9News, as Sixty Minutes Australia episode on the Kathleen Folbigg case is about to air at 8.30 PM on Sunday, March 17..."In an almost parallel case, Kathleen Folbigg had four babies die: two boys and two girls. The deaths, between 1989 and 1998, were originally thought to be caused by SIDS. But Folbigg was later charged with the murder of three of the children and the manslaughter of a fourth. She was convicted in 2005 and is serving a 30-year sentence in Silverwater women's prison but has always maintained her innocence."


60 Minutes airs this Sunday at 8.30pm on Channel Nine, after Married at First Sight. For more information on 60 Minutes, visit the official website.

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QUOTE OF THE DAY: "Ahead of an inquiry into Folbigg's conviction that could pave the way for her to walk free after 15 years in jail, Ms Matthey said her family's tragedy is proof that four dead children could be a tragic medical mystery and not a sinister crime. "Medical experts can be wrong and are wrong," Ms Matthey said. "She could be innocent.""

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STORY: "60 Minutes: Woman formerly accused of four children’s murder says notorious serial killer Kathleen Folbigg could be innocent," by 60 Minutes Digital Producer Sammi Taylor, published  by 9News on March 17,   2019.

PHOTO CAPTION: "Between 1998 and 2003, four of Geelong mum Carol Matthey's children – Jacob, Chloe, Joshua and Shania – died in her care."

PHOTO CAPTION: "In 2007, the case against the mother was dropped when the judge threw out the evidence of star witnesses.

PHOTO CAPTION: "In an almost parallel case, Kathleen Folbigg had four babies die: two boys and two girls. The deaths, between 1989 and 1998, were originally thought to be caused by SIDS."

GIST: "A mother cleared of the murders of her four children has claimed Kathleen Folbigg, Australia's worst female serial killer, may be innocent. In an exclusive interview with 60 Minutes reporter Tara Brown, Carol Matthey speaks for the very first time about the sudden deaths of her four babies. Between 1998 and 2003, four of Geelong mum Carol Matthey's children – Jacob, Chloe, Joshua and Shania – died in her care. In 1998, Jacob passed away aged seven months. Two years later, Chloe died at nine weeks. Forensic pathologists said both children suffered Sudden Infant Death Syndrome, known as SIDS. Two years later, at just three months old, Joshua stopped breathing. At the time, his death was thought to be caused by a blood infection. "I can't remember exactly what I was thinking but I think the main thing was, it can't be happening again," Ms Matthey tells Tara Brown in her first-ever interview. But it was the death of three-and-a-half-year-old Shania that caused alarm bells to sound in 2003. Too old for SIDS, pathologists were unable to say what caused the little girl's death. The unexplained circumstances of Shania's death raised concerns among police. In 2005, they arrested Ms Matthey and charged her with the murder of all four children. But in 2007, the case against the mother was dropped when the judge threw out the evidence of star witnesses.Ahead of an inquiry into Folbigg's conviction that could pave the way for her to walk free after 15 years in jail, Ms Matthey said her family's tragedy is proof that four dead children could be a tragic medical mystery and not a sinister crime. "Medical experts can be wrong and are wrong," Ms Matthey said. "She could be innocent.""

https://www.9news.com.au/2019/03/17/02/37/60-minutes-carol-matthey-kathleen-folbigg-sids-serial-killer-courts

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.

Forensic Genealogy: Reporter Sarah Weinman has written a fascinating account of how forensic genealogy Is cracking decades-old cold cases in an article found on the Marshall Project web site in which she notes that forensic genealogists at Parabon NanoLabs are using DNA databases to solve cold cases faster than anyone could have imagined. But she wisely asks: "how will their techniques hold up in court?" (Exellent analysis of a very difficult subject. HL);


PASSAGE OF THE DAY: "When forensic genealogy is subjected to interrogation in a courtroom, perhaps as early as this year, how will Parabon handle it when defense attorneys put its scientific approach under the microscope, perhaps aggressively? The answer, Greytak tells me, is to to focus on the limitations of the technology, to stress that genetic genealogy is, for all intents and purposes, a presumptive test, not a confirmatory one. “Even though, sometimes, our information results in a name that we’re giving to the police, it’s still [just] an investigative lead,” she says. “That’s the way we always couch it. We are recommending that you look at this person, but we can’t say so with 100 percent certainty.” Once law enforcement receives that lead—one that Parabon cofounder Steven Armentrout tells me is “no different from an anonymous tip or from a composite sketch artist”—they still have to do the work to investigate and obtain DNA from that person of interest, as was the case with April Tinsley’s killer. “Our information helped [law enforcement] locate that person, but it’s the DNA match that’s actually used in the prosecution,” says Greytak. “We do recognize that, since our information was helping them to get there, that could be part of the court case. But the end result is to say that the DNA matched.”

STORY: "How Forensic Genealogy Is Cracking Decades-Old Cold Cases,  by Sarah Weinman (Topic Magazine)  published by Forensic Magazine.

SUB-HEADING: "Forensic genealogists at Parabon NanoLabs are using DNA databases to solve cold cases faster than anyone could have imagined. But how will their techniques hold up in court?"

GIST:  (Just a taste of a much longer article which is well worth the read. HL)..."Because all of the suspects in cold cases fully resolved by Parabon have either pled guilty or were deceased by the time they were identified, forensic genealogy has yet to be tested in a courtroom. (This past December, John D. Miller pleaded guilty to April Tinsley’s murder and was sentenced to 80 years in prison.) Once it is, the question becomes whether or not the technology will be deemed robust enough to withstand the Daubert standard, a key test for scientific techniques named for a 1993 Supreme Court ruling, which is supposed to determine whether a branch of forensic science is “generally accepted” in the scientific community. (DNA testing met the Daubert standard right away, in large part because it was a new-enough technique to have its merits and flaws scrupulously examined by prosecutors and defense attorneys alike.)  ....................................

As with the initial use of DNA testing in a forensic science capacity three decades ago, more practical concerns will appear as forensic genealogy becomes better understood and more widely accepted. The technology as done by Parabon is expensive, each analysis costing upwards of $5,000. Multiply that by the number of open cases, cold or hot, and the math doesn’t work in investigators’ favor.
Parabon’s researchers focus on the limitations of the technology, to stress that genetic genealogy is a presumptive test, not a confirmatory one.
Some agencies, like the Florida Department of Law Enforcement, are working around the expense by creating their own forensic genealogy units. But most law enforcement agencies simply can’t afford to use genetic genealogy on every cold case, let alone newer ones. “Maybe someday this technology can be done by state forensic labs, but right now we’re still struggling to get analysts to do the basic DNA testing,” Karen Richards, the Allen County prosecutor who oversaw the April Tinsley case, reminds me. “Results take months and months to come in. So until we get a handle on more adequate and timely basic testing, I can’t imagine trying to add another layer of complexity.” In the meantime, there will only be more questions about the validity of forensic genealogists working with law enforcement, about ethics and privacy concerns, and about who is qualified to make those calls. In January 2019, BuzzFeed broke the news that FamilyTreeDNA, one of the oldest private at-home genetic-testing companies—and the one that first attracted CeCe Moore’s attention as a budding amateur genealogist—has been allowing FBI agents to search its genealogy database in an effort to solve violent crimes, a shift that is currently both legal and welcomed by the company. FamilyTree, established in 1999, had changed its terms of service in December 2018 to assert that law enforcement could make use of its data for homicide and rape cases, but for the more than a million people whose DNA samples became part of FamilyTree’s database in its 18 years of existence, finding out the FBI had access to their data without their permission was not what they had signed up for. As Alan Butler, senior counsel for the Electronic Privacy Information Center, a nonprofit research center focusing on privacy issues, told the New York Times in February: “The company needs to either roll back the change or else delete all stored DNA data it has collected from individuals under the previous agreement.” Already, one bill to limit the use of forensic genealogy in cold cases, or ban it outright, is being considered in Maryland. More states may follow suit if public outcry grows. .........................

Forensic genealogy may still be in uncharted, unregulated territory, but as applied to crime-solving, it looks to be as paradigm-changing as DNA testing was to forensic science—like a light switch flipped on what was previously thought of as of as permanent darkness. But the technique is new enough that the serious concerns already lodged about ethics and privacy should not be ignored. We want crimes to be solved, but at what cost? Is the excitement of resolving a long-unsolved murder worth the price of ever-increasing police surveillance, or falling into entrenched racial biases, or prioritizing arrests over community, prison over rehabilitation? Thinking about these questions tempers my own excitement about genealogy’s present and future role in law enforcement. The quest to understand our ancestral roots is filled with the landmines of unintended consequences. Because, as genealogists well know, DNA is a shared experience. One DNA upload by one person curious about their ancestry leads to the arrest of a killer in a decades-old case. That DNA upload comes from a specific individual, yes, but each generational remove creates a community. It’s not just your DNA, or mine. It’s all of ours, flying out of that Pandora’s box, and we have no real idea where it may lead next.

The entire post can be read at:
https://www.topic.com/the-cold-case-factory?utm_source=email&utm_medium=email&utm_content=link&utm_campaign=offtopic&utm_source=The+Marshall+Project+Newsletter&utm_campaign=baab9ccbf3-EMAIL_CAMPAIGN_2019_03_14_11_13&utm_medium=email&utm_term=0_5e02cdad9d-baab9ccbf3-174331221

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, March 16, 2019

Kathleen Folbigg: Carol Matthey; Australia; Sixty Minutes Australia strikes again! (Sunday March 17); Just a week after it's shocking episode on Susan Neill-Fraser, which immediately impacted on her appeal, it is focusing on the Kathleen Folbigg case - and a parallel with another extraordinary case involving a mother accused of killing four of her babies..."As Tara Brown reports in this 60 Minutes special investigation, the two cases are remarkably similar, right down to the expert witnesses called upon to determine the truth. Yet while Kathleen was convicted as Australia’s worst female serial killer, the prosecution against Carol was thrown out."


POST: "On 60 Minutes,  March 17) Reporter Tara Brown delves into the case of child killer Kathleen Folbigg, whose judicial inquiry begins on Monday,"  posted by Sixty Minutes Australia

PHOTO CAPTION: Brown speaks to Carol Matthey (pictured), another mother cleared over the murder of her infants.

GIST: "Is there a more hated woman in Australia than Kathleen Folbigg? Over a period of 10 years, one by one, she killed her four babies. Her crimes are so inconceivable it is still hard to fathom how and why she did it. That is, until you consider this – maybe Kathleen Folbigg was wrongly accused. She has always maintained her innocence, and on Monday a judicial inquiry reviewing her conviction begins. After 15 years in prison, it might lead to her freedom. Hoping that’s the case is Carol Matthey. More than anyone, she knows what Kathleen has endured because, incredibly, she too was accused of killing four of her babies. As Tara Brown reports in this 60 Minutes special investigation, the two cases are remarkably similar, right down to the expert witnesses called upon to determine the truth. Yet while Kathleen was convicted as Australia’s worst female serial killer, the prosecution against Carol was thrown out. Reporter: Tara Brown Producer: Grace Tobin."

The entire episode can be read at:
https://tvtonight.com.au/2019/03/60-minutes-march-17.html

Excellent background material relevant  to the  judicial inquiry set for Monday can be read in its entirety at  the link below under heading  'Conviction of serial killer Kathleen Folbigg questioned in light of new forensic evidence' by reporter Antonette Collins, published by ABC News on October 25, 2018.  "Ms Folbigg was sentenced to a minimum of 25 years in prison in New South Wales after being found guilty in 2003 of the murder of three of her infants and the manslaughter of a fourth over a 10-year period from 1989. She has always maintained her innocence. At today's directions hearing, former chief District Court judge Reginald Blanch QC said an inquiry, unlikely to begin until February or March next year, would examine new evidence from forensic pathologists. Senior counsel assisting the inquiry Gail Furness told the hearing the convictions were based on circumstantial evidence and four new reports from medical experts suggest the deaths could be explained by unidentified natural causes. "Three of the reports concern the cause of the deaths and one is addressed to the use of diary evidence. None of those authors gave evidence at the trial," Ms Furness said. The main report expected to be relied upon, by Monash University forensic pathologist Professor Stephen Cordner, concluded "there is nothing from a forensic pathology viewpoint to suggest that any of the children had been killed". Ms Furness said the report by Mr Cordner indicated there were natural causes of death for two of the children, Patrick and Laura, and natural causes were a plausible explanation for the other two deaths, Caleb and Sarah. A peer-reviewed report on his work, which will also be examined, suggested the "jury was almost certainly misled by statement made by experts regarding the rarity of multiple cases of SIDS [sudden infant death syndrome]". A report from a clinical psychologists suggested Ms Folbigg's diary entries, which were crucial to the prosecution argument against her, did not contain a clear admission of guilt. However, Ms Furness said the report did not generate enough doubt to warrant further examination of the diary entries.
Instead, the scope of the inquiry will focus on medical evidence in light of any new material to have emerged since 2003. Outside court, barrister Isabel Reed, who has been one of a number of lawyers working on the review, said her client was "as well as could be expected". A senior counsel is yet to be appointed to represent Ms Folbigg at the inquiry."
 https://www.abc.net.au/news/2018-10-25/kathleen-folbigg-inquiry-examines-new-evidence/10427986

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, March 15, 2019

California's death penalty: Major Development: Governor Gavin Newsom imposes a moratorium on executions, as per The Intercept story by Liliana Segure and Jordan Smith - two superb reporters on the U.S. criminal justice system - under the heading: “There Are Innocent People on Death Row” — Citing Wrongful Convictions, California Governor Halts Executions." (Reference is made to the case of Kevin Cooper which we are following on this Blog..."There are serious reasons to question Cooper’s guilt — and to believe that he was framed by law enforcement — and he has long sought DNA testing in an effort to clear his name. But Kamala Harris refused to allow the testing during her time as attorney general — and then Jerry Brown dragged his heels until the last days of his administration, when he finally issued an executive order providing limited testing and consideration of disputed evidence. In February, Newsom widened the scope of the testing."


PASSAGE OF THE DAY: "News of the governor’s moratorium came as a pleasant surprise to Donald Heller, the veteran California attorney who wrote the 1978 ballot initiative that created California’s current death penalty law. Heller told The Intercept in 2016 that he was dismayed at the way the law was applied, particularly in the case of Tommy Thompson, a man executed in 1998 — and who Heller firmly believed was innocent. Heller was in Boston and had not yet heard the news about Newsom’s planned announcement when The Intercept reached him on Tuesday night. “I applaud what he’s doing,” he said. “It shows courage and a belief that capital punishment should eventually be abolished.” Heller was an outspoken supporter of Prop 34, the predecessor to the abolitionist initiative defeated in 2016. At that time, he recalled, “it was estimated we had spent $4 billion executing 13 people, which is truly insane.” Today, the estimate has climbed to $5 billion. Heller calls the ballot initiative he authored in the late 1970s “a colossal failure, because it didn’t function as intended.” Rather than make the death penalty apply to only the most egregious crimes, “it filled death row — and so many cases have been overturned for reasons that dealt with ineffective assistance of counsel. It’s just not effective — and I’m convinced it’s not a deterrent.”

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STORY: "There Are Innocent People on Death Row” — Citing Wrongful Convictions, California Governor Halts Executions," by Liliana Segura and Jordan Smith,  published by The Intercept on March 13, 2019.

GIST: "A corrections officer removes handcuff from an inmate in his cell at San Quentin State Prison in San Quentin, Calif., on Aug. 16, 2016. Photo: David Paul Morris/Bloomberg via Getty Images
In a historic executive order signed Wednesday morning, California Gov. Gavin Newsom imposed a moratorium on executions and ordered the death chamber at San Quentin Prison — unused following a $853,000 renovation a decade ago — closed. “We are, as I speak — as I speak — shutting down, removing the equipment in the death chamber at San Quentin,” Newsom said at a press conference at the state capitol in Sacramento. In remarks that emphasized racial disparities and the risk of executing innocent people, Newsom described his decision as the culmination of “a 40-year journey” that began when he was just a child. His grandfather introduced him to Pete Pianezzi, who came close to receiving the death penalty in 1940 after being set up by the mob. Pianezzi was eventually pardoned in 1981, at the age of 79. But wrongful convictions remain a profound danger. “You had someone just last year that was released from death row after serving 26 years in San Quentin,” he said, referring to the case of Vicente Benavides, exonerated in April 2018. Newsom’s order leaves intact the sentences of all 737 condemned people in the state, the largest death row in the country. It also does nothing to stop prosecutors from seeking new death sentences, something California district attorneys have proven eager to do. In this sense, Newsom’s announcement merely formalizes the status quo in a state whose death penalty system has come to be defined by disarray — and where no executions have been carried out in more than 13 years. Nevertheless, the governor’s language against the death penalty was passionate and unambiguous, suggesting that he could take more decisive action in the future. He explained that he felt no choice but to act now upon being confronted with the question of whether he would continue the efforts of the previous administration to adopt a viable lethal injection protocol. “I would be lying if I said I could support that,” he said. In addition, he said, there are 25 people on death row who have exhausted their appeals, raising the possibility that he would have to oversee their executions, something he would be unwilling to do. Newsom’s move comes just a few years after California actually voted to hasten executions in the state. Voters in the 2016 election were faced with confusing, dueling ballot initiatives: Proposition 66, which sought to revamp the system in order to speed up executions (a measure strongly supported by law enforcement), and Proposition 62, which sought to abolish the death penalty and replace it with life without parole. Then-Gov. Jerry Brown stayed mum on the issue as did Kamala Harris, then the state’s attorney general and now a U.S. senator and Democratic candidate for president. But Newsom, at that time the state’s lieutenant governor, came out forcefully in favor of abolition, writing that the death penalty was “fundamentally immoral.” When the votes were counted, Prop 62 had failed and Prop 66 had passed by the narrowest of margins. As predicted at the time, legal challenges have blocked the implementation of Prop 66. Today, California is one of several death penalty states where executions remain stalled with no sign of restarting. In Pennsylvania, which has not used its death chamber since 1999, Gov. Tom Wolf declared a moratorium on executions in 2015, calling the death penalty “ineffective, unjust, and expensive.” Moratoriums have also remained in place in Oregon and Colorado, two states on the cusp of abolishing executions altogether. Even the most active death penalty states have been continually mired in controversy and litigation over execution protocols. In Ohio, Gov. Mike DeWine recently announced a pause on executions while the state weighs alternatives to its lethal injection protocol. The decision came soon after he granted a reprieve to Warren Keith Henness in January, citing concerns by a federal judge that the execution would be akin to torture. In many ways, California’s death penalty system is emblematic of the state of capital punishment nationwide. As in much of the country, people on death row in the state are more likely to die from illness, suicide, or old age than they are to be executed. California’s last execution took place in January 2006, when it put to death 76-year-old Clarence Ray Allen, the oldest person ever executed by the state. Allen, who was diabetic and legally blind, was brought to the death chamber in a wheelchair. Soon after Allen’s execution, a challenge to the state’s lethal injection protocol brought the system to a halt. Yet California prosecutors continued to seek death sentences — 180 people were sent to death row between 2006 and 2015, the last year for which the California Department of Corrections and Rehabilitation has posted data. Since California reauthorized the death penalty in 1978, death sentences have rarely led to executions. According to data compiled by The Intercept, at least 72 people on death row have had their sentences reduced to life with or without parole and at least 11 have been released from prison, including six who were ultimately exonerated. And the row continues to gray: Fifty-three percent are 50 or older; 79 people have died awaiting execution. Twenty-six have killed themselves. Nevertheless, prosecutors continue to insist that the death penalty is effective and necessary. The Association of Deputy District Attorneys lambasted Newsom’s order as “hasty and ill-considered,” saying that it violates the will of the people. “The voters of the State of California support the death penalty,” ADDA President Michele Hanisee said, saying that this was “powerfully demonstrated by their approval of Proposition 66 in 2016.” In an interview with The Intercept that year, Hanisee said that hastening executions was about delivering justice to victims, not about clearing the growing backlog of people awaiting execution. “I don’t think the goal is to clear death row,” she said at the time. “That would be perverse.” “A Colossal Failure” News of the governor’s moratorium came as a pleasant surprise to Donald Heller, the veteran California attorney who wrote the 1978 ballot initiative that created California’s current death penalty law. Heller told The Intercept in 2016 that he was dismayed at the way the law was applied, particularly in the case of Tommy Thompson, a man executed in 1998 — and who Heller firmly believed was innocent. Heller was in Boston and had not yet heard the news about Newsom’s planned announcement when The Intercept reached him on Tuesday night. “I applaud what he’s doing,” he said. “It shows courage and a belief that capital punishment should eventually be abolished.” Heller was an outspoken supporter of Prop 34, the predecessor to the abolitionist initiative defeated in 2016. At that time, he recalled, “it was estimated we had spent $4 billion executing 13 people, which is truly insane.” Today, the estimate has climbed to $5 billion. Heller calls the ballot initiative he authored in the late 1970s “a colossal failure, because it didn’t function as intended.” Rather than make the death penalty apply to only the most egregious crimes, “it filled death row — and so many cases have been overturned for reasons that dealt with ineffective assistance of counsel. It’s just not effective — and I’m convinced it’s not a deterrent.” Darryl Stallworth, a former prosecutor turned defense attorney in Oakland who campaigned for Prop 62, was “absolutely delighted” at Newsom’s decision. Stallworth came to oppose the death penalty after prosecuting a young black man in a capital case that ultimately ended with a sentence of life without parole. After 27 years working in the justice system, he has returned time and again to “the fundamental understanding that the death penalty does not deter crime, it does not save lives, it does not provide closure, it subjects people to an awful lot of disproportionate treatment based on color, class, gender,” he said. “It is a system that does not have the proper mechanisms to make sure that they get it right, and even if they do, oftentimes it’s still not constitutional.” Stallworth called capital punishment a “scar” on the nation’s laws. “I’m happy that the governor has recognized the scar, the taint, the damage that it has left on the criminal justice system.” As Newsom made clear at the Wednesday press conference, the enduring unfairness inherent in the death penalty was what forced him to act. More than 60 percent of California’s death row population are people of color; overall, 61 percent of Californians are white. “Our death penalty system has been — by any measure — a failure,” Newsom said. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation.” It does not act as a deterrent and has wasted billions, he said. “But most of all, the death penalty is absolute. Irreversible and irreparable in the event of human error.” And there are lingering questions about the impact of human error — and of bias and corruption — in a number of California cases, including that of Kevin Cooper, who has been on death row since he was convicted in 1985 of a grisly quadruple murder in Chino Hills. The country also watched as California’s death penalty system went into full meltdown mode in Orange County as prosecutors tried to secure the death penalty for Scott Dekraai, who killed eight people in Seal Beach in 2011. Dogged work by public defender Scott Sanders revealed years of malfeasance by the county’s district attorney and sheriff’s office, who employed jailhouse snitches in unconstitutional schemes in an attempt to pry confessions from inmates awaiting trial. The extent of the scandal convinced a state district judge to bar the state from seeking the death penalty for Dekraai: It could not be trusted to ethically do so, he found. The scandal ultimately led to the ouster of long-time District Attorney Tony Rackauckas, a rabid supporter of Prop 66 who was defeated in the 2018 elections. Ultimately, Newsom said it will be up to Californians to end the death penalty, which he hopes they will do. “Five billion dollars could have bought a lot of justice for murder victims that didn’t have their murders investigated,” he said. “Five billion dollars could have bought a lot of justice to people that had inadequate representation. … Five billion dollars could have bought a lot of justice in training to right the wrongs of a criminal justice system that is skewed against black and brown people.""

The entire story can be read at:
https://theintercept.com/2019/03/13/california-death-penalty-moratorium/

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

Thursday, March 14, 2019

Susan Neill-Fraser: Australia. (Aftermath 1): Major Development in aftermath of Sixty Minutes Australia episode. New affidavit by key witness Meaghan Vass, which allegedly contained information about the events that took place on the Four Winds, to be considered on the Neill-Fraser appeal, Flinders News reports. (Reporter Emily Jarvie)..."Following the evidence of a final witness in February, Justice Michael Brett was due to deliver a verdict on Neill-Fraser's final appeal attempt. Justice Brett adjourned the court to reconvene on Thursday."


PASSAGE OF THE DAY: "An episode of 60 Minutes that aired on Sunday night, but was not broadcast in Tasmania, contained evidence of a new affidavit by key witness Meaghan Vass, which allegedly contained information about the events that took place on the Four Winds. Justice Brett said he did not view the 60 Minutes program but was aware of its contents. Upon seeing the program, Neill-Fraser's defence lawyers called the producers of the segment and gained a copy of Ms Vass' affidavit.  The court heard this affidavit and an affidavit from the person who witnessed Ms Vass make her statement, in order to explain the circumstance under which Ms Vass made the affidavit, will be made available to Justice Brett and the prosecution for consideration in the coming days.  Director of Public Prosecutions Daryl Coates did not object to the re-opening of the appeal."

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STORY: "New affidavits will be considered in Susan Neill-Fraser's appeal,  by reporter Emily Jarvie, published by Flinders News on March 14, 2019.

GIST:  Susan Neill-Fraser was found guilty for the murder of her partner Bob Chappell in Hobart on Australia Day, 2019.
An application to re-open Susan Neill-Fraser's bid to appeal against her murder conviction to include new evidence has been accepted by Justice Michael Brett in the Supreme Court. Neill-Fraser is serving a 23-year jail sentence for the murder of her partner Bob Chappell, who disappeared off the couple's yacht, the Four Winds, moored in Sandy Bay on Australia Day 2009. She is trying to gain another appeal against her conviction and needs to show fresh and compelling evidence for the appeal to be granted. An episode of 60 Minutes that aired on Sunday night, but was not broadcast in Tasmania, contained evidence of a new affidavit by key witness Meaghan Vass, which allegedly contained information about the events that took place on the Four Winds. Justice Brett said he did not view the 60 Minutes program but was aware of its contents. Upon seeing the program, Neill-Fraser's defence lawyers called the producers of the segment and gained a copy of Ms Vass' affidavit.  The court heard this affidavit and an affidavit from the person who witnessed Ms Vass make her statement, in order to explain the circumstance under which Ms Vass made the affidavit, will be made available to Justice Brett and the prosecution for consideration in the coming days.  Director of Public Prosecutions Daryl Coates did not object to the re-opening of the appeal. Mr Coates said it was unlikely he would need to call Ms Vass back as a witness in court, however, said he would make that decision upon receiving the new affidavits.  "It may well be that I won't have to cross-examine anybody," Mr Coates said.  Following the evidence of a final witness in February, Justice Michael Brett was due to deliver a verdict on Neill-Fraser's final appeal attempt.   Justice Brett adjourned the court to reconvene on Thursday."

The entire story can be read at:
https://www.theflindersnews.com.au/story/5955887/information-in-60-minutes-segment-leads-to-re-opening-of-susan-neill-frasers-appeal/?cs=9397

Read the Tasmonia Talks  story (Brian Carlton; March 15) at the link below for background on the legal framework which allows the court to hear the new evidence on Neill-Fraser's appeal, at the link below: "A decision on Susan Neill-Fraser's latest bid to overturn her murder sentence could be made within a week. Using 2015 laws, the convicted murderer is staging a last-ditch bid for a new appeal, which would be allowed if Justice Michael Brett is satisfied she has fresh and compelling evidence. She's serving 23 years after her partner Bob Chappell vanished off their yacht at Sandy Bay in 2009. The 65-year-old's lawyers were allowed to tender a new affidavit yesterday from witness Meaghan Vass. Seven network lawyers deemed Ms Vass' claims about what happened to Mr Chappell too explosive to broadcast in Tasmania on Sunday night. Justice Brett reserved his decision on Neill-Fraser's "fresh and compelling evidence" application last month."
 https://www.tasmaniatalks.com.au/newsroom/tasmanian-news/36821-judge-receives-neill-fraser-evidence

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

Wednesday, March 13, 2019

Bulletin: Dennis Oland: New Brunswick: CKNI 91.9 reports (Reporter Kevin Worrell) that the defence has closed its case in this murder trial w\hich is rich in forensic issues of interest to the readers of this Blog. What's next? Read on!this blog.


STORY: "Defence Closes Its Case At Dennis Oland  trial," by reporter Kevin Worrell, published by CKNI 91.9 on March 12, 2019.
https://www.919thebend.ca/2019/03/12/defence-closes-its-case-at-dennis-oland-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.

Tuesday, March 12, 2019

Good news: (Always welcome! HL); U.K. From 'On SBS' Publisher Sue Luttner who presents, "Three court decisions this winter continue a recent surge of good news for families fighting misguided abuse accusations," in a post headed, "Dropped charges, an executive pardon, and other good news."


POST: "Dropped charges, an executive pardon, and other good news," by Sue Luttner on her Blog  'On Shaken Baby' published on February 3, 2019.

 GIST: "Three court decisions this winter continue a recent surge of good news for families fighting misguided abuse accusations."

Dropped charges: "In Michigan, a judge offered an apology while dismissing charges against Allie and Jimmy Parker, separated for eight months from their two young children after they were accused of abusing their 6-week-old son. Dr. Douglas Smith, who uncovered the medical reasons for the findings that led to the diagnosis, has posted an excellent review of the case on the Torn Family web site, a resource for parents wrongly accused.  Go to the link below to read further details on this case. 


An executive pardon:  "In Maine in late December, a judge granted a pardon to Brandon Ross, a father who had accepted a plea bargain in order to reunite his family when the state refused to accept an Ehlers-Danlos diagnosis—even after his son suffered another fracture in foster care. The WMTW8 coverage features the text version of the story and two touching video treatments."

Other good news: "And in South Carolina, a family court judge reunited a toddler with his parents and derailed a fast-track adoption last week, after accepting a defense doctor’s diagnosis that the boy’s fractures were due to a vitamin D deficiency. Parents Joshua Coker and Ashley Joyner still face criminal charges, but they are with their son again. Go to the link below to read further details of this case and read the entire post - and Sue Luttner's ending on an optimistic note: "The tide is turning."

The entire post can be read at:
https://onsbs.com/2019/02/03/dropped-charges-an-executive-pardon-and-other-good-news/

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, March 11, 2019

Adnan Syed (Of Serial podcast fame): Maryland: Major Development: Setback: Maryland Court of Appeal rules against a new trial, CNN reports. Reporter Ralph Ellis. (Forensic evidence relating to cell towers is an issue in the case - But! "Concerning the cell tower evidence, the court of appeals said Ayed had not raised that issue when he argued ineffective counsel in an earlier appeal. "In short, because Mr. Syed could have raised his ineffective assistance of counsel claim on the basis of the cell tower location evidence in his post-conviction petition and did not, he waived the claim by failing to do," the majority opinion said. Syed has been appealing his convictions over the years. In 2016, a Baltimore Circuit Court judge vacated Syed's conviction and ordered a new trial, based on claims that Syed's trial lawyer failed to cross-examine the expert witness about the reliability of cell tower location evidence. The state appealed the 2016 order, leading to a March 2018 ruling by the special appeals court ordering a new trial."


PUBLISHER'S NOTE: CNN has provided a link to the entire appeal court decision at the highlighted link below so we can read it for ourselves  How's that for good journalism! Bravo!

Harold Levy: Publisher: The Charles Smith Blog;

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QUOTE OF THE DAY: "His current attorney, Justin Brown, issued this statement: "We are devastated by the Court of Appeals' decision but we will not give up on Adnan Syed. Unfortunately we live in a binary criminal justice system in which you either win or you lose. Today we lost by a 4-3 vote."

PASSAGE OF THE DAY:

STORY: "Adnan Syed, subject of 'Serial' podcast, will not get a new trial," by reporter Ralph Ellis, published  by CNN on March 8, 209.


GIST:  "Maryland's Court of Appeals has ruled that Adnan Syed, whose murder conviction was the focus of the first season of the popular "Serial" podcast, will not get a new trial. The Court of Appeals on Friday reinstated his conviction by reversing a March 2018 ruling by the Maryland Court of Special Appeals. That court had ordered a new trial for Syed, who is serving a life sentence in the slaying of his ex-girlfriend in 1999. His current attorney, Justin Brown, issued this statement: "We are devastated by the Court of Appeals' decision but we will not give up on Adnan Syed. Unfortunately we live in a binary criminal justice system in which you either win or you lose. Today we lost by a 4-3 vote." Syed's case became nationally known in "Serial," an audio documentary that ran in 2014 and investigated the crime and how the court system handled the case. Hae Min Lee and Syed were seniors at Woodlawn in Baltimore County in January 1999, when she disappeared. Her strangled body was discovered in a city forest three weeks later. A jury in the Circuit Court for Baltimore City convicted Syed of first-degree murder, robbery, kidnapping and false imprisonment on February 25, 2000. During the trial one of his friends, Jay Wilds, testified that he helped Syed dig a hole for Lee's body. In his most recent appeal, Syed had argued he had ineffective legal counsel on two matters. In one, Syed said he gave his previous lawyers two letters from Asia McClain, a fellow student who said she saw Syed at a library around the time of the murder. Her account did not make it into the defense case, leading Syed to claim ineffective counsel for failing to contact her. In the second, he said his former defense lawyers failed to cross-examine an expert witness about the reliability of cell tower location evidence. Prosecutors had used the evidence to place Syed at the site where Lee was buried and to back up Wilds' testimony. In its ruling released Friday, the Maryland Court of Appeals said Syed's legal counsel was deficient but not so much that it prejudiced the case. Because of "the totality of the evidence" against Syed, there was not "a significant or substantial possibility that the jury would have reached a different verdict had his trial counsel presented the alibi witness," the court of appeal's majority opinion said. Syed's lawyer disagreed, saying, "There was a credible alibi witness who was with Adnan at the precise time of the murder and now the Court of Appeals has said that witness would not have affected the outcome of the proceeding. We think just the opposite is true. From the perspective of the defendant, there is no stronger evidence than an alibi witness." Concerning the cell tower evidence, the court of appeals said Ayed had not raised that issue when he argued ineffective counsel in an earlier appeal. "In short, because Mr. Syed could have raised his ineffective assistance of counsel claim on the basis of the cell tower location evidence in his post-conviction petition and did not, he waived the claim by failing to do," the majority opinion said. Syed has been appealing his convictions over the years. In 2016, a Baltimore Circuit Court judge vacated Syed's conviction and ordered a new trial, based on claims that Syed's trial lawyer failed to cross-examine the expert witness about the reliability of cell tower location evidence. The state appealed the 2016 order, leading to a March 2018 ruling by the special appeals court ordering a new trial."

The entire story can be read at:
https://www.cnn.com/2019/03/08/us/serial-adnan-syed-conviction-reinstated/index.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.



Dr. Waney Squier; U.K. Shaken Baby Syndrome. An extraordinary voice that cannot be suppressed. HL... "After months of delay and despite losing its publisher, an academic journal has finally released a special ‘debate issue’ about shaken baby syndrome with a lead paper written by Dr Waney Squier. Dr Squier is the leading neuropathologist and critic of the syndrome who is currently banned from giving expert evidence in court (see here on the Justice Gap). The special issue of the Prometheus has had a long and troubled gestation. Progress has been held up for the best part of a year by what editor Professor Stuart Macdonald has called ‘censorship by procrastination."


PASSAGE OF THE DAY: "Dr Squier begins her proposition paper with a wry reference to a colleague of hers who told her about 10 years ago that ‘there was a move afoot’ to have her reported to the General Medical Council (GMC). ‘I shrugged this off,’ she said. But, soon enough, she found herself hauled before the GMC, where she was struck off the medical register in March 2016. Her licence was restored later on that year, but she remains banned from giving expert evidence in court. Dr Squier believes what she sees as an attempt to silence her and other doctors who share her views will fail. She ends her paper by commenting that ‘even the most vicious attacks on those who cannot accept mainstream opinion will not change the anatomy or workings of the infant brain.’ The issue focuses on the role of the expert witness. As the editor Professor Macdonald explains Dr Squier was struck off ‘not because the information she gave the court was wrong but because she misbehaved as an expert witness’. ‘In other contexts, misbehaviour might be welcomed: rebels, mavericks, troublemakers, those who flout the rules play a critical role in bringing about change,’ he writes. ‘Such renegades are needed to challenge established systems before advancing sclerosis renders them totally inflexible."

STORY: "‘Only orthodoxy is accepted without question. Dissent must prove itself,’" by Will Bordell, published by "The Justice Gap" on March 7, 2019. (The Justice Gap: "We are a magazine about law and justice and the difference between the two."..."The site is run by Jon Robins -  a journalist and has written about the law and justice for the national papers and specialist press for 15 years." Author Will Bordell is Commissioning Editor of 'The Justice Gap.

GIST: "After months of delay and despite losing its publisher, an academic journal has finally released a special ‘debate issue’ about shaken baby syndrome with a lead paper written by Dr Waney Squier. Dr Squier is the leading neuropathologist and critic of the syndrome who is currently banned from giving expert evidence in court (see here on the Justice Gap). The special issue of the Prometheus has had a long and troubled gestation. Progress has been held up for the best part of a year by what editor Professor Stuart Macdonald has called ‘censorship by procrastination’. The 40-year old journal considers innovation and an issue will tackle a contentious issue with the editorial team commissioning a proposition paper – in this instance, they approached Dr Squier – and then experts from a variety of standpoints are invited to write responses. Dr Squier’s paper was first sent to the publisher in October 2017. However the issue has finally been published independently after the publisher (Taylor & Francis) divested itself of the journal of over 40 years’ standing. You can read the journal here. In his introduction, Prof Macdonald writes that the editors of the journal ‘became increasingly intrigued by what such a long-standing and increasingly bitter dispute might tell us about innovation – the primary interest of Prometheus’ ‘We pressed on, little realising just how close to the front line of battle we would be drawn,’ he wrote. The Justice Gap reported on their decision to axe the publication last September. Lawyers for Taylor and Francis suggested that many, if not all, of the articles were defamatory including one written by Sir Terence Stephenson. Sir Terence’s contribution was judged to potentially libel the General Medical Council despite the fact that the author is currently its chair. Proponents of the controversial syndrome, otherwise known as abusive head trauma, argue that a ‘triad’ of symptoms – brain swelling, bleeding on the brain, and bleeding in the retina – indicate an inflicted injury and therefore child abuse. The science behind SBS has repeatedly been called into question not least by Dr Waney Squier. In her proposition paper, Dr Squier concludes that her ban and the discouragement of other expert witnesses to take the stand means that the courts were offered ‘old hypotheses, deeply entrenched in mainstream belief and supported not by science but by repetition and reputation’.

‘The message is clear any expert who questions mainstream opinion faces not only the risk of unwelcome publicity, but also a GMC investigation, with all that this entails. The greater evil is that this leaves parents and caretakers essentially defenceless against unsupported medical claims with the unthinkable consequences of wrongful incarceration and the removal of babies from innocent parents.’

 Dr Waney Squier, Prometheus: Dr Squier’s article tracks the growth of the SBS phenomenon from 1972 when a radiologist called John Caffey first suggested the relationship between shaking and brain haemorrhages in infants citing ‘a 10-cent comic’ called Master Detective as one of his sources.

She argues that child abuse professionals latched onto the theory and support for it changed pitch in the 1990s with the high profile trial of Louise Woodward, the British au pair convicted for manslaughter after an eight-month-old baby died in her care in Massachusetts. But then, as Squier describes, scientific studies began to chip away at the ‘triad’. Studies showed that the symptoms of SBS could have many potential explanations – and that the evidence on which the SBS hypothesis is based was limited, as contended (as reported on the Justice Gap) in a major review conducted by an independent Swedish healthcare watchdog in 2017. Dr Squier herself changed her mind about the triad in 2001. As she recalled: ‘I read in depth many articles on every aspect of SBS; to my shame, I had not done this earlier…. I became convinced that there was little scientific support for the shaken baby theory and that there were many alternative causes for the triad. I had changed my mind, and the evidence I gave in family and criminal courts in infant death cases changed. I could no longer assert that the triad was sufficient evidence to make a diagnosis of abuse.’ Dr Squier begins her proposition paper with a wry reference to a colleague of hers who told her about 10 years ago that ‘there was a move afoot’ to have her reported to the General Medical Council (GMC). ‘I shrugged this off,’ she said. But, soon enough, she found herself hauled before the GMC, where she was struck off the medical register in March 2016. Her licence was restored later on that year, but she remains banned from giving expert evidence in court. Dr Squier believes what she sees as an attempt to silence her and other doctors who share her views will fail. She ends her paper by commenting that ‘even the most vicious attacks on those who cannot accept mainstream opinion will not change the anatomy or workings of the infant brain.’ The issue focuses on the role of the expert witness. As the editor Professor Macdonald explains Dr Squier was struck off ‘not because the information she gave the court was wrong but because she misbehaved as an expert witness’. ‘In other contexts, misbehaviour might be welcomed: rebels, mavericks, troublemakers, those who flout the rules play a critical role in bringing about change,’ he writes. ‘Such renegades are needed to challenge established systems before advancing sclerosis renders them totally inflexible.’

‘The environment of a UK court is hostile to innovation; precedent is honoured, not novelty. The courts are intolerant of uncertainty and shades of grey, suspicious of the very conditions – doubt, disquiet, frustration – the social sciences consider conducive to innovation…. Only orthodoxy is accepted without question as expertise: dissent must prove itself.’ Prof Stuart Macdonald:

Sir Terence Stephenson argued that reporting about Dr Squier’s case wrongly sought to characterise it as concerned with the issue of whether the evidence she gave was, or was not, correct. He continued: ‘This was not the case: instead, the fitness to practise proceedings focused only on the way she gave expert evidence and her failure to fulfil her duties to the court and to meet the standards expected of an expert witness in a number of court cases.’ Toni Saad, a doctor at University Hospital of Wales in Cardiff, wrote that it would have worrying implications for scientific integrity if expert witnesses were incentivised to give opinions in line with the orthodoxy, rather than to risk broaching an alternative theory for fear of endangering their careers. ‘Historians might one day remember Squier’s account of the putative shaken baby syndrome as another example of an established opinion being overturned by scientific evidence,’ he argues. ‘She has challenged the widely accepted hypothesis of shaken baby syndrome and has made clear that such a challenge is justified.’"

The entire story can be read at:


https://www.thejusticegap.com/only-orthodoxy-is-accepted-without-question-dissent-must-prove-itself/https://www.thejusticegap.com/only-orthodoxy-is-accepted-without-question-dissent-must-prove-itself/

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.