Sunday, September 26, 2021

Extraordinary (Welcome) Development: Saskatchewan: Justices Harry LaForme and Juanita Westmoreland-Traore - the justices appointed to head creation of an independent commission to review wrongful convictions in Canada - have called for the release of two Saskatchewan sisters convicted of murder saying their conviction strongly suggests a miscarriage of justice, Sasktoday (Reporter Lisa Joy) reports..."It strongly suggested to us that this had many indicia of a miscarriage of justice given that the sisters were still imprisoned while someone had confessed to the crime, served his sentence, and was now free of prison,” said Justice Harry LaForme in an interview today. “Throughout our consultations we heard, over and over, especially Senator Kim Pate and Innocence Canada, the circumstances of Odelia and Nerissa Quewezance,” said Justice LaForme....“Our concern was, in all the circumstances, what are the interests of justice that are served after 29 years in prison, by their continued imprisonment? We felt it deserved a review and the release of the sisters while that was proceeding,” said Justice LaForme."


PUBLISHER'S NOTE: I was thrilled on March 31st when Canadian Justice Minister David Lametti announced the governments commitment to establish an independent Criminal Case Review  Commission to review wrongful murder convictions - and when it was announced that  retired Justices Harry LaForme and Juanita Westmorland-Traore would  lead the customary consultations. (I admire them both). So I was equally thrilled when I learned earlier today that Justices LaForme and Westmoreland have singled out the convictions of Saskatchewan sisters Odelia and Nerissa Quewezance and called on the Parole Board of Canada  to release them. This case cries out innocence. LaForme and Westmoreland have heard those cries. Their commitment to securing justice for the wrongly convicted sisters bodes well for the commission they are helping to design - and will  hopefully lead to quick exoneration  of the two sisters. I will be following developments closely. 

Harold Levy: Publisher; The Charles Smith Blog.

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PASSAGE OF THE DAY: "Odelia and Nerissa Quewezance were sentenced to life in prison on second-degree murder charges in 1994 for the death of 70-year-old Anthony Joseph Dolff of Kamsack. They continue to maintain their innocence. Last year, Odelia and Nerissa Quewezance’s younger cousin told APTN Investigates that he killed Dolff. He was 14 at the time of the crime and was convicted of second-degree murder. He was sentenced to two years."

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PASSAGE TWO OF THE DAY: "Likewise, David Milgaard, who was the victim of one of Canada's most notorious miscarriages of justice and now advocates for the wrongfully convicted, also welcomed the judges’ support of the Quewezance sisters.  “I really like the fact that they came forward and they are fighting to see Odelia and Nerissa freed,” said Milgaard in a phone interview today. Milgaard was arrested in 1969 at age 16 and wrongfully convicted in 1970 of raping and murdering Saskatoon nurse Gail Miller. He was released in 1992 and exonerated in 1997 by DNA evidence, which identified North Battleford resident Larry Fisher as the person who committed the rape and murder.“Right now the justice departments are continuing to hold, not only Odelia and Nerissa, but all the wrongfully convicted in Canada hostage,” said Milgaard. “In Odelia and Nerissa’s case there is a confession on national television,” he added. “The reason that they do this is to avoid the embarrassment and the shame of having made the mistake that they have. They try to apply rules and measures and keep these people locked in prison even though they have been identified as having miscarriage of justice.” Milgaard said it’s “horrible” that wrongful convictions are taking place in Canada. “This is not justice this is just wrong.” Milgaard said all who have been wrongfully convicted should be compensated financially and given apologies. “They should be apologized to by the minister of justice and the prime minister of Canada,” he said, adding this would go a long way in helping the sisters heal. “It’s so important for a wrongfully convicted person to know that people know the truth, and Canadians know the truth, about their situation,” said Milgaard. “That’s what hurts the most, is no one believes you. No one believes you no matter how much you try to tell people. They need to heal and this is how they can heal.”


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PASSAGE THREE OF THE DAY: "Senator  (Kiim) Pate said the way the Quewezance sisters were treated by the legal system underscores why Indigenous women are the fastest growing prison population in Canada. She said she also had discussions with Justice LaForme and Justice Westmoreland-Traore about more Indigenous women she believes have been wrongfully convicted, adding there are at least a dozen she is aware of whose cases need to be reviewed.  “Indigenous women form, depending on whose figures you use, at least 42 per cent and as high 44 per cent of the federal jail population and yet they are fewer than 4 to 5 per cent of the Canadian population,” said Senator Pate. “This really tells you that this is linked to the same injustices that we are focusing on when we talk about residential schools and when we talk about missing and murdered Indigenous women and when the TRC (Truth and Reconciliation Commission) talks about the injustices faced by some Indigenous people, particularly women, in this country.”


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STORY: "Judges heading creation of wrongful Conviction Commission call for release of Saskatchewan sisters," by ReporterLisa Joy, published by Sasktoday on September 25, 2021. Per Sasktoday: "Lisa Joy is an international and national award-winning journalist who is originally from British Columbia. She has spent the last two decades as an editor and reporter in Alberta. Lisa covers the crime and court beat in Central and Northern Saskatchewan for the Battlefords Regional News-Optimist. She is also a licensed private investigator and in her spare time she enjoys reading true crime."

SUB-HADING: "Justices Harry LaForme and Juanita Westmorland-Traore  say conviction of Saskatchewan sisters strongly suggests miscarriage of justice."

PHOTO CAPTION; "Justices Harry LaForme and Juanita Westmoreland-Traore call for release of Saskatchewan sisters."

GIST: "Two retired judges heading the creation of a commission to review wrongful convictions say the conviction of Saskatchewan sisters Odelia and Nerissa Quewezance have signs of a miscarriage of justice and are calling on the Parole Board of Canada to release them.


Justice Harry LaForme and Justice Juanita Westmoreland-Traore were appointed by federal Justice Minister David Lametti to lead consultations for the establishment of an independent Criminal Case Review Commission to look into cases of potentially wrongfully convicted people. The Saskatchewan sisters’ case has been brought to their attention.


“It strongly suggested to us that this had many indicia of a miscarriage of justice given that the sisters were still imprisoned while someone had confessed to the crime, served his sentence, and was now free of prison,” said Justice Harry LaForme in an interview today.


“Throughout our consultations we heard, over and over, especially Senator Kim Pate and Innocence Canada, the circumstances of Odelia and Nerissa Quewezance,” said Justice LaForme.


Odelia and Nerissa Quewezance were sentenced to life in prison on second-degree murder charges in 1994 for the death of 70-year-old Anthony Joseph Dolff of Kamsack. They continue to maintain their innocence.


Last year, Odelia and Nerissa Quewezance’s younger cousin told APTN Investigates that he killed Dolff. He was 14 at the time of the crime and was convicted of second-degree murder. He was sentenced to two years.


“Our concern was, in all the circumstances, what are the interests of justice that are served after 29 years in prison, by their continued imprisonment? We felt it deserved a review and the release of the sisters while that was proceeding,” said Justice LaForme.


Senator Pate welcomes judges’ backing

Senator Kim Pate has been advocating on the sisters behalf and welcomed the two judges’ support of the Quewezance sisters.


“It was wonderful Justice LaForme and Justice Westmoreland-Traore both weighed in on the situation that Odelia and Nerissa face,” said Senator Pate in a phone interview today.

Senator Pate said the sisters’ cousin had confessed to the killing.


“This really calls into question why the police and crown prosecutor - knowing that he had confessed, because he confessed back when he was a young person - why they proceeded to continue with the trial and the second-degree murder conviction.”


She said they should have withdrawn the charges at that stage, or proceeded with an assault charge if they thought that was legitimate.

“My personal view, because of (the sisters) past history of abuse and because they were responding to sexual overtures that were made toward them, they were likely responding in self-defence or defence of each other at the time they acted.”


Dept. of Justice holds wrongfully convicted hostage: David Milgaard

Likewise, David Milgaard, who was the victim of one of Canada's most notorious miscarriages of justice and now advocates for the wrongfully convicted, also welcomed the judges’ support of the Quewezance sisters.

 “I really like the fact that they came forward and they are fighting to see Odelia and Nerissa freed,” said Milgaard in a phone interview today.


Milgaard was arrested in 1969 at age 16 and wrongfully convicted in 1970 of raping and murdering Saskatoon nurse Gail Miller. He was released in 1992 and exonerated in 1997 by DNA evidence, which identified North Battleford resident Larry Fisher as the person who committed the rape and murder.“Right now the justice departments are continuing to hold, not only Odelia and Nerissa, but all the wrongfully convicted in Canada hostage,” said Milgaard.

“In Odelia and Nerissa’s case there is a confession on national television,” he added.

“The reason that they do this is to avoid the embarrassment and the shame of having made the mistake that they have. They try to apply rules and measures and keep these people locked in prison even though they have been identified as having miscarriage of justice.”



Milgaard said it’s “horrible” that wrongful convictions are taking place in Canada.

“This is not justice this is just wrong.”

Milgaard said all who have been wrongfully convicted should be compensated financially and given apologies.

“They should be apologized to by the minister of justice and the prime minister of Canada,” he said, adding this would go a long way in helping the sisters heal.

“It’s so important for a wrongfully convicted person to know that people know the truth, and Canadians know the truth, about their situation,” said Milgaard.


“That’s what hurts the most, is no one believes you. No one believes you no matter how much you try to tell people. They need to heal and this is how they can heal.”


Senator Pate said Odelia and Nerissa are more concerned about being home than financial compensation.


“With all of the women I know, particularly with Odelia and Nerissa, they just want to be in the community and with their family. That’s their first priority. I have never heard them talk about compensation.

“My personal view is of course compensation is appropriate when decades of their lives have been stolen from them, and often long before the prison sentence in the form of residential schools and involvement in the youth system.”

She said the state removal of Indigenous children into the child welfare system and residential schools were a fast track for Indigenous people into the prison system.


More wrongfully convicted Indigenous women

Senator Pate said the way the Quewezance sisters were treated by the legal system underscores why Indigenous women are the fastest growing prison population in Canada.

She said she also had discussions with Justice LaForme and Justice Westmoreland-Traore about more Indigenous women she believes have been wrongfully convicted, adding there are at least a dozen she is aware of whose cases need to be reviewed.

 “Indigenous women form, depending on whose figures you use, at least 42 per cent and as high 44 per cent of the federal jail population and yet they are fewer than 4 to 5 per cent of the Canadian population,” said Senator Pate.

“This really tells you that this is linked to the same injustices that we are focusing on when we talk about residential schools and when we talk about missing and murdered Indigenous women and when the TRC (Truth and Reconciliation Commission) talks about the injustices faced by some Indigenous people, particularly women, in this country.”


Kim Beaudin, national vice-chief of Congress of Aboriginal Peoples (CAP) has been calling on the federal government to intervene and release the two sisters who have served almost three decades in prison for a murder they say they didn’t commit.

Beaudin has attributed systemic racism in Saskatchewan to the sisters’ conviction and continued imprisonment.

“Saskatchewan is the Alabama of the north. It’s a nickname this province has earned.""


The entire story can be read at:


https://www.sasktoday.ca/north/local-news/judges-heading-creation-of-wrongful-conviction-commission-call-for-release-of-saskatchewan-sisters-4458245

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See previous post of this Blog *August 7, 2021) at the link below:

HEADNOTE: "Sisters Odelia and Nerissa Quewezance: Saskatchewan: (Bulletin):  Supporters say police mistreatment and racism led to their conviction - as Innocence Canada prepares to take their case to the Federal Justice Minister and Saskatchewan's Attorney General, Alaska Highway News (Reporter Lisa Joy) reports..."Nicole Porter, advocate for Indigenous Rights and wrongfully convicted said Saskatchewan’s racist system rushed for a conviction in the 90’s. She said the sisters were Indigenous and rural Saskatchewan racism was against them.  “These girls were downright mistreated by our system. During the police interrogation and even after their sentencing, being Indigenous was a factor held against them.” Porter said the mistreatment started from day one.  A justice of the peace had issued remand warrants ordering that the sisters be remanded to Pine Grove Correctional Centre for women but instead they were held for five days by Saskatchewan RCMP and interrogated.  Porter said no recordings of those interrogations were saved and the interrogations went against the remand warrant. “Authorities at the time directly disobeyed and continued to interrogate them.”
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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;
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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;

Clinton Young: Texas: From our 'When you think you've heard it all' department. The Death Penalty Information Center reports that the Texas Court of Criminal Appeals (TCCA) has vacated the conviction of a death-row prisoner whose prosecutor was also on the payroll of the judge who presided over the trial and decided his trial court appeals..."(Clinton) Young was convicted and sentenced to death by a Midland County jury in 2003 on charges that he had murdered two men for use of their vehicles during a 48-hour crime spree. He has long said he was framed for the murders. Assistant District Attorney Ralph Petty was one of the prosecutors in Young’s case, while at the same time serving as a paid law clerk to state District Court Judge John Hyde. In that dual role, Petty conducted research and made legal recommendations to the court on the same motions the prosecution had filed or were opposing in the case. Neither Petty, nor Hyde, nor the Midland County District Attorney’s office disclosed this conflict to the defense. Petty continued in his dual role when the case advanced to the appeals stage, advocating against Young’s challenges to his conviction and sentence in the courtroom while acting behind the scenes as a law clerk advising the court on the resolution of those challenges. Court documents later showed that, from 2002 until his retirement from the district attorney’s office in 2019, Petty received at least $132,900 in payments from Midland County as a law clerk to multiple district judges on cases he also was involved in prosecuting. The TCCA’s order removed Young from death row and returned his case to the trial court for a decision on whether to reprosecute him."


PASSAGE OF THE DAY:  "Young came within eight days of execution in 2017, after the federal courts had denied his federal habeas corpus petition. At that time, Petty filed a motion before Judge Robert Moore — for whom Petty was also clerking — seeking a warrant for Young’s execution. Judge Moore set Young’s execution date for October 26, 2017. Young moved to withdraw the warrant based upon allegations that prosecutors had obtained his conviction and death sentence with false or perjured testimony from David Page, the prosecution’s key witness whom Young alleged was the actual killer. Young supported his claim with recently discovered evidence that included gunshot residue on Page’s gloves and affidavits from four prisoners that Page had bragged about committing the killing and framing Young. On October 18, 2017, the TCCA granted Young a stay and ordered the trial court to conduct a hearing on Young’s false-or-perjured-testimony claim."

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PASSAGE TWO  OF THE DAY: "While the death warrant was still active, and without notifying the defense, Petty filed a motion to grant use immunity to Page. Nodolf (Midland County District Attorney Laura Nodolf), who became DA in January 2017 secretly interviewed Page, who admitted to falsely implicating Young. While Petty argued in court that Young should be executed, Nodolf withheld the information about Page’s admissions. When Petty retired in 2019 and Nodolf was processing his retirement papers, she discovered that he had been receiving payments from the county for work outside of the DA’s office and disclosed that evidence to Young’s lawyers. A subsequent USA Today investigation of court records found at least 355 cases in which Petty prosecuted a defendant while also performing legal work for the judge trying the case. Seventy-three of those defendants, including Young, were still in prison, with 21 serving sentences of 50 years or more.


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STORY: "Texas appeals court vacates conviction of death row prisoner Clinton Young, whose prosecutor was secretly in the payroll  of the judge who tried him," published by The Death Penalty Information Center on September 23, 2921.

GIST: "The Texas Court of Criminal Appeals (TCCA) has vacated the conviction of death-row prisoner Clinton Young, whose prosecutor was also on the payroll of the judge who presided over the trial and decided his trial court appeals.


In an unsigned opinion and order with no dissents, the TCCA on September 22, 2021 granted Young’s petition for a new trial. “Judicial and prosecutorial misconduct—in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him—tainted Applicant’s entire proceeding from the outset,” the court wrote. “The evidence presented in this case supports only one legal conclusion: that Applicant was deprived of his due process rights to a fair trial and an impartial judge.”


Young was convicted and sentenced to death by a Midland County jury in 2003 on charges that he had murdered two men for use of their vehicles during a 48-hour crime spree. He has long said he was framed for the murders. Assistant District Attorney Ralph Petty was one of the prosecutors in Young’s case, while at the same time serving as a paid law clerk to state District Court Judge John Hyde. In that dual role, Petty conducted research and made legal recommendations to the court on the same motions the prosecution had filed or were opposing in the case. Neither Petty, nor Hyde, nor the Midland County District Attorney’s office disclosed this conflict to the defense.


Petty continued in his dual role when the case advanced to the appeals stage, advocating against Young’s challenges to his conviction and sentence in the courtroom while acting behind the scenes as a law clerk advising the court on the resolution of those challenges. Court documents later showed that, from 2002 until his retirement from the district attorney’s office in 2019, Petty received at least $132,900 in payments from Midland County as a law clerk to multiple district judges on cases he also was involved in prosecuting.


The TCCA’s order removed Young from death row and returned his case to the trial court for a decision on whether to reprosecute him. Midland County District Attorney Laura Nodolf, who became DA in January 2017, has recused her office from further proceedings in the case, saying “I don’t want there to be any appearance of a conflict.” Dawson County District Attorney Philip Furlow, who took over the case in 2019 after Nodolf became aware of Petty’s conflict, will make the decision whether to retry Young or release him.


Young came within eight days of execution in 2017, after the federal courts had denied his federal habeas corpus petition. At that time, Petty filed a motion before Judge Robert Moore — for whom Petty was also clerking — seeking a warrant for Young’s execution. Judge Moore set Young’s execution date for October 26, 2017. Young moved to withdraw the warrant based upon allegations that prosecutors had obtained his conviction and death sentence with false or perjured testimony from David Page, the prosecution’s key witness whom Young alleged was the actual killer. Young supported his claim with recently discovered evidence that included gunshot residue on Page’s gloves and affidavits from four prisoners that Page had bragged about committing the killing and framing Young. On October 18, 2017, the TCCA granted Young a stay and ordered the trial court to conduct a hearing on Young’s false-or-perjured-testimony claim.


While the death warrant was still active, and without notifying the defense, Petty filed a motion to grant use immunity to Page. Nodolf then secretly interviewed Page, who admitted to falsely implicating Young. While Petty argued in court that Young should be executed, Nodolf withheld the information about Page’s admissions.


When Petty retired in 2019 and Nodolf was processing his retirement papers, she discovered that he had been receiving payments from the county for work outside of the DA’s office and disclosed that evidence to Young’s lawyers. A subsequent USA Today investigation of court records found at least 355 cases in which Petty prosecuted a defendant while also performing legal work for the judge trying the case. Seventy-three of those defendants, including Young, were still in prison, with 21 serving sentences of 50 years or more.


After conducting a hearing in which Petty invoked his constitutional privilege against self-incrimination, Senior Judge Sid Harle issued an opinion on April 26, 2021 in which he recommended that the TCCA declare Young’s trial “null and void” and grant him a new trial. Harle blasted Petty and the Midland County District Attorney’s office for “shocking prosecutorial misconduct that destroyed any semblance of a fair trial” in Young’s case. At least two senior members of the district attorney’s office were aware that Petty had been prosecuting Young and representing the prosecution in opposing Young’s appellate challenges to his conviction and death sentence while simultaneously serving as a paid judicial clerk and legal adviser for the judge who was presiding over the trial and subsequent trial-court.

“[T]he bias created by [Judge Hyde’s] employment of Mr. Petty … deprived Mr. Young [of] due process of law,” Harle wrote. “The appearance of impropriety in Mr. Young’s case is clear[:] … the court’s law clerk was also the prosecutor for the State.”


Harle also sharply criticized Midland prosecutors for their suppression of evidence that Page had provided perjured testimony against Young. “Ms. Nodolf knew that the interview needed to be disclosed,” Harle wrote. “Yet, neither Mr. Petty nor anyone in the office disclosed [the Page] interview until after the Court of Criminal Appeals stayed Mr. Young’s execution when it authorized [review of] Mr. Young’s claim that Mr. Page testified falsely at his trial.”

Facing imminent disbarment, Petty surrendered his law license. In an April 13, 2021 order prohibiting Petty from practicing law in Texas, the Texas Supreme Court said the termination of Petty’s license was “in the best interest of the public [and] the profession.”


The entire story can be read at:

texas-appeals-court-vacates-conviction-of-death-row-prisoner-clinton-young-whose-prosecutor-was-secretly-on-the-payroll-of-the-judge-who-tried-him

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;

Friday, September 24, 2021

James Dailey; Death Row Florida: Tainted jailhouse informant testimony: Bulletin: Major (Unwelcome) Development: GIST: "The Florida Supreme Court has affirmed a lower court’s decision upholding his conviction and death sentence... Defence lawyers have argued that he is innocent of a 1985 murder of a teenage girl in Indian Rocks Beach, The Tampa Bay Times (Reporter Dan Sullivan) reports.


PUBLISHER'S NOTE: Confidential, often jailhouse informants, have probably been around for as long as there have been jails and inmates willing to trade information for a favor or two — including more privileges, a shorter sentence or dropping of charges. They commonly turn up in investigations which are not going anywhere - as in ‘no DNA'.   “Incentivized informants” is the legal term of art, but too often they also have “a strong incentive to lie,” said Michelle Feldman, state campaigns director for the Innocence Project. That explains why, according to the project’s figures, 16 percent of DNA exonerations involved false testimony by informants. Broader studies of wrongful convictions put the figure as high as 46 percent. Innocent people have spent decades in prison while the guilty remained free, and often the victims of those informants never see justice either — a lose-lose-lose for the criminal justice system.
Boston Globe Editorial:  February 15, 2020.

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STORY: "Florida Supreme Court upholds James Dailey's conviction," published by The Tampa Bay Times (Reporter Dan Sullivan) on September 24, 2021.

SUB-HEADING: "Daily claims he is innocent in 1983 Pinella County murder."

GIST: "The Florida Supreme Court has affirmed a lower court’s decision upholding the conviction and death sentence of James Dailey, whose lawyers have argued that he is innocent of a 1985 murder of a teenage girl in Indian Rocks Beach.


In an opinion Thursday, the state’s highest court rejected several claims from Dailey’s defense, including arguments that his conviction should be overturned based on a 2019 affidavit signed by his codefendant, Jack Pearcy, that included a statement in which Pearcy took sole credit for the crime. Pearcy later claimed the statement in the document was untrue and refused to testify when called to court in March 2020.


Six of the court’s seven justices concurred with the ruling. Justice Jorge Labarga dissented.

In his own opinion, Labarga noted that there is no forensic evidence linking Dailey to the murder of 14-year-old Shelly Boggio, and that the state’s case against him hung on the testimony of three jailhouse informants who claimed he’d made incriminating statements while awaiting trial.


The dissent noted concerns about the reliability of jailhouse informant testimony. It also noted 30 people have been exonerated from Florida’s death row since 1972.


“Thirty people would have eventually been put to death for murders they did not commit,” Labarga wrote. “This number of exonerations, the highest in the nation, affirms why it is so important to get this case right.”


Almost exactly two years ago, Gov. Ron DeSantis signed a death warrant ordering Dailey’s execution. A federal judge later issued a temporary stay of execution amid a deluge of litigation that questioned Dailey’s guilt.


The stay later expired, but no new death warrant has been signed. Florida has not conducted any executions since August 2019.


Dailey, 75, and Pearcy, 66, were convicted in separate trials for the murder of Boggio, whose body was found one morning in May 1985 in the Intracoastal Waterway near the Walsingham Road Bridge. She had been beaten, choked, stabbed 31 times and ultimately drowned.


The two men were among the last people seen with her. Although Dailey got the death penalty, Pearcy received a life sentence. Over the years, he has given conflicting statements about whether Dailey was involved in the crime.


In late 2019, he signed an affidavit claiming sole credit for the murder, but later disavowed the claim. Pearcy refused to testify in a subsequent court hearing, and claimed that he is the one who is innocent.


A judge found that there was no admissible evidence to warrant a new trial. The high court upheld that decision."


The entire story can be read at:

florida-supreme-court-upholds-james-daileys-death-sentence

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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;

Bart McNeil: Illinois: Bulletin: Mark your calendar: Tomorrow: Saturday September 25, 2021: 7:00 PM: Screening: Oxygen Network; 'The Wrongful Conviction of Barton McNeil' - (Revealing the connection between Bart McNeil and convicted murderess Misook Nowlin Wang)...Second screening - Sunday, September 26, at 3:00 PM and 8:00 PM); Link provided for comprehensive background on the case and the Oxygen Network production. HL.



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VIEW THIS LINK  - AND SHARE - FOR COMPREHENSIVE BACKGROUND ON THE CASE AND THE OXYGEN NETWORK PRODUCTION.  HL.



https://richardwanke.com/2021/09/20/important-wrongful-conviction-tv-episode-live-event/



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LATEST DEVELOPMENT IN CASE: (HL):


HL); 'After lawyers with the Exoneration Project and Illinois Innocence Project unearthed dramatic new forensic evidence, a judge has ruled that McNeil - serving a 100 year sentence on murder charges in the 1998 death of 3-year-old Christina McNeil - can take the next step in his quest for a new trial, WGLT (Reporter Edith Brady-Lunny) reports..."McNeil’s petition seeking a new trial in the 1998 death of his young daughter will move forward in McLean County court, a judge has ruled, in a decision that recognizes potential new evidence that may support McNeil’s innocence. McNeil is serving 100 years on murder charges in the suffocation death of 3-year-old Christina McNeil. McNeil claimed he found the child’s lifeless body in her bed at his Bloomington apartment, maintaining his innocence while encouraging police to investigate his former girlfriend, Misook Nowlin, as a suspect. Nowlin was later convicted in the 2011 strangulation of her mother-in-law, Linda Tyda. In February, lawyers with the Illinois Innocence Project and The Exoneration Project filed a 65-page petition asserting McNeil’s innocence of the murder. Newly developed scientific evidence challenges claims by former pathologist Dr. Violette Hnilica that the child was molested before she was smothered. Authorities relied upon an accusation that McNeil molested his daughter to support their theory of a motive for her death. “The bottom line is that modern science completely repudiates Hnilica’s testimony regarding any alleged motive,” said the defense motion. Forensic tests performed after McNeil’s conviction on hair collected from inside the child’s pillowcase showed the hair was consistent with Nowlin’s DNA, the defense argues. Nowlin also could not be excluded from DNA collected from a bedsheet."

https://smithforensic.blogspot.com/2021/08/bart-mcneil-illinois-major-development.html


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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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;


Kathleen Folbigg: (Australia) Publisher's Note: I am reflecting on this case in advance of International Law Day (October 2, 2021) because, as writer Naomi Neilson points out in 'Law Reform' (Australia), it is such a glaring miscarriage of justice that "Every lawyer should be concerned' - (as should anyone else who treasures justice)...Also significant: Naomi Neilson makes the astonishing observation that, "With fresh evidence, Australia’s “worst female serial killer” could instead become its worst miscarriage of justice - and her last paragraph (a quote from Ms. Folbigg's lawyer deserves to be widely shared across border lines: “We need to make sure that the laws are fair for everyone. This case should be of concern to everyone because it establishes that hard scientific facts can be pushed aside in preference of subjective interpretations of circumstantial evidence. That is scary, frankly, and something that every lawyer and every person should be concerned about. So it’s not just about Ms Folbigg,” Ms Rego said..."In 2003, Kathleen Folbigg was convicted of the manslaughter of her son Caleb and the murders of her three other children, Patrick, Sarah and Laura. At the time, the prosecution argued that the deaths of three or more infants must be murder until proven otherwise and then cherrypicked “confessions” from her diaries. With new scientific evidence, those arguments were thrown further into doubt. The crux of a petition to free Ms Folbigg – backed by leading medical and science experts – is based on the full genomic sequencing of Ms Folbigg and her children. It found that Ms Folbigg had an unreported cardiac mutation known commonly as the CALM2 gene (which she passed to her two daughters), which controls how calcium is transported in and out of heart cells. Studies found variations can cause death and cardiac arrythmias/arrests in young children, as it had for Sarah and Laura. Caleb and Patrick’s genomes showed a separate rare genetic variant in the BSN gene, with studies in mice linking it to early epileptic fits. Although scientists have acknowledged more research would be needed for these two children, Patrick was diagnosed with epilepsy before he died and Caleb had a floppy larynx. Patrick’s death certificate recorded epilepsy as the cause of death. Ms Folbigg’s solicitor behind the petition, Rhanee Rego, told The Lawyers Weekly Show that the ability to sequence the human genome and identify novel mutations, such as the CALM2 gene, “could never have been imagined” in 2003 when Ms Folbigg was convicted. Now that it can, it demonstrates the strength of natural causes of death for each child and Ms Folbigg should be pardoned immediately."



STORY: ‘Every lawyer should be concerned’: Kathleen Folbigg, miscarriages of justice and the opportunities to reform the justice system," by Naomi Neilson, published by Lawyer's Weekly on September 21, 2021. (Naomi Neilson is a journalist for Lawyers Weekly. She writes its Protégé and Wig & Chamber bulletins and is also the host of The Protégé Podcast.)


GIST: "With fresh evidence, Australia’s “worst female serial killer” could instead become its worst miscarriage of justice – but what can the justice system learn from this? According to Kathleen Folbigg’s lawyer, there are plenty of lessons and opportunities to adjust to new, reliable evidence, introduce a case review commission, and more.

 

In 2003, Kathleen Folbigg was convicted of the manslaughter of her son Caleb and the murders of her three other children, Patrick, Sarah and Laura. At the time, the prosecution argued that the deaths of three or more infants must be murder until proven otherwise and then cherrypicked “confessions” from her diaries. With new scientific evidence, those arguments were thrown further into doubt. 


The crux of a petition to free Ms Folbigg – backed by leading medical and science experts – is based on the full genomic sequencing of Ms Folbigg and her children. It found that Ms Folbigg had an unreported cardiac mutation known commonly as the CALM2 gene (which she passed to her two daughters), which controls how calcium is transported in and out of heart cells. Studies found variations can cause death and cardiac arrythmias/arrests in young children, as it had for Sarah and Laura. 


Caleb and Patrick’s genomes showed a separate rare genetic variant in the BSN gene, with studies in mice linking it to early epileptic fits. Although scientists have acknowledged more research would be needed for these two children, Patrick was diagnosed with epilepsy before he died and Caleb had a floppy larynx. Patrick’s death certificate recorded epilepsy as the cause of death.


Ms Folbigg’s solicitor behind the petition, Rhanee Rego, told The Lawyers Weekly Show that the ability to sequence the human genome and identify novel mutations, such as the CALM2 gene, “could never have been imagined” in 2003 when Ms Folbigg was convicted. Now that it can, it demonstrates the strength of natural causes of death for each child and Ms Folbigg should be pardoned immediately. 


“Indeed, knowledge about this mutation developed in the last few years, ever since the inquiry. More children are being added to this awful registry of known deaths and it only further reveals how complex, sudden and unexpected deaths are and sends a warning to the legal system that just because we couldn’t identify an exact cause of infant death before does not mean that we can’t now,” Ms Rego explained.


In 2015, Ms Folbigg’s legal team submitted a petition for an inquiry on the basis that one of the world-leading pathologists – and Australia’s leading pathologist – Professor Stephen Cordner reviewed the entire pathology relating to these children. Over three years later, the inquiry was ordered and the “evidence” rereviewed. 


The inquiry heard from a range of experts in the areas of forensic pathology, neurology, cardiology, infection, immunology and genetics. Notably, three eminent pathologists, including Professor Cordner, each agreed on a natural cause of death for each child. This inquiry would also be the first time Ms Folbigg shared her side of the story in relation to her infamous diaries. 

“That’s three pathologists in consensus. Indeed, in my research, I’ve never heard of three pathologists agreeing on that and someone still remaining in prison. So that was quite significant really, that there is an actual cause of death,” Ms Rego said. 


Despite these expert opinions, the inquiry found “no reasonable doubt” as to the Ms Folbigg’s convictions. This in turn led to a judicial review of the Inquiry findings this year in the NSW Court of Appeal where Ms Folbigg’s legal team argued that the inquiry had made several errors in law, but this attempt to have her freed from bars was again shut down. 


The petition to the Governor of NSW launched in March by Rhanee Rego and Dr Robert Cavanagh (separately to the judicial review in the Court of Appeal) for the pardon of Ms Folbigg argues that she should be released based on the “significant positive evidence of natural causes”. If she is not freed, the petition warns that Ms Folbigg’s case establishes a “dangerous precedent” as it means that “cogent medical and scientific evidence can simply be ignored in preference to subjective interpretations of circumstantial evidence”. 


“Ms Folbigg has suffered and continues to suffer emotional and psychological trauma and physical abuse in custody. She has endured the death of her children and has been wrongfully incarcerated because the justice system has failed her,” Ms Rego said. 

What legislative options are left for Ms Folbigg?


Ms Rego said that unlike other states and territories, NSW has a piece of legislation called the Crimes (Appeal and Review) Act 2001 that deals with post-conviction reviews. This legislation essentially gives people two avenues: a petition to the Governor – which Ms Folbigg has invoked on two occasions now– and a review application to the Supreme Court. 


“Because of the ongoing nature of this case, I am a little limited in what I can say in relation to next steps, but what I can say with certainty is it is our view that this does not end the avenues available to Ms Folbigg if she is not pardoned,” Ms Rego said. 


If Ms Folbigg is pardoned, Ms Rego clarified that this does not mean her convictions are quashed. Instead, she will need to go to the Court of Criminal Appeal to have her convictions overturned. In that sense, Ms Rego said, the new evidence will be tested and will form part of any future proceedings in the Court of Criminal Appeal. 


Ms Rego said that she hopes that reform will result from Ms Folbigg’s tragic case, specifically in the form of the establishment of a Criminal Case Review Commission. This already exists in the UK, Scotland, Norway and most recently New Zealand. Canada has become the most recent to announce they too will be establishing the commission. Ms Rego said it is a “really pioneering model in post-conviction review” because it is so independent from politicians. 


“It’s been documented that when you put miscarriages of justice in hands of politicians – whether there is conflict, or the perception of conflict – there are serious concerns in relation to the fairness of the outcomes,” Ms Rego explained. “There’s a very good case for the establishment of a Commonwealth Case Review Commission, which would be tasked with investigating these cases and referring meritorious cases the appeal court.” 


Circumstantial evidence versus real, scientific facts:

For anyone who has known about this case, Ms Folbigg’s diary entries featured as the central piece of evidence against her, Ms Rego said. The prosecution encouraged the jury to read parts of the diaries as a “virtual admission of guilt”, which Ms Rego said is perplexing “because it’s either an admission or it’s not at law”. Ms Folbigg’s diary entries are not, as the prosecution put it, proof of the murders.


Further, out of all the diaries used during the trial – which consisted of the 10-year time period in which Ms Folbigg’s children died – there were over 40,000 words written but around 30 were “cherry-picked” and used as demonstrations of guilt. Ms Rego added that there is no evidence to suggest that anyone during the trial read the diaries in full, “which is an obvious concern when you’re taking anything out of context”. 


Asked whether this new scientific evidence should trump the diaries, Ms Rego said: “Hard fact should always be listened to in preference to circumstantial evidence. Where you have leading experts giving cause of death and indeed in consensus about it, journals in which a grieving mother and a traumatised woman was writing could hardly be probative in preference to the hard scientific facts.”


During the inquiry, the commissioner indicated that he did not want a psychiatrist to “what the words of the diary mean or about the fact that a mother who had lost her babies would be upset and emotional and so on”, Ms Rego said. Instead, she and Ms Folbigg’s other petition lawyer, Dr Robert Cavanagh, asked their own experts. 


“We weren’t able to properly contextualise Ms Folbigg’s diary entries at that point, but certainly the Attorney-General will soon receive some really excellent expert reports from these amazing experts who were working pro bono to demonstrate that [the inquiry and the trial] got it wrong,” Ms Rego said on the podcast. 


Importantly, Ms Folbigg never wrote an actual admission of murdering her children. Instead, the diary entries taken “out of context” were things like “Sarah left with a bit of help” and “I feel guilt”. Ms Rego said this can hardly be construed as a straight legal confession and emphasises the need for courts to be extremely cautious in admitting evidence of this kind and the need for expert evidence to assist judicial and juror assessment. 


“So [Ms Folbigg's] writing from a traumatised position, trying to make sense of it herself. What has been fascinating about this is that pretty much in the complete case history, since trial, it’s been men sitting in judgement of her with no experience of being a woman and no experience of motherhood, and indeed probably no experience losing four children. And they felt qualified to sit there and tell the world what she meant,” she said.


Ms Rego said this case and the new science highlight the need for a change in the way the law assesses the reliability of expert evidence. She said it is her hope, Dr Cavanagh’s hope and Ms Folbigg’s that if something good is taken from this matter, it’s that “miscarriages of justice are a gift, in some sense, and an opportunity to make change”. If courts do not, “we have lost out on a really important opportunity”. 


“We need to make sure that the laws are fair for everyone. This case should be of concern to everyone because it establishes that hard scientific facts can be pushed aside in preference of subjective interpretations of circumstantial evidence. That is scary, frankly, and something that every lawyer and every person should be concerned about. So it’s not just about Ms Folbigg,” Ms Rego said.


The entire story can be read at:


https://www.lawyersweekly.com.au/biglaw/32557-every-lawyer-should-be-concerned-kathleen-folbigg-miscarriages-of-justice-and-the-opportunities-to-reform-the-justice-system


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;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;