Saturday, May 15, 2021

Cristhian Bahena Rivera: IOWA: Jury selection to begin Monday: (May 17): Des Moines Register (Reporters William Morris and Robin Opsahl) introduces us to the 'key players' in the case..."Nearly three years after Mollie Tibbetts went missing near her hometown of Brooklyn, Iowa, the trial of the man accused of killing her is about to begin. Cristhian Bahena Rivera, 26, is charged with first-degree murder. His trial begins May 17 in Davenport. He faces life in prison without parole if convicted. Tibbetts' disappearance, the subsequent search for her, and the eventual discovery of her body and arrest of Bahena Rivera drew national attention, and the parties have spent years preparing their cases amid multiple delays and shifts in venue. Here's what you should know about some of the key names as the trial gets underway."


PUBLISHERS NOTE: I have been following this case because of the ‘confession’ related issues - and the degree to which it has become politicized. As the trial is expected to be widely televised (the courtroom will be closed to the public) I will not be reporting on the proceedings on a daily basis. I will  only join in if  warranted by  testimony,  evidence. or issues relevant to this blog .

Harold Levy: Publisher: The Charles Smith Blog.

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STORY: "Key players in the trial of Christhian Bahena Rivera, the man accused of killing Mollie Tibbetts, by William Morris  and Robin Opsahl, published by The Des Moines Register on May 13, 2021. 

GIST: "Nearly three years after Mollie Tibbetts went missing near her hometown of Brooklyn, Iowa, the trial of the man accused of killing her is about to begin. Cristhian Bahena Rivera, 26, is charged with first-degree murder. His trial begins May 17 in Davenport. He faces life in prison without parole if convicted.  Tibbetts' disappearance, the subsequent search for her, and the eventual discovery of her body and arrest of Bahena Rivera drew national attention, and the parties have spent years preparing their cases amid multiple delays and shifts in venue.


Here's what you should know about some of the key names as the trial gets underway.


Mollie Tibbetts:

Mollie Tibbetts, 20, was a University of Iowa student studying psychology who had returned to her hometown of Brooklyn the summer before her disappearance on July 18, 2018. Her body was found more than a month later, Aug. 21, in a cornfield after a massive search effort. She had been stabbed to death, investigators said. She was born in San Francisco and moved to Iowa with her mother and siblings after her parents separated when she was in the second grade. Teachers and classmates remembered her as kind, dedicated and empathetic even at a young age.


Tibbetts was described by family and friends as "everyone's counselor," with an “infectious laugh and beautiful smile,” who also had a silly and stubborn side. She journaled and wrote poetry. After graduating, she planned to go to graduate school and become a psychiatrist. Having finished her freshman year, she was taking classes and working at a day camp with Grinnell Regional Medical Center, not far from Brooklyn, helping school-age children with literacy, crafts and other activities. "We’re trying really hard to not make her Saint Mollie," Rob Tibbetts, her father, told the Register in a 2018 interview. "Mollie is super average."

More:Mollie Tibbetts' poetry describes slain woman in her own words


Mollie Tibbetts' family:

Mollie Tibbetts was close with her family, even after her parents separated. She lived with her two brothers and mother in Iowa from a young age, moving away from California — but she remained close with her father. When Rob Tibbetts got remarried, Mollie was his "best man" in the ceremony. Her two brothers, Jake and Scott Tibbetts, played leading roles in the community search for her and in honoring her memory afterward. Her mother, Laura Calderwood, said she remembers Mollie through acts of kindness made in her everyday life. For example, when she passed a person in need on the sidewalk who asked for help, she handed him the $10 in her pocket. “He said 'thank you' and he had a tear running down his face, and I thought of her,” Calderwood told the Register. After Tibbetts' body was found and the investigation into Bahena Rivera began, family members asked for people to not politicize her death. Her father, Rob Tibbetts, wrote a column in response to politicians he said were using her death to advance immigration measures that she "vehemently opposed." “We want Mollie to die with dignity,” he said.


Cristhian Bahena Rivera:

Prosecutors say Cristhian Bahena Rivera, now 26, is an immigrant from El Guayabillo, a town of about 400 people, in Guerrero, Mexico. Rivera’s Facebook page said he attended “Preparatoria 35,” a college in Guerrero. He, however, has many relatives in the Poweshiek County area. He spent the four years before Tibbetts' death working as a farmhand at Yarrabee Farms in rural Poweshiek County. He gained employment there through a former girlfriend and worked on day-to-day operations with the cows.

He had no prior criminal record. After his arrest, managers at the farm said he had provided them a false name and lived in a trailer on the farm. Bahena Rivera's arrest, and undocumented status, drew national outrage, including from then-President Donald Trump, who made multiple references to the case in calling for more restrictive immigration policies.


Chad and Jennifer Frese, Bahena Rivera's attorneys: 

Bahena Rivera is represented by the husband-wife team of Chad and Jennifer Frese of Marshaltown. Both Freses are former prosecutors who now do criminal defense work, among other types of law. They declined to comment to the Des Moines Register leading up to the trial, citing trial preparations, but in 2019, Chad Frese told the Register he's known members of Bahena Rivera's family for more than two decades, representing some in court and meeting others at church or around the community. After his arrest, Bahena Rivera's family approached the Freses to represent him, pooling their money to pay for his defense. Jennifer Frese told the Register later that was the tipping point for her in deciding to take the case.

"Every one of them has said, 'We just want this to be a fair proceeding,'" she said. "'And if the jury says he did it and he did it, then he has to pay the price. We can’t believe he did it, but if he did, then he has what’s coming to him.'"


Bart Klaver and Scott Brown, the prosecutors:

The case is being prosecuted by Poweshiek County Attorney Bart Klaver and Assistant Attorney General Scott Brown. Klaver is a former assistant county attorney who was appointed Poweshiek County attorney in March 2018, a few months before Tibbetts disappeared. 

Brown, the assistant attorney general, is a trial specialist who assists local prosecutors in bringing challenging or complex criminal cases. Other cases in which he is involved include the murder prosecutions against two men accused of killing two prison employees in March during an escape attempt at Anamosa State Penitentiary; and the kidnapping and murder prosecution against former Simpson College professor Gowun Park.


Joel D. Yates, the judge:

Because of the pretrial publicity, the trial was moved several times, eventually landing at the Scott County Courthouse in Davenport. Judge Joel D. Yates will preside.

Yates, of Sigourney, has been assigned to the case from the beginning. He has served on the bench since 2007 and is a 1994 graduate of the Drake University School of Law. 

Iowa district judges serve six-year terms and must be retained by voters after each term. Nearly all judges are retained, including Yates, who was retained in 2010 and 2016. The Iowa State Bar Association surveys attorneys to evaluate judges before their retention elections, and, in 2016, found that 89% of attorneys surveyed who practiced before Yates recommended he be retained. Bar Association records show Yates received high marks from attorneys for punctuality and for treating people equally without regard to race or gender. His lowest marks came in courtesy and patience, where he received a score of 3.89 out of 5; and temperament and demeanor, where he received a 3.91.  Des Moines attorney Alfredo Parrish, who has tried a number of high-profile cases around the state, had high praise for Yates, saying he "is probably one of the best judges, in my opinion, in Iowa." "He will be well prepared, he treats the lawyers very well, doesn’t play favorites, will be up to date on the law," Parrish said. "He’s a wonderful judge.""


The entire story can be read at: 


https://www.desmoinesregister.com/story/news/crime-and-courts/2021/05/13/mollie-tibbetts-case-murder-meet-judge-attorneys-cristhian-bahena-rivera-trial-davenport/5022951001/
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;

Henry McCollum and Leon Brown: North Carolina: False Confessions: Major (Very Welcome) Development: The intellectually-disabled brothers have been awarded $75 in their federal case - $1 million for every year they spent in prison after they were wrongfully convicted, twice, of the 1983 rape and murder of an 11-year-old girl, The News & Observer (Reporter Andrew Carter) reports. "Henry McCollum and Leon Brown spent nearly 31 years in prison for a brutal crime they did not commit — one they were convicted of on the basis of confessions that they insisted, for decades, had been coerced."...In some ways, McCollum and Brown had been waiting nearly 40 years for a day like Friday. Even after a Robeson County judge in 2014 overturned their convictions, their desired outcome in the civil case had been a long time coming. That judge exonerated the brothers after the emergence of DNA evidence that placed a convicted murderer named Roscoe Artis at the scene of the crime."


BACKGROUND: Coerced confessions: (From Henry McCollum's defence  lawyer Kenneth Rose's Washington post op-ed; (August 4, 2014): "For Henry, it began when officers held him in an interrogation room for five hours and promised him he could go home if he signed a confession. He was naive enough to believe them..............I have been Henry’s attorney for 20 of those years, and he and his family pleaded with me to prove his innocence. But I couldn’t help Henry in a system where the deck was stacked against him. He had signed a detailed confession before a change in laws to require confessions to be videotaped. I had no way to prove that the details in the confession police wrote for Henry — down to the brand of cigarettes smoked by the perpetrator — were all provided by law enforcement. I was told that the police file on Henry’s case had been lost, so I could not tell how much evidence police had to ignore to pin this crime on two disabled boys with no history of violence. Until the Innocence Inquiry Commission unearthed that missing file, I didn’t know that Roscoe Artis, the man whom DNA showed to be the true perpetrator, was a convicted rapist who lived one block from the crime scene, or that, at the time of Henry and Leon’s arrest, Artis was wanted for another, almost identical rape and murder. I also didn’t know until I saw the file that, three days before Henry’s trial began, law enforcement asked the State Bureau of Investigation to test a fingerprint found at the crime scene for a match with Artis. This was an important request, considering that no physical evidence linked Henry or Leon to the crime. Unbelievably, the test was never completed, and the district attorney tried Henry and Leon for their lives. Artis’s name was never mentioned at the trial."

https://www.washingtonpost.com/posteverything/wp/2014/09/04/i-just-freed-an-innocent-man-from-death-row-and-im-still-furious/?hpid=z4

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PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects (especially young suspects)  are to widely used interrogation methods  such as  the notorious ‘Reid Technique.’ As  all too many of this Blog's post have shown, I also recognize that pressure for false confessions can take many forms, up to and including inducement. deception (read ‘outright lies’) physical violence,  and even physical and mental torture.

Harold Levy: Publisher; The Charles Smith Blog:

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PASSAGE OF THE DAY: "The brothers’ lawyers contended that law enforcement officers violated McCollum and Brown’s civil rights in several ways: that they coerced the brothers’ confessions; that they suppressed and fabricated evidence; that they investigated the crime in bad faith, ignoring evidence that would have pointed to another suspect; and that they violated McCollum and Brown’s due process rights. “Coerced confessions can never be the basis for probable cause,” Des Hogan, who delivered the plaintiffs’ closing argument, told the jury on Friday."


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PASSAGE TWO OF THE DAY: "15 million lost minutes."


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STORY: "Jury awards wrongfully convicted brothers $75 million in federal civil rights case," by Reporter Andrew Carter, published by The News & Observer on May 14, 2021.


SUB-HEADING: "Brothers freed after 30 years."


GIST: "Henry McCollum and Leon Brown spent nearly 31 years in prison for a brutal crime they did not commit — one they were convicted of on the basis of confessions that they insisted, for decades, had been coerced.


In a federal courtroom in Raleigh late Friday afternoon, after nearly five hours of deliberation, a jury delivered the half brothers a sense of long-awaited justice.


An eight-person jury awarded McCollum and Brown $31 million each in compensatory damages — $1 million for every year they spent in prison after they were wrongfully convicted, twice, of the 1983 rape and murder of an 11-year-old girl in Red Springs.


McCollum and Brown, both intellectually-disabled with IQs in the 50s, were teenagers when they were charged after they signed confessions they insisted they didn’t understand.


The combined $62 million award in compensatory damages was part of an $84 million day for the brothers. 


The jury also awarded them $13 million in punitive damages after the Robeson County Sheriff’s Office, one of the defendants named in the civil suit, settled its part of the case earlier on Friday for $9 million.


“I thank God,” McCollum said outside the courtroom, his eyes red from crying.


EXCRUCIATINGLY WRONGED’:


He and Brown had spent the previous moments embracing the team of attorneys, led by a group from the Washington, D.C. firm Hogan Lovells, who for years had worked toward this day.


“The first jury to hear all of the evidence — including the wrongly suppressed evidence — found Henry and Leon to be innocent, found them to have been demonstrably and excruciatingly wronged, and has done what the law can do to make it right at this late date,” Elliot Abrams, a Raleigh attorney who was part of the brothers’ legal team, said after the trial.


In some ways, McCollum and Brown had been waiting nearly 40 years for a day like Friday. Even after a Robeson County judge in 2014 overturned their convictions, their desired outcome in the civil case had been a long time coming. That judge exonerated the brothers after the emergence of DNA evidence that placed a convicted murderer named Roscoe Artis at the scene of the crime.


The next year, in 2015, McCollum and Brown received full pardons of innocence from the state. Since then, the brothers, both Black, had pursued a federal civil rights case against law enforcement members behind their wrongful convictions.


The judgment on Friday came against former SBI agents Leroy Allen and Kenneth Snead, both of whom were part of the original investigation in 1983 that led to McCollum and Brown’s convictions.


The SBI had been the last remaining law enforcement entity not to settle in the case, after the Red Springs Police Department settled in 2017, and the Robeson County Sheriff’s Office settled on Friday before closing arguments began after four days of testimony in the civil case.


The brothers’ lawyers contended that law enforcement officers violated McCollum and Brown’s civil rights in several ways: that they coerced the brothers’ confessions; that they suppressed and fabricated evidence; that they investigated the crime in bad faith, ignoring evidence that would have pointed to another suspect; and that they violated McCollum and Brown’s due process rights.


“Coerced confessions can never be the basis for probable cause,” Des Hogan, who delivered the plaintiffs’ closing argument, told the jury on Friday.


In painstaking detail, Hogan during his 45-minute closing argument described how McCollum and Brown suffered during their incarcerations. They were both sentenced to die in 1984, at the conclusion of their first trial.


Brown, 16 at the time, became North Carolina’s youngest death row inmate. McCollum, 20 when he went to death row, remained there for most of his 31 years in prison, and became the state’s longest-serving death row inmate.


15 MILLION LOST MINUTES:


Throughout his time on death row, McCollum endured the executions of 42 of his fellow inmates and all the while feared he would also die in prison. Some of the executed had become the closest thing McCollum had to family.


 After one execution, in 1986, Hogan revealed during his closing that McCollum attempted to kill himself.


Brown, meanwhile, was later re-sentenced to life in prison, where “he was victimized in unspeakable ways,” Hogan told the jury.


Toward the end of his closing argument, Hogan asked the jury to sit quietly for a minute and consider the minutes that passed slowly for McCollum and Brown over three decades. They’d lost more than 15 million minutes during their wrongful imprisonment.


Scott MacLatchie, the lead defense attorney for the SBI agents, attempted during his closing argument to cast doubt on the brothers’ innocence, and downplayed the agents’ involvement in the investigation that led to the brothers’ convictions. Twice during MacLatchie’s closing, U.S. District Judge Terrence Boyle sustained objections to MacLatchie’s questioning of the brothers’ innocence.


“His argument that the brothers are rapists and murderers is inappropriate,” Boyle told the jury at one point, reminding its members that McCollum and Brown had received full pardons of innocence.


MacLatchie’s attempt to cast doubt on McCollum and Brown’s innocence reflected law enforcement’s overall defense strategy from the beginning of the civil case. For years, MacLatchie and the attorneys for Garth Locklear and Kenneth Sealey, the former Robeson County Sheriff’s deputies named in the civil case, argued their clients were protected by qualified immunity.


When that argument failed, first in the U.S. District Court for the Eastern District of North Carolina, and then in a federal appeals court, the deputies and SBI agents argued they did nothing wrong. In various court filings over the years, their attorneys implied at times that McCollum and Brown might be guilty, after all, despite their exonerations and pardons.


The jury on Friday delivered a swift rejection of the law enforcement’s denial of wrongdoing.


“For more than 37 years, Henry McCollum and Leon Brown have waited for recognition of the grave injustice that law enforcement inflicted upon them,” the brothers’ attorneys said in a collective statement after the trial. “Today, a jury did just that, and have finally given Henry and Leon the ability to close this horrific chapter in their lives.”


Since their exonerations in 2014, McCollum and Brown have attempted to rebuild their lives — a process that has proven difficult after 31 years in prison. Boyle barred their first lawyer in the civil case, Patrick Megaro, after he arranged predatory loans for the brothers and stole hundreds of thousands of dollars when the state paid them $750,000 each following their pardons.


‘I’VE GOT MY FREEDOM’:


Both McCollum and Brown require guardians to manage their finances. Brown, who has been living in a group home and suffers from mental health conditions related to his time in prison, requires full-time care. On Friday afternoon, both McCollum and Brown sat outside the courtroom for hours while the jury deliberated.


Someone beside Brown asked him if he wanted to go for a walk to pass the time and he said he didn’t: He wanted to be there the moment the jury returned with a verdict.


Finally, a little after 6 p.m., it did. After Boyle read it, delivering the news of a $75 million judgment, McCollum and Brown exchanged emotional embraces with their legal team.


Some of their lawyers believed the $75 million judgment to be the largest for a wrongful conviction case in state history. Afterward, the brothers dabbed their eyes, unsure what to say while people congratulated them and hugged them.


“I’ve got my freedom,” McCollum said moments later, before turning his thoughts to people he knew on death row. “There’s still a lot of innocent people in prison today. And they don’t deserve to be there.”


The entire story can be read at:

article251411148.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;
—————————————————————————————————
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;

Steven Downs: Alaska: (Sophie Sergie); Bulletin. Cold (forensic genealogy case) to get even colder as, "Alaska courts stymied by cyberattacks, delay hearings in Auburn man's murder case," the 'Sun Journal' (Reporter Christopher Williams) reports..."An Alaska judge postponed court hearings Wednesday for an Auburn man charged in a 1993 rape and murder case, nearly two weeks after a cyberattack forced the Alaska court system off the internet. “The current posture of that is that we are not connected to the internet, intentionally, and this may exist for another few days to a couple of weeks,” Fairbanks Superior Court Judge Thomas Temple said Wednesday in a teleconference call from his courtroom..."


PASSAGE OF THE DAY: "Sperm found inside the victim’s body was matched to Downs after his aunt had allowed her DNA profile that was gleaned from a genealogical website to be entered into a database that included DNA gathered from the crime scene in this case. Arguments on other motions in which evidence was presented in court earlier this year are expected to be heard through videoconference next month, postponed from Wednesday and Thursday. One of those motions is whether the judge will allow the defense to introduce alternative suspects at trial."

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STORY: "Alaska courts stymied by cyberattacks, delay hearings in Auburn man's murder case," by reporter Christopher Williams, published by the 'Sun Journal' on  May 12, 2021.

SUB-HEADING: "Pre-trial hearings in Steven Downs cold case were postponed after breach in Alaska court system's security"

GIST: "An Alaska judge postponed court hearings Wednesday for an Auburn man charged in a 1993 rape and murder case, nearly two weeks after a cyberattack forced the Alaska court system off the internet. 

“The current posture of that is that we are not connected to the internet, intentionally, and this may exist for another few days to a couple of weeks,” Fairbanks Superior Court Judge Thomas Temple said Wednesday in a teleconference call from his courtroom.

“I don’t know what the result is,” he said, but noted, “we will not be able to have a Zoom hearing this week” as planned.

Aside from a week’s worth of hearings in February in which the attorneys appeared in the courtroom, more recent pretrial hearings in the case have relied on videoconference, with only the judge appearing from the courtroom. Witnesses and attorneys have appeared via Zoom while defendant Steven Downs, 46, of Auburn has listened in and spoken by phone from jail.

Temple had hoped to wrap up hearings on nearly a dozen pretrial motions in the case.

Downs is charged with sexual assault and murder in the April 25, 1993, slaying of Sophie Sergie, 20, of Pitkas Point, Alaska.

He was arrested in Auburn in February 2019 and extradited to Fairbanks, Alaska, where he is being held at the local jail pending trial, which is expected to happen in January 2022.

Lewiston defense lawyer James Howaniec said Wednesday by a phone call into the Fairbanks courtroom with the judge and prosecutors that he was withdrawing three motions he had filed in the case.

He said he was dropping a motion alleging prosecutors violated discovery rules by releasing beyond the deadline and in dribs and drabs the roughly 8,000 pages of evidence and about 100 audio files in the case after Downs’ indictment and arrest.

“The court is generally aware of our concerns about discovery,” Howaniec told the judge. “We do believe we have all of the discovery. It may have taken a year and a half to get it but we got it. We still have some concerns about the way it got to us.”

Howaniec also told Judge Temple he was withdrawing a motion to exclude all DNA evidence from trial by challenging the collection and testing of the DNA gathered at the crime scene 28 years ago.

Because much of the defense’s concerns around those issues were already examined during an earlier hearing to dismiss the indictment against Downs, Howaniec said he believed that issues around possible flaws in the collection and analysis of DNA could best be assessed by a jury.

The third motion Howaniec announced Wednesday the defense was withdrawing was aimed at determining the timing in which Downs’ DNA came into contact with the victim, whether that happened before she was killed or at the time she was killed. Howaniec said that although the timing of the deposit of Downs’ DNA would be an issue in the case, he and his defense team realized a jury could best decide that question based on evidence presented at trial.

Sperm found inside the victim’s body was matched to Downs after his aunt had allowed her DNA profile that was gleaned from a genealogical website to be entered into a database that included DNA gathered from the crime scene in this case.

Arguments on other motions in which evidence was presented in court earlier this year are expected to be heard through videoconference next month, postponed from Wednesday and Thursday.

One of those motions is whether the judge will allow the defense to introduce alternative suspects at trial.

Another motion planned for argument in June is whether the affidavit filed by police to obtain a search warrant for Downs’ home and DNA from his saliva was faulty because it contained misinformation.

Howaniec also will be arguing to dismiss the indictment charging his client because, among other problems, the state’s witness recanted her grand jury testimony at a hearing earlier this year.

Police said Sophie Sergie had been seen alive last when she left a friend’s dorm room at the University of Alaska at Fairbanks to smoke a cigarette. Custodial staff found her body in a woman’s bathroom the next afternoon.

That bathroom was on the second floor of the dorm in which Downs lived on the third floor.

Investigators said Sergie had been shot in the back of the head with a .22-caliber gun, stabbed in the cheek and eye, struck with a blunt instrument, gagged with a ligature and shocked with a stun gun.

The medical examiner concluded the cause of Sergie’s death was the bullet fired into her head."

The entire story can be read at: 


https://www.sunjournal.com/2021/05/12/alaska-courts-stymied-by-cyberattacks-delay-hearings-in-auburn-mans-murder-case/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
-----------------------------------------------------------------
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;


Friday, May 14, 2021

Ronnie Long: North Carolina: Bulletin: Significant Development: Federal civil-rights lawsuit launched: (False eyewitness identification and much more)..."When Long’s attorneys argued there was no physical evidence that connected Long to the attack, prosecutors responded by saying that the absence of this evidence showed the honesty of the police, because it would have been easy for officers to rub Long’s clothing against the banister and put paint on the garments. Rioting broke out in Concord after the jury convicted Long of burglary and rape on October 1, 1976. At the time of Long’s arrest, a rape conviction carried a mandatory death penalty in North Carolina, but the U.S. Supreme Court had struck down the state’s overly broad death penalty on July 2, 1976. He was sentenced to life in prison."


PUBLISHER'S NOTE: This Blog is interested in  false eye-witness identification issues because  wrongful identifications are at the heart of so many DNA-related exonerations in the USA and elsewhere - and because so much scientific research is being conducted with a goal to making the identification process more   transparent and reliable- and less subject to deliberate manipulation.  I have also reported far too many cases over the years - mainly cases lacking DNA evidence (or other forensic evidence pointing to the suspect - where the police have somehow  rigged the identification process in order to make an identification inevitable. 
Harold Levy: Publisher: The Charles Smith Blog.

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BACKGROUND: "Long was 20 years old in 1976 when he was arrested in Concord for the rape of Sarah Bost, a 54-year-old widow. "They got the wrong man," said Jamie Lau, a supervising attorney with the Duke Law School Wrongful Convictions Clinic. "Ronnie Long is absolutely innocent of this crime.” Lau said Long, who had been a talented high school athlete, was facing a minor trespassing charge when cops asked the victim to come to court that day. "They dressed her in a disguise, brought her to the courtroom. She sat there for an hour and a half in the presence of Mr. Long without identifying him," Lau said. "When Long's name was called, she identified him as the person who assaulted her ... and she later testified that she selected him because he looked most similar to her attacker of all the people who were present in the courtroom that day.” But the victim had originally described her attacker as a "light-colored" Black man, which Long is not. And while a shoe print found outside the victim's home had a similar tread, it could not be matched to shoes owned by Long. There was also clothing — including a black leather coat — found in Long's car that looked like what the rapist wore. "It was a ubiquitous piece of clothing for Black males at the time, in part because the movie 'Shaft' had come out a few years prior," Lau said. At trial, Long didn't take the stand, but several alibi witnesses testified to seeing him at the time of the rape. "Every moment of his day had been accounted for," Lau said. The all-White jury convicted Long of rape and burglary. He was given two life sentences.  CBS News."

STORY: "Ronnie Long files civil lawsuit against Concord over wrongful conviction," by Reporter Nick de la Canal, published by WFAE on May 13, 2021.

GIST: A man who was wrongfully imprisoned for a rape he did not commit has filed a lawsuit against the city of Concord and several Concord police officers. Attorneys for Ronnie Long say he deserves answers and accountability after spending 44 years in prison.

Long was released from prison last year, pardoned by the governor, and paid $750,000by the state for his wrongful imprisonment.

He had been convicted in 1976 by an all-white jury of raping a prominent white woman. It wasn't until 2015 that his attorneys discovered the Concord Police Department had evidence that could have exonerated him, including fingerprints collected at the scene that did not match Long's.

Now he's suing the city of Concord and a group of officers who were involved in his case. He's also suing the four Concord police chiefs who served while he was in prison appealing his conviction.

Attorney Chris Olson says he hopes to hold those officers to account.

"Forty-four years Mr. Long spent in prison as an innocent man, all the while, these officers remained silent and never came clean about what they did," Olson said.

The 88-page lawsuit also lays out other allegations of misconduct on the part of officers assigned to the case, including that officers improperly led the victim to identity Long as her attacker, pre-screened the jury roll and removed "undesirable" candidates from the pool, and suppressed other evidence that would have weakened the case against Long, such as a state analysis of Long's clothing that found no hairs or hair fragments belonging to the victim, or any paint or carpet fibers from the victim's home.

Three of the officers named in the lawsuit have died. The lawsuit names their estates as defendants.

Long's attorneys say he's entitled to financial compensation and are asking for a trial by jury. The city has yet to file a response to the suit.

The city of Concord did not immediately return WFAE's requests for comment on the lawsuit. In the past, the city has said it does not comment on pending litigation as a matter of policy."

The entire story can be read at:

https://www.wfae.org/crime-justice/2021-05-13/ronnie-long-files-civil-lawsuit-against-concord-over-wrongful-conviction

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Read entire National Registry of Exonerations entry by Ken Otterbourg at the link below.

PASSAGE OF THE DAY: "Long’s first appeal claimed that Bost’s pre-trial identification was “impermissibly suggestive” because of flawed practices by the Concord Police Department. He also said the police searched his car without consent and that the shoe print testimony should have been excluded. The North Carolina Supreme Court rejected his appeal in 1977.  In 1986, Long filed a Motion for Appropriate Relief, again arguing that the car search was illegal. Long also claimed that the jury selection was improper and racially biased. In addition, he said his attorneys had been ineffective in failing to adequately challenge the jury’s composition. The North Carolina Supreme Court denied his motion in 1988.  Long then moved his appeals to federal court, raising many of these same issues in his first petition for a writ of habeas corpus. That petition was denied in 1990. 

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PASSAGE TWO OF THE DAY: "On April 20, 2005, the North Carolina Center for Actual Innocence filed a motion on Long’s behalf asking a superior court judge to order the SBI, the Cabarrus County District Attorney’s Office, and the Concord Police Department to turn over all records and evidence collected in the case. The court granted the motion on June 7, 2005, and also ordered the hospital to turn over any records. At a hearing a week later, the SBI said the only evidence it knew about was the shoe print. The police said they had a master case file, but the district attorney said a review of that file found “nothing of evidentiary value.”  The records released by the hospital included Monroe’s report, which showed a release form signed by Bost allowing the hospital to turn over pubic hair samples and a test tube of vaginal samples to the Concord Police Department. An officer signed the form, stating that he had received the evidence."

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PASSAGE THREE OF THE DAY: "Although the district attorney had downplayed the value of the master file, it contained significant information about the investigation and the evidence collected.  The files showed that Isenhour had created two evidentiary reports, one undated and the other dated May 12, 1976. The undated report said that Isenhour had only taken the shoe prints to the SBI, while the other evidence had been held for further “investigative uses.” The May 12 report told a different story, stating that 14 pieces of evidence – clothes from Bost and Long, hair samples, carpet samples, and paint chips – were taken to the crime lab. Six months later, the SBI turned over the evidence reports to Long’s attorneys.  The reports said that the hair found at the crime scene was different from Long’s and more reddish in color. It also said no hair consistent with Long’s was found in Bost’s clothing, and Long’s clothing showed no paint or carpet fibers similar to the samples from Bost’s house. In addition, the report said that four of the five matchbooks found in the car were of a different color than the burnt matches found at the crime scene. The fifth lacked sufficient identifying characteristics, but the analyst said the burnt matches “probably didn’t originate from this matchbook.”  In addition, the report made clear that Isenhour had not testified truthfully. He said the only evidence he had taken to the SBI was the shoe print, and that it had never left his control. In fact, the SBI had kept all the evidence that Isenhour brought for eight days."

 GIST: "It was just after 9:30 p.m. on April 25, 1976, when a man broke into a house on South Union Street in Concord, North Carolina, by climbing up a white banister and then entering through a window off the porch roof.
Sarah Bost, a 54-year-old widow, was home alone. She told police that the perpetrator surprised her in the kitchen, put a knife to her throat, and demanded money. But there was none in her purse, and Bost said the man then dragged her to the stairs, ripped off her clothing and raped her. She would later say that she kept trying to look at the man’s face, but he kept pushing her head to the side and telling her “Don’t look at my face.” She said she fought back. A medical report would note that some of her fingernails were “nearly bent backwards.” 

About 10 minutes into the attack, Bost’s phone rang. The assailant fled. Bost ran to a neighbor’s house, called 911, and was taken to Cabarrus Memorial Hospital. Along with treating Bost for the bruises and cuts she received in the attack, Dr. Lance Monroe combed her pubic area for hair samples and did a vaginal swab, in accordance with the emergency room’s rape protocols. 

At the hospital, two officers with the Concord Police Department showed Bost a photo array of 13 Black men between the ages of 20 and 30 years old. Bost, who was white, did not make an identification. But in the officers’ report, she described her attacker as “a Black male, height, five foot, five to five foot nine, slender build, slim hips. Subject was plain spoken, used correct English and at times spoke very softly. No speech defect, accent or noticeable brogue evident. Subject was wearing a dark waist length leather jacket, blue jeans with a dark toboggan pulled over his head. Could possibly have been wearing gloves.” 

Her initial descriptions included no mention of any facial hair. She would later describe her attacker as being “light-skinned” or “yellow,” or “not your normal black person.” 

The Concord Police Department’s investigation of the crime scene turned up several pieces of evidence. They found burned out matches on the floor of a bedroom near the window ledge off the porch roof. They also found a shoe print on the banister, and investigators were able to lift an impression of it.

A few days after the attack, 20-year-old Ronnie Long became a person of interest in the investigation. At the time, Concord police knew that Long had been a suspect in an investigation of a similar rape and burglary in Washington D.C. in August 1975 after his Social Security card was found at the crime scene. (No charges were ever filed. The victim was unable to make an identification; Long’s attorneys would later say he had lost his wallet while visiting the city.)

Police arrested Long on April 29, 1976 and charged him with trespassing in the public park near his home, which was about a mile or so from Bost’s house. He came to the police station the next day to be fingerprinted and photographed. A report noted he wore a waist-length black leather jacket and black gloves, and that he kept his gloves on for most of his time at the station. The report said “He was able to do things as normal as someone without gloves. He was able to take out of his billfold his drivers [license].” 

At the time, Long worked as a cement mason and lived with his parents. His court date on the misdemeanor trespassing charge was May 10. 

Although Concord police had a photo of Long to show Bost, they decided on another route. They asked her to accompany them to the courthouse on May 10, telling Bost that the man who raped her might or might not be present. Bost sat in the second row, disguised with a red wig and sunglasses. 

When Long’s case came up an hour or so later, he walked around to the defense table, wearing a flowered leisure shirt and a medium-length brown leather jacket. Even before Long spoke, Bost notified the officers that Long was her attacker. Later, at the police station, Bost picked Long’s photo out of an array. He was the only person in the array wearing a leather jacket.

Long’s trespassing charge had been dismissed, but the police showed up at his house a few hours later and told him he needed to return to the station to clear up a few matters. When he arrived, they arrested him and charged him with rape and burglary. For the next 44 years, he would remain behind bars. When police searched Long’s family car in the station’s parking lot, they found a green toboggan and some gloves. Long said he had never seen the hat. They also found several matchbooks. 

Long’s trial in Cabarrus Superior Court began on September 27, 1976, after a summer of demonstrations and protests surrounding his arrest. Prior to the voir dire of potential jurors, the Cabarrus County sheriff and other members of law enforcement reviewed a list of potential jurors and disqualified people from being called for jury duty. The county kept no record of the reasons for disqualification. The 49-person jury pool contained just two Black residents, and an all-white jury was seated for the trial. (At the time, Cabarrus County was approximately 20 percent Black.)

Bost testified that she was sure Long was her attacker, but her testimony differed from her earlier description and with Long’s appearance. Now, she said that her attacker wore a mustache. And she also continued to state that her attacker was light-skinned, although Long was dark-skinned. 

Monroe testified about the severity of Bost’s injuries and his examination of the vaginal fluid. He was not asked and did not testify about any samples he collected. 

During the trial, the state sought to introduce testimony comparing the burnt matches found at the crime scene with the matchbooks found in the Long family car. Long’s attorneys fought to suppress this evidence. With the jury not present, Long’s attorneys sought more information about the testing done on the matches. First, Detective David Taylor said the officers had taken the matches from the car because they were similar to those found at Bost’s house. When asked if they matched, he responded, “I didn’t match them, no sir.” Judge William Z. Wood asked, “Then they were not matched?” Taylor said that was correct. “In other words,” asked Wood, “the matches you got out of the car do not match with those found at the crime scene?” Taylor said, “I can’t testify to that.” Finally, Wood asked Taylor if he had any information about comparing the matches, to which Taylor replied, “No sir, they did not match.”

But with the jury present, Taylor repeated his claim that the matches he found in the Long family car were “of a similar nature” to burned matches found in Bost’s house.

Detective Van Isenhour also testified about the investigation of the crime scene and the processing of evidence. He said that he had processed the shoe print on the banister and then also made a print of Long’s shoes for comparison. He testified that on May 11, 1976, he had brought this evidence to the SBI crime lab. He was asked if that evidence had ever left his possession or control. He replied that it hadn’t. He also said that Taylor had given him other evidence, including a leather jacket, the green hat, and the matches. He testified that the jacket had also never left his control. He made no mention of this evidence being tested.

Dennis Mooney, the SBI’s print expert, testified about the footprints. He told jurors that the print on the banister “could have been made” by Long’s shoe, but he was not sure and it was not a “positive identification.”

Long did not testify, but he presented a strong alibi for the night of April 25, which was a Sunday. Witnesses said he had attended a meeting to plan a class reunion until about 8 p.m. He then went home from around 8:30 to 10 p.m., before leaving for a party in Charlotte, about 25 miles away. Witnesses said that while he was at home, he talked on the phone with his mother, his two-year-old son and the boy’s mother. People who saw him at the party testified that he had no bruises or signs of a struggle on his body. They also agreed that he was wearing khakis, not jeans, at the party and the reunion meeting, because at least one witness said he was at both events and made fun of Long’s attire. In addition, the witnesses said they never saw Long wear a toboggan. He favored leather hats.

In closing arguments, the prosecutor said, “We have shown that Ms. Bost’s testimony is not only accurate, but totally consistent with every piece of physical evidence existent. Everything she says happened that is capable of being corroborated by physical evidence ... is so corroborated.”

When Long’s attorneys argued there was no physical evidence that connected Long to the attack, prosecutors responded by saying that the absence of this evidence showed the honesty of the police, because it would have been easy for officers to rub Long’s clothing against the banister and put paint on the garments.

Rioting broke out in Concord after the jury convicted Long of burglary and rape on October 1, 1976. At the time of Long’s arrest, a rape conviction carried a mandatory death penalty in North Carolina, but the U.S. Supreme Court had struck down the state’s overly broad death penalty on July 2, 1976. He was sentenced to life in prison. 

Long’s first appeal claimed that Bost’s pre-trial identification was “impermissibly suggestive” because of flawed practices by the Concord Police Department. He also said the police searched his car without consent and that the shoe print testimony should have been excluded. The North Carolina Supreme Court rejected his appeal in 1977. 

In 1986, Long filed a Motion for Appropriate Relief, again arguing that the car search was illegal. Long also claimed that the jury selection was improper and racially biased. In addition, he said his attorneys had been ineffective in failing to adequately challenge the jury’s composition. The North Carolina Supreme Court denied his motion in 1988. 

Long then moved his appeals to federal court, raising many of these same issues in his first petition for a writ of habeas corpus. That petition was denied in 1990. 

On April 20, 2005, the North Carolina Center for Actual Innocence filed a motion on Long’s behalf asking a superior court judge to order the SBI, the Cabarrus County District Attorney’s Office, and the Concord Police Department to turn over all records and evidence collected in the case. The court granted the motion on June 7, 2005, and also ordered the hospital to turn over any records.

At a hearing a week later, the SBI said the only evidence it knew about was the shoe print. The police said they had a master case file, but the district attorney said a review of that file found “nothing of evidentiary value.” 

The records released by the hospital included Monroe’s report, which showed a release form signed by Bost allowing the hospital to turn over pubic hair samples and a test tube of vaginal samples to the Concord Police Department. An officer signed the form, stating that he had received the evidence.

Although the district attorney had downplayed the value of the master file, it contained significant information about the investigation and the evidence collected. 

The files showed that Isenhour had created two evidentiary reports, one undated and the other dated May 12, 1976. The undated report said that Isenhour had only taken the shoe prints to the SBI, while the other evidence had been held for further “investigative uses.” The May 12 report told a different story, stating that 14 pieces of evidence – clothes from Bost and Long, hair samples, carpet samples, and paint chips – were taken to the crime lab.

Six months later, the SBI turned over the evidence reports to Long’s attorneys. 

The reports said that the hair found at the crime scene was different from Long’s and more reddish in color. It also said no hair consistent with Long’s was found in Bost’s clothing, and Long’s clothing showed no paint or carpet fibers similar to the samples from Bost’s house. In addition, the report said that four of the five matchbooks found in the car were of a different color than the burnt matches found at the crime scene. The fifth lacked sufficient identifying characteristics, but the analyst said the burnt matches “probably didn’t originate from this matchbook.” 

In addition, the report made clear that Isenhour had not testified truthfully. He said the only evidence he had taken to the SBI was the shoe print, and that it had never left his control. In fact, the SBI had kept all the evidence that Isenhour brought for eight days. 

These SBI reports and related documents became the basis of a second Motion for Appropriate Relief Long filed in 2008, claiming that he was entitled to a new trial because the state had failed to turn over exculpatory evidence to his attorneys. This requirement is based on the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland. To win a new trial based on a Brady violation, a defendant must show that evidence was not disclosed, that it was favorable to the defendant, and that its disclosure had a reasonable probability of changing the verdict. 

During an evidentiary hearing on the motion, the prosecutor at Long’s trial said he had never seen the SBI reports, and that if he had, he would not have allowed Isenhour to testify in the manner that he did. 

But the state pushed back on Long’s Brady claims, arguing that the SBI reports that failed to connect him with the crime were inconclusive, rather than exculpatory, and were therefore immaterial. In addition, prosecutors noted that Long’s attorneys had plenty of opportunity to ask Monroe and the police officers about whether other tests had been performed. But they didn’t, and the state shouldn’t be penalized for a defense attorney’s trial strategy. 

During the hearing, James Fuller, one of Long’s trial attorneys, said that the reports would have played a powerful role in undercutting Bost’s testimony. 

“I got one test here that does not implicate you,” he said. “Okay. I’ve got a second test that does not implicate you. And now the jury is paying attention. And now I’ve got a third test and a fourth test, and pretty soon it creates a snowball effect that you’re not the defendant. And that’s why I believe every one of those tests was critical.”

On February 20, 2009, Judge Donald Bridges of Cabarrus County Superior Court denied Long’s Motion for Appropriate Relief. He said there was no proof that the police or the district attorney’s office had ever received Monroe’s report, and that the defense had failed to ask Monroe any questions about his examination of Bost. Bridges wrote that the SBI lab reports didn’t provide meaningful analysis, which meant the state’s failure to disclose wasn’t a Brady violation. 

Jurors, Bridges said, had a chance to examine the evidence, if not hear about the reports, and that not all of the undisclosed evidence was beneficial to Long. “The cumulative effect of any items with any value is so minimal that it would have had no impact on the outcome of the trial.” 

Long appealed this ruling to the N.C. Supreme Court, which has seven justices. Justice Barbara Jackson was elected in 2010, after oral arguments had been held, and she took no part in the decision released on February 4, 2011. The remaining six justices deadlocked, affirming the lower court’s decision by default. 

Long then began a second series of appeals through the federal courts. He filed a petition for a writ of habeas corpus in U.S. District Court for the Middle District of North Carolina in 2012 that was dismissed because he had not obtained pre-filing authorization. 

After that dismissal, Long’s attorneys contacted the North Carolina Innocence Inquiry Commission, a state agency that investigates and makes recommendations on claims of innocence. As part of the commission’s initial review, it obtained 43 fingerprints – previously undisclosed, even after the 2005 order – that had been lifted from the crime scene by investigators with the Concord Police Department. Long’s fingerprints were excluded as contributors. Four of the prints were of sufficient quality to run through state and national databases. The Concord police said its comparison returned “no possible contributors,” but declined to state which databases they had queried. While Bost, who died in 2015, had testified that her attacker wore gloves, the burned matches suggested the attacker had taken them off at some point during the crime because it would be difficult to strike a match while wearing gloves. 

The vaginal samples collected by Monroe were never located. Because of a lack of DNA evidence in Long’s case, the Innocence Commission decided not to pursue further investigation.

Now represented by attorneys with Duke University’s Wrongful Convictions Clinic, Long filed a third petition for a writ of habeas corpus in 2016. This petition said that the fingerprints were new evidence of innocence, part of a legal strategy to allow Long to get around the limitations on successive appeals, although later federal court rulings said that Long needed first to litigate the fingerprint claim in state court. 

The petition argued that Bridges had erred in weighing the materiality of the state’s Brady violations and that Bost’s initial identification of Long was inherently flawed. His attorneys said there had been no need to bring her to the courthouse, where Bost waited nervously in disguise while a stream of Black men charged with crimes paraded past.

“Holding the procedure in a courtroom further enhanced the likelihood that the victim would select someone despite his possible innocence, because the courtroom itself conveys a message that the persons present were criminals,” the petition said. While Bost later selected Long from a photo array 20 minutes after the courtroom identification, Long’s attorneys said that selection was contaminated because Bost was “primed” to pick Long. 

Long’s petition was independently supported by dozens of attorneys, legal scholars and criminologists, whose brief provided context about the challenges of eyewitness identifications and the forensic evidence at the heart of the appeal.

The petition argued that Bridges’s ruling ran counter to federal law by trivializing the importance of the undisclosed evidence. Although this evidence didn’t directly exonerate Long, the petition said that it was exculpatory, and that it discredited the police investigation and impeached the state’s witnesses. Equally important, the petition said, it was the obligation of prosecutors to turn over this sort of evidence. The burden does not rest on defense attorneys to ask whether it existed. 

U.S. Magistrate Judge L. Patrick Auld recommended denying Long’s petition on May 22, 2018. While his findings acknowledged significant legal errors by Bridges in his interpretation of what constitutes exculpatory evidence, Auld agreed that the evidence wasn’t sufficiently material to have made a difference at trial. He said Bost’s identification was strong and decisive, and while her initial identification was “unorthodox,” Long’s attorneys couldn’t point to how it violated Long’s rights as a defendant. The district court adopted Auld’s recommendations. Long appealed to the U.S. Court of Appeals for the Fourth Circuit, where a three-judge panel heard arguments in March 2019.

By a 2-1 vote, the appellate court rejected Long’s appeal on January 8, 2020. In the majority opinion, written by Judge Julius Richardson and joined by Judge Paul Niemeyer, the court said that Bridges had not been unreasonable in how he viewed the materiality of the undisclosed evidence. The opinion said that most “jurors would consider the impeachment evidence peripheral.” The opinion also said that Congress had created a necessary high bar for defendants seeking relief in federal court, placing “great weight on the values of federalism and finality.”

Judge Stephanie Thacker wrote the dissent. She noted that Bost’s identification was neither as strong nor as consistent as previous courts or her colleagues had ruled. While the majority opinion said that Isenhour had offered an “incomplete picture of the testing he requested,” Thacker was more pointed. She wrote: “In short, he lied. Repeatedly.” (Isenhour pled guilty to possession of a stolen U.S. Treasury check in 1987 and was sentenced to four years in prison.)

Thacker criticized prosecutors for arguing during the years of appeals that Long’s attorneys should have tested the material themselves or asked the state’s witnesses whether items had been tested. 

“This argument is nonsensical and offensive. Such an argument completely turns the burden of proof in criminal cases on its head. Again, I am shocked as to the apparent need to educate the state that the burden of proof in criminal cases rests with the state, and remains with the state throughout the course of the trial.”

She closed by writing, “In this circumstance, Appellant must prevail. To hold otherwise would provide incentive for the state to lie, obfuscate, and withhold evidence for a long enough period of time that it can then simply rely on the need for finality. That, I cannot abide.”

Because of the split decision, Long petitioned the Fourth Circuit court for what is known as an en banc review of his case. (Less than 1 percent of these requests are granted.) On August 24, 2020, the judges, by a 9-6 vote, reversed the dismissal of Long’s petition. 

Now in the majority, Thacker wrote: “A man has been incarcerated for 44 years because, quite simply, the judicial system has failed him. Rather than overstepping our judicial role, as the dissent contends, today we remain faithful to our oath by “administer[ing] justice.” 

Judge Catherine Eagles of U.S. District Court granted Long’s petition for a writ of habeas corpus on August 27, 2020, and he was released from prison that day. The Cabarrus County District Attorney’s Office dismissed the charges on August 28. 

Long married in 2014, and he told CBS News that he wanted to spend time with his family and his son. He said he wanted to visit the graves of his parents, long dead. “I know my mother and father died with a broken heart. I’m gonna tell them now, when I visit the gravesite, ‘Your son is clear.’”

After the dismissal, Long sought a pardon of innocence from Gov. Roy Cooper, which would allow him to receive compensation for his wrongful conviction. Cooper served as attorney general from 2001-2017, and his office played a key role in representing the state during Long’s unsuccessful appeal of the order denying his 2008 Motion for Appropriate Relief. On December 17, 2020, Cooper issued the pardon of innocence. In March 2021, Long received a check from the state for $750,000, the maximum amount allowed under North Carolina's wrongful conviction law. 

Long criticized the amount, noting it worked out to about $17,000 for each year he was wrongfully imprisoned. On May 3, 2021, he filed a federal civil-rights lawsuit seeking additional compensation from Concord and current and former members of its police department."


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;