Saturday, October 23, 2021

Tonia Miller; Michigan: Shaken Baby Syndrome Series; (Part Two): Another compelling post by Sue Luttner on her Blog 'On SBS' (On Shaken Baby) - an important primer (indeed a balanced, credible, informative 'must') for anyone who wants to develop an understanding of the notorious 'shaken baby syndrome', the innocent people whose lives were devastated, and the experts who got it wrong....In this post, entitled 'Grace in Exoneration, After 18 years', she writes: "Even as she went to trial in 2003, Tonia Miller says, she expected to be found innocent. She knew she hadn’t abused her baby, she explains, and, “I trusted the justice system.” Her chuckle at her own youthful naïveté is more wry than bitter."...Unfortunately for Tonia, the medical experts at the time were adamant and unanimous. Even though 11-week-old Alicia showed no bruises, grip marks, or fractures, even though the baby had been sick her entire life, with chronic collections of subdural blood possibly dating from birth, and even though no one had ever seen Tonia mistreat either her baby or her toddler, doctors testified at trial that the pattern of bleeding and swelling inside Alicia’s head could mean only one thing: Shaken Baby Syndrome (SBS). The young mother was found guilty of second-degree murder. But those experts were wrong."


PASSAGE OF THE DAY: "The early interrogations left her numb and confused, she remembers. “The detectives isolated me from everybody… I tried to tell them what happened, but they kept interrupting, saying I was lying. ‘The doctor says that won’t explain it,’ they said. After a while I started thinking, ‘If I tell you what you want to hear, will you just leave me alone?'” Tonia had said from the first that she had shaken Alicia gently to revive her, after the girl seemed to gasp and quit breathing—but her accusers insisted she had shaken Alicia violently, just before the breathing problems.

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PASSAGE TWO OF THE DAY: "Incredibly, the autopsy report had noted pneumonia in the child’s lungs, and she’d been recovering from a respiratory infection, a well-recognized precursor to pneumonia in newborns. In the weeks before Alicia’s collapse, Tonia had sought medical help for her daughter repeatedly, with reports of weak sucking, breathing problems, and even seizures, witnessed not only by Tonia but also by relatives and neighbors. Moran’s appeal also argued that the triad of findings—retinal hemorrhage, subdural hematoma, and cerebral edema—underpinning Tonia’s conviction is no longer considered proof of shaking. The appeal judge concluded that SBS has become “controversial” and noted “a shift in the scientific consensus.”

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POST: 'Grace in exoneration, after 18 years,'  by Sue Luttner, published by 'On SBS' on October 19, 2021.

GIST: "Even as she went to trial in 2003, Tonia Miller says, she expected to be found innocent. She knew she hadn’t abused her baby, she explains, and, “I trusted the justice system.” Her chuckle at her own youthful naïveté is more wry than bitter.


Unfortunately for Tonia, the medical experts at the time were adamant and unanimous. Even though 11-week-old Alicia showed no bruises, grip marks, or fractures, even though the baby had been sick her entire life, with chronic collections of subdural blood possibly dating from birth, and even though no one had ever seen Tonia mistreat either her baby or her toddler, doctors testified at trial that the pattern of bleeding and swelling inside Alicia’s head could mean only one thing: Shaken Baby Syndrome (SBS). The young mother was found guilty of second-degree murder.

But those experts were wrong.

Tonia’s conviction was vacated in 2020, after four new experts brought in by the Michigan Innocence Clinic re-examined the medical records and concluded, unanimously, that Alicia had died from pneumonia.


“There was nothing subtle here,” emphasizes clinical law professor David Moran, co-founder of the Michigan Innocence Clinic and the driving force behind the appeal. “The pneumonia was blindingly obvious. But the presence of the triad closed down critical thinking. No one ever questioned the initial diagnosis.” Moran calls the case “an especially stark example” of shaking theory in the courtroom.

Incredibly, the autopsy report had noted pneumonia in the child’s lungs, and she’d been recovering from a respiratory infection, a well-recognized precursor to pneumonia in newborns. In the weeks before Alicia’s collapse, Tonia had sought medical help for her daughter repeatedly, with reports of weak sucking, breathing problems, and even seizures, witnessed not only by Tonia but also by relatives and neighbors.

Moran’s appeal also argued that the triad of findings—retinal hemorrhage, subdural hematoma, and cerebral edema—underpinning Tonia’s conviction is no longer considered proof of shaking. The appeal judge concluded that SBS has become “controversial” and noted “a shift in the scientific consensus.”

Dr. Steven Gabaeff, a clinical forensic medical specialist and an emergency physician for 40 years, says he finds the shift-in-consensus element ironic, because there has never been any scientific proof that the triad results only from shaking, despite the testimony at Tonia’s trial. “It was false evidence. It was never true,” he points out, “And this case proves that yet again.”

The pneumonia had compromised Alicia’s lungs, reducing the amount of oxygen available to her brain. Breathing, controlled at the brain stem, is one of the first functions to be affected when the brain is in trouble. Weak breathing can compound the oxygen problem just by itself, and on the morning Alicia was rushed to the hospital, her airways were obstructed by the formula she had apparently choked on. As detailed in the new reports, a series of natural processes readily explains how pneumonia in the lungs can lead to bleeding and swelling in the brain.

Even after her conviction was vacated, Tonia remained in prison while the state appealed the decision. She was finally released on bond in April of 2021, with the spectre of a second trial hanging over her. This fall, the state dropped all charges, and now she is free to plan her life. 

Tonia seems to hold few grudges. She says she doesn’t take it personally that the relative who eventually adopted her older daughter cut off all contact—although she still hopes to reconnect with her surviving child, now a young woman. And she understands why Alicia’s father quit writing when he married: “I have to put myself in his wife’s shoes,” she says. “I wouldn’t want my husband in touch with a woman convicted of murdering a baby.”


Tonia even offers a positive angle on her time in prison, which she says gave her the chance to reflect and to process. Her early life was difficult, she says, and “prison helped me deal with those issues from my past.”

Not that the path was easy.

The early interrogations left her numb and confused, she remembers. “The detectives isolated me from everybody… I tried to tell them what happened, but they kept interrupting, saying I was lying. ‘The doctor says that won’t explain it,’ they said. After a while I started thinking, ‘If I tell you what you want to hear, will you just leave me alone?'”

Tonia had said from the first that she had shaken Alicia gently to revive her, after the girl seemed to gasp and quit breathing—but her accusers insisted she had shaken Alicia violently, just before the breathing problems.

As she explains in the essay that accompanies this post, Tonia was “petrified” on her way into prison. Since then, she has risen to the occasion and more. Now that she’s out, she has found a job she likes and is looking forward to finishing her BA—she earned most of the credits she needs while in prison.

Please see Tonia’s reflections on her experience of prison and exoneration, written immediately after her release.

Tonia would like to thank:

  • The relatives and friends who have supported her
  • The staff and student volunteers at the Michigan Innocence Clinic
  • The staff and student volunteers at the Medill Justice Project (which has since refocused its efforts away from SBS)
  • The “utter stranger” who wrote her in prison, encouraging her to fight her conviction (that is, Jeremy Praay, citizen advocate for the wrongly accused)
  • Anyone working on behalf of wrongly accused families and caretakers"

The entire post can be read at: 

https://onsbs.com/posts/

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;

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FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Friday, October 22, 2021

Melissa Lucio: Texas; Update: The U.S. Supreme Court will not intervene; The tense, agonizing wait for the State to set an execution date -which could be soon - has begun; The focus now turns to the public arena where her supporters are not waiting for a date to be set. (That could be far too late); They are advocating 'now.' They need as many people as possible to drive home the message to the State of Texas that it will be killing an innocent woman. This support is crucial: For those who want to get involved (count me in. HL) 'The Action Network' - link below - is a good place to start (link below), with considerable background, a link to the multi-award-winning movie 'The State of Texas vs. Melissa,' directed by Sabrina Van Tassel, to the podcast, and, above all to the petition..."On Monday, October 18, 2021, the US Supreme Court declined to consider the case. Melissa is now at risk of having an execution date set. Read the brief filed in August by the Innocence Project & a coalition of former prosecutors and anti-violence organizations in support of Melissa Lucio. In July, 2019, the U.S. Court of Appeals for the Fifth Circuit overturned a Texas court ruling and found Lucio’s right to a “complete defense” had been violated in her original trial. In February, 2021, a sharply divided court of appeals reversed the 2019 grant of relief by a vote of 10 to 7 and her hopes for exoneration are now in the U.S. Supreme Court. Melissa is in danger of receiving an execution date in the near future. We are not waiting for an imminent execution date to raise awareness and call for action in this case. This petition recognizes that without the intervention of the courts, Melissa's life may depend on a decision by the Texas Board of Pardons and Paroles and Texas Governor Greg Abbott. This petition will not be delivered unless and until an execution date is set and clemency is to be considered."...Lucio’s lawyers have contested the cause of death, presenting expert testimony from a neurosurgeon that Mariah may instead have died from head trauma caused by falling down a flight of stairs. A fall that was witnessed by Melissa’s children. Lucio’s original lawyer did not call any of her children as witnesses, including the ones who saw Mariah fall down the stairs. What’s more, he willingly ignored evidence that another child had admitted being abusive to Mariah. Right after the trial, he became a Cameron County prosecutor. Raw footage shows the interrogation, which lasted almost seven hours on the night of Mariah’s death, to be clearly coercive. Dr. John Pinkerman, a psychologist, and Norma Villanueva, a mitigation specialist, hoped to testify that Lucio was susceptible to making a false confession during a coercive investigation, were both barred by the trial court from testifying as to her innocence at the guilt/innocence phase of her trial."


PETITION: Please sign this petition asking the Texas Board of Pardons and Paroles to watch The State of Texas vs. Melissa and to recommend that Governor Greg Abbott grant clemency to Melissa Lucio.

https://actionnetwork.org/petitions/melissa-lucio-innocent-woman-on-death-row-in-texas-2/

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PREFACE: Melissa Lucio has spent  over a decade on death row for the alleged murder of her two-year-old daughter, Mariah. In 2008, Lucio became the first Latina woman sentenced to death in Texas.

UPDATE (Oct 18, 2021): "On Monday, October 18, 2021, the US Supreme Court DECLINED to consider the case. Melissa is now at risk of having an execution date set. Read the brief filed in August by the Innocence Project & a coalition of former prosecutors and anti-violence organizations in support of Melissa Lucio

In July, 2019, the U.S. Court of Appeals for the Fifth Circuit overturned a Texas court ruling and found Lucio’s right to a “complete defense” had been violated in her original trial. In February, 2021, a sharply divided court of appeals reversed the 2019 grant of relief by a vote of 10 to 7 and her hopes for exoneration are now in the U.S. Supreme Court. Melissa is in danger of receiving an execution date in the near future.

We are not waiting for an imminent execution date to raise awareness and call for action in this case. This petition recognizes that without the intervention of the courts, Melissa's life may depend on a decision by the Texas Board of Pardons and Paroles and Texas Governor Greg Abbott. This petition will not be delivered unless and until an execution date is set and clemency is to be considered. In the petition we are urging the addressees to take the unusual step of watching an award-winning new documentary which sheds light on the controversy of her conviction, revealing a case with no investigation, a coerced confession, an incomplete defense, and a corrupt DA.

The State of Texas vs. Melissa, a 2020 documentary by Sabrina Van Tassel, highlights many of the concerning facts around Lucio’s case, including the following:
  • Lucio’s lawyers have contested the cause of death, presenting expert testimony from a neurosurgeon that Mariah may instead have died from head trauma caused by falling down a flight of stairs. A fall that was witnessed by Melissa’s children.
  • Lucio’s original lawyer did not call any of her children as witnesses, including the ones who saw Mariah fall down the stairs. What’s more, he willingly ignored evidence that another child had admitted being abusive to Mariah. Right after the trial, he became a Cameron County prosecutor.
  • Raw footage shows the interrogation, which lasted almost seven hours on the night of Mariah’s death, to be clearly coercive. 
  • Dr. John Pinkerman, a psychologist, and Norma Villanueva, a mitigation specialist, hoped to testify that Lucio was susceptible to making a false confession during a coercive investigation, were both barred by the trial court from testifying as to her innocence at the guilt/innocence phase of her trial.
  • Armando Villalobos, the district attorney who prosecuted Lucio’s case, was convicted of bribery and extortion in 2014 for accepting over $100,000 in exchange for favorable outcomes in criminal trials. He is now serving a 13 year sentence in prison. He was known to bribe judges and lawyers and was suspected of using Melissa’s case to be re-elected.


For more information on Lucio’s case:

Documentary Trailer: https://www.youtube.com/watch?v=9wn4J8lQcNc

Watch The State of Texas vs. Melissa, Free! (limited time special engagement.)

Listen to the Wrongful Convictions Podcast on this case.

https://deathpenaltyinfo.org/news/federal-appeals-court-overturns-mothers-conviction-in-texas-child-murder-case-that-may-have-been-an-accidental-death

https://spectrumlocalnews.com/tx/south-texas-el-paso/news/2020/05/18/death-row-inmate-s-defense-revived-in--the-state-of-texas-vs--melissa-

ADDITIONAL PROCESS INFORMATION

Petitions will be delivered on your behalf if and when an execution date is set.

Additionally, you may also contact the Board at bpp_clemency@tdcj.texas.gov and the Governor at https://gov.texas.gov/contact/ and (512) 463-1782. You can simply leave a voice message, or choose to speak to a representative if you prefer.

Please note: In Texas, the Governor has limited power when it comes to the death penalty. But the story we are told that "it's out of the governor's hands," is only true if we allow it to be. Yes, the Texas Board of Pardons and Paroles must recommend clemency in that state in order for the Governor to grant clemency (mercy) by commuting a death sentence. But the fact is that the governor appoints the members of the Board of Pardons and Paroles. He can choose to appoint members who will take valid claims and concerns more seriously, instead of acting like rubber-stamping gate-keepers. He can still use his position of power and influence to enact justice in the State of Texas. "

The entire post can be read at:

https://actionnetwork.org/petitions/melissa-lucio-innocent-woman-on-death-row-in-texas-2?clear_id=true&source=email-innocent-tx-woman-on-death-row-case-at-us-supreme-court

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;

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FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Terry Ceasor: Michigan: (Shaken baby syndrome series (Part One): The prosecution's expert neurosurgeon saw all the signs of 'shaking baby syndrome' - and none of 'accidental fall'. (The defence); Based on her evidence, Ceasor, later exonerated, who's lawyer had not called an expert witness to challenge her evidence, was convicted of injuring his girlfriend's toddler by shaking him and sentenced to 2 to 15 years. How could an expert witness have been so terribly wrong? And why did Terry Ceasor lose so many appeals over so many years before he was exonerated?..."On September 30, 2021, the prosecution dismissed the case rather than go to a retrial. (Michigan Innocence Clinic lawyer Dave) Moran said, “After 12 solid years of continuous litigation where we bounced from state court to federal court and back, Terry is now finally exonerated in a case where his girlfriend's toddler fell off of a couch in 2004 and suffered a concussion, from which he fully recovered in a few days."


QUOTE OF THE DAY: "Following the ruling, (Dave) Moran (Michigan Innocence Clinic) declared, “This is all about clearing his name. He has a child abuse conviction on his record.”

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PASSAGE ONE OF THE DAY: "Dr. Holly Gilmer-Hill was one of the neurosurgeons who evaluated Brenden at Children’s Hospital. Dr. Gilmer-Hill found that Brenden was awake, alert, and had no external bruising, scalp swelling, or other outward signs of trauma. She reviewed the CAT scan from Port Huron Hospital, which showed some blood, brain-swelling, and a midline shift, indicating a “serious” injury. Dr. Gilmer-Hill noted no other injuries, and the radiology showed no fractures. Dr. Gilmer-Hill did not remember noticing any retinal hemorrhaging on October 3, the date of Brenden’s admission. On October 5, an ophthalmologist reported noticing some retinal hemorrhaging in both of Brenden’s eyes.  Brenden did not require neurosurgical intervention and was discharged on October 8 with no apparent lasting injuries.  Dr. Gilmer-Hill concluded that Brendan’s injuries were the result of having been violently shaken and were not caused by an accidental fall. She told authorities that Brenden was a victim of Shaken Baby Syndrome (SBS).  Consequently, on January 25, 2005, Ceasor was charged with first-degree child abuse.

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PASSAGE TWO OF THE DAY: "Following a preliminary hearing, his defense attorney, David Black, noted to the judge that the case was “going to be expert against expert, and that’s why it’s very, very important that I get all the information I can when I have an opportunity to talk to witnesses.” However, Black, who had been paid $1,500 by Ceasor’s mother, did not represent Ceasor at trial. Kenneth Lord, who was paid $2,500 by Ceasor’s mother, took over the case. He reached out to an expert, Dr. Faris Bandak, a biomechanical engineer, who had concluded that manual shaking of a human infant of the type hypothesized in SBS theory would cause severe neck and spinal injuries long before causing intracranial injury, including subdural hematomas. However, attorney Lord did not present any expert testimony at Ceasor’s trial because Ceasor’s family could not come up with any more money to pay for the expert. Lord also never asked the court to approve court funding for the expert. In December 2005, Ceasor went to trial in St. Clair County Circuit Court. The prosecution’s case relied primarily on the testimony of Dr. Gilmer-Hill."

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PASSAGE THREE OF THE DAY: "Attorneys for the Michigan Innocence Clinic, Dave Moran and Bridget McCormick, presented the affidavits of four experts who reviewed his case pro bono: Dr. John Plunkett, a forensic pathologist; Dr. Peter Stephens, a medical doctor board certified in anatomical pathology, clinical pathology, and forensic pathology; Dr. Ronald Uscinksi, a clinical neurosurgeon with "special expertise in the literature surrounding pediatric head injuries;" and Dr. Christopher Van Ee, a Ph.D. in biomedical engineering.  Together, these experts filed affidavits saying that since approximately 2004, the theories underlying SBS have been challenged and called into question due to their purported lack of a scientific basis. This is, at least in part, because the biomechanical and forensic literature demonstrates that shaking without impact is unlikely to cause subdural hematomas or retinal hemorrhages. The experts said that instead, such injuries may result from an accidental impact, including a short fall, or from a variety of natural causes. In fact, the gravitational force from the impact of a short fall far exceeds the force from shaking, and short falls can result in serious or even fatal head injuries. Further, the expert)s)  said that injury biomechanics confirmed that when a child is manually shaken, he or she will suffer a neck injury or gripping-style chest injuries well before sustaining a subdural hematoma or retinal hemorrhage. They said that Brenden's injuries were consistent with a short fall from the couch onto the coffee table or the floor and inconsistent with abusive shaking."

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PASSAGE FOUR  OF THE DAY: "The experts said that Dr. Gilmer-Hill had misrepresented the findings in Dr. Duhaime's study and gave the jury incorrect information regarding the biomechanics of infant head injury, short distance falls, and abusive shaking. They also noted that Dr. Gilmer-Hill's apparent misapprehension of the literature on SBS and pediatric head injury likely stemmed, at least in part, from her limited focus on American neurosurgical literature at the exclusion of international literature and literature from other disciplines, including pathology, pediatrics, and biomechanics. Each of the experts noted that criticisms of SBS (or Dr. Gilmer-Hill's understanding thereof) existed at the time of Ceasor's December 2005 trial or earlier, and Drs. Plunkett and Van Ee expressly stated that they would have offered the opinions included in their respective affidavits if they had been asked to testify at trial;

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PREFACE: "In 2005, Terry Ceasor was sentenced to two to fifteen years  in prison for child abuse in St. Clair County, Michigan for injuring his girlfriend's toddler by shaking him. He was exonerated in 2021 by evidence that the boy's injuries were the result of an accidental fall,"

ENTRY: Terry Ceasor; Michigan; Contributing factors: 'false or misleading forensic evidence, and 'inadequate legal defence'.  (The two often go together. HL). By Maurice Possley: Entered on October, 15, 2021.

GIST: On Sunday, October 3, 2004, Terry Ceasor babysat his girlfriend Cheryl Genna’s 16-month-old son, Brenden, while she went swimming with her daughter in Port Huron, Michigan. 

While taking care of Brenden, Ceasor played a game called “gotcha” with Brenden which involved Brenden running back and forth on the sofa while Ceasor “chased him” behind it. Ceasor briefly stepped away to use the bathroom and heard a loud thud. He ran\to the living room and found Brenden unconscious on the floor. 

Moments later, Genna returned. She and Ceasor rushed Brenden to Port Huron Hospital. Upon admission, Brenden was unresponsive. Nurse LeAnn Roulo later testified that she examined Brenden and observed no bruising or lumps anywhere on Brenden’s scalp or face, nor did she find any scrapes, bruising, or abnormalities of any kind on the rest of his body. She did note that one of Brenden’s pupils was “vastly larger than the other,” a neurological indicator that prompted the hospital staff to order a CAT scan to search for brain abnormalities. 

Dr. Christopher Hunt, the emergency room physician who treated Brenden, found Brenden’s vital signs were stable and that he was breathing regularly. He also observed that Brenden was unresponsive to verbal or other stimuli and that his pupils were of unequal size. Dr. Hunt did not see any external signs of trauma, nor did he observe any retinal hemorrhaging.

Genna noticed a bite mark on Brenden’s tongue while he was at the Port Huron Hospital. Genna and some other family members also later noted a red mark “about the size of a 50 cent piece” on Brenden’s head.

By the time the CAT scan was taken, approximately one hour after Brenden arrived at Port Huron Hospital, Brenden was alert and his pupils were equal and reactive. Shortly thereafter, he was crying, and his breathing was even and unlabored. 

Brenden’s CAT scan showed a subdural hematoma with a slight mass effect. Dr. Hunt later testified that a mass effect occurred when the blood under the dura in the brain was of such quantity that it began to push the brain to the opposite side. He considered the subdural hematoma a serious condition and decided to send Brenden to Children’s Hospital in Detroit to consult with a pediatric neurosurgeon. Brenden was transferred by ambulance that night.

Dr. Holly Gilmer-Hill was one of the neurosurgeons who evaluated Brenden at Children’s Hospital. Dr. Gilmer-Hill found that Brenden was awake, alert, and had no external bruising, scalp swelling, or other outward signs of trauma. She reviewed the CAT scan from Port Huron Hospital, which showed some blood, brain-swelling, and a midline shift, indicating a “serious” injury. Dr. Gilmer-Hill noted no other injuries, and the radiology showed no fractures.

Dr. Gilmer-Hill did not remember noticing any retinal hemorrhaging on October 3, the date of Brenden’s admission. On October 5, an ophthalmologist reported noticing some retinal hemorrhaging in both of Brenden’s eyes. 

Brenden did not require neurosurgical intervention and was discharged on October 8 with no apparent lasting injuries. 

Dr. Gilmer-Hill concluded that Brendan’s injuries were the result of having been violently shaken and were not caused by an accidental fall. She told authorities that Brenden was a victim of Shaken Baby Syndrome (SBS). 

Consequently, on January 25, 2005, Ceasor was charged with first-degree child abuse.Following a preliminary hearing, his defense attorney, David Black, noted to the judge that the case was “going to be expert against expert, and that’s why it’s very, very important that I get all the informatio n I can when I have an opportunity to talk to witnesses.”

However, Black, who had been paid $1,500 by Ceasor’s mother, did not represent Ceasor at trial. Kenneth Lord, who was paid $2,500 by Ceasor’s mother, took over the case. He reached out to an expert, Dr. Faris Bandak, a biomechanical engineer, who had concluded that manual shaking of a human infant of the type hypothesized in SBS theory would cause severe neck and spinal injuries long before causing intracranial injury, including subdural hematomas. However, attorney Lord did not present any expert testimony at Ceasor’s trial because Ceasor’s family could not come up with any more money to pay for the expert. Lord also never asked the court to approve court funding for the expert.

In December 2005, Ceasor went to trial in St. Clair County Circuit Court. The prosecution’s case relied primarily on the testimony of Dr. Gilmer-Hill. 

Dr. Gilmer-Hill testified that it took a good deal of force to cause retinal bleeding. She told the jury that the combination of subdural blood with retinal hemorrhage was diagnostic for child abuse. Dr. Gilmer-Hill said that retinal hemorrhage was caused by "being shaken or slammed onto a surface, either hard or soft. Usually repeatedly." Based on her training and experience and her treatment of Brenden, Gilmer-Hill did not believe his injuries were the result of an accident. Dr. Gilmer-Hill further testified that a fall from a couch onto a carpeted floor could not have caused injuries as severe as Brenden’s. 

During cross-examination, Ceasor’s attorney, Lord, confronted Dr. Gilmer-Hill with articles by Dr. John Plunkett and Dr. Jennian Geddes that claimed that the accepted mechanism of SBS was incorrect. Lord also questioned whether Brenden's recent vaccinations may have caused the subdural bleeding. Dr. Gilmer-Hill disagreed with both positions. Dr. Gilmer-Hill noted that Plunkett's theory was inconsistent with "the body of evidence that's out there." When challenged on the force of a fall as opposed to shaking, Gilmer-Hill testified that a fall from five or six feet would have much less force than a shaking. Dr. Gilmer-Hill believed that it would take a fall of 20 to 30 feet to create the same force.

Dr. Gilmer-Hill claimed her opinion was supported by studies done by Ann-Christine Duhaime, including a 1987 study referred to by the trial attorneys as the “Duhaime study.” Dr. Gilmer-Hill further testified that subdural hemorrhage, brain-swelling and midline shift are only seen in accidents such as falls from second story buildings or high-speed motor vehicle accidents and cannot be caused by an accidental injury such a fall from a couch onto a carpeted floor.

Lord also confronted Gilmer-Hill with articles by Dr. Gregory Reiber and Dr. Irving Root, which claimed children could receive injuries causing brain swelling from short falls and how short falls with rotational force can cause G-forces equivalent to long falls. Dr. Gilmer-Hill admitted she was not familiar with either article, but noted that her professional reading was in the neurosurgical field. Dr. Gilmer-Hill noted that both doctors were forensic pathologists, a specialty that did not take care of patients with head injuries. Dr. Gilmer-Hill stated she did not believe that there were experts in the field of neurosurgery who believed that a two-foot fall onto carpet would cause a severe head injury with bleeding within the brain.

Ceasor testified and denied that he shook Brenden. He recounted how he was in the bathroom when he heard a thud and found the boy unconscious. He admitted that he had initially falsely told police that Genna was present when the boy fell.

Genna testified and admitted that she lied to the investigating officers at the Port Huron Hospital by telling them that she was present when Brenden fell. Genna testified that she did not see any other injuries on Brenden while at Port Huron Hospital. However, she did say that during the ambulance ride from Port Huron Hospital to Children's Hospital, she saw an oval mark on the back of Brenden's head with red dots in the mark. 

Genna then contradicted her earlier testimony by claiming she noticed a bite mark on Brenden's tongue while at Port Huron Hospital, but she admitted that she did not tell anyone at that hospital about it, nor could she recall telling anyone at Children's Hospital. Genna admitted that she had eventually told a detective in St. Clair County Sheriff's Department that she had not been at the house when the incident happened.

During cross-examination, Genna also said that Brenden had previously fallen at daycare although she had earlier testified that he had never fallen.

During final arguments, the prosecution told the jury that Genna and Ceasor’s inconsistent accounts were evidence that they were attempting to hide Ceasor’s abuse of Brenden.

The jury deliberated for three days, during which they were allowed to rehear the testimony of Dr. Gilmer-Hill in its entirety. On December 19, 2005, the jury convicted Ceasor of first-degree child abuse. He was sentenced to two to 15 years in prison.

Ceasor appealed to the Michigan Court of Appeals. In the appeal, Ceasor’s appellate attorney claimed that Ceasor’s trial defense attorney had provided an inadequate legal defense by failing to call an expert witness. However, the appellate attorney failed to include a separate motion to remand the case back to the trial court for a hearing to present evidence on the inadequate legal defense claim.

On July 12, 2007, the Michigan Court of Appeals affirmed Ceasor’s conviction. The Michigan Supreme Court denied permission to appeal further on October 29, 2007.

Acting without a lawyer, Ceasor filed a petition for habeas corpus in the United States District Court for the Eastern District of Michigan on August 21, 2008. After retaining the assistance of the Michigan Innocence Clinic at the University of Michigan Law School, an amended petition was filed in February 2010. By then, Ceasor was free. He was released on parole on October 6, 2009.

Attorneys for the Michigan Innocence Clinic, Dave Moran and Bridget McCormick, presented the affidavits of four experts who reviewed his case pro bono: Dr. John Plunkett, a forensic pathologist; Dr. Peter Stephens, a medical doctor board certified in anatomical pathology, clinical pathology, and forensic pathology; Dr. Ronald Uscinksi, a clinical neurosurgeon with "special expertise in the literature surrounding pediatric head injuries;" and Dr. Christopher Van Ee, a Ph.D. in biomedical engineering. 

Together, these experts filed affidavits saying that since approximately 2004, the theories underlying SBS have been challenged and called into question due to their purported lack of a scientific basis. This is, at least in part, because the biomechanical and forensic literature demonstrates that shaking without impact is unlikely to cause subdural hematomas or retinal hemorrhages. The experts said that instead, such injuries may result from an accidental impact, including a short fall, or from a variety of natural causes. In fact, the gravitational force from the impact of a short fall far exceeds the force from shaking, and short falls can result in serious or even fatal head injuries.

Further, the expert said that injury biomechanics confirmed that when a child is manually shaken, he or she will suffer a neck injury or gripping-style chest injuries well before sustaining a subdural hematoma or retinal hemorrhage.

They said that Brenden's injuries were consistent with a short fall from the couch onto the coffee table or the floor and inconsistent with abusive shaking. The experts said that Dr. Gilmer-Hill had misrepresented the findings in Dr. Duhaime's study and gave the jury incorrect information regarding the biomechanics of infant head injury, short distance falls, and abusive shaking. They also noted that Dr. Gilmer-Hill's apparent misapprehension of the literature on SBS and pediatric head injury likely stemmed, at least in part, from her limited focus on American neurosurgical literature at the exclusion of international literature and literature from other disciplines, including pathology, pediatrics, and biomechanics. Each of the experts noted that criticisms of SBS (or Dr. Gilmer-Hill's understanding thereof) existed at the time of Ceasor's December 2005 trial or earlier, and Drs. Plunkett and Van Ee expressly stated that they would have offered the opinions included in their respective affidavits if they had been asked to testify at trial.

In addition, the attorneys presented affidavits from Ceasor and his uncle—who had accompanied Ceasor to each of his meetings with his trial defense attorney, Lord. During the meetings, Lord said they would need an expert witness "in order to succeed at trial due to the complexity of the medical issues involved" in his case. Lord, after consulting with Dr. Bandak, told Ceasor that Ceasor owed Dr. Bandak $1,500 for this initial consultation and would need to pay an additional fee of at least $10,000 in order to compensate Dr. Bandak for testifying at trial. 

When Ceasor said he could not afford these fees because he had already exhausted his and his family's financial resources, Lord "refused to entertain other options for expert testimony" and, as a result, "never retained an expert for . . . trial,” the affidavits said. In addition, Lord failed to pursue "other avenues to attain an expert for [Ceasor], such as petitioning the court for fees for an expert due to [Ceasor's] indigency." 

Ceasor’s legal team argued that his appellate lawyer had also provided an inadequate legal defense by failing to request that Ceasor’s case be remanded for a hearing on the claim that the defense lawyer failed to call an expert. 

In January 2015, U.S. District Judge John Corbett O’Meara denied the habeas petition. Judge O’Meara ruled that while Ceasor’s appellate attorney did not ask for the case to be remanded, he had made an argument that Ceasor had an unfair trial because no expert testified on his behalf. Judge O’Meara said that Ceasor failed to show that if a remand request had been made that it would have been granted or that the Michigan Court of Appeals would have reversed his conviction had such a hearing been held. The judge noted that Ceasor “has failed to show that the Michigan Court of Appeals would have found trial counsel to be ineffective.”

Judge O’Meara also said although Ceasor’s trial defense attorney “did not present an expert on Shaken Baby Syndrome, trial counsel extensively cross-examined Dr. Gilmer-Hill about her findings and confronted her with literature from a number of doctors, including from several experts whom [Ceasor] claims supports his position, which challenge the science on Shaken Baby Syndrome.” The decision to defend the case through cross-examination rather than by presenting an expert was “a reasonable trial strategy,” Judge O’Meara ruled.

Moran, joined by Innocence Clinic attorney Imran Syed, appealed. (In 2013, McCormack was elected to the Michigan Supreme Court.) On July 1, 2016, the U.S. Court of Appeals for the 6th Circuit reversed Judge O’Meara. The court ordered a hearing be held on the merits of Ceasor’s claim that Lord provided an inadequate legal defense by failing to present an expert. In May 2017, Judge O’Meara signed an order based on an agreement between Ceasor’s legal team and attorneys for the state of Michigan that instead of a hearing, Ceasor should be allowed to pursue relief in the state court.

On July 17, 2017, Ceasor’s lawyers filed a motion for a new trial in the St. Clair County Circuit Court claiming that Ceasor’s lawyer should have requested funds from the court to hire an expert witness prior to Ceasor’s trial.

A hearing was held in September 2017, and on February 1, 2018, Circuit Court Judge Michael West denied the motion for a new trial. Judge West said that it was not unreasonable for Lord to assume that a request for public funds would be denied because he was privately retained. Judge West noted that attorney Lord was “in a box” when he learned “at the 11th hour” that Ceasor’s family had no more money. Lord had testified, Judge West noted, that Ceasor agreed to move to trial without an expert “and accept the associated risks.”

Ceasor’s legal team appealed and in May 2019, the Michigan Court of Appeals affirmed Judge West’s ruling. 

Ceasor’s lawyers asked the Michigan Supreme Court for leave to appeal. On May 5, the Michigan Supreme Court said that rather than allow an appeal, it would reverse the Michigan Court of Appeals. 

“By failing to request public funds for an expert based on a mistaken belief that the defendant did not qualify for those funds because he had retained counsel, counsel performed deficiently,” the court ruled. The court set aside Ceasor’s conviction and ordered a new trial.

Following the ruling, Moran declared, “This is all about clearing his name. He has a child abuse conviction on his record.”

On September 30, 2021, the prosecution dismissed the case rather than go to a retrial.

Moran said, “After 12 solid years of continuous litigation where we bounced from state court to federal court and back, Terry is now finally exonerated in a case where his girlfriend's toddler fell off of a couch in 2004 and suffered a concussion, from which he fully recovered in a few days.""

The entire entry can be read at:

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6043

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;

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FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Thursday, October 21, 2021

Part Seven: Flawed Pathologist: Marc Krouse: Texas; Turmoil in Tarrant County: The Jose Moreno Case...“I’m still pretty angry,” Kristina Moreno said. “My dad was only 57 years old.” His death was recorded as a homicide. The cause listed: “Complications of Paraplegia due to Remote Gunshot Wound”, but the family found out Wednesday that may not be accurate and want answers. “You’re supposed to give people closure and give people answers and you just went halfway to do it,” Morales said. The Tarrant County Medical Examiner’s office audited the work of Deputy Medical Examiner Dr. Marc Krouse after the body of Alfredo Oliveras had to be exhumed for a new autopsy because Krouse missed a bullet and ankle monitor in his report. Krouse’s attorney disputes that a mistake was made."...The audit says Moreno’s case was one with the most "egregious" errors. It says Krouse failed to review records from Moreno’s primary care physician, failed to review hospital records and failed to review the police report, and it says he took one x-ray that didn’t show the bullet left behind from shooting. “How do you consciously just not do that?,” Kristina Moreno said. Because of what’s listed as “a lack of due diligence” the report says Moreno’s cause of death “is not supported by source documents examined”. “I just want to know where his head was at the time,” Morales said. “Why were you not giving us closure? Why are you letting this happen? You’re responsible and we want answers.” The family never got a call about the audit or the new information. They found out from news stories online and now have even more question. “How are you going to right this wrong?,” Moreno said. “I don’t like when you try to sweep something under the rug.”


QUOTE OF THE DAY: "State District Judge George Gallagher appointed the Dallas County District Attorney’s Office to do an independent, investigation of Krouse’s work. “Someone needs to be held accountable,” Moreno said. “I do want answers of what happened,” Morales said. After tragedy, there’s an effort to try to understand and heal. Moreno’s family is starting that process again. No one knows if other families may have to do the same. “What is the medical examiner’s office going to do to put these fail safes in check where this doesn’t happen anymore at all,” Moreno said."

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STORY: "Family, attorneys react after audit finds Tarrant County Deputy Attorney made errors of 27 of 41 homicides," WFAA ABC 8, (Reporter William Joy) reports, on April 1, 2021.

SUB-HEADING: "Dr. Marc Krouse is being fired after the Medical Examiner's Office  suspended him for errors. Hiss attorney says there's been a rush to judgment.

GIST: "Jose Moreno was 28 when he was shot and instantly paralyzed from the waist down.


“He was shot November 7, 1990,” his daughter Kristina Moreno said. “There’s nothing about that day that I don’t forget. The smells. The tubes. The doctors. The nurses.”


Jose’s sister Vanessa Morales and his daughter Kristina were helped care for him until he passed away suddenly in February of 2020.


“I’m still pretty angry,” Kristina Moreno said. “My dad was only 57 years old.”

His death was recorded as a homicide. The cause listed: “Complications of Paraplegia due to Remote Gunshot Wound”, but the family found out Wednesday that may not be accurate and want answers.


“You’re supposed to give people closure and give people answers and you just went halfway to do it,” Morales said.


The Tarrant County Medical Examiner’s office audited the work of Deputy Medical Examiner Dr. Marc Krouse after the body of Alfredo Oliveras had to be exhumed for a new autopsy because Krouse missed a bullet and ankle monitor in his report. Krouse’s attorney disputes that a mistake was made.


The audit performed by Chief Medical Examiner Dr. Nizam Peerwani looked at 41 homicide cases Krouse worked on in 2020 until he was suspended in November and found omissions, lapses, and failures to obtain all necessary records in 27 of the 41 cases.


“I was stunned to hear that there were this many mistakes,” Christy Jack, a defense attorney and partner at Varghese Summersett said.


Jack previously worked as a Tarrant County prosecutor for nearly 25 years.

“I can certainly empathize with what a headache this situation is and will continue to be, for what I would estimate years to come,” she said. “Any homicide case you have has an additional hurdle as a prosecutor that you're going to have to overcome.”


It’s not just current cases she says are concerns. Krouse has been at the medical examiner’s office for roughly 40 years and Jack believes hundreds of cases could be impacted.


“I think the ramifications cannot be overstated” she said. “The prosecutor’s office publicly is going to downplay the significance of the findings in the audit. But privately I think there is a tremendous concern.


“It is our legal and ethical obligation to provide Dr. Peerwani’s audit to defense attorneys,” the Tarrant County District Attorney’s office said in a statement. “That is what we’ve done. Moving forward, defense attorneys have the right to ask trial judges if they can question witnesses about the audit. The judges will decide if the information is admissible.”


While the audit looked at Tarrant County cases, the Tarrant County Medical Examiner’s Office includes Tarrant County, Denton County, Parker County and Johnson County.


The audit says Moreno’s case was one with the most "egregious" errors. It says Krouse failed to review records from Moreno’s primary care physician, failed to review hospital records and failed to review the police report, and it says he took one x-ray that didn’t show the bullet left behind from shooting.

“How do you consciously just not do that?,” Kristina Moreno said.


Because of what’s listed as “a lack of due diligence” the report says Moreno’s cause of death “is not supported by source documents examined”.


“I just want to know where his head was at the time,” Morales said. “Why were you not giving us closure? Why are you letting this happen? You’re responsible and we want answers.”


The family never got a call about the audit or the new information. They found out from news stories online and now have even more question.


“How are you going to right this wrong?,” Moreno said. “I don’t like when you try to sweep something under the rug.”


Krouse’s attorney, Darrell Keith, says there’s been a rush to judgment and he’s investigating the medical examiner’s office, Chief Medical Examiner Dr. Nizam Peerwani and the commissioner’s court. He said the audit is also not impartial.

A letter from the Tarrant County District Attorney's office says Peerwani suspended Krouse on March 25 and his last day in office will be April 24. 


“Because of an ongoing investigation, the commissioners court made the decision that Dr. Marc Krouse should not be working on any Tarrant County cases and were informed by medical examiner Dr. Nizam Peerwani, that Krouse would be terminated,” Tarrant County Judge Glen Whitley told WFAA Tuesday.


“I'm concerned that the audit itself had a lot of mistakes in it,” Jack said. “It's like who's going to audit the audit?”


State District Judge George Gallagher appointed the Dallas County District Attorney’s Office to do an independent, investigation of Krouse’s work.

“Someone needs to be held accountable,” Moreno said.

“I do want answers of what happened,” Morales said.


After tragedy, there’s an effort to try to understand and heal. Moreno’s family is starting that process again. No one knows if other families may have to do the same.

“What is the medical examiner’s office going to do to put these fail safes in check where this doesn’t happen anymore at all,” Moreno said."

The entire story can be read at: 

https://www.wfaa.com/article/news/local/family-attorneys-react-after-audit-finds-tarrant-county-deputy-medical-examiner-made-errors-in-27-of-41-homicide-cases/287-f4996d1c-bccf-4781-a1da-880b55199e57

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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;

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

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;
-----------------------------------------------------------------------------
FINAL, FINAL, FINAL WORD: “It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.