Thursday, October 29, 2020

Frances Choi: Massachusetts: Arson 'science'. Well, the 'science' may have been right in this case - but there was still an issue as to who caused the fire - and there was another factor in play - a very ugly factor)...The ABA (American Bar Association) Journal story by reporter Debra Cassens Weiss is After Judge cites prosecutor's racist emails, DA declines to retry Asian American woman for murder."


QUOTE ONE OF THE DAY: "In a decision in mid-September, Judge Linda Giles vacated Choy’s 2011 convictions for arson and murder, partly citing evidence that her accuser had admitted that he was the actual perpetrator and that Choy’s trial lawyer had been ineffective. Giles also said newly discovered emails showed racial animus against Choy and her family."

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QUOTE TWO OF THE DAY: "An appellate lawyer for Choy, John Barter, spoke with WBUR. “This may be the first case in the U.S. where a murder conviction has been thrown out because of racism on the part of prosecutors,” Barter said.

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"STORY: After Judge cites prosecutor's racist emails, DA declines to retry Asian American woman for murder," by Senior Writer Debra Cassens Weiss,  published by The ABA Journal on October 5, 2020.

GIST: "Prosecutors said last week they won’t retry a woman convicted of setting a deadly fire after a judge vacated her conviction partly because of racist emails by prosecutors.

Prosecutors dropped charges against Frances Choy, an Asian American woman who was only 17 years old when she was accused of setting a fire to her Brockton, Massachusetts, home in 2003, killing her parents.

The New York Times and WBUR have coverage.

In a decision in mid-September, Judge Linda Giles vacated Choy’s 2011 convictions for arson and murder, partly citing evidence that her accuser had admitted that he was the actual perpetrator and that Choy’s trial lawyer had been ineffective. Giles also said newly discovered emails showed racial animus against Choy and her family.

The Plymouth County prosecutors “exchanged numerous images of Asian people, some accompanied by pejorative comments and some unexplained,” Giles wrote. “They exchanged ‘jokes’ about Asian stereotypes and mocking caricatures of Asians using imperfect English.”

Giles said had she been aware of the “racially and sexually degrading emails” at the time of the trial, she would have removed the prosecutors from the case and declared a mistrial.

Choy was imprisoned for 17 years. Her first two trials had ended with hung juries.

Two prosecutors wrote the emails. One now works in a different district attorney’s office. The other sued over being fired.

An appellate lawyer for Choy, John Barter, spoke with WBUR.

“This may be the first case in the U.S. where a murder conviction has been thrown out because of racism on the part of prosecutors,” Barter said."

The entire story can be read at:

https://www.abajournal.com/news/article/after-judge-cites-prosecutors-racist-emails-da-declines-to-retry-asian-american-woman-for-murder?utm_source=salesforce_300374&utm_medium=email&utm_campaign=tech_monthly&utm_medium=email&utm_source=salesforce_300374&sc_sid=03008628&utm_campaign=&promo=&utm_content=&additional4=&additional5=&sfmc_j=300374&sfmc_s=52704587&sfmc_l=1528&sfmc_jb=454&sfmc_mid=100027443&sfmc_u=8946529

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 (FOR NOW!): "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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Wednesday, October 28, 2020

Anthony Ray Hinton: Alabama. Flawed Ballistics. Free after 30 years on death row, this wrongfully convicted man still believes there is such a thing as 'justice' - and justice requires voting - against Donald Trump - by Reporter Sebastien Duval, published by 'Barons' on October 25, 2020. Produced by Agence France-Presse..."Anthony Ray Hinton, an innocent man, spent 30 years on death row in Alabama because, he says, he was "black and poor." His name finally cleared, he now campaigns for justice -- which he says can only be achieved by beating Donald Trump at the ballot box."


PASSAGE OF THE DAY: "Arrested in July 1985, Hinton was sentenced to death the following year, at the age of 29, for allegedly murdering two employees of fast-food restaurants, killed in separate armed hold-ups in Birmingham, the largest city in the southern state of Alabama. His court-appointed lawyer, Hinton later told talk-show host Oprah Winfrey, had rejected his protestations of innocence, telling him "All of y'all (Blacks) is always doing something, and then saying you didn't do it. There was no fingerprint evidence against Hinton and the testimony of a ballistics expert hired by his attorney was torn apart when it emerged the man was half-blind. Nor did an alibi from Hinton's employer help. He was convicted largely because bullets recovered at the scene appeared to come from a gun owned by Hinton's mother, with whom he lived. "The state of Alabama, in one word, kidnapped me," he said firmly, speaking in his deep, sonorous voice. "Because we have a system that, if you are born Black and poor in America, the system can pretty much do with you as it pleases." 

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PUBLISHER'S NOTE:  In a book review series on this Blog,  I ran the following 'headnote.' "The Sun Does Shine by Anthony Ray Hinton with Lara Love Hardin" – a case involving ballistics - reviewed by Tim Adams..." When (civil rights icon Bryan)  Stevenson took up the case in 1999, he engaged independent firearms experts who unanimously agreed that Hinton’s mother’s gun was not that used in the murders. It took another 16 years of contested litigation, however, for Hinton’s case to be reheard by the Alabama courts, and for his acquittal. During his time in jail, Hinton watched 54 men walk past his door on their way to be executed." Putting the ballistics issues aside for a moment,  it's fair to say that few people could have a better understanding of what 'justice'  means  than an  innocent  man, like Anthony Ray Hinton, who has spent 30 years of his life locked up on death row.  It is  fascinating to note, from this excellent story in 'Barron's', produced for 'Agence France-Presse'  by Sebastien Duval, that he still believes in justice, and that justice requires 'voting' - against Donald Trump.

Harold Levy: Publisher: The Charles Smith Blog.

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STORY: "Wrongly Jailed For 30 Years, Black Alabaman Says Justice Requires Voting,"  by Reporter Sebastien Duval,  produced for Agence France-Presse, published by 'Barrons' on October 25, 2020.

GIST: "Anthony Ray Hinton, an innocent man, spent 30 years on death row in Alabama because, he says, he was "black and poor." His name finally cleared, he now campaigns for justice -- which he says can only be achieved by beating Donald Trump at the ballot box.


The 64-year-old African-American, his hair and beard graying, has mixed memories of the fateful day of April 3, 2015.


After three decades behind bars -- and under constant threat of execution -- he regained his freedom on that day to start the second phase of his life.

"It was like I was walking on clouds" as he fell into the arms of welcoming relatives, he recalled.


But his sense of joy was tempered. "It was good that I was finally free. It was bad that my mother was no longer here on this Earth to see her baby boy walk out of prison."

That day -- which he had dreamed of so often before waking up, innocent, in a claustrophobic "five by seven" foot cell -- finally ended his judicial nightmare.


Arrested in July 1985, Hinton was sentenced to death the following year, at the age of 29, for allegedly murdering two employees of fast-food restaurants, killed in separate armed hold-ups in Birmingham, the largest city in the southern state of Alabama.


His court-appointed lawyer, Hinton later told talk-show host Oprah Winfrey, had rejected his protestations of innocence, telling him "All of y'all (Blacks) is always doing something, and then saying you didn't do it."


There was no fingerprint evidence against Hinton and the testimony of a ballistics expert hired by his attorney was torn apart when it emerged the man was half-blind. Nor did an alibi from Hinton's employer help.


He was convicted largely because bullets recovered at the scene appeared to come from a gun owned by Hinton's mother, with whom he lived.


"The state of Alabama, in one word, kidnapped me," he said firmly, speaking in his deep, sonorous voice. "Because we have a system that, if you are born Black and poor in America, the system can pretty much do with you as it pleases."



Slavery and segregation:


It was not until 1999, when lawyer Bryan Stevenson -- founder of the Equal Justice Initiative (EJI) -- took up Hinton's case that the truth began to emerge. Very, very slowly.



Hinton was to spend another 16 years on death row, saved only by a new ballistics test, an intervention by the US Supreme Court and a second trial.

For years in prison he obsessed over the thought of gaining revenge for his wrongful conviction.


"I would wake up and all I could think about was revenge," he said. But he came to realize that "that's not who I am."


"I can't enjoy even being alive when you've got this much hate for someone," Hinton said, speaking from the EJI offices in a historic building in the city of Montgomery where slaves were once warehoused, after arriving by boat, before being sold.


So "I sat back and I asked the God that I believe in to remove that hatred from me."

Other ghosts of segregation haunt this central Alabama city, a cradle of the equal-rights struggle. It was there, in a celebrated act of civil disobedience, that a quiet but determined Black woman named Rosa Parks refused in 1955 to give up her bus seat to a white passenger.


That simple act catalyzed a historic protest movement that had its echoes this year after the death in Minnesota -- under the knee of a white police officer -- of African-American George Floyd.


But for Hinton, taking to the streets is not enough.


"The best protest, to me, is when you go to that ballot box, November 3," he said. "And when you protest by voting, that's when you send a loud and clear message: We're not going to stand for it anymore."


President Trump, he adds, "had all the opportunity to denounce racism, he had all the opportunity to try and bring the citizens together. If anything, I think he has divided.

"If America is to survive, we only can survive if we get him out of office, November 3."


The entire story can be read at:

https://www.barrons.com/news/wrongly-jailed-for-30-years-black-alabaman-says-justice-requires-voting-01603683605

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PASSAGE OF THE DAY: NATIONAL REGISTRY OF EXONERATIONS ENTRY (BY MAURICE POSSLEY);  "The trial court authorized Hinton’s attorney to spend $1,000 to retain a ballistics expert. The attorney could not get a qualified expert for only $1,000, so instead of requesting more money, the lawyer hired a retired civil engineer whose experience was confined to working with heavy artillery in World War II. The expert had no training or experience in firearms identification, he did not know how to use a microscope to examine bullets, he did not test-fire the gun and he admitted during cross-examination that he was visually impaired—he only had one eye. He testified that the results of his examination were inconclusive."
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The National Registry of Exonerations entry by Maurice Possley can be read at the link below:
"On February 23, 1985, 49-year-old John Davidson, the assistant manager of Mrs. Winner’s fried chicken restaurant in Birmingham, Alabama, was fatally shot in an after-hours robbery. About $2,100 was missing from the safe.

Davidson was still alive when an exterminator came to the restaurant and found him in the restaurant cooler with two gun shot wounds in the head. Davidson died on February 25 following surgery. The two bullets were removed and turned over to police.

On July 2, 1985, 39-year-old Thomas Wayne Vason, the night manager at Captain D’s restaurant in Bessemer, Alabama, was found dead in the restaurant’s cooler. He had been shot twice in the head and $650 was missing from the safe. Two bullets were removed from Vason’s body.

Police investigators said that based on their examination, the bullets in both crimes were fired from the same gun. There were no fingerprints or other items of physical evidence. Police believed that both men were confronted in the parking lots of the restaurants after closing up for the night and that both were ordered back inside and forced to open the safes. Because both men were found shot in the restaurant coolers, the media branded the perpetrator the “Cooler Killer.”

On July 25, 1985, 55-year-old Sidney Smotherman, the night manager of Quincy’s Family Steak House in Bessemer, closed the restaurant and on his way home stopped at a grocery store shortly after midnight. Another restaurant employee, who coincidentally stopped at the same store, later said that a black man appeared to be watching Smotherman while shielding his face.

Smotherman left the store after making a purchase and while driving home, his car was bumped from behind by another car. When he got out, the driver of the other car emerged with a gun. The gunman forced Smotherman to drive the gunman’s car to Quincy’s and go inside and empty the safe. The gunman ordered him to go to the restaurant’s freezer. Smotherman, who was aware of news accounts of the two other restaurant robbery/murders, said he told the gunman he wanted to be in the cooler because it was not as cold. Smotherman knew that he could lock the cooler from the inside. The gunman agreed and when Smotherman walked into the cooler and turned to pull the door shut, the gunman fired two shots. One struck Smotherman in the head, but did not pierce his skull. Instead, the bullet traveled under his skin and exited down his neck and wound up in his shirt pocket. The other bullet took off the end of a finger of his hand that he had raised to try to protect himself and ricocheted into the cooler. As he fell down, Smotherman kicked the door shut and it locked automatically.

Smotherman waited about 10 minutes and then emerged and called police. Police compared the two bullets from this shooting and said their examination showed that all six bullets in the three crimes were fired by the same gun.

An artist for the Bessemer newspaper worked with police and Smotherman to create a composite sketch. Reginald White, an employee of Quincy’s, told police he recognized the sketch as 29-year-old Anthony Hinton, a man he knew from a second job he had in nearby Hoover, Alabama. White said that about two weeks prior, Hinton approached him and asked him if he was still working at Quincy’s. When he said he was, Hinton asked if “Mr. Don” was the manager. White said that he told Hinton that there was a new manager who had just bought a new Fiero automobile. White said Hinton also asked what time the restaurant closed.

The police prepared a photographic lineup for Smotherman, who selected Hinton as the man who robbed and shot him.

On July 31, 1985, police went to Hinton’s home where he lived with his mother. They found an old, very-worn .38-caliber revolver under his mother’s mattress, but failed to find any evidence linking him to the crimes. He was arrested that day and charged with the robbery of Smotherman.

The gun was turned over to the Alabama Department of Forensic Sciences. Examiners test-fired the gun and said that all six bullets from the three crimes were fired by the gun. The police then charged Hinton with capital murder in the deaths of Davison and Vason.

Hinton went to trial in Jefferson County Circuit Court in September 1986 on the capital murder charges. He never went to trial on the robbery and shooting of Smotherman.

Smotherman identified Hinton as the gunman who robbed and shot him. Smotherman’s co-worker identified Hinton as the man he saw following Smotherman in the grocery store. White testified about his conversation with Hinton prior to the robbery and shooting of Smotherman.

The state firearms experts testified that the bullets from all three crimes had been fired from the gun found under Hinton’s mother’s mattress.

The trial court authorized Hinton’s attorney to spend $1,000 to retain a ballistics expert. The attorney could not get a qualified expert for only $1,000, so instead of requesting more money, the lawyer hired a retired civil engineer whose experience was confined to working with heavy artillery in World War II. The expert had no training or experience in firearms identification, he did not know how to use a microscope to examine bullets, he did not test-fire the gun and he admitted during cross-examination that he was visually impaired—he only had one eye. He testified that the results of his examination were inconclusive.

Hinton testified in his own defense and said he was working at a warehouse where employees were locked inside from midnight until 6 a.m. on the night of the robbery and shooting of Smotherman at Quincy’s. He denied involvement in all three crimes. He said he was driving a small red Nissan at the time of the Quincy’s robbery and owned a small yellow Volkswagen—neither of which fit the description of the larger automobile that Smotherman said his attacker was driving.

On September 17, 1986, the jury deliberated for an hour before convicting Hinton of both murders. In December 1986, the jury voted 10-2 to sentence Hinton to death. Hinton had taken a polygraph examination and although the examiner said Hinton showed no deception when he denied involvement in the crimes, the trial judge declined to allow the jury to hear the polygraph results.

His convictions and death sentence were upheld on appeal to the Alabama Court of Appeals and the Alabama Supreme Court. In 1998, Equal Justice Initiative, a non-profit organization in Alabama that provides legal assistance to indigent defendants and prisoners, began representing Hinton.

In 2002, EJI commissioned a re-examination of the bullets and gun by three different experts. One was a forensic consultant named John Dillon, who had worked on ballistics identification at the Federal Bureau of Investigation’s forensics laboratory and, from 1988 until he retired in 1994, had been a chief in the identification unit at FBI headquarters in Quantico. The other two experts had worked for many years as firearms examiners at the Dallas County Crime Laboratory and had each testified as experts in several hundred cases. All three experts examined the physical evidence and testified that they could not conclude that any of the six bullets had been fired from the revolver.

The prosecution’s response was to ignore the findings and argue that the EJI experts essentially said the same thing that Hinton’s ballistic examiner said at trial—that the results were inconclusive.

In February 2014, the U.S. Supreme Court vacated Hinton’s conviction and death sentence and ordered a new trial. The Court ruled that Hinton’s trial lawyer had provided a constitutionally inadequate legal defense by failing to seek more money to obtain a qualified ballistics expert.

The Court also held that the trial judge had been mistaken when he said the defense was entitled to only $1,000 for an expert. The statute relating to such expenses, which at one time had a $1,000 cap, had been amended prior to Hinton’s trial to allow for “any expenses reasonably incurred” as long as the expenses were approved in advance by the trial judge.

Subsequently, in preparation for a retrial, the prosecution had new experts re-examine the bullets and gun. The prosecution experts also concluded that they could not link the bullets from the victims to the gun found in Hinton’s home.

On April 2, 2015, a judge granted the motion by the Jefferson County District Attorney to dismiss the charges and Hinton was released. Efforts to pass legislation in 2017 approving compensation for Hinton failed.

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4669


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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 (FOR NOW!): "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;
-------------------------
Tune into The Charles Smith Blog at:
http://www.smithforensic.blogspot.com
-------------------------------- 
Tune into 'The Selfless Warriors Blog," at:
selflesswarriors.blogspot.com
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Tuesday, October 27, 2020

Calvin Hoover: Guy Paul Morin: Toronto police recently announced they had identified him as the killer of 9-year-old Christine Jessop in 1984 using genetic geneology: Now, the Toronto Star reports, in a story by Reporter Wendy Gillis, that "Innocence Canada on Monday called for an independent, “carefully targeted” review into how the Durham Regional Police Service and then, years later, the Toronto police “failed to long ago detect and investigate” the now-deceased Hoover as a viable suspect in the nine-year-old’s slaying, a killing that led to the high-profile wrongful conviction of Guy Paul Morin."

QUOTE OF THE DAY: "Joanne McLean, one of Morin’s lawyers and a member of Innocence Canada, said the organization regularly gives police training on how to avoid wrongful convictions. It’s worthwhile to understand why Hoover was not on the radar earlier, she said.


“It was stunning to learn, 36 years after Christine Jessop was murdered, and 25 years after Guy Paul Morin’s exoneration based on DNA testing, that multiple police investigators on multiple police forces failed to follow up on the Jessop family friend whose existence was known to investigators,” McLean said."

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PASSAGE OF THE DAY: "As someone within the Jessop family’s social circle, Calvin Hoover should have been “identified early on as someone else deserving of close police scrutiny,” Innocence Canada said in a statement Monday. “The failure to home in on him and closely examine his alibi for the day of Christine’s abduction… has led to decades of indescribable agony for Mr. Morin and his family, and for the Jessop family.”

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STORY: "How did police miss Calvin Hoover during lengthy Christine Jessop investigation? Group for the wrongly convicted calls for 'targeted' review," by reporter Wendy Gillis, published by The Toronto Star on October 27, 2020.

GIST: "In the wake of the sudden announcement that Christine Jessop’s 1984 murder has been solved, a Canadian organization that advocates for the wrongly convicted is calling for further review of police handling of the case — and how presumed killer Calvin Hoover evaded scrutiny for over three decades.


Innocence Canada on Monday called for an independent, “carefully targeted” review into how the Durham Regional Police Service and then, years later, the Toronto police “failed to long ago detect and investigate” the now-deceased Hoover as a viable suspect in the nine-year-old’s slaying, a killing that led to the high-profile wrongful conviction of Guy Paul Morin.


Hoover, who died by suicide in 2015, was a family acquaintance of the Jessops, his now ex-wife once a good friend of Jessop’s mother, Janet. Earlier this month, Toronto Police Service (TPS) announced Hoover as Jessop’s presumed killer after linking his DNA to a semen stain left on Jessop’s underwear using the new investigative technique of genetic genealogy.


Toronto police confirmed Hoover was never before considered a suspect, but he was in the investigative file as someone who had access to Jessop.


After releasing Hoover’s photograph and receiving dozens of tips from the public, police have launched a tip line about Hoover’s actions around the time of Jessop’s death up until his 2015 suicide. Police are examining the possibility he may be linked to other unsolved crimes.


As someone within the Jessop family’s social circle, Calvin Hoover should have been “identified early on as someone else deserving of close police scrutiny,” Innocence Canada said in a statement Monday.


“The failure to home in on him and closely examine his alibi for the day of Christine’s abduction… has led to decades of indescribable agony for Mr. Morin and his family, and for the Jessop family.”


Jessop disappeared from the Queensville, Ont., family home on Oct. 3, 1984, her body found three months later in a field in Durham region. Morin, who was the Jessop family neighbour, quickly became a suspect and was charged and convicted of murder by Durham police investigators before being exonerated by DNA evidence in 1995.


That same year, Toronto police took over the investigation, launching a task force to re-investigate the killing that saw detectives interview 300 people and obtain DNA samples from scores of men to compare against a semen stain left on Jessop’s underwear. The task force disbanded in 1998.


Morin’s wrongful conviction launched a public inquiry that resulted in a scathing 1998 report by commissioner and former Quebec Court of Appeal Justice Fred Kaufman, which concluded Morin was failed in part by police and prosecutor tunnel vision, which saw officials fixated on Morin at the expense of probing other suspects.


Now that police have identified Hoover, “invaluable lessons can and must be extracted from this 36-year debacle to provide guidance to future investigations,” Innocence Canada’s statement said, stressing the importance of “rigorously adhering to elementary, methodical investigative steps.”


Dave Selby, a spokesperson for Durham police, said last week that he was not aware of plans to review officers’ handling of the case in light of Hoover’s identification as the likely killer, saying the “people who were involved with the original investigation are either deceased or retired.”


Asked about Innocence Canada’s calls for further review Monday, Selby said Durham police “would participate, of course. As you know, TPS is the lead agency on the file now.”


Asked at a press conference whether Hoover could have been caught earlier, interim Toronto police chief James Ramer confirmed Hoover was “not a suspect at the time.”

“But anything else would be pure speculation on my part and I’m not prepared to comment on it,” Ramer said.


Meaghan Gray, a spokesperson for the Toronto police, said Monday that “we understand the position put forth by Innocence Canada.”


“Should an independent third-party review of the original TPS investigation be ordered, we will cooperate to the fullest extent the law allows. In the meantime, we will continue to actively investigate this case,” Gray said.


Innocence Canada said the funding and structure of any future review would be the responsibility of Ontario’s Ministry of the Attorney General. On Monday, after being asked about a possible review, a spokesperson for the ministry said it is “premature to consider a public inquiry” while Toronto police continues its investigation.


“Public inquiries are usually established when there is no other effective mechanism to examine an issue. For these reasons, it would be inappropriate to comment further at this time,” a MAG spokesperson said.


Kirk Makin, co-president of Innocence Canada and a former Globe and Mail reporter who wrote “Redrum the Innocent,” a book on the Jessop case, stressed that a further review of how police failed to identify Hoover earlier “would in no way duplicate” the Kaufman review, but could be done through a cost-efficient review.


Innocence Canada said such a review has recently been launched in Nova Scotia, into the wrongful conviction of Glen Assoun, a Halifax man who spent nearly 17 years in jail for a 1995 murder before the conviction was overturned last year. Earlier this month, Nova Scotia’s police watchdog announced it has asked British Columbia’s Independent Investigative Office to review the actions of a joint RCMP-Halifax police unit in connection to the case.


Joanne McLean, one of Morin’s lawyers and a member of Innocence Canada, said the organization regularly gives police training on how to avoid wrongful convictions. It’s worthwhile to understand why Hoover was not on the radar earlier, she said.


“It was stunning to learn, 36 years after Christine Jessop was murdered, and 25 years after Guy Paul Morin’s exoneration based on DNA testing, that multiple police investigators on multiple police forces failed to follow up on the Jessop family friend whose existence was known to investigators,” McLean said.


Kenney Jessop, Christine’s brother, said in an interview earlier this month that Hoover may have been among a select few who knew Jessop would be alone at the family’s home on the day Christine disappeared.

With Star file


The entire story can be read at:


https://www.thestar.com/news/gta/2020/10/26/how-did-police-miss-calvin-hoover-during-lengthy-christine-jessop-investigation-group-for-the-wrongly-convicted-calls-for-targeted-review.html

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

Monday, October 26, 2020

Lydell Grant: Texas: Perplexing case is subject of blistering Texas Monthly article by stellar journalist Michael Hall, headed: "It's the most outrageous thing I've ever seen. It makes no sense."


NOTICE: Check out the  new (weekly)  post on my  'Selfless Warriors Blog' released earlier today today at the link below: "Gloria Killian, an innocent person who spent more than 16 years wrongfully in prison was telling the truth when  she protested from the outset that she knew nothing about the horrifying crime. She had been caught in a web of lies spun by an addict who implicated her in order to protect his wife from being prosecuted for her role in the crime. None of the 'real'  evidence in the case  implicated Gloria. But she had been convicted, lost her appeal, and lost hope, resigned to spending much of the rest of her life behind bars.  It was game over - the  rest of her life likely in prison  - until "a petite white-haired woman with piercing blue eyes"  came along. It was Joyce Ride. A truly 'Selfless Warrior.' "


selflesswarriors.blogspot.com


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BACKGROUND: "Then there's Lydell Grant: Falsely convicted despite a legitimate alibi, based on multiple eyewitnesses' testimony which DNA results later contradicted. The Texas Court of Criminal Appeals wants the witnesses re-questioned, even though DNA evidence contradicted their recollections and the person the DNA matched has confessed to the crime! In essence, Texas' court system would rather uphold a bad conviction than free an innocent man, and it's hardly the first time." (Grits For Breakfast).



https://gritsforbreakfast.blogspot.com/2020/10/four-stories-let-public-peer-into-soul.html


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STORY: "It's  the most outrageous thing I've ever seen. It makes no sense," by  reporter Michael Hall, published by Texas Monthly, on October 21, 2020.


SUB-HEADING:"DNA evidence proved Lydell Grant's innocence. So why won't the state's highest court exonerate him?


GIST: (This is a massive, complex, multi-layered story that deserves to be read in its entirety. Here is a taste: "The reaction was swift. The Houston Chronicle called the decision  (to re-question witnesses) “shameful.” Ware  (Mike Ware, the executive director of the Innocence Project of Texas) said  he had never seen anything like it. “The trial judge, DA, and police chief—each of them says he’s innocent. All of a sudden, the judges are ignoring DNA, questioning its validity as a science, and they want the trial court to get the witnesses to recant. It’s the most outrageous thing I’ve ever seen. It makes no sense.” The DNA scientist Ambers was flummoxed (“I don’t know what else Grant could do—it doesn’t get any more definitive than that”), as were prosecutors in the Harris County DA’s office. They noted that the CCA’s order made it harder to prosecute Carter, who, based on the new DNA evidence and his statements to police, they regard as actually guilty of the murder. Multiple former CCA judges were outraged. “Lydell Grant has overwhelming evidence on his side,” said Elsa Alcala, a judge on the court from 2011 to 2018. “This is beyond reasonable doubt. This is beyond all doubt. There’s no rational explanation for the court’s action.” Alcala acknowledged that the spring was a chaotic, terrible time for the court. “But I don’t cut the CCA any slack. The Texas Supreme Court cleared its docket.” Cathy Cochran, who served on the CCA from 2001 to 2014 after working as both a prosecutor and defense attorney, said, “Another remand further delays justice for the obviously innocent Lydell Grant, and it insults the diligence of the trial judge, the DA, and law enforcement in righting this.” ................................In spite of all his experiences, Grant remains upbeat, certain the CCA will exonerate him. He has thought often about the compensation, part of which he plans to use to buy a truck and a trailer and start a trash-hauling business. “I love trucks. All my buddies at the chemical plants had trucks.” But one song he thinks could actually be a hit is a rap he wrote soon after being released. He had just had dinner at his brother Alonzo’s house, and he was sitting at the dining room table when he began spontaneously humming a beat. He found himself singing the words “I’m not guilty.” That phrase wasn’t exactly right, though. He revised it, and began repeating a new line, almost like a mantra. Soon a melody arose. He turned the new phrase over in his mind, and then pulled out a pen and paper as more words came to him. The lyrics captured the story of his life: from arrest, to trial, to prison, to freedom. Some of the lines he conjured were philosophical: “Whatever’s done in the dark, it shall surface.” Others were inspirational: “Never give up!” Still others revealed Grant’s love of rhyme and wordplay. “I don’t need the stress,” he wrote, “I’m like, what’s next? Mike Ware and the Innocence Project!” Grant sat at the table for hours, toying with rhymes, writing, rewriting, remembering. Just before sunrise, he finished. Heading off to bed, he ran through the song one more time, three long verses and a melodic chorus that was as simple and as true as he could possibly make it. “I’m actually innocent,” sang Lydell Grant, “ ’cause I didn’t do it.”"

 

The entire story can be read at:

https://www.texasmonthly.com/articles/dna-evidence-proved-lydell-grants-innocence/


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 (FOR NOW!): "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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Sunday, October 25, 2020

Jason Lively: West Virginia: (Part Three): Junk arson 'science.'...Scholars expose a dangerous paradox in a highly readable academic article nicely headed: "Evidence on Fire."..."This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases, notwithstanding that both criminal and civil courts are required to operate under the same exclusionary rules for expert evidence."


PASSAGE OF THE DAY: "Fire science, as it became known along its “progression from magic to science,” is one of several forensic disciplines that has historically generated inaccurate expert evidence. Our research indicates, however, that while civil courts closely scrutinize and often exclude unreliable fire-science evidence, criminal courts routinely allow it to go to the jury."

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PERIODICAL ARTICLE: "Evidence on Fire," by Valeena A. Beety and Jennifer D. Oliva, published in the NCL Review. (Thanks to  Dr. Michael Bowers of CSIDDS - Forensics and Law in Focus -  for bringing this important article to our attention.)

GIST: Précised:  "Fire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now- debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases, notwithstanding that both criminal and civil courts are required to operate under the same exclusionary rules for expert evidence."

GIST: "Human beings have long been fascinated by the awesome and unforgiveable power of fire. From old southern stories about barn burners  to The Confession Tapes’ chronicles of false confessions to murder by arson,  fire investigations evoke the worst of human imagination. Playing off the evocative and destructive power of fire, fire experts historically conjured up pseudomagical powers in the courtroom, regaling jurors with investigatory findings that were “more art than science” and with stories about accelerant-detection dogs’ supercanine olfactory abilities, which enabled them to pinpoint a fire’s origin. The fire “expert,” imbued with gravitas due to his uncanny ability to understand the mysteries of the element, easily awes and persuades a Western jury, which, as studies have noted, is largely composed of individuals unfamiliar with how to start, maintain, or use fire.  As Professor Paul Giannelli has explained, For decades arson investigators came from the “old school” of investigators—those who used intuition and a number of rules of thumb to determine whether a fire was incendiary. Critics complained that instead of being rooted in science, the approach was based on folklore that had been passed down from generation to generation—without any empirical testing. A government report noted, as early as 1977, that common arson indicators had “received little or no scientific testing” and that “[t]here appears to be no published material in the scientific literature to substantiate their validity.” Such rules of thumb include numerous scientifically debunked myths, such as accelerant-provoked fires burn hotter and faster than incendiary fires and crazed glass indicates arson. Unfortunately, these and numerous other arson-indicator-related myths were published and preserved in two widely referenced fire-science resources: Arson and Arson Investigation Survey and Assessment and Fire Investigation Handbook Continued reliance on these unreliable resources provoked the American Association for the Advancement of Science (“AAAS”) to characterize fire investigation as a field inundated with a “widespread, persistent, and problematic literature affecting the beliefs and the behavior of practitioners.”  Fire science, as it became known along its “progression from magic to science,” is one of several forensic disciplines that has historically generated inaccurate expert evidence.  Our research indicates, however, that while civil courts closely scrutinize and often exclude unreliable fire-science evidence, criminal courts routinely allow it to go to the jury."

The entire article can be read at:

https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=6713&context=nclr

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 (FOR NOW!): "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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Saturday, October 24, 2020

Jason Lively: Virginia: (Part 2): Junk (outdated) arson 'science.' A well crafted 'heading' from the Washington Post - especially the last four words..."A flawed investigation left Jason Lively behind bars for a fire he did not set. He is not alone."


PUBLISHER'S NOTE: "This excellent Washington Post story by  reporter Rachel Chason is a reminder that over the decades many innocent people have been convicted of arson and related offences because of antiquated science. A prime example is Cameron Todd Willingham - the subject of many posts on this Blog over the years - who, sadly,  was put to death by the State of Texas acting on junk science. Reporter Chason introduces us to the case of Samuel Anstey, also from West Virginia (like Jason Lively) who is still in prison seeking commutation.  I will be following the Anstey case closely. Congrats to the West Virginia Innocence Project for the fine representation it provided to Mr. Lively on this difficult case. Congrats as well Craig Beyler, the scientist,  Sid Bell, the former prosecutor, who made a terrible mistake but did his best ultimately to correct to it  and to the pro bono members of the legal  team. 

Harold Levy: Publisher; The Charles Smith Blog.

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PASSAGE OF THE DAY: "The 2005 fire dominated local news coverage and later became the subject of a book and a true crime documentaryBut the fire-related evidence proved faulty, based on outdated science and what the state’s own experts eventually concluded was a fundamentally flawed investigation. For years after the errors were discovered, Lively remained behind bars, due to a lackluster defense, delays and legal missteps. Advocates say his case illustrates a devastatingly common miscarriage of justice, especially in poor, rural swaths of the country, where defense attorneys are frequently underfunded and fire investigators often lack education and advanced training."

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QUOTE OF THE DAY: "Everything, he said, felt like a dream. The first thing he wanted to do was eat a steak at his mother’s house. Then get out of West Virginia, marry Blankenship and begin a new life. But first, he had a question for his lawyer. “When,” he asked George, “are you going to help the next one?"

STORY: "A flawed investigation left Jason Lively behind bars for a fire he did not set.  He is not alone," by reporter Rachel Chason, published  by The Washington Post, on October 22, 2020.

GIST: "The sofa was still burning when firefighters burst into the house. Upstairs, flames that had consumed the bed were already out. Ebb "Doc" Whitley was no longer breathing.

The fire marshal concluded the blaze was deliberately set. Soon, investigators charged Charles “Jason” Lively with killing Whitley, a paraplegic and the revered only doctor in this small town.


Evidence included burn patterns on the first and second floor of Whitley’s house, and chemicals found in the charred remains after the fire. The prosecutor also cited the defendant’s history of fighting, and a witness who claimed that Lively’s mother, a nurse who worked with Whitley for 25 years, had vowed to kill the doctor during an explosive argument the night before the fire.


A jury found Lively, then 29, guilty of first-degree murder.



The 2005 fire dominated local news coverage and later became the subject of a book and a true crime documentary.


But the fire-related evidence proved faulty, based on outdated science and what the state’s own experts eventually concluded was a fundamentally flawed investigation. For years after the errors were discovered, Lively remained behind bars, due to a lackluster defense, delays and legal missteps.


Advocates say his case illustrates a devastatingly common miscarriage of justice, especially in poor, rural swaths of the country, where defense attorneys are frequently underfunded and fire investigators often lack education and advanced training.


In West Virginia, in the same prison in which Lively would spend nearly 15 years, there is another inmate whose sentence is based on a similarly problematic fire investigation, according to his lawyers. A Virginia man is fighting to prove his innocence in a different deadly blaze, aided by Lively’s most recent legal team. And in Texas, a man was executed in 2004 despite evidence he did not set the fire that killed his three children.


The Texas case helped begin the slow unraveling of Lively’s conviction, a process that culminated this fall in a West Virginia courtroom, when he and his family gathered to hear a judge decide, once and for all, his fate.


The facts of the case


The work of figuring out how fires start in America can be done by fire marshals, police officers or other first responders, depending on the size of the blaze and where it occurs.


There are no national proficiency tests or education requirements for such positions.

It was deputy state fire marshal Robert Bailey who arrived in tiny, close-knit Iaeger (pop. 305) on that March morning in 2005 to investigate the fire at Whitley’s house. Bailey had a high school education and had been with the office for about 10 months. He had attended some fire investigation classes taught by the state fire marshal; before Lively’s trial, he would complete a two-week training at the National Fire Academy.


In the living room, Bailey found the fire had burned the couch, a coffee table and the fireplace mantle. In the bedroom, flames had eaten through the thick wooden floor joists and the subfloor, damaging the bed, a table and the ceiling.


Based on what he saw, Bailey concluded that two fires had been deliberately set. The fire upstairs, he determined, was started using a liquid accelerant that contained toluene, a component that was found in one of 12 samples he collected. He believed the fire downstairs was set with an open flame to the sofa.


He and other investigators explained their findings to Sid Bell, the elected prosecutor in McDowell County since 1993, who soon named Lively as the lead suspect.

Bell had moved to the county in the 1970s to work as a reporter at a local newspaper and stayed after graduating law school. He had prosecuted Lively in other cases, most related to fighting. Even today, he describes Lively as “no angel.” It’s a characterization Lively doesn’t dispute.


Smart, charming and athletic, Lively never cared much for school. He worked in the coal mines and struggled after his father, a small-time drug dealer, died in a car accident. After a leg injury in high school, Lively started using drugs himself.


At his trial, Bailey outlined how he thought the fire started. The local bank president described Whitley’s fight with Lively’s mother. A pawnshop employee said Lively sold Whitley’s computer the day the doctor died.


Two witnesses placed Lively and his friend and co-defendant, Tommy Owens, at Whitley’s house on the morning of the fire. But Lively said he only arrived after Whitley died, and in fact ran into the house in a futile attempt to save him.


Lively’s lawyer, chief public defender Floyd Anderson, called an insurance company employee who testified that the fire’s cause was undetermined. But Anderson did not call an outside fire expert to refute Bailey’s conclusion that the fire was “willful and malicious in nature, set in order to burn the structure.”


Instead he argued that Whitley and Lively’s mother had been so close that neither she nor her son would ever hurt the doctor.


Anderson questioned the credibility of one witness, a jailhouse informant, and noted that another recanted on the stand, saying he’d been coerced by police.


The doubt:


Two months after Lively’s conviction, it was Owens’s turn to face a jury. They deliberated just 28 minutes before acquitting him of any role in the fatal fire.


A key reason appears to have been contradictory testimony by Bailey and another fire investigator. As he had in Lively’s trial, Bailey suggested the two fires were separately set. The other fire marshal, however, said there was just one blaze.


Bell, who prosecuted both cases, says he still believed Lively was guilty, based on the other evidence presented at trial. But he found himself wondering about Bailey’s conclusions.


His doubts grew larger three years later, after he read a New Yorker article about Todd Willingham, an unemployed auto mechanic from Texas who was sentenced to death for starting a fire that killed his three young daughters in 1991.


Investigators wrongly said puddle-shaped char patterns on the floor, and spider-web-like patterns on the windows, showed the fire burned “fast and hot” and thus must have been set by an accelerant.


The article detailed how a friend of Willingham’s, convinced of his innocence, asked acclaimed fire investigator Gerald Hurst to review the evidence.


Hurst, a chemist trained at Cambridge University in England, said there was little doubt the fire was accidental, likely caused by a space heater or faulty electrical wire. Accelerants don’t make fires burn hotter, he wrote, and the theory about patterns on the glass indicating an accelerant is nothing more than an “old wives’ tale.”


The Texas governor’s office and the Board of Pardons and Paroles received Hurst’s report, which said an innocent man was about to be put to death based on “junk science.” But it is not clear whether they read it.


Willingham was executed on Feb. 17, 2004, in Huntsville, Tex. He was 36.


After his execution, the state of Texas became one of a handful of states to create an independent agency to investigate forensic cases in which misconduct is alleged. That group found in 2010 that Willingham had been executed following a flawed investigation and “despite there being no reliable evidence of his guilt.”


Willingham has never been officially exonerated, and the prosecutor in his case stands by the conviction.


A few years after the New Yorker article published, Lively filed a habeas corpus petition asking West Virginia to review the evidence in his case.


Bell, at this point serving his fifth and final term as prosecutor, made an unusual request: funding to hire an outside expert after a conviction. He hoped Craig Beyler, a Harvard-trained fire expert who reviewed the Willingham case for the commission in Texas, would confirm Bailey’s finding in Whitley’s death and put Bell’s conscience at ease.


That’s not what happened.


Beyler concluded that the fire in Whitley’s house was not set intentionally and was electrical in origin, starting below the subfloor.


The upstairs blaze would have taken hours to burn through the wooden floor joists, he said. The sofa fire, on the other hand, had been burning for mere minutes, likely sparked by an ember from the fire upstairs.


If it was arson, Beyler reasoned, Lively and Owens would have had to wait in the house as it filled with smoke from the upstairs fire, then ignited the sofa on fire on their way out.

Further dismantling Bailey’s theory, Beyler found, was that the hole in the hardwood floor was smaller than the hole in the subfloor. That meant the second-floor blaze could not possibly have been set with an accelerant from above.


Bell turned the report over to Lively’s defense lawyers, as prosecutors are required to do, labeling parts of it “clearly exculpatory.”


Beyler says he assumed the longtime prisoner would be exonerated.


Mistakes and delays:


The habeas hearing, on Feb. 20, 2013, was an opportunity for Lively’s lawyers to introduce new evidence to prove his innocence. Many prisoners never get that chance.


Consider the case of Samuel Anstey, jailed since 1995 in Mount Olive Correctional Facility, the same place Lively was held, after being convicted of rigging a toaster to ignite a fire that killed his grandmother.


Anstey maintained he was innocent. His case drew the attention of the West Virginia Innocence Project, part of a national network of legal clinics that aims to free wrongfully convicted people. The group asked Hurst, the Cambridge-trained scientist, to get involved.

He determined that investigators did not meet national guidelines for arson probes set in the early 1990s, and that the volunteer firefighter who launched the investigation tampered with the evidence — moving the toaster from its original location, moving its plunger up and down and turning off the electrical breakers.


The cause of the fire, Hurst wrote, could not be determined.


But West Virginia’s highest court denied Anstey’s request for a hearing, ruling that because the state had never adopted the national fire-investigation guidelines, the question of whether this probe met those standards was irrelevant.


Anstey, now 61, remains in prison, without much hope of getting out barring a commutation of his sentence from the governor.


“I had hope but I’ve pretty much lost it,” he said in a recent interview. “I said it’s in God’s hands. But I’ve been wavering with that.”


More than half of all wrongful criminal convictions are caused by government misconduct, study finds


Lively, too, grew despondent as the years passed. Because of repeated clashes with correctional officers, he spent more than 10 years in solitary confinement.


“It seems like I’m nothing but a memory that is fading more and more with each passing day,” he wrote in his journal.


The 2013 hearing was one of his last chances to prove his innocence.


But when Lively’s new lawyer, Scott Driver, called Bell to testify, the prosecutor mischaracterized the report from Beyler.


Bell says he did not know he would be asked to discuss Beyler’s report and had not reviewed it; he assumed Driver would call Beyler as a witness. On the stand, he incorrectly said Beyler had ruled that the cause of the blaze was undetermined.


Driver did not correct the prosecutor or address the substance of Beyler’s findings. To this day, he said in an interview, he cannot explain why he failed to question Bell more thoroughly, or delve more deeply into Beyler’s report.


“I think it is safe to say that at pretty much every level of the justice system, somebody failed him,” Driver said of Lively. “It’s weighed pretty heavy on me, to the extent I contributed to that.”


The judge denied Lively’s petition. A similar request he had submitted in federal court stalled.

Increasingly desperate, Driver, too, contacted the West Virginia Innocence Project.


Andrew George, a white-collar litigator at Baker Botts in Washington who does pro bono wrongful conviction work, was skeptical at first. Then he read Beyler’s report and the transcript of the habeas hearing. His associate called Beyler, who was livid to learn Lively was still in prison.


George agreed to represent Lively and went with Beyler and a small team of attorneys to meet with lawyers in the West Virginia attorney general’s office in July 2018. The prosecutors agreed to hire chemist Glen Jackson, a professor of forensic science at West Virginia University, to review the case.


Then George called Bell, the former prosecutor, who surprised him by being willing to meet.

George and Beyler worried the encounter would be awkward. But as they sat in a conference room at a cultural center in Beckley, W.Va., that November, George said, they realized Bell was “was an honest player who made an honest mistake and wanted to own up to it.”


Bell soon signed an affidavit admitting his error at the habeas hearing. “My testimony about Dr. Beyler’s report and findings was inaccurate,” he swore. “Thus, I strongly believe, therefore, that Charles Jason Lively is innocent.”


At this point, Lively had an unlikely trio of defenders: Beyler, the scientist; Bell, the former prosecutor; and a high-powered legal team.


Lawyers and staff from Baker Botts and the West Virginia Innocence Project spoke almost every day to Lively, and nearly as often with Lively’s mother and his fiancee, Billie Blankenship, who had known Lively since high school.


Blankenship had started writing him in prison after watching “Sins and Secrets,” the Investigation Discovery documentary about his case that aired in 2012.

They planned to marry if Lively was freed.


Jackson, the WVU chemist, soon backed Beyler’s conclusion that the fire was not deliberately set. But Bailey, the fire marshal, who had left the office in 2011, remained unconvinced. After all, he told George, neither Beyler nor Jackson had been to Whitley’s house.


So Beyler and George returned to West Virginia once more. They met fire marshals at Whitley’s house, now filled with weeds and trash. The marshals sent Jackson samples from the house, which provided the final blow to the state’s original case.


Neither charcoal lighter fluid nor gasoline contain toluene as a single component, Jackson wrote. Rather than being poured to aid the fire, as Bell originally suggested, toluene was more likely to have originated through a chemical reaction after the fire started, Jackson said.


'To no one will we deny justice'


Lively’s loved ones gathered outside the Mercer County courthouse in bright sunshine on Sept. 23, passing around “Justice for Jason” T-shirts.


George had convinced Emily Miller, the new McDowell County prosecutor, to support a motion to vacate Lively’s conviction, so long as he pleaded guilty to two misdemeanors related to trespassing at Whitley’s house and selling the doctor’s computer.


The prosecutor was motivated in part by a scathing letter from Bell, who wrote in July that she should free Lively immediately. “We have had knowledge of this compelling exculpatory evidence for two years,” he wrote. “Further delay would be immoral and unethical.”


Read Sid Bell’s letter to Emily Miller


Miller said in a brief interview that she acted as quickly as she could. She did not respond to further questions.


As Blakenship waited in the wood-paneled courtroom, she shook her head in disbelief at the words inscribed on the wall: “To no one will we deny justice, to no one will we delay it.”


Minutes later, Lively, now 42, entered, his head shaved and his hands cuffed in front of him, a correctional officer to either side. He winked at Blankenship and his mother as he made his way to sit next to George, whom he was meeting in person for the first time.


Judge William Sadler walked through the facts of the case. Knowing what the state had concluded about the fire investigation, he said, a jury would not have believed arson to be the cause of the fire and thus would not have believed Lively was guilty.


His voice muffled by a mask, the judge declared the conviction vacated. Lively has been added to the national registry of exonerations, George said, though it is not clear whether he will receive any compensation from West Virginia.


In the courtroom, Blankenship and Kathy Lively-Hamilton clasped hands and raised them above their heads in celebration.


After years of delay, it seemed to them like everything that happened next was rapid-fire: The bailiff undid Lively’s handcuffs. Lively signed the plea. He hugged his mother, then Blakenship.

“You did it,” she told him.

“We did it,” he replied.

For the first time in nearly 15 years, Lively changed into street clothes.

“This is my man,” he said, clasping George’s shoulder as he introduced him to uncles, cousins and friends outside the courthouse. “Thank you.”


Everything, he said, felt like a dream. The first thing he wanted to do was eat a steak at his mother’s house. Then get out of West Virginia, marry Blankenship and begin a new life.


But first, he had a question for his lawyer. “When,” he asked George, “are you going to help the next one?""


The entire story can be read at:

https://www.washingtonpost.com/local/legal-issues/jason-lively-fire-innocent-west-virginia/2020/10/21/44772dba-f2b4-11ea-bc45-e5d48ab44b9f_story.html

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