Thursday, May 26, 2022

Paul Means: Serial Jailhouse Informant: Florida: Question of the day: Asked by Tampa Bay Times Reporter Dan Sullivan, in a story headed: "Jail informant's word helps put people away. But can he be trusted?" ... "People like him are a seldom-noticed, but common component in the workings of the criminal justice system. For prosecutors, they can help bolster otherwise imperfect evidence. Where juries might waver, a jailhouse informant can remove doubt by delivering incriminating details ostensibly uttered from a defendant’s mouth. It is commonly believed that this can put the informant in a prosecutor’s good graces, and result in lesser penalties or other benefits. The trouble, say academics and advocates for the accused, is that jailhouse informants have a strong incentive to lie. Studies have shown they are often unreliable, contribute to wrongful convictions, and juries are not always able to detect when they’re being untruthful."


PUBLISHER'S NOTE: What do police informants have to do with forensic science? (I'm glad you asked). Investigative  Reporter Pamela Colloff give us  a clue when she writes - at the link below -  "I’ve wanted to write about jailhouse informants for a long time because they often appear in troubled cases in which the other evidence is weak." That's my experience as  will as a criminal lawyer and an observer of criminal justice. Given the reality that jurors - thanks to the CSI effect - are becoming more and more insistent on the need for there to be forensic evidence, it is becoming more and more common for police to rely on shady tactics such as use of police snitches, staging lineups, coercing, inducing, or creating false confessions out of thin air, procuring false eyewitness testimony or concealing exculpatory evidence.  
Harold Levy: Publisher: The Charles Smith Blog;

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STORY: "Jail informant's  word helps put people away. But can he be trusted?" by  Reporter Dan Sullivan. Published by The Tampa Bay Times.

SUB-HEADING:  "His cooperation helped him avoid prison once. Hee's no accused of causing a man's death."

PHOTO CAPTION: "Paul Means has testified in numerous Hillsborough cases, including murders, and his efforts have won him lighter sentences -- including one that left him out of jail on the night he is accused of killing a man in a crash.

GIST:  (This is a small excerpt from a lengthy story which deserves to be read - subject to paywalls - in its entirety.  I have noted below as 'passages of the day" references to three cases of particular interest to this Blog."HL);  "Means is what’s known in criminal justice parlance as a jailhouse informant, or, pejoratively, jailhouse snitch. Now 50, he has been arrested close to 40 times, state records show. For at least the last decade, he has touted an ability to extract incriminating statements from those with whom he has been incarcerated. Armed with details about murders, attempted murders, robberies and other crimes, he writes letters to prosecutors, offers to cooperate and sometimes seeks help for his own troubles. People like him are a seldom-noticed, but common component in the workings of the criminal justice system. For prosecutors, they can help bolster otherwise imperfect evidence. Where juries might waver, a jailhouse informant can remove doubt by delivering incriminating details ostensibly uttered from a defendant’s mouth. It is commonly believed that this can put the informant in a prosecutor’s good graces, and result in lesser penalties or other benefits. The trouble, say academics and advocates for the accused, is that jailhouse informants have a strong incentive to lie. Studies have shown they are often unreliable, contribute to wrongful convictions, and juries are not always able to detect when they’re being untruthful. “They come into being after the crime, which means they can be generated by the allegations themselves,” said Alexandra Natapoff, a Harvard Law School professor and leading expert on criminal informants. “Jailhouse informant evidence makes other bad evidence look better.”:

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PASSAGE ONE OF THE DAY:  (James Dailey):  "Perhaps most prominent is the case of James Dailey, who was sentenced to death for the 1985 murder of a teen girl in Pinellas County. His conviction rested heavily on testimony from three jailhouse informants. One of them, Paul Skalnik, was a known conman and prolific informant who testified in dozens of cases in Florida, Texas and elsewhere."


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PASSAGE TWO OF THE DAY: (Robert DuBoise; "In Tampa, the 1983 murder case of Robert DuBoise also featured jailhouse informant testimony, coupled with now-debunked bite mark evidence. DuBoise was exonerated and released in 2020 after Warren’s conviction review unit located old DNA samples, which showed someone else committed the crime. Warren asserted that the three trials in which his office used Means was “a small number.” He also said that jailhouse informants are seldom the only factor contributing to a wrongful conviction. Scott Greenfield, a New York criminal defense lawyer and author of the Simple Justice blog, said for prosecutors to use the same jailhouse informant in three separate trials was “shocking.” “They know how bad these guys are,” Greenfield said. “There’s no excuse where they choose to use them, and they can justify this being somehow beneficial toward whatever view of justice and morality they have.


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PASSAGE THREE OF THE DAY: (Charles Scoble) : "October 2012. The trial of Charles Scoble. He was accused of causing the 2007 death of his newborn son. It happened when he was left alone to care for the baby while the boy’s mother worked. There were no eyewitnesses to the death. The case hinged on medical testimony. A medical examiner determined the boy died from brain injuries, the result of being hit or shaken.  Other doctors backed up the claim. But defense experts said his injuries were not from shaking, and they were not what caused his death. Months before Scoble’s trial, Means sent two letters to the Hillsborough State Attorney’s Office.  In them, he wrote he’d been jailed with Scoble in the same dormitory-style housing unit.  He said they’d gotten to know each other after Means asked to borrow the book, Men are from Mars, Women are from Venus.  They’d confided their shared troubles with women and addictions. Means went on to describe how Scoble confessed to him that he’d killed his son, how he’d shaken and hit the boy because he was “blowing his high.” He’d drawn up a self-help questionnaire for Scoble to fill out — a ruse to get him to document the purported confession. He asked the state to contact his attorney. “I can help you with this case,” he wrote. “Looking to hear from you. Oh yes I’ve already (had) my statement notarized!” He took the witness stand that fall.  A handwriting expert opined that the questionnaire responses were consistent with samples of Scoble’s handwriting. Kimberly Hindman, who prosecuted the case and would later become Warren’s chief assistant, offered a blunt assessment in closing arguments: “He is an opportunist,” she said. “And if you ever have, or anybody ever has the unfortunate circumstances of being in jail, if Paul Means comes to you, you’d better run in the other direction.” Doug Snodgrass, who served as a juror, said the physical evidence and testimony from a medical examiner and a pediatrician were the main things that convinced him of Scoble’s guilt. Means was less of a factor. “My personal opinion is his testimony kind of took a back seat,” Snodgrass said. “It was nice to have somebody to go, ‘OK, he actually did it.’ He was kind of the icing on the cake.” Scoble, who is serving a life sentence, continues to appeal his conviction. His appellate attorney, Wade Whidden, has challenged various aspects of Means’ testimony. “I believe him to be a liar,” Whidden said. In a court paper, Whidden noted that Means was facing a possible 10-year prison sentence before he testified. Sentencing guidelines pegged his  lowest permissible prison sentence at 18 months, but gave the option for drug treatment instead. One of Whidden’s appeals includes a link to an audio file of Means’ July 2012 sentencing hearing. In the recording, a prosecutor can be heard whispering to a judge that Means had agreed to testify in a case.  Means’ lawyer said he would testify in the trial of a person charged with killing a baby and that the information he provided was crucial. He’s just got a drug problem,” she told the judge. Means was sentenced to a year in jail, with an early release possible once he completed an in-jail drug treatment program. He got out four months later."

The entire story can be read at:

https://mail.google.com/mail/u/0/#all/FMfcgzGpFqVJjBjkXJBRsDnTLPKZJjfh


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;



SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:




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;

Wednesday, May 25, 2022

Brooke Stringer: Jones County; Mississippi: Accused of capital murder in the death of her 6-month-old daughter, with a trial date set for June 1, her lawyer has requested accident records from the daycare her daughter attended for four months prior to her death during a hearing in Jones County Circuit Court on Tuesday, The Leader (Reporter Cam Bonelli) reports..."Judge Dal Williamson allowed for records of Rosalee’s accident reports to be released, but not for all accident reports for all children at the Children’s Academy at South Central Regional Medical Center, where Stringer was employed at the time of her baby’s death. “You’re asking for all of the accident reports within a year’s time even though this child was 6 months old when she died?” Williamson asked. Stringer’s child Rosalee was born April 5, 2019, and she died Oct. 26, 2019. “If I were a parent of a child that was at that facility between January and December 2019, I would want to be put on notice that someone would be getting a copy of that in a capital murder case,” said Kristen Martin, assistant district attorney for Jones County. The judge allowed for Stringer to receive accident records pertaining to Rosalee from June 1, 2019 through Oct. 27, 2019. In addition to Rosalee’s accident records, Stringer’s attorney requested policies and procedures for employees of the Children’s Academy regarding safety, falls, injuries and illnesses of children who attend the facility. She also requested training records of employees at the Children’s Academy, a diagram of the Children’s Academy’s floor plan and the number of children present Oct. 2, 2019, when Rosalee may have had an accident at the facility prior to her death Oct. 26, 2019."


PASSAGE OF THE DAY: "Stringer and her boyfriend Brandon Gardner were arrested last December after being charged in the October 2019 death of Stringer’s 6-month-old daughter Rosalee. The infant’s father was a foreign-exchange student from Germany. Gardner and Stringer now have a baby together. The investigation and arrest took more than two years because investigators had to wait on medical evidence from the state crime lab.  The manner of death was “homicide,” according to the medical examiner’s autopsy results, and the cause of death was “blunt-force trauma.”  Gardner and Stringer were the only people in the home with the baby at the time of her death, and their explanation of what happened “was not possible,” Martin said. They were charged with capital murder because there was an underlying felony — child abuse. If convicted of that, they could face the death penalty or life in prison. Both suspects are out on bond awaiting trial.

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STORY: "Mother accused of capital murder requests day care records," by Reporter Cam Bonelli, published by The Laurel Leader-Call, on May 20, 2022.

GIST: "The trial of a mother accused of capital murder of her 6-month-old daughter is set for June 1.

 Brooke Stringer, 22, was charged with capital murder, and her attorney Tangi Carter of Hattiesburg asked for the accident records from the daycare her daughter Rosalee Stringer attended for four months prior to her death during a hearing in Jones County Circuit Court on Tuesday.  

Judge Dal Williamson allowed for records of Rosalee’s accident reports to be released, but not for all accident reports for all children at the Children’s Academy at South Central Regional Medical Center, where Stringer was employed at the time of her baby’s death.

 “You’re asking for all of the accident reports within a year’s time even though this child was 6 months old when she died?” Williamson asked. 

Stringer’s child Rosalee was born April 5, 2019, and she died Oct. 26, 2019.  “If I were a parent of a child that was at that facility between January and December 2019, I would want to be put on notice that someone would be getting a copy of that in a capital murder case,” said Kristen Martin, assistant district attorney for Jones County. 

 The judge allowed for Stringer to receive accident records pertaining to Rosalee from June 1, 2019 through Oct. 27, 2019. In addition to Rosalee’s accident records, Stringer’s attorney requested policies and procedures for employees of the Children’s Academy regarding safety, falls, injuries and illnesses of children who attend the facility. 

She also requested training records of employees at the Children’s Academy, a diagram of the Children’s Academy’s floor plan and the number of children present Oct. 2, 2019, when Rosalee may have had an accident at the facility prior to her death Oct. 26, 2019. 


Stringer and her boyfriend Brandon Gardner were arrested last December after being charged in the October 2019 death of Stringer’s 6-month-old daughter Rosalee.


 The infant’s father was a foreign-exchange student from Germany. Gardner and Stringer now have a baby together.


The investigation and arrest took more than two years because investigators had to wait on medical evidence from the state crime lab. 


The manner of death was “homicide,” according to the medical examiner’s autopsy results, and the cause of death was “blunt-force trauma.”


 Gardner and Stringer were the only people in the home with the baby at the time of her death, and their explanation of what happened “was not possible,” Martin said.


They were charged with capital murder because there was an underlying felony — child abuse. If convicted of that, they could face the death penalty or life in prison. Both suspects are out on bond awaiting trial."


The entire story can be read at: 


https://www.leader-call.com/news/free_news/back-off/article_73bb6656-d875-11ec-9b43-3f08349c20fd.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;


SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:




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.



Armando Barron: Keene; New Hampshire:: On-going trial for man accuse of killing his wife's co-worker: State criminalist testified that investigators did not find his DNA profile on items recovered in the case, including gun, hacksaw and a knife, Associated Press Reporter Kathy McCormack reports in the Concord Monitor..."Armando Barron’s profile didn’t turn up, but testing did find a DNA profile, or a “possible contributor,” for Jonathan Amerault, the man who died, said Katie Lynn Swanko under questioning from Barron’s lawyer in a Keene courtroom."


PASSAGE OF THE DAY: "His lawyers argue that his wife shot Amerault, which she denies. Britany Barron had testified that after Amerault was shot, she was then forced to drive the car 200 miles north to a remote campsite.  There, she said, she was forced to behead Amerault and dispose of his body. About a dozen items submitted to Swanko had tested positive for the presence of human blood, but the DNA profile on them was “unknown,” Swanko said. She said comparisons were made to known profiles of Amerault, Armando Barron and Britany Barron. Amerault’s profile came up on nearly all of the items. “So across all of the items that you tested from this investigation, Armando Barron was not a possible contributor of the DNA to any of those items that you tested?” defense attorney Morgan Taggart-Hampton asked. “That’s correct,” Swanko said. A few items, such as a black tank top and a sample of a napkin, showed Britany Barron’s profile, Swanko testified. The tested items included a pair of blue sneakers.


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PASSAGE TWO OF THE DAY: "During earlier testimony Tuesday, a criminalist testifying about a zigzag impression left on Amerault’s face, saying it could have been made by a blue sneaker that she was given to analyze. Prosecutors said earlier in the trial that Armando Barron owned a pair of blue sneakers."


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STORY: "Defendant's DNA not on tested items in beheading case," by  Associated Press Reporter Kathy  McCormack, published by The Concord Monitor on May 23, 2022.


GIST: "Investigators didn’t find a DNA profile for the man accused of killing his wife’s co-worker on items recovered in the case, including a gun, a hacksaw and a knife, a state criminalist testified Tuesday.


Armando Barron’s profile didn’t turn up, but testing did find a DNA profile, or a “possible contributor,” for Jonathan Amerault, the man who died, said Katie Lynn Swanko under questioning from Barron’s lawyer in a Keene courtroom.



Prosecutors allege Barron assaulted his wife, Britany Barron, the night he discovered she was texting with Amerault, then used her cellphone to lure him to a park just north of the Massachusetts state line in September 2020. They allege he beat and kicked Amerault, forced him into his own car and shot him three times.


Barron’s trial began last week. The prosecution is expected to wrap up its case Wednesday.


Armando Barron has pleaded not guilty to first-degree murder, kidnapping and other charges. 


His lawyers argue that his wife shot Amerault, which she denies.


Britany Barron had testified that after Amerault was shot, she was then forced to drive the car 200 miles north to a remote campsite. 


There, she said, she was forced to behead Amerault and dispose of his body.


About a dozen items submitted to Swanko had tested positive for the presence of human blood, but the DNA profile on them was “unknown,” Swanko said.


 She said comparisons were made to known profiles of Amerault, Armando Barron and Britany Barron. Amerault’s profile came up on nearly all of the items.


“So across all of the items that you tested from this investigation, Armando Barron was not a possible contributor of the DNA to any of those items that you tested?” defense attorney Morgan Taggart-Hampton asked.


“That’s correct,” Swanko said.


A few items, such as a black tank top and a sample of a napkin, showed Britany Barron’s profile, Swanko testified.


The tested items included a pair of blue sneakers.


 During earlier testimony Tuesday, a criminalist testifying about a zigzag impression left on Amerault’s face, saying it could have been made by a blue sneaker that she was given to analyze. Prosecutors said earlier in the trial that Armando Barron owned a pair of blue sneakers.



Also on Tuesday, an investigator testified about messages on social media accounts recovered from Britany Barron’s and Amerault’s phones that September night, including one on Britany’s asking Amerault to come to a park, followed by one telling him to “turn to the right” and that she was there.


The jury also heard a recording of a conversation a police officer had with Armando Barron at his home a couple of nights later. 


Barron is heard saying he dropped his wife off to go camping, and that he thought the officer was serving him divorce papers. He also said he had driven up north.


Britany pleaded guilty last year to three counts of falsifying evidence and was released from jail on parole last month.


The Associated Press had not been naming the couple in order not to identify Britany Barron, who said she suffered extreme abuse. Through her lawyer, she recently agreed to the use of her name."


The entire story can be read at: 


https://www.concordmonitor.com/Defendant-s-DNA-not-on-tested-items-in-beheading-case-46511869


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;


SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:




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.


Barry Jones: Arizona: Innocence be damned! ...(Take him Arizona, he's yours)...Vox Senior Correspondent "Ian Millhiser" brilliantly eviscerates the U.S. Supreme Court's grotesque decision in his case, in a story headed, "The Supreme Court just condemned a man to die despite strong evidence he's innocent," and sub-headed, "The Court effectively overruled two of its previous decisions, and it is likely an innocent man will die as a result."...."In 1995, Barry Jones was convicted of murdering Rachel Gray, his girlfriend’s 4-year-old daughter, and sentenced to die. Since then, the case against him has shattered. Gray died of a laceration of her small intestine, an extremely painful injury that slowly floods the victim with poisonous fluids. The prosecution’s theory was that Jones must have inflicted this injury on Gray during a four-hour period when he was taking care of her on May 1, 1994. Gray died about 12 hours later. But this theory does not make sense medically. Gray’s injury would have killed her slowly, and should not have proved fatal in only 12 hours. In a comprehensive article reviewing the evidence against Jones, the Intercept’s Liliana Segura quotes three physicians who say that the prosecution’s theory is wrong. One, who Segura describes as a “renowned pediatric forensic pathologist,” said that Gray’s injury “could not possibly have been inflicted on the day prior to her death.” There are also several other potential suspects. Gray’s mother Angela, for starters, was eventually convicted of child abuse and sentenced to eight years in prison. There’s evidence that Gray’s brother sexually preyed on young girls. And, on top of all of that, Gray reportedly said shortly before her death that a boy had hit her in the stomach with a metal bar. Simply put, no sensible jury confronted with all of this evidence would have concluded that Jones was guilty beyond a reasonable doubt. But Jones’s lawyers failed to present crucial evidence at his trial."


PASSAGE OF THE DAY: "When a federal court deems someone’s conviction constitutionally inadequate, Thomas complains, it “overrides the State’s sovereign power to enforce ‘societal norms through criminal law,’” and “disturbs the State’s significant interest in repose for concluded litigation.” Thus, in Thomas’s view, the purpose of a state-conducted trial is to give criminal defendants a procedure in state court. But once that process is concluded, the state court’s decision generally should remain final — even if that means executing an innocent person or condemning someone in violation of the Constitution. This is consistent with Thomas’s longtime position. As far back as Herrera v. Collins (1993), Thomas joined an opinion by Justice Antonin Scalia, which claimed that there is “no basis” in the Constitution for “a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” At the time, however, Thomas was the only justice who joined Scalia in this view. Now, however, Thomas has the votes to prevail on an exceedingly conservative Court, so the considerable evidence that Barry Jones is innocent was declared irrelevant. In his initial trial, Jones faced a tribunal that bore at least some superficial resemblance to a fair proceeding. And, under Thomas’s approach, the fact that Jones most likely never killed anyone is irrelevant."

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STORY: "The Supreme Court just condemned a man to die despite strong evidence e's innocent," by Reporter Ian Milllhiser, published by Vox,   on May 23, 2022.  ("Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Before joining Vox, Ian was a columnist at ThinkProgress. Among other things, he clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit and served as a Teach For America corps member in the Mississippi Delta. He received a B.A. in philosophy from Kenyon College and a J.D., magna cum laude, from Duke University, where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif. He is the author of two books on the Supreme Court -- "Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted" and "The Agenda: How a Republican Supreme Court is Reshaping America.")

GIST: "The Court effectively overruled two of its previous decisions, and it is likely an innocent man will die as a result."

In 1995, Barry Jones was convicted of murdering Rachel Gray, his girlfriend’s 4-year-old daughter, and sentenced to die. Since then, the case against him has shattered.

Gray died of a laceration of her small intestine, an extremely painful injury that slowly floods the victim with poisonous fluids. The prosecution’s theory was that Jones must have inflicted this injury on Gray during a four-hour period when he was taking care of her on May 1, 1994. Gray died about 12 hours later.

But this theory does not make sense medically. Gray’s injury would have killed her slowly, and should not have proved fatal in only 12 hours. In a comprehensive article reviewing the evidence against Jones, the Intercept’s Liliana Segura quotes three physicians who say that the prosecution’s theory is wrong. 

One, who Segura describes as a “renowned pediatric forensic pathologist,” said that Gray’s injury “could not possibly have been inflicted on the day prior to her death.”

There are also several other potential suspects. Gray’s mother Angela, for starters, was eventually convicted of child abuse and sentenced to eight years in prison. There’s evidence that Gray’s brother sexually preyed on young girls. And, on top of all of that, Gray reportedly said shortly before her death that a boy had hit her in the stomach with a metal bar.

Simply put, no sensible jury confronted with all of this evidence would have concluded that Jones was guilty beyond a reasonable doubt.

But Jones’s lawyers failed to present crucial evidence at his trial. 

As Justice Sonia Sotomayor wrote in an opinion released on Monday, “Jones’ trial counsel failed to undertake even a cursory investigation and, as a result, did not uncover readily available medical evidence that could have shown that Rachel sustained her injuries when she was not in Jones’ care.” 


Then, after Jones challenged his conviction in a state court proceeding, he was met with, as Sotomayor put it, “another egregious failure of counsel.”


In the words of the law, Jones was denied his constitutionally required right to effective assistance of counsel — twice.


Sotomayor, however, wrote these words in a dissenting opinion. On a party line vote in Shinn v. Ramirez, the Court held that Jones will not receive a fair trial despite his lawyers’ poor performance.


(The Ramirez case is called “Ramirez” and not “Jones” because the Court simultaneously decided a similar case involving David Ramirez, who was sentenced to die despite strong evidence that he is intellectually disabled and thus cannot receive a death sentence under the Court’s decision in Atkins v. Virginia (2002). Monday’s decision most likely ensures that Ramirez will not receive a new sentencing proceeding to determine whether he is intellectually disabled.)


Justice Clarence Thomas’s majority opinion claimed that a law restricting the power of federal courts to toss out convictions in state courts prevents Jones from seeking relief. But Thomas’s reading of this law is novel — his opinion had to gut two fairly recent Supreme Court decisions to deny relief to Jones.


Jones would have received a new trial if the Supreme Court hadn’t changed the law


Before Monday, the Supreme Court’s decisions in Martinez v. Ryan (2012) and Trevino v. Thaler (2013) should have guaranteed Jones a new trial. Both decisions deal with what should happen in the unusual circumstance when someone accused of a crime receives ineffective assistance of counsel, twice.


In Strickland v. Washington (1984), the Supreme Court held that a conviction must be tossed out if defense “counsel’s performance was deficient” and if this “deficient performance prejudiced the defense.” This safeguard against constitutionally inadequate lawyering would be meaningless if people who received ineffective assistance of counsel at trial could not challenge that conviction, either on appeal or in some other proceeding.


Martinez and Trevino established that someone convicted of a crime must have at least one shot at challenging their conviction on the grounds that they received ineffective assistance of counsel at trial. States have a fair amount of leeway to decide what sort of process will be used to adjudicate ineffective assistance claims, but they cannot deny any sort of process altogether.


If a state fails to provide convicted individuals with a way to challenge their conviction on ineffective assistance grounds, federal courts may step in and provide a forum to hear this challenge in what is known as a “habeas” proceeding. Martinez, moreover, established that federal courts may step in when a criminal defendant receives inadequate assistance of counsel both at their trial and in a state proceeding permitting them to challenge their conviction.


Both a federal trial court and an appeals court determined that this is exactly what happened to Jones — that is, neither his state trial attorneys nor the lawyers who represented him in his postconviction challenge adequately investigated his case. 


And, without seeing all the evidence suggesting that Jones is innocent, the state court judge presiding over this postconviction proceeding had no way to know that Jones’s conviction should be tossed out.


The federal trial court held its own evidentiary hearing, considered the evidence against Jones and the evidence that his lawyers botched his case, and ordered the state of Arizona to give him a new trial.


In that court’s words, there was a “reasonable probability that the jury would not have unanimously convicted [Jones] of any of the counts” if Jones’s defense counsel had “adequately investigated and presentedmedical and other expert testimony to rebut the State’s theory.”


Monday’s decision in Ramirez does not explicitly abandon Martinez and Trevino, but, as Sotomayor explains in dissent, “the Court all but overrules” these two decisions “that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court.”


Under Justice Thomas’s majority opinion, federal courts may still conduct habeas proceedings when a criminal defendant alleges that they received inadequate assistance of counsel twice, but the federal court may not consider any evidence that wasn’t presented in earlier proceedings. 


As Thomas writes, “if a prisoner has ‘failed to develop the factual basis of a claim in State court proceedings,’ a federal court ‘shall not hold an evidentiary hearing on the claim’ unless the prisoner satisfies one of two narrow exceptions” that are not present in Jones’s case.



The problem with this rule should be obvious. The whole point of Jones’s federal case is that his state court lawyers performed so poorly that they failed to uncover evidence that should have exonerated him.


 If a federal habeas court may only consider evidence that was presented by feckless lawyers to state courts, then there is no point in having a federal habeas proceeding in the first place.


Thomas and Sotomayor have wildly different views of why criminal trials exist

“The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial,” Sotomayor writes in the first line of her dissent. She continues that “this Court has recognized that right as ‘a bedrock principle’ that constitutes the very ‘foundation for our adversary system’ of criminal justice.”


Thus in Sotomayor’s mind, and in the minds of the two other justices appointed by Democratic presidents who joined her opinion, the purpose of a criminal trial is to determine whether or not someone is actually guilty of a crime — and to do so through an adversarial process where both sides are represented by lawyers who can present the best possible legal and factual case for the prosecution and the defense.


Thomas, writing for the Court’s Republican majority, offers a different view of why trials exist.


 He deems federal habeas proceedings problematic because they “override[] the States’ core power to enforce criminal law.” 


When a federal court deems someone’s conviction constitutionally inadequate, Thomas complains, it “overrides the State’s sovereign power to enforce ‘societal norms through criminal law,’” and “disturbs the State’s significant interest in repose for concluded litigation.”


Thus, in Thomas’s view, the purpose of a state-conducted trial is to give criminal defendants a procedure in state court. But once that process is concluded, the state court’s decision generally should remain final — even if that means executing an innocent person or condemning someone in violation of the Constitution.


This is consistent with Thomas’s longtime position. As far back as Herrera v. Collins (1993), Thomas joined an opinion by Justice Antonin Scalia, which claimed that there is “no basis” in the Constitution for “a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” At the time, however, Thomas was the only justice who joined Scalia in this view.


Now, however, Thomas has the votes to prevail on an exceedingly conservative Court, so the considerable evidence that Barry Jones is innocent was declared irrelevant. In his initial trial, Jones faced a tribunal that bore at least some superficial resemblance to a fair proceeding. And, under Thomas’s approach, the fact that Jones most likely never killed anyone is irrelevant."


The entire story can be read at: 

https://www.vox.com/2022/5/23/23138100/supreme-court-barry-jones-shinn-ramirez
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;


SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:




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;

Kathleen Folbigg: Australia: The scientists say she is an innocent mother - not Australia's worst matricidal murderer, as the politicians prefer: The Editor of Justice for Kathleen Folbigg sets out five potential outcomes for her case.

BACKGROUND: KATHLEEN FOLBIGG;  "On April Fool's Day 2003, the murder trial for what the national media would call Australia's worst matricidal murder, with Kathleen Folbigg in the dock, began. Mark Tedeschi QC, the state's most senior public prosecutor, "representing the community of NSW" (New South Wales), opened the trial against Folbigg, alleging she had deliberately killed all four of her infant children. By the end of the trial, 29 days later, Tedeschi had convinced the jury of her guilt. The Upper Hunter's Kathleen Folbigg was convicted and sentenced to 40 years jail over the deaths of her four infant children in the decade from 1989. Caleb at 19 days, Patrick at 8 months, Sarah at 10-and-a-half months and Laura at 19 months. The Folbigg convictions stand among the most contentious and troublesome in Australian history, alongside those of Lindy and Michael Chamberlain. Like Lindy Chamberlain, Kathleen Folbigg has always maintained her innocence and has steadfastly pursued every legal avenue to have her convictions set aside. Like Lindy Chamberlain, all Kathleen Folbigg's appeals, including to the High Court, failed." Ray Waterson: Newcastle Herald........"The 2003 conviction of Kathleen Folbigg for the smothering deaths of her four children over a 10-year period branded her Australia’s “worst female serial killer”, despite there never being any evidence to support the supposed cause of death. Almost two decades on, new clinical research and expert evidence shine a light on what really happened and expose crucial flaws in the criminal justice system. Earlier this year, a legal team behind Ms Folbigg circulated a petition containing new research into an unreported cardiac mutation found in two of her children, Sarah and Laura, that explains how they likely died from natural causes. In a development shared with Lawyers Weekly, that mutation has been added to the list of mutations in ClinVar, a worldwide authoritative database used by clinicians and geneticists. Put another way, if the mutation – referred to as the CALM2 G114R gene – is found in an infant who dies without explanation, a genetic counsellor will inform the families that it is the cause of death. Ms Folbigg’s lawyer, Rhanee Rego, said not only would this bring families some certainty, but it would lead to better options for people to start preventative therapy that was not available to Ms Folbigg over two decades ago. “Today, Kathleen, who has the CALM2 G114R mutation but is affected differently by it (given her cardiac history), would be counselled that she could consider having a cardioverter device implanted to avoid having a fatal cardiac arrest,” Ms Rego said, adding that “it’s hard to emphasise just how important [the ClinVar addition] is because it has the capacity to save lives across the world”. In addition to saving countless lives, the addition of CALM2 G114R to ClinVar is an “important breakthrough” for science and solidifies that the two female Folbigg girls died from the lethal mutation, rather than the crimes their mother was convicted for."
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ENTRY: "Five potential outcomes for the Folbigg case, by Alana House,  Editor of Justice for Kathleen Folbigg," published on  May 9, 2022.

GIST: "NSW Attorney-General Mark Speakman continues to stall his decision on the petition to the Governor of NSW that calls for Kathleen Folbigg's immediate pardon and release.

The petition was endorsed by the Australian Academy of Science and supported by more than 150 scientists, including Nobel laureates professors Elizabeth Blackburn and Peter Doherty. It argued that fresh genetic evidence showed that ‘has been wrongfully incarcerated because the justice system has failed her’.

Speakman's only comment when approached by News Corp last week was: “I have received detailed advice from senior and junior counsel regarding the various issues raised in relation to the petition. The matter and advice have been carefully reviewed and I expect to make an announcement shortly.”

Journalist Quentin McDermott notes in The Daily Telegraph that Kathleen could possibly face five potential outcomes arising from the petition, although her legal team considers that there is only one outcome supported by the evidence: a pardon.

PARDON AND RELEASE

Speakman can recommend to the NSW Governor that the petition should be granted, and that Kathleen should be pardoned and released. The NSW Government says that: “Some examples of extraordinary circumstances in which pardons have been granted include wrongful convictions, where new methods of forensic evidence raise significant questions as to the petitioner’s guilt.”

Kathleen's legal team says her case “fits this definition exactly, because of the new genetic evidence.”

If Kathleen is released, Speakman can also refer her case to the NSW Court of Criminal Appeal, for her convictions to be quashed.

REFERRAL TO THE COURT OF CRIMINAL APPEAL

Even if Kathleen isn’t pardoned and released, Speakman can refer her case to the Court of Criminal Appeal for her convictions to be quashed, based on the fresh evidence contained in her petition.

Kathleen’s legal representatives will not oppose such an application. They expect that if a referral is made by Speakman, it will be based on his conclusion that her convictions should be quashed, and that the application will not be opposed by the NSW Director of Public Prosecutions.

PARDON DENIED

Speakman can deny the petition to pardon and release Kathleen.

If he does so, almost certainly it will cause a storm of protest from the science community, backed strongly by the Australian Academy of Science, which has offered to assist Speakman by providing experts to help him assess the fresh genetic evidence. Speakman has turned down their offer.

Professor John Shine, President of the Australian Academy of Science, told News Corp: “Internationally, other mothers wrongly convicted of murdering their children based on the improbability that multiple infants can die in the one family from natural causes have been released.”

He said Kathleen is “the last known woman to remain in prison because of this discredited assumption. She remains incarcerated despite the new clear scientific evidence.

“I again call on the NSW Attorney General to make an evidence-informed decision, based on the strong, new scientific evidence demonstrating Ms Folbigg’s innocence, and release her from prison."

SECOND INQUIRY ORDERED

An inquiry into Folbigg’s convictions in 2019 ended with the inquiry’s Commissioner, a former Director of Public Prosecutions and Chief Judge of the NSW District Court, Reginald Blanch, reporting that his investigations had “produced evidence that reinforces Ms Folbigg’s guilt,” – a conclusion which has been hotly contested by Folbigg’s supporters and by the science community ever since.

It is open to Speakman to order a second inquiry, following the submission of fresh evidence in the petition. But Kathleen’s lawyers argue that “is unnecessary because full details and evidence have already been provided to the Attorney General.”

The last Inquiry in 2019 heard evidence from Professor Vinuesa and others that the genetic mutation they had discovered was “likely pathogenic”.

But despite this discovery, Blanch refused to reopen the inquiry to hear further evidence about the CALM2 G114R variant. Later experiments would demonstrate that the variant is indeed lethal.

EARLY PAROLE

The final option which Speakman may have considered, is to grant Folbigg early parole. In this eventuality, her release would be conditional, and her convictions would stand.

It would be a decision which sets Kathleen free but without necessarily acknowledging the new science which, her legal team argues, permits a pardon to be granted.

Her lawyers say: “Taking this course would indicate a refusal to consider properly the fresh evidence and apply the law.”

Read Quentin McDermott's full, compelling news article here

How you can help

If you live in NSW, send a letter to your local members of the NSW Parliament demanding they speak to Speakman on your behalf and table a related question asking when he will provide a decision on Kathleen's pardon petition.

Your local members of parliament are located here.

Here is a sample letter to use: 

Dear [insert local member’s name],

I write as a member of your electorate to draw your attention to the case of Kathleen Folbigg. I request that you raise the issue of Ms Folbigg’s ongoing incarceration with the NSW Attorney General, Mr Mark Speakman and that you raise the issue in parliament in the next sitting period.

Kathleen Folbigg was convicted in 2003 for the murder of three of her children and the manslaughter of her firstborn. From 1989 to 1999, Kathleen Folbigg’s four children – Caleb, Patrick, Sarah and Laura – all died at different ages. All four children had autopsies and they were diagnosed with dying from natural causes.

Despite no signs of murder detected at autopsy, the prosecution claimed Ms Folbigg smothered all her children. Selected entries from Ms Folbigg’s private diaries were cited to establish her guilt.

In November 2020, new genetic evidence became available through functional testing of a mutation identified in Ms Folbigg and her two daughters. A study conducted by 27 scientists from several countries was published in the prestigious Oxford University journal, EP Europace. The study concluded that CALM2 G114R is pathogenic, and thus there is a >99% certainty that the mutation was responsible for the death of both Sarah and Laura.

Over a year ago, on 3 March 2021, a petition was sent to the NSW Governor and the Attorney General requesting that Ms Folbigg be pardoned based on evidence of natural causes of death and an absence of any evidence of smothering. This was strongly supported by the new studies that provided a genetic basis for the cause of death for Sarah and Laura. The petition has been backed by more than 150 leading scientists and doctors worldwide, including three Australian Nobel Prize Laurates.

In the interests of the accurate assessment of science generally, but also, in this case, the Australian Academy of Science wrote to Mr Speakman to offer him and those advising him a briefing about the new genetic evidence. Eight of the world’s best experts offered their time to Mr Speakman pro bono, to explain in detail and answer any questions about the new genetic findings. Mr Speakman declined this offer.

3 March 2022 marked the one-year anniversary of the petition requesting Ms Folbigg be pardoned. For over a year, Mr Speakman has had significant, probative evidence pointing to an innocent woman in prison wrongfully. Mr Speakman said in budget estimates on 16 March 2022 that he would say something “within a month”. The deadline of 16 April 2022 has now passed.

There is an innocent woman languishing in prison for crimes that science has proven never occurred. I do not want to live in a state or country which allows an innocent woman to remain in prison despite strong scientific evidence of innocence.

I ask you as my local member /NSW Attorney General / NSW Shadow Attorney General to raise this important case with the NSW Attorney General and demand he respond to the pardon petition immediately.

I can be contacted on [insert contact details].

I look forward to hearing from you.

Yours sincerely

[insert name]'

The entire story can be read at:

https://mail.google.com/mail/u/0/#inbox/FMfcgzGpFqSxbQrZzHkhdSccHRtNlnnH

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;

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

SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:




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;