Tuesday, June 25, 2019

Robert Lee Stinson: Wisconsin: Civil rights 'bogus bite-mark evidence' jury trial: Thirty-four years after he was wrongly convicted of killing a neighbor and sentenced to life in prison, this exonerated man is back in court - this time suing the retired detective and dentists his lawyers say conspired to frame him, the Milwaukee Journal Sentinel (Legal Affairs Reporter Bruce Vielmetti) reports..."Stinson, 54, spent 23 years in prison before the Wisconsin Innocence Project helped free him in 2009, the same year he filed his civil rights lawsuit, which has finally reached a jury after a decade of pretrial litigation and appeals."..."The dentists had argued they were not acting under color of state law, but as private parties, and should be dismissed from the case. A different federal judge said the dentists were effectively functioning as part of the law enforcement team."


PASSAGE ONE OF THE DAY:  "No one disputes Stinson's innocence. The DNA from the 1984 murder case later matched a different man, Moses Price, who confessed to the crime in 2012. Lawyers for retired detective James Gauger, 74, and dentists Lowell Thomas Johnson, 88, of Milwaukee, and Ray Rawson, 78, of Las Vegas say their work was valid at the time, completely transparent and not disputed at Stinson's trial in 1985. They say the men barely knew each other and had no reason to conspire to frame Stinson. "There's really no motive. None. Zero," Rawson's attorney, Pat Sullivan, told jurors in his opening statement.  But Stinson's lawyers are trying to convince the jury Gauger still believes Stinson was part of a 1982 homicide that's never been solved, focused on him immediately and ignored other good leads.  As stated in the lawsuit, "Rather than continue to search for the true perpetrator, or take dental molds of the other potential suspects, the Individual Defendants manipulated the evidence so that the bitemark evidence appeared to correlate with Mr. Stinson’s dentition."

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PASSAGE TWO OF THE DAY:  "Johnson, they say, was trying to build his reputation as an expert in the fledgling field of bite-mark evidence, and later spoke about the case around the country. Johnson was standing by his analysis even when Stinson was freed in 2009, saying he disagreed with a panel of experts that completely dismissed his opinion in the case. Stinson's new expert says even under 1985 standards, Johnson's work was badly flawed.  Innocence Projects around the country have won exoneration of inmates convicted on the basis of bite marks, a strain of forensic analysis that has been largely discredited."

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PASSAGE THREE OF THE DAY: "Horn suggested the evidence will show that Gauger and his now-deceased partner, Thomas Jackelen, "had it in" for Stinson because they believed he had withheld information about a 1982 homicide. The plaintiff team claims the detectives got Johnson to alter his initial analysis after learning Stinson was missing a different tooth. She showed jurors a police sketch, based on Johnson's observation of the victim, of a person's upper teeth that showed a missing second top incisor. Next to it, Horn displayed a photo of Stinson's teeth, which were missing an upper front tooth. Johnson's attorney, Jason Franckowiak, called the original sketch a red herring, just an early image based on Johnson's memory of viewing Cychosz's body, before he had even see the forensic photographs. After Johnson — an unpaid consultant to the medical examiner — said it appeared whoever bit Cychosz was missing an upper tooth, the detectives locked in on Stinson when they noticed he was missing his front tooth. He and his twin brother were interviewed because Cychosz was found near their backyard.  At a secret John Doe hearing, Stinson was ordered to let Johnson take molds and imprints and photos of his teeth, and Johnson later concluded only Stinson could have made the marks found on the victim's body. "

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PASSAGE FOUR OF THE DAY: " The idea that a person's dentition was as unique and traceable as a fingerprint was not generally accepted at the time, and is still not. Johnson believed it to be true and later used the Stinson case in his teaching at Marquette on the subject. Gauger would devote a chapter in his 2010 memoir, "The Memo Book," to "The Bite Mark Case."  He didn't edit it to reflect that Stinson had been exonerated.  Sometime after publication but before his deposition in Stinson's lawsuit, Gauger testified, he destroyed all memo books and notepads on which he based the book. Gauger, now silver-haired and walking with a cane, sounded his age from the witness stand at times, and repeatedly referenced the 35 years since the crime. But other times he was forceful and confident of specific memories. He said he doesn't believe now that he met with Johnson before talking with Stinson, despite what he wrote in his book and testified at his 2010 deposition. His attorney noted that Gauger's description of the trial, for instance, said he testified about an hour; he didn't testify at all. Horn pointed out that the teeth of Moses Price — who did kill Cychosz — didn't match Johnson's sketch either. She asked how a gap from a missing tooth would leave a mark when teeth on either side would not.

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STORY: "Man exonerated after 23 years in prison says detectives, dentists framed him with bogus bite-mark evidence," by Legal Affairs Reporter Bruce Vielmetti, published by The Milkwaukee Journal Sentinel on June 24, 2019.

CAPTION: "Images shown to jurors in a civil trial over whether detectives and dentists framed a man for a murder he did not commit. "

GIST:  "Thirty-four years after Robert Lee Stinson was wrongly convicted of killing a neighbor and sentenced to life in prison, he's back in court. This time, he's suing the retired detective and dentists his lawyers say conspired to frame Stinson with bogus bite-mark evidence. Stinson, 54, spent 23 years in prison before the Wisconsin Innocence Project helped free him in 2009, the same year he filed his civil rights lawsuit, which has finally reached a jury after a decade of pretrial litigation and appeals.No one disputes Stinson's innocence. The DNA from the 1984 murder case later matched a different man, Moses Price, who confessed to the crime in 2012. Lawyers for retired detective James Gauger, 74, and dentists Lowell Thomas Johnson, 88, of Milwaukee, and Ray Rawson, 78, of Las Vegas say their work was valid at the time, completely transparent and not disputed at Stinson's trial in 1985. They say the men barely knew each other and had no reason to conspire to frame Stinson. "There's really no motive. None. Zero," Rawson's attorney, Pat Sullivan, told jurors in his opening statement.  But Stinson's lawyers are trying to convince the jury Gauger still believes Stinson was part of a 1982 homicide that's never been solved, focused on him immediately and ignored other good leads.  As stated in the lawsuit, "Rather than continue to search for the true perpetrator, or take dental molds of the other potential suspects, the Individual Defendants manipulated the evidence so that the bitemark evidence appeared to correlate with Mr. Stinson’s dentition." Johnson, they say, was trying to build his reputation as an expert in the fledgling field of bite-mark evidence, and later spoke about the case around the country. Johnson was standing by his analysis even when Stinson was freed in 2009, saying he disagreed with a panel of experts that completely dismissed his opinion in the case. Stinson's new expert says even under 1985 standards, Johnson's work was badly flawed.  Innocence Projects around the country have won exoneration of inmates convicted on the basis of bite marks, a strain of forensic analysis that has been largely discredited. Body found in alley: Ione Cychosz, 63, was found dead in an alley near Stinson's home near North 7th and West Center streets in November 1984. She lived on the same street. She had been beaten to death. Her partially nude body had apparent bite marks on it. Stinson, 21, at the time, had a solid alibi and denied any knowledge of the murder, but quickly became the lead suspect. No other evidence tied him to the scene. No one testified he was anywhere but where he said he had been. In her opening statement, Stinson's attorney, Gayle Horn, asked the federal jury, "How did these defendants get it so wrong?" She answered, "It was not an innocent mistake." Horn suggested the evidence will show that Gauger and his now-deceased partner, Thomas Jackelen, "had it in" for Stinson because they believed he had withheld information about a 1982 homicide. The plaintiff team claims the detectives got Johnson to alter his initial analysis after learning Stinson was missing a different tooth. She showed jurors a police sketch, based on Johnson's observation of the victim, of a person's upper teeth that showed a missing second top incisor. Next to it, Horn displayed a photo of Stinson's teeth, which were missing an upper front tooth. Johnson's attorney, Jason Franckowiak, called the original sketch a red herring, just an early image based on Johnson's memory of viewing Cychosz's body, before he had even see the forensic photographs. After Johnson — an unpaid consultant to the medical examiner — said it appeared whoever bit Cychosz was missing an upper tooth, the detectives locked in on Stinson when they noticed he was missing his front tooth. He and his twin brother were interviewed because Cychosz was found near their backyard.  At a secret John Doe hearing, Stinson was ordered to let Johnson take molds and imprints and photos of his teeth, and Johnson later concluded only Stinson could have made the marks found on the victim's body.  The prosecutor on the case, Daniel Blinka, now a law professor at Marquette University who went on to work with Johnson on bite-mark evidence research, wanted a second opinion. He chose Rawson, whom Johnson had recommended. Gauger and his partner flew to Las Vegas with Johnson's molds and photos. Rawson looked over Johnson's materials for less than two hours and said he agreed it must be Stinson.  The day after detectives returned from five days in Nevada, they shared Rawson's findings with Blinka and arrested Stinson the next day. The idea that a person's dentition was as unique and traceable as a fingerprint was not generally accepted at the time, and is still not. Johnson believed it to be true and later used the Stinson case in his teaching at Marquette on the subject. Gauger would devote a chapter in his 2010 memoir, "The Memo Book," to "The Bite Mark Case."  He didn't edit it to reflect that Stinson had been exonerated.  Sometime after publication but before his deposition in Stinson's lawsuit, Gauger testified, he destroyed all memo books and notepads on which he based the book. Gauger, now silver-haired and walking with a cane, sounded his age from the witness stand at times, and repeatedly referenced the 35 years since the crime. But other times he was forceful and confident of specific memories. He said he doesn't believe now that he met with Johnson before talking with Stinson, despite what he wrote in his book and testified at his 2010 deposition. His attorney noted that Gauger's description of the trial, for instance, said he testified about an hour; he didn't testify at all. Horn pointed out that the teeth of Moses Price — who did kill Cychosz — didn't match Johnson's sketch either. She asked how a gap from a missing tooth would leave a mark when teeth on either side would not. Horn said the euphoria Stinson experienced when freed from prison didn't last that long as he struggled to reintegrate into life outside. "It's hard to catch, maybe impossible," she said during her opening statement. Stinson had dropped out of school in eighth grade to work to support his family, he later testified, and then earned a GED in prison. Since his release, he said he worked for a time in a plastics factory but mostly as a caregiver to his mother, who died of cancer in 2014, and a nephew with severe autism. He lives with his sister in Milwaukee."

The entire story can be read at:
https://www.jsonline.com/story/news/2019/06/24/freed-inmate-says-he-framed-bogus-bite-mark-evidence/1490097001/

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;

Monday, June 24, 2019

Henry Lee: Forensics superhero? Question of the day: "How Many Murder Cases Did the Celebrity Forensic Scientist Botch?" (Just Shawn Henning and Ricky Birch - or many, many more? HL) Extremely Important piece by reporter Natalie O'neill. (To my mind, the parallels to another controversial forensics superhero (once revered now notorious) - Charles Randal Smith - the namesake of this Blog - are extraordinary. HL);


QUOTE OF THE DAY: "This guy is still saying outlandish things to make himself look like a forensics superhero,” Myers said. “It ticks me off in a huge way.”

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PASSAGE ONE OF THE DAY: "But Lee’s history of problems with evidence—intentional or not—doesn’t begin and end with Henning and Birch. The 81-year-old world-renowned forensic scientist—who has appeared on dozens of crime TV shows and documentaries—has allegedly hidden evidence or given incorrect testimony in at least three other cases, potentially sending the wrong men to prison and allowing guilty ones to walk free, according to court documents and other legal sources."

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PASSAGE ONE 'A' OF THE DAY: "In the years since these cases, Lee has become a rock star in the world of true crime. He’s appeared on the hit Netflix documentary The Staircase and dozens of Investigation Discovery-style programs, and he also scored his own show, Trace Evidence: The Case Files of Dr. Henry Lee.  He’s won prestigious awards, including the Medal of Justice and the Lifetime Achievement Award from the Science and Engineer Association. And he founded the Henry C. Lee Institute of Forensic Science—where his methods are being taught to future generations of criminalists. But critics, including a former colleague and legal opponents, say he may simply care more about scoring legal victories than the truth."

PASSAGE TWO OF THE DAY: “His attitude is extremely dangerous in the criminal justice system,” said McGraw, who is also the executive director of the Connecticut Innocence Project. “His testimony has led to some very unfair and unjust results. These are horrible cases—and there are big reasons to believe some of the men involved are innocent.”

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PASSAGE THREE OF THE DAY: "Darden said of Lee’s testimony. “It was bullshit, not science.”Kerry Myers, whom Lee helped send to prison for decades, is still seething. “Henry Lee is caught up in his own ego and loves being a forensic expert to the stars. I don’t think he cares about people—they’re objects he can use to promote himself,” said Myers, 62, who was set free two years ago. “It’s frustrating that he’s still doing it, and nobody is questioning him.” In May 2013, Lee gave an auditorium packed with graduating students a piece of advice. “You must have a winner’s attitude,” he said at Manchester Community College in Connecticut. “The loser always says, ‘There is no way.’ The winner always finds a way.”

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PASSAGE FOUR OF THE DAY: “If you’re on a jury and Henry Lee—the ‘world’s leading criminologist’—comes in and says,  ‘Here are these hairs and here’s this blood and this is what it means,’ that’s one thing the jury can hang its hat on because it's quote unquote-science,” McGraw said.  “But he knew or should have known at the time of trial it was not human blood.” I only can answer what they ask, I can’t volunteer information."

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PASSAGE FIVE OF THE DAY: "  "Not long ago, Myers came across a book Lee had written, Dr. Henry Lee’s Forensic Files: Five Famous Cases, which prominently featured a section on his wife’s murder. Myers says the book fudged the truth and included inaccuracies about his personal life along with Janet’s funeral. “This guy is still saying outlandish things to make himself look like a forensics superhero,” Myers said. “It ticks me off in a huge way.” Lee claims he only handled the “scientific explanations” in the book and that his co-author is responsible for those parts of the book that Myers claims are incorrect. His co-author, Jerry Labriola, agreed that he was responsible for the “prose of the story” but said he couldn’t remember that section of the book off-hand.

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PASSAGE SIX OF THE DAY: "Henry Lee was a silver bullet for the prosecution. “They rolled out a red carpet for him,” Henning recalled recently. “There was a certain celebrity to him, a majesty. He was an up-and-coming superstar on a worldwide level.” He added, “Every one of the jurors was glued to every word he was saying. It was nonsense but they were eating it up.” Lee testified over several days at Henning and Birch’s separate trials, often alongside grisly crime scene photos. “He had a very big, likable personality,” Birch said. “He cracked wise with his broken English and had the judge, jury, and myself chuckling, even during such a serious trial.” If they are in fact innocent,  I’m happy for them … But who is going to speak for the victim?"

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STORY: "Henry Lee: How Many Murder Cases Did the Celebrity Forensic Scientist Botch?" by reporter Natalie O'Neill, published by The Daily Beast on June 24, 2019.

SUB-HEADING: "Henry Lee testified in some of America’s biggest murder cases, from O.J. Simpson to JonBenet. But he’s been accused of botching evidence in multiple trials."

GIST: Before he became a true-crime celebrity, forensic scientist Henry Lee took the stand at a wildly bloody murder trial in Connecticut. It was spring of 1989 and the then-50-year-old Chinese-American hadn’t yet worked on his splashiest cases, from O.J. Simpson and JonBenet Ramsey to Scott Peterson. In the Connecticut trial, Lee faced a difficult task. As the star witness paid by the state, he was asked to back up the prosecution’s story that two homeless teenagers had butchered 65-year-old father Everett Carr—slitting his throat and stabbing him 27 times at his daughter’s home—without getting any blood on themselves, or leaving behind a shred of physical evidence. Lee wore a crisp suit as he took a seat next to the judge. When questioned, he testified that a reddish-brown stain found on a towel in the bathroom was “identified to be blood.” Despite the violent and messy nature of the attack—which left walls and floors in the home soaked in blood—he said it was possible that the killers had fled without a drop of blood on their clothing. His testimony bolstered the state’s claim that 17-year-old Shawn Henning and 18-year-old Ricky Birch had used the towel to clean themselves up after a “burglary gone bad.” It played a huge role in convicting the friends, who were sentenced to decades behind bars. The problem is, it wasn’t true. There was in fact no blood on the towel, and it had never actually been lab-tested, the Connecticut Supreme Court recently concluded. The ruling could lead to the exoneration of both men, who are in their fifties. The case features bombshell new DNA evidence—possibly pointing to a female killer—and witnesses who have since recanted, including a jailhouse snitch and a friend of Henning’s who testified he'd confessed to being at the home. Last week, the court tossed out the convictions for both men and granted them new trials after 30 years, citing Lee’s incorrect testimony and blaming prosecutors for failing to correct it. Reached by phone, Dennis Santore, the now-retired DA who put away Henning and Birch recently admitted, “It was a fishy case.” He said, “It was tough putting it together because it was circumstantial. But we did the best we could with what we had ... We didn’t do much testing back then.” Asked if he stands by the evidence, he said, “I would have to, if I put it on [trial]. A few days after Henning and Birch were granted new trials, Lee held a press conference insisting he made no errors. “In my 57-year career I have investigated over 8,000 cases and never, ever was accused of any wrongdoing or for testifying intentionally wrong,” said Lee told a throng of reporters. “This is the first case that I have to defend myself.” But Lee’s history of problems with evidence—intentional or not—doesn’t begin and end with Henning and Birch. The 81-year-old world-renowned forensic scientist—who has appeared on dozens of crime TV shows and documentaries—has allegedly hidden evidence or given incorrect testimony in at least three other cases, potentially sending the wrong men to prison and allowing guilty ones to walk free, according to court documents and other legal sources.



The cases include:
  • The Murder of L.A. Actress Lana Clarkson. Lee hid or destroyed a white object—likely an acrylic fingernail—found at the scene of Clarkson’s death by gunshot, a judge ruled in 2007. Lee had been hired by the legal defense of wealthy record producer Phil Spector, who was charged with, and eventually convicted of, Clarkson’s second-degree murder. Sara Caplan, then a defense attorney working with Lee, admitted to the judge that she saw Lee take the evidence, which he then failed to hand over to prosecution, according to the ruling.
  • The Murder of Young Mother Janet Myers. In 1990, Lee testified that 33-year-old Kerry Myers’ pants were spotted with his dead wife’s blood type, backing up the prosecution’s claim that he and a friend beat her to death with a bat. Both men were convicted. But Lee’s testimony was later called into question by a detective who handled the case, who insists Janet’s blood type was never found on Myers’ pants.
  • The Disappearance and Murder of Teenager Joyce Stochmal. In 1988, after Connecticut teen Joyce Stochmal went missing and turned up dead, Lee testified that a brown crusty substance, found on a knife belonging to 29-year-old suspect David Weinberg, was blood. Lee said there was no way to know if the blood belonged to a human, but Weinberg was still convicted. Yet lab tests had in fact been done by the time of the trial—and they revealed it was definitively not human blood, according to a petition for a new trial filed on behalf of Weinberg in 2017. His lawyer, Darcy McGraw, claims Lee “knew or should have known” it wasn’t human blood.
Lee has a defense for each alleged screw-up. In the Stochmal case, he insists the “lawyers don’t understand the science”— and that a “chemical presumptive test” taken at the crime scene “tested positive” for blood. In the Carr case, he claims he never testified that the substance on the towel conclusively was blood, only that the same type of field test showed it was “was consistent with blood.” (Testimony from back then, however, shows he went a step further, saying the “smear was identified to be blood,” according to the Washington Post.) In the Janet Myers case, he contends the police officer is mistaken about the blood type found on Kerry Myers’ pants. And in the Clarkson case, he insists he offered the possible fingernail to the prosecution and “they didn’t want it. I didn’t think it was true then—and I don’t think it’s true today. In the years since these cases, Lee has become a rock star in the world of true crime. He’s appeared on the hit Netflix documentary The Staircase and dozens of Investigation Discovery-style programs, and he also scored his own show, Trace Evidence: The Case Files of Dr. Henry Lee.  He’s won prestigious awards, including the Medal of Justice and the Lifetime Achievement Award from the Science and Engineer Association. And he founded the Henry C. Lee Institute of Forensic Science—where his methods are being taught to future generations of criminalists. But critics, including a former colleague and legal opponents, say he may simply care more about scoring legal victories than the truth. “His attitude is extremely dangerous in the criminal justice system,” said McGraw, who is also the executive director of the Connecticut Innocence Project. “His testimony has led to some very unfair and unjust results. These are horrible cases—and there are big reasons to believe some of the men involved are innocent.” Former O.J. Simpson prosecutor Christopher Darden now says Lee “stretched” the truth when he testified on behalf of the former football Hall-of-Famer’s defense team in 1995. Back then, Lee told jurors “something [was] wrong” with a blood sample placed into evidence, boosting the defense’s claim that cops had tampered with it. “I didn’t think it was true then—and I don’t think it’s true today,” Darden said of Lee’s testimony. “It was bullshit, not science.”Kerry Myers, whom Lee helped send to prison for decades, is still seething. “Henry Lee is caught up in his own ego and loves being a forensic expert to the stars. I don’t think he cares about people—they’re objects he can use to promote himself,” said Myers, 62, who was set free two years ago. “It’s frustrating that he’s still doing it, and nobody is questioning him.” In May 2013, Lee gave an auditorium packed with graduating students a piece of advice. “You must have a winner’s attitude,” he said at Manchester Community College in Connecticut. “The loser always says, ‘There is no way.’ The winner always finds a way.” Lee likes to stress the importance of winning in his speeches and writings. As the 11th of 13 children, raised without a father by an immigrant mother, success and ambition set him apart from the pack. Born in Kiangsu Province, China in November 1938, Lee fled with his family to Taiwan at the end of the Chinese Civil War in the late 1940s. His father, travelling to the island separately, died when his ship sank in January 1949. Lee was 10 years old. As a young man, Lee was hired by the Taipei Police Department, where he worked his way up to the rank of captain. In 1965, he moved to the U.S. with just $65, and graduated from John Jay College with a degree in forensic science seven years later. He went on to get his doctorate at New York University. In my 57-year career I have investigated over 8,000 cases and never, ever was accused of any wrongdoing or for testifying intentionally wrong. — Henry Lee After graduation, he volunteered his then-newfangled crime lab skills to Connecticut prosecutors but nobody would take him up on it. Instead, a public defender, Charlie Gill, gave him his first job. "I went to see him and I could barely understand a word he said,” Gill said in an L.A. Times profile piece several years ago, referring to Lee’s thick accent. He asked Lee to work a salacious case. In it, two men were accused of sexually assaulting a woman they had met at a bar in Litchfield, Conn. in the mid-1970s. It had been nicknamed the “panties in a tree case” in reference to where the victim’s undergarments were found.  As the star witness at the trial, Lee gave dramatic testimony. He said seminal fluid belonging to at least four other men was discovered on the woman’s underwear. In the end, the men on trial were found not guilty. Lee’s career took off soon after. In 1979, he landed a job as the director of the Connecticut state crime lab, and eventually offered expertise on blood type, spatter, microscopic hair particles and fibers. Back then, forensic scientists responded to crime scenes alongside cops and EMTs. “We got called in the middle of the night, on holidays and weekends, and we had to respond,” Lee told me. “It was not an easy job.” On the stand, jurors found him credible and even charming. He was quick with a joke, or a moment of levity and could explain complex theories in simple ways. “I don’t think I ever met a juror who didn’t find him persuasive,” said one former Connecticut court clerk, who shepherded jurors around during many of Lee’s cases. “He employed science in a way that made sense and he came across as a bona fide scientist. He always seemed very well organized,” he said. “He really impressed me.” Lee’s first major case was the horrific Helle Crafts “woodchipper” murder of 1986. It centered on a Danish flight attendant whose airline pilot husband, Richard Crafts, slaughtered her and tossed her body into a woodchipper. Cops found human tissue along with Helle’s hair and blood type in a nearby lake. Lee, who led the forensic investigation, helped determine that her remains had gone through the chipper. Richard was sentenced to 50 years in prison, and the case went down in history as Connecticut’s first murder conviction without a victim’s body, thanks in big part to Lee. In 1995, Lee shot to international fame when he appeared as the star forensics witness during the televised O.J. Simpson trial, where he challenged the Los Angeles Police Department's handling of blood samples. During the trial, Lee testified that blood was likely placed onto Simpson’s socks while they were lying flat, rather than when someone was wearing them. He said a critical blood stain was improperly handled, creating a smear on a paper evidence holder, and bolstering the defense’s claim that cops tampered with the still-wet sample. "The only opinion I can give under these circumstances is something [is] wrong," Lee said. Darden, who was then Marcia Clark’s right-hand man in the case, claims O.J.’s lawyers told Lee to use the memorable-but-vague phrase during a court break. “It was a stretch … He shouldn’t have said anything up there that wasn’t based in science,” Darden told me. “But he has a whole shtick and juries like him.” Indeed, some jurors later called Lee’s testimony a major factor in Simpson’s acquittal. Lee was soon working some of the most sensational cases of the era. He helped investigators with the case of JonBenet Ramsey, a 6-year-old beauty pageant star found beaten and strangled to death in her Colorado home.  He spent hours with the defense team of Scott Peterson, a California businessman who was convicted of murdering his eight-months-pregnant wife, Laci Peterson, and their unborn child, examining the remains of her decapitated body, and taking tissue samples. Several years later, Lee testified on behalf of accused toddler killer Casey Anthony, which helped lead to the Florida mom’s acquittal in 2011. He helped investigators on the case of Elizabeth Smart, the abducted 14-year-old Utah girl, leading to the conviction of Brian David Mitchell. He also testified on behalf of novelist Michael Peterson, who was convicted of beating his wife to death near the staircase of their North Carolina home. (The author and subject of the documentary  The Staircase was later granted a new trial and took an Alford plea.) And Lee worked for the defense team of Michael Skakel, a Kennedy family relative accused of brutally murdering teenager Martha Moxley. But Lee’s credibility wasn’t challenged until 2007, as a little-known subplot in one of the year’s most attention-grabbing murder trials—the shooting of actress Lana Clarkson.

Phil Spector and Lana Clarkson

On Feb. 3, 2003,  Lana Clarkson, a striking 6-foot-tall actress, was shot in the face at famed music producer Phil Spector’s mansion. Earlier in the night, Spector—who had made records with John Lennon and George Harrison—picked up the 40-year-old former B-movie star in a limo at the House of Blues in L.A., where she worked. An hour after they got back to Spector’s place, the driver heard a gunshot. “I think I just shot her,” Spector wailed, according to an arrest affidavit. Later, he insisted Clarkson had “committed accidental suicide” when she “kissed a gun” and it discharged after a night of drinking. Lee soon began working for Spector’s defense team. While combing through the murder scene, Lee picked up part of an "acrylic fingernail,” placed it in a vial and left, according to testimony from two of Lee’s former colleagues, which was reported by the L.A. Times. In May 2007, during Spector’s trial, Judge Larry Paul Fidler ruled that Lee failed to hand the flat white object over to prosecutors—and instead hid or destroyed it, according to reports at the time. The evidence was key, prosecutors said, because it proved Clarkson’s hand couldn’t have been on the gun when she died, ruling out the suicide defense. In the end, a mistrial was declared due to a hung jury. But Spector was convicted of second-degree murder in a second trial in April 2009. “Lee got his ass kicked on that case. He thought he was a little too powerful,” said Stanley White, a former Spector defense investigator at the scene that day, who testified he saw Lee take the nail. White, who is also a former sheriff's homicide investigator, said Lee was cavalier about the evidence. “He said, ‘I think I found some tissue.’ I got down on my hands and knees and I said, ‘That’s not tissue, that’s a piece of a fingernail.’ He said, ‘You need glasses’ and I said, ‘The hell I do.’” White added, “For whatever reason, people thought he was the greatest forensic guy on the planet. But from my experience, he was a moron.” Lee got his ass kicked on that case. He thought he was a little too powerful.
— Stanley White, a former Spector defense investigator It may have simply been a mistake—as opposed to a shrewd move—but it should have been a career-stopper either way, White said. “No police department or federal agency should work with you after that,” he said. “I thought nobody would hire him.” Lee now contends the object was a piece of thread. He claims he offered it to the defense and the prosecution and neither side wanted it. “It became a moot issue at the trial,” he said. Lee’s misstep was overshadowed by the more lurid parts of the Spector trial, which was splashed across television sets nationally. His blunder got little media coverage, and so he kept getting hired.
To this day, he’s highly regarded, even by some people who worked the Spector case. Sara Caplan—the former Spector defense lawyer who testified that she saw Lee put the missing evidence in a vile —is still singing his praises. “The only thing I can say about Dr. Henry Lee is that I have the utmost respect for him as a forensic criminalist and as a human being,” Caplan told me recently without elaborating.  “He is one of the most brilliant men with whom I have had the opportunity to work.”

David Weinberg and Joyce Stochmal

On the night Joyce Stochmal went missing in August 1984, she ate a seafood dinner with her family and packed a Nike gym bag with overnight clothes. The petit 19-year-old worked at a dog kennel and sometimes slept there. She was last seen walking on the side of a road near the Housatonic River in Connecticut. Three people on a fishing trip spotted her body floating in Lake Zoar, a nearby reservoir, a few days later. She had been beaten and stabbed 17 times. Months later, cops arrested David Weinberg, a 26-year-old printing shop worker and car enthusiast from the blue-collar town of Seymour, just north of where Stochmal was last seen. Weinberg said he didn’t know Stochmal. But cops zeroed in on him after his girlfriend reported he was “acting funny” and may have been involved in Stochmal’s death. (His girlfriend suffered from paranoid schizophrenia, according to Weinberg’s petition for a new trial, filed in January 2017.) His girlfriend told cops that she and Weinberg had waded across the Pomperaug River to a burn site on the day Stochmal vanished, according to the court documents. They used her statement to link him to the smoldering pit, where cops said charred clothing from Stochmal’s bag were found. Weinberg’s motive, prosecutors claimed, was a sexual assault gone awry. But there was zero physical evidence to back up that theory, according to Weinberg’s lawyers. "They had nothing significant against him. In this particular case, an extremely powerful guy, known as a ‘rock ‘em sock ‘em’ prosecutor, had asked for the death penalty, ” said Weinberg’s lawyer, Darcy McGraw. “Then Henry Lee, with all of his storied credentials, came in.”
At the trial, Lee testified that blood was found on a knife that belonged to Weinberg. Asked whether it was human blood, Lee said on the stand there was no way to know because the sample was insufficient.  He also testified that three “unusually fine” hairs consistent with Stochmal’s were discovered in the trunk of Weinberg’s car. His testimony helped convict Weinberg, who was sentenced to 60 years behind bars. But an investigation, launched decades later by the Connecticut Innocence Project’s post-conviction unit, recently revealed there was in fact no human blood on Weinberg’s knife. What’s more, investigators discovered lab sheets that showed “it was definitively known” at the time of the trial that the substance “was not human blood,” according to Weinberg’s petition for a new trial. Lee had lab notes “in front of him” during the 1988 trial that clearly stated the substance on the knife was not human blood, according to McGraw. Lee fired back, saying by email, “Every [lab] test was negative (no results). Therefore, I cannot tell the species of the blood.” He didn’t address the claim that he had lab notes at the trial that stated otherwise. “If you’re on a jury and Henry Lee—the ‘world’s leading criminologist’—comes in and says,  ‘Here are these hairs and here’s this blood and this is what it means,’ that’s one thing the jury can hang its hat on because it's quote unquote-science,” McGraw said.  “But he knew or should have known at the time of trial it was not human blood.” I only can answer what they ask, I can’t volunteer information ... I tried to be honest.
— Henry Lee Lee insists that a “chemical presumptive” test was taken at the crime scene and that it showed the substance on the knife “tested positive for blood.” He claims he later did a “species test” in a lab to determine if it was animal blood and it yielded no results.  He said he couldn’t have known the substance on the knife wasn’t human blood because the sample was inadequate. Still, he admits, the lab tests never showed it was human blood, either. At the trial, he said lawyers didn’t press him to get specific about the difference between lab testing and less accurate field testing. “I only can answer what they ask, I can’t volunteer information,” he said of the testimony. “I tried to be honest.” As it turns out, his testimony about Stochmal’s hair ended up being wrong, too, McGraw said at a 2017 court hearing. Further testing revealed that two of the three hairs found in Weinberg’s car were not actually the murder victim’s, and the test on the third was inconclusive, she said. Other powerful new evidence includes a confession that was never given to Weinberg’s defense attorney. In 2010, McGraw was going through boxes of records on the Weinberg case when she came across a police report. It noted that four years after Stochmal was slain, a female hitchhiker confessed to cops that she had killed her for money, according to Weinberg’s petition for a new trial.
McGraw, along with an investigator and the Connecticut Innocence Project’s then-director, later met in person with the detective who took her statement all those years ago. He admitted that he never turned the woman’s statement over to the prosecutor in charge of Weinberg’s case, the petition for a new trial states. It wasn’t necessary, the cop told them, because the woman was “mentally unstable,” according to the court documents. He said he didn’t “believe her” and thought her confession didn’t fit “with what he believed the facts to be.” The loser always says, ‘There is no way.’ The winner always finds a way. — Henry Lee But the hitchhiker knew details of the case that hadn’t been reported to the public—that Stochmal had been stabbed with a six-inch knife and that her purse was filled with rocks before it was tossed the river, according to Weinberg’s petition for new trial. Nevertheless, cops let her walk free. It’s unclear where she is today. The court didn’t respond to Weinberg’s petition for a new trial. Ultimately, his lawyers and Waterbury county State Attorney Maureen Platt reached an agreement to modify his sentence to “time served.” The deal states that neither party admits “that the claims or defences of the other has merit.” While his conviction still stands, Weinberg was freed from prison two years ago at age 58. But the ripple effect of Lee’s misleading testimony in the Stochmal case may be immeasurable, McGraw said. “We have no way of knowing the extent of the effect he has had over the years,” she said. “The criminal justice system runs on guilty pleas, and if you have Henry Lee working cases for the prosecution, [the accused are] going to be more likely to plead [guilty],” she added—whether or not they are actually innocent.
We have no way of knowing the extent of the effect he has had over the years.
— Weinberg’s lawyer, Darcy McGraw

Kerry and Janet Myers

In February 1984, a young mom was found beaten to death with an aluminum baseball bat inside her suburban New Orleans home. Janet Myers, a fiery 26-year-old aspiring writer, had been bludgeoned in the head while her 2-year-old son, Ryan, sat in a high chair nearby. Her husband, Kerry Myers, and his high-school pal William Fontanille were soon charged with her murder. Each blamed the other for her death. Myers said he walked in on Fontanille attacking his wife, sparking a fight between the two men. Fontanille told cops he had sex with Janet, and that Kerry Myers had killed her and was going to try to pin it on him. At first, only Fontanille was charged with her murder and Kerry Myers—who had called 911 screaming, “He killed my wife!”—served as the star witness in his trial. When it ended in a hung jury, prosecutors opted to charge both men. This time, they claimed the friends had planned to kill Janet and Fontanille's ex-wife, Susan. At the second trial, the prosecution’s story was bolstered by Lee, who testified that spots of Type A blood—Janet’s type—were found on Kerry Myers’ pants, according to court documents. A jury found Fontanille guilty of manslaughter and he was hit with a 21-year sentence in 1990. Myers was shocked when a judge convicted him of second-degree murder, and sentenced him to life in prison the same year. But decades later, Lee’s testimony was challenged by a former Jefferson Parish detective who responded to the crime scene and handled the case. In a letter to the Louisiana Board of Pardons & Parole, Robert Masson claimed the only blood type ever found on Kerry Myers pants was actually Type B, which in fact matched Fontanille’s blood type. “I was never convinced Myers was guilty of the crime for which he was convicted,” Masson wrote in September 2013. “This case still causes me to have concerns. It is the only case I have ever handled where I have doubt about the guilt of someone.” Even Janet’s mother, who testified on behalf of Myers at his parole hearing in 2013, wasn’t convinced. Lee contends, “If results say it was consistent [with type A], I report that faithfully … I did not frame somebody.” He added that Myers’ pants were blue jeans, which he said have “antigens” that sometimes yield “incorrect Type B blood results.” But Myers calls Lee’s testimony stunningly misleading. He said Lee used the words “spots” and “spatter” interchangeably, which is deceptive because the former can be chalked up to transfer stains from the bat, which he said Fontanille used to attack him after Janet. The latter, however, was used during the trial to show Myers was near Janet when she was beaten. “He was going to come up with the conclusion the state wanted regardless of what the evidence showed,” said Myers, who has maintained his innocence all along. “He ambiguously twisted things. He started with theoretical—‘they could have done this’ or ‘they could have done that’—and he went way outside of his scope of expertise,” Myers said. He added that Myers’ pants were blue jeans, which he said have 'antigens' that sometimes yield 'incorrect Type B blood results.' In December 2016, Kerry Myers’ life sentence was commuted by Gov. John Bel Edwards after he filed a petition for actual innocence and former detective Masson, along with Janet’s family members, backed him up at a parole hearing.  He was set free based on “good time credits” after roughly three decades behind bars.
John Mamoulides, the former District Attorney who tried the case, didn’t return requests for comment. Not long ago, Myers came across a book Lee had written, Dr. Henry Lee’s Forensic Files: Five Famous Cases, which prominently featured a section on his wife’s murder. Myers says the book fudged the truth and included inaccuracies about his personal life along with Janet’s funeral. “This guy is still saying outlandish things to make himself look like a forensics superhero,” Myers said. “It ticks me off in a huge way.” Lee claims he only handled the “scientific explanations” in the book and that his co-author is responsible for those parts of the book that Myers claims are incorrect. His co-author, Jerry Labriola, agreed that he was responsible for the “prose of the story” but said he couldn’t remember that section of the book off-hand.

Shawn Henning, Ralph “Ricky” Birch,and Everette Carr

On Dec. 1, 1985, Shawn Henning and Ralph Birch were living in a stolen brown Buick Regal with a busted muffler. The teens had been burglarizing houses in the semi-rural town of New Milford, Conn. in the days leading up to 65-year-old Everette Carr’s murder. When police arrived at his daughter’s tidy white home, they found Carr’s throat slit from one side of his neck to the opposite ear. His jugular had been severed. He was stabbed dozens of times with a kitchen knife, and there were large gashes in his head. Blood was pooled up around his corpse, smeared and spattered on walls, nearly up to the ceiling. A set of bloody shoe prints led to a bedroom on the first floor, where a dresser appeared ransacked. During the investigation, cops learned Henning and Birch had been breaking into homes nearby. After interviewing neighbors, who said they heard a loud muffler, they zeroed in on the teens, who admitted to the burglaries but insisted they hadn’t killed Carr. “Immediately, we became the prime suspects (understandably) and any evidence that didn’t fit that theory was quickly abandoned with minimal investigation (not so understandably),” Birch wrote in a recent letter from prison.
They were both charged with murder, but the evidence was never rock-solid. Dozens of samples were taken from the floor, walls and other objects, including a cigar box, Carr’s underwear and a broken-off piece of the murder weapon. But not a single piece of physical evidence—blood, hair, or fibers—found at the home belonged to the teens, according to lab tests at the time. The state also tested Henning and Birch’s clothing and shoes, along with the interior of the Buick. Not a speck of Carr’s blood was found on any of it. Instead, prosecutors relied on testimony from two jailhouse snitches. One of them, Todd Cocchia, got key details of the murder wrong—he said that Carr had been murdered in the daytime, and that the killer was alone—during his first interview with a police officer. A cop corrected him and gave him the actual facts of the case, according to Birch’s appellate brief. (Amazingly, his testimony was used anyway.) Without airtight evidence, Henry Lee was a silver bullet for the prosecution. “They rolled out a red carpet for him,” Henning recalled recently. “There was a certain celebrity to him, a majesty. He was an up-and-coming superstar on a worldwide level.” He added, “Every one of the jurors was glued to every word he was saying. It was nonsense but they were eating it up.” Lee testified over several days at Henning and Birch’s separate trials, often alongside grisly crime scene photos. “He had a very big, likable personality,” Birch said. “He cracked wise with his broken English and had the judge, jury, and myself chuckling, even during such a serious trial.” If they are in fact innocent,  I’m happy for them … But who is going to speak for the victim? — Henry Lee After Lee testified about “blood” on a towel (blood that wasn’t actually there), prosecutors used his statements to explain away the lack of any physical evidence. They told jurors the killers used it to wipe themselves clean of Carr’s blood before bolting from the home. Ultimately, Henning was sentenced to 50 years. Birch was hit with 55 years. But in 2006, the Connecticut Innocence Project launched an effort to re-investigate and re-test dozens of items found in Carr’s home, using modern DNA techniques. They discovered Lee’s testimony was “patently false,” that the “the towel had not been tested” and the stains “were not blood,” according to Henning’s appellate brief. But there was an even more stunning revelation: DNA found mixed with Carr’s blood—including on the waistband of his underwear and floorboards of the house—belonged to a mystery woman. The Innocence Project also found the bloody footprints were size 7.5 to 9, much smaller than Henning’s or Birch’s. The burglary appears to have been staged, too, according to the court documents. Other powerful evidence includes the fact that Cocchia has since recanted, and another snitch pleaded the fifth. A friend of Henning, Timothy Saathoff, also recanted, saying he made up a story because a police officer convinced him it would help his pal, according to court documents. Back then, Saathoff testified that Henning confessed to him that he had committed a burglary where an accomplice killed a man. But Saathoff recently came forward to admit he had lied because the cop persuaded him it would help Henning, if he claimed Henning was at the scene but didn’t comitt the murder, according to court documents. Earlier this month, the Connecticut Supreme Court ruled that the men did not receive a fair trial and ordered new trials, citing Lee’s incorrect testimony. Without the Lee’s claim about “blood,” the case “could very well have collapsed,” the court said. After the ruling, Lee said, “If they are in fact innocent,  I’m happy for them … But who is going to speak for the victim?” I will never have what this conviction has taken away from me. I will never have a career. I will never have a family with children, a nice car or a house. I will never have the things normal people have. I have 30 years of [prison] memories I wouldn’t wish on anyone ... It has been excruciating — Shawn Henning:The attorneys for Henning and Birch, Jim Cousins and Andrew O’Shea, now want the men exonerated. Cousins said jurors today place a huge weight on DNA evidence and a retrial would almost certainly result in a not-guilty verdict. The state has not decided yet whether it will retry them. “I believe with every inch of my being that Shawn and Ricky had nothing to do with this crime,” Cousins told me. “But there are legal niceties that have to happen.” In November, Henning was released on parole and set free. He said he wants his name cleared. “I will never have what this conviction has taken away from me. I will never have a career. I will never have a family with children, a nice car or a house. I will never have the things normal people have. I have 30 years of [prison] memories I wouldn’t wish on anyone,” he said. “It has been excruciating.” He added, “I want the state of Connecticut to say in front of the world that it screwed up.” Birch, who was tried as an adult, remains behind bars at Osborn Correctional Institution in Somers, Conn. It wasn’t immediately clear when he’d be set free. As a model inmate, he lives in a single cell with his golden retriever mix, Celly, that he’s training for the America’s VetDogs. He said he’s a born-again Christian, working on forgiveness. Santore contends he didn’t pressure Lee or threaten to yank him from the case. 'That never happened,' he said. “I harbor no ill-will towards Dr. Henry Lee,” he said. “I don’t think he went into trial saying, ‘I’m going to screw over these guys,’ but he slanted his testimony so that he would help convict two people because police told him we were guilty.” In response, Lee refused to address whether blood was on the towel specifically, but said the physical evidence he provided to the state was truthful.  “I did not link fingerprint, sho[e] print, or any blood typings to [them.]” He expressed a general feeling of regret, saying, “I don’t think I helped anybody. The [victim’s] family even think[s] I am incompetent … It’s like a nightmare.” But he contends that, while no lab tests were conducted on the towel, a “chemical presumptive” test was taken at the scene that showed it “could” have been blood. “There was a positive reaction … but the DA said ‘That’s not important,’ so I didn’t request a lab confirmation test,” Lee said. “I did not complete these cases myself, I worked as a team with others.” Lee said he felt pressure from the then-DA, Dennis Santore, and Carr’s wife to find physical evidence that simply wasn’t there. “Before this case, they didn’t have a suspect,” Lee said. “The victim’s wife came to the laboratory and said, ‘You’re incompetent.’ The DA threatened to take me off the case. I still feel this case is strange.” Carr’s wife didn’t return a request for comment. Santore contends he didn’t pressure Lee or threaten to yank him from the case. “That never happened,” he said. He said Lee decided on his own that lab-testing the towel didn’t matter. “I would have done anything Lee thought was important,” he said. Asked if he’d do anything differently looking back, Lee said, 'Maybe I’d pick another career.' The problem of botched evidence may be bigger than Henry Lee. Forensic witnesses are supposed to be credible unbiased sources of truth within the justice system. But the set-up fails to take into account human nature, legal experts say. “There is a tendency to want to be part of the team, and to help the team. That can lead to going over boundaries that should be maintained,” said Joseph Kadane, a Carnegie Mellon University professor who has written about ethical dilemmas expert witnesses face. “There’s also the fact that one side hires you and pays the bill,” he said. “It’s a slippery slope. Someone’s monetary—or other—desires could overpower their duties to the court.” One solution, policy-wise, would be to change the model so that a judge chooses a single expert that both sides agree on, he said. Ultimately, Henry Lee estimates he has worked thousands of cases over his nearly five-decade forensics career, the vast majority of which have not been discredited. He said he now works cold cases, and sometimes gives lectures on the “limitations of forensic science.” Asked if he’d do anything differently looking back, Lee said, “Maybe I’d pick another career.” He added, “They are using today’s standard to judge 30 years ago.”  Indeed, forensic science techniques that were widely used by experts in the 1980s and 1990s—including hair particle and bite mark evidence—have in recent years been discredited  as “junk science” and ruled inadmissible in court. “Forensics is undergoing a revolution,” Kadane said. “In the past, it hasn’t been as scientific as it needs to be. Experts reached conclusions as if they were absolutely certain when they had no business being that certain.” “The problem with forensics is that it almost always involves people—and people are not infallible.”"
https://www.thedailybeast.com/henry-lee-how-many-murder-cases-did-the-celebrity-forensic-scientist-botch

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;




Darrell Jones: Massachusetts: (Tampering with videotape evidence and much more): Major Development) - From our enough to make one weep department - (How hard they have to work to make an utterlky innocent person utterly guilty. HL; ) - Freed after 32 Years in prison after long overdue 'not guilty' retrial verdict, opines law prof Stephanie Roberts Hartung..." Jones’ trial counsel was manifestly ineffective. He failed to meaningfully cross-examine police witnesses, some of whom he had recently represented in civil matters, including Detective Joseph Smith, who tampered with evidence by “crash editing” the videotape of an eyewitness to erase her description of the perpetrator."


PASSAGE OF THE DAY: "Jones’ conviction was suspect from the beginning. He was originally convicted in the 1985 shooting death of Guillermo Rodrigues outside a Brockton bar, based solely on inconsistent eyewitness identification testimony. At trial, the so-called “eyewitnesses” gave conflicting accounts about whether they had, in fact, identified Jones as the shooter. The prosecutor presented no physical evidence connecting Jones to the crime, nor any proof of motive or a relationship with the victim. There was also affirmative evidence supporting Jones’ factual innocence, including several witnesses who reported seeing him eating inside a nearby bar at the time of the shooting. Jones’ trial counsel was manifestly ineffective. He failed to meaningfully cross-examine police witnesses, some of whom he had recently represented in civil matters, including Detective Joseph Smith, who tampered with evidence by “crash editing” the videotape of an eyewitness to erase her description of the perpetrator. Inexplicably, trial counsel also requested to have Jones sit in the prisoners’ dock throughout the trial rather than at counsel table, a decision that denied Jones the opportunity for attorney consultation. "

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COMMENTARY: "After 32 Years In Prison, Darrell Jones' 'Not Guilty' Retrial Verdict Was Long Overdue," by Stephanie Roberts Hartung, Pubkished by WBUR  on June 12, 2019. (Stephanie Roberts Hartung is a professor at Northeastern University School of Law and serves on the board of the New England Innocence Project. Her scholarship focuses on wrongful convictions and criminal justice reform.)




PHOTO CAPTION: "Darrell Jones embraces Rev. William Barry, who he calls "Dad," following his release on bail in 2017 after serving 32 years in prison. Tuesday, jurors found him not guilty in his retrial."
 
GIST: "Tuesday’s swift "not guilty" verdict in the retrial of Darrell Jones is a clear repudiation of prosecutors' misguided decision to retry the case in spite of strong evidence of his innocence. In 1986, Jones, who is black, was convicted of first-degree murder by an all-white jury in Brockton, and sentenced to life in prison. He stayed there for 32 years. In 2017, Jones was released after the court vacated his conviction and granted a new trial, finding that his original trial was unjust — tainted by an overtly racist jury and false police testimony. Jones’ original lawyer also had a clear conflict of interest, initially failing to disclose that he had recently represented several witnesses against Jones, including the two lead detectives in the case. In spite of proof of police, attorney and jury misconduct in the original trial — along with growing evidence of Jones’ factual innocence — the Plymouth County District Attorney’s Office still opted to retry to the case. This decision demonstrated the DA’s arrogant refusal to honestly assess the evidence. The jury responded to their hubris with an acquittal.
While the "not guilty" verdict in the Jones case was a just result, it was long overdue. This case illustrates the layers of injustice during the investigation, trial and after the conviction. Jones’ original trial resulted in a wrongful conviction and over three decades of incarceration — a profound miscarriage of justice. The prosecution’s unwillingness to reckon with the wrongful conviction once it was revealed added further insult to injury. In 2019, nearly 35 years after Jones’ original trial, and in light of the increasing public awareness of wrongful convictions in the interim, there is no excuse for a prosecutor to turn a blind eye to such significant evidence of innocence. Wrongful convictions of the innocent occur at an alarming rate. To date, there have been 2,462 known exonerations in the United States, resulting in 21,645 years of wrongful incarceration. These numbers are widely regarded as reflecting the tip of the iceberg of factually innocent prisoners who remain incarcerated. The primary factors giving rise to wrongful convictions include eyewitness identifications, false confessions, flawed forensics and police and prosecutorial misconduct — several of which were present in the Jones case. Jones’ conviction was suspect from the beginning. He was originally convicted in the 1985 shooting death of Guillermo Rodrigues outside a Brockton bar, based solely on inconsistent eyewitness identification testimony. At trial, the so-called “eyewitnesses” gave conflicting accounts about whether they had, in fact, identified Jones as the shooter. The prosecutor presented no physical evidence connecting Jones to the crime, nor any proof of motive or a relationship with the victim. There was also affirmative evidence supporting Jones’ factual innocence, including several witnesses who reported seeing him eating inside a nearby bar at the time of the shooting. Jones’ trial counsel was manifestly ineffective. He failed to meaningfully cross-examine police witnesses, some of whom he had recently represented in civil matters, including Detective Joseph Smith, who tampered with evidence by “crash editing” the videotape of an eyewitness to erase her description of the perpetrator. Inexplicably, trial counsel also requested to have Jones sit in the prisoners’ dock throughout the trial rather than at counsel table, a decision that denied Jones the opportunity for attorney consultation. This arrangement also gave the jury the impression that he was dangerous and likely guilty. During his decades in prison, Jones consistently maintained his innocence, filing a series of unsuccessful appeals and motions. In December 2017, following an investigation by WBUR uncovering racial bias among the jury and a new trial motion filed on Jones’ behalf by the state’s Innocence Program, Superior Court Judge Thomas McGuire found the circumstances of Jones’ trial to have been fundamentally unjust. He vacated the conviction and granted a new trial." Although the original trial was deemed to have been unjust, and in spite of mounting evidence of Jones’ factual innocence — including medical records turned over on the eve of the trial casting Jones’ identity as the shooter into doubt — the DA insisted on retrying the case. During the retrial, the prosecution presented much of the most contested and critical eyewitness testimony without the benefit of live witnesses appearing before the jury. Instead, members of the district attorney's office read prior transcripts of witnesses' testimony. This approach left the jury unable to assess the credibility of this fundamental testimony. Ultimately, the jury’s verdict was a rebuke to the DA’s irresponsible approach. A prosecutor’s job is to pursue justice, not to pursue a conviction at all costs. It is bad enough that Darrell Jones was wrongfully convicted in 1986, well before the era of DNA exonerations and the resulting understanding of wrongful convictions and their causes. But it is worse still, in 2019, for a prosecutor to ignore evidence of innocence and blindly pursue a retrial against a factually innocent man."

The entire commentary can be read at:

https://www.wbur.org/cognoscenti/2019/06/12/darrell-jones-retrial-innocence-project-stephanie-roberts-hartung

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;

Sunday, June 23, 2019

Kevin Cooper California: Spotlight: Kevin Cooper’s case exemplifies decades of systemic failures, opines lawyer Sarah Lustbader in the Appeal..."Kevin Cooper’s name has been in the papers in recent weeks, as it has been on and off for 35 years. This time, it was because Kim Kardashian visited him in prison, part of her advocacy for those she believes were wrongly convicted. Cooper was sentenced to death for the hacking murders of Douglas and Peggy Ryen, their 10-year-old daughter and an 11-year-old neighbor. The Ryens’ 8-year-old son, Josh, survived his throat being slashed. A reality show star is among Cooper’s best hopes for exoneration, and the media is generally focusing not on the case, but on backlash against her. These are only the two most recent examples of how Cooper’s case exemplifies so much that is wrong with our system."



PASSAGE OF THE DAY: "New York Times columnist Nicholas Kristof wrote an exhaustive and devastating column detailing the evidence indicating that Cooper was framed by law enforcement for the murders. “In 1983, four people were murdered in a home in Chino Hills, California,” he begins. “The sole survivor of the attack said three white intruders had committed the murders. Then a woman told the police that her boyfriend, a white convicted murderer, was probably involved, and she gave deputies his bloody coveralls. So here’s what sheriff’s deputies did: They threw away the bloody coveralls and arrested a young black man named Kevin Cooper. As in so many cases, Cooper’s trial was, to put it mildly, racially charged. One man brought a noose around a stuffed gorilla to a hearing. According to Cooper’s current lawyer, “he didn’t have a half-decent defense.” The crime was high profile and law enforcement was under pressure to punish someone. Kristof dispatches with the evidence against Cooper by exposing law enforcement negligence, such as when the district attorney shut down the on-scene investigation “for fear, he said, of gathering so much evidence that defense experts could spin complicated theories.” Kristof also exposes probable lies, like when a deputy suspected of planting evidence claimed not to have entered the room where the evidence was found, but his fingerprints were found there. Various judges have concluded that Cooper was framed. Kristof notes that the bloody coveralls were not the only evidence pointing to a different culprit, but it was all ignored."

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COMMENTARY:  "Spotlight: Kevin Cooper's Case Exemplifies Decades of Systemic Failures," by Sarah Lustbader, published by The Appeal on June 20, 2019. (Sarah Lustbader, senior legal counsel, was previously senior program associate at the Vera Institute of Justice and a criminal defense attorney at The Bronx Defenders.)

GIST: "Kevin Cooper’s name has been in the papers in recent weeks, as it has been on and off for 35 years. This time, it was because Kim Kardashian visited him in prison, part of her advocacy for those she believes were wrongly convicted. Cooper was sentenced to death for the hacking murders of Douglas and Peggy Ryen, their 10-year-old daughter and an 11-year-old neighbor. The Ryens’ 8-year-old son, Josh, survived his throat being slashed. A reality show star is among Cooper’s best hopes for exoneration, and the media is generally focusing not on the case, but on backlash against her. These are only the two most recent examples of how Cooper’s case exemplifies so much that is wrong with our system. Since his 1983 arrest, Cooper’s treatment has exposed one systemic failure after another.
Cooper describes his childhood as abusive and troubled. His first involvement with the system was at age 7, after he ran away from his adoptive family to escape beatings. He turned to shoplifting and marijuana use, ending up in juvenile detention. In his mid-20s, Cooper was sentenced to four years for burglary, but he wasn’t sent to an ordinary prison. He was sent to the California Institution for Men, in Chino, which, despite the conformist name, was founded in 1941 as an experiment in prison reform. It was built to alleviate overcrowding, violence, and oppression in California’s other prisons, which newspapers described as “powder kegs ready to explode.” The man hired to imagine this new system was Kenyon J. Scudder, a veteran penologist who had ideas for how to improve the prison system he saw as archaic and inhumane. Under Scudder, the institution, nicknamed Chino, was rooted in the idea that “prisoners are people,” and it sought to treat those incarcerated with dignity.
Chino’s first class of 34 prisoners included those with convictions for minor offenses along with those who were convicted for violent crimes. Chino didn’t use terms like “warden” or “guards.” Scudder was the “superintendent,” and his guards were “supervisors,” mostly college-educated people who had never before worked in prisons. This was to avoid any punitive mindsets. Scudder de-emphasized security and weapons, and trained his staff in conflict resolution.  Prisoners chose their own clothing and their own jobs. Their cells were not locked, and instead of a 25-foot wall with gun towers, as was suggested, Scudder built only a five-strand barbed-wire fence. He encouraged loved ones to visit, permitting physical contact, and he refused to segregate on racial lines. Today, this kind of prison would be considered a quixotic dream. “For a brief period of time, it seemed that other prisons around the world would follow Chino’s lead,” write Emily Nagisa Keehn and Dana Walters of the Human Rights Program at Harvard Law School. “In the early 1950s, prison experts at the International Penal and Penitentiary Congress agreed that open prisons should eventually replace traditional cell-based prisons for nearly all types of [prisoners].” In 1955, a United Nations resolution echoed the sentiment. But Chino eventually morphed into a traditional maximum security prison. Several factors doomed Scudder’s vision, all part of the tough-on-crime movement, but one high-profile escape was particularly damaging to the model: In 1983, Kevin Cooper walked out of the prison a day after arriving, and was soon the lead suspect in four gruesome murders. It makes no sense––morally, financially, or logically––to ignore the good of any given endeavor because one person abused it. But what happened in Chino is part of a pattern wherein politicians act cowardly and walk away from progressive and promising models, usually at the expense of the least enfranchised. The system was not done exposing its worst in Cooper’s case. New York Times columnist Nicholas Kristof wrote an exhaustive and devastating column detailing the evidence indicating that Cooper was framed by law enforcement for the murders. “In 1983, four people were murdered in a home in Chino Hills, California,” he begins. “The sole survivor of the attack said three white intruders had committed the murders. Then a woman told the police that her boyfriend, a white convicted murderer, was probably involved, and she gave deputies his bloody coveralls. So here’s what sheriff’s deputies did: They threw away the bloody coveralls and arrested a young black man named Kevin Cooper. As in so many cases, Cooper’s trial was, to put it mildly, racially charged. One man brought a noose around a stuffed gorilla to a hearing. According to Cooper’s current lawyer, “he didn’t have a half-decent defense.” The crime was high profile and law enforcement was under pressure to punish someone. Kristof dispatches with the evidence against Cooper by exposing law enforcement negligence, such as when the district attorney shut down the on-scene investigation “for fear, he said, of gathering so much evidence that defense experts could spin complicated theories.” Kristof also exposes probable lies, like when a deputy suspected of planting evidence claimed not to have entered the room where the evidence was found, but his fingerprints were found there. Various judges have concluded that Cooper was framed. Kristof notes that the bloody coveralls were not the only evidence pointing to a different culprit, but it was all ignored. Cooper also faced politicians who cared more about saving face than saving the life of a possibly innocent person. Kamala Harris, as district attorney of California, refused to permit advanced DNA testing that could have exonerated Cooper. It was only after Kristof’s column was widely shared, and Harris was no longer in a position to help, that she reversed her position. Former Governor Jerry Brown waited until the very end of his term to finally order new DNA testing, but, as the Los Angeles Times reported, he “inexplicably stopped short of ordering all the testing needed.” Shortly after Gavin Newsom took office as governor, he ordered additional DNA testing. The results are pending. Not everyone caught in the criminal legal system prompts backsliding on reform, and not everyone is hit with high-profile murder charges. Not everyone is framed. And very few have Kim Kardashian fighting for them. But plenty of people have been railroaded because of their race, their class, or their education. And plenty of people have been disbelieved because law enforcement says otherwise, regardless of how implausible the police story is. Plenty have faced arbitrary refusals of those in power to get to the truth. And a tremendous number have suffered because politicians rolled back reforms after isolated incidents of abuse. Cooper understands all this. “I don’t have any confidence,” he told Kristof. “I don’t believe in the system.” Cooper believes that the criminal legal system is unfair to poor people and non-white people. “I’m frameable, because I’m an uneducated black man in America,” he said. “Sometimes it’s race, and sometimes it’s class.” He is writing a memoir. “That’s my motivating factor to get out of here, to tell my story and tell the truth about this rotten-a** system,” he said."

The entire story can be read at:
https://theappeal.org/spotlight-kevin-cooper-case-exemplifies-decades-of-systemic-failures/

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;

Saturday, June 22, 2019

Radley Balko: One of the most articulate battlers for forensic reform uses his influential Washington Post Blog (The Watch) to say what we all know - that 'We need to fix forensics' - and then asks the crucial two words, "but how?" His response - through a survey of critics of the way forensics are used in criminal cases today - is most enlightening. (HL)..."In covering these issues, I have found that there are lots of people willing to talk about the problems with forensics in the courtroom. But solutions are harder to come by — especially solutions that would be politically feasible, findable, and fit the current framework of our judicial-legal system. So I decided to seek solutions from those who work in the areas of law, science and forensics. I sent an inquiry to 33 people, 14 of whom were willing to email answers to a set of six questions. All could be called critics of the way forensics are used in criminal cases today. You can read their full biographies here. The questions produced some interesting results."


PASSAGE OF THE DAY: "There was much agreement on general problems: The courts have done a poor job of keeping junk science and dubious expertise out of criminal trials. The pattern-matching fields of forensics — in which an analyst compares a piece of evidence from a crime scene to a piece of evidence thought to implicate a suspect — are largely subjective, lack structure and standards, and are hobbled by cognitive bias. And the legal system is too reluctant to revisit and correct old cases affected by these problems. When asked about the root causes of these problems, however, there was some disagreement. Some panelists have what could only be characterized as a fatalistic outlook: Our court system is incompatible with sound science, and we can only hope to minimize the damage. Some blamed our adversarial system, which they say isn’t always conducive to sound science. Others advocated for more adversarialism. There was also plenty of blame to go around — ill-informed judges, overworked and badly-informed defense lawyers, overly eager prosecutors, and under-educated jurors. The respondents offered a wide array of ideas and some disagreement about the path forward. But a few proposals found support from multiple respondents."

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COMMENTARY:"We need to fix forensics. But How? by Radley Balko, published by The Washington Post on June 20, 2019. (Radley Balko blogs and reports on criminal justice, the drug war and civil liberties for The Washington Post. Previously, he was an investigative reporter for the Huffington Post and a writer and editor for Reason magazine. His most recent book is "The Cadaver King and the Country Dentist: A True Story of Injustice in the American South.")




GIST: "Ten years ago, the National Academy of Sciences (NAS) published a groundbreaking study on the use of forensics in criminal trials. The study found that, in the “pattern matching” fields of forensics in particular, expert witnesses had been vastly overstating the significance and certainty of their analyses. For some fields, such as bite-mark analysis, the study found no scientific research at all to support the central claims of practitioners. Since then, other panels populated with scientists have come to similar conclusions, including the President’s Council of Advisors on Science and Technology and the Texas Forensic Science Commission. In 2013, Congress and the Obama administration responded to these reports by creating the National Commission on Forensic Science, a panel of lawyers and scientists charged with coming up with standards and protocols in these fields. The Trump administration then allowed the commission’s charter to expire in April 2017. In covering these issues, I have found that there are lots of people willing to talk about the problems with forensics in the courtroom. But solutions are harder to come by — especially solutions that would be politically feasible, findable, and fit the current framework of our judicial-legal system. So I decided to seek solutions from those who work in the areas of law, science and forensics. I sent an inquiry to 33 people, 14 of whom were willing to email answers to a set of six questions. All could be called critics of the way forensics are used in criminal cases today. You can read their full biographies here.
The questions produced some interesting results. There was much agreement on general problems: The courts have done a poor job of keeping junk science and dubious expertise out of criminal trials. The pattern-matching fields of forensics — in which an analyst compares a piece of evidence from a crime scene to a piece of evidence thought to implicate a suspect — are largely subjective, lack structure and standards, and are hobbled by cognitive bias. And the legal system is too reluctant to revisit and correct old cases affected by these problems. When asked about the root causes of these problems, however, there was some disagreement. Some panelists have what could only be characterized as a fatalistic outlook: Our court system is incompatible with sound science, and we can only hope to minimize the damage. Some blamed our adversarial system, which they say isn’t always conducive to sound science. Others advocated for more adversarialism. There was also plenty of blame to go around — ill-informed judges, overworked and badly-informed defense lawyers, overly eager prosecutors, and under-educated jurors. The respondents offered a wide array of ideas and some disagreement about the path forward. But a few proposals found support from multiple respondents. While there was disagreement over whether the United States should move toward court-appointed experts (as opposed to allowing the prosecution and defense to pick their own experts), most agreed that if we’re going to continue with the current system, defense lawyers should be given the same amount of money to hire experts as the prosecution, or at least enough money to hire their own competent experts. Several of the respondents pointed out that judges have a much better record of screening out bad expertise in civil cases, where all parties tend to be well-funded. Many expressed support for the junk-science writ — a law that provides an opening to appeal for those convicted with expert testimony that was later discredited by the scientific community. Texas and California have both passed such a law. Lawmakers in Virginia recently rejected the idea. Most panelists agreed that making forensic labs independent — moving them from under the auspices of law enforcement — would be a huge improvement, and would go a long way toward reducing cognitive bias. But there was disagreement about how easy this would be to accomplish. Some of the respondents thought it would take little effort, while others anticipated a lot of resistance from police and prosecutors. A few panelists cited the Houston Forensic Science Center as the ideal model of a science-driven, truly independent crime lab. Many also suggested the idea of a “case handler,” an independent go-between who works to ensure that analysts get the relevant information they need to do their jobs, but works to block out additional information that could bias their results. I asked the panelists six questions. We’ll post their answers to the first question today, and to the other questions in future posts."

Question 1:

 

Under current law, judges have been designated as the “gatekeepers” of science in the courtroom. If one side wants to challenge the scientific validity of expert testimony, the lawyers for that side can request a hearing. If the hearing is granted, the judge may then hear evidence for and against the expert testimony, and then decide whether the testimony is reliable and, therefore, admissible.
Critics say judges perform poorly at this task, and there is some persuasive evidence to back up that criticism. This makes some sense, given that most judges are trained in law, not scientific analysis. When making these determinations, judges tend to look to at what other courts have done, instead of the current state of the science.
But in a system like ours, the question becomes: If not judges, then who? Who should determine what expertise a jury will and won’t be allowed to hear at trial? Moreover, forensics has been plagued not only by scientifically dubious areas of specialization, even within the legitimate specialties, but individual witnesses have offered testimony that is unsupported by science. Some have suggested that a national committee of scientists assess the validity of an entire field like bite-mark analysis, or a common diagnosis such as Shaken Baby Syndrome. But it wouldn’t be practical for such a committee to assess every challenge to an expert during criminal trials across the country.
Obviously we need some way of assessing the reliability of scientific and expert testimony. What would the ideal system look like?
Chris Fabricant, Innocence Project
Forensic sciences should be regulated the same way medicine or consumer products are. The 2009 NAS report on forensic sciences recommended a news regulating body called the National Institute for Forensic Sciences. Life and liberty is at issue, yet anything goes in criminal courts, especially and paradoxically in capital litigation.
Sandra Guerra Thompson, University of Houston Law Center, Houston Forensic Science Center
Judges are not entirely to blame for the admission of faulty forensic evidence. Prosecutors and defense attorneys also share the blame. Historically, both judges and advocates were not aware of the problems in many police crime labs, and the weaknesses of various types of forensic evidence. Today there is far greater awareness that issues exist, but judges and lawyers still struggle to comprehend the intricacies of what is a multi-faceted problem.
Judges cannot decide on their own to exclude unreliable evidence. It is up to defense counsel to object to evidence and request a hearing where counsel can proffer testimony explaining the problems with the evidence, and to persuade the judge of the unreliability of a forensic test result.
For several reasons, defense counsel have not adequately challenged forensic evidence. Too often, attorneys may not have the scientific competence to recognize the weakness in the evidence. The endemic underfunding of indigent defense exacerbates this problem. Appointed counsel may lack investigative resources, especially funding for forensic experts to guide them, review the lab reports, conduct independent testing, and testify in court.
Even if the courts provide the resources for defense experts, finding qualified experts to assist the defense is another enormous challenge. Another problem is that too many laboratories provide barebones information and non-standardized terminology in lab reports, making it nearly impossible for defense experts to evaluate the testing process.
John Lentini, fire/arson expert
Ideally, prosecutors would not proffer invalid opinions rendered by unqualified “experts.” But that’s unlikely to happen as long as prosecutors think the opinion testimony will support their case.
Ideally, judges would take their gate-keeping duty seriously, as often happens in civil cases. That is unlikely to happen because judges have continuing relationships with prosecutors and they don’t want to annoy the prosecutors by excluding their expert, no matter how egregious the opinion might be. They don’t want to be called “soft on crime.” Judges also don’t worry too much about being overturned because the Supreme Court in the Joiner decision made “abuse of discretion” the standard for review of a judge’s decision to allow or exclude testimony. Only a tiny minority of such decisions are overturned, so they are almost never appealed.
So what we are left with are the tools of the adversarial system. Challenges to experts should be routine in any contested forensic science case either through an evidentiary hearing or, preferably, by deposition. Depositions are allowed in almost all civil cases, but only a handful of states allow depositions in criminal cases. In those states, conviction rates are no lower than they are in states where expert depositions are not allowed.
Of course, in order to properly challenge an adverse expert, defense attorneys must have the funds to hire their own expert. I have noticed that in recent years, it has become less difficult to obtain such funding, and defense attorneys, particularly public defenders, understand that the assistance of a competent expert in a complicated forensic science field, e.g. fire investigation, is an essential component of effective assistance of counsel.
Simon Cole, University of California at Irvine Department of Criminology, Law & Society, National Registry of Exonerations
I think the question overlooks the most obvious explanation for this phenomenon: outcome orientation. Most judges want the outcome of these admissibility hearings to be that the government gets to use evidence that will help them convict the defendant. I don’t think the following of precedent, for example, comes from some philosophical attachment to precedent, but rather that precedent is a convenient means to the end that most judges want: that the prosecution’s evidence can be used.
I can think of only two alternatives to the current system. One is some sort of scientific tribunal, like a “science court,” e.g., the National Commission on Forensic Science might have been able to play the role of issuing guidance about specific disciplines. Or the National Academies or some other scientific institution could do it. Such a scientific institution approach could work, but courts would need to be willing to defer to the authority of scientific institutions on matters of science.
The second would be the disciplines themselves. The disciplines themselves, or perhaps the American Academy of Forensic Sciences could more actively self-regulate forensic science, rendering legal or scientific regulation less necessary.
In my opinion, as well as that of many other scholars, the focus should be less on the all-or-nothing admissibility decision (does the expert get to testify before the jury?) and more on the content of the expert’s proposed testimony. It might be okay for many experts to testify were they not systematically overstating the probative value of the evidence every time. Judges could focus more on controlling the content of the testimony than on draconian all-or-nothing admissibility decisions. Almost every expert has something of value to say. It’s just that many experts also overstate the value of what they have to say.
Jules Epstein, Temple University Beasley School of Law, National Commission on Forensic Science
You are asking two overlapping questions: who should decide what is generally accepted, and who should decide whether a particular expert in a particular case with a particular opinion/conclusion should be admitted.
When it comes to what’s generally accepted, I am convinced that the litigation model isn’t working — it rarely has parties with equal resources, and when the process is adversarial, the positions become polarized. We’d be better off turning to scientists — the OSAC model; or scientific workgroups; or the NAS — each is better suited to assess scientific reliability/validity of a discipline. At the micro level — a particular expert in a particular case with a particular finding — a judge may be fine once the overall discipline’s parameters have been set.
Barbara Spellman, University of Virginia School of Law
Judges decide whether scientific evidence is reliable and relevant, but “credibility” is left to the jury. Reliability is what is usually in question — an evaluation of whether the science is generally accepted, has been peer reviewed, can be tested, and other factors as outlined in the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals [the landmark 1993 case that laid out the rules for assessing expert testimony].
Relevance becomes, well, relevant, when the proposed topic of the scientific testimony seems as though it is something that is already known and understood by jurors. For example, the Federal Rules of Evidence allow expert testimony when the expert’s knowledge “will assist the trier of fact.” But, for example, memory experts were often not allowed to testify because judges believed that jurors already knew how memory works. Today, memory experts are often allowed because surveys, experiments and exonerations have shown that scientists know some important, relevant things about the workings of memory that the general public does not.
Roger Koppl, Forensic and National Security Sciences Institute, Syracuse University
The gate-keeping function of judges is rooted in the theory that scientific knowledge is completely different from other forms of human knowledge. Philosophers of science, however, have been unable to agree upon any standard separating “science” from “not science.” What happens if we view scientific and technical knowledge as equal to other knowledge? Then we may see the benefit of listening to both sides of the story.
There should be a real and substantive defense right to expertise. Then each side can make its case for what the forensic evidence shows. This “battle of experts” would be no “race to the bottom.” On the contrary! The two sides in our adversarial criminal-justice system have diametrically opposed interests. Thus, any relevant fact or argument will help one side and hurt the other side. Thus, “the battle of the experts” tends to flush out all the relevant facts and arguments, leaving the judge and jury with a more complete and balanced picture than one side alone would give them. And the contending experts are given an incentive to be clear, explicit, and helpful to the judge or jury.
When monopoly experts testify — that is, a court-appointed expert beholden to neither side — they may cave to the temptation to be a powerful and mysterious wizard. “It’s all very complicated, but I the powerful wizard can see the hidden truth!” But when you are competing with another such wizard, you have to actually explain things and show the judge or jury why your opinion makes sense. Competition turns wizards into teachers. If we had a real and substantive defense right to expertise, we could relieve judges of much of their gate-keeping functions. Instead of asking them to decide what expertise is real and what is fake, we could simply apply the same standards judges use to determine the admissibility of other forms of evidence. Is it relevant? Is it prejudicial? And so on.
Brandon Garrett, Duke University School of Law
Judges are necessary gatekeepers at trial. But they have not acted like science matters in criminal cases. As Chris Fabricant and I found, it is rare for state judges in even the jurisdictions with the more modern Rule 702 (of the Federal Rules of Civil Procedure) to even discuss reliability of forensic evidence, much less address unreliable evidence. The reliability rule is a myth, and the effort to educate judges has been painstaking and slow.
Keith Findley, Center for Integrity in Forensic Sciences, University of Wisconsin Law School
There is no one solution to the problem. The scientific communities — both within the forensic disciplines and more broadly within the academic research sciences — must validate and improve the reliability of forensic evidence. Judges, as gatekeepers, must be part of the solution, both to weed out the bad “science” that slips through, and to apply institutional pressures on the forensic disciplines to incentivize them to do the basic research and create the requisite standards and protocols needed to strengthen the scientific bona fides of their disciplines. The lawyers who litigate before those judges must also step up their game.
A national committee of scientists can certainly play a role, and the National Academy of Sciences has shown how that can work. Both in its pathbreaking 2009 report on forensic science in general, and in earlier investigations of specific disciplines, the NAS has brought real scientific standards to bear on the forensic sciences, and has repeatedly shown how the forensic sciences tend to come up short. More studies are desperately needed across the forensic disciplines. We could use such a study on Shaken Baby Syndrome/Abusive Head Trauma, for example. But the courts must start taking such studies seriously before we will see real change.
We also need a new national commission on forensic science. Congress has balked at creating a forensics panel, and the Obama Justice Department’s National Forensic Science Commission, which was starting to do some of this important work, was abruptly dismantled by the Trump Administration.
That said, the issues that arise in the courts are often too varied and too case-specific for any one national commission or committee of sciences to resolve all case-level challenges. Hence, judicial gatekeeping remains important.
While it’s true that most judges lack the scientific training to be real experts at distinguishing valid and reliable science from the unreliable or invalid stuff, they don’t have to go it alone. They can be educated. Indeed, the experience in civil litigation — where judges often seriously scrutinize and frequently exclude scientific evidence proffered by civil plaintiffs, suggests that it is not a lack of capacity to understand the science that has led to the utter failure to screen out bad forensic evidence in criminal cases.
Most of the fundamental challenges to the traditional forensic evidence are not that complicated. Once explained, the problems are pretty obvious and easy to comprehend. Even in more complex areas — like medical determinations of child abuse in so-called Shaken Baby Syndrome or Abusive Head Trauma cases — we now have many examples of cases in which courts have taken the time to hear extensive complex medical evidence and have revealed that they are quite capable of understanding the flaws with the underlying medical hypotheses. The real challenge here is to get courts to overcome the inertia of precedent, and to have the courage to reject forensic science evidence that in some cases will be the central piece in the prosecution of people charged with serious crimes. The courts will need a lot of support to get over those hurdles. That means vigorous litigation by knowledgeable lawyers challenging flawed forensics, and the the prospect of improved forensic evidence that can take the place of the flawed evidence.
The problem is a bit of a chicken-and-egg conundrum. Courts are reluctant to reject flawed evidence until something better is available to replace it. But the forensic science community has historically lacked incentives to create something better, because the evidence they have been producing has been accepted by the courts, and has served to convict the people whom prosecutors (for whom the laboratories typically work) are prosecuting. We need to break the cycle — we must create institutions and research opportunities to improve forensic science evidence upstream of the courtroom, and courts must create the incentives to produce a better forensic science product by rejecting expert testimony that is flawed.
Michael Risinger, Last Resort Exoneration Project, Seton Hall School of Law
An ideal system would take seriously the mandate of Kumho Tire v. Carmichael [which applied the Supreme Court’s ruling in Daubert to nonscientific expertise] to judge reliability not globally by forensic discipline, but specifically in regard to the expert claim being made and applied in the case at hand. The logic of this seems inescapable if one wants to determine the reliability of what is actually being offered in these cases. Unfortunately, this approach also is neither quick nor easy, which is why many judges prefer to make global determinations driven by precedent. Such determinations do not require them to spend time and effort learning about each expert task or application in the cases that come before them. I believe the so-called Frye general acceptance approach [the approach taken by most courts in the country before Daubert] hangs on in many jurisdictions because it lends itself to such a global, precedent-driven approach.
The second aspect of an ideal system would involve well-prepared adversaries who could find, marshal, and explain the import of various kinds of information bearing on the reliability of conclusions in the case at hand. This would include most especially research directed toward establishing the false positive and false negative error rates of the case-specific claim of reliability under ideal conditions. It would also include other research establishing the impact of context bias or other conditions present in the case under consideration which might undermine reliable performance in the individual case. Unfortunately, most specific tasks in many areas have not been the subject of formal research, and most lawyers are not good at formulating the actual task being undertaken by the expert, much less finding and marshaling the evidence for reliability, pro and con, to the extent there is any.
Finally, I see no way of outsourcing these fact-sensitive issues of reliability from judges and lawyers to some other standing body of “experts on expertise” in individual cases, even if I trusted the system to generate a properly neutral membership for such body. So unless through proper selection and training we get much more conscientious and better informed judges (on average), and much more sophisticated defense lawyers, we are stuck. The latter variable concerning defense lawyers might be the most important. In my opinion, federal judges have been much better at determining the reliability of expert testimony in civil cases, where both sides tend to have well-financed legal representation.
An ideal system would involve changes on multiple levels, and would require the cooperation of municipal, state and federal agencies in implementing reforms. While the courts decide what evidence gets admitted in testimony, it is often county agencies that decide which experts get hired to work in the forensic labs that analyze the evidence in the first place. Most criminal complaints don’t even make it to the courtroom, because defendants accept a plea bargain offered by the prosecution. They may be pressured to take such a deal because they’re being told that the forensic evidence is incontrovertible. Yet there is no way for the defendant to know if there have been mistakes in the way that forensic evidence has been analyzed. Several recent scandals involving years of incompetence and illegal activity among lab analysts have forced judges to throw out thousands of convictions and plea deals. Rebuilding trust in our forensic systems has to start in the lab.
So, on the municipal level, forensic laboratories need to be accredited by scientific agencies and required to participate in quality assurance/quality control testing on blind samples, with the results made public; they need to be funded appropriately to attract and retain certified analysts; and they need to be completely independent of law enforcement or judicial agencies. Local public defender offices need to be funded at the same level as prosecutors are, and they must be given equal access to all forensic evidence.
State governments and the federal government have their own role in an ideal forensic judicial system. To begin with, they need to implement both grants and fines as incentives to encourage a per-capita minimum investment in death investigation systems and forensic labs. And, yes, we need overarching legislative action to address the mess created by the [Missouri v.] Frye and Daubert Supreme Court decisions that, as noted, made judges the gate-keepers of scientific testimony. I believe that there should be a federally funded agency run by forensic scientists (without any input or influence from prosecutors, lawyers or law enforcement) that writes guidelines for expert testimony qualifications in designated scientific fields. Take the assessment of scientific merit away from judges, and let scientists determine whether an expert is qualified and whether their opinion is supported by the peer-reviewed literature or not. Then change the laws to allow defendants to appeal their convictions if scientific advances indicate that they were wrongfully convicted based on faulty scientific testimony.
Roderick Kennedy, retired judge, New Mexico Court of Appeals
Joe Cecil and Daniel Rubenfeld wrote an article in last fall’s Daedalus that talks about various ways to help judges make these decisions, including special masters to determine the parameters of science within which the parties’ experts will operate and give opinions that are congruent with what is predetermined to be the proven theory and acceptable practice.
Another possibility is to have judges get an adviser on science in much the same role as a law clerk, who is independent of the parties, but researches the science to lay groundwork for the judicial determination of admissibility.
There is no other provision in the law for determining admissibility of evidence, save for the judge doing it. Determining reliability by 40-year old precedent and then using Kumho’s “you can take established things for granted” language is a horrible thing that still goes on. Some of it is judicial sloth. Some of it is fear of getting into things that aren’t known. And some is a matter of bias. With all this in the mix, it can be hard to separate and address these problems.
[Britain], Europe and Australia all now have top-down regulation of forensics. In [Britain], compliance with those regulations is a foundational requirement for admissibility. The U.S. has punted even on watered-down regulation. We’ve kept all oversight of expert testimony in federal cases within the [Justice Department], and allowed prosecutors to be nontransparent in how they use science. We didn’t look for a validated path to standards, one in which a regulator proposes standards, and the disciplines affected by those regulations are allowed to comment. Instead, they let the disciplines propose their own regulations to the Organization of Scientific Area Committees (OSAC) for Forensic Science. Even the very first proposed standard was rejected by NIST for being too lax. This bottom-up approach will take far too long, and it won’t approach the sort of validation that we’ve known is needed in forensic science since at least 2009.
We need empirical, objective validation by persons not involved in day-to-day forensic practice. We also need external validation, black-box proficiency testing of both programs and individual analysts to establish baseline likelihoods of how much predictive ability these experts and procedures actually carry.
[You can read the Daedulus article here]
Frederic Whitehurst, FBI crime-lab whistleblower, Forensic Justice Project
Let’s say we decide that judges will no longer make these decisions. Who will? Will academic scientists be willing to enter into the combat of the courtrooms — to leave the comfort of academia to opine on issue that are science, as it’s practiced in the real world? Will they take the time to understand not only the words of the law, but the cultural meaning of those words? Will they be willing to enter into the vulgarity of courtrooms, where we make determinations about life and death and freedom? I don’t think so, and they have proven it by not engaging with the forensics world until recently.
Today’s judges are individuals who were one time practicing lawyers, who learned the law, but never questioned the science of the forensic “science” put before them. They’ve just always accepted that what forensic scientists were saying to them was correct. Now, despite Daubert and its progeny, can they really be faulted for not believing that they’ve been hoodwinked their entire political carers? We can find fault, but that is the easy way out. We all should be the deciders. Our forensic labs are moving quickly toward publishing protocols, quality control measures, and validations studies online. So far, much of the criminal defense bar has ignored that information, comfortable in their assessment that these “scientific” issues aren’t worth addressing. As bad as the record of judges may be, they are what we have, because very few others have stepped up to the plate.
An ideal system would be where we are headed. Governments recognizing the problems with their crime labs, and so moving toward requiring that all crime lab protocols be published on the internet. Even the [Justice Department] has demanded publication from any crime labs under its control. We should be putting these protocols in the full light of day, then encouraging anyone with an interest to join in the discussion. If crime lab managers balk, we should stop paying their salaries with tax dollars. After 30 years, I can say that when exposed to public view, you’ll see these protocols change for the better.
Itiel Dror, University College London, Cognitive Consultants International
I would say the following:
A. There is a question whether an area is scientific or not?
B. There is a question whether an expert is indeed an expert in the area in question?
C. There is a question of whether an expert in this area did their job properly (e.g., follow scientific protocols and best practices, etc.).
Of course, if 'A ' is a 'no ', end of story; but even if 'A' is a ‘yes’, then 'B' or/and 'C' can be a ‘no’. Furthermore, the answer to all the three questions above (A, B, & C) is not a yes/no dichotomy, but a continuum with many shades of gray.
Solution (or, at least a way forward): Jurors (as well as judges) need to be educated about the areas in question, their scientific basis, accuracy, as well as potential problems, such as bias in interpretation, etc. Hence, before each court case, the relevant evidence domain used in the case (e.g., mixture DNA, fingerprinting, etc.) would be presented to the jurors. That is, there should be a library of such background video information for each domain. These videos could be shown to the jurors before the trial begins. Who will make those videos? Experts in the relevant domain, with input from prosecutors, defense lawyers, the Innocence Project, judges, expert in bias, etc. — it should be a professional expert group composed from all the stakeholders.
The entire commentary can be read at:
https://www.washingtonpost.com/opinions/2019/06/20/we-need-fix-forensics-how/?utm_term=.4453d9068b0e

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;