Thursday, November 26, 2020

Drug test lab series: (Part 5) Unaccredited New Orleans Police Department drug lab: "The New Orleans Police Department Crime Lab unit that processes drug evidence is unaccredited and has lacked official certification for years, if not decades, according to documents WDSU has obtained and multiple sources with knowledge of the lab’s history. This was among the issues a former civilian employee in the NOPD’s drug lab said he shared with his supervisors. Karl Von Derhaar said workplace safety was also one of his pressing concerns, with hazardous chemicals and potentially lethal drugs being handled on site. The mental stress of not having those and other issues addressed led him to request two weeks off work in early September. Two days later, police showed up at his door unannounced and insisted that he submit to a drug test. “I wasn't really given an option,” Von Derhaar said. “I even asked multiple times: ‘Can I go back to my home? … Am I under arrest?’ I felt like I was trapped at that point.”


QUOTE OF THE DAY: "Craig Mordock, a criminal defense attorney in New Orleans, said the lack of accreditation puts him in a position to question the validity of drug evidence NOPD presents in court.  Accreditation would assure the public that equipment calibration, standard operating procedures and chains of custody are in proper order, said Mordock, who has represented hundreds of defendants accused of drug offenses. “As defense lawyer, you would say, ‘Well, are these really being done?’ We don’t know because it doesn’t have proper accreditation,” Mordock said. “I think it’s incumbent on all criminal defense lawyers … to start challenging the reliability of the scientific evidence presented in court.”

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PASSAGE OF THE DAY: 

STORY: "WDSU (News) investigates former NOPD (New Orleans Police Department): Crime lab employee airs concerns over safety procedures," by Chief Investigative Reports Greg LaRose, and Investigative Reporter  Emily Lane of Propublica, published on November 25, 2020. (Thanks to Dr. Michael Bowers of CSIDDS: Forensics and Law in Focus, for drawing our attention to this story, which he sets up as:  "Forensics: Former NOPD crime lab employee airs concerns over, safety procedure...Then they force him to take a blood test....A defense attorney tells WDSU the drug lab’s lack of accreditation could impact court cases. Then they force him to take a drug test...A defense attorney tells WDSU the drug lab’s lack of accreditation could impact court cases."

https://csidds.com/2020/11/25/forensics-former-nopd-crime-lab-employee-airs-concerns-over-safety-procedures/

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PASSAGE OF THE DAY: 


GIST: "The New Orleans Police Department Crime Lab unit that processes drug evidence is unaccredited and has lacked official certification for years, if not decades, according to documents WDSU has obtained and multiple sources with knowledge of the lab’s history. 

This was among the issues a former civilian employee in the NOPD’s drug lab said he shared with his supervisors. Karl Von Derhaar said workplace safety was also one of his pressing concerns, with hazardous chemicals and potentially lethal drugs being handled on site.

The mental stress of not having those and other issues addressed led him to request two weeks off work in early September. Two days later, police showed up at his door unannounced and insisted that he submit to a drug test. 

“I wasn't really given an option,” Von Derhaar said. “I even asked multiple times: ‘Can I go back to my home? … Am I under arrest?’ I felt like I was trapped at that point.”

The NOPD rejects the notion that problems exist in its crime lab. In response to questions about Von Derharr’s claims and how his supervisors responded, a department spokesman issued a statement.

“Accusations made concerning the accuracy of equipment and quality of safety protocols in the Crime Lab are categorically false,” the statement said. “Issues raised by a former employee were never brought to the attention of NOPD Supervisors while the employee worked in the Crime Lab and have no basis in fact.”

‘It’s all word-of-mouth’

The lack of accreditation for its drug-testing lab makes NOPD an outlier among its peer law enforcement agencies in Louisiana. The Jefferson Parish Sheriff’s Office, St. Tammany Parish Sheriff’s Office, Baton Rouge Police Department, Shreveport Police Department and Lafayette Police Department all work with or have in-house drug chemistry units with certification from the American National Standards Institute’s National Accreditation Board (ANAB).

Mark Dale led the crime labs for the New York Police Department and New York State Police, and he has authored a book on the management of these facilities. It has been commonplace for around 20 years for law enforcement agencies with crime labs to achieve and maintain accreditation, he said, adding that many states require crime labs to be certified.

“There’s a cost with accreditation, but the significance of when things go wrong may be even more costly,” Dale said. “You could have false acquittals, false convictions, litigation against the department and staff, which goes on and on.” 

Dale said one of the key elements of drug lab accreditation is having standard operating procedures -- uniform, how-to methods for testing in case the process is questioned in a court of law. Von Derhaar said such documents did not exist in his department, to his knowledge.

“The NOPD has what they call legacy training for drug chemistry. We don’t have a written procedure. It’s all word-of-mouth, kind of, and what somebody taught them,” Von Derhaar said. “I did ask, I said, ‘Where are our procedures?’ … I was told to get a notebook and write it down.”

WDSU asked the NOPD in October for a copy of its current standard operating procedures. NOPD denied the records request, explaining they were being revised. When asked for the prior version, the police department denied that request, saying they “became inaccessible” following the city’s December 2019 cyberattack. 

Craig Mordock, a criminal defense attorney in New Orleans, said the lack of accreditation puts him in a position to question the validity of drug evidence NOPD presents in court. Accreditation would assure the public that equipment calibration, standard operating procedures and chains of custody are in proper order, said Mordock, who has represented hundreds of defendants accused of drug offenses. 

“As defense lawyer, you would say, ‘Well, are these really being done?’ We don’t know because it doesn’t have proper accreditation,” Mordock said. “I think it’s incumbent on all criminal defense lawyers … to start challenging the reliability of the scientific evidence presented in court.” 

In a statement to WDSU, an NOPD spokesman said its crime lab equipment “is maintained and calibrated regularly to ensure accuracy. The most recent calibration was done by the manufacturer in August.”

The department did not indicate whether it was pursuing accreditation for its drug lab. The ballistics and crime scene investigations units within NOPDs crime lab are ANAB-certified.

‘I don’t know why he showed up’

Von Derhaar resigned from the NOPD Sept. 3 after two ranking police officers who oversee the crime lab, along with a 3rd District NOPD officer, came to his apartment unannounced. His girlfriend and their young son were home at the time. According to Von Derhaar, the police gave him no choice but to go with them to the department’s Public Integrity Bureau to submit to a drug test. 

He refused the drug test and resigned on the spot instead. The next morning, Von Derhaar went to an independent medical testing lab to take a drug test. Results provided to WDSU showed Von Derharr tested negative for more than a dozen narcotics. 

Four days earlier, Von Derhaar had texted his immediate supervisor, Sgt. Michael Stalbert, to say he wanted to take two weeks off because of stress at work. Von Derharr was sent an NOPD form he needed to complete and said Stalbert reached out to him the next day, Sept. 2, for details about why he wanted time off. The sergeant then came to Von Derhaar’s apartment unannounced. 

“I don't know why he showed up. I mean, we just texted and called, I mean, I never expressed I was going to hurt myself or anything. … I don't know why he showed up. But I did not want to answer the door for him,” Von Derhaar said.

The next day, Stalbert came back with his supervisor, Lt. Kim Lewis Williams, and the 3rd District officer, whose body-worn camera captured the encounter. 

A police report written about the visit to Von Derhaar’s home classifies it as a medical call. It notes Stalbert and Williams went to see Von Derhaar because after he had “displayed erratic behavior over the last few weeks” and didn’t answer calls or knocks at his door Sept. 2. 

Von Derhaar said he was in touch Stalbert over the phone and through text messages before the officers summoned his apartment manager to open his door. 

NOPD’s employee drug testing policy requires supervisors to document in writing any behavior leading them to believe the employee might be on drugs the day they notice questionable behavior and to notify the agency’s Public Integrity Bureau. WDSU requested documentation about Von Derhaar’s behavior from the NOPD but was told the record didn’t exist. 

The NOPD also declined to answer questions about whether the officers followed proper procedure the day they showed up at Von Derhaar’s home.

‘I find that disturbing’

Although Von Derhaar complied with the officers, the body cam footage raises more questions about whether proper police procedure was followed.

Just after Von Derhaar opens his door, Stalbert says he and the 3rd District officer are going to come into the apartment and “escort” Von Derhaar while he puts on a pair of pants. When Von Derhaar goes to find his pants, Stalbert tells him “we’re coming in.”

WDSU asked an expert in police policy to review the video. Ashley Heiberger, a retired police captain who worked more than 20 years with the Bethlehem Police Department in Pennsylvania, is now a consultant who advises law enforcement agencies across the country on policy, use of force, training and accreditation.

The footage shows the sergeant and the 3rd District NOPD officer entering the apartment, which Heiberger said is problematic because they did not have Von Derhaar’s explicit permission.

“He would have been within his constitutional rights to tell the sergeant to get out of his apartment,” Heiberger said. 

The fact that Williams, Stalbert’s immediate superior officer, did not take steps to stop or limit the sergeant’s entry into the apartment also stood out to Heiberger. 

“I find that disturbing,” he said. 

Although the officers made it clear to Von Derhaar he wasn’t under arrest when they ordered him to come with them downtown, Heiberger said, “at a minimum, I would say that he was coerced.” 

The body cam footage shows Von Derhaar reluctantly agreeing to speak to officers just outside his apartment. The 3rd District officer is near his apartment door while Stalbert and Williams speak with Von Derhaar, who was told multiple times he wasn’t under arrest. Von Derhaar told WDSU he complied with police because he feared any resistance would have resulted in his arrest.

The ranking officers told Von Derhaar he couldn’t take his cellphone with him downtown and searched him before he was put inside the 3rd District officer’s police SUV. He was placed in the backseat but not handcuffed. When Von Derhaar’s girlfriend brought his cellphone to police, the 3rd District officer kept it on his front seat and did not give it to Von Derhaar. 

‘I couldn't sleep at night’

Von Derhaar said the incident that prompted him to ask for time off involved a directive from his supervisors about how to test marijuana. 

He said drug lab chemists had been told to forego a type of test that he believed definitively confirmed the difference between marijuana and hemp. The NOPD has gas chromatography/mass spectrometry equipment for that purpose, but chemists were instructed to use the Duquesnois-Levine color test. Results from the latter, which has been used for decades, are considered presumptive but not conclusive, and multiple studies have questioned their accuracy. 

Von Derhaar said that because hemp was recently legalized in Louisiana, he thought the more thorough test was in order. 

“To think that I might put someone in jail if I don't do the proper tests … I couldn't sleep at night,” he said. 

Concerned by the implications, he said he wrote an email to Stalbert asking for confirmation of the order. WDSU obtained a copy of the exchange in which Stalbert said the lab was to only use the color test on marijuana. 

In his few years with NOPD, Von Derhaar said it was clear to him the crime lab was not a priority. His complaints about inadequate ventilation for the civilians who work with dangerous chemicals and controlled substances went unheeded, as have simple requests such as a broom he asked for in November 2019 to clean up broken glass.

“Up until September when I left, I'd never got that broom,” he said.

The entire story can be read at:

https://www.wdsu.com/article/wdsu-investigates-former-nopd-crime-lab-employee-airs-concerns-over-safety-procedures/34774281

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Alex Minassian: Ontario: Accused mass-killer invokes controversial 'autism spectrum disorder' in support of his defence of non-criminal responsibility, The Toronto Star (Reporter Alyshah Hasham) reports..Dr. Alexander Westphal, a forensic psychiatrist specializing in autism spectrum disorder, is expected to provide critical testimony. In a brief section of his report read by the Crown last week, Westphal opined that Minassian’s “autistic way of thinking was severely distorted similar to psychosis.” That comment and the broader defence have been criticized by the autism community for falsely promoting negative stereotypes about the developmental disorder which is not associated with violence."


PASSAGE OF THE DAY: "Westphal, a faculty member at the Yale School of Medicine, is based in the U.S. and cannot be easily compelled to testify by a Canadian court, Molloy said, noting that she had once ordered the police to pick up an expert who had refused to come to court and would do so again if needed. “(Minassian) only has one defence available to him, that has been clear right from the beginning. Dr. Westphal has refused to participate knowing there is nothing I can do about it if he does not, and knowing that he’s all there is in terms of a defence for Mr. Minassian,” she said. “If any person over whom I can have jurisdiction to compel had issued this kind of ultimatum, they would get short shrift,” she said. The issue first arose when the Crown learned last week Westphal had videotaped about five hours of his interviews with Minassian in December 2019. The Crown wanted access to them in order to better be able to challenge Westphal’s opinions. After a hearing, Molloy ordered the videos to be disclosed to the Crown if Westphal testified, against the wishes of the defence. Westphal then wrote a letter to the court refusing to testify if the video would be played in the Zoom court, which is being watched by pre-approved media and lawyers, and if there was any chance the videos would be made public. In the letter, Westphal denied relying on the footage to prepare his report and did not realize they could become part of the trial. “For me this is a line that cannot be crossed. I will not testify if there is any possibility that the tapes will be surreptitiously recorded via Zoom, or released for publication or distribution,” he wrote."


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PASSAGE TWO OF THE DAY: "Westphal also said allowing the videos to be released publicly would also validate Minassian’s stated desire for notoriety. Finally, he said, he is concerned about the stigmatizing effect the “negative stereotypes” in the video could have on millions of people with autism and their families. “Mr. Minassian shares a developmental disability with millions of Canadians and Americans who pose absolutely no threat to anyone around them. Furthermore, they are a very vulnerable population, already likely to be bullied, and much more likely to be the victims of violence than regular people,” he said. “While I understand that it is essential for the court to understand autism and the role it played in Mr. Minassian’s actions, my duty to the many people I know with autism surpasses that.”


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STORY: "In unprecedented ruling, judge proactively bans release of Alex Minassian's video interview with U.S, psychiatrist," by Court Reporter Alyshah Hasham, published by The Toronto Star on November 19, 2020.


GIST: "With what she called “a gun to her head,” Superior Court Justice Anne Molloy made the unprecedented and extraordinary decision on Friday to proactively seal video recordings of Alek Minassian being interviewed by an American forensic psychiatrist who refused to testify if the recordings would be released to the public.


“Sealing exhibits that don’t even exist yet, that I have not even seen in advance in order to secure his testimony is offensive,” said Molloy. “That said I am going to do it.”


Though it was tantamount to paying a ransom to a kidnapper, Molloy said the alternative would mean denying Minassian a fair trial for the first-degree murder of 10 people and the attempted murder of 16.


Minassian had admitted to renting a van and intending to kill all his victims as he ran them down on the Yonge St. sidewalk on April 23, 2018.

He is advancing a defence of not criminally responsible, arguing his autism spectrum disorder rendered him incapable of understanding his acts were morally wrong.






Dr. Alexander Westphal, a forensic psychiatrist specializing in autism spectrum disorder, is expected to provide critical testimony. In a brief section of his report read by the Crown last week, Westphal opined that Minassian’s “autistic way of thinking was severely distorted similar to psychosis.”


That comment and the broader defence have been criticized by the autism community for falsely promoting negative stereotypes about the developmental disorder which is not associated with violence.


Westphal, a faculty member at the Yale School of Medicine, is based in the U.S. and cannot be easily compelled to testify by a Canadian court, Molloy said, noting that she had once ordered the police to pick up an expert who had refused to come to court and would do so again if needed.


“(Minassian) only has one defence available to him, that has been clear right from the beginning. Dr. Westphal has refused to participate knowing there is nothing I can do about it if he does not, and knowing that he’s all there is in terms of a defence for Mr. Minassian,” she said. “If any person over whom I can have jurisdiction to compel had issued this kind of ultimatum, they would get short shrift,” she said.


The issue first arose when the Crown learned last week Westphal had videotaped about five hours of his interviews with Minassian in December 2019. The Crown wanted access to them in order to better be able to challenge Westphal’s opinions. After a hearing, Molloy ordered the videos to be disclosed to the Crown if Westphal testified, against the wishes of the defence.


Westphal then wrote a letter to the court refusing to testify if the video would be played in the Zoom court, which is being watched by pre-approved media and lawyers, and if there was any chance the videos would be made public.


In the letter, Westphal denied relying on the footage to prepare his report and did not realize they could become part of the trial.


“For me this is a line that cannot be crossed. I will not testify if there is any possibility that the tapes will be surreptitiously recorded via Zoom, or released for publication or distribution,” he wrote.


He gave three reasons. First, that Minassian was inspired to violence “from people he watched online.” Minassian’s lawyer Boris Bytensky has said he will be arguing that Minassian was closely influenced by the manifesto and a video produced by mass shooter Elliot Rodger.


“I think Mr. Minassian’s footage could have the same effect on other vulnerable people and could serve as a catalyst for further violence,” Westphal said.


In his submissions in court Friday, Bytensky described the hi-definition footage as “chilling.” It shows a clear close-up of Minassian’s face as he describes his actions in “excruciating detail,” he said.


Westphal also said allowing the videos to be released publicly would also validate Minassian’s stated desire for notoriety. Finally, he said, he is concerned about the stigmatizing effect the “negative stereotypes” in the video could have on millions of people with autism and their families.


“Mr. Minassian shares a developmental disability with millions of Canadians and Americans who pose absolutely no threat to anyone around them. Furthermore, they are a very vulnerable population, already likely to be bullied, and much more likely to be the victims of violence than regular people,” he said. “While I understand that it is essential for the court to understand autism and the role it played in Mr. Minassian’s actions, my duty to the many people I know with autism surpasses that.”


The problem is that since the videos will only be released to the Crown if Westphal testifies, the judge, the Crown and the lawyer representing the media have not seen the videos. Therefore normal process to determine whether the videos meet the criteria to be sealed under the Canadian legal test can’t happen.


As lawyer Brendan Hughes argued in court on behalf of a coalition of eight media outlets including the Toronto Star, Westphal has effectively held the court hostage.


GTA

‘This is demeaning to everyone’: Why Alek Minassian’s defence is provoking anger in Canada’s autism community

2 days ago


“Permitting a witness to affect the court process by imposing terms under which their evidence is presented would represent a serious risk to the administration of justice,” Hughes wrote in his factum. “This is especially the case where the impact of those terms would be to restrict other parties’ Charter rights and the open court principle.”


Molloy agreed that the request was untenable.


“I do not accept that the issues raised by Dr. (Alexander) Westphal would justify the order he thinks I should be making,” she said.


“I made the analogy to a gun to my head. Another one that occurs to me is a ransom demand,” she said. “I know it’s wrong to give into those kinds of demands ... kidnappers should not be paid ransom but that said if somebody kidnapped my child, I would probably pay. And I’m where the buck stops at this point in terms of Mr. Minassian having a fair trial. That is, my overarching discretion is to ensure he gets a fair trial and that’s what I’m going to do.”


She said she would only allow portions of the video to be entered as an exhibit if they were absolutely necessary. The public view of Zoom hearing will be disabled during the time the video is played, except in the physical viewing room where the trial is being shown on a large screen, in order to prevent the surreptitious recording of the videos, as per Westphal’s demand.


The trial continues Monday.


https://www.thestar.com/news/gta/2020/11/20/in-unprecedented-ruling-judge-proactively-bans-release-of-alek-minassians-video-interview-with-us-psychiatrist.html


PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Wednesday, November 25, 2020

Drug test lab series: (Part 4) James Leidig; Matthew Miller: Maryland: A very live issue coming before the state's Court of Appeals on December 3: When does a criminal defendant have a right to cross-examine a lab technician who tested a DNA sample in his case?..."Maryland has a troubling track record when it comes to its forensic analysis. In 2007, the Innocence Project revealed that a firearms examiner who worked for both Baltimore City Police and Maryland State Police had lied on the stand about his credentials. Maryland State Police recently launched a review of 4,041 case files involving this examiner after determining that in some reports he had forged the initials of the person who was supposed to be reviewing his work. Despite the issues presented by forensic science, courts have struggled to articulate a single test for when analysts are witnesses."


PASSAGE OF THE DAY: "At trial, both Leidig and Miller had the chance to cross-examine lab analysts, who answered questions about the procedures used in DNA testing. But neither of them got an opportunity to confront specific analysts who performed testing in their cases. Leidig never got to cross-examine the analyst who produced the DNA profile from the biological sample on the windowsill. And Miller never got to cross-examine the analyst who both produced a DNA profile after the rape and later connected that profile to one from a known sample of Miller’s. This issue matters because forensic science is far from perfect."

PASSAGE  TWO OF THE DAY: "In 2016, a landmark report by the President’s Council of Advisors on Science and Technology, “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” determined that six methods of forensic analysis lacked foundational validity. Empirical studies have never shown that the procedures for techniques like hair analysis are repeatable, reproducible, or accurate. The report did find foundational validity for DNA analysis of biological samples containing the DNA of one or two persons, the technique involved in Leidig’s and Miller’s investigations. However, the report cautioned that the possibility of human error remains present. And Maryland has a troubling track record when it comes to its forensic analysis. In 2007, the Innocence Project revealed that a firearms examiner who worked for both Baltimore City Police and Maryland State Police had lied on the stand about his credentials. Maryland State Police recently launched a review of 4,041 case files involving this examiner after determining that in some reports he had forged the initials of the person who was supposed to be reviewing his work. Despite the issues presented by forensic science, courts have struggled to articulate a single test for when analysts are witnesses." 

COMMENTARY: "Can the sixth amendment protect defendants from junk science?"  by Andrew Hamm. published by The Crime Report on November 23, 2020. Thanks to the Crime Report for bringing this important commentary to our attention. HL:... (Andrew Hamm is a law student at the American University Washington College of Law. He formerly managed SCOTUSblog, where he still covers petitions pending before the Supreme Court. His Comment on the Sixth Amendment and forensic evidence is forthcoming in the Criminal Law Bulletin, Vol. 57 (2021).

GIST: "On December 3, the Maryland Court of Appeals will hear oral arguments in two cases that address when a criminal defendant has a right to cross-examine a lab technician who tested a DNA sample in his case.

In State v. Leidig, a jury convicted James Leidig of burglary on the basis of a DNA profile constructed from a swab that police collected from the windowsill of the house. That DNA was the only evidence the state had to connect Leidig to the crime.

DNA was also the only evidence that the state had on Matthew Miller, whom a jury convicted of rape in State v. Miller. The victim in Miller’s case did not identify him from a line-up as her assailant.

At trial, both Leidig and Miller had the chance to cross-examine lab analysts, who answered questions about the procedures used in DNA testing. But neither of them got an opportunity to confront specific analysts who performed testing in their cases.

Leidig never got to cross-examine the analyst who produced the DNA profile from the biological sample on the windowsill. And Miller never got to cross-examine the analyst who both produced a DNA profile after the rape and later connected that profile to one from a known sample of Miller’s.

This issue matters because forensic science is far from perfect.

In 2016, a landmark report by the President’s Council of Advisors on Science and Technology, “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” determined that six methods of forensic analysis lacked foundational validity. Empirical studies have never shown that the procedures for techniques like hair analysis are repeatable, reproducible, or accurate.

The report did find foundational validity for DNA analysis of biological samples containing the DNA of one or two persons, the technique involved in Leidig’s and Miller’s investigations.

However, the report cautioned that the possibility of human error remains present.

And Maryland has a troubling track record when it comes to its forensic analysis. In 2007, the Innocence Project revealed that a firearms examiner who worked for both Baltimore City Police and Maryland State Police had lied on the stand about his credentials. Maryland State Police recently launched a review of 4,041 case files involving this examiner after determining that in some reports he had forged the initials of the person who was supposed to be reviewing his work.

Despite the issues presented by forensic science, courts have struggled to articulate a single test for when analysts are witnesses. Among the concerns for judges are line-drawing problems. For example, DNA testing typically requires six steps, and sometimes different analysts perform separate stages. Intuition could suggest that at least someone from the laboratory has to show up at trial for questioning, but not every single team member.

That may be simple enough as a practical matter—except that if one analyst is a witness, it is not easy to decipher why the other analysts are not also witnesses whom a defendant has a constitutional right to confront.

The Issue of ‘Formality’

For Justice Clarence Thomas of the U.S. Supreme Court, the confrontation right turns on formality: Criminal defendants have a right to cross-examine the authors of “formal” statements introduced against them at trial. Explaining his views most recently in the 2012 case Williams v. Illinois, Justice Thomas wrote that the DNA report was not formal because it did not “attest that its statements accurately reflect the DNA testing processes used or the results obtained.”

Before Leidig’s and Miller’s cases reached the Maryland Court of Appeals, the judges on the Maryland Court of Special Appeals had applied Justice Thomas’ formality test to the DNA reports. For the processes used, the court noted that the analysts in both cases had followed the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.

As for the results obtained, the court noted that the reports, using slightly different language, stated that they contained the analyst’s conclusions, interpretations and opinions.

Faced with these facts, three judges from the Maryland Court of Special Appeals determined that the report in Miller’s case was formal. However, three different judges determined that the report in Leidig’s case was not formal. At a minimum, these inconsistencies demonstrate weaknesses in Justice Thomas’s formality test.

First, language that might appear formal to some judges evidently might not seem so to others. Second, whether a document appears formal may not even be the most important way to assess evidence. As Justice Elena Kagan wrote in dissent in Williams, “Justice Thomas’s approach grants constitutional significance to minutia, in a way that can only undermine the Confrontation Clause’s protections.”

A third weakness emerges when one considers a key Maryland precedent for DNA evidence, State v. Norton.

In Norton, the Maryland Court of Appeals had noted that the analyst stated on the DNA report that her conclusions were “within a reasonable degree of scientific certainty.” This phrase signified to the court that the DNA report was a formal statement. Though a similar phrase does not appear on the DNA reports in either Miller’s or Leidig’s cases, the court in Leidig’s case took the phrase’s absence as an indication that the report was not formal.

Norton was decided in 2015. In 2016, then-Attorney General Loretta Lynch released a memorandum instructing Department of Justice lawyers and analysts to stop using phrases such as “reasonable scientific certainty.” The National Commission of Forensic Science had recently advised that such phrases mislead lay juries and lack actual scientific meaning. Though the memorandum only applied to federal laboratories, forensic science more broadly has shifted away from such language.

Neither the Maryland State Police (which handled Leidig’s investigation) nor the Baltimore City Police (Miller’s) continue to use such phrases at all. Leidig’s case demonstrates that Justice Thomas’ test may force courts to make comparisons with outdated precedents.

Before the Maryland Court of Appeals, the judges may have two basic options. First, most simply, they can keep the formality test and resolve Leidig’s and Miller’s cases. Because distinguishing the reports may be difficult, the court would likely decide that both reports were formal or both were not formal.

Second, the judges could abandon formality. To Justice Samuel Alito, for example, the confrontation right applies to statements that have the primary purpose of targeting an accused individual. To Justice Elena Kagan, in contrast, the right applies to statements that have an evidentiary purpose—generally the most inclusive of the tests. However, adopting either test and jettisoning formality entirely risks offending Supreme Court precedent.

In 2018, dissenting from the U.S. Supreme Court’s denial of review in a case from Alabama, Justice Neil Gorsuch wrote that the Court needed to clarify the application of the confrontation right to forensic evidence. Only Justice Sonia Sotomayor joined him then.

Regardless of the decisions that the Maryland Court of Appeals makes in Leidig’s and Miller’s cases, petitions to the Supreme Court may be forthcoming. If Justices Gorsuch and Sotomayor can convince at least two other justices to grant review, the time may have come for more clarity on confrontation."

The entire story can be read at:

https://thecrimereport.org/2020/11/23/can-the-sixth-amendment-protect-defendants-from-junk-science/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Tuesday, November 24, 2020

Drug test lab series: (Part 3) : Disgraced former head of the Toronto Hospital for Sick Children's Hospital's now-shuttered notorious Motherisk drug-testing program in spotlight again. The Toronto Star (Reporter Rachel Mendleson) reports that medical journals are retracting columns on a Toronto newborn's death after reviewers concluded that the findings were unreliable..."Two Canadian medical journals are retracting columns about a seminal Toronto case that prompted health agencies around the world to caution against giving codeine to nursing mothers for pain relief. The rare and significant step to retract the two columns from the scientific record came after an independent review found “clear evidence that the findings are unreliable.”


PASSAGE OF THE DAY:  "The hospital launched an internal review of Koren’s vast body of published work in late 2018, after an investigation by the Star and Ryerson University’s School of Journalism identified possible problems with more than 400 papers he co-authored. The spokesperson said that review is “nearing completion” and that the hospital will share its findings “when they are available.” Koren retired from Sick Kids in 2015 amid a scandal involving Motherisk’s hair testing lab that tore apart families and prompted two government-commissioned inquiries. "

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STORY: "We did the right thing": Medical journals are retracting columns on Toronto newborn's death after reviewers   conclude the findings were unreliable," by reporter Rachel Mendleson, published by The Toronto Star on November 19, 2020."

GIST: Two Canadian medical journals are retracting columns about a seminal Toronto case that prompted health agencies around the world to caution against giving codeine to nursing mothers for pain relief.

The rare and significant step to retract the two columns from the scientific record came after an independent review found “clear evidence that the findings are unreliable.”

The editors of Canadian Family Physician and Canadian Pharmacists Journal published a joint retraction notice on Wednesday. It is the latest in a series of corrective actions medical journals have taken in recent years against papers co-authored by Dr. Gideon Koren, the disgraced former head of the Hospital for Sick Children’s now-shuttered Motherisk program. 

“Given the complexity of the science, the significance of the case report, and the serious implications of retraction, we sought an independent peer review,” the journal editors said in the retraction notice for the columns, published in 2006 and 2007. “We agree with the findings of the reviewers and therefore retract the papers.”

The columns are based on a Toronto case report first published in The Lancet in 2006, which sparked widespread concern that dangerous levels of morphine, a by-product of codeine, could pass through breastmilk. Koren is the lead author of The Lancet report, which blamed the 2005 death of a newborn baby boy, whose mother was prescribed codeine following childbirth, on morphine-laced breastmilk. 

Ontario’s former deputy chief coroner is a co-author on all three papers. He did not respond to a request for comment. 

In the retraction notice, the Canadian journal editors said they launched the review after two pharmacologists at Sunnybrook Hospital disputed the findings, “calling into question that newborns can develop opioid toxicity from breastfeeding.”

In a peer-reviewed paper published in May, co-authors Dr. David Juurlink and Dr. Jonathan Zipursky, re-examined the case and found the explanation of how the baby died “implausible.” 

Juurlink and Zipursky cited information from the coroner’s report that was not included in the case report and columns co-authored by Koren: the codeine level in the boy’s blood. They did not offer an alternative explanation for how the baby ingested the drug that apparently killed him. 

In an email on Wednesday, a Sick Kids spokesperson said CEO Dr. Ronald Cohn “had requested retractions from these journals and is supportive of the action they have taken.”

The hospital launched an internal review of Koren’s vast body of published work in late 2018, after an investigation by the Star and Ryerson University’s School of Journalism identified possible problems with more than 400 papers he co-authored. The spokesperson said that review is “nearing completion” and that the hospital will share its findings “when they are available.”

Koren retired from Sick Kids in 2015 amid a scandal involving Motherisk’s hair testing lab that tore apart families and prompted two government-commissioned inquiries. 

He replied to an email requesting comment for this story with a link to an articlehe co-authored in July responding to the paper by Juurlink and Zipursky. The article is published in Motherisk International, a journal Koren launched earlier this year in Israel, where he is listed as a full professor at Ariel University’s medical school in the West Bank.

“We believe that the claim by Zipursky and Juurlink that this is an improbable cause of death stems from fundamental flaws in their understanding of perinatal toxicology,” Koren said in the article.

He said that “many more deaths” would have occurred if the U.S. Food and Drug Administration hadn’t warned about the risks of codeine and breastfeeding following the Toronto case report first published in the Lancet. 

In an email on Wednesday, the baby’s mother, Rani Jamieson, said, “The decision to retract the two original papers reflects a massive failure on the part of both Canadian Family Physician and the Canadian Pharmacists Journal.”

Jamieson previously told the Star that the new paper “just presents baseless speculation” and that Juurlink and Zipursky, “are very clearly insinuating that (her son) Tariq had been given his fatal overdose through another channel” but that they omit “any information that would cause people to doubt their claims.”

In making their determination, the independent reviewers commissioned by the Canadian journal editors considered the columns, the case report and the paper by Juurlink and Zipursky, as well as responses of “Koren and colleagues to the concerns about the case report” raised in that new paper and “correspondence from the parent of the child,” according to the retraction notice.

The entire story can be read at:

https://www.thestar.com/news/investigations/2020/11/18/we-did-the-right-thing-medical-journals-are-retracting-columns-on-a-toronto-newborns-death-after-reviews-conclude-the-findings-were-unreliable.html

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Monday, November 23, 2020

Drug test lab series: (Part 2): From our 'Here we go again?' (Remember Annie? Remember Sonja?) department: Forensic laboratory analyst Justin Volk: San Francisco DA Posts List Of Cases Possibly Impacted By Forensic Lab Analyst Misconduct – CBS San Francisco


DEAR READER: Check out  the latest post from my  weekly 'Selfless Warriors Blog,   published earlier today at the link below: "Selfless Warrior Norma Herrera: Texas/Leo Herrera..."Leonel Herrera was convicted in Texas of the1981 murder of a police officer and sentenced to death. After the U.S. Supreme Court ruled against considering the merits of Herrera’s writ of habeas corpus that was based on new evidence of his factual innocence, he was executed in  1993. The Supreme Court’s decision in Herrera’s case, Herrera v. Collins, 506 U.S. 390 (1993), is well-known in legal circles because Justice Blackmun decried the Court’s refusal to consider Herrera’s petition, bluntly writing in his dissent, “The execution of a person who can show that he is innocent comes perilously close to simple murder. ”Herrera’s sister Norma unconditionally supported him, and in the days before his execution he asked her to tell the true story of his case. Fourteen years after his execution she finally completed her book."  Reporter Natalie Smith-Parra. Justice Denied."


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Back to The Charles Smith Blog:

PASSAGE OF THE DAY:  "District Attorney Chesea Boudin announced with a news release that his office had posted “a comprehensive list of prosecutions” by an analyst with the Office of Chief Medical Examiner (OCME) who is being investigated in a drug scheme. On August 31, the DA’s office learned that OCME Forensic Laboratory Analyst Justin Volk had been arrested and charged with possession of methamphetamine with intent to distribute in Washington County, Utah. “Volk worked for the OCME and had been assigned to the forensic laboratory for almost thirteen years,” Boudin said in the press release. “During those years, Mr. Volk played a role in many cases prosecuted by the District Attorney’s Office.” Boudin went on to say that the list of prosecutions that Volk was involved in was made public “to provide transparency and empower those whose cases may be affected to explore further.”


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STORY: "San Francisco DA Posts List Of Cases Possibly Impacted By Forensic Lab Analyst Misconduct,  published by CBS San Francisco (KPIX) on November 20, 2020.

GIST: "The San Francisco District Attorney’s office on Friday posted an extensive list of cases that could be affected the misconduct of a forensic lab analyst who is being charged with intent to distribute methamphetamine, officials said.


District Attorney Chesea Boudin announced with a news release that his office had posted “a comprehensive list of prosecutions” by an analyst with the Office of Chief Medical Examiner (OCME) who is being investigated in a drug scheme.


On August 31, the DA’s office learned that OCME Forensic Laboratory Analyst Justin Volk had been arrested and charged with possession of methamphetamine with intent to distribute in Washington County, Utah.


“Volk worked for the OCME and had been assigned to the forensic laboratory for almost thirteen years,” Boudin said in the press release. “During those years, Mr. Volk played a role in many cases prosecuted by the District Attorney’s Office.”


Boudin went on to say that the list of prosecutions that Volk was involved in was made public “to provide transparency and empower those whose cases may be affected to explore further.”


“My office has acted with great urgency in responding to the allegations against Justin Volk, and we have prioritized working to review all convictions in cases in which he was involved,” said Boudin. “Ensuring the integrity of our convictions is of the utmost importance, and for that reason, we are publishing this information as part of our commitment to integrity and transparency in the criminal legal system.”


The DA’s office estimated that Volk was involved in “more than 2,500 law enforcement investigations including 500 death investigations, 1,200 sexual-assault investigations, and 800 DUI investigations” as an analyst testing, collecting and preserving evidence in those investigations.


The District Attorney’s office sent a letter to Mayor London Breed and Board of Supervisors President Norman Yee in September to request additional resources “in order to meet the Office’s Constitutional obligation to notify, identify, and investigate the impact of the potential mishandling and misappropriation of OCME property.”


The District Attorney’s letter additionally explained that a surge in appellate filings and requests for new trials in connection with Volk’s involvement was expected that would impact the Boudin’s office. So far, the DA’s office said those additional resources, estimated to cost approximately $455,731, have not been made available.


Boudin’s office noted that there could be additional cases not included on the published spreadsheet prosecutions Volk may have been involved with and that there would be updates. While the DA does not assert that Volk’s involvement necessarily casts doubt any convictions, “the information is provided to facilitate obtaining more details to determine whether any evidence supporting the conviction may have been tainted by Mr. Volk.”


Volk remains under investigation by the San Francisco District Attorney’s Office.

The DA’s office is encouraging anyone whose case might have been impacted to contact their defense attorney to determine whether legal recourse may be available."


The entire story can be read at:

https://sanfrancisco.cbslocal.com/2020/11/20/san-francisco-da-to-post-list-of-cases-impacted-by-forensic-lab-analyst-misconduct/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
-----------------------------------------------------------------
FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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