Saturday, February 27, 2021

BULLETIN: Innocence List: Death Penalty Information Center. (DPIC): Sedley Alley: Pervis Payne: DPIC releases report adding 11 cases to its 'innocence list.'...One interesting observation in the report: Misconduct was present in 85.7 percent of the cases in which DNA evidence contributed to proving a death-row exoneree’s innocence, suggesting that the denial of DNA testing or absence of DNA evidence has caused innocence to be undetected or contributed to the denial of relief in other innocence cases."


PUBLISHER'S NOTE: Another important  report from the Death Penalty Information Center received the following reaction: “The Death Penalty Information Center’s findings are alarming, but not surprising,” Christina Swarns, Executive Director of the Innocence Project, said. Racism pervades every stage of the criminal legal system and sends far too many innocent people of color to prison and to the execution chamber. The good news is that more Americans are now taking this issue seriously." You can read the entire report - and summaries of the 11 cases - at  the link below. I am focusing my comments on the forensic content of the DPIC report - while  stressing how important  and disturbing are the other areas covered in the report. 

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RELEASE: "Death penalty Information Center  (DPIC) adds 11 to innocence list," released by The DPIC on February 18, 2021.

MAJOR THEME: One of the  most important  themes of the document  is that new analysis of death row exonerations is that official misconduct was found to be more likely in cases with innocent  Black and Latinx defendants.

FIRST MAJOR THEME OF INTEREST TO THIS BLOG: "Misconduct was present in 85.7 percent of the cases in which DNA evidence contributed to proving a death-row exoneree’s innocence, suggesting that the denial of DNA testing or absence of DNA evidence has caused innocence to be undetected or contributed to the denial of relief in other innocence cases.  (At the top of every post on a case where DNA testing is denied, I attach the following note: "WORDS TO HEED: FROM OUR POST ON KEVIN COOPER'S  APPLICATION FOR POST-CONVICTION DNA TESTING; CALIFORNIA: (Applicable wherever a state resists DNA testing): "Blogger/extraordinaire Jeff Gamso's blunt, unequivocal, unforgettable message to the powers that be in California: "JUST TEST THE FUCKING DNA." (Oh yes, Gamso raises, as he does in many of his posts, an important philosophical question: This post is headed: "What is truth, said jesting Pilate."...Says Gamso: "So what's the harm? What, exactly, are they scared of? Don't we want the truth?""  https://smithforensic.blogspot.com/2018/06/kevin-cooper-2-california-application.html

SECOND MAJOR THEME RELEVANT TO THIS BLOG: "False or misleading forensic evidence was present in 31.8 percent (59) of exoneration cases and false or fabricated confessions were implicated in 16.2 percent (30) of exonerations."

 THIRD MAJOR THEME RELEVANT TO THIS BLOG:  "Many people are fighting to add more names to DPIC’s innocence list", including: (Two cases - both in Shelby County Tennessee - and both  being cases which have been  followed by this Blog are listed:)

SEDLEY ALLEY:  "The daughter of Sedley Alley, who was executed in 2006 after a Shelby County court denied DNA testing based on a case that has since been overturned, is currently petitioning for post-humous DNA testing. Mr. Alley said that he was coerced into falsely confessing to a murder, which is supported by details in his statement that do not match the forensic evidence. An expert in false confessions has concluded that Mr. Alleys confession was likely false."

PERVIS PAYNE:  "In addition, Pervis Payne, a Black man with intellectual disability, has maintained his innocence for 34 years. He was convicted in Shelby County, which has a long history of lynchings and racial terror, after the prosecution withheld exculpatory evidence and argued without factual support that Mr. Payne was a drug abusing superpredator looking for a white woman to rape."

IMPLICATIONS: "Kirk Bloodsworth, Executive Director of Witness to Innocence and the first death-row survivor to be exonerated by DNA, said the addition of 11 new people to DPIC’s innocence list makes him certain that “innocent people are still on death row today.”He added, "with such a large number of mistakes uncovered, there's no need to wonder anymore, we can also be sure that innocent people have been executed.”

POLITICAL CONSIDERATIONS: "On February 9, 2021, more than 80 criminal justice and civil rights organizations cited DPIC’s innocence list to show “the high propensity for error in our criminal legal system” in calling onPresident Bidento abolish the federal death penalty and to commute the sentences of the 49 federal death-row prisoners."

The entire release can be read at:

https://documents.deathpenaltyinfo.org/pdf/Innocence-Epidemic-Press-Release.pdf

Read DPIC’s Special Report: The Innocence Epidemic here: https://tinyurl.com/356x2feb 

Read summaries of the 11 cases here: https://tinyurl.com/4xavzwss

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

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Friday, February 26, 2021

Corey Pickett: New Jersey: Mark this name! I will repeat it. 'Corey Pickett.' Here's why! (In just a few paragraphs).


THE CASE: New Jersey prosecutors are attempting to use sophisticated 'probabilistic genotyping software known as 'TrueAllele" to convict this man of murder. 

PROSECUTOR'S DILEMMA: As much as they want to convict, they want to keep the manufacturer's happy by protecting the software's source code as a 'trade secret.' i.e. Keep it from the defence.

DEFENCE POSITION: Software is not immune from error. The consequences of a murder conviction are enormous. How can I conduct an independent review of this novel DNA technology without being able to examine its inner workings?

WHAT IT LOOKS LIKE: Right to make full answer and defence versus greedy corporations backed up by the state which is eager to get a conviction at any cost. Civil liberties 101?

WHY MARK COREY BOOKER'S NAME:  Because, as you will see from the 'Forensic Magazine; article at the link below, Mr. Pickett has actually won his challenge in the New Jersey courts - at least for now. 

NEXT STEP: (You probably guessed it).  The prosecutors are seeking a review of the New Jersey decision.

SIGNIFICANCE: This is an epoch battle between the public  constitutional right to defend and very private interests  that is being fought not just in Jersey but elsewhere in the U.S.A.  (Apart from the crucial importance of the issue to Corey Pickett )

BOTTOM LINE: Mark that name...I will be following developments in this case and elsewhere.

Harold Levy: Publisher: The Charles Smith Blog:

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STORY: "Corey Pickett Case Puts New Jersey Courts and TrueAllele Head-to-Head," by Editor-in-chief  Michelle Taylor  (who has done an excellent job of making complex technological subject matter crystal clear) published by 'Forensic Magazine' on February 24, 2021. 

GIST: "After a successful appeal by the defendant, state attorneys have filed a motion to reconsider the use and evaluation of probabilistic genotyping software TrueAllele in the case of Corey Pickett, a man charged with murder in New Jersey.

While Cybergenetics’ TrueAllele has had over 25 admissibility cases in multiple states and federal court, New Jersey is not one of them. The Pickett case is the first time a New Jersey court has addressed the use of probabilistic genotyping software.

At an evidence hearing in 2019, the court heard TrueAllele’s admissibility testimony The court fell in line with other state courts that have moved to protect the software’s source code as a “trade secret.” However, defense attorneys for Pickett have argued that they need access to the source code to commence an independent review. An appeal was granted in February 2021 by the appellate court, sending the case back to the trial court.

“In appropriate circumstances, especially where civil liberties are on the line, independent source code review is critical when determining reliability at a Frye hearing. These case studies illustrate that software is not immune from error. Fundamental due process and fairness demand access,” wrote Judge Fasciale in the appellate division of the Superior Court of New Jersey.

Days later, prosecutor Esther Suarez filed a motion to reconsider, taking legal aim at three specific arguments used in the February appeal decision: 1) widespread use of probabilistic genotyping software; 2) the 2016 PCAST report; and 3) relevant rulings from other jurisdictions.

Case background

Pickett was charged in connection with a fatal shooting that occurred in Jersey City, New Jersey. On April 17, 2017, Pickett and an alleged accomplice opened fire into a crowd, killing one man with a shot through the head and injuring a 10-year-old girl, who suffered a non-fatal wound to the stomach when a bullet entered the car she was waiting in. Police apprehended Pickett and his alleged accomplice, and recovered two handguns and a ski mask.

Traditional DNA analysis indicated Pickett as a major source contributor for the DNA profiles lifted from the ski masks. Remaining samples were sent to Cybergenetics for analysis. TrueAllele then identified Pickett as a source of DNA found on one of the handguns as well as a ski mask. Ferrara could not be identified as a contributor to any of the samples.

The motion to reconsider

The appellate decision said errors in the source code of probabilistic genotyping software have been found, and that there is no reason to assume that TrueAllele is immune from these errors since “peer-reviewed studies are not a substitute for source-code review.” However, pointing to a paper by John Buckleton et. al, the state says discovery of miscode has not been found by code review, rather by empirical testing. Buckleton—who is the creator of STRmix, TrueAllele’s competitor—and his team uncovered a minor issue in the Forensic Statistical Tool probabilistic genotyping software created and used by the Office of the Medical Examiner of New York City.

“This minor and largely innocuous routine was rediscovered by testing and subsequently confirmed in the code. In our experience this is the normal sequence. The testing identifies an unusual behavior in the software, the cause of which is subsequently found in the code once both a suitable test example is available, and a portion of the code comes under scrutiny,” the paperpublished in WIREs Forensic Science, reads.

The appellate decision also references the 2016 PCAST report that takes aim at the methods used in DNA analysis of complex mixture samples. The state argues the report has been denounced by both forensic science and law enforcement, including the Department of Justice announcing that it would not follow the report’s recommendations. It should be noted that TrueAllele, like STRmix, has been validated and is in compliance with the FBI’s Scientific Working Group on DNA Analysis Methods (SWGDAM).

Lastly, the motion to reconsider points to the relevant rulings from other jurisdictions in which similar claims regarding the TrueAllele source code were rejected. The Pickett case is unusual in that there was no hearing or chance for cross-examination. The state argues there have been a number of other courts that have addressed the source code issue after cross-examination of experts, and all come to the same conclusion. The motion references eight cases in seven states—Ohio, Virginia, Pennsylvania, Washington, Tennessee, Georgia and Nebraska—that say TrueAllele meets the Daubert standard, validation studies show its reliability, and it can be evaluated without access to the source code.

Source codes as trade secrets

On a broader level, the issue comes back to the question of if the source code of probabilistic genotyping software—current and future—should be considered a trade secret. Cybergenetics has entered trade secrets claims in more than 10 cases where TrueAllele’s findings were used as evidence. Thus far, the courts have sided with the company, every time.

In previous cases, Cybergenetics has granted use of its software to expert witnesses for the defense for testing. The company has also provided source code under a protective order.  The company offered the same to the defense in the Pickett case, but the two sides could not come to an agreement on the extent of the protections. Cybergenetics offers inspection of the source code by an expert defense witness, but requires that expert to accept responsibility for any legal and financial consequences in the event of a breach. Experts for Pickett’s legal team did not agree to that liability.

But Perlin, CEO of Cybergenetics, is adamant about protecting his source code in what he calls a “highly competitive commercial environment.” He also says the source code is just not necessary to test the accuracy of any his software—nor anyone else’s.

“An algorithm describes a procedure. A programmer writes in a computer language, translating the algorithm into source code text. A compiler turns the text into executable software that runs as a smartphone, laptop or other computer app. Algorithms are shared, software is tested. Since software pirates can easily copy text files, trade secret law protects source code confidentiality,” Perlin explains. “You don’t learn how a car works by reading its blueprints; you take it for a test run. Lawyers read, scientists test.”

TrueAllele’s competitor, STRmix, has never filed a trade secrets claim. The algorithms to both software programs have been published in peer-reviewed literature."

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The entire story can be read at:

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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Thursday, February 25, 2021

Bart McNeill; Illinois: Major (Very Welcome) Development...(Exactly what a man sentenced to100 years imprisonment (in for 22 years already) for the murder (suffocation death) of 3-year-old daughter, needs. He's now got two major innocence organisations on his side and new scientific evidence - and hope that he will soon have a court date and be cleared. "In the 65-page petition and four volumes of exhibits, lawyers with The Exoneration Project and the Illinois Innocence Project challenge key evidence used by the state to convict McNeil during a four-day bench trial before now-retired judge Michael Prall."


QUOTE OF THE DAY: "The bottom line is that modern science completely repudiates Hnilica’s testimony regarding any alleged motive,” states the defense motion.

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PASSAGE OF THE DAY: "In the 65-page petition and four volumes of exhibits, lawyers with The Exoneration Project and the Illinois Innocence Project challenge key evidence used by the state to convict McNeil during a four-day bench trial before now-retired judge Michael Prall.  A pathology report by Dr. Violette Hnilica claiming Christina was sexually molested before she was smothered will be challenged with new scientific evidence, according to defense lawyers. “Applying modern scientific principles, a renowned forensic pathologist has now concluded that  noting about the autopsy findings in Christina McNeil’s case supports an objective, independent diagnosis that she was smothered or that the manner of death was a homicide,” said the petition. Lawyers argue a child abuse expert will testify the state’s accusation of molestation was equally faulty.

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STORY: "Bart McNeil seeks new trial on murder charges," by Reporter Edith Brady-Lunny, published by WGLT on February 23, 2021.

SUB-HEADING: "Bart McNeil said he was anxiously awaiting the new petition and a court date.

GIST: "New evidence in the 1998 death of 3-year-old Christina McNeil exonerates her father of murder charges, according to a petition filed on Tuesday by lawyers for Bart McNeil.

McNeil is serving a 100-year sentence on murder charges in the suffocation death of his daughter.

In the 65-page petition and four volumes of exhibits, lawyers with The Exoneration Project and the Illinois Innocence Project challenge key evidence used by the state to convict McNeil during a four-day bench trial before now-retired judge Michael Prall. 

A pathology report by Dr. Violette Hnilica claiming Christina was sexually molested before she was smothered will be challenged with new scientific evidence, according to defense lawyers.

“Applying modern scientific principles, a renowned forensic pathologist has now concluded that  noting about the autopsy findings in Christina McNeil’s case supports an objective, independent diagnosis that she was smothered or that the manner of death was a homicide,” said the petition.

Lawyers argue a child abuse expert will testify the state’s accusation of molestation was equally faulty.

“The bottom line is that modern science completely repudiates Hnilica’s testimony regarding any alleged motive,” states the defense motion.

Much of the court filing focuses on the defense theory that a second, more likely suspect who was later convicted of another murder, avoided serious consideration as a suspect by authorities. McNeil’s former girlfriend, Misook Nowlin, was jealous, vindictive and had a history of physically abusing adults and children, according to McNeil’s counsel.

The night before Christina’s body was found in her bed at her father’s Bloomington apartment, McNeil and Nowlin had a bitter disagreement at a restaurant that ended their relationship. Evidence that someone may have entered the child’s room through a window and knocked over a fan was dismissed by Bloomington police detectives.

Lawyers point out it was McNeil who summoned police to his home to investigate what he thought was the murder of his daughter.

During his trial, McNeil’s lawyer, Tracy Smith, was barred from introducing evidence of an alternative suspect.

The results of DNA tests performed during McNeil’s post-conviction proceedings show Nowlin, Christina and McNeil could not be excluded from DNA profiles collected from a bedsheet. Hair collected from inside a pillowcase was not Christina’s, but consistent with Nowlin’s DNA, said the petition.

Nowlin’s actions in the 2011 strangulation death of her mother-in-law Linda Tydashowed her “idiosyncratic and patterned history of homicide,” according to a chart included with the filing of 11 similarities between the two deaths.  

The defense also asks the court to consider new allegations about Nowlin’s suspicious conduct the night of the child’s death and her presence at the apartment the next morning when police arrived. Information that Nowlin told her former husband Don Wang that she killed Christina also should be heard, said the petition.  

In a recent phone call with WGLT from the Pinckneyville Correctional Center, McNeil said he was anxiously waiting for the new petition and a court date.

“I’ve already been locked up for 20 years. If justice is going to be done, let’s not draw this out any longer. I hope justice is served for my daughter, whose killer or killers have paid no penalty for her death,” said McNeil.

A court date has not been set on the petition for a new trial.

McNeil's conviction was the subject of the WGLT podcast Suspect Convictions in 2018.

The entire story can be read at:

bart-mcneil-seeks-new-trial-murder-charges

The petition can be read at:

https://mail.google.com/mail/u/0/#inbox?projector=1

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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Kevin Henry: Australia; Australian journalist Amy McQuire granted 'writer's residency' which she hopes will resolve what may be the longest running case of false imprisonment in Australian legal history..."McQuire says her work with human rights lawyer Martin Hodgson has unearthed previously unseen witness statements, an alibi and a clear timeline that precludes Henry from being at the site at the time of the murder. There is also no DNA evidence of any kind."


PUBLISHER'S NOTE: Yet another Australian case providing grist for the 'Charles Smith Blog' mill. Bravo to Journalist Amy McQuire and her colleague, human rights lawyer Martin Hodgson, for their work on the case and the aboriginal issues it poses. They have vowed to keep digging until Henry is finally free. I will be following developments with keen interest. Stay tuned. 

Harold Levy: Publisher: The Charles Smith Blog.

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PASSAGE OF THE DAY:  "Amy McQuire is a Darumbal and South Sea Islander journalist with over 13 years’ experience working in primarily Aboriginal and independent media. Her winning residency project, the book The Water Behind Us,is a journalistic investigation into the wrongful conviction of Aboriginal man Kevin Henry. It’s a story with strong resonance for McQuire: in 1991, an Aboriginal woman was found murdered on the banks of the Fitzroy River in her hometown of Rockhampton. Within a week, four people were charged with her murder. Kevin Henry was convicted the following year of her rape and murder, but has always maintained his innocence. The victim was found on a mud bank in the Fitzroy River in Rockhampton and had been assaulted by a group of people, each of whom was sentenced to three to four years’ jail. Henry is alleged to have placed the woman in the river, where she drowned. Henry spent a quarter of a century in prison but was recently released and McQuire, who spent three years investigating the case, says she has evidence to support his claims of innocence. Should he be exonerated, he would be the longest serving wrongfully convicted prisoner in Australian legal history."

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STORY: "Canberra writer's residency could help resolve long running false imprisonment case," by Reporter Genevieve Jacobs, published by riot act.com on February 21, 2021.

GIST: "A journalist investigating what she believes may be the longest running case of false imprisonment in Australian legal history has furthered her quest to exonerate the convicted man through a residency program at The Australia Institute in Canberra.

Amy McQuire is a Darumbal and South Sea Islander journalist with over 13 years’ experience working in primarily Aboriginal and independent media. Her winning residency project, the book The Water Behind Us,is a journalistic investigation into the wrongful conviction of Aboriginal man Kevin Henry.

It’s a story with strong resonance for McQuire: in 1991, an Aboriginal woman was found murdered on the banks of the Fitzroy River in her hometown of Rockhampton. Within a week, four people were charged with her murder. Kevin Henry was convicted the following year of her rape and murder, but has always maintained his innocence.

The victim was found on a mud bank in the Fitzroy River in Rockhampton and had been assaulted by a group of people, each of whom was sentenced to three to four years’ jail. Henry is alleged to have placed the woman in the river, where she drowned.

Henry spent a quarter of a century in prison but was recently released and McQuire, who spent three years investigating the case, says she has evidence to support his claims of innocence. Should he be exonerated, he would be the longest serving wrongfully convicted prisoner in Australian legal history.

McQuire says her work with human rights lawyer Martin Hodgson has unearthed previously unseen witness statements, an alibi and a clear timeline that precludes Henry from being at the site at the time of the murder. There is also no DNA evidence of any kind. page1image402314080

The pair believe that not only was Henry’s confession most likely coerced, but that he was also given no legal representation. A large portion of the confession tendered by the prosecution was thrown out at his trial because the judge found it had not been obtained voluntarily.

The case is also the subject of an investigative podcast series, Curtainco-hosted by McQuire and Hodgson which began while Kevin was still incarcerated in Rockhampton’s Capricorn Correctional Centre. In addition to the specifics of the case, the podcast also looks at broader issues around Aboriginal incarceration.

Speaking before the residency began in early December, McQuire said: “It is very rare that I get a great stretch of uninterrupted thinking time; so to be an Australia Institute Writer in Residence affords me the time to write, but also to think deeply about the complexities of the case and work through the structural issues in the book”.

The Writer in Residence Program provides a stipend, office space and accommodation for an Australian writer to work from The Australia Institute in Canberra. In 2020 the Australia Institute offered a second Writer in Residence opportunity in recognition of the hardships faced by writers due to COVID-19.

The residency program is intended to support storytellers who are exploring nationally significant themes, and Australia Institute executive director Ben Oquist says this has never been more important than in this exceptionally difficult year for the arts.

The selection panel for the residency included Canberra poet Melinda Smith, novelist and playwright Paul Daley; Allan Behm, former chair of the Canberra Writers Festival; Alex Sloan, former ABC broadcaster; and Mr Oquist.

“What struck the selection panel most about Amy McQuire’s project is not just that it is a worthy story that needs to be told, but that we felt only Amy could tell it,” said Melinda Smith.

“The panel had a very challenging task to select one writer from among a large pool of impressive applicants with exciting and vital writing projects. Australian non-fiction writing is in very good shape if the quality of this group of proposals is anything to go by.”

The entire story can be read at:

https://the-riotact.com/canberra-writers-residency-could-help-resolve-long-running-false-imprisonment-case/428687

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Listen to the  'Curtain' Podcast:

https://curtainthepodcast.wordpress.com-

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

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Wednesday, February 24, 2021

Bulletin: Sue Neill-Fraser: Australia: Interesting news; Bad news: Good News - as the long-awaited appeal draws near.


BACKGROUND: Sue Neill-Fraser was convicted of murdering her partner Bob Chappell on Australia Day 2009, on board their yacht 'Four Winds'. She has maintained her innocence. She has been granted leave to appeal (in March 2019) after a three year process in which then homeless 15 year old Meaghan Vass admitted she was a witness to the murder and Neill-Fraser was not involved. Vass’ DNA was found on the deck." As per Yahoo News: 2020: "Ten years after being found guilty of murdering her partner Bob Chappell, Hobart grandmother Susan Neill-Fraser's second appeal against her conviction will be heard. Neill-Fraser is serving 23 years' jail for killing Mr Chappell on Australia Day 2009 on the couple's yacht in Hobart. Her legal team argues there is "fresh and compelling" evidence that places then-homeless teenager Meaghan Vass on board the boat the night in question.

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THE INTERESTING NEWS: "Meaghan Vass, the chief witness (her stunning testimony absolutely clears Ms. Neill-Fraser) will  be giving evidence from a remote witness room and will not be physically present in court, when the long-awaited appeal begins on Monday, March 1st, 2021.

THE BAD NEWS: "the court has decided not to stream or video record proceedings as both sides had expressed concerns about prejudice should the appeal result in a retrial, “which may arise from wide exposure of evidence and witnesses”.  (I would have loved to be able to watch!)

THE GOOD NEWS:  Ms. Neill-Fraser's appeal team will be lead by prominent Barrister Robert Richter QC , acting pro bono with a team of two fellow barristers and a solicitor.

MORE GOOD NEWS: Author/blogger/criminal justice analyst Andrew L. Urban advises that he will be in Hobart at the court to cover the appeal  on his site - The Wrongful Conviction Report -– subject to seat availability in the covid-restricted court. He is the author of an  authoritative book on the Neill-Fraser saga: "Murder by the prosecution." His latest post: https://wrongfulconvictionsreport.org/2021/02/24/robert-richter-qc-to-lead-sue-neill-fraser-appeal-team/

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

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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Kenneth Nixon: Michigan: Jailhouse informant: 'Released after 15 years behind bars: Charged with murder, attempted murder and arson on the evidence of a 13-year-old witness who was at home at the time of the fire - and a jailhouse informant..."On Aug. 29, 2005, the informant received special consideration in an unrelated case. On Aug. 30, the informant gave a statement to police incriminating Nixon. At trial, the informant testified that he did not see news reports of the fire. But, in 2018, the informant was interviewed by the Medill Justice Project and the informant admitted that he had seen news coverage of the case before speaking to Nixon."


PUBLISHER'S NOTE: In response to  the stunning number of exonerations  enabled by DNA evidence,  one of the most common explanations has been that all too often police and prosecutors  are tempted to use devious, dangerous techniques in the absence of  scientific evidence which can neatly provide a conviction. (A wrongful conviction at that. HL);  One of these techniques - in addition to obtaining false statements or ' rigging'  the identification processes  (or both) - is by secretly ‘buying’  the evidence of prison informants, commonly referred to as ‘jailhouse informants’ or ’snitches.’    Top-notch investigative journalists Pamela Colloff and Mike White  have dived deeply into the  dangers posed by jailhouse snitches - from the USA  and New Zealand. Their  work has been evidenced by multiple posts on this Blog.

Harold Levy: Publisher: The Charles Smith Blog.

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PASSAGE OF THE DAY: "The WMU-Cooley Innocence Project worked with the Wayne County Conviction Integrity Unit to DNA test the Molotov cocktail used to start the fire. Unfortunately, no DNA results were obtained. However, there was other new evidence that supported Nixon’s innocence and the Cooley team requested the Wayne County Conviction Integrity Unit to reinvestigate the case.  Based on their own investigation and findings, the Wayne County Conviction Integrity Unit requested a new trial and the dismissal of all charges."

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 STORY: "Even without DNA results, Kenneth Nixon released after 15 years in prison,"  published by 'Forensic' on February 22, 2021. (Thanks to 'Forensic Magazine' for bringing this article to our attention. HL); 

"Late last week, Wayne County Judge Bruce Morrow set aside the conviction of Kenneth Nixon. Nixon was wrongfully convicted of murder, attempted murder and arson in 2005.
 
Assistant Prosecutor Valerie Newman, Director of the Wayne County Prosecutor Office’s Conviction Integrity Unit, moved to have Nixon’s conviction vacated and requested dismissal of all charges. Nixon is represented by the Western Michigan University Cooley Law School Innocence Project (WMU-Cooley Innocence Project).
 
“Mr. Nixon has worked tirelessly over the last 15 years to regain his freedom. Thanks to Mr. Nixon’s persistence and the collaboration between the WMU-Cooley Innocence Project and the Wayne County Conviction Integrity Unit, Mr. Nixon will finally be reunited with his loved ones,” said his attorney, David Williams.

On May 19, 2005, a Molotov cocktail was thrown into a home on Charleston street in Detroit, causing the deaths of a 10-year-old boy and a 1-year-old girl. The mother and other children, including her 13-year-old son were also in the home and sustained injuries.

Nixon and his then girlfriend, Latoya Caulford, were charged with two counts of felony murder, one count of arson and four counts of attempted murder. Caulford, accused of driving Nixon to the Charleston house, was acquitted after a separate jury trial on Sept. 21, 2005. But Nixon was convicted on all charges.

The main issue at trial was the identification of the person who threw the Molotov cocktail. Nixon always denied his involvement in the crime and presented evidence that he was with Caulford at her home during the time of the fire. Two alibi witnesses were presented to support his defense, but Caulford could not testify due to her own pending charges. The identification of Nixon was based upon statements made by the 13-year-old witness who was at the home at time of the fire, and the testimony of a jailhouse informant who was housed at the same jail as Nixon after his arrest. On Aug. 29, 2005, the informant received special consideration in an unrelated case. On Aug. 30, the informant gave a statement to police incriminating Nixon. At trial, the informant testified that he did not see news reports of the fire. But, in 2018, the informant was interviewed by the Medill Justice Project and the informant admitted that he had seen news coverage of the case before speaking to Nixon.
 
The WMU-Cooley Innocence Project worked with the Wayne County Conviction Integrity Unit to DNA test the Molotov cocktail used to start the fire. Unfortunately, no DNA results were obtained. However, there was other new evidence that supported Nixon’s innocence and the Cooley team requested the Wayne County Conviction Integrity Unit to reinvestigate the case.  Based on their own investigation and findings, the Wayne County Conviction Integrity Unit requested a new trial and the dismissal of all charges.
 
The WMU-Cooley Innocence Project is the only post-conviction DNA innocence organization in the state. Since its inception, the office has screened over 5,800 cases and is responsible for the exoneration of five men: Kenneth Wyniemko (2003), Nathaniel Hatchett (2008), and Wayne County residents Donya Davis (2014) LeDura Watkins (2017) and Kenneth Nixon. This past year, the WMU-Cooley Innocence Project supported the exonerations of Ramon Ward and Lacino Hamilton by contributing its DNA expertise and grant resources to obtain testing.
 
In 2018, the Wayne County Prosecutor’s Office and the WMU-Cooley Innocence Project received a $451,238 Bloodsworth grant from the Department of Justice to screen claims of innocence and conduct DNA testing of material evidence in appropriate cases. Since 2018, the two offices have been partnering on forensic casework.

At the end of the hearing, after learning that 28 cases have resulted in exonerations since Wayne County Conviction Integrity Unit was formed, the Hon. Bruce Morrow asked, “If there were more schools like Cooley that participated in the innocence project, how many more individuals could be exonerated?”

The WMU-Cooley Innocence Project has a similar grant partnership with the Michigan Attorney General Office, Conviction Integrity Unit, assisting its office with the evaluation of innocence claims. Established in 2001, the WMU-Cooley Innocence Project provided legal assistance to persons who are claiming factual innocence. Their work focuses on obtaining post-conviction DNA testing and challenging unreliable forensic practices."

The entire story can be read at:

https://www.forensicmag.com/573475-Even-Without-DNA-Results-Kenneth-Nixon-Released-After-15-Years-in-Prison/

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PUBLISHER'S NOTE:  

An investigation into the Nixon case  was conducted by six undergraduate and graduate students at Northwestern University as part of an investigative journalism course taught by Timothy Franklin, Desiree Hanford and George Papajohn. The Medill Justice Project supported the class work. Allisha Azlan and Rachel Fobar, MJP associates, also contributed to this report. Their remarkable work ended up in a story  in the Detroit Free Press headed, "Internal memos, prosecution cast doubt on Kenneth Nixon's life sentence," by Sydney Boless, Viola Du, Sam Krevlin, Jessie Lio and Dori Sotirovski, published  on  October 27, 2018 at the link below: The article could easily have been entitled 'Anatomy of a wrongful conviction.' Congrats to all who worked on the project - and to the Detroit Free Press for allowing the public to see in such a graphic way  who easily a criminal investigation can get off to a bad start and never find its way back - with terrible consequences to accused people such as Kenneth Nixon.

Harold Levy: Publisher; The Charles Smith Blog.

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PASSAGE OF THE DAY: (Detroit Free Press story): "On May 23, 2005, just days after the fire, the lead homicide investigator wrote to his lieutenant to say that a statement from the 13-year-old star witness, Brandon Vaughn, was “obviously coached.” And on Aug. 3, more than a month before the trial, the prosecutor wrote to the same lieutenant to say the case had “serious problems” and there was a “desperate need” for more evidence.  Shortly thereafter, more evidence emerged in the form of a jailhouse informant. But even that informant, Stanley January Jr., said in a recent interview with MJP that he harbors doubt about Nixon’s guilt, though he stands by his trial testimony. The memos are among several questions raised about Nixon’s prosecution:"

    DETROIT FREE PRESS: October 27, 2018: "Late in the night of May 19, 2005, a glass bottle flew through the second-floor bedroom window of a Detroit home and shattered. The accelerant in the bottle ignited and burst into flames. An infant and a 10-year old who lived in the house died. 

    Investigators identified a suspect almost immediately: Kenneth Nixon. He had a clear motive. Nixon’s girlfriend had an affair with his childhood friend who lived in the house causing the friendship to turn violent. 

    And police had an alleged eyewitness, a 13-year-old survivor of the fire who said Nixon was the culprit. 

    Less than five hours after the arson, police burst into a house nearby where the 19-year-old Nixon and his girlfriend were sleeping and arrested him. Police later found gasoline on his clothes and in his girlfriend’s car. 

    Just four months later, a jury found Nixon guilty on all charges. He was sentenced to life in prison without parole and the case was closed. 

    But previously undisclosed internal memos, obtained by the Medill Justice Project, reveal that the lead investigator and the prosecution had doubts about their own case that Nixon’s lawyers say were never disclosed to the defense, raising questions about Nixon's conviction as he continues to proclaim his innocence from behind bars. 

    On May 23, 2005, just days after the fire, the lead homicide investigator wrote to his lieutenant to say that a statement from the 13-year-old star witness, Brandon Vaughn, was “obviously coached.” And on Aug. 3, more than a month before the trial, the prosecutor wrote to the same lieutenant to say the case had “serious problems” and there was a “desperate need” for more evidence. 

    Shortly thereafter, more evidence emerged in the form of a jailhouse informant. But even that informant, Stanley January Jr., said in a recent interview with MJP that he harbors doubt about Nixon’s guilt, though he stands by his trial testimony.

    The memos are among several questions raised about Nixon’s prosecution:

    • Three witnesses interviewed by MJP said they saw Nixon the night of the fire and he could not have committed the crime.
    • Vaughn gave authorities widely divergent accounts of the events of the night, including where he was in the house and whether he actually saw Nixon throw a Molotov cocktail into the house. 
    • At trial, prosecutors cited the gasoline on Nixon’s clothes as evidence of his guilt. But Nixon, a tow-truck driver, said he often had gasoline on his clothes, and a witness corroborates his account that he fixed a car with a fuel leak either the day of or the day before the fire. 

    Veteran defense attorney Sheldon Halpern, who handled the appeal of the case, said Nixon is “one of the few absolutely innocent people” he’s represented.

    In a series of interviews from the Michigan Reformatory in Ionia, Nixon professed his innocence. He said the combination of multiple alibi witnesses and newly uncovered internal documents that reveal police doubts prove he didn’t commit the firebombing. 

    “As of today, I’m a 32-year-old man that has spent all of my 20s incarcerated for a crime that I didn’t commit,” Nixon said. “I was robbed of my youth at an age where I was really learning to discover what being a man was, being a father was, being an adult was.”

    Maria Miller, spokeswoman for the Wayne County Prosecutor's Office, said in an email that her office’s position on the Nixon case has not changed.

    “This case has been reviewed on appeal and on Motion for Relief of Judgment, as well as the habeas petition heard and denied in the Sixth Circuit (Court of Appeals),” Miller said. “We have placed our position on the record in court and the Attorney General’s Office also did so in handling the habeas petition. We have no comment on this case at the time.” 

    Brandon, investigation, inconsistencies

    Within days of the fire, the lead investigator raised questions about the testimony of their prime witness, Vaughn. 

    In his first interview with arson investigator Frank Maiorana shortly after midnight following the May 19 fire, Vaughn said he was in an upstairs bedroom when he heard a “loud boom,” ran downstairs and saw Nixon fleeing, according to police records.

    In a second interview at 3:30 a.m. May 20, Vaughn said he was on the front porch when he saw Nixon get out of a green Dodge Neon and hurl a glass bottle at the top window of the home at 19428 Charleston St., records show. 

    In a third interview with Sgt. Charles Clark at 6 p.m. the next day, Vaughn said for the first time that he saw Nixon’s girlfriend, LaToya Caulford, driving the Neon and that Nixon was in the passenger seat. Vaughn told Clark the car was parked outside his house for about five minutes, according to the records. 

    Even Vaughn acknowledged he was confused about the sequence of events.  

    “Did you understand all the questions you were asked that morning of May 20th at 3:30 a.m.?” Clark asked.

    Vaughn responded: “No, he asked me some questions and I had just woke up.” 

    Vaughn gave yet another account of the circumstances surrounding the fire at trial. He said for the first time he chased the Neon down the street as Nixon fled. 

    Largely based on Vaughn’s statements, authorities charged Caulford with aiding and abetting Nixon. She was acquitted of those charges in a trial that ran concurrently with Nixon’s but with separate juries. 

    According to Caulford’s attorney, Daniel Blank, the inconsistencies of Vaughn’s statements ultimately became one of the most crucial pieces of evidence in Caulford being found not guilty.

    “I was able to impeach him with his prior testimony,” Blank said in an interview. 

    Nixon’s jury, however, found him guilty of all charges despite hearing Vaughn’s conflicting statements. 

    Vaughn’s mother, Naomi Vaughn, and her boyfriend who had the affair with Nixon’s girlfriend, Ronrico Simmons, testified at trial Vaughn told them that he’d seen Nixon. However, neither mentioned that claim in their first interviews with police right after the fire. 

    Rather, both cited an altercation that happened the day of the fire involving one of Naomi Vaughn’s daughters. According to police statements, her children got into a fight with another child the afternoon of the fire. 

    That child’s father came to Naomi Vaughn’s home following the fight and said, “This is how people’s houses get shot up,” according to her statement to the police.

    The memos

    Four days after the fire, lead police investigator Kurtiss Staples wrote a memo to his commanding officer, Lt. James Tolbert, saying he believed Vaughn’s most recent statement to Sgt. Clark “was obviously coached by family members.”

    Staples had interviewed Vaughn just hours after the fire, when Vaughn told him he hadn’t seen who was driving the car as it left the scene. Speaking to a different officer the next day, Vaughn changed his statement, saying he had seen Caulford in the driver’s seat. 

    “Our star witness is 13 years old,” Staples wrote. “By introducing two different statements [it] will only make his testimony in court difficult at best.

    “ … This new statement will only make the case against Kenneth Nixon come into a question of fact and puts our case in jeopardy.’’

    As the trial approached, prosecutor Patrick Muscat also expressed his concerns about the case’s vulnerabilities. 

    “To be blunt, this case has serious problems,” he wrote to Tolbert a month before the trial. “The cast [sic] rests on Brandon Vaughn and he is, at best, unpredictable.”

    Muscat asked for some follow-up work from the police, including DNA testing and background information about the conflict between Nixon and Simmons. He also asked the police to interview Nixon’s cellmates to see if Nixon had revealed any information. 

    Toward the end of his three-page memo, Muscat wrote: “I know this is a lot of work, but I feel it has to be done to give us a chance.”

    In an interview with MJP, Robert Kinney, Nixon’s trial attorney, said he did not “have any clear memory of the memos” before trial. Two of Nixon’s appellate lawyers, Sheldon Halpern and Daniel Blank, said they had never seen the two memos.

    That possible lack of disclosure raises the possibility that the prosecution violated the Brady rule, a federal standard which requires prosecutors to disclose to defense attorneys any information that could be favorable to the defendant. 

    Legal experts disagree on whether the failure to disclose the two memos would be a Brady violation. Brandon Garrett, a professor at the University of Virginia School of Law, said a police memo raising concerns about the integrity of a star witness is “powerful exculpatory evidence,” but it might not have been enough to change the outcome of the trial and therefore may not have been a Brady violation if it were not disclosed.

    But Eve Brensike Primus, a professor at the University of Michigan Law School, said withholding the memo from lead investigator Staples to Tolbert “strikes me as a blatant Brady violation by the state. I would even say it was sanctionable. … This is not a case where this is inadvertent. This is a case where the prosecutor is saying, this is a high-profile case with problems. If he’s not disclosing that to the defense, it’s intentional, and it’s misconduct by the prosecutor.” 

    The Detroit Police responded to a Medill Justice Project public records request by producing a copy of the Staples memo. But the words “obviously coached by family members” were redacted. 

    Also redacted were the final two sentences of the memo in which Staples concluded that Vaughn’s latest statement “puts our case in jeopardy.”

    “The fact that they’re still trying to hide this exculpatory evidence is problematic because it demonstrates some evidence of a bad-faith attempt to cover up exculpatory evidence that they should have disclosed,” Primus said.

    Muscat declined to be interviewed. 

    The Wayne County Prosecutor’s Office said in an emailed statement: “Prosecutors will often ask the police for additional work, and will continue to evaluate the case during the pre-trial process. This memo is not uncommon.” The prosecutor’s office did not answer a question about whether the memos had been turned over to the defense before the trial.

    Attempts to reach Staples and Tolbert for comment were unsuccessful.

    The witnesses

    Three alibi witnesses interviewed by MJP place Nixon inside Caulford’s home on Havana Street, a few blocks away from the scene, around the time of the fire. But only one of them could account for Nixon’s whereabouts for the entirety of the night – Caulford. She did not testify because she was Nixon’s co-defendant. The other two alibi witnesses testified at trial.

    In her witness statement and in a recent interview, Caulford said she and Nixon went into her bedroom with their son around 10 p.m. to watch television. The pair watched “The King of Queens,” “The Simpsons” and two episodes of “Cheaters.” According to a television guide published in the Free Press for the night in question, the shows aired between 10 p.m. and midnight that night. The fire started shortly before midnight.

    After she was acquitted, Caulford signed an affidavit stating Nixon was with her when the firebombing occurred. Thirteen years after the crime, she staunchly maintains his innocence. 

    “I don’t believe with any inch of my heart that he had the capacity to do it,” she said in an interview.

    Caulford’s cousin and roommate, Mario Mahdi, also was home that night with his girlfriend. Mahdi’s mother, Lisa Medina, was there, too. In a previously unreported diary entry, Medina said that her then-partner Majed Yousif came over around 11:30 p.m. to fix glass in the front door. 

    While Medina watched Yousif work, she said in an interview, she heard a “bunch of fire trucks” and sirens. Yousif could not be reached for comment. 

    Mahdi said in a separate interview that he also heard these sirens while Medina and Yousif were in the home. Medina said she did not see Nixon leave through the front door at any point before this time. Medina, Mahdi and Caulford all said the only other exit, the back door, was boarded shut. 

    Medina said Nixon would have had to pass her and Yousif if he had left the house. She said that didn’t happen. 

    In her journal, Medina wrote that she and Yousif left the house at 12:10 a.m. In an interview, Caulford recounted that Medina came back immediately to get her cigarettes and knocked on the window, waking Nixon and her up. Medina confirmed the sequence of events, saying Caulford brought the cigarettes to the door. 

    Medina said in an interview that police and fire vehicles were already blocking roads around Charleston Street by the time she left, meaning the fire was underway while Nixon was home. 

    “After we were done we left there around 12:10 a.m.,” Medina wrote in her journal. “When we got to Charleston house saw a lot of fire + police cars down the street. I guess there was a house on fire.” 

    Another witness who testified at trial, Basim Alyais, said he was sitting on the porch of his house, next door to Caulford’s. According to his testimony, he sat there from 7 p.m. until midnight or 12:30 a.m. During this time, Alyais said he saw Nixon briefly leave the home in the Neon and return around 10 p.m. He testified that he did not see Nixon leave the house again. The fire began shortly before midnight. 

    Alyais could not be reached for comment. 

    At trial, the prosecution worked to discredit the witnesses by suggesting that Nixon had paid them for their testimony. The prosecution attempted to attack Alyais’s credibility, saying he was drinking that night.

    The informant

    For Muscat, according to his memo, getting a jailhouse informant to testify was a “long shot.” 

    Stanley January Jr., a short time later, became that informant. A couple of weeks before trial, January told police that Nixon confessed he committed the firebombing and he was sorry “about the kids.”

    In August, January told police that on May 23 the man – whose name he had forgotten – confessed that he firebombed a home and killed two children but didn’t know that the children would be there. January said the man was sorry because he had a son. 

    Less than three weeks after January’s interview with police, on the final day of Nixon’s trial, Muscat called him to the stand. 

    January pointed to Nixon as the man who had confessed to him in jail. 

    Asked by Nixon’s attorney whether January had seen coverage of the fire on television before talking to Nixon, he said he had not. He told the court that his testimony was not given in exchange for any kind of leniency, even though he acknowledged that he had done that in the past.

    Thirteen years later, in multiple interviews with MJP, January said he remembers being perplexed by Nixon’s demeanor in jail and said Nixon didn’t seem like the type who would commit such a crime. “I have doubts,” he said.

    But January stood by his testimony, remembering Nixon talking about his case.

    He does now say – contradicting what he said at trial – that before even encountering Nixon, he knew the story of the firebombing on Charleston Street. Not only were inmates talking about the case, but those with access to a TV, including January, viewed the coverage firsthand, he said. 

    “I saw the firebomb story,” he said. “A lot of people saw the firebomb story … We were looking at the news and it popped up.”

    The prosecutor, Muscat, built his case around the violent dispute between Simmons and Nixon over Caulford. “Jealousy can lead to anger and anger can lead to rage, and rage can lead to stupidity and that stupidity can lead to violence,” he told jurors.

    Muscat also told the jurors that Nixon told Simmons: “This ain’t over until one of us is dead.”

    During his opening statement, Muscat implored the jurors to consider Vaughn’s age as they listened to his testimony. “[L]adies and gentlemen, when you listen to his testimony, you will be able to tell that he’s doing his best to try to answer the questions.”

    Muscat acknowledged that January was not without his own faults. “You might not like Mr. January either, but ladies and gentlemen, this case isn’t going to be about how many nuns I can produce to this court,” Muscat said.

    Detroit Police Officer Roger McGee testified that he brought a canine accelerant detector to Naomi Vaughn’s house shortly after the fire was extinguished. The dog indicated that he smelled an accelerant on the second floor in the south bedroom. McGee later went back to headquarters to evaluate some of Nixon’s clothing using the same dog.  

    According to police records, Brandon Vaughn described the perpetrator as wearing a multicolored shirt, and in a warrant to search the Havana Street house where Nixon was sleeping, the suspect was described as wearing a multicolored shirt. But the shirt police collected from the Neon was white. At trial, the prosecutor read a report from Michigan State Police saying that Nixon’s clothes tested positive for gasoline. However, the prosecutor did not explain if the “defendant’s clothes” consisted of the white shirt collected from the Neon. 

    Officer William Niarhos, an evidence tech in the Detroit Police Department, collected evidence from the trunk, rear passenger area and front passenger seat and floor of the green Neon. 

    Nixon co-owned a tow truck company, and he said he remembers working the day of the fire and he usually wore the same clothes two or three days in a row. Nixon said he frequently had gasoline on his clothes. 

    “It wouldn’t be unusual because you have to get on the ground [to work on the car],” Nixon said in an interview. 

    The Medill Justice Project tracked down a friend of Nixon’s, Rico Buyck, who confirms his account and who was never called to testify at trial. Buyck said either the day of or the day before the fire he asked Nixon to work on his cousin’s burgundy Chevy Caprice. Buyck said it took Nixon a day or two to fix a gas leak on the car. Trevor Hill, Nixon’s business partner, said Nixon was working on the car the day of the fire. 

    One of the jurors in Nixon’s case, Lanny Reece, said in an interview the strongest evidence against Nixon was Vaughn’s testimony. But he said he wasn’t fully convinced at first of Nixon’s guilt because he couldn’t imagine someone holding a grudge for as long as the prosecution alleged.

    Reece changed his mind, he said, after a “lady of color” on the jury said it was normal for people from lower-income neighborhoods to get back at each other for petty reasons.

    The aftermath

    Nixon has fought unsuccessfully to overturn the jury’s verdict since his conviction. His attorneys have filed multiple appeals. 

    Caulford signed an affidavit during the direct appeal process saying where Nixon was and what he did on the night of the fire. Nixon’s mother and other alibi witnesses from the trial also signed affidavits. 

    In his latest appeal, Halpern cited the ineffective assistance of counsel, newly discovered evidence, prosecutorial misconduct and ineffective appellate counsel. Halpern argued that the prosecution mischaracterized Nixon’s statement to January in jail. 

    Nixon’s attorneys can continue to file appeals if they have new evidence, such as an additional witness or DNA on the remains of the Molotov cocktail. It would be Nixon’s responsibility to go to court to have the remains of the bottle and wick tested. Sterling Heights Laboratory, the forensic science division of the Michigan State Police, could not immediately confirm whether the bottle still exists. 

    Caulford raises her and Nixon’s son in the Detroit area on her own and rarely interacts with Nixon’s family. She works seven days a week to make ends meet and to pay for their son to play in sports leagues and receive private tutoring. To date, she has visited Nixon only twice in prison and said she feels guilty for him being there. She believes that if she had never had an affair with Simmons, Nixon wouldn’t be incarcerated today.

    Nixon fights from prison to overturn his conviction with help from his family and his girlfriend, Wendy Woods, whom he met while in prison. But his years being incarcerated have already put a strain on his relationships with his children. 

    “It’s torture to wake up in the morning and it’s torture to go to bed at night,” Nixon wrote in an essay for the Michigan Review of Prisoner Creative Writing. “It’s torture to talk to my kids over the phone, and it’s even worse to watch them leave me in the visiting room.”

    Nixon said his biggest goal in life was to be an involved father, and he never imagined that he would be absent from his children’s lives. Now he only sees his children two to three times each year.

    “I was stripped of the opportunity to enjoy those special moments of my kids’ lives,” Nixon said in a phone interview. “I was stripped of the opportunity to actually enjoy life.”

    This investigation was conducted by six undergraduate and graduate students at Northwestern University as part of an investigative journalism course taught by Timothy Franklin, Desiree Hanford and George Papajohn. The Medill Justice Project supported the class work. Allisha Azlan and Rachel Fobar, MJP associates, also contributed to this report."Internal memos, prosecution cast doubt on Kenneth Nixon's life sentence," by Sydney Boless, Viola Du, Sam Krevlin, Jessie Lio and Dori Sotirovski, published by The Detroit Free Press on  October 27, 2018 at the link below:

    https://www.freep.com/story/news/2018/10/27/kenneth-nixon-life-sentence/1739835002/


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