Saturday, April 17, 2021

Iawo Hakamada: Keiko Aoki; Tatsuhiro Boku; Japan: False confessions; In 2018, Keiko Aoki and Tatsuhiro Boku, a Japanese woman and her former partner, were freed on a retrial after 20 years behind bars, because of, "serious questions about their guilt, including the validity of their confessions, in the arson murder for which they had been convicted."...“There is a possibility that the two were forced into making false confessions after (investigators) instilled fear in them and applied excessive psychological pressure,” presiding Judge Goichi Nishino said, according to Kyodo News agency. The court also ruled it was possible the fire was an accident." Publisher's note: Given the real possibility that Iwao Hakamada will be allowed a new trial - almost a half century after the crimes for which he was sentenced to death occured - the couple are back in the news. HL.


PUBLISHER'S NOTE: FALSE CONFESSIONS: 

This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects (especially young suspects)  are to widely used interrogation methods  such as  the notorious ‘Reid Technique.’ As  all too many of this Blog's post have shown, I also recognize that pressure for false confessions can take many forms, up to and including physical violence, even physical and mental torture.

Harold Levy: Publisher; The Charles Smith Blog:

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PUBLISHER'S NOTE:In 2018, 'Arab News' ran an Agence France Presse story on the acquittal of a Japanese woman and her former partner, on a  retrial for the alleged murder of the woman’s 11-year-old daughter after the pair had spent about two decades in jail.  “There is a possibility that the two were forced into making false confessions after (investigators) instilled fear in them and applied excessive psychological pressure,” presiding Judge Goichi Nishino said, according to Kyodo News agency.  I have crafted this post on the acquittal of  the couple because of its parallels with the case of Iwao Hakamada - believed to be the world’s longest-serving death row inmate - who also  also was brought under brutal pressure to confess in circumstances where there was no tangible evidence proving his guilt  - and soon is hoping to have a retrial which will finally clear his name,  while he is still alive. (Which will be wonderful news as well for Hakamada's many supporters around the world.)  The tool of brutal interrogation has been deeply in imbedded in Japan's criminal justice system for many generations, leading invariably to wrongful convictions of innocent people such as  Keiko Aoki, Tatsuhiro Boku and who knows how many others. This is an opportunity for Japan to show the world that it has truly changed by freeing Iwao Hakamada, now 85, while there is still time - and by abolishing its shameful death penalty.

Levy: Publisher: The Charles Smith Blog.

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PASSAGE OF THE DAY:  (From the 'Arab News 'Agence Francde Libre' story below.)..."The acquittal (of Keiko Aoki and Tatsuhiro Boku) comes after Iwao Hakamada, believed to be the world’s longest-serving death row inmate, walked free from jail in 2014 following decades in solitary confinement, in a rare about-face for Japan’s rigid justice system. He had been accused of being responsible for the grisly 1966 murder of his boss and the man’s family, but doubts arose about the reliability of his confession." (Sadly, that didn't last long. A higher court re-instituted the murder charge - and the case is still before the courts. HL)

STORY: "After 20 years in jail, Japan duo found not guilty," published by Arab News (Agence France Presse)  on August 11, 2018. 

GIST: "A Japanese woman and her former partner were acquitted Wednesday in a retrial for the alleged murder of the woman’s 11-year-old daughter after the pair had spent about two decades in jail.
They were released in October last year after a new trial was ordered due to serious questions about their guilt, including the validity of their confessions, in the arson murder for which they had been convicted.
And on Wednesday the Osaka District Court formally found Keiko Aoki and Tatsuhiro Boku not guilty, a member of their support group told AFP.
The couple had been found guilty of setting their house on fire by spraying gasoline in the garage, a blaze that killed Aoki’s daughter Megumi, in an attempt to claim insurance money.
In the ruling, the court said that confessions made by Aoki and Boku when under investigation were invalid, according to the supporter, who asked not to be named.
Details of the acquital were included on the support group’s website and were widely reported by major Japanese media.
“There is a possibility that the two were forced into making false confessions after (investigators) instilled fear in them and applied excessive psychological pressure,” presiding Judge Goichi Nishino said, according to Kyodo News agency.
The court also ruled it was possible the fire was an accident.
The acquittal comes after Iwao Hakamada, believed to be the world’s longest-serving death row inmate, walked free from jail in 2014 following decades in solitary confinement, in a rare about-face for Japan’s rigid justice system.
He had been accused of being responsible for the grisly 1966 murder of his boss and the man’s family, but doubts arose about the reliability of his confession."

The entire story can be read at:

https://www.arabnews.com/node/967811

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ROLE OF BRUTAL  POLICE INTERROGATION IN AOKI and BUKO CASE:  From Japan Times editorial: August 12, 2016, following their acquittal, bearing the lead: "Yet again we have acquittals of people falsely charged and convicted based on wrongful confessions coerced by investigators."

EXCERPT:  The decision Wednesday by the Osaka District Court finding Keiko Aoki and Tatsuhiro Boku innocent must be followed up by a thorough examination by both the investigation authorities and the judiciary to find out why the prosecution’s case against the pair — based almost entirely on confessions made during interrogation that were retracted in court — went unchallenged.

EXCERPT: "The prosecution’s case held that Aoki and Boku, arrested shortly after the July 1995 death of the girl in a fire at their home in Osaka, had conspired to kill her for the benefits from a life insurance scheme taken out on the victim — that Aoki made her daughter take a bath, and then Boku sprayed gasoline in the garage next to the bathroom and set it on fire with a lighter. In the absence of material evidence, the key to the case was a confession that Boku allegedly made to interrogators detailing how he set the garage on fire, along with a statement by Aoki acknowledging her own complicity." 

EXCERPT: "What proved key to reopening the case was a test performed by their lawyers — and later by the prosecution themselves — to re-enact the scene of the alleged arson based on the account that Boku gave to investigators. The result — in both the defense and prosecution tests — clearly contradicted what he said during interrogation, thus putting the credibility of his confession in doubt. The defense test instead pointed to the possibility — also endorsed in the district court decision this week — that the fire was caused accidentally by gasoline leaking from the tank of a vehicle in the garage that was set alight by the pilot light of the bathtub water heater."

EXCERPT: "Furthermore, police investigation reports and notes kept by investigators — disclosed as evidence in the retrial process — showed that the officers who questioned the two used coercive and deceitful tactics to get them to confess, during which they both wavered between confessing to and denying the charges. In its acquittal of Aoki and Boku, the district court rejected the credibility of their confessions as evidence, saying it is suspected that the police investigators put the two in a “situation where they had no choice but to make false confessions” by “instilling fear and adding excessive psychological pressure” from the time they were arrested."

EXCERPT: "Wednesday’s ruling exposed how police investigators led the suspects into confessing to acts they had not committed, but does not reflect on how the judiciary itself failed to challenge the investigators’ version of events."

EXCERPT: "Wrongful convictions have often been reversed on the introduction of new evidence — either that which had been previously withheld by prosecutors or that made available with technological advances, such as more precise DNA tests. But the fact that a test to re-enact the scene of this fire was performed only after the two had been convicted and spent years in prison points to negligence on the part of the investigators, who relied on confessions to build their case and then failed to verify them on scientific grounds.


EXCERPT: "Interrogation by investigators behind closed doors — which makes it difficult to objectively determine whether the suspects made their statements voluntarily — has long been blamed as a source for wrongful confessions, and the false convictions based largely on such confessions. The tendency remains for investigators to rely on confessions to build their cases when they lack material evidence. In the face of public criticism, the police and prosecutors have gradually introduced electronic recording of their interrogations to make the process more transparent. An amendment to the Criminal Investigation Procedure Law enacted in May made video-recording of the entire interrogation process mandatory — but that rule will apply only to criminal cases handled by lay judge trials and those exposed by prosecutors’ independent probes — which together account for about 3 percent of all criminal cases — and investigators will have the discretion to bypass electronic recording if they judge it will make it difficult for them to obtain meaningful confessions.


The entire editorial can be read at : 



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ROLE OF BRUTAL  POLICE INTERROGATION IN IWAO HAKAMADA CASE: 

From anti-death penalty 'Asia Network': "Following his arrest, police subjected Hakamada to 23 days of intensive interrogation from 18 August to 9 September 1966. He was interrogated without a break for an average of 12 hours a day; on three occasions he was interrogated for over 14 hours. He confessed after 20 days, was interrogated for another three days and then charged. During this period he signed a series of documents purportedly confessing to the crime. Hakamada later signed more confessions, this time prepared by the Public Prosecutor. 

Hakamada retracted these statements at his trial, claiming that while he was detained he had been denied food and water, was not allowed to use a toilet, and was kicked and punched. In a letter to his sister he wrote: “…one of the interrogators put my thumb onto an ink-pad, drew it to the written confession record and ordered me, ‘write your name here!’, shouting at me, kicking me and wrenching my arm.” Hakamada had had only three short interviews with different defence lawyers prior to trial. 

During his trial by the Shizuoka District Court in 1968, there were numerous inconsistencies in the evidence. Judges raised concerns that purported confessions presented by the Prosecution with Hakamada’s signature were not signed voluntarily. Of these 45 documents, only one was deemed to have been signed voluntarily and the remainder were declared to be inadmissible as evidence. 

“I could not convince the other two judges that Hakamada was not guilty so I had to convict him as the decision was made by majority. Personally the fact that I had to write his judgement was against my conscience, something I still think about to this day.” Kumamoto Norimichi, Shizuoka District Court judge, 2007."

Iwao Hakamada was convicted and sentenced to death, and the conviction and sentence were upheld by the Supreme Court in 1980.

The entire case study can be read at: 

https://adpan.org/japan-case-study-hakamada-iwao

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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;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project

Friday, April 16, 2021

John Prante: Illinois: Junk bitemark evidence: Major (Welcome) Development...Appeal court allows his challenge to bitemark evidence..."Brown was found dead at her Acton Avenue home on June 21, 1978, when her boyfriend returned from work. Prante was friends with their neighbor and had met her the day before, when the couple moved in, the appeals court said. His past appeals have gone nowhere, including a bid for DNA and fingerprint testing that fell short because DNA evidence was too degraded and a fingerprint search found no match. But a three-judge panel of the Fifth District Appellate Court on Monday said Prante had supported his claim that bite mark evidence “is no longer generally accepted within the scientific community.”

QUOTE  OF THE DAY: "The Exoneration Project has cited dozens of convictions that have been overturned due to faulty bite mark analysis.“Although bite mark evidence has been admitted into evidence in Illinois for more than 50 years, our survey of the law indicates that Illinois courts have never subjected bite mark evidence to the rigors of Frye,” the appeals court said, referring to a 1923 case that set the standard for the admissibility of scientific evidence."

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PASSAGE OF THE DAY: "Prante was convicted in part by testimony from witnesses about his “incriminating statements” to them containing knowledge of the crime, the appeals court said, including claims that he knew Brown had been bitten. That testimony, paired with evidence of a bite mark suffered by Brown, “was likely enough to seal (Prante’s) fate,” the appeals court said. “The testimony of the state’s expert witnesses that (Prante’s) teeth were ‘consistent’ with the mark further supported a finding that (Prante) was, in fact, the ‘biter’ and that (Prante) did not learn about this injury on Brown’s shoulder in some other way,” they said. The panel rejected Prante’s claims of actual innocence, however, citing those witness statements."

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STORY: "Appeal court says man can challenge bite mark evidence in 1978 Wood River murder, the St. Louis Post-Dispatch (Reporter  Robert  Patrick) published bon April 13, 2021. Thanks to Dr. Michaael Bowers (CSIDDS: Forensics and Law in Focus) for bringing this case to our attention. HL.

csidds.com

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GIST: "An Illinois appeals court this week gave a man convicted of a Wood River woman’s murder in 1978 another chance to challenge evidence claiming he bit her during the crime.


John N. Prante, now 71, was released from prison on parole in 2019 after serving more than 36 years of his 75-year sentence.


But a lawyer for Prante, Lindsay Hagy of the Exoneration Project, said Tuesday that his release is not stopping him from continuing with his appeal. “He is innocent and he is willing to keep fighting for that,” she said.


Prante was convicted of the murder of Karla L. Brown, a student at Southern Illinois University Edwardsville, and sentenced in 1983.


Brown was found dead at her Acton Avenue home on June 21, 1978, when her boyfriend returned from work. Prante was friends with their neighbor and had met her the day before, when the couple moved in, the appeals court said.


His past appeals have gone nowhere, including a bid for DNA and fingerprint testing that fell short because DNA evidence was too degraded and a fingerprint search found no match.


But a three-judge panel of the Fifth District Appellate Court on Monday said Prante had supported his claim that bite mark evidence “is no longer generally accepted within the scientific community.”


The Exoneration Project has cited dozens of convictions that have been overturned due to faulty bite mark analysis.


“Although bite mark evidence has been admitted into evidence in Illinois for more than 50 years, our survey of the law indicates that Illinois courts have never subjected bite mark evidence to the rigors of Frye,” the appeals court said, referring to a 1923 case that set the standard for the admissibility of scientific evidence.


Prante was convicted in part by testimony from witnesses about his “incriminating statements” to them containing knowledge of the crime, the appeals court said, including claims that he knew Brown had been bitten.


That testimony, paired with evidence of a bite mark suffered by Brown, “was likely enough to seal (Prante’s) fate,” the appeals court said. “The testimony of the state’s expert witnesses that (Prante’s) teeth were ‘consistent’ with the mark further supported a finding that (Prante) was, in fact, the ‘biter’ and that (Prante) did not learn about this injury on Brown’s shoulder in some other way,” they said.


The panel rejected Prante’s claims of actual innocence, however, citing those witness statements.


A spokesman for the Madison County State’s Attorney’s Office declined comment Tuesday.

Don Weber, a former state’s attorney, told the Post-Dispatch when the bite mark appeal was launched in 2018 that the evidence had been challenged at trial, and that Prante’s statements about the crime to others were what actually convicted him.


Prante was an unemployed barge worker at the time. Hagy said Prante now spends his free time repairing old chairs, making canes and fixing up a car."

The entire story can be read at: 

https://www.stltoday.com/news/local/crime-and-courts/article_134eb7bc-f4a8-5d05-ade8-f14ead38db2b.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: "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;


Bulletin: Ronnie Long; North Carolina: Bulletin: State cap cuts off his compensation at $750,000 for 44 years wrongful imprisonment following conviction based (among other causal factors) on 'false or misleading forensic evidence' and 'mistaken witness identification' by the National Registry of Exonerations..."Long told CNN he is hoping to fight the law and get what he deserves from a state that he believes intentionally put him in prison."


BACKGROUND: "(Ronnie) Long was 20 years old in 1976 when he was arrested in Concord for the rape of Sarah Bost, a 54-year-old widow. "They got the wrong man," said Jamie Lau, a supervising attorney with the Duke Law School Wrongful Convictions Clinic. "Ronnie Long is absolutely innocent of this crime.” Lau said Long, who had been a talented high school athlete, was facing a minor trespassing charge when cops asked the victim to come to court that day. "They dressed her in a disguise, brought her to the courtroom. She sat there for an hour and a half in the presence of Mr. Long without identifying him," Lau said. "When Long's name was called, she identified him as the person who assaulted her ... and she later testified that she selected him because he looked most similar to her attacker of all the people who were present in the courtroom that day.” But the victim had originally described her attacker as a "light-colored" Black man, which Long is not. And while a shoe print found outside the victim's home had a similar tread, it could not be matched to shoes owned by Long. There was also clothing — including a black leather coat — found in Long's car that looked like what the rapist wore. "It was a ubiquitous piece of clothing for Black males at the time, in part because the movie 'Shaft' had come out a few years prior," Lau said. At trial, Long didn't take the stand, but several alibi witnesses testified to seeing him at the time of the rape. "Every moment of his day had been accounted for," Lau said. The all-White jury convicted Long of rape and burglary. He was given two life sentences.   (After maintaining his innocence, and pursuing a lifetime of appeals and denied motions, he was released by a pardon from the governor in December 2020 after the courts found Long had been wrongly convicted. CNN): 

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QUOTE OF THE DAY: ""How can you say my life is only worth $750,000? There should never be a cap on a person's life." "Everything that transpired to put me behind bars was intentional," Long said. "How is my case the same as someone who is exonerated with DNA? How can you say my life is only worth $750,000? There should never be a cap on a person's life."


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STORY: "Man to receive "750,000 compensation for 44 years spent in jail on wrongful conviction," published by CNN  through9news.com (through on April 11, 2021;

PHOTO CAPTION: "Ronnie Long, pictured with his wife Ashleigh, was wrongly accused of rape in 1976 and is now fighting a North Carolina law that caps compensation for exonerated prisoners. "

GIST: "Ronnie Long sat in jail in North Carolina for 44 years for a crime he didn't commit, and now he is planning to fight a law that says he is only owed $750,000.

Long, who is Black, was accused of raping a White woman in 1976. 


An all-White jury found him guilty of rape and burglary and sentenced him to life in prison.

After maintaining his innocence, and pursuing a lifetime of appeals and denied motions, he was released by a pardon from the governor in December 2020 after the courts found Long had been wrongly convicted.


Since his sentencing, "a trickle of post-trial disclosures has unearthed a troubling and striking pattern of deliberate police suppression of material evidence," US Fourth Circuit Court of Appeals Judge Stephanie Thacker wrote.


NC law caps compensation at $750,000


Due to his innocence, state law requires that Long, 65, be paid for the time he was kept in prison - $50,000 a year. However, the sum is capped at $750,000. In Long's case, it means he stopped getting paid after his 15th year in prison.


"While grateful that Mr Long received $750,000 in compensation, the amount is wholly inadequate to compensate him after taking away more than 44 years of his liberty," Jamie Lau, Long's criminal attorney from his prior case told CNN.


"He was in a cage when both his parents died; when his son had birthdays and graduations. He lost everything for those 44 years, and certainly he deserves more than he has received."

Long told CNN he is hoping to fight the law and get what he deserves from a state that he believes intentionally put him in prison.


"How can you say my life is only worth $750,000? There should never be a cap on a person's life."

"Everything that transpired to put me behind bars was intentional," Long said.

"How is my case the same as someone who is exonerated with DNA? How can you say my life is only worth $750,000? There should never be a cap on a person's life."

When asked if anyone is helping him fight the law, Long said he wasn't going to name names, but there are several people who have reached out to him, but so far no lawmakers.

He said it's like baking a cake and currently he's trying to get all of the ingredients together.

"It needs to be addressed because if it happens to me it can happen to you," he said, adding he is going to "shake trees" to get what he deserves.


Lau agrees that the law needs to be looked at and fixed because Long is not the only one that has had this happen.

"At least two men have been exonerated after more than 44 years of incarceration, which highlights the inadequacy of the compensation statute and that cap," he said.

"It's also time to revisit the compensation statute as a whole, as the Governor should not have full authority over who does and does not receive compensation. A review process that is not political should be established so all men and women who have been wrongly convicted has a fair chance at compensation.”


A second chance at life


Long said that since his release life has been a transition, and he is happy to have loving people around helping him get where he wants to go.

He bought one of his dream cars, the first car he has owned in 50 years, a Cadillac, and he and his wife are planning to buy a new home.

"Now I'm living, I'm back amongst the living. I am a living, walking testimony of a second chance," Long said.""


The entire story can be read at:


https://www.9news.com.au/world/ronnie-long-how-much-is-a-life-worth-man-to-receive-750000-dollars-compensation-for-44-years-in-jail-world-news/31ba5f8a-2ea4-40a3-bd96-df89c1d6194a


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Read the National Registry of Exonerations entry by Ken Otterbourg at: 



"It was just after 9:30 p.m. on April 25, 1976, when a man broke into a house on South Union Street in Concord, North Carolina, by climbing up a white banister and then entering through a window off the porch roof.


Sarah Bost, a 54-year-old widow, was home alone. She told police that the perpetrator surprised her in the kitchen, put a knife to her throat, and demanded money. But there was none in her purse, and Bost said the man then dragged her to the stairs, ripped off her clothing and raped her. She would later say that she kept trying to look at the man’s face, but he kept pushing her head to the side and telling her “Don’t look at my face.” She said she fought back. A medical report would note that some of her fingernails were “nearly bent backwards.” 

About 10 minutes into the attack, Bost’s phone rang. The assailant fled. Bost ran to a neighbor’s house, called 911, and was taken to Cabarrus Memorial Hospital. Along with treating Bost for the bruises and cuts she received in the attack, Dr. Lance Monroe combed her pubic area for hair samples and did a vaginal swab, in accordance with the emergency room’s rape protocols. 

At the hospital, two officers with the Concord Police Department showed Bost a photo array of 13 Black men between the ages of 20 and 30 years old. Bost, who was white, did not make an identification. But in the officers’ report, she described her attacker as “a Black male, height, five foot, five to five foot nine, slender build, slim hips. Subject was plain spoken, used correct English and at times spoke very softly. No speech defect, accent or noticeable brogue evident. Subject was wearing a dark waist length leather jacket, blue jeans with a dark toboggan pulled over his head. Could possibly have been wearing gloves.” 

Her initial descriptions included no mention of any facial hair. She would later describe her attacker as being “light-skinned” or “yellow,” or “not your normal black person.” 

The Concord Police Department’s investigation of the crime scene turned up several pieces of evidence. They found burned out matches on the floor of a bedroom near the window ledge off the porch roof. They also found a shoe print on the banister, and investigators were able to lift an impression of it.

A few days after the attack, 20-year-old Ronnie Long became a person of interest in the investigation. At the time, Concord police knew that Long had been a suspect in an investigation of a similar rape and burglary in Washington D.C. in August 1975 after his Social Security card was found at the crime scene. (No charges were ever filed. The victim was unable to make an identification; Long’s attorneys would later say he had lost his wallet while visiting the city.)

Police arrested Long on April 29, 1976 and charged him with trespassing in the public park near his home, which was about a mile or so from Bost’s house. He came to the police station the next day to be fingerprinted and photographed. A report noted he wore a waist-length black leather jacket and black gloves, and that he kept his gloves on for most of his time at the station. The report said “He was able to do things as normal as someone without gloves. He was able to take out of his billfold his drivers [license].” 

At the time, Long worked as a cement mason and lived with his parents. His court date on the misdemeanor trespassing charge was May 10. 

Although Concord police had a photo of Long to show Bost, they decided on another route. They asked her to accompany them to the courthouse on May 10, telling Bost that the man who raped her might or might not be present. Bost sat in the second row, disguised with a red wig and sunglasses. 

When Long’s case came up an hour or so later, he walked around to the defense table, wearing a flowered leisure shirt and a medium-length brown leather jacket. Even before Long spoke, Bost notified the officers that Long was her attacker. Later, at the police station, Bost picked Long’s photo out of an array. He was the only person in the array wearing a leather jacket.

Long’s trespassing charge had been dismissed, but the police showed up at his house a few hours later and told him he needed to return to the station to clear up a few matters. When he arrived, they arrested him and charged him with rape and burglary. For the next 44 years, he would remain behind bars. When police searched Long’s family car in the station’s parking lot, they found a green toboggan and some gloves. Long said he had never seen the hat. They also found several matchbooks. 

Long’s trial in Cabarrus Superior Court began on September 27, 1976, after a summer of demonstrations and protests surrounding his arrest. Prior to the voir dire of potential jurors, the Cabarrus County sheriff and other members of law enforcement reviewed a list of potential jurors and disqualified people from being called for jury duty. The county kept no record of the reasons for disqualification. The 49-person jury pool contained just two Black residents, and an all-white jury was seated for the trial. (At the time, Cabarrus County was approximately 20 percent Black.)

Bost testified that she was sure Long was her attacker, but her testimony differed from her earlier description and with Long’s appearance. Now, she said that her attacker wore a mustache. And she also continued to state that her attacker was light-skinned, although Long was dark-skinned. 

Monroe testified about the severity of Bost’s injuries and his examination of the vaginal fluid. He was not asked and did not testify about any samples he collected. 

During the trial, the state sought to introduce testimony comparing the burnt matches found at the crime scene with the matchbooks found in the Long family car. Long’s attorneys fought to suppress this evidence. With the jury not present, Long’s attorneys sought more information about the testing done on the matches. First, Detective David Taylor said the officers had taken the matches from the car because they were similar to those found at Bost’s house. When asked if they matched, he responded, “I didn’t match them, no sir.” Judge William Z. Wood asked, “Then they were not matched?” Taylor said that was correct. “In other words,” asked Wood, “the matches you got out of the car do not match with those found at the crime scene?” Taylor said, “I can’t testify to that.” Finally, Wood asked Taylor if he had any information about comparing the matches, to which Taylor replied, “No sir, they did not match.”

But with the jury present, Taylor repeated his claim that the matches he found in the Long family car were “of a similar nature” to burned matches found in Bost’s house.

Detective Van Isenhour also testified about the investigation of the crime scene and the processing of evidence. He said that he had processed the shoe print on the banister and then also made a print of Long’s shoes for comparison. He testified that on May 11, 1976, he had brought this evidence to the SBI crime lab. He was asked if that evidence had ever left his possession or control. He replied that it hadn’t. He also said that Taylor had given him other evidence, including a leather jacket, the green hat, and the matches. He testified that the jacket had also never left his control. He made no mention of this evidence being tested.

Dennis Mooney, the SBI’s print expert, testified about the footprints. He told jurors that the print on the banister “could have been made” by Long’s shoe, but he was not sure and it was not a “positive identification.”

Long did not testify, but he presented a strong alibi for the night of April 25, which was a Sunday. Witnesses said he had attended a meeting to plan a class reunion until about 8 p.m. He then went home from around 8:30 to 10 p.m., before leaving for a party in Charlotte, about 25 miles away. Witnesses said that while he was at home, he talked on the phone with his mother, his two-year-old son and the boy’s mother. People who saw him at the party testified that he had no bruises or signs of a struggle on his body. They also agreed that he was wearing khakis, not jeans, at the party and the reunion meeting, because at least one witness said he was at both events and made fun of Long’s attire. In addition, the witnesses said they never saw Long wear a toboggan. He favored leather hats.

In closing arguments, the prosecutor said, “We have shown that Ms. Bost’s testimony is not only accurate, but totally consistent with every piece of physical evidence existent. Everything she says happened that is capable of being corroborated by physical evidence ... is so corroborated.”

When Long’s attorneys argued there was no physical evidence that connected Long to the attack, prosecutors responded by saying that the absence of this evidence showed the honesty of the police, because it would have been easy for officers to rub Long’s clothing against the banister and put paint on the garments.

Rioting broke out in Concord after the jury convicted Long of burglary and rape on October 1, 1976. At the time of Long’s arrest, a rape conviction carried a mandatory death penalty in North Carolina, but the U.S. Supreme Court had struck down the state’s overly broad death penalty on July 2, 1976. He was sentenced to life in prison. 

Long’s first appeal claimed that Bost’s pre-trial identification was “impermissibly suggestive” because of flawed practices by the Concord Police Department. He also said the police searched his car without consent and that the shoe print testimony should have been excluded. The North Carolina Supreme Court rejected his appeal in 1977. 

In 1986, Long filed a Motion for Appropriate Relief, again arguing that the car search was illegal. Long also claimed that the jury selection was improper and racially biased. In addition, he said his attorneys had been ineffective in failing to adequately challenge the jury’s composition. The North Carolina Supreme Court denied his motion in 1988. 

Long then moved his appeals to federal court, raising many of these same issues in his first petition for a writ of habeas corpus. That petition was denied in 1990. 

On April 20, 2005, the North Carolina Center for Actual Innocence filed a motion on Long’s behalf asking a superior court judge to order the SBI, the Cabarrus County District Attorney’s Office, and the Concord Police Department to turn over all records and evidence collected in the case. The court granted the motion on June 7, 2005, and also ordered the hospital to turn over any records.

At a hearing a week later, the SBI said the only evidence it knew about was the shoe print. The police said they had a master case file, but the district attorney said a review of that file found “nothing of evidentiary value.” 

The records released by the hospital included Monroe’s report, which showed a release form signed by Bost allowing the hospital to turn over pubic hair samples and a test tube of vaginal samples to the Concord Police Department. An officer signed the form, stating that he had received the evidence.

Although the district attorney had downplayed the value of the master file, it contained significant information about the investigation and the evidence collected. 

The files showed that Isenhour had created two evidentiary reports, one undated and the other dated May 12, 1976. The undated report said that Isenhour had only taken the shoe prints to the SBI, while the other evidence had been held for further “investigative uses.” The May 12 report told a different story, stating that 14 pieces of evidence – clothes from Bost and Long, hair samples, carpet samples, and paint chips – were taken to the crime lab.

Six months later, the SBI turned over the evidence reports to Long’s attorneys. 

The reports said that the hair found at the crime scene was different from Long’s and more reddish in color. It also said no hair consistent with Long’s was found in Bost’s clothing, and Long’s clothing showed no paint or carpet fibers similar to the samples from Bost’s house. In addition, the report said that four of the five matchbooks found in the car were of a different color than the burnt matches found at the crime scene. The fifth lacked sufficient identifying characteristics, but the analyst said the burnt matches “probably didn’t originate from this matchbook.” 

In addition, the report made clear that Isenhour had not testified truthfully. He said the only evidence he had taken to the SBI was the shoe print, and that it had never left his control. In fact, the SBI had kept all the evidence that Isenhour brought for eight days. 

These SBI reports and related documents became the basis of a second Motion for Appropriate Relief Long filed in 2008, claiming that he was entitled to a new trial because the state had failed to turn over exculpatory evidence to his attorneys. This requirement is based on the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland. To win a new trial based on a Brady violation, a defendant must show that evidence was not disclosed, that it was favorable to the defendant, and that its disclosure had a reasonable probability of changing the verdict. 

During an evidentiary hearing on the motion, the prosecutor at Long’s trial said he had never seen the SBI reports, and that if he had, he would not have allowed Isenhour to testify in the manner that he did. 

But the state pushed back on Long’s Brady claims, arguing that the SBI reports that failed to connect him with the crime were inconclusive, rather than exculpatory, and were therefore immaterial. In addition, prosecutors noted that Long’s attorneys had plenty of opportunity to ask Monroe and the police officers about whether other tests had been performed. But they didn’t, and the state shouldn’t be penalized for a defense attorney’s trial strategy. 

During the hearing, James Fuller, one of Long’s trial attorneys, said that the reports would have played a powerful role in undercutting Bost’s testimony. 

“I got one test here that does not implicate you,” he said. “Okay. I’ve got a second test that does not implicate you. And now the jury is paying attention. And now I’ve got a third test and a fourth test, and pretty soon it creates a snowball effect that you’re not the defendant. And that’s why I believe every one of those tests was critical.”

On February 20, 2009, Judge Donald Bridges of Cabarrus County Superior Court denied Long’s Motion for Appropriate Relief. He said there was no proof that the police or the district attorney’s office had ever received Monroe’s report, and that the defense had failed to ask Monroe any questions about his examination of Bost. Bridges wrote that the SBI lab reports didn’t provide meaningful analysis, which meant the state’s failure to disclose wasn’t a Brady violation. 

Jurors, Bridges said, had a chance to examine the evidence, if not hear about the reports, and that not all of the undisclosed evidence was beneficial to Long. “The cumulative effect of any items with any value is so minimal that it would have had no impact on the outcome of the trial.” 

Long appealed this ruling to the N.C. Supreme Court, which has seven justices. Justice Barbara Jackson was elected in 2010, after oral arguments had been held, and she took no part in the decision released on February 4, 2011. The remaining six justices deadlocked, affirming the lower court’s decision by default. 

Long then began a second series of appeals through the federal courts. He filed a petition for a writ of habeas corpus in U.S. District Court for the Middle District of North Carolina in 2012 that was dismissed because he had not obtained pre-filing authorization. 

After that dismissal, Long’s attorneys contacted the North Carolina Innocence Inquiry Commission, a state agency that investigates and makes recommendations on claims of innocence. As part of the commission’s initial review, it obtained 43 fingerprints – previously undisclosed, even after the 2005 order – that had been lifted from the crime scene by investigators with the Concord Police Department. Long’s fingerprints were excluded as contributors. Four of the prints were of sufficient quality to run through state and national databases. The Concord police said its comparison returned “no possible contributors,” but declined to state which databases they had queried. While Bost, who died in 2015, had testified that her attacker wore gloves, the burned matches suggested the attacker had taken them off at some point during the crime because it would be difficult to strike a match while wearing gloves. 

The vaginal samples collected by Monroe were never located. Because of a lack of DNA evidence in Long’s case, the Innocence Commission decided not to pursue further investigation.

Now represented by attorneys with Duke University’s Wrongful Convictions Clinic, Long filed a third petition for a writ of habeas corpus in 2016. This petition said that the fingerprints were new evidence of innocence, part of a legal strategy to allow Long to get around the limitations on successive appeals, although later federal court rulings said that Long needed first to litigate the fingerprint claim in state court. 

The petition argued that Bridges had erred in weighing the materiality of the state’s Brady violations and that Bost’s initial identification of Long was inherently flawed. His attorneys said there had been no need to bring her to the courthouse, where Bost waited nervously in disguise while a stream of Black men charged with crimes paraded past.

“Holding the procedure in a courtroom further enhanced the likelihood that the victim would select someone despite his possible innocence, because the courtroom itself conveys a message that the persons present were criminals,” the petition said. While Bost later selected Long from a photo array 20 minutes after the courtroom identification, Long’s attorneys said that selection was contaminated because Bost was “primed” to pick Long. 

Long’s petition was independently supported by dozens of attorneys, legal scholars and criminologists, whose brief provided context about the challenges of eyewitness identifications and the forensic evidence at the heart of the appeal.

The petition argued that Bridges’s ruling ran counter to federal law by trivializing the importance of the undisclosed evidence. Although this evidence didn’t directly exonerate Long, the petition said that it was exculpatory, and that it discredited the police investigation and impeached the state’s witnesses. Equally important, the petition said, it was the obligation of prosecutors to turn over this sort of evidence. The burden does not rest on defense attorneys to ask whether it existed. 

U.S. Magistrate Judge L. Patrick Auld recommended denying Long’s petition on May 22, 2018. While his findings acknowledged significant legal errors by Bridges in his interpretation of what constitutes exculpatory evidence, Auld agreed that the evidence wasn’t sufficiently material to have made a difference at trial. He said Bost’s identification was strong and decisive, and while her initial identification was “unorthodox,” Long’s attorneys couldn’t point to how it violated Long’s rights as a defendant. The district court adopted Auld’s recommendations. Long appealed to the U.S. Court of Appeals for the Fourth Circuit, where a three-judge panel heard arguments in March 2019.

By a 2-1 vote, the appellate court rejected Long’s appeal on January 8, 2020. In the majority opinion, written by Judge Julius Richardson and joined by Judge Paul Niemeyer, the court said that Bridges had not been unreasonable in how he viewed the materiality of the undisclosed evidence. The opinion said that most “jurors would consider the impeachment evidence peripheral.” The opinion also said that Congress had created a necessary high bar for defendants seeking relief in federal court, placing “great weight on the values of federalism and finality.”

Judge Stephanie Thacker wrote the dissent. She noted that Bost’s identification was neither as strong nor as consistent as previous courts or her colleagues had ruled. While the majority opinion said that Isenhour had offered an “incomplete picture of the testing he requested,” Thacker was more pointed. She wrote: “In short, he lied. Repeatedly.” (Isenhour pled guilty to possession of a stolen U.S. Treasury check in 1987 and was sentenced to four years in prison.)

Thacker criticized prosecutors for arguing during the years of appeals that Long’s attorneys should have tested the material themselves or asked the state’s witnesses whether items had been tested. 

“This argument is nonsensical and offensive. Such an argument completely turns the burden of proof in criminal cases on its head. Again, I am shocked as to the apparent need to educate the state that the burden of proof in criminal cases rests with the state, and remains with the state throughout the course of the trial.”

She closed by writing, “In this circumstance, Appellant must prevail. To hold otherwise would provide incentive for the state to lie, obfuscate, and withhold evidence for a long enough period of time that it can then simply rely on the need for finality. That, I cannot abide.”

Because of the split decision, Long petitioned the Fourth Circuit court for what is known as an en banc review of his case. (Less than 1 percent of these requests are granted.) On August 24, 2020, the judges, by a 9-6 vote, reversed the dismissal of Long’s petition. 

Now in the majority, Thacker wrote: “A man has been incarcerated for 44 years because, quite simply, the judicial system has failed him. Rather than overstepping our judicial role, as the dissent contends, today we remain faithful to our oath by “administer[ing] justice.” 

Judge Catherine Eagles of U.S. District Court granted Long’s petition for a writ of habeas corpus on August 27, 2020, and he was released from prison that day. The Cabarrus County District Attorney’s Office dismissed the charges on August 28. 

Long married in 2014, and he told CBS News that he wanted to spend time with his family and his son. He said he wanted to visit the graves of his parents, long dead. “I know my mother and father died with a broken heart. I’m gonna tell them now, when I visit the gravesite, ‘Your son is clear.’”

After the dismissal, Long sought a pardon of innocence from Gov. Roy Cooper, which would allow him to receive compensation for his wrongful conviction. Cooper served as attorney general from 2001-2017, and his office played a key role in representing the state during Long’s unsuccessful appeal of the order denying his 2008 Motion for Appropriate Relief. On December 17, 2020, Cooper issued the pardon of innocence. In March 2021, Long received a check for $750,000."


https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5801


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

Thursday, April 15, 2021

Tilon Lashon Carter; Texas: (Part Two): Granted new trial after being sentenced to death in 2004 because Tarrant County Medical Examiner Dr. Nizam Peerwani gave false and misleading testimony...Scott Henson, the brains behind 'Grits for Breakfast' (one of my favourite sites because of its lucid, informed, relevant, interesting commentaries) analyzes Peerwani's 'fall from grace', in the context of Texas's "long, misbegotten history with corrupt medical examiners giving false testimony" - and concludes that, Perhaps Peerwani's fall from grace is a good opportunity to begin appointing forensic scientists to lead the FSC instead of politically connected medical examiners? It was always an odd fit."


PASSAGE OF THE DAY: "In the the complex and multi-faceted world of criminal-justice reform, forensics and medical examiners are roughly a fourth-tier concern: Police brutality, mass incarceration, an impoverished indigent defense culture, pretrial detention, overcriminalization of juveniles, and myriad other topics grab a greater share of the public's and advocates' attention." But forensic science is a mess and as the Forensic Science Commission has been larded with new responsibilities including professional licensing, it has become less aggressive over time in using its platform to confront bad science."

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


PASSAGE TWO OF THE DAY: "Between the Forensic Science Commission and its first-in-the-nation junk-science writ, Texas has created the infrastructure needed to root out flawed forensics. But its political will to do so seems to have dissipated since the heady days when DNA exonerations seemed to be happening every other month. That's too bad because the slowing of DNA exonerations isn't because innocent people aren't being convicted anymore. Only 10 percent or so of violent crimes involve DNA evidence, so finding those few doesn't help the other 90 percent convicted on the same bad evidence. DNA exonerations exposed flawed policing methods - including less-than-reliable forensics - but for the most part, the system kept using them. To the extent that's been because the Forensic Science Commission has been led by medical examiners who're too embedded in the system to critique it, it's probably time for that to change."


COMMENTARY: "Tarrant medical examiner who led Forensic Science Commission  (FSC) found to have mislead jury in murder case," by 'Grits for Breakfast', published on April 11, 2021. (Grits for Breakfast: Former professional opposition researcher and political consultant Scott Henson leads a team of writers who discuss law enforcement and criminal justice issues in Texas.)


GIST: "A man who was sentenced to death in a 2004 Fort Worth murder case should get a new trial because of false and misleading testimony by Tarrant County Medical Examiner Dr. Nizam Peerwani, a judge has ruled.


In a 51-page finding, Tarrant County District Court Judge Mollee Westfall said Peerwani made “false, inaccurate or misleading” statements in at least 10 crucial elements of the prosecution case.


The timing of the judge's ruling is remarkable because Peerwani recently placed his longtime former top deputy, Dr. Marc Krouse, on administrative leave after an audit of 40 death investigations last year found he made 59 mistakes. Krouse was barred from conducting autopsies in homicide cases in November.


In the the complex and multi-faceted world of criminal-justice reform, forensics and medical examiners are roughly a fourth-tier concern: Police brutality, mass incarceration, an impoverished indigent defense culture, pretrial detention, overcriminalization of juveniles, and myriad other topics grab a greater share of the public's and advocates' attention.

But forensic science is a mess and as the Forensic Science Commission has been larded with new responsibilities including professional licensing, it has become less aggressive over time in using its platform to confront bad science.


Texas has a long, misbegotten history with corrupt medical examiners giving false testimony. Perhaps Peerwani's fall from grace is a good opportunity to begin appointing forensic scientists to lead the FSC instead of politically connected medical examiners? It was always an odd fit.


Now the question is raised: If Peerwani was willing to give "false, inaccurate, or misleading" statements to a jury in a death penalty case, should we accept pronouncements from the FSC during his tenure that exonerated allegedly flawed practices? 


Your correspondent stopped tracking the FSC closely after I left my gig at the Innocence Project of Texas: Forensics reform is an issue that requires professional-level engagement; it's hard to do as a sideline. But my impression is that progress has stalled. They've addressed much of the low hanging fruit but elided calling more commonly used forensic methods into question. And even where they've rebuffed old, flawed, forensic methods, the Government Always Wins faction on the Texas Court of Criminal Appeals has frequently refused to then excise them from the courts.


Between the Forensic Science Commission and its first-in-the-nation junk-science writ, Texas has created the infrastructure needed to root out flawed forensics. But its political will to do so seems to have dissipated since the heady days when DNA exonerations seemed to be happening every other month.


That's too bad because the slowing of DNA exonerations isn't because innocent people aren't being convicted anymore. Only 10 percent or so of violent crimes involve DNA evidence, so finding those few doesn't help the other 90 percent convicted on the same bad evidence. DNA exonerations exposed flawed policing methods - including less-than-reliable forensics - but for the most part, the system kept using them.


To the extent that's been because the Forensic Science Commission has been led by medical examiners who're too embedded in the system to critique it, it's probably time for that to change."

https://gritsforbreakfast.blogspot.com/2021/04/tarrant-medical-examiner-who-led.html?utm_source=dlvr.it&utm_medium=twitter&m=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;
-----------------------------------------------------------------
FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;