Friday, May 14, 2021

Dylan O'Meara: Perth: West Australia: Psychologically vulnerable young man's on-going battle for clearance for a job looking after insects and reptiles is putting renewed focus on the manner in which police conduct their 'interviews', as evidenced by a recent story (Reporter John Flint) published by The West Australian, under the heading, “Mentally impaired father Dylan O’Meara battling with authorities after being cleared of son’s death."


BACKGROUND: (The 'interview)...On January 30, 2019, prosecutors dropped a manslaughter charge against Dylan O'Meara after a judge rejected a statement police had obtained from him, leaving the state without evidence on which a jury could reasonably convict. In her story on the dropping of the charge Reporter Joanne Menaugh  zeroed in on the controversial interrogation, noting:  Justice Jenkins ruled that Mr O'Meara was "psychologically vulnerable" at the time of the police interview April 2016 — the second time officers had officially spoken to him. While she ruled the interview was voluntary, she said at one point, the police "had effectively invited" him to have a conversation with 'Alex', an imaginary person, about what happened on the day of his son's death two weeks earlier."It would be particularly unfair to admit [the interview] into evidence when it was the police who effectively planted the seed in the accused's mind that Alex may have had something to do with causing the deceased's death," she said. "I acknowledge that it is difficult for police officers to interview a person who may have a dissociative personality disorder, however I am satisfied that the manner in which [the interview] was conducted was not the the fair or proper way to conduct the interview of the accused.” Justice Jenkins also said it would be "unfair" to admit the evidence because, in the 24 hours leading up to the interview, the accused had had two seizures, had not received a proper meal and had not slept the previous evening while he was in police custody. At an earlier hearing, Mr O'Meara's lawyer Nick Scerri said his client was "suggestable" and "vulnerable" and had told a relative that he had told police "whatever needed to be said, to stop them shouting at him".

https://www.abc.net.au/news/2019-01-31/baby-death-charges-against-perth-father-dropped/10766806


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PUBLISHER'S NOTE: The police charge a mentally troubled young father with taking the life of his young son after a botched investigation marred by tunnel vision. It had to be him.  So  they don't check out the possibility of other suspects (If indeed there actually was a crime); So they don't waste their time checking out  natural causes of death such as 'sudden infant death syndrome.' (It  hadn't been ruled out). So they don't worry about the fact that the autopsy does not give a cause of death. An incriminating statement will take care of that. Just put him in touch with his imaginary friend 'Alex' and the rest should be easy. One would expect that after such shameful investigation - and such an over-the-line 'interview' of a psychologically vulnerable young father who is grieving the death  of his son - the authorities would want to make it up to him somehow. (For ruining his life even  more). Not to happen. They are blocking his way to a job which he would love to have: caring for insects and reptiles. Kudos to Barrister Judith Fordham, who is representing Mr O'Meara in court,  who is reported to be so incensed  that she has  offered her services for free to fight the matter, which is currently in the State Administrative Tribunal. This is truly in the highest spirit of the 'Bar.' I will be following developments closely.


Harold Levy: Publisher: The Charles Smith Blog.


PASSAGE OF THE DAY: "The case collapsed in the wake of a police interview being ruled nadmissible leaving “no reasonable prospect of conviction.” It made headlines because detectives had encouraged Dylan to talk to his imaginary friend to find out what had happened to seven-month-old Shisui, who was found lifeless in his cot in 2016. Among other scathing comments, Justice Lindy Jenkins described the interview as an unfair and misguided attempt by police to “elicit a confession from an imaginary person”. “Not only were the police speculating (about the cause of Shisui’s death) but they were inviting the accused, a psychologically vulnerable young man who was more prone to suggestion and acquiescence than the average person, to speculate,” Justice Jenkins said. She added scenarios were put to Mr O’Meara “which police had no factual basis for believing”. “The police did not know what had caused the deceased’s death or even that it had been caused by a deliberate act of any person. Despite this, the interviewing police officers repeatedly put numerous assertions to the accused ... which alleged the accused by his acts caused or contributed to the deceased’s death. These assertions were little more than speculation but they were put to the accused forcefully as being realistic, if not probable, causes of the deceased’s death.” Ms Fordham likened the police conduct to the infamous Andrew Mallard miscarriage of justice, when detectives used underhand interview techniques to get a confession from a vulnerable person."


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PASSAGE TWO OF THE DAY: During the hearing, she also accused police of tunnel vision in their pursuit of Mr O’Meara, claiming they’d failed to explore other potential suspects and lines of inquiry. Nine people were resident in the shared Rockingham house that Mr O’Meara, Shisui’s mother and the baby lived. Neighbours said the house also attracted frequent visitors. Sudden infant death syndrome had not been ruled out, with an autopsy unable to identify a cause of death. The post-mortem revealed Shisui had been a well fed, healthy baby up to his death, bar a couple of serious findings — his left arm was fractured and he had a healed rib fracture. There was evidence in the police brief to suggest that the infant had fallen in his walker from the bed in the presence of his mother. The only evidence against Mr O’Meara was from the now-discredited interviews. Mr O’Meara has autism spectrum disorder, schizotypal personality disorder, anxiety and depression. He’s always doted on animals."


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PASSAGE THREE OF THE DAY: "His grandparents believe his voluntary work at the environment centre is vital to his own mental health. They said it provided him with a sense of purpose and achievement, and had assisted him with building confidence, reducing his anxiety, and improving his social skills. A supervisor there provided a statement of support. “He is totally trustworthy in any job we set him to do, including cleaning and caring for the animals he is dealing with. He has an empathy with thecreatures and they respond to him in a trusting way,” he said. Another statement was provided by his disability support worker. “I have worked closely with Dylan for an extended period and he has shown himself to be honest and conscientious young man who exhibits absolutely no traits of violent or inappropriate behaviour. Dylan would not hurt a fly.” Peggy O’Meara said her grandson was as gentle with Shisui, as he was with animals. They described him as an attentive, adoring father. It partly explains their unshakeable faith in his innocence. “This has really upset Dylan. It’s something that he's really passionate about and wants to do. And they're blocking that,” she said."


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STORY: “Mentally impaired father Dylan O’Meara battling with authorities after being cleared of son’s death,” by Reporter John Flint, published by The West Australian on  May 8, 2021.


PHOTO CAPTION: “Dylan Meara was charged with killing his baby son but the State dropped the manslaughter charge after a Supreme Court judge ruled one of Dylan’s interviews with police could not be admitted as evidence at his trial. 


GIST: A mentally impaired man who defeated charges of killing his infant son is now fighting another battle with authorities.


Dylan O’Meara needs Working With Children clearance to continue looking after insects and reptiles at Rockingham Environment Centre, which hosts school groups. The 25-year-old has childlike mannerisms and a boyish enthusiasm for stick insects and other critters.


Mr O’Meara’s grandparents, who look after him, claim a failed and deeply flawed prosecution — which saw a judge slam detectives over their interview tactics — is continuing to rebound on his life.


 Despite a manslaughter charge being dropped in 2019 — with the judge’s stinging criticism prompting senior WA police to overhaul the way “psychologically vulnerable” suspects are interviewed — WA authorities are continuing to treat him as guilty.


In a letter rejecting Mr O’Meara’s bid for a Working With Children clearance, the Department of Communities claimed there was “sufficient information” to determine he was the person most likely to be responsible for injuries to his son Shisui.


This has outraged Mr O’Meara’s family. Barrister Judith Fordham, who represented Mr O’Meara in court, is so incensed she’s offered her services for free to fight the matter. It is currently being contested in the State Administrative Tribunal.


The grandparents feel the department is acting as judge and jury on a matter that has already been tested in court and was so flawed prosecutors gave up on it. It was also relying on police statements that weren’t supported by evidence, they said.


The case collapsed in the wake of a police interview being ruled nadmissible leaving “no reasonable prospect of conviction.”


It made headlines because detectives had encouraged Dylan to talk to his imaginary friend to find out what had happened to seven-month-old Shisui, who was found lifeless in his cot in 2016.


Among other scathing comments, Justice Lindy Jenkins described the interview as an unfair and misguided attempt by police to “elicit a confession from an imaginary person”.


“Not only were the police speculating (about the cause of Shisui’s death) but they were inviting the accused, a psychologically vulnerable young man who was more prone to suggestion and acquiescence than the average person, to speculate,” Justice Jenkins said.


She added scenarios were put to Mr O’Meara “which police had no factual basis for believing”. “The police did not know what had caused the deceased’s death or even that it had been caused by a deliberate act of any person. Despite this, the interviewing police officers repeatedly put numerous assertions to the accused ... which alleged the accused by his acts caused or contributed to the deceased’s death. These assertions were little more than speculation but they were put to the accused forcefully as being realistic, if not probable, causes of the deceased’s death.”


Ms Fordham likened the police conduct to the infamous Andrew Mallard miscarriage of justice, when detectives used underhand interview techniques to get a confession from a vulnerable person.


During the hearing, she also accused police of tunnel vision in their pursuit of Mr O’Meara, claiming they’d failed to explore other potential suspects and lines of inquiry. Nine people were resident in the shared Rockingham house that Mr O’Meara, Shisui’s mother and the baby lived. Neighbours

said the house also attracted frequent visitors.


Sudden infant death syndrome had not been ruled out, with an autopsy unable to identify a cause of death. The post-mortem revealed Shisui had been a well fed, healthy baby up to his death, bar a couple of serious findings — his left arm was fractured and he had a healed rib fracture.


There was evidence in the police brief to suggest that the infant had fallen in his walker from the bed in the presence of his mother. The only evidence against Mr O’Meara was from the now-discredited interviews. Mr O’Meara has autism spectrum disorder, schizotypal personality disorder,

anxiety and depression. He’s always doted on animals.


His grandparents believe his voluntary work at the environment centre is vital to his own mental health. They said it provided him with a sense of purpose and achievement, and had assisted him with building confidence, reducing his anxiety, and improving his social skills.


A supervisor there provided a statement of support. “He is totally trustworthy in any job we set him to do, including cleaning and caring for the animals he is dealing with. He has an empathy with the

creatures and they respond to him in a trusting way,” he said.


Another statement was provided by his disability support worker. “I have worked closely with Dylan for an extended period and he has shown himself to be honest and conscientious young man who exhibits

absolutely no traits of violent or inappropriate behaviour. Dylan would not hurt a fly.”


Peggy O’Meara said her grandson was as gentle with Shisui, as he was with animals. They described him as an attentive, adoring father. It partly explains their unshakeable faith in his innocence. “This has really upset Dylan. It’s something that he's really passionate about and wants to do. And they're blocking that,” she said.


She fears the case will throw up more hurdles in the future. “This all goes back to him being charged. It should never have happened,” she said.


Adding to the family dismay is that the Department of Communities has relied on police information that was speculation rejected in court.


A psychologist’s risk assessment of Mr O’Meara concluded he does not present a risk of harm towards children.


But it failed to sway the department, which said it could not comment on details relating to Mr O’Meara’s case “for confidentiality and privacy reasons”.



“This matter is also currently before the State Administrative Tribunal, so it would be prejudicial for any comment about the case to be made,” said Phil Payne, the department’s acting assistant director for general integrity, intelligence and professional standards.


“In general, when undertaking a Working with Children Check, the person’s criminal record and a wide range of other relevant information is considered in the assessment process. The information can include, but is not limited to, court transcripts and prosecution briefs, medical and

psychological assessments, outcomes of any counselling or treatment undertaken, child protection records and any information the person wishes to provide that is relevant to their case. “The outcome of the risk assessment undertaken is determined after thorough consideration of the information gathered and must consider whether the applicant poses an unacceptable risk of potential harm to children should they engage in child-related work.”


Mr Payne said laws did not allow conditional clearances, for example, for work performed under supervision.""


The entire story can be read at:


https://thewest.com.au/news/court-justice/mentally-impaired-father-dylan-omeara-battling-with-authorities-after-being-cleared-of-sons-death-ng-b881863322z

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;

Thursday, May 13, 2021

George Floyd. RIP: Former Minneapolis police officer Tou Thao: The defence argues that a medical examiner was 'coerced' to alter autopsy finding, Fox News, Reporter Danielle Wallace, reports. "Lawyers representing former Minneapolis police officer Tou Thao argued in a new court filing late Wednesday that the medical examiner who performed the autopsy on George Floyd was "coerced" by a prominent doctor in Washington, D.C., into altering its findings – and that prosecutors were aware. The filing accuses that same doctor, who threatened to write a damaging op-ed in the Washington Post against the medical examiner, of later targeting the key medical witness called by the defense in the trial for Derek Chauvin, resulting in an investigation by the state of Maryland following his testimony. That has caused a "chilling effect," Thao's defense attorneys argue, making it difficult for the defense to find other medical experts to testify for fear of losing their licenses or damaging their reputation."


PASSAGE OF THE DAY: "The filing notes two subsequent phone conversations between Baker and Dr. Roger Mitchell, the former medical examiner of Washington, D.C. Before Baker finalized his findings on June 1, Mitchell read the preliminary report and called Baker to tell him he should "first of all fire his public information officer" and ask what happened because "Mitchell didn't think it sounded like Baker's words." During the call, "Baker said that he didn't think the neck compression played a part," the filing said. Mitchell called Baker back a second time to tell him he planned to submit a piece to the Washington Post criticizing his finding. During the conversation, "Mitchell said neck compression has to be in the diagnosis," according to Thao's defense attorneys. Mitchell, now chairman of the Department of Pathology at the Howard University College of Medicine, also allegedly told Baker, "You don't want to be the medical examiner who tells everyone they didn't see what they saw. You don't want to be the smartest person in the room and be wrong."

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STORY: "George Floyd death: Ex-Minneapolis cop Thao defense argues medical examiner 'coerced' to alter autopsy finding, by  Reporter Danielle Wallace, published by Fox News on May 13, 2021.

SUB-HEADING: "Chauvin defence witness also targeted - creating 'chilling effect' before Thao's trial, filing argues."

GIST: "Lawyers representing former Minneapolis police officer Tou Thao argued in a new court filing late Wednesday that the medical examiner who performed the autopsy on George Floyd was "coerced" by a prominent doctor in Washington, D.C., into altering its findings – and that prosecutors were aware.


The filing accuses that same doctor, who threatened to write a damaging op-ed in the Washington Post against the medical examiner, of later targeting the key medical witness called by the defense in the trial for Derek Chauvin, resulting in an investigation by the state of Maryland following his testimony.


 That has caused a "chilling effect," Thao's defense attorneys argue, making it difficult for the defense to find other medical experts to testify for fear of losing their licenses or damaging their reputation.


The lawyers for Thao, Thomas Lane, J. Kueng – the three officers at the scene when Chauvin pressed his knee into the neck and upper back of Floyd for more than nine minutes – appeared in court Thursday to argue pre-trial motions. 


Judge Peter Cahill pushed the trial for the three officers back to March 2022 and also weighed a request that prosecutors be sanctioned or submit written affidavits stating that they were not responsible for leaking to the media that Chauvin had agreed to plead guilty to a third-degree murder charge last year before then-Attorney General William Barr refused.


In the filing on behalf of Thao, his attorneys, Robert and Natalie Paule, argued that Dr. Andrew Baker, the Hennepin County Medical Examiner, was "directly and indirectly coerced by the State and its agents."


 Baker performed an autopsy on Floyd on May 25, 2020, and told prosecutors the next day that he found "no physical evidence suggesting that Mr. Floyd died of asphyxiation," the attorneys wrote.


The filing notes two subsequent phone conversations between Baker and Dr. Roger Mitchell, the former medical examiner of Washington, D.C. Before Baker finalized his findings on June 1, Mitchell read the preliminary report and called Baker to tell him he should "first of all fire his public information officer" and ask what happened because "Mitchell didn't think it sounded like Baker's words."

During the call, "Baker said that he didn't think the neck compression played a part," the filing said.

Mitchell called Baker back a second time to tell him he planned to submit a piece to the Washington Post criticizing his finding. During the conversation, "Mitchell said neck compression has to be in the diagnosis," according to Thao's defense attorneys.


Mitchell, now chairman of the Department of Pathology at the Howard University College of Medicine, also allegedly told Baker, "You don't want to be the medical examiner who tells everyone they didn't see what they saw. You don't want to be the smartest person in the room and be wrong."


The final autopsy findings included neck compression – contrary to Baker's conclusion before speaking with Mitchell twice, according to the filing.



"Dr. Mitchell orally made the threat to unlawfully injure Dr. Baker's trade unless Dr. Baker changed his autopsy findings," the filing alleges. "Dr. Mitchell told Dr. Baker to include neck compression in the final findings and warned Dr. Baker he was going to publish a damaging op-ed in the Washington Post. After Dr. Baker changed his findings, Dr. Mitchell did not publish the op-ed."


Thao’s defense team also cited a letter penned by Mitchell after Dr. David Fowler, who was Maryland's chief medical examiner from 2002 to 2019 and is now a member of a consulting firm, testified during the trial for Chauvin that his medical opinion was that the cause of Floyd's death was "undetermined."


Fowler testified that the primary cause of Floyd's death was a sudden heart rhythm disturbance during police restraint due to underlying heart disease. Just eight days later, Mitchell penned a letter to Maryland Attorney General Brian Frosh, director of the Department of Health for the State of Maryland Allison W. Taylor, U.S. Attorney General Merrick Garland, and CDC director Rochelle Walensky.


The letter, signed by 431 doctors from around the country, called for immediate investigations at the state and federal level into Fowler's medical license as well as a review into the Maryland Office of the Chief Medical Examiner during Fowler's 17-year tenure.


A week after Chauvin was convicted of second-degree unintentional murder, third-degree murder and manslaughter in Floyd’s death, Maryland officials announced a review of all in-custody death reports produced by the Office of the Chief Medical Examiner while under Fowler’s leadership.


"Dr. Mitchell unlawfully injured Dr. Fowler’s trade by penning an open letter, which resulted in an investigation into every death report in Maryland during Dr. Fowler’s tenure," the filing by Thao’s defense attorneys reads. "Dr. Mitchell has set the stage that he will threaten the trade and professional reputation of any physician who suggests that Mr. Floyd’s death could be labeled as ‘undetermined’." 


Mitchell "has essentially stated that any medical expert who wants to testify that Mr. Floyd’s death could be undetermined should, and will, face penalties by him," it continues. "Dr. Mitchell's accusations and spurring of legal fallacies creates a chilling effect for Mr. Thao and violates his due process rights in that it has become extraordinarily difficult to find medical experts who are willing to state that Mr. Floyd's death was undetermined in fear of their professional reputation and licensure."


Lane, Kueng and Thao are charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter. All three waived their right to appear at Thursday's hearing.


Chauvin and the other three former officers also face federal civil rights charges in Floyd's death.

In their filing Wednesday, Thao's defense teamed asked the judge to dismiss the case against their client. They also asked that Minnesota Attorney General Keith Ellison, as well as prosecutors Neal Katyal, Lola Velazquez-Aguilu, Joshua Larson, Matthew Frank, Erin Eldridge and Corey Gorden be barred from participating in any trial for Thao and that potential jurors be dismissed by the court if they acknowledge that they saw, read or have knowledge of the open letter or op-ed written by Dr. Mitchell.


Thao’s attorney, Robert Paule, previously said in a court filing in February that he wants an order sanctioning the state for "its role – directly or indirectly – in the leaking of highly prejudicial information related to potential plea agreements of co-defendants.”


The New York Times reported Feb. 10 that Chauvin was ready to plead guilty to a third-degree murder charge last year but Attorney General Barr rejected the agreement. The Associated Press published a similar report the next day, citing two law enforcement officials with direct knowledge of the talks. 


Paule alleged that the leaks came from the state, and asked that anyone who did so be barred from participating in the trial. Tom Plunkett, Kueng's attorney, echoed his statements.


Ellison earlier dismissed Paule's motion as "completely false and an outlandish attempt to disparage the prosecution."


The entire story can be read at:

https://www.foxnews.com/us/george-floyd-death-minneapolis-cop-thao-defense-medical-examiner-coerced-altering-autopsy
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;

Kevin Strickland: Jackson County Missouri: Extraordinary Development: (It's not every day that a prosecutor pleads for release of a prisoner who has been behind bars for 43 years - acknowledging that a woman, now deceased, who witnessed the murders (her testimony was at the heart of the prosecution's case), "sincerely wished (and attempted) to recant her identification of Strickland at trial)."..."At a press conference today (May 10) in the Downtown Kansas City Courthouse, Baker will join Strickland’s attorneys in detailing how Strickland’s wrongful conviction has come to light and why they are advocating for Strickland’s release. Earlier today, Tricia Rojo Bushnell of the Midwest Innocence Project and Robert J. Hoffman of Bryan Cave Leighton Paisner filed a petition asking the Missouri Supreme Court to order his immediate release. On behalf of the prosecutor’s office, the prosecutor announced that an Amicus Brief is being filed with the Missouri Supreme Court today in support of Hoffman’s petition, as well as a letter to Hoffman detailing the results of a review by the Conviction Integrity Unit (CIU) of the Jackson County Prosecutor’s Office.


PUBLISHER'S NOTE: This Blog is interested in  false eye-witness identification issues because  wrongful identifications are at the heart of so many DNA-related exonerations in the USA and elsewhere - and because so much scientific research is being conducted with a goal to making the identification process more   transparent and reliable- and less subject to deliberate manipulation.  I have also reported far too many cases over the years - mainly cases lacking DNA evidence (or other forensic evidence pointing to the suspect - where the police have somehow  rigged the identification process in order to make an identification inevitable. 
Harold Levy: Publisher: The Charles Smith Blog.
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PUBLISHER'S NOTE: 43 years. Enough to make one weep. All eyes are on the Missouri Supreme Court. Every second this man is denied freedom in the circumstance compounds the injustice. Get him out - and then, perhaps we will learn why it took almost half a century for this eyewitness identification 'error' to be rectified.

Harold Levy: Publisher: The Charles Smith Blog.

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PASSAGE OF THE DAY: "The witness, Cynthia Douglas, was a young woman in 1978 who was traumatized herself in the triple murder, the letter explained. She witnessed the murders of her three friends and was shot herself on that fateful day. Douglas immediately identified two of the suspects, Vincent Bell and Kilm Adkins. She didn’t name Strickland until the following day and only after her sister’s boyfriend suggested Strickland might be involved. Cynthia made it known she knew she was wrong in naming Strickland as a suspect after Strickland’s trial. That was a mistake she maintained for years until her death.

Strickland has maintained his innocence since 1978. His co-defendants admitted their guilt and they also maintained Strickland did not take part. They even named an alternative suspect."

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PASSAGE TWO OF THE DAY: "For a variety of reasons, including Strickland representing himself on appeal, the full picture of this error of justice was not made clear until recent months. Douglas sent an email to Midwest Innocence Project in February 2009, saying she was seeking to help someone wrongfully accused in 1978. “I was the only witness and things were not clear back then, but now I know more and would like to help this person if I can,” she wrote. The prosecutor’s review – initiated after Hoffman contacted the office in late-November 2020 and a Kansas City Star article on Sept. 27, 2020 -- concluded that Ms. Douglas’ email was a true recantation. Three other persons close to her, including her mother and ex-husband, submitted affidavits supporting Douglas’ desire to recant and right the record."

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RELEASE: "Jackson County Prosecutor calls for freeing of inmate after 43 years in prison," released on May 10, 2021.

GIST: "The Jackson County Prosecutor’s Office, along with the Midwest Innocence Project and international law firm Bryan Cave Leighton Paisner, called today for the release of Missouri prison inmate Kevin Strickland, saying he was wrongly convicted 43 years ago in a triple murder in Kansas City.

 “All those who have reviewed the evidence in recent months agree -- Kevin Strickland deserves to be exonerated,” said Jackson County Prosecutor Jean Peters Baker. “This is a profound error we must correct now.”

At a press conference today in the Downtown Kansas City Courthouse, Baker will join Strickland’s attorneys in detailing how Strickland’s wrongful conviction has come to light and why they are advocating for Strickland’s release. Earlier today, Tricia Rojo Bushnell of the Midwest Innocence Project and Robert J. Hoffman of Bryan Cave Leighton Paisner filed a petition asking the Missouri Supreme Court to order his immediate release.

On behalf of the prosecutor’s office, the prosecutor announced that an Amicus Brief is being filed with the Missouri Supreme Court today in support of Hoffman’s petition, as well as a letter to Hoffman detailing the results of a review by the Conviction Integrity Unit (CIU) of the Jackson County Prosecutor’s Office. The case against Strickland, the review found, relied greatly on the testimony of a woman who witnessed the murders. The Prosecutor’s Office concluded that the witness, now deceased, sincerely wished (and attempted) to recant her identification of Strickland at trial.

“Keeping him incarcerated now on a jury verdict, where the jury heard none of this convincing exculpatory evidence, serves no conceivably just purpose,” Baker and Chief Deputy Daniel M. Nelson stated in their letter to Strickland’s attorneys.

The witness, Cynthia Douglas, was a young woman in 1978 who was traumatized herself in the triple murder, the letter explained. She witnessed the murders of her three friends and was shot herself on that fateful day. Douglas immediately identified two of the suspects, Vincent Bell and Kilm Adkins. She didn’t name Strickland until the following day and only after her sister’s boyfriend suggested Strickland might be involved. Cynthia made it known she knew she was wrong in naming Strickland as a suspect after Strickland’s trial. That was a mistake she maintained for years until her death.

Strickland has maintained his innocence since 1978. His co-defendants admitted their guilt and they also maintained Strickland did not take part. They even named an alternative suspect.

In April, Prosecutor Baker and her staff met with the primary family members of victims Larry Ingram, Sherrie Black and John Walker. All expressed that they still, decades later, suffered from the trauma related to losing their loved ones. They were surprised by the news that Strickland was not guilty, yet they believed the justice system has an obligation to release anyone wrongly accused. They asked the media be directed to the prosecutor’s office. Baker also met with a member of victim Cynthia Douglas’ family.

For a variety of reasons, including Strickland representing himself on appeal, the full picture of this error of justice was not made clear until recent months. Douglas sent an email to Midwest Innocence Project in February 2009, saying she was seeking to help someone wrongfully accused in 1978. “I was the only witness and things were not clear back then, but now I know more and would like to help this person if I can,” she wrote.

The prosecutor’s review – initiated after Hoffman contacted the office in late-November 2020 and a Kansas City Star article on Sept. 27, 2020 -- concluded that Ms. Douglas’ email was a true recantation. Three other persons close to her, including her mother and ex-husband, submitted affidavits supporting Douglas’ desire to recant and right the record.

The judge who presided over the trial, as well as the lead prosecutor on the case, Jim Humphrey, are both deceased. Another member of the trial team -- James Bell, now an attorney in private practice --reviewed the new evidence and stated that it indicates that Strickland should be set free. Bell added: “If Jim Humphrey were alive, and was made aware of Cynthia’s efforts to recant, he would be leading the effort to get Kevin Strickland free.”

The presiding judge of the 16th Circuit, J. Dale Youngs, stated that on behalf of the Court he concurred that the conviction should be set aside and he agreed that the evidence shows Strickland’s actual innocence."

The entire release can be read at:

https://www.jacksoncountyprosecutor.com/CivicAlerts.aspx?AID=1087

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;

Shaken Baby Syndrome (Part Three): Dr. Norman Guthkelch plays a central role in a commentary by Atlanta Journal-Constitution Senior Legal Affairs Reporter Bill Rankin headed, "Shift in shaken baby diagnoses began more than a decade ago."..."Society should be rightly shocked by any assault on its weakest members, wrote (Dr. Norman) Guthkelch, who died in 2016. But there have been “instances in which both medical science and the law have gone too far in hypothesizing and criminalizing alleged acts of violence in which the only evidence has been the presence of the classic triad or even just one or two of its elements.” Often, he added, “there seems to have been inadequate inquiry into the possibility that the picture resulted from natural causes.”


QUOTE OF THE DAY: "Society should be rightly shocked by any assault on its weakest members, wrote Guthkelch, who died in 2016. But there have been “instances in which both medical science and the law have gone too far in hypothesizing and criminalizing alleged acts of violence in which the only evidence has been the presence of the classic triad or even just one or two of its elements.” Often, he added, “there seems to have been inadequate inquiry into the possibility that the picture resulted from natural causes."


COMMENTARY: "Shift in shaken baby diagnoses began more than a decade ago," by Senior legal affairs reporter Bill Rankin, published by The Atlanta Journal-Constitution on April 23, 2021.


GIST: "The term ‘shaken baby syndrome’ originated in the early 1970s after a British pediatric neurosurgeon determined that a baby’s brain injuries could have been caused by violent shaking.


After publishing his findings in 1971, Dr. Norman Guthkelch began cautioning parents about the dangers of shaking their children.


By 1993, the American Academy of Pediatrics had formally endorsed the hypothesis. In 2000, the National Center on Shaken Baby Syndrome was founded and began offering training to parents, childcare workers and social workers.


By then, many doctors and pathologists had begun looking for what was known as “the triad” in dead or injured babies to determine if they had been violently shaken.


The three primary symptoms were retinal hemorrhaging, brain swelling and bleeding on the brain. There also had to be an absence of another explanation for the trauma, such as a car accident or a fall.


In 2006, however, the National Association of Medical Examiners withdrew its position paper endorsing the triad. It later acknowledged that some diseases can produce symptoms that mimic those used to determine shaken baby syndrome.


The shift sparked enormous controversy across a number of medical fields. Many doctors and prosecutors held on to the shaken baby diagnosis, having seen so many legitimate cases.


Then, in 2012, Guthkelch published another paper raising concerns about it.


Society should be rightly shocked by any assault on its weakest members, wrote Guthkelch, who died in 2016.


But there have been “instances in which both medical science and the law have gone too far in hypothesizing and criminalizing alleged acts of violence in which the only evidence has been the presence of the classic triad or even just one or two of its elements.”


Often, he added, “there seems to have been inadequate inquiry into the possibility that the picture resulted from natural causes.”


The entire commentary can be read at: 

https://www.ajc.com/neighborhoods/gwinnett/shift-in-shaken-baby-diagnoses-began-more-than-a-decade-ago/PT55UHZHXFGENLBLSV3SIAMTMY/

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;

Wednesday, May 12, 2021

Pervis Payne: Death Row Tennessee: Major Development: Bulletin: His lawyers have filed a petition to present his intellectual disability claim in court - and that's apart from the fact that he has "a strong innocence claim...In short, the State of Texas wants to kill a man who may well be innocent - a man with an intellectual disability..."Following Governor Lee's signing (on May 12, 2021) of overwhelmingly bipartisan legislation to patch a hole in Tennessee law that prevented people with intellectual disability from presenting the claim that their execution was barred by the Tennessee and U.S. Constitutions, attorneys for Pervis Payne today (May 12, 2021) filed a petition under the new procedure in Shelby County Criminal Court...The petition states that Mr. Payne, as a person with an undisputed diagnosis of intellectual disability, is categorically barred from execution. The State has never denied or challenged that Mr. Payne is a person with intellectual disability and neurocognitive impairment. As the petition states: "Pervis Payne is indisputably intellectually disabled. Mr. Payne meets all three Atkins requirements, as well as those of the Tennessee statute. He has significantly subaverage intellectual functioning, significant adaptive deficits in each domain, and his disability manifested prior to age 18..Mr. Payne's case has all the ingredients of a wrongful conviction and death sentence: he is a Black man with an uncontested intellectual disability who was accused of murdering a white woman in a county with a long history of biased criminal justice, and the State is unable to account for key missing evidence that could help prove his innocence."


Read Pervis Payne's Petition to Determine Ineligibility to be Executed here: 

 https://tinyurl.com/5be22naa

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RELEASE:  "Following Governor's signing of new law, Pervis Payne, a death row prisoner with compelling evidence of innocence, files petition to present his intellectual disability claim in court,"
published on May 12, 2021.

GUTS: "More than 740,000 individuals have signed a petition in support of Mr. Payne. That number is climbing toward one million. His case has garnered national and international attention with diverse and broad support from civil rights leaders in Atlanta, Chicago, Martha's Vineyard, and beyond. A powerful coalition of 150 faith, legal, legislative, and community groups in Memphis and across the state of Tennessee have urged Governor Lee to grant clemency for Mr. Payne. Highly respected individuals and organizations across the political spectrum, including former U.S. Circuit Judge and Solicitor General Kenneth W. Starr, Martin Luther King III, and bestselling "Just Mercy" author Bryan Stevenson, have also urged the Governor to grant clemency."

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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: "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;

Roman Zadorov: Israel: (False confession - and much more - case: Major (Welcome) Development: In prison for more than a decade for murdering a 13-year-old girl despite his repeated assertions that he had been wrongly convicted, Israel's Supreme Court has ruled that based on new evidence presented by his attorneys, that "there was sufficient reasonable doubt to exonerate Zadarov," the 'Times of Israel' reports..."His lawyers, along with thousands of vocal members of the public, insist that Zadorov was framed for an act he didn’t commit and that the real murderer was a woman whose name is gagged by a court order and who suffers from mental illness. Attorney Yoram Halevi filed a request for a trial with the Supreme Court in October, claiming the existence of “a lot of new evidence that proves unequivocally that Roman did not murder the deceased and could not have murdered the deceased.”


PUBLISHER'S NOTE: 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 inducement. deception (read ‘outright lies’) physical violence,  and even physical and mental torture.

Harold Levy: Publisher; The Charles Smith Blog:

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PASSAGE OF THE DAY:  "Rada was found dead in a bathroom stall in her Katzrin school in the Golan Heights, with slashes to her neck, stab wounds across her body and severe blows to her head. Shortly after the murder, Zadorov, who was employed at the school at the time as a maintenance worker, was arrested and charged with the killing. Two weeks after his arrest, police announced Zadorov had confessed to Rada’s murder and reenacted the attack for investigators. But a day later, Zadorov’s defense attorney announced that his client had recanted, claiming his confession and reenactment were coerced and included incorrect information. In 2010, nearly four years after he was arrested, the Nazareth District Court sentenced him to life in prison.

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

PASSAGE TWO OF THE DAY:  "Following a DNA analysis by investigators, the Abu Kabir Forensic Institute announced last year that the hair matched that of the former boyfriend of the woman, reigniting speculation on who committed the killing and whether Zadorov could be given a retrial. The ex-boyfriend, whose name is also under gag order, has been referred to in Hebrew media reports by the initials A.H., while the woman has been identified as O.K. “There are 50 bits of evidence supporting and strengthening A.H.’s version that incriminates O.K. in the murder,” Halevi said, referring to testimony given by A.H. to police six years after the murder that O.K. committed the crime. O.K. is now claimed to have told three people she committed the murder.

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

STORY: "Supreme Court orders retrial of convicted killer of 13-year-old Tair Rada," The Times of Israel reports, on May 11, 2021.

SUB-HEADING: "Justice says there is reasonable doubt to exonerate Roman Zadorov who has spent more than a decade in prison for brutal 2006 killing of schoolgirl."

GIST: "The Supreme Court on Tuesday ordered a retrial for Roman Zadorov, sentenced to life in prison for murdering a 13-year-old girl despite his repeated assertions he had been wrongly convicted.


Zadorov, a Ukrainian-Israeli handyman, has spent more than a decade in prison for the brutal 2006 murder of Tair Rada


His lawyers, along with thousands of vocal members of the public, insist that Zadorov was framed for an act he didn’t commit and that the real murderer was a woman whose name is gagged by a court order and who suffers from mental illness.


Attorney Yoram Halevi filed a request for a trial with the Supreme Court in October, claiming the existence of “a lot of new evidence that proves unequivocally that Roman did not murder the deceased and could not have murdered the deceased.”


In his final ruling as a Supreme Court justice, Hanan Melcer said Tuesday that based on the evidence presented by his attorneys, there was sufficient reasonable doubt to exonerate Zadorov.


Rada was found dead in a bathroom stall in her Katzrin school in the Golan Heights, with slashes to her neck, stab wounds across her body and severe blows to her head.


Shortly after the murder, Zadorov, who was employed at the school at the time as a maintenance worker, was arrested and charged with the killing.


Two weeks after his arrest, police announced Zadorov had confessed to Rada’s murder and reenacted the attack for investigators. But a day later, Zadorov’s defense attorney announced that his client had recanted, claiming his confession and reenactment were coerced and included incorrect information.


In 2010, nearly four years after he was arrested, the Nazareth District Court sentenced him to life in prison.


Rada’s murder case has long gripped the Israeli public, due both to the brutal way in which she was killed and continuing accusations that it was not Zadorov who committed the murder.


Following a DNA analysis by investigators, the Abu Kabir Forensic Institute announced last year that the hair matched that of the former boyfriend of the woman, reigniting speculation on who committed the killing and whether Zadorov could be given a retrial.


The ex-boyfriend, whose name is also under gag order, has been referred to in Hebrew media reports by the initials A.H., while the woman has been identified as O.K.

“There are 50 bits of evidence supporting and strengthening A.H.’s version that incriminates O.K. in the murder,” Halevi said, referring to testimony given by A.H. to police six years after the murder that O.K. committed the crime.


O.K. is now claimed to have told three people she committed the murder.


The state attorney’s office and the Justice Ministry have previously said that all the evidence against O.K. had been thoroughly checked and found to be unreliable.


The Supreme Court previously rejected A.H.’s testimony about the woman while police concluded his version was unreliable and an attempt to frame his former lover, the Ynet news site reported in 2018."


The entire story can be read at:


https://www.timesofisrael.com/supreme-court-orders-retrial-of-convicted-killer-of-13-year-old-tair-rada/

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;

Shaken baby syndrome: Part Two: Shawn Brown: Michigan: (Botched defence): The good news: Charges (manslaughter and child abuse) have been dropped in the death of his five-month-old son; The bad news: He has already served the sentence. Nine years. "The Michigan Innocence Clinic at the University of Michigan appealed the conviction and argued that Brown did not receive a fair trial because his defense attorney did not present a medical expert to refute prosecution testimony that the child died from being shaken or struck in the head. Prosecutors alleged that Brown shook the child, Shawn Brown, Jr. on Jan. 22, 2010 and the infant died two days later from injuries to the brain. Brown said he was feeding the baby when the child choked on formula and stopped breathing. The attorneys for the Innocence Clinic argued that the trial attorney did not present evidence refuting the conclusion that the child died from shaking. Brown's trial attorney testified in 2018 that Brown was indigent and the county declined to provide money for an expert to testify for Brown. The Innocence Clinic presented evidence at the appeals hearing that there could be more explanations for the child's death than shaking. The Appeals Court ruled that with a defense expert called to testify the jury could have reached a different conclusion."


PASSAGE OF THE DAY: "The Innocence Clinic presented evidence at the appeals hearing that there could be more explanations for the child's death than shaking. The Appeals Court ruled that with a defense expert called to testify the jury could have reached a different conclusion."

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STORY: "Charges dropped in baby death after father completed his prison sentence," by reporter Trace Christenson, published by The Battle Creek Enquirer on April 12, 2021.


GIST: "Charges in the 2010 death of a five-month boy were dropped this week against a Battle Creek father after the appeals courts ordered a new trial.


The decision comes after Shawn Delano Brown, 36, was sentenced in 2010 following a conviction of manslaughter and child abuse in the death of his son. He was paroled in May 2019.


The Michigan Innocence Clinic at the University of Michigan appealed the conviction and argued that Brown did not receive a fair trial because his defense attorney did not present a medical expert to refute prosecution testimony that the child died from being shaken or struck in the head.


Prosecutors alleged that Brown shook the child, Shawn Brown, Jr. on Jan. 22, 2010 and the infant died two days later from injuries to the brain.


Brown said he was feeding the baby when the child choked on formula and stopped breathing.


The attorneys for the Innocence Clinic argued that the trial attorney did not present evidence refuting the conclusion that the child died from shaking.


Brown's trial attorney testified in 2018 that Brown was indigent and the county declined to provide money for an expert to testify for Brown.


The Innocence Clinic presented evidence at the appeals hearing that there could be more explanations for the child's death than shaking. The Appeals Court ruled that with a defense expert called to testify the jury could have reached a different conclusion.


Prosecutors appealed the decision to the Michigan Supreme Court but were rejected and on Tuesday Chief Assistant Prosecutor Daniel Buscher signed an order dismissing the case.


Prosecutor David Gilbert said Thursday that the office decided not to hold a trial because Brown had served his sentence and the family of the child didn't want to pursue the case farther."

https://www.battlecreekenquirer.com/story/news/2021/04/12/charges-dropped-baby-death-after-father-completed-his-prison-sentence/7143432002/


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Read National Registry of Exonerations entry by Maurice Possley at the link below. 

PASSAGE OF THE DAY: " In August 2017, Brown filed a motion with the Court of Appeals asking it to remand the case to the trial court for a hearing on whether Goulooze had provided an adequate legal defense.  In September 2017, the appeals court granted the motion. In January 2018, Calhoun County Circuit Court Judge Sarah Lincoln convened a hearing. Innocence Clinic students as well as David Moran and Imran Syed, the director and assistant director the clinic, presented testimony from Dr. Joseph Scheller, a pediatric neurologist. Dr. Scheller testified that after reviewing the medical records and particularly the CT scan, he saw evidence of an older subdural hematoma.  "It's at least two weeks old, but you really can’t tell if it's two weeks or two months old," Scheller testified. He said that it was possible that when the baby began choking, the older hematoma began to rebleed and that was the cause of the cascade of events that led to baby's death. He particularly noted that the rebleed could be caused by something "very minor." Scheller said the older “subdural hematoma caused a membrane, a membrane caused bleeding, the bleeding caused disruption of circulation, disruption of circulation caused bleeding on the surface of the brain on the subarachnoid small blood vessel. And that's what caused Shawn's seizures, collapse, and ultimately his death." Scheller said he had no idea what caused the older hematoma--it could have been abuse; it could have been that Shawn Jr. was dropped while being bathed or changed. "So it is possible that there was an abusive incident or an accident that happened weeks or months before,” he testified. “It's even in the realm of possibility that this was a complication of birth because we know that subdural hemorrhages happen to normal babies who are born. They are very small and they usually go away,” Scheller testified. “Maybe this one lingered. So I just don't know. Shawn, at the time, was five months old. So five months prior perhaps Shawn suffered a small subdural hematoma."  Scheller also said retinal hemorrhaging was not specific to child abuse; even if it was severe. He said there was no pattern of retinal hemorrhaging that would prove that the hemorrhages were caused by abuse. He also said, "It has never been proven scientifically, but that's the concept or the thought used by a lot of child abuse experts to say ‘Well, I could tell from the retinal hemorrhage that this child was a victim of a terrible shaking.’"  "There is no evidence that (the retinal hemorrhages) were related to trauma,” he said, adding that “it’s just as likely that the whole brain compromise, seizure, subdural and subarachnoid hemorrhage were related to a previous condition. I believe that the retinal hemorrhages could be part of that same process.”

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GIT: "Shortly after noon on January 22, 2010 in Battle Creek, Michigan, 25-year-old Shawn Brown was giving a bottle to his five-month-old son, Shawn Jr. when the baby began choking. Brown later said he patted the baby on his back gently, then harder and the baby stopped breathing.

At about that same time, Jessica Richardson, the baby’s godmother, arrived to pay a visit. She said Brown came outside and said, “We got to take Junior to the hospital, he’s not breathing.” Richardson said she went inside and found the baby lying on a couch. Richardson, who was a nurse’s assistant trained in cardio-pulmonary resuscitation, picked him up and noticed blood coming from his nose. The baby’s eyes, she later said, were “rolled in the back of his head.”

Richardson told Brown to call 911. He ran next door to attempt to rouse the baby’s maternal grandparents. When he returned, he was on his cell phone and reported that the ambulance was “taking too long. We got to go.” He also called the baby’s mother, Lenora Horton, who was at work.

With Brown behind the wheel of his car, running red lights and stop signs, they arrived minutes later at the Battle Creek hospital. Not long after, the baby’s mother, grandparents and other family members arrived.

Emergency room personnel managed to get the baby breathing again and restored his pulse, but within the hour, the decision was made to transfer the baby to Bronson Methodist Hospital in Kalamazoo, about 30 miles away.

Not long after, a physician at Battle Creek hospital conferred with a physician at Bronson. The medical tests suggested that the baby had suffered a brain injury. The Michigan Department of Human Services Children’s Protective Services (CPS) was notified, as was the Battle Creek police department. Based on the conclusions of medical personnel, police arrested Brown that day. Two days later, on January 24, 2010, Shawn Jr. died after being removed from life support because he had no brain function.

Brown was charged with first-degree murder and first-degree child abuse. Shortly before the trial began in August 2010, Brown’s defense attorney, James Goulooze, asked Calhoun County Circuit Court Judge Allen Garbrecht to authorize funds to retain a medical expert. The judge denied the request, noting that the request was untimely and that Goulooze had failed to show that the expert that he wanted to retain, Dr. Lawrence Simson, would be helpful to the defense. The judge also noted that Goulooze had been retained as defense counsel, which suggested that the judge believed Brown had resources available to hire an expert. Simson was ultimately never called as a witness. He told Goulooze that he did not want to testify against the medical examiner who conducted the autopsy, Dr. Joyce DeJong, because he had previously worked with her and was inclined to agree with her conclusion that the baby’s death was a homicide.

The trial opened with testimony from several family members and friends, including Jessica Richardson, Lenora Horton, the baby’s grandparents, and the baby’s uncle. During questioning by Calhoun County assistant district attorney Daniel Buscher, they were unanimous that Brown had been a devoted father, though he did not live in the home with the baby. Lenora Horton said that she went to work at 6 a.m. daily and Brown came to care for the baby while she was at work. However, Buscher elicited testimony that when the family members gathered to pray for the baby, Brown was seen looking at the television in the room and seemed detached.

Richardson testified that Brown said he patted the baby on the back when he began choking—gently at first and harder. She told the jury that he told her he might have patted the baby “a little too hard.”

Dr. Michelle Halley, a pediatric critical physician at the Battle Creek hospital, said the baby was placed on a respirator. A CT scan of the baby’s head showed a subdural hematoma—bleeding under the skull. “We knew there was intracranial injury…to the brain. And he was not awake or alert at all,” she testified. “These injuries, as well as the retinal hemorrhages that he had when we had the ophthalmologist see him are consistent with shaking injury.”

Asked if Brown’s descriptions of patting the baby on the back were consistent with the type and extent of injuries she saw, Halley said, “No…It’s a very severe injury…There’s no history consistent with that injury other than he could have been shaken.”

Although Halley did not specifically use the words Shaken Baby Syndrome (SBS), she was clear that she believed the injuries were caused by Brown shaking the baby. SBS was a term coined to describe a condition first articulated in 1971. SBS is said to arise when an infant is shaken so hard that the brain rotates inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS is said to involve a tell-tale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant who has no outward signs of abuse, this triad of symptoms is interpreted by many physicians, child abuse investigators and police to indicate that the child has been violently shaken. The prosecution presented testimony from Halley and other caregivers to support the theory that the baby’s injuries were the result of non-accidental trauma that occurred at the time the baby became unresponsive. Therefore, the last person to have physical care of the child—Brown—must have caused the injuries.

Dr. Christina Jacobs, a diagnostic radiologist, said that there were no fractures or signs of skeletal trauma. "The main finding was there was trauma to the lungs." 

Dr. Philip Ptacin, the child's pediatrician, said he had seen the child for wellness visits regularly and the boy was fine. On December 15, five weeks prior to death, the boy’s mother said Shawn Jr. was fussy and was spitting up a lot. Ptacin said he diagnosed constipation and changed the baby’s formula.

Dr. Mark Dzwik, an emergency room physician, testified that one of the baby’s pupils was larger than the other, raising a “suspicion for some kind of brain injury." Dzwik said frothy blood was coming from the lungs. He said that after the baby was transferred to Bronson, he received a call from Dr. Robert Beck, a pediatric intensive care physician at Bronson. Dr. Beck said the baby had subdural and retinal hemorrhaging. 

As a result, Dr. Dzwik said that he reported the child’s medical condition to child protective services because the medical findings were evidence of child abuse.

Dr. Joyce DeJong, a pathologist who performed the autopsy on the boy, said she concluded the death was a homicide. She said she found several small abrasions on the baby’s head. The brain was swollen, she said, and there was subdural bleeding caused by trauma. 

She said the swollen brain was a "very ominous thing” and that there was bleeding around the optic nerve. All of these things, she said, "are most likely the result of a single traumatic event." 

The prosecutor asked, "Are all of these injuries that you have seen consistent with a shaking-type mechanism?" 

Dr. DeJong said, "I believe that there’s an impact involved here that…and I guess I would like to expand that definition, if you’re--if—shaking is certainly a potential mechanism, but it’s—in my opinion, it’s shaken impact syndrome—if we’re going to attach a syndrome to this—that there’s an impact involved." 

Given hypotheticals that paralleled what Brown had said he did, such as patting the baby on the back, Dr. DeJong said those actions would not have been sufficient to cause the injuries present.

Dr. Charles Bibart, an ophthalmologist, testified that he found "extensive retinal hemorrhages." He said, "It's the worst amount of retinal hemorrhaging I've ever seen." 

Dr. Alan Fabi, a neurosurgeon, reviewed CT scans of the child’s head. He said the child had "extreme neurological issues" and essentially was non-responsive. He performed a procedure to try to relieve pressure and to drain some fluid. He said blood, some old and some new, was coming out. There was so much pressure, the procedure provided no relief and the pressure was not compatible long-term with life. During cross-examination, Dr. Fabi said he saw some older blood, which he said had been present "longer than a day." 

Dr. Fabi also testified that he had included in his report his perception of Lenora and Brown. “There is no emotional response from either mother or father. And in fact…they appeared to be apathetic,” his report said. Asked about his description, Dr. Fabi said, “I’m just looking at a five-month-old child that’s essentially dead. And they looking at me…with no response. I found that to be disturbing, to be honest with you.”

Dr. Beck, the pediatric intensive care physician at Bronson, testified that the baby was removed from life support on May 24. He said Shawn Jr. died of "abusive head trauma or non-accidental trauma." Dr. Beck testified, "I have no consistent information that would describe the injuries this child had that could have come from choking on formula. I don't have an explanation that would explain this child's severity of injury.”

Prosecutor Buscher asked, "Would it be fair to say it takes a violent shaking of at least once, if not more, to result in these type of injuries, correct, sir?" 

“That’s the expectation,” Beck said. 

Beck said the term SBS was no longer used and the term in use was Abusive Head Trauma (AHT). Beck then gave a lengthy description of what happens to the brain when a child is shaken and compared the brain to layers in a Jell-O salad. He said, "Each of those layers has a different density and because of that as the head moves back and forth those layers move at different speeds so that means they start sliding on each other. The difficulty is that there's connections between those layers and as those layers slide on each other, those connections snap and that will cause bleeding…and that will typically cause the subarachnoid component of the bleeding.”

Asked if the retinal and brain hemorrhaging were “a cascading effect of the original trauma,” Dr. Beck replied, “That’s a good term for it.”

During cross-examination by defense attorney Goulooze, Beck said, "I have no story offered to me that would explain this child's injury and his injuries are most consistent with what used to be called shaken infant now considered...abusive head trauma." He added, "Once I saw the retinal hemorrhages in the CT, at that point that's severe head trauma and…it becomes suspicious for abusive head trauma - or non-accidental trauma." 

Beck conceded that there were medical experts who contend that shaking does not cause these injuries. 

“Is it fair to say that the areas that are under critique are particularly the force necessary to cause retinal hemorrhage and subdural hematomas?” Buscher asked.

“That is argued,” Beck said.

“And one of the arguments that they contend is that…lack of blood to the brain, could cause retinal hemorrhage and subdural hematoma, am I correct?” Buscher asked.

“That is an argument that they put out, yes,” Beck replied.

“And that's in the medical literature, isn't it?” Buscher asked.

“There have been articles about that in the peer review literature,” Beck said.

James Snider, an investigator for child protective services, testified that he and another CPS investigator interviewed Brown at Bronson Methodist Hospital while Brown was in the same room with the baby. Snider said Brown was “pretty lighthearted” during their conversation. He said that Brown was “bouncing around on his feet, smiling, kind of laughing with us.”

Snider agreed with prosecutor Buscher’s suggestion that at some point, he and Brown exchanged “fist-bumps.” Snider added that although Brown occasionally interacted with the baby, there “wasn’t a lot of emotionality to it.”

In an attempt to rebut the evidence suggesting that Brown was uncaring and indifferent to the plight of his son, Goulooze called Nadine Brown, Brown’s mother, who testified that Brown was a person who didn’t show his emotions—that he kept his emotions bottled up inside.

Just before the lunch recess on August 17, 2010, Goulooze called his last witness, Randy Reinstein, a Battle Creek police detective. Reinstein had testified for the prosecution that he arrested Brown after Dr. Beck briefed him, and after he spoke with CPS investigators, the baby’s mother, and other members of the family. 

After the baby died, Reinstein went to the jail to notify Brown of the death and to question him further about the events leading up to the baby’s hospitalization. Goulooze said that he intended to play a tape recording of the interview. Goulooze said the interview showed that Brown became extremely distraught when he was informed that Shawn Jr. had died. 

Judge Garbrecht ruled the tape was admissible and could be played for the jury. However, before the tape could be played, the judge noted that it was 10 minutes to noon. He decided to recess the trial for lunch. When the trial resumed after lunch, Buscher objected to playing the tape, although he had not done so earlier. He said that after researching the law, he concluded that the tape was hearsay testimony of Brown and therefore inadmissible. The judge agreed and the tape was not played.

Reinstein did say, under questioning by Goulooze, that Brown was “up and down” after being informed that the baby had died. “He would kind of scream and put his head down and then he would kind of level off a little bit,” Reinstein said. “And after we started talking, the rest of the interview, he was just—he couldn’t believe that he was getting charged with this.”

The following day, August 18, 2010, the jury acquitted Brown of murder, but convicted him of a lesser charge of voluntary manslaughter. The jury also rejected the first-degree child abuse charge and convicted Brown of second-degree child abuse. Brown was sentenced to eight years and four months to 30 years in prison.

In January 2012, the Michigan Court of Appeals upheld Brown’s conviction and sentence.

In 2017, the trial court ruled that Brown had been denied his right to counsel for the appeal because his appellate lawyer submitted the appeals brief without reviewing the entire trial transcript. The appellate lawyer had not even obtained the transcript from the day of the trial when several of the medical experts, including the pathologist, testified about the cause of death and the baby’s injuries. The trial court concluded that without reading that transcript, the lawyer had failed to provide a meaningful appeal for Brown. 

In May 2017, Brown, whose case had been under investigation by the Michigan Innocence Clinic at the University of Michigan Law School since 2014, moved for a new trial or an evidentiary hearing based on medical evidence that contradicted the prosecution’s medical testimony. That motion was denied. In August 2017, Brown filed a motion with the Court of Appeals asking it to remand the case to the trial court for a hearing on whether Goulooze had provided an adequate legal defense. 

In September 2017, the appeals court granted the motion. In January 2018, Calhoun County Circuit Court Judge Sarah Lincoln convened a hearing. Innocence Clinic students as well as David Moran and Imran Syed, the director and assistant director the clinic, presented testimony from Dr. Joseph Scheller, a pediatric neurologist.

Dr. Scheller testified that after reviewing the medical records and particularly the CT scan, he saw evidence of an older subdural hematoma. 

"It's at least two weeks old, but you really can’t tell if it's two weeks or two months old," Scheller testified. He said that it was possible that when the baby began choking, the older hematoma began to rebleed and that was the cause of the cascade of events that led to baby's death. He particularly noted that the rebleed could be caused by something "very minor." 

Scheller said the older “subdural hematoma caused a membrane, a membrane caused bleeding, the bleeding caused disruption of circulation, disruption of circulation caused bleeding on the surface of the brain on the subarachnoid small blood vessel. And that's what caused Shawn's seizures, collapse, and ultimately his death." 

Scheller said he had no idea what caused the older hematoma--it could have been abuse; it could have been that Shawn Jr. was dropped while being bathed or changed. "So it is possible that there was an abusive incident or an accident that happened weeks or months before,” he testified.

“It's even in the realm of possibility that this was a complication of birth because we know that subdural hemorrhages happen to normal babies who are born. They are very small and they usually go away,” Scheller testified. “Maybe this one lingered. So I just don't know. Shawn, at the time, was five months old. So five months prior perhaps Shawn suffered a small subdural hematoma." 

Scheller also said retinal hemorrhaging was not specific to child abuse; even if it was severe. He said there was no pattern of retinal hemorrhaging that would prove that the hemorrhages were caused by abuse.

He also said, "It has never been proven scientifically, but that's the concept or the thought used by a lot of child abuse experts to say ‘Well, I could tell from the retinal hemorrhage that this child was a victim of a terrible shaking.’" 

"There is no evidence that (the retinal hemorrhages) were related to trauma,” he said, adding that “it’s just as likely that the whole brain compromise, seizure, subdural and subarachnoid hemorrhage were related to a previous condition. I believe that the retinal hemorrhages could be part of that same process.”

Goulooze explained that prior to the trial, he contacted a longtime friend who was a vascular surgeon as well as two AHT experts, both of whom supported the prosecution’s theory of the case. He made no further inquiry.

After the hearing, Judge Lincoln denied the motion for a new trial. Brown’s legal team appealed. On May 29, 2019, while the appeal was pending, Brown was released on parole.

On July 25, 2019, the Michigan Court of Appeals reversed Judge Lincoln and ordered a new trial for Brown.

The appeals court ruled that Goulooze had provided an inadequate legal defense by failing to retain a medical expert. The court noted that Goulooze’s failure to identify and consult with an expert “made him unprepared to seek medical expert funds from the court.”

The appeals court also concluded that Goulooze had provided an inadequate legal defense because he was unprepared to argue the issue of the admissibility of the tape recording of Detective Reinstein’s interview with Brown when Brown was informed of the baby’s death.

The recording, the court noted, was “integral to his strategy to present the defendant as a loving parent who could not harm his son.” There was an exception to the hearsay rule that would have allowed the tape to be aired, but Goulooze “had no plan for its admission and unreasonably relied on the acquiescence of the prosecutor. Such performance was deficient.”

The case was remanded for a retrial and attorney Mary Chartier, who had represented Lacino Hamilton and Dennis Tomasik, both of whom were exonerated, agreed to handle the retrial without a fee. On April 6, 2021, after nearly two years of preparing for trial, the prosecution dismissed the charges.

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5953

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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;