Saturday, July 24, 2021

Melissa Lucio: Death Row; Texas..This powerful movie is timely: As Sabrina Van Tassel, Director of 'The State of Texas V. Melissa, says in her interview by The World Socialist (Joanne Laurier and David Walsh): "Melissa lost her last court appeal at the state level in Texas, so now it’s up to the US Supreme Court. Her lawyers just filed a cert petition [ certioraripetition, a court process seeking judicial review of a decision by a lower court], so we will know if they will hear her case in a month. If they do, that would be incredible news. And if they refuse to hear her case, then Melissa could get an execution date at any time."


PASSAGE OF THE DAY: "At the trial, none of her family and none of her neighbors testified. Her own expert witnesses were not allowed to testify. And that was the reason for the initial reversal. There is nothing in the files. The only thing they got was a confession under duress and the baby covered in bruises. Nobody ever witnessed Melissa being violent with her children. She lived in a shoebox with a lot of kids. I have done two films about child abuse, and child abuse is not premeditated. Melissa was alone with Mariah [the child who died] only half an hour a day. She is a nonviolent person. Furthermore, she was monitored by Child Protective Services for all these years. I read 7,000 pages from Child Protective Services and I can tell you there is nothing there. There is no case against her. All the psychologists who have evaluated her said she is not the type of person who would do that. She does not have any of the tell-tale signs. One thing we know is that she is not manipulative at all. She is not someone who has a huge ego. She is not a sociopath. She took the blame because she believes she is responsible. That is what the psychologist said, that she would be someone who would take the blame."

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PASSAGE TWO OF THE DAY: "We have an online petition addressed to the Texas Board of Pardons. The petition—it is now up to 7,300 signatures—asks each member of the board to watch the film. Because we do not want them simply to read a piece a paper that describes Melissa as having 14 children, had done drugs, so that they can just forget about her."

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INTERVIEW: "A conversation with Sabrina Van Tassel, director of 'The State of Texas vs. Melissa': "Justice depends on whether you are rich or poor, - by , published why The World  Socialist on July 15, 2021.


GIST: French-American filmmaker Sabrina Van Tassel’s documentary The State of Texas vs. Melissa, now streaming on Hulu, recounts the case of Melissa Lucio, who has sat on death row in Texas for 13 years. The World Socialist Web Site reviewed the film earlier this month.

Born in 1969, Lucio was convicted of the murder of her two-year-old daughter, Mariah, who died of blunt-force trauma to the head on February 17, 2007. The documentary forcefully and movingly explains how and why her conviction was a gross miscarriage of justice.

The conviction was overturned in July 2019 by the US Court of Appeals for the Fifth Circuit, but the state of Texas appealed the ruling. In February 2021, the 2019 grant of relief was reversed.

Van Tassel has made numerous documentary films. In 2015, she directed The Silenced Walls (La citĂ© muette, 2015), about the Drancy internment camp in a Paris suburb, where some 80,000 Jews were held, most on their way to Auschwitz and Bergen-Belsen, during the Nazi occupation of France.

We spoke recently in a video call to Van Tassel at her home in Paris.

* * * * *

WSWS: What is Melissa Lucio’s situation now?

Sabrina Van Tassel: Melissa lost her last court appeal at the state level in Texas, so now it’s up to the US Supreme Court. Her lawyers just filed a cert petition [ certioraripetition, a court process seeking judicial review of a decision by a lower court], so we will know if they will hear her case in a month. If they do, that would be incredible news. And if they refuse to hear her case, then Melissa could get an execution date at any time.


I just received a letter from Melissa two days ago. She’s very excited because there are so many people who watched the film on Hulu. We are up to 27 official selections at film festivals worldwide. And seven awards. I am going to Cannes on Monday to show The State of Texas vs. Melissa there. I’m also going to show it at the Deauville American Film Festival. It will open in cinemas in France, in Paris, on September 15. It has recently been bought by the Discovery channel for Latin America, and now Stan, the streaming platform in Australia, has acquired it.

Melissa is so happy because she is getting all these letters worldwide from people who believe her. She normally was not believed nor considered. She lives eight hours away from her family. They do not have any money, so they cannot even visit her.

I am the first reporter who asked her any questions and actually asked her family questions. When I met her family, they said to me, you are the first person ever to come here and ask us any questions about her. Her original lawyers had never spoken to the family, ever.

At the trial, none of her family and none of her neighbors testified. Her own expert witnesses were not allowed to testify. And that was the reason for the initial reversal. There is nothing in the files. The only thing they got was a confession under duress and the baby covered in bruises. Nobody ever witnessed Melissa being violent with her children. She lived in a shoebox with a lot of kids. I have done two films about child abuse, and child abuse is not premeditated. Melissa was alone with Mariah [the child who died] only half an hour a day. She is a nonviolent person. Furthermore, she was monitored by Child Protective Services for all these years. I read 7,000 pages from Child Protective Services and I can tell you there is nothing there. There is no case against her.

All the psychologists who have evaluated her said she is not the type of person who would do that. She does not have any of the tell-tale signs. One thing we know is that she is not manipulative at all. She is not someone who has a huge ego. She is not a sociopath. She took the blame because she believes she is responsible. That is what the psychologist said, that she would be someone who would take the blame.

WSWS: Could you discuss the conditions and atmosphere in Gatesville—the women’s prison and death row?

SVT: Melissa is one of six women on death row in Texas. You have to understand that on death row, you are separated from the rest of the prison population. You will never see other prisoners. When you are on death row, you are considered to be the most dangerous person. I know it sounds incredible, but Melissa Lucio is considered to be one of the most dangerous women in America. So she is never allowed to be with another inmate.

She has not had any physical contact with anybody for 13 years, since she has been on death row. They are in different cells. They only know each other because they talk through the walls. She is allowed to go outside for one hour, twice a week. Each one of these women has a little garden and that is how they stay sane. When you are on death row, you are not even allowed to put a picture on the wall because you need to be ready to be killed any day.

You have death row prisoners who are allowed and willing to work. Melissa has a bad knee and decided not to work. So she and another inmate, Erica Sheppard, because they are not working, get different treatment. They are punished more. They are separated from the rest of the prisoners. When I came to see Melissa the first time, they wanted to put her in a cage behind the glass wall that separates you from the prisoner. An actual cage. The prison official said, she is not working so she will be interviewed in the cage. I interceded, and they relented.

I come from a Jewish background and I have a lot of people in my family who went through the Holocaust. In Melissa’s case, they refer to her by her number. So they call out “Lucio 999537.”

Also, because she is not working, they put her in the aisle with people who are basically crazy. She does not see them, but she hears them. So the only way she does not hear screaming all the time is by turning on her fan on maximum speed every day. I have about 200 letters from her that describe all these things. Always humiliations. When she asks for water, they will give her water that has been sitting for five hours. They are treated as if they are worse than nothing.

WSWS: Can you describe her cell?

SVT: Her cell is tiny, tiny, tiny. That is the only way I can describe it.

WSWS: What is your attitude towards the death penalty—and the conditions of poverty and oppression that land people on death row?

SVT: I met Melissa through making a previous film about women on death row. Every single woman I interviewed, and it is the same thing with the men, is poor, they are indigent, or they would not be on death row. It is absolutely inhumane. We know that in the justice system in the US many people have been wrongly convicted, so to have the death penalty is just unthinkable. Receiving justice depends on whether you are rich or poor. If you are poor, you will not see justice.

Think about the people who get arrested. Most people will take a plea because they know that if they go to court, they are done. The statistics reveal that the prosecution wins 90 percent of the time. You are not on death row unless you are poor, black, brown or mentally disabled. It is horrible that the mentally disabled are on death row. It really got to me, and that is why I cannot really move on because of what I have seen, what I have learned. I am always thinking, what more can I do?

I would like you to mention that Melissa is friendly with Erica Sheppard, who is another death row inmate. Erica sent me a bracelet through a friend of hers, a lawyer. She is only 30 years old. I’ve never spoken to her. Erica has been on death row since she was 19. She was with her boyfriend, who killed the next door neighbor in a robbery. He got the death penalty and because she was there, even though she did not do anything, she got the death penalty too. The US Supreme Court just refused to hear her last appeal, so she is probably going to be executed before Melissa.

I have never spoken to Erica or involved myself in her case. But she did two things: a couple of months ago when I was trying to reach out to the Innocence Project, Shaun King and Susan Sarandon for Melissa, Erica sent me a message thanking me for believing Melissa, telling me that I had helped Melissa to hold her head up high and look at herself in the mirror, that I would never realize all the things I had done for Melissa. A month ago, she sent me this bracelet. So she is about to be executed, and she thanks me for believing her friend. There is more humanity on death row among these women than in all the courts and governments combined.

It is just barbaric! 

WSWS: Do you remember the case of Karla Faye Tucker, executed in 1998? She was the first woman executed in Texas in 135 years, since the Civil War in 1863. George W. Bush, who was governor, joked about her and mocked her. It was a nodal point in the death penalty process. Do not forget that the Democrats and Bill Clinton played a critical role in speeding up the death penalty and facilitating the assembly line of death, through the so-called “Effective Death Penalty Act” of 1996. Clinton rushed home to Arkansas to preside over an execution when he was running for president in 1992.

SVT: Do not mention Bill Clinton’s name to me. 

WSWS: The level of social inequality is intolerable. A handful of people own and run everything. You cannot run such a country democratically. You have to intimidate and terrorize the population, and the death penalty is part of the intimidating and terrorizing process.

SVT: The death penalty costs a fortune. Millions of dollars.

WSWS: But it is worth it to them, they are prepared to spend the money. They spent trillions in Afghanistan over 20 years. A complete debacle. These processes are politically driven.

SVT: I think things are changing. The fact that the state of Virginia gave up on the death penalty was a very good sign.

WSWS: Popular opinion has changed and your film is part of that. 

SVT: There are still going to be people who say she is poor, she had too many children, she had a drug problem, and so she is responsible. But most people who watch the film are shocked. They do not know what to think any more. Someone who could be so guilty on paper, may not be at all. What a lesson!

WSWS: Melissa’s family has great intelligence and heart.

SVT: They are incredibly truthful. Her mother is unbelievable. The situation with her children now is like something out of a Greek tragedy. It is an impossible, traumatic situation. Her son Bobby is the only one who is not going to work in a fast food restaurant. The collateral damage to the family is vast, and for how many generations is this trauma going to last? Thank you for writing the article. It was beautiful.

We have an online petition addressed to the Texas Board of Pardons. The petition—it is now up to 7,300 signatures—asks each member of the board to watch the film. Because we do not want them simply to read a piece a paper that describes Melissa as having 14 children, had done drugs, so that they can just forget about her.

The judge from her original trial and the district attorney set the execution date. We continue to fight for her.""

The entire story can be read at:


https://www.wsws.org/en/articles/2021/07/16/inte-j16.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;
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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, July 23, 2021

Rodney Reed: Texas: Innocence Project's assessment of the first week of the two-week evidence hearing..."This week, Innocence Project lawyers gave opening statements and presented witnesses, who testified to seeing Rodney and Stacey together and that they did have a relationship. Multiple witnesses also testified that Jimmy Fennell knew about their affair, and that he had used racial slurs when referring to Rodney. One witness said Jimmy told him that he would kill Stacey if he ever found out she was cheating on him with a Black man. Dr. Andrew Baker, a medical examiner, also took the stand and gave crucial testimony saying that the State presented false evidence about Stacey’s death at the original trial, testimony that served to exclude Jimmy as the person who killed her."


RELEASE: "Rodney Reed's first few days back in court," published by The Innocence Project on July 23, 2021.

GIST: "Rodney Reed has been on death row in Texas for 23 years for a crime he’s always said he didn’t commit — the murder of Stacey Stites, a woman whom he was secretly seeing at the time of her death.

In 1998, Rodney, a Black man, was convicted of murdering Stacey, a white woman, by an all-white jury. Though the prime suspect in the case initially was her fiancé, local police officer Jimmy Fennell, police shifted all of their attention to Rodney after DNA recovered from Stacey matched him.

This week, Rodney Reed has been back in court in Texas trying to prove his innocence.

At the time of his original trial, Rodney said that he and Stacey were having a consensual relationship, which explains the presence of his DNA. But they had to hide their relationship because Stacey was engaged and Rodney is Black, while Stacey was white. The prosecution claimed there was no evidence of their connection to one another.

This week, Innocence Project lawyers gave opening statements and presented witnesses, who testified to seeing Rodney and Stacey together and that they did have a relationship. Multiple witnesses also testified that Jimmy Fennell knew about their affair, and that he had used racial slurs when referring to Rodney. One witness said Jimmy told him that he would kill Stacey if he ever found out she was cheating on him with a Black man.

Dr. Andrew Baker, a medical examiner, also took the stand and gave crucial testimony saying that the State presented false evidence about Stacey’s death at the original trial, testimony that served to exclude Jimmy as the person who killed her.

All of this further supports Rodney’s innocence. His hearing will continue next week, and we’re not going to stop fighting until he gets the justice he deserves.

The entire release can be read at:

https://mail.google.com/mail/u/0/#inbox/FMfcgzGkZZknWBtZSCKvZGJPNlWsVzlb

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;

Flawed forensics: “Uneasy about improper use of their discipline, forensic experts call for an appeals body to protect against miscarriage of justice," The Guardian, (Reporter Nino Bucci) reports, in a story headed, "Forensic examination: the case for a criminal review commission in Australia... “Two of Australia’s leading forensic scientists say an independent criminal cases review commission should be established to protect against miscarriages of justice amid growing unease about the improper use of their disciplines. The commission – similar to a model that exists in the UK – would allow people who have exhausted their rights to appeal in the courts to seek a review of their case. Forensic sciences – mostly the use of DNA – have been a powerful tool in proving the innocence of the wrongfully convicted. But in recent years forensic sciences have also been found to have regularly contributed to miscarriages of justice, particularly in the US and Europe. Prof David Ranson and Assoc Prof Richard Bassed, both Victorian Institute of Forensic Medicine (Vifm) deputy directors, told Guardian Australia there was a clear need for an independent body that would help protect the integrity of the forensic sciences and provide a last resort for the wrongfully accused."


PASSAGE OF THE DAY: "Ranson and Bassed agreed forensic methods relating to bite mark, hair, bullets, footprints, blood spatter and mixed-sample DNA analysis that were previously considered meritorious were now either regarded as baseless or without conclusive evidence that they work. There are also concerns about whether fingerprint comparisons, for example, are as reliable as had long been believed."

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PASSAGE TWO OF THE DAY: "The latest flashpoint in the use of forensic sciences in Australian criminal cases relates to deaths attributed to shaken baby syndrome. In April this year, Nicholas Aaron Baxter was found not guilty in the Queensland supreme court of the manslaughter of his infant son Matthew, who had died almost a decade earlier. In a 2017 trial, Baxter had been found not guilty of murder but guilty of manslaughter. But the Queensland court of appeal allowed a retrial because evidence that Matthew had rib fractures at the time of his death was found to have been improperly considered as part of the medical and forensic evidence put to the jury. The prosecution case largely rested on Matthew presenting with a “triad” of injuries – bleeding in the brain, the brain swelling and retinal haemorrhage – that are linked to trauma having been inflicted on a child, known as shaken baby syndrome. Those who agree with the science of shaken baby syndrome claim the injuries could not be caused by any other event other than extreme trauma. But others believe the science is flawed: how does one conduct an experiment that would conclusively prove the impact that shaking has on a live baby? As Queensland supreme court justice David North found in the retrial of the Baxter case, “one of the difficulties in studying such an hypothesis and testing the theory is that for obvious reasons it [is] impossible to conduct any studies upon actual infants”. He ultimately found that “what caused Matthew’s cardiorespiratory collapse and death remains a matter of speculation. The law requires on a charge of manslaughter proof beyond reasonable doubt based upon probative admissible evidence. For the reasons I have given proof to that standard is absent.”


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PHOTO CAPTION: “Forensic sciences – mostly the use of DNA – have been a powerful tool in proving the innocence of the wrongfully convicted but have also been found to have regularly contributed to miscarriages of justice.”


STORY: “Forensic examination: the case for a criminal review commission on Australia, by Nino Bucci, published by The Guardian on July 17, 2021.   Nino Bucci is a reporter for The Guardian in Australia, based in Melbourne. Thanks to Dr. Robert Moles of Networked Knowledge for bringing this story to our attention.)


SUB-HEADING: “Uneasy about improper use of their discipline, forensic experts  call for an appeals body to protect against miscarriage of justice.”


GIST: “Two of Australia’s leading forensic scientists say an independent criminal cases review commission should be established to protect against miscarriages of justice amid growing unease about the improper use of their disciplines.


The commission – similar to a model that exists in the UK – would allow people who have exhausted their rights to appeal in the courts to seek a review of their case.


Forensic sciences – mostly the use of DNA – have been a powerful tool in proving the innocence of the wrongfully convicted. But in recent years forensic sciences have also been found to have regularly contributed to miscarriages of justice, particularly in the US and Europe.


Prof David Ranson and Assoc Prof Richard Bassed, both Victorian Institute of Forensic Medicine (Vifm) deputy directors, told Guardian Australia there was a clear need for an independent body that would help protect the integrity of the forensic sciences and provide a last resort for the wrongfully accused.


“The justice system likes closure, finality, but I don’t think we can accept that in a just society when that means someone is being deprived of their liberty,” Ranson said.


“[An independent review body] is sensible … but it has to be properly resourced. It can’t just be a group of lawyers sitting around a table.”


Bassed, in a separate interview, said an independent review board would be “very useful”. It could help overcome the “inherent bias” that may occur when police investigators or forensic scientists were given too much information regarding a death, leading to skewed evidence and miscarriages of justice, he said.


Ranson and Bassed agreed forensic methods relating to bite mark, hair, bullets, footprints, blood spatter and mixed-sample DNA analysis that were previously considered meritorious were now either regarded as baseless or without conclusive evidence that they work. There are also concerns about whether fingerprint comparisons, for example, are as reliable as had long been believed.


Ranson categorises the flaws as either fundamental, meaning they cannot be used at all, or based on application, meaning concerns can arise if the science is not applied correctly.

It is unlikely that any offender in Australia would have been convicted solely because one of these flawed methods was used, but does their use in some circumstantial cases help convince a jury of their guilt?


Ranson believes appeals to an independent commission could be based on multiple factors, including new research that debunked a forensic science, new evidence that indicated a particular scientist may have misrepresented their evidence (or was not properly challenged about it in court), or that failures to complete certain tests or forensic examinations as part of the initial investigation meant that an individual could not be proven guilty beyond reasonable doubt.


Bassed has been so concerned about the lack of understanding between the lawyers and forensic scientists that he has established a masters of forensic and legal studies at Monash University, where he heads the department of forensic medicine, to break down the misconceptions between the parties.


He believes defence lawyers being unable to find experts who can contradict the forensic evidence presented by the prosecution, and an inability to properly cross-examine the forensic witnesses of the prosecution, contributes to miscarriages of justice.


The pair’s Vifm colleague, Prof Stephen Cordner, has also called for an independent review body. Last year, Cordner raised his concerns to his local federal MP, Liberal Russell Broadbent, who in turn brought the matter to the then attorney general, Christian Porter.

Broadbent said he received a “general” response back, but he believed there would be no political will to introduce a commission unless “someone at a higher level was inspired by a particular case”.


“Often you need a trigger. Lindy Chamberlain has been the trigger for me for justice to exist in the justice system,” Broadbent said.

He said that there was “no reason in the world we should fear” establishing a commission similar to that which exists in the UK.

“Until there’s an obvious miscarriage of justice and the public say ‘this can’t happen again’… it can happen again tomorrow,” Broadbent said.


A spokesperson for the current attorney general, Michaelia Cash, did not respond to a request for comment.


In late 2019, the Council of Australian Governments agreed to a national review of the reliability of forensic evidence being used in courts. But, as the Age reported earlier this year, that review has now been shelved.


The review was proposed by the Victorian government. A spokesperson for the Victorian attorney general, Jaclyn Symes, said there was no plan for a review of the forensic sciences to be conducted by the state.


Shaken baby syndrome

The latest flashpoint in the use of forensic sciences in Australian criminal cases relates to deaths attributed to shaken baby syndrome.


In April this year, Nicholas Aaron Baxter was found not guilty in the Queensland supreme court of the manslaughter of his infant son Matthew, who had died almost a decade earlier.

In a 2017 trial, Baxter had been found not guilty of murder but guilty of manslaughter.


But the Queensland court of appeal allowed a retrial because evidence that Matthew had rib fractures at the time of his death was found to have been improperly considered as part of the medical and forensic evidence put to the jury.


The prosecution case largely rested on Matthew presenting with a “triad” of injuries – bleeding in the brain, the brain swelling and retinal haemorrhage – that are linked to trauma having been inflicted on a child, known as shaken baby syndrome.


Those who agree with the science of shaken baby syndrome claim the injuries could not be caused by any other event other than extreme trauma. But others believe the science is flawed: how does one conduct an experiment that would conclusively prove the impact that shaking has on a live baby?


As Queensland supreme court justice David North found in the retrial of the Baxter case, “one of the difficulties in studying such an hypothesis and testing the theory is that for obvious reasons it [is] impossible to conduct any studies upon actual infants”.


He ultimately found that “what caused Matthew’s cardiorespiratory collapse and death remains a matter of speculation. The law requires on a charge of manslaughter proof beyond reasonable doubt based upon probative admissible evidence. For the reasons I have given proof to that standard is absent.”


We tend to see forensic science as absolute, but we need to also learn that science is always developing

Mai Sato


In the US state of Maryland last year, an appeal was granted in the case of a man who had spent more than two decades in prison for the death of his infant son, because the court found that the “current controversy or debate within the scientific community” regarding shaken baby syndrome meant there was a “substantial or significant possibility of a different result” should the case be reheard.


There are now three appeals that have been filed or are set to be filed in Victorian courts by men who were found guilty of killing or seriously injuring children in their care. The appeals were first reported by the Age.


The appeals will be closely watched by Australian lawyers and academics who research or work within what is loosely termed “the innocence movement”.


Mai Sato, a Monash University associate professor who has extensively researched the UK criminal cases review commission, said concerns about shaken baby syndrome underline a fundamental flaw with how forensic science is perceived in the justice system.


“We tend to see forensic science as absolute, but we need to also learn that science is always developing,” Sato said.


There was also a misconception that a miscarriage of justice must involve malicious police investigations, when issues such as non-disclosure – or disclosing too much – can also influence an expert view.


Sato, who is also a member of the Bridge of Hope miscarriage of justice advisory group, said it was implausible the UK required a criminal cases review commission any more than Australia.

“It’s certainly not that there’s no miscarriages of justice here, that it’s so safe,” she said. “Little things will always be going wrong along the way, and that equates to a wrongful conviction. The justice system produces these mistakes. And we need a system to deal with it.""


The entire story can be read at:



PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "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, July 22, 2021

Rodney Reed: Texas: Day Four; Thursday (July 22, 2012); On-going evidentiary hearing: KVUE live up-dates:


PUBLISHER'S NOTE: The evidentiary hearing is now under way. It’s  expected to last two weeks, began earlier today. My plan is to drop in on the hearing from time to time where there is particular grist for the Charles Smith Mill.  (As brief as that may be). But don't limit yourselves.  There's a lot of very fascinating  other 'stuff' - including blatant racism and police and prosecutorial misconduct  (and ex-fiancee Jimmy Fennell's testimony) -  going on in the hearing room. KVUE Reporter Jenni Lee's is already providing chronological   live daily updates at kvue.com.
Harold Levy: Publisher: The Charles Smith Blog;
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From today's live KVUE up-date: 

10:10 a.m. – Fennell denies Stites was having an affair with Reed and denies all allegations from the defense's witnesses, calling them "all liars." When asked about two forensic pathologists' testimonies stating Stites died before 3 a.m., rather than between 3 a.m. and 5 a.m., Fennell said they were lying as well. In the original trial, Fennell testified that he was with Stites between 9 p.m. and 3 a.m. He denied being with Stites when she died.

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Today's  (Day 3) KVUE entire report  - with Fennell's testimony - can be read at: 
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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;

Digital forensic experts: Intriguing study reported by The Guardian (Science Correspondent Linda Geddes) shows they are prone to bias which can influence the amount of evidence they can find on the hard drive...GIST: “Devices such as phones, laptops and flash drives are becoming increasingly central to police investigations, but the reliability of digital forensics experts’ evidence has been called into question. A study found that experts tended to find more or less evidence on a suspect’s computer hard drive to implicate or exonerate them depending on the contextual information about the investigation that they were given. Even those presented with the same information often reached different conclusions about the evidence. Such biases are known to be a problem in other forensic disciplines including fingerprint analysis, but this is the first time it has been demonstrated in digital forensics."


PASSAGE OF THE DAY: "The study, soon to be published in Forensic Science International: Digital Investigationfound that the examiners who had been led to believe the suspect might be innocent documented the fewest traces of evidence in the files, while those who knew of a potential motive identified the most traces. It also found low levels of consistency between examiners who were given the same contextual information, in terms of the observations, interpretations and conclusions they drew from the files. “Digital forensics examiners need to acknowledge that there’s a problem and take measures to ensure they’re not exposed to irrelevant, biased information,” said Dror. “They also need to be transparent to the courts about the limitations and the weaknesses, acknowledging that different examiners may look into the same evidence and draw different conclusions.”

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STORY: “Digital forensic experts prone to bias, study shows,” by Science Correspondent Linda Geddes, published by The Guardian on May 31, 2021. (Thanks to Dr. Robert Moles of Networked  Knowledge for bringing this post to our attention.)


SUB-HEADING: “Participants found more or less evidence on hard drive depending on what contextual information they had.”


PHOTO CAPTION: “The study gave 53 digital forensics examiners from eight countries the same computer hard drive to analyse.”



GIST: “Devices such as phones, laptops and flash drives are becoming increasingly central to police investigations, but the reliability of digital forensics experts’ evidence has been called into question.


A study found that experts tended to find more or less evidence on a suspect’s computer hard drive to implicate or exonerate them depending on the contextual information about the investigation that they were given.


Even those presented with the same information often reached different conclusions about the evidence.


Such biases are known to be a problem in other forensic disciplines including fingerprint analysis, but this is the first time it has been demonstrated in digital forensics.


“I cannot overemphasise the importance of forensic scientists understanding the potential for unintentional bias, and of ensuring they take measures to minimise the risks,” said Dr Gillian Tully, a professor of practice for forensic science policy and regulation at King’s College London and former UK forensic science regulator.


Digital evidence now features in around 90% of criminal cases. Digital examiners working in police and private laboratories use specialised software and other techniques to secure, retrieve and analyse data from suspects’ communications, photos and other digital interactions that could shed light on their activities.


However, the field’s rapid growth means that has not been subjected to the same scientific scrutiny as other forensic techniques. “It has been described as the wild west because it wasn’t developed systematically and scientifically before it went into the criminal justice system,” said Dr Itiel Dror, an expert in cognitive bias at University College London who carried out the study.


Ian Walden, a professor of information and communications law at Queen Mary, University of London, said there was a tendency to believe the machine. “This study shows that we need to be careful about electronic evidence,” Walden said. “Not only should we not always trust the machine, we can’t always trust the person that interprets the machine.”


Dror and Nina Sunde at the University of Oslo, Norway, gave 53 digital forensics examiners from eight countries including the UK the same computer hard drive to analyse. Some of the examiners were provided with only basic contextual information about the case, while others were told the suspect had confessed to the crime, had a strong motive for committing it or that the police believed she had been framed.


The study, soon to be published in Forensic Science International: Digital Investigation, found that the examiners who had been led to believe the suspect might be innocent documented the fewest traces of evidence in the files, while those who knew of a potential motive identified the most traces.


It also found low levels of consistency between examiners who were given the same contextual information, in terms of the observations, interpretations and conclusions they drew from the files.


“Digital forensics examiners need to acknowledge that there’s a problem and take measures to ensure they’re not exposed to irrelevant, biased information,” said Dror. “They also need to be transparent to the courts about the limitations and the weaknesses, acknowledging that different examiners may look into the same evidence and draw different conclusions.”


In her final report before stepping down as forensic science regulator earlier this year, Tully called for improved compliance with quality standards for digital forensic labs, many of which have not been accredited, and greater scrutiny of scientific evidence in court.


Dr David Gresty, a senior lecturer in computer forensics at the University of Greenwich, said: “We have every reason to believe that an expert acting in good faith, but through a mistake of interpretation, could easily mislead a courtroom. Without the defence instructing another expert to review the evidence it is entirely possible this could go unnoticed, and realistically it is likely there are undetected miscarriages of justice where cases have relied heavily on digital evidence.”


A report published by the Police Foundation in January recommended that training in digital forensics be provided for everyone working within the criminal justice system, including judges, prosecutors and defence barristers, to help reduce instances of misinterpretation and better understand the limits of what can be achieved.


The Police Foundation’s director, Rick Muir, said: “There may always an element of subjectivity in this, but we could try to reduce the room for error through effective training and the use of common standards across digital forensics work. Most examination is done in-house, so I think there’s a real onus on the police to make sure that consistent standards are applied.


“If it loses credibility, that’s a massive problem because almost any criminal case these days will have some kind of digital evidence. You could have people who were wrongly convicted or people who are guilty going free, and there’s a wider issue of undermining public confidence in digital forensics if you don’t get this right.”


A spokesperson for the National Police Chiefs’ Council said: “Digital forensics is a growing and important area of policing which is becoming increasingly more prominent as the world changes. This report is from a very small sample size and is not representative of the operational environment police in this country work in. We are always looking at how technology can add to our digital forensic capabilities and a national programme is already working on this.""


The entire story can be read at: 

https://www.theguardian.com/science/2021/may/31/digital-forensics-experts-prone-to-bias-study-shows

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;

Wednesday, July 21, 2021

Rodney Reed: Texas: Day Three: On-going evidentiary hearing: July 21, 2021.


PUBLISHER'S NOTE: The evidentiary hearing is now under way. It’s  expected to last two weeks, began earlier today. My plan is to drop in on the hearing from time to time where there is particular grist for the Charles Smith Mill.  But don't limit yourselves.  There's a lot of very fascinating  other 'stuff' - including blatant racism and police and prosecutorial misconduct -  going on in the hearing room. KVUE Reporter Jenni Lee's is already providing chronological   live daily updates at kvue.com.

Harold Levy: Publisher: The Charles Smith Blog;
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From today's live KVUE up-date: (Start reading at bottom of entries at 10.35 AM).

12:28 p.m.  After a break, the State cross-examined Dr. Davis, asking if he could determine if Reed abducted, sexually assaulted or anally penetrated Stites based on autopsy photos alone. He said no. This is important because he never examined any evidence in person.

Dr. Davis testified that it is up to a jury to determine who commits a crime, not him. He said he agreed that the way Stites' body was found at the crime scene suggests she could have been sexually assaulted.


11:26 a.m.  Judge Langely tells defense they can't bootstrap their argument into an expert opinion. After a Q&A between the judge and defense, the defense moved forward with what they wanted to ask: Dr. Davis' opinion of 14 other forensic pathologists agreeing with Dr. Baker’s report.

11:06 a.m. – Dr. Davis testified that previous forensic testimony regarding intact sperm only lasting 26 hours is misleading. He said there is evidence that shows intact sperm can last a week.

Dr. Davis also testified that Stites did not suffer anal injuries. He believes Dr. Roberto Bayardo (former Travis County medical examiner) mistook natural anal anatomy for anal injuries. Dr. Andrew Baker, defense forensic pathologist, also offered similar testimony.

Judge Langley did not allow a “report” authored by two defense attorneys and not forensic experts as evidence. Judge Langley showed frustration with the defense because he says they’re trying to make their summary argument and this is not evidence.

10:35 a.m. – After a brief break, the defense called its second witness via Zoom: Dr. Gregory Davis, a forensic pathologist with more than 30 years of experience who has performed about 415 autopsies per year. 

Dr. Davis said he’s concerned about Stacey Stites’ estimated time of death – which was noted as between 3 a.m. and 5 a.m. – because it is too narrow. He said Stites died before the two-hour window, but cannot give a time. This is important because the State contends Stites’ time of death is between 3 a.m. 5 a.m.  

Debra Oliver, Stacey Stites’ sister, looked away as Dr. Davis and attorney talk about Stacey’s autopsy photos. Oliver said she has not been able to look at any of the graphic images." 

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Today's  (Day 3) KVUE entire report can be read at: 
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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;