Wednesday, July 24, 2024

Christopher Dunn: Missouri: Major (Most Unwelcome) Development… And Justice for All?..."St. Louis Circuit Judge Jason Sengheiser overturned Dunn’s murder conviction Monday, citing evidence of “actual innocence” in the 1990 killing. He ordered Dunn’s immediate release then, but Bailey appealed, and the state Department of Corrections declined to release Dunn," Associated Press Reporters Jim Salter and Heather Hollingsworth report…."The situation was chaotic as the deadline set by the judge approached. Corrections Department spokesperson Karen Pojmann told The Associated Press that Dunn was out of the prison facility and waiting for a ride. His wife told the AP she was on his way to pick him up. Minutes later, Pojmann corrected herself and said that while Dunn was signing paperwork to be released, the Missouri Supreme Court issued a ruling that put his freedom on hold."


QUOTES OF THE DAY: "Following the state Supreme Court’s ruling Wednesday, Dunn’s attorney, Tricia Rojo Bushnell, the executive director of the Midwest Innocence Project, expressed her frustration.  “What is this bringing to taxpayers in Missouri? What is this use of our resources and our state’s time getting us?” she said. “All it’s doing is keeping innocent people in prison."

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PASSAGE ONE OF THE DAY: "Dunn’s situation is similar to what happened to Sandra Hemme. The 64-year-old woman spent 43 years in prison for the fatal stabbing of a woman in St. Joseph in 1980. A judge on June 14 cited evidence of “actual innocence” and overturned her conviction. She had been the longest held wrongly incarcerated woman known in the U.S., according to the National Innocence Project, which worked to free Hemme.  Appeals by Bailey — all the way up to the Missouri Supreme Court — kept Hemme imprisoned at the Chillicothe Correctional Center. During a court hearing Friday, Judge Ryan Horsman said that if Hemme wasn’t released within hours, Bailey himself would have to appear in court with contempt of court on the table. Hemme was released later that day. The judge also scolded Bailey’s office for calling the warden and telling prison officials not to release Hemme after he ordered her to be freed on her own recognizance.

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PASSAGE TWO OF THE DAY: "A 2021 law now allows prosecutors to seek court hearings in cases with new evidence of a wrongful conviction.  Although Bailey’s office is not required to oppose such efforts, lawyers for his office said at the hearing that initial testimony from two boys at the scene who identified Dunn as the shooter was correct, even though they recanted as adults. He also raised opposition at a hearing for Lamar Johnson, who spent 28 years in prison for murder. Another St. Louis judge ruled in February 2023 that Johnson was wrongfully convicted, and he was freed."

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PASSAGE THREE OF THE DAY: "Steven Puro, professor emeritus of political science at St. Louis University, said Bailey is in a highly competitive race for the attorney general position with the primary quickly approaching on Aug. 6. “Bailey is trying to show that he is, quote, ‘tough on crime,’ which is a very important Republican conservative position,” he said. “Clearly, he’s angering members of the judicial system that he will have to argue before in the future. But he’s making the strategic notion that he needs to get his name before the voters and try to use that to win the primary election.” Michael Wolff, a former Missouri Supreme Court judge and chief justice, agreed, saying it seems this has become political for Bailey. “But one of the things is that no matter what your beliefs are, if a court orders something to happen, it’s not your purview to say no,” he said. “The court has to be obeyed."

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STORY: "Mo. Supreme Court blocks release of Christopher Dunn of man with overturned conviction as he was about to go free," by Associated Press Reporters Jim Salter and Heather Hollingsworth,  published on July 24, 2024.'  

GIST:  "The Missouri Supreme Court halted the immediate release Wednesday of a man whose murder conviction was overturned — just as the man was about to walk free. 

A St. Louis Circuit Court judge had ordered Christopher Dunn, now 52, to be released by 6 p.m. CDT Wednesday and threatened the prison warden with contempt if Dunn remained imprisoned. But Republican Attorney General Andrew Bailey has been fighting Dunn’s release. 

The situation was chaotic as the deadline set by the judge approached. Corrections Department spokesperson Karen Pojmann told The Associated Press that Dunn was out of the prison facility and waiting for a ride. His wife told the AP she was on his way to pick him up. Minutes later, Pojmann corrected herself and said that while Dunn was signing paperwork to be released, the Missouri Supreme Court issued a ruling that put his freedom on hold.

St. Louis Circuit Judge Jason Sengheiser overturned Dunn’s murder conviction Monday, citing evidence of “actual innocence” in the 1990 killing. He ordered Dunn’s immediate release then, but Bailey appealed, and the state Department of Corrections declined to release Dunn. 

St. Louis Circuit Attorney Gabe Gore had filed a motion Wednesday urging the judge to immediately order Dunn’s freedom.

“The Attorney General cannot unilaterally decide to ignore this Court’s Order,” Gore wrote.

An attorney for the Department of Corrections told a lawyer in Gore’s office that Bailey advised the agency not to release Dunn until the appeal plays out, according to a court filing. When told it was improper to ignore a court order, the Department of Corrections attorney “responded that the Attorney General’s Office is legal counsel to the DOC and the DOC would be following the advice of counsel.”

Following the state Supreme Court’s ruling Wednesday, Dunn’s attorney, Tricia Rojo Bushnell, the executive director of the Midwest Innocence Project, expressed her frustration. 

“What is this bringing to taxpayers in Missouri? What is this use of our resources and our state’s time getting us?” she said. “All it’s doing is keeping innocent people in prison.”

Dunn’s wife said while driving to the prison that they were numb when he didn’t get out earlier this week. 

“If you know a little about the story, you know we’ve had a lot of disappointments where we thought we’d finally get his freedom and it was snatched away,” Kira Dunn said. “So we were just bracing ourselves.”

Dunn’s situation is similar to what happened to Sandra Hemme.

The 64-year-old woman spent 43 years in prison for the fatal stabbing of a woman in St. Joseph in 1980. A judge on June 14 cited evidence of “actual innocence” and overturned her conviction. She had been the longest held wrongly incarcerated woman known in the U.S., according to the National Innocence Project, which worked to free Hemme. 

Appeals by Bailey — all the way up to the Missouri Supreme Court — kept Hemme imprisoned at the Chillicothe Correctional Center. During a court hearing Friday, Judge Ryan Horsman said that if Hemme wasn’t released within hours, Bailey himself would have to appear in court with contempt of court on the table. Hemme was released later that day.

The judge also scolded Bailey’s office for calling the warden and telling prison officials not to release Hemme after he ordered her to be freed on her own recognizance.

Dunn, who is Black, was 18 in 1990 when 15-year-old Ricco Rogers was killed. Among the key evidence used to convict him of first-degree murder was testimony from two boys who were at the scene of the shooting. Both later recanted their testimony, saying they had been coerced by police and prosecutors.

At an evidentiary hearing in 2020, another judge agreed that a jury would likely find Dunn not guilty based on new evidence. But that judge, William Hickle, declined to exonerate Dunn, citing a 2016 Missouri Supreme Court ruling that only death row inmates — not those like Dunn sentenced to life in prison without the possibility of parole — could make a “freestanding” claim of actual innocence.

A 2021 law now allows prosecutors to seek court hearings in cases with new evidence of a wrongful conviction. 

Although Bailey’s office is not required to oppose such efforts, lawyers for his office said at the hearing that initial testimony from two boys at the scene who identified Dunn as the shooter was correct, even though they recanted as adults.

He also raised opposition at a hearing for Lamar Johnson, who spent 28 years in prison for murder. Another St. Louis judge ruled in February 2023 that Johnson was wrongfully convicted, and he was freed.

Another hearing begins Aug. 21 for death row inmate Marcellus Williams. Bailey’s office is opposing the challenge to Williams’ conviction, too. Timing is of the essence: Williams is scheduled to be executed Sept. 24.

Steven Puro, professor emeritus of political science at St. Louis University, said Bailey is in a highly competitive race for the attorney general position with the primary quickly approaching on Aug. 6.

“Bailey is trying to show that he is, quote, ‘tough on crime,’ which is a very important Republican conservative position,” he said. “Clearly, he’s angering members of the judicial system that he will have to argue before in the future. But he’s making the strategic notion that he needs to get his name before the voters and try to use that to win the primary election.”

Michael Wolff, a former Missouri Supreme Court judge and chief justice, agreed, saying it seems this has become political for Bailey.

“But one of the things is that no matter what your beliefs are, if a court orders something to happen, it’s not your purview to say no,” he said. “The court has to be obeyed.""

The entire story can be read at: 
The

PUBLISHER'S NOTE:  I am monitoring this case/issue/resource. 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.

  • SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:


    https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985


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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;


Tuesday, July 23, 2024

Nurse Lucy Letby: killer or coincidence? The Guardian (Reporter Felicity Lawrence) examines why some experts question the evidence, in a story sub-headed, "Exclusive: Doubts raised over safety of convictions of nurse found guilty of murdering babies."…"Throughout the trial period, and much of the preceding six years when Cheshire police were investigating a cluster of baby deaths at the Countess of Chester (CoC) hospital and had arrested Letby, laws intended to ensure juries are not influenced by stories in the press meant British journalists reported only what was said in court. Outside court, however, there has been a growing chorus of voices raising questions about some of the key evidence presented in the trial. There was no forensic evidence to prove her guilt and no one saw Letby – who continues to maintain her innocence – causing harm. That also applied to the retrial that reached a guilty verdict last week. Although one of the doctors concluded that she must have tampered with the breathing tube of a baby on three occasions, he did not actually see her doing it."


PUBLISHER'S NOTE:  (Part 1): On learning about Nurse Lucy Letby's conviction, I immediately thought about Susan Nelles, a nurse at the Iconic Hospital for Sick Children in Toronto. (As a young law student, I had been asked by The Toronto Star (later my employer) to join a team of reporters who were covering a public inquiry  that had been ordered into the deaths of the children at Sick Children Hospital.   By way of background, a wiki (link below) informs us that: Susan Marguerite Nelles (born in Belleville, Ontario)[1] was charged with murdering four babies in 1981, when she worked as a nurse at Toronto's Hospital for Sick Children. She was ultimately exonerated The hospital investigated the cause of infant deaths in the cardiac unit, using an experimental, inappropriate testing method. The test indicated that as many as 43 babies were poisoned with the heart medication digoxin. Police determined that Susan Nelles had been scheduled to work at the times that 23 of the deaths occurred. They arrested and charged her with the deaths of four babies. The deaths then stopped. However, Nelles had not been on duty for several of the infant deaths, because she swapped shifts with other nurses – who had access to the same medication. Although the deaths ended after Nelles's arrest, the hospital had introduced restrictions for access to digoxin and had implemented a policy that kept infants in intensive care longer. Total deaths between the two units remained identical. Nelles asked for legal counsel when she was arrested. This was interpreted by the investigating police officers to be an indication of her guilt, but the court later ruled that this should not be interpreted as evidence of guilt. The court also ruled that the Crown lacked evidence to convict Nelles. The government eventually paid for Nelles's legal costs after she sued the province's Attorney-General, Roy McMurtry for malicious prosecution.  A Royal Commission, led by Justice Samuel Grange, found that eight infants had been murdered. Although another nurse, Phyllis Trainor, fell under scrutiny, no one was charged. Moreover, the experimental test that detected digoxin may have given false results for other chemicals. In 1999, she received an honorary degree from Queen's University in Kingston, Ontario at which she graduated with a Bachelor of Nursing Science degree in 1978. This honour, presented under her married name Susan Pine, was for her work in promoting integrity in the nursing field."

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PUBLISHER'S NOTE: (Part 2): Years after the Inquiry had filed its report,  I wrote  a review in this Blog of a  book about  the tragic deaths of the children at Sick Kids, Dr. Gavin Hamilton,   a  retired radiologist, who provided what he  claimed was the real reason for the deaths of the unfortunate babies at the renowned hospital: A toxin found in natural rubber which is technically like digoxin, which was used in disposable plastic syringes and intravenous devices. Dr, Hamilton's book is called: ""The Nurses Are Innocent: The Digoxin Poisoning Fallacy." Indeed, he made a convincing case (to me, at least) that no children had been murdered at Sick Kids. Yet, if Susan Nelles had not had the good fortune of appearing before Judge David Vanek, a courageous judge known to carefully find the facts and apply the law - even in a high profile case involving a renowned institution -  she might well have been convicted by a jury because of the heart-tugging nature of the facts,  which include  all of these dead babies. Check out my initial post on Dr. Hamilton's book at:

http://www.amazon.ca/Nurses-Are-Innocent-Digoxin-Poisoning/dp/1459700570

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PASSAGE ONE  OF THE DAY: "The prosecution’s case instead drew on accounts from doctors and nurses on the hospital’s neonatal unit and relied heavily on statistical evidence and expert opinion on complex medical points, some of which took days to explain to the lay jury. It is these opinions that some clinicians claim do not stand up to scrutiny."

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PASSAGE TWO OF THE DAY: "A Guardian investigation has interviewed dozens of these experts and seen further evidence from emails and documents. Those raising concerns include several leading consultant neonatologists, some with current or recent leadership roles, and several senior neonatal nurses. Others are public health professionals, GPs, biochemists, a leading government microbiologist, and lawyers. Several of those still working in the NHS have asked to remain anonymous, fearing the impact if they are named. These experts said they were acutely aware of the suffering of the families involved and did not want to reopen their trauma, but were so troubled they felt compelled to become involved."

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STORY: "Lucy Letby: killer or coincidence? Why some experts question the evidence," by Reporter Felicity Lawrence, published by The Guardian, on July 9, 2024.

SUB-HEADING: "Exclusive: Doubts raised over safety of convictions of nurse found guilty of murdering babies." (Felicity Lawrence is a special correspondent for the Guardian. She is the author of Not on the Label and Eat Your Heart Out.)


The verdict handed down to the former neonatal nurse Lucy Letby last week brought to an end more than 21 months of court proceedings. After two trials and two attempts to appeal, Letby has been convicted of murdering seven babies and attempting to murder seven others. She is serving whole-life sentences.

For many there has been little room for doubt that Letby is the worst child serial killer in British history. Jurors heard harrowing testimony from the parents of the babies who died, and were shown notes scrawled by Letby and shift rotas that were used to condemn her.

Throughout the trial period, and much of the preceding six years when Cheshire police were investigating a cluster of baby deaths at the Countess of Chester (CoC) hospital and had arrested Letby, laws intended to ensure juries are not influenced by stories in the press meant British journalists reported only what was said in court.

Outside court, however, there has been a growing chorus of voices raising questions about some of the key evidence presented in the trial.

There was no forensic evidence to prove her guilt and no one saw Letby – who continues to maintain her innocence – causing harm.

That also applied to the retrial that reached a guilty verdict last week. Although one of the doctors concluded that she must have tampered with the breathing tube of a baby on three occasions, he did not actually see her doing it.

The prosecution’s case instead drew on accounts from doctors and nurses on the hospital’s neonatal unit and relied heavily on statistical evidence and expert opinion on complex medical points, some of which took days to explain to the lay jury. It is these opinions that some clinicians claim do not stand up to scrutiny.

The case was high-profile and emotionally charged. Successive juries and the families of the babies who died are convinced Letby was responsible. While few of the experts the Guardian spoke to went as far as to say they believed Letby was innocent, the questions about the evidence called into doubt, they said, the safety of the convictions.

A Guardian investigation has interviewed dozens of these experts and seen further evidence from emails and documents. Those raising concerns include several leading consultant neonatologists, some with current or recent leadership roles, and several senior neonatal nurses. Others are public health professionals, GPs, biochemists, a leading government microbiologist, and lawyers. Several of those still working in the NHS have asked to remain anonymous, fearing the impact if they are named.

These experts said they were acutely aware of the suffering of the families involved and did not want to reopen their trauma, but were so troubled they felt compelled to become involved.

Prominent statisticians have described as fallacious a shift table shown to the jury implicating Letby because she was the “one constant presence” when babies died or collapsed.

The Guardian also conducted interviews over several hours with the lead prosecution witness, Dr Dewi Evans, and the specialist instructed for the defence, the neonatologist Dr Mike Hall.

Now, with the second trial over, the Guardian can report these concerns for the first time.

A unit understaffed


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In 2013-14, the CoC neonatal unit had four deaths each year. 

Then, between June 2015 and June 2016, an unusual cluster of 13 deaths occurred. (The hospital has given different accounts of the number and dates of the deaths on different occasions, stating 15 deaths in an earlier response to a freedom of information request.)

The hospital, worried by the deaths, commissioned a review from the Royal College of Paediatrics and Child Health (RCPCH) in July 2016. It found the unit was very short of nursing staff and that consultants were spread too thinly between the paediatric ward and the neonatal unit.

Junior staff did not feel they could call in consultants, often leaving the unit in the care of mid-grade doctors, many of whom lacked sufficient experience, the review reported.

Doctors were surprised by babies collapsing when they did not expect and dying when they could not explain why. Some of the most senior consultants began suspecting that Letby, who was present when these events happened, was responsible.

After further deaths in late June 2016, Letby was removed from neonatal duty. Around the same time, the hospital management downgraded the unit, so that it stopped taking the most premature babies with the highest risk of mortality. The number of deaths fell thereafter.

Fearing that Letby would be allowed to return to the unit, consultants went to Cheshire police in April 2017, and triggered what would become the largest British child murder investigation of modern times.

Concerns over evidence


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The initial trial lasted 10 months.

Much was made of notes written by Letby. Despite these saying: “I AM EVIL I DID THIS” and “I killed them on purpose because I am not good enough”, which the prosecution relied upon as amounting to a confession, she has never formally made one.

The notes also included the words: “Kill myself right now … hate my life, fear, panic, despair, WHY ME? I haven’t done anything wrong,” suggesting a state of extreme distress.

There was no apparent motive and no psychological background that matched a serial killer.

Over many weeks through last year’s trial, doctors and nurses involved in the care of the babies explained reams of clinical notes made at the time.

Underpinning this circumstantial evidence were complicated medical opinions presented in court by six expert witnesses. Two others made written statements on specific points.

It is this medical evidence that is at the heart of the concerns voiced to the Guardian, aspects of which have been said to be “implausible” or “medically inaccurate”.


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Those who spoke to the Guardian did not do so lightly. Many babies died or collapsed and families have suffered for years.

Several people who voiced their concerns also recognised that they did not sit through the proceedings and did not have access to the extensive case notes used by the expert witnesses – though, during the long trial, detailed accounts of the medical histories of each baby emerged.

They were also aware that several of their questions about evidence had been raised by Letby’s defence in her trial and as core elements of her applications to appeal. Last week, the appeal court – the second highest in the land – published a detailed account of why three judges had strongly rejected all of them. And yet many continued to be sceptical.

Hall is one of those. He provided expert opinion for the defence. He saw the CoC case notes, wrote a detailed report and was at the trial every day bar a couple of half days. His opinion was not heard by the jury as he was not called to give testimony. He does not know why.

He told the Guardian that he was deeply troubled by the case: “With regard to the medical evidence, I don’t think the prosecution proved she was guilty beyond reasonable doubt. I don’t think she had a fair trial because no medical expert witness was called for the defence to challenge the prosecution expert medical evidence.”

The insulin poisoning verdicts

The prosecution alleged there were two principal ways in which Letby inflicted harm: insulin poisoning and injecting air into babies to cause a fatal air embolism.

Letby was found guilty of sabotaging two babies by giving them synthetic insulin, causing them to suffer dangerously low blood sugar levels (hypoglycaemia).

The insulin cases were the first on which the jury reached a verdict, of attempted murder, and they were unanimous. Both babies survived.

Judge Goss directed the jury that if they concluded that Letby had deliberately harmed babies one way, they could also conclude that she had inflicted deliberate harm on others, even if jurors were not certain of her methods.

The prosecution presented two test results, the only empirical scientific evidence in the case. An expert witness in court – who, when approached by the Guardian, said he could not comment – said the test results indicated that a steady flow of synthetic insulin had been administered. Biochemists testified in court that the lab that conducted them was accurate and working well.

But while the test results had provided a helpful clinical guide for diagnosing hypoglycaemia, the type of test used does not measure insulin itself. Instead it measures antibodies to insulin and can cross-react with other molecules.

Several experts challenged the use of results from this type of immunoassay test as evidence of crime, including the forensic scientist Prof Alan Wayne Jones, who is one of Europe’s foremost experts on toxicology and insulin. He has written about the limitations of immunoassay tests in criminal convictions, and said they needed to be verified by a more specific analytical method to provide binding evidence in criminal cases.

The defence never asked the biochemists whether the test was the right kind to prove insulin poisoning.

This and what people felt were fundamental errors in interpreting the insulin results were raised in detailed papers submitted to the court of appeal by a group of experts, including a consultant neonatologist, a medico-legal expert, a chemical process engineer and a former public health director. Their intervention was rejected as inadmissible and not considered by the court.

Air embolism


The lead expert witness called by the prosecution was Evans. He left clinical practice in 2009, but has more than three decades’ experience working in the courts and became a consultant paediatrician in his early career. He helped establish a specialist neonatal unit in Swansea in the 1980s.

Letby’s counsel, Ben Myers, applied to have Evans’s evidence dismissed. Among his arguments were that Evans had failed to be impartial and that he had constructed theories designed to support the charges. The trial judge and the court of appeal judges strongly rejected the criticisms, ruling that Evans did not lack impartiality and was well-qualified to give an opinion. They agreed it was for the jury to assess the quality of his evidence.

Evans strongly rejected any suggestion he was biased. “One’s role as a witness is to consider all possible scenarios,” he said, and then to advise the court based on “one’s own experience and other supporting evidence”.

Evans’s analysis concluded that seven babies had been harmed by injecting air into them, causing or contributing to their collapse and death. In some cases, he said injecting air to cause dangerous air embolism was the sole mechanism of murder; in others, he gave additional causes of harm such as deliberate trauma to the liver, or deliberate overfeeding.

There were two parts to his reasoning on air embolism. His opinion was that babies had either had air injected into their stomachs via the tiny feeding tube that newborns often have inserted through the nose, or into their bloodstream through various lines and catheters.

Other prosecution expert witnesses largely agreed with Evans’s opinion on this. But the idea that injecting air into the stomach via a nasogastric tube could cause collapse leading to death was described as nonsensical or “rubbish”, “ridiculous”, “implausible” and “fantastical”, by eight separate expert clinicians who spoke to the Guardian, seven of them specialising in neonatology.


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Several said it was not practically feasible. Nasogastric tubes are tiny; it would take several refills using the 10ml syringes on neonatal units to inject a significant quantity of air. Furthermore, it would leak out or the baby would burp or vomit it up, or pass it as wind, they said.

Evans said: “It was a phenomenon I had never encountered previously.” He added that without the full clinical records, others could not comment objectively.

The other half of Evans’s opinion on air embolism was that air was injected into babies’ veins to cause harm. This opinion was accepted as a cause or contributory factor by the jury in five murder verdicts. In some cases, the prosecution said babies had been harmed by both methods.

Evans’s view drew on skin discolorations observed in several of the babies. He referenced a 1989 academic paper by Drs Lee and Tanswell on air embolism in the bloodstream in babies. That paper described skin discoloration that indicated air embolism in babies caused by high-pressure ventilation – quite different circumstances to allegedly injecting air at normal pressure. A second expert witness, Dr Sandie Bohin, reached similar conclusions.

The surviving author of that paper, Dr Shoo Lee, who retired recently from a career as one of Canada’s top neonatologists, was not called by the defence for the first trial but he did give expert testimony in Letby’s appeal in April. Lee said that in his view none of the descriptions of the babies’ skin discolorations used by the prosecution witnesses matched the kind that characterised air embolism.

Lee’s testimony was not admissible by the court of appeal, with the judges saying the defence could have called him in the trial. The judges added that the prosecution’s expert witnesses did not solely rely on skin discoloration to indicate the condition.

Questions over use of statistics


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Sir David Davis MP used parliamentary privilege to tell the House of Commons in May about a 13,000-word article in the New Yorker magazine about “the Lucy Letby trial, which raised enormous concerns about both the logic and the competence of the statistical evidence”. The US publication reported what British media were also hearing from experts but could not cover while the retrial was pending.

A key plank of the prosecution was that it was always Letby who was there when the babies collapsed or died unexpectedly.

The jury was shown a chart listing 25 deaths and collapses Letby was charged with and the names of the nurses who had worked on the unit through the period of the cluster of deaths. The column for Letby was marked with a cross for every incident, whereas other nurses had only been on shift for a few of them.

However, the jury was not told about six other deaths in the period with which Letby was not charged. They were omitted from the table.

The medical director of the unit, Dr Stephen Brearey, had originally pointed out the statistical coincidence to hospital management, whose response had been that it was just that: a coincidence.

One of the most senior consultant paediatricians at the hospital, Dr John Gibbs, had similar doubts when colleagues at the same time were pointing the blame at Letby, a leaked email shows. He wrote to his fellow clinicians in early July 2016: “The increase in neonatal mortality that we have experienced over the last 18 months might be within ‘expected’ statistical variance (but I’m not sure because my stats isn’t good enough). You might feel that this must be wrong, but it’s all to do with the statistics of small numbers.”


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Gibbs, who was a witness of fact in both trials, has accepted foul play. When approached by the Guardian, he said he could not discuss the case in detail, but added that the concern was not only based on the shift chart but also “on the unexpected and unusual nature of many of the deaths”.

In September 2022, the Royal Statistical Society warned that murder accusations in healthcare settings had repeatedly been based on fallacious use of statistics. Its chief executive at the time, Stian Westlake, said some RSS members saw the Letby case as one that could repeat the mistakes of the past.

John O’Quigley, a professor of statistical science at University College London, said: “People get the wrong end of the stick with statistics. In my opinion there was nothing out of the ordinary statistically in the spike in deaths, and all the shift chart shows is that when Letby was on duty, Letby was on duty.”

Richard Gill, an emeritus professor of mathematics at Leiden University in the Netherlands, was involved in two cases similar to Letby’s in which statistical coincidence was wrongly used in part to convict two nurses of murdering their patients: Lucia de Berk, a neonatal nurse in the Netherlands, and Daniela Poggiali in Italy. Their convictions were eventually quashed, thanks in part to Gill’s contributions.

Gill, who has drawn much criticism for pointedly posting on social media during the trial that the Letby shift table was meaningless and that she had suffered a miscarriage of justice, said: “The police investigation and crown prosecution made all the mistakes the RSS warned about. Nobody studied the statistics in a professional way.”

The police said it was not appropriate to comment when further investigations were continuing. The CPS said two juries and four appeal court judges had reviewed the evidence against Letby. “The court of appeal rejected her argument that expert prosecution evidence was flawed,” a spokesperson said.

Could there be other explanations for the deaths?

In autumn 2016, after the royal college report, Dr Jane Hawdon, the lead consultant neonatologist at the Royal Free hospital in London, looked at the cluster of deaths and collapses. Her review did not look at all the clinical notes, but leaked documents seen by the Guardian suggest that in 13 of the cases Hawdon reviewed she found the babies had received suboptimal care and the “death/collapse is explained but may have been prevented with different care”.

In four of the cases, the “death/collapse was unexplained” and she advised a deeper forensic review. The Guardian understands that another consultant neonatologist did then review the cases that were unexplained. Evans said her findings differed from his. She declined to comment.

CoC said it was unable to comment while other investigations and an inquiry were continuing.

Hall, the expert for the defence, said that in his view the prosecution witnesses “exaggerated how well arguably all the babies who sadly died were”, a point denied by Evans. Hall questioned the plausibility of air embolism, and said six of the seven babies found to have been murdered had postmortems at Alder Hey hospital, a centre of excellence. These pathologists had had the advantage of physically examining the babies and reported no unnatural findings.

Evans said the defence could have called expert witnesses to challenge his and others’ opinion in court but they did not.

The defence team declined to comment.

Story tips?

Do you have information about this story? Email investigations.contact@theguardian.com, or (using a non-work phone) use Signal or WhatsApp to message +44 7721 857 348. For the most secure communications, use SecureDrop or see our guide.

Many of those who spoke to the Guardian felt strongly about their concerns, but few knew where to take them. It is understood that several complaints focusing on the evidence given in the trial have been put into the medical regulator, the General Medical Council, by some who wanted to have their concerns recorded.

Dr Svilena Dimitrova, an NHS consultant neonatologist who is part of the government-appointed Ockenden review investigating deaths and harm allegedly caused to dozens of babies in Nottingham University NHS hospital trust, is one of five who the Guardian understands has approached the GMC in relation to evidence given by Evans. She said she took this step having been approached by multiple consultant neonatologists and paediatricians, and specialist neonatal nurses, who flagged up their concerns to her but were frightened to go public.

She said that in her opinion, “the theories proposed in court were not plausible and the prosecution was full of medical inaccuracies. I wasn’t there, so I can’t say Letby was innocent, but I can see no proof of guilt”.

“There are fundamental flaws in the justice system when it comes to prosecuting healthcare professionals, which mean that it does not address systemic NHS failures and blames individuals instead … The information presented to court was flawed and not proof of guilt beyond doubt,” she added.

Roger Norwich, a medico-legal expert with an interest in paediatrics and newborns, has also made complaints to the GMC. He has put in a complaint about Evans, and has also put in a complaint about the second witness, Bohin. He said he thought both had failed to provide balanced, impartial views, instead giving the court “opinions that would not be supported by most doctors”. Both Dimitrova and Norwich said they had not yet received a response to their complaints from the GMC.

Anyone can make a complaint to the GMC if they have concerns about a doctor, but most are not investigated by the regulator.

Neither Dimitrova nor Norwich had access to the full clinical notes.

Bohin responded to the issues raised: “Everyone is entitled to their opinion, yet not everyone had access to all of the information in this case. I did and this informed my reports and subsequent opinions.”

Evans said he had never been told of any medical inaccuracies and was not aware of the GMC complaints until he was contacted by the Guardian. He described them as vexatious in an article in the Sunday Times. He told the Guardian: “My opinion was based on evidence. If they have not seen the original documents, their opinion is based on opinion.”

He added: “It is understandable that a trial of this sensitivity will create conflicts of views. Wanting to shoot the messenger is not an unsurprising response, especially given the criminal justice system’s record of miscarriages of justice.”

Like Gill, Prof John Ashton, a former public health director, became exercised about Letby’s trial before it was finished. He had blown the whistle on a cluster of baby and maternal deaths at the Morecambe Bay hospitals when he was regional director of public health for the north-west of England. His direct experience, with the Morecambe Bay scandal, is that human instinct drives people to look for someone or something to blame, but the root causes are often more complicated and numerous.


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“You don’t need a serial killer to account for what happened at Chester. Disasters, and this was a disaster, generally happen as a result of the convergence of a number of factors … We’re talking in Chester about system failure – it was a hospital that was not well run, that had ambitions beyond its capability, that had problems with clinical governance and environmental problems.”

He added: “The arguments about Lucy Letby herself boil down to the fact that circumstantial evidence, and statistical and expert witness evidence that I believe was seriously flawed, were presented to the court.”

The entire story can be read at:

https://www.theguardian.com/uk-news/article/2024/jul/09/lucy-letby-evidence-experts-question


PUBLISHER'S NOTE:  I am monitoring this case/issue/resource. 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.

  • SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:


    https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985


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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;