Wednesday, June 16, 2021

Toronto Star Probe: Chief Investigative Reporter Kevin Donovan's five-part anatomy of an investigation into the death of a little boy: It is called 'Death in a small town' - and is loaded with unanswered questions. Link provided to all five parts.


LINK TO THE TORONTO STAR'S  INTRIGUING FIVE PART SERIES: (Published today):

child-death-investigation.html

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PUBLISHER'S NOTE: A lack of focus on certain injuries, their timing, and a strong focus on the parents, are just two of the questions raised in the Star probe. Although five years have passed, a cloak of secrecy surrounds the case, which has been categorized as 'open.' Of particular interest to this Blog  is thee role played in the case by The Hospital for Sick Children which gave us  disgraced pathologist Charles Smith and the now-shuttered 'Motherisk' drug testing lab - both responsible for destroying so many lives. The series notes that the Ontario Provincial Police (OPP)  sent "case records' to the hospital in 2018, requesting "a further medical investigation from a paediatrician" to assist with the investigation. (The Hospital's  report was reportedly provided to the OPP a year ago.)  That document appears to be under wraps as well. All my instincts tell me that this case,   and the litigation around it will be of great interest -  especially with  my former Toronto Star colleague Kevin Donovan, a very able investigative reporter,  digging in. I will be following developments closely.

Harold Levy: Publisher; The Charles Smith Blog.

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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;

Dental Age Identification: (An odious, scientifically untenable practice used by U.S.Immigration and Customs Enforcement on children): Important Development: The Innocence Project has joined other groups ceasing an immediate end to the practice of forced dental radiography and attendant “age estimation” imposed on children, many of whom are seeking asylum... "These procedures are typically requested by Immigration and Customs Enforcement to wrongly and erroneously reclassify children as adults, which often leads to children being placed in detention with adults and possibly deported. The procedures are not initiated or intended for any diagnostic, treatment, or other health-related purpose (or other benefit) for the children."


PASSAGE OF THE DAY: "These “age estimation” practices not only have been found scientifically untenable by judicial tribunals in the U.S. and in Europe, but also grossly violate children’s common law and constitutional rights, and the basic right to bodily integrity. Dental age estimation procedures, depending on the circumstances in which they are authorized or performed on these children, also contravene medical and dental ethical obligations. In short, there is no justification for using these questionable techniques on young asylum seekers, the majority of whom come from developing countries and are particularly vulnerable."

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RELEASE: "The Innocence Project joins immigrant groups in demanding that the University of Texas stop unlawful use of 'dental age estimation' published by The Innocence Project on June 14, 2021. (Thanks to Dr. Michal Bowers of CSIDDS: Forensics and Law in Focus for bringing this release to our attention. HL). 

SUB-HEADING: "The majority of cases involved children who were considered adults and wrongfully detainees."

GIST: "The Innocence Project joined a diverse group group of immigrants’ rights organizations, criminal justice reform advocates, and others to demand that the University of Texas Health Science Center at San Antonio immediately cease and desist from their practice of forced dental radiography and attendant “age estimation” imposed on children, many of whom are seeking asylum. These procedures are typically requested by Immigration and Customs Enforcement to wrongly and erroneously reclassify children as adults, which often leads to children being placed in detention with adults and possibly deported. The procedures are not initiated or intended for any diagnostic, treatment, or other health-related purpose (or other benefit) for the children. 

Many of these children have documentary evidence that makes them readily identifiable as legal minors under the age of 18, in the form of a passport, valid birth certificates, or baptismal certificates, in addition to representations by their family members and themselves as to their ages. Despite such proof, immigration officials often dispute a child’s age and seek procedures to reclassify the child as an adult, which leads to the loss of heightened legal protections the law gives to children. Indeed, the Innocence Project has collaborated with immigrants’ rights’ organizations in 16 individual cases in which an asylum-seeking individual was deemed to be an adult. In 15 of these cases, our clients were, in fact, children who were wrongfully jailed in adult detention centers.  

These “age estimation” practices not only have been found scientifically untenable by judicial tribunals in the U.S. and in Europe, but also grossly violate children’s common law and constitutional rights, and the basic right to bodily integrity. Dental age estimation procedures, depending on the circumstances in which they are authorized or performed on these children, also contravene medical and dental ethical obligations. In short, there is no justification for using these questionable techniques on young asylum seekers, the majority of whom come from developing countries and are particularly vulnerable."

The entire story can be read at:

https://innocenceproject.org/innocence-project-demands-university-stop-use-of-dental-age-estimation/

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;

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;

Carlos DeLuna: Texas: Flawed identification and much more: Reporter Khaleda Rahman, Newsweek:The 'Phantom: A new documentary being released in U.S. theaters nationally on July 2..."Carlos de Luna documentary details evidence that Texas executed an innocent man."... "On December 7, 1989, Carlos DeLuna was executed by the state of Texas for the brutal murder of a convenience store clerk named Wanda Lopez. But from the moment he was arrested at age 20 until his dying breath, DeLuna maintained he was an innocent man. He did not stab Lopez, he said, but he knew who did: a friend named Carlos Hernandez, a violent criminal who looked so much like DeLuna that even their friends and family members confused pictures of one for the other."...After working on The Phantom for eight years, Forbes says he is now "absolutely, completely" convinced that DeLuna was innocent. "Because it's such a human set of things that the film reveals," he said. "You can see exactly why this happened." Race was an important factor in how the case played out, he said. "Corpus was then a very violent, very dangerous town, and it had within it, a strata of poor Hispanic families who the cops were just not going to exert themselves over whether you were the victim, or indeed the perpetrator," Forbes said. "And all three people caught up in this horrible story had the misfortune of being poor and Hispanic." DeLuna was "the wrong guy in the wrong place, but he also had the wrong identity and the wrong class, so the cops did the sloppiest possible job," Forbes added."


The Phantom -  a new documentary takes viewers back to Corpus Christi and details the evidence purporting to show Texas put an innocent man to death, and left the real culprit at large... It will be released in theaters nationwide on July 2. Visit the Columbia DeLuna Project's website for more information about the case."

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PASSAGE ONE  OF THE DAY: "At the trial, the lead prosecutor said Carlos Hernandez was "a phantom." He was convicted, based on a single cross-ethnic eyewitness identification and no corroborating forensic evidence. Both state and federal courts upheld DeLuna's death penalty on appeal, also concluding that Carlos Hernandez didn't exist. Now, more than 30 years after DeLuna received the lethal injection, a new documentary takes viewers back to Corpus Christi and details the evidence purporting to show Texas put an innocent man to death, and left the real culprit at large."

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PASSAGE TWO OF THE DAY: In The Phantom, Liebman explains how he had set out to investigate flaws in the death penalty in 2004 when a student suggested looking into the DeLuna case. Liebman asked a private investigator to look for evidence of Carlos Hernandez in Corpus Christi—and his criminal records were unearthed in a matter of hours. Some of their findings were shared with Chicago Tribune reporters, who in 2006 reported details that indicated DeLuna may have been wrongfully executed.  According to the newspaper, five people said Hernandez had bragged about killing Lopez, and that his "tocayo"—namesake—had taken the fall.  "He said he was the one that did it, but that they got somebody else—his stupid tocayo—for that one," said Dina Ybanez, Hernandez's former landlady who appears in The Phantom."


STORY: "Carlos DeLuna documentary details evidence that Texas executed an innocent man," by Khaleda Rahman, published by Newsweek on June 2, 2021.

GIST: "On December 7, 1989, Carlos DeLuna was executed by the state of Texas for the brutal murder of a convenience store clerk named Wanda Lopez. But from the moment he was arrested at age 20 until his dying breath, DeLuna maintained he was an innocent man.


He did not stab Lopez, he said, but he knew who did: a friend named Carlos Hernandez, a violent criminal who looked so much like DeLuna that even their friends and family members confused pictures of one for the other.


On the stand, DeLuna pointed the finger at Hernandez, saying he had seen him struggling with Lopez, a 24-year-old single mother, inside the Sigmor Shamrock gas station's store in Corpus Christi, Texas, on the night of February 4, 1983.


Hearing police sirens and fearing his criminal history would make him a suspect, DeLuna said he fled. He hid under a pickup truck not far from the scene until police arrested him a short time later.


At the trial, the lead prosecutor said Carlos Hernandez was "a phantom." He was convicted, based on a single cross-ethnic eyewitness identification and no corroborating forensic evidence.


Both state and federal courts upheld DeLuna's death penalty on appeal, also concluding that Carlos Hernandez didn't exist.


Now, more than 30 years after DeLuna received the lethal injection, a new documentary takes viewers back to Corpus Christi and details the evidence purporting to show Texas put an innocent man to death, and left the real culprit at large.


The Phantom lays out how "everything that could go wrong, did go wrong" for DeLuna, the film's BAFTA-winning director Patrick Forbes told 

It also reveals new testimony supporting DeLuna's innocence claim, as well as interviews with people connected to the case who have never spoken publicly about it before, including the prosecutors.


The film is based on "Los Tocayos Carlos: Anatomy of a Wrongful Execution," a groundbreaking investigation by a team of Columbia Law School students led by Professor James Liebman. Their 400-plus page report on DeLuna's case took up an entire edition of the Columbia Human Rights Law Review in 2012 and was later published as a book called The Wrong Carlos.


In The Phantom, Liebman explains how he had set out to investigate flaws in the death penalty in 2004 when a student suggested looking into the DeLuna case. Liebman asked a private investigator to look for evidence of Carlos Hernandez in Corpus Christi—and his criminal records were unearthed in a matter of hours.


Some of their findings were shared with Chicago Tribune reporters, who in 2006 reported details that indicated DeLuna may have been wrongfully executed. 


According to the newspaper, five people said Hernandez had bragged about killing Lopez, and that his "tocayo"—namesake—had taken the fall. 


"He said he was the one that did it, but that they got somebody else—his stupid tocayo—for that one," said Dina Ybanez, Hernandez's former landlady who appears in The Phantom.


Several people who knew Hernandez said he also admitted to killing another woman, Dahlia Sauceda, in 1979. He was questioned and indicted in that murder, but never taken to trial.


Then, after years of meticulous research, Liebman and his team's 2012 report concluded DeLuna was almost certainly innocent of the crime he was executed for.


But Forbes said that while the Columbia report was "incredibly convincing" and lay the groundwork for The Phantom, he headed to Corpus Christi with an open mind.


Soon, the "secrets came tumbling out," he said. "This is a story that has plagued this town for 30 years... everybody knows that there's something wrong here."


Forbes managed to secure interviews with several people who have never spoken on the record before, including Bruno Mejia Jr., a police officer who was at the scene of DeLuna's arrest back in 1983.


Mejia confirmed that he suspected there had been two men at the gas station that night, based on the descriptions heard on radio traffic.


And it was while Forbes and his crew were filming with Mejia in the place where DeLuna was arrested that they were approached by a man named Raymond Nunez, who said he had witnessed two men running from the scene of the attack that night, corroborating DeLuna's story.


"He was a kid at the time. He never talked to the police because the police didn't think to do an extensive house-to-house because they thought they'd got the guy," Forbes said. "The whole original defense was there was not one man, Carlos DeLuna, as the prosecution hinted, there were two. Here was the first eyewitness saying, 'Yeah, there were two.' And that's absolutely crucial."



Forbes said he questioned Nunez multiple times, and he repeated the same story every time. Nunez even mentioned an incidental detail—that he had been watching Jaws on television when he heard a commotion outside—prompting producers to dig up listings from that night.

"Sure enough, at exactly the time he said... they were showing Jaws," Forbes said. "In every respect, this guy checked out."


After working on The Phantom for eight years, Forbes says he is now "absolutely, completely" convinced that DeLuna was innocent. "Because it's such a human set of things that the film reveals," he said. "You can see exactly why this happened."


Race was an important factor in how the case played out, he said.

"Corpus was then a very violent, very dangerous town, and it had within it, a strata of poor Hispanic families who the cops were just not going to exert themselves over whether you were the victim, or indeed the perpetrator," Forbes said. "And all three people caught up in this horrible story had the misfortune of being poor and Hispanic."


DeLuna was "the wrong guy in the wrong place, but he also had the wrong identity and the wrong class, so the cops did the sloppiest possible job," Forbes added.


But one element that Forbes said he couldn't definitively pin down was that Hernandez had been a police informant. "But we've got enough testimony from people saying it, that I would have to agree with that it must have contributed in some way," he said.


DeLuna's misfortunes continued, Forbes said, when his appeals process was squeezed down to just six years, and evidence that could have helped him was not handed over to his appeals attorney.


It was only by "a twist of fate" that Liebman started researching the case 14 years after he was executed, Forbes said.

But although the Columbia investigation caused a stir when it was published, Texas has never issued DeLuna a pardon or even acknowledged that a mistake may have been made.


"Amidst the many things that I hope happen as a result of this film, I really hope that's one of them," Forbes said.


He also hopes the film will bring an "acknowledgement that the death penalty just has no place in a civilized society."


"You cannot have a death penalty if you have an imperfect judicial system because you are going to kill innocent people, and that is exactly what appears to have happened," he said.


Coinciding with the film's premiere at the Tribeca Film Festival later in June, a new petition will call on President Joe Biden to commute all inmates on federal death row. "Since 1973, at least 185 people across the U.S. have been wrongly sentenced to death and exonerated," the petition states. "But those are just the cases we know of—for some, like Carlos DeLuna, the truth emerged too late and an innocent person was executed."

"If the president does embrace this petition, then it might mean Carlos DeLuna's tragic death was not entirely in vain," Forbes said.


The Phantom's release comes at a time when support for the death penalty in the U.S. is waning—as evidenced by a 2019 Gallup poll—and after an unprecedented spree of federal executions in the final months of Donald Trump's presidency.


Meanwhile, Texas, the nation's busiest death penalty state, has come under fire after the May 19 execution of Quintin Jones went ahead without any media witnesses.


"Not only that, but recent mistakes in administering the poisons that killed people so that they die in agony, go to reinforce the film's central point: the death penalty has no place in a civilized society," Forbes said.


"One of the things that the film reveals is not only was Carlos innocent, but he died the most horrendous death precisely because of the mistake that has happened again and again.


"The drugs didn't work in the order that they were supposed to, so he was alive as the poisons were injected into his body, meaning that he died in unbelievable agony."


Hernandez died of cirrhosis of the liver in a Texas prison in 1999.


Forbes said his film is about the fallibility of the U.S. justice system, but it's also about truth.


"What is the truth? Because you can see a man hiding under a truck and you think he has to be guilty, and then you slowly learn that he is absolutely not," he said.

"It's a cry to end the death penalty, but it's also a cry to give a second look to fact and a second look to people who society all too often regards as disposable."


DeLuna himself spoke about truth in a television interview while on death row. "Maybe one day, the truth will come out," he said. "I'm hoping it will."


The entire story can be read at:

https://www.newsweek.com/carlos-deluna-documentary-texas-executed-innocent-man-1596401

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;

Tuesday, June 15, 2021

DC Crime Lab: "Prosecutors are 'deeply troubled' by the beleaguered lab's appeal of its withdrawn accreditation, WTOP (Reporter Jack Miller) reports... "As the D.C. Department of Forensic Sciences challenges allegations of fraud in an attempt to win back its accreditation, federal prosecutors contend the crime lab is still failing to acknowledge some of the “significant issues” that led to the withdrawal of its accreditation in the first place. In a June 11 letter to the ANSI National Accreditation Board (ANAB), Acting U.S. Attorney Channing Phillips said his office is “deeply troubled by DFS’s lack of transparency and its unwillingness to address its failure to disclose material information” to prosecutors and the accrediting board about the withholding of conflicting conclusions reached by its examiners in a murder case."


BACKGROUND: "Though popular television shows associate crime labs with science and accuracy, all too often, quality control systems in real-world crime labs are too weak to identify mistakes and fraud, and management is unable or unwilling to address institutional shortcomings. When this happens, innocent people go to prison. The recent experience of the D.C. Department of Forensic Sciences (DFS) is a case in point, and it has the makings of a mass disaster."

Brandon Garrett and Julia Leighton. "Ignoring deep-seated problems at DC Criminalizing eLab  will cost lives and taxpayers," published by The Washington Post on  June 11, 2021.

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PASSAGE OF THE DAY: "The audit team first reported in March it had uncovered evidence the D.C. lab apparently concealed conflicting findings during the reexamination of evidence from two 2015 killings, and may have pressured an examiner to change his finding to “inconclusive” in the matter.  Prosecutors maintain the evidence is not inconclusive, and that at least four outside experts have looked at the evidence and concluded that casings found at each of the two scenes were not fired from the same gun. As a result of the audit report’s findings, ANAB first suspended and later withdrew the lab’s accreditation."

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QUOTE OF THE DAY: "The D.C. Public Defender Service, which represents people in D.C. Superior Court who cannot afford lawyers, is often critical of the U.S. Attorney’s Office and has long held that prosecutors long enjoyed “outsized access and influence” over the lab. But it has also signaled alarm at the audit team’s findings and dissatisfaction with the lab’s appeal to the accrediting board. “The appeal document does not adequately address the off-the-books examinations and cherry-picked results that DFS chose to release while it was examining this ballistics evidence,” Jessica Willis, PDS special counsel for forensics, told WTOP in an email last week. “PDS remains deeply concerned that the failed quality control systems in place at DFS may have led to wrongful prosecutions and wrongful convictions of our clients.”

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STORY: "Prosecutors 'deeply troubled' by DC Crime Labs appeal of withdrawn accreditation," by Reporter Jack Miller, published by WTOP on July 14, 2021. (Jack Moore joined WTOP.com as a digital writer/editor in July 2016.)

 GIST: "As the D.C. Department of Forensic Sciences challenges allegations of fraud in an attempt to win back its accreditation, federal prosecutors contend the crime lab is still failing to acknowledge some of the “significant issues” that led to the withdrawal of its accreditation in the first place.

In a June 11 letter to the ANSI National Accreditation Board (ANAB), Acting U.S. Attorney Channing Phillips said his office is “deeply troubled by DFS’s lack of transparency and its unwillingness to address its failure to disclose material information” to prosecutors and the accrediting board about the withholding of conflicting conclusions reached by its examiners in a murder case.


The letter was also filed in D.C. Superior Court and first became publicly available Monday.


Last month, the D.C. lab filed a formal 18-page appeal with the accrediting board, claiming it never deliberately concealed information and raising what it called “documented, undisclosed and fatal” conflicts of interest by members of the three-person audit team assembled by the U.S. attorney’s office and the D.C. attorney general’s office to probe the casework error.


The audit team first reported in March it had uncovered evidence the D.C. lab apparently concealed conflicting findings during the reexamination of evidence from two 2015 killings, and may have pressured an examiner to change his finding to “inconclusive” in the matter. 


Prosecutors maintain the evidence is not inconclusive, and that at least four outside experts have looked at the evidence and concluded that casings found at each of the two scenes were not fired from the same gun.


As a result of the audit report’s findings, ANAB first suspended and later withdrew the lab’s accreditation.


Letter: ‘Competing and changing conclusions’ never disclosed:

In their letter to the board, prosecutors note the lab’s appeal does not explain why multiple examinations of the same disputed cartridge casings were never documented or disclosed by the lab.


Overall, five different DFS examiners looked at the disputed evidence over the span of several days in late April and early May 2020 and apparently came to three different conclusions, including a finding of “inconclusive,” which prosecutors contend — based on interviews with DFS staff — was not based on science but, in part, because the lab was faced with so many conflicting findings by its own examiners.


“It should be a simple principle that when a forensic lab analyzes evidence in a criminal case, the lab must do so impartially and reliably, and the lab must provide complete and accurate documentation of those examinations to the government,” the prosecutors’ letter stated. “However, in the homicide case at issue in the Audit Report, DFS had multiple examiners examine evidence without documentation, and reach competing and changing conclusions, without ever informing the government.”


One of the examinations — in which prosecutor said the examiner erroneously matched the two sets of casings to the same firearm — was only documented in an email the examiner sent to herself and never turned over to prosecutors even under the subpoena, the letter stated.


The letter added: “In its Appeal, DFS does not explain why multiple analyses were done without documentation or why it did not disclose those analyses to the government or ANAB. To move forward, it will be important for DFS to recognize the impropriety of this approach and ensure it does not happen again.”


Also at issue: An April 2020 PowerPoint presentation by a firearms unit supervisor and examiner that concluded the disputed cartridge casings were not fired by the same gun — the only finding the prosecutors say is scientifically sound — was not disclosed by the lab, and only turned up when prosecutors subpoenaed the lab to share information.


The firearms unit supervisor later told investigators that despite that finding, management decided to report to its accrediting board a finding of inconclusive.


The prosecutors’ letter contains new excerpts from the supervisor’s interview with investigators. The supervisor “explained that the issue was DFS had disagreements between examiners that they could not explain.” And the head of the firearms unit and the head of the agency’s forensic science laboratory both said something to the effect of “Why put ourselves out there, if inconclusive is an appropriate answer?”


The supervisor, who has since left the agency, also told investigators that DFS management were concerned by the PowerPoint’s finding that the casings were not fired from the same gun because “it showed DFS had made a mistake” and that DFS management later “engaged in answer shopping, looking for consensus.”


For their part, prosecutors say the evidence is clear-cut that the two sets of cartridge casings exhibited “fundamentally different” markings and could not have been fired in the same gun.


 Based on the lab’s own case notes, one of the sets of casings has “wavy check marks” on its breech face and the other set has “parallel lines,” the letter noted.


Prosecutors: Criticism of auditors ‘unfounded’:

The letter from prosecutors also addresses the criticism the lab lodged against the auditors, which the letter calls “unfounded.”


“Rather than address the serious issues in transparency described above, DFS focuses its Appeal on attacking” the audit report and the audit team, the letter stated. “This approach is unfortunate and does not advance the goal of identifying and remedying the serious issues identified in the report.”


For example, the lab’s appeal suggested Dr. Bruce Budowle, a University of North Texas professor and one of the most widely-published experts in the field, may have had an axe to grind because he was not hired as DFS director in 2015 when the city was seeking a new lab director.


“DFS’s attempts to cast aspersions on two of the three USAO-DC/OAG auditors are also a diversion,” the letter stated. “The Audit Report in large part merely summarizes DFS documents, so it is unclear why perceived biases of the auditors would even be relevant.


The letter defended auditors as having “strong credentials and combined wealth of experience in leading and auditing forensic laboratories and in the field of firearms and toolmark examination.”


ANAB is expected to hold a nonpublic hearing by August, at which DFS can further present its appeal. Then, a panel of ANAB auditors will deliberate behind closed doors about whether to reverse its decision to strip the lab’s accreditation.


The letter from prosecutors indicates the ANAB accreditation board provided prosecutors with the opportunity to respond to the lab’s appeal.


The D.C. Public Defender Service, which represents people in D.C. Superior Court who cannot afford lawyers, is often critical of the U.S. Attorney’s Office and has long held that prosecutors long enjoyed “outsized access and influence” over the lab. But it has also signaled alarm at the audit team’s findings and dissatisfaction with the lab’s appeal to the accrediting board.


“The appeal document does not adequately address the off-the-books examinations and cherry-picked results that DFS chose to release while it was examining this ballistics evidence,” Jessica Willis, PDS special counsel for forensics, told WTOP in an email last week. “PDS remains deeply concerned that the failed quality control systems in place at DFS may have led to wrongful prosecutions and wrongful convictions of our clients.”


Former DFS Director Dr. Jenifer Smith resigned late last month after mounting calls for her to step down, and D.C. Mayor Muriel Bowser has hired an outside consulting firm to review the lab’s operations."


The entire story can be read at:

https://wtop.com/dc/2021/06/prosecutors-deeply-troubled-by-dc-crime-labs-appeal-of-withdrawn-accreditation/

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;

Beleaguered D.C. Crime Lab: Ignoring its deep-seated problems will cause lives and tax-payers, say two authorities who ought to know - Brandon Garrett and Julia Leighton: So when they opine that the department's ongoing fiasco has "the makings of a mass disaster," we had better pay attention. PS: Garrett just happens to be author of the recently published, “Autopsy of a Crime Lab: Exposing the Flaws in Forensics.”


PASSAGE ONE  OF THE DAY: "Though popular television shows associate crime labs with science and accuracy, all too often, quality control systems in real-world crime labs are too weak to identify mistakes and fraud, and management is unable or unwilling to address institutional shortcomings. When this happens, innocent people go to prison. The recent experience of the D.C. Department of Forensic Sciences (DFS) is a case in point, and it has the makings of a mass disaster."

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PASSAGE TWO OF THE DAY: "The DFS lost its accreditation because it engaged in “misrepresentations and fraudulent behavior” in connection with inconsistent results in a series of firearm examinations. Yet, despite mounting evidence of pervasive mismanagement and structural problems at the lab, the mayor and the D.C. Council have not yet taken serious action to hold all of the DFS leadership accountable and make critical structural changes to reform the lab.  This is a mistake. Ignoring deep-seated management, quality-control and scientific defects will cost lives and cost taxpayers.

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PASSAGE THREE OF THE DAY: "In Massachusetts, tens of thousands of cases are being reopened because of years of unremedied misconduct at two drug labs in the state. In D.C., there have been several DNA exonerations of innocent men who spent decades in prison because of false and exaggerated FBI testimony concerning hair comparisons. The unreliable lab work in those cases was the tip of the iceberg.  When the FBI conducted a landmark audit of all its hair cases, it found 95 percent raised the same scientific defects.  The problems at DFS are chillingly similar." 


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PASSAGE FOUR OF THE DAY: "Innocent men lost decades of their lives behind bars, and the city paid more than $43 million in settlements as a result of faulty hair analysis. Only time will tell the extent of the damage from this DFS scandal, but any delay in vigorously responding will surely increase those damages."


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COMMENTARY: "Ignoring deep-seated problems at DC Crime Lab will cause lives and tax-payers,' by Brandon Garrett and Julia Leighton, published by The Washington Post on June 11, 2021. "Brandon Garrett is director of the Wilson Center for Science and Justice at Duke University. His most recent book is “Autopsy of a Crime Lab: Exposing the Flaws in Forensics.” Julia Leighton is the former general counsel for the Public Defender Service for the District of Columbia. She was a member of the National Commission on Forensic Science, an Obama-era federal advisory committee created to advise the U.S. attorney general, and is a frequent lecturer and consultant on forensic evidence."


GIST: "When injustices occur in criminal cases, our institutions — prosecutors, police departments, crime laboratories — often treat it as a “bad apple” problem. Institutions blame the individual and fail to look within the institution for the root cause.


We are starting to recognize that the actions of “bad apples” are often rooted in systems that fail to account for cognitive bias, shoddy casework, institutional culture, and perverse incentives for employees and managers.


Though popular television shows associate crime labs with science and accuracy, all too often, quality control systems in real-world crime labs are too weak to identify mistakes and fraud, and management is unable or unwilling to address institutional shortcomings. When this happens, innocent people go to prison.


The recent experience of the D.C. Department of Forensic Sciences (DFS) is a case in point, and it has the makings of a mass disaster. 


The DFS lost its accreditation because it engaged in “misrepresentations and fraudulent behavior” in connection with inconsistent results in a series of firearm examinations.


 Yet, despite mounting evidence of pervasive mismanagement and structural problems at the lab, the mayor and the D.C. Council have not yet taken serious action to hold all of the DFS leadership accountable and make critical structural changes to reform the lab. 


This is a mistake. Ignoring deep-seated management, quality-control and scientific defects will cost lives and cost taxpayers.


In Massachusetts, tens of thousands of cases are being reopened because of years of unremedied misconduct at two drug labs in the state.


 In D.C., there have been several DNA exonerations of innocent men who spent decades in prison because of false and exaggerated FBI testimony concerning hair comparisons. The unreliable lab work in those cases was the tip of the iceberg. 


When the FBI conducted a landmark audit of all its hair cases, it found 95 percent raised the same scientific defects.


The problems at DFS are chillingly similar. They began with a firearms comparison, a discipline that raises many of the same scientific issues as hair comparison. As currently practiced, firearms examiners look at fired ammunition and opine on whether it was fired from a particular gun.


An opinion that items were not fired from a particular gun may be rooted in objectivity, such as the bullets are different calibers or cartridge cases bear the markings of differently shaped firing pins. 


However, any identification opinion — which law enforcement may use to link fired ammunition to a suspect gun, or to associate multiple shootings to a common suspect — necessarily involves a subjective process of “matching” markings.



Ammunition fired by different guns may bear indistinguishable marks if the guns were manufactured by the same tool or by sheer coincidence. Thus, practitioners look for “sufficient” matching marks. There are no standards for what degree of matching is “sufficient”; it is up to the examiner eyeballing the patterns and making a call. 


Likewise, there are no standards for when observed differences can be considered insignificant vs. when these differences should lead to the conclusion that two items were not fired from the same gun. This unconstrained subjectivity renders the discipline particularly susceptible to error and bias. The firearms field has failed to implement even basic bias mitigation measures that have been adopted by another pattern matching discipline, fingerprinting, in the wake of an infamous FBI misidentification in which circular reasoning played a role.


Judges across the country have been sounding alarms about current practice of firearms comparison. In United States v. Tibbs, the court found that research on the accuracy of firearms comparisons suffered from serious design flaws such that the court concluded the government could not establish a “known or potential rate of error” for the discipline. 


The judge ruled claims of source identification lack scientific support and limited the testimony the examiner could provide accordingly.


But the problems at the DFS are much broader than just the scientific defects in one discipline.


Public records indicate that troubling information first surfaced in 2017 about the work of the DFS. Yet it was not until late 2019, when the U.S. attorney’s office’s Fraud and Public Corruption (FPC) section received a lead that a firearms examiner had falsified an examination and management had papered over the misconduct, that the U.S. attorney’s office acted. 


The FPC investigation did not produce hard evidence of a falsification but did reveal a slew of troubling problems across examiners. And it was clear that these problems were not the result of a few “bad apples” but instead were systemic and came from the top down.


According to the FPC report, investigators learned that the lab’s legal department was pressured by leadership to shape employee discipline to protect the lab’s reputation and sometimes to protect favored employees’ careers. They learned that mandatory quality assurance procedures allegedly were often ignored, and that dry-labbing (rendering conclusions about evidence without examining the evidence) has occurred. 


The FPC concluded that DFS was plagued by “poor judgment and incompetence” and recommended “a broader review of DFS’s institutional grasp of the importance of integrity issues to its work.”


More recently, a new case, before the same judge who decided the Tibbs case, revealed still more explosive problems. The U.S. attorney’s office asked two private examiners to review the work the DFS had done to connect firearms evidence between two criminal cases. 


These private examiners concluded that the DFS had gotten the comparison wrong. The lab responded by claiming that, in retrospect, the evidence was “inconclusive” because by refusing to commit to an identification or elimination, the lab could now claim its analysis wasn’t “wrong.”


What followed was shocking, including alleged coercion of examiners to change their answers to inconclusive, and allegedly hiding conflicting answers from the courts, the public and their accreditors. This alleged conduct has led to yet another criminal investigation of the lab — an ongoing criminal investigation.


This still-evolving saga shows just how malleable and problematic firearms evidence can be. People can and do disagree about it. The scandal highlights the dangers of “inconclusive” conclusions being used to bury errors, a prescient alarm raised by the judge in Tibbs.


The problems exposed to date demand action. The DFS needs oversight and new leadership committed to scientific integrity. The recent resignation of the director is a start but accomplishes nothing if others are not held to account and structural changes are not made.


And hiring a consulting firm to help the lab reclaim its accreditation also does nothing, given that the lab was accredited when these issues arose. Instead, legislation is needed to require serious quality control, including blind proficiency testing to detect errors and enhanced oversight by independent scientists of the DFS. 


And a commitment must be secured from the U.S. attorney’s office for a transparent review of all closed firearms cases to ferret out the extent of the problems. If these actions are not taken, cost will undoubtedly rise."


Innocent men lost decades of their lives behind bars, and the city paid more than $43 million in settlements as a result of faulty hair analysis. Only time will tell the extent of the damage from this DFS scandal, but any delay in vigorously responding will surely increase those damages."


The entire documentary can be read at:

https://www.washingtonpost.com/opinions/2021/06/11/dc-crime-lab-disaster-council-bowser/

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;