Saturday, December 4, 2021

Dontae Sharpe: North Carolina: Major Development: He's been granted a 'full pardon" - after 26 years of wrongful imprisonment - because he was convicted on the testimony of a woman who later admitted that she had lied... "One of the most fascinating aspects of the Sharpe case, is the the role that police misconduct played in securing Dontae Sharpe's exoneration - failure to inform the pathologist. whose evidence at trial helped secure the conviction, about the false evidence provided by the witness later found to have lied." HL..."An evidentiary hearing was held on May 17, 2019. The state argued that Gilliland’s findings were essentially rehashes of what was said at trial. A week after the hearing, Sharpe’s attorneys amended their motion. They argued that if Gilliland was so clear in her trial testimony that it was impossible for the murder to have taken place the way Johnson described it, then the prosecutor was obligated to correct Johnson’s false testimony. On August 22, 2019, after a second evidentiary hearing, Judge G. Bryan Collins Jr. of Pitt County Superior Court granted Sharpe’s motion for appropriate relief and vacated his conviction. He wrote that Gilliland’s testimony “destroys the State’s entire theory of the case. This new evidence is of such a nature that a different result will probably be reached at a new trial and that the right will prevail.” After the ruling, Pitt County District Attorney Faris Dixon said he would not seek a retrial, writing later that “it would be impossible for the state to prove the case against Dontae Sharpe at this time with no eyewitness or forensic evidence to prove he committed the murder beyond a reasonable doubt."



PUBLISHER'S NOTE: A story, at the link below,  on the full pardon recently granted to Dontae Sharpe of North Carolina - after  being wrongly imprisoned for 26 year - notes that his arrest was largely based on the testimony of a woman who later admitted she lied. One of the most fascinating aspects of the Sharpe case, is the the role that a controversial police practice played in securing Dontae Sharpe's exoneration - failure of police to inform the pathologist whose evidence helped secure the conviction  about the evidence provided to them by the witness later found to have lied.  

article255772411.html 

The role played by the failure of the police to fully inform the pathologist about relevant facts unearthed in its investigation is discussed in the National Registry of Exoneration entry at the link below: 

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PASSAGE ONE OF THE DAY:  (National Registry);

"There was no forensic evidence tying Sharpe to the crime scene. The police department’s fingerprint technician had waited at least three days to process Radcliffe’s truck, and because of that delay, only two prints suitable for comparison were found. The technician reported that neither Sharpe not Radcliffe was the source of either of those prints."

PASSAGE TWO OF THE DAY: (National Registry); "Dr. Mary Gilliland also testified for the state. She was filling in for the pathologist who had performed the autopsy because he had suffered a stroke. The bullet that killed Radcliffe, she said, had moved sideways, in a straight line, through his left arm and torso, before coming to rest in his right arm. In her opinion, whoever shot Radcliffe had shot him from the side. "

PASSAGE THREE OF THE DAY: (National Registry);  An evidentiary hearing was held on May 17, 2019. The state argued that Gilliland’s findings were essentially rehashes of what was said at trial. A week after the hearing, Sharpe’s attorneys amended their motion. They argued that if Gilliland was so clear in her trial testimony that it was impossible for the murder to have taken place the way Johnson described it, then the prosecutor was obligated to correct Johnson’s false testimony.  On August 22, 2019, after a second evidentiary hearing, Judge G. Bryan Collins Jr. of Pitt County Superior Court granted Sharpe’s motion for appropriate relief and vacated his conviction. He wrote that Gilliland’s testimony “destroys the State’s entire theory of the case. This new evidence is of such a nature that a different result will probably be reached at a new trial and that the right will prevail.” After the ruling, Pitt County District Attorney Faris Dixon said he would not seek a retrial, writing later that “it would be impossible for the state to prove the case against Dontae Sharpe at this time with no eyewitness or forensic evidence to prove he committed the murder beyond a reasonable doubt."

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National Registry of Exonerations Entry by Ken Otterbourg, last updated on November 15, 2021. Contributing factors include police misconduct.

GIST: "At about 9:15 p.m. on February 11, 1994, 33-year-old George Radcliffe was found shot to death in his Mazda pickup truck near the intersection of Sheppard and West Sixth streets in Greenville, North Carolina. The neighborhood was predominantly African-American with a reputation for drug activity; Radcliffe was white, and police believed the shooting was likely related to a drug transaction gone bad. 

Police and EMS quickly responded to a 911 call. A witness who heard the shooting but didn’t see the shooter said he saw the truck speed through the intersection. It then hit a stop sign and wound up in a vacant lot. An EMS responder would say in his report that Radcliffe was sprawled across the truck’s cab, with his legs under the steering wheel and his head and torso in the passenger’s foot well. The passenger door was locked. The lights were on, and the keys were in the ignition. The driver’s side door was closed and the window was rolled down about half way. Radcliffe still had his wallet, which contained $53. Near the middle of the bench seat was an Army jacket with the name “Nobles” across the front left pocket. 

Officer K.L. Jones of the Greenville Police Department was among the first officers to respond. While he and others were processing the crime scene, a man named Wilbur Mercer, who went by the nickname “Marshanna,” approached him and asked whether he could look inside the truck. 

According to Jones’s report, Mercer told him that he had been with Radcliffe about two hours earlier, when Radcliffe had been looking for cocaine, and that the two had done similar deals in the past. He said Radcliffe had dropped him off to find drugs. Mercer said that during this period, he spotted what he thought was an unmarked patrol car. He said Radcliffe sped off, taking his coat with him. Later, Mercer would tell police that he had given Radcliffe his jacket as false collateral, because his goal was simply to steal his money. Mercer also said that he was riding around with his wife when he heard that there had been a shooting.

The investigation stalled for nearly two months. On April 7, police interviewed a troubled teenager named Charlene Johnson, who had turned 14 a month after the shooting and had recently been discharged after three weeks of voluntary commitment to a psychiatric ward. In her statement to police, stamped at 1:30 p.m., she wrote that she had been on her way to a neighborhood convenience store, when “I stop at the stop sign. And I so (sic) Donta and a white male and Mark Joy. Donta was about to sale that white male a rock but he only had $18.00. Donta said I can’t do it you have to have the money straight up and the white male said Fuck you man. Donta push him and then he pulled out a gun a shot him.”

Johnson’s first statement contained an essential flaw: if Radcliffe had been pushed and then shot, how did he wind up back in the truck? At 1:34, she appended her statement, writing: “Also Donta move the truck a ran it in the field. And Mark and Donta pick the white male up and from where he got shot put him in the truck and Donta throw the keys and the gun somewhere And Mark and Donta split up and meet each other and got into a red escort.” 

Three hours later, police arrested 19-year-old Dontae Sharpe and 23-year-old Mark Joyner and charged them with first-degree murder. Sharpe was a small-time drug dealer, and it would later come out that police had been trying for some time to arrest him on drug charges. 

Joyner had a history of petty crimes and would ultimately enter an Alford plea in Radcliffe’s death to accessory after the fact (Under Alford pleas, defendants don’t admit guilt but acknowledge that the state has sufficient evidence to obtain a conviction.) Joyner was sentenced to five years in prison and paroled after nine months. He did not testify against Sharpe. 

A month or so after Sharpe’s arrest, the police found another witness who placed Sharpe at the shooting. Her name was Beatrice Stokes. She was an addict who knew the lead officer on the case, Detective Ricky Best, because he had helped her out in the past. They met several times, but Best would later testify that he took no notes of their meetings or filed any reports on what she said. 

There was no forensic evidence tying Sharpe to the crime scene. The police department’s fingerprint technician had waited at least three days to process Radcliffe’s truck, and because of that delay, only two prints suitable for comparison were found. The technician reported that neither Sharpe not Radcliffe was the source of either of those prints.

Sharpe’s trial in Pitt County Superior Court began in early July 1995. Judge Richard Parker had ordered both sides to disclose their witness lists ahead of the jury voir dire, but neither side did. Assistant District Attorney Clark Everett would say he had security concerns for his witnesses. While a private investigator hired by Sharpe’s attorney, R. Cherry Stokes, had learned that Johnson might be a witness, there was no knowledge of Beatrice Stokes (no relation). In addition, attorney Stokes was also unaware of Johnson’s history of hospitalization and mental illness. 

Separately, just before the trial began, Stokes learned from a police officer that Sharpe had given a statement upon his arrest. Stokes asked Everett, and Everett told him he had checked and there wasn’t one. Then, during the jury voir dire, Everett handed him the statement, which was short and cryptic. Sharpe had allegedly said: “I can’t do it. You have to have the money straight up.” Stokes moved to suppress the statement. Parker denied the motion, but gave Stokes an extra hour to confer with Sharpe.

Johnson was a reluctant witness. On the morning of her testimony, she didn’t want to go to court. Everett told Parker she was an essential witness, and Parker asked the Greenville Police to place her in custody and bring her to the courtroom. 

Johnson testified that Radcliffe had gone to buy $20 of cocaine but was $2 short. He and Sharpe argued face to face, she said, and then she heard two shots, “Boom. Boom.” But there were numerous problems in her testimony. She said that after the shooting, Joyner and Sharpe dragged Radcliffe into the compact pickup, then one or both of them climbed in on top of him and drove off. But she also said that the truck was facing in a different direction than what the crime scene reconstruction indicated. Under her account, for the truck to have wound up in the vacant lot, the driver jammed into the truck sitting on a body would have had to execute a U-turn on a narrow street just after shots were fired. 

Stokes’s testimony was designed to corroborate Johnson. She said that she had seen Sharpe, Joyner, and Mercer talking to a white male, and that she recognized the truck because she had seen the driver before. Stokes said there was a shot, and everyone scattered. At one point in her testimony, she said she didn’t stick around to see where the truck went. At another point, she said she did and saw it had wound up in the vacant lot just past the stop sign. Stokes couldn’t remember the time of the shooting (which happened at 9:15 p.m.) and thought it might have been 4-5 a.m. In addition, she said it was likely she was high on cocaine at the time. 

Dr. Mary Gilliland also testified for the state. She was filling in for the pathologist who had performed the autopsy because he had suffered a stroke. The bullet that killed Radcliffe, she said, had moved sideways, in a straight line, through his left arm and torso, before coming to rest in his right arm. In her opinion, whoever shot Radcliffe had shot him from the side. 

Sharpe had two alibi witnesses, an aunt and her neighbor. They testified that Sharpe was with them for most of the evening, eating dinner and then visiting during the time when Radcliffe was shot. 

Stokes tried to introduce the testimony of a woman named Tracy Highsmith. With the jury excused, she said that her boyfriend, Dameon Smith, had gone out on the night of the murder. When he came back a few hours later, he told her that he had encountered a man in a truck who wanted to buy drugs. He said he had robbed and shot the man but didn’t know whether he was alive. When he learned that Radcliffe had died, he became despondent, frequently repeating that he “he would kill himself before he (would) go to jail for killing a white man.” Smith killed himself on March 9, 1994. 

This was hearsay evidence, but Stokes argued that it was allowed under an exception for statements made upon a belief of impending death. Parker ruled that exception didn’t apply, and the jury never heard this evidence. 

Sharpe was convicted on July 17, 1995 and sentenced to life in prison. 

He appealed his conviction, with his first appellate attorney arguing that Judge Parker had been wrong to exclude Highsmith’s testimony, not because of impending death, but because Smith’s utterances fell under an exception for statements made against one’s self-interest. The North Carolina Supreme Court affirmed the conviction on July 31, 1996, ruling that because Stokes hadn’t sought that exception at trial, it was impermissible to raise it on appeal. 

Separately, Johnson had recanted her testimony, first approaching a paralegal who had been involved in Sharpe’s defense in late 1995. She said she had not seen the murder and that Detective Best had given her and her family money and gifts (Johnson had received $500 through Crime Stoppers). The paralegal listened but told her she needed to talk with Sharpe’s appellate attorneys, which Johnson eventually did in September 1996.

Sharpe’s attorneys filed a motion for appropriate relief in Pitt County Superior Court on February 14, 1997. Johnson’s recantation was the heart of the motion, but his new attorneys also asserted that Sharpe’s trial attorney had been ineffective because he had used the wrong hearsay exception in his efforts to get Highsmith’s testimony admitted. 

Hearings were held before Judge W. Russell Duke Jr. In trying to assess the truthfulness of Johnson’s recantation, Sharpe’s attorneys pressed the police officers testifying about the circumstances of how the girl came to their attention. Officer Jeffrey Shrock testified he had first seen Johnson in very early March of 1994, when she ran out in front of his cruiser and then began cursing at him. He said he began talking with her, then took her home and talked with her mother as well. Shrock said he took Johnson to Pitt County Memorial Hospital, where he said she was evaluated and released. It was during this time period, he said, that she told Shrock she had witnessed the murder, mentioning Sharpe’s first name. That was in conflict with Johnson’s trial testimony, where she said Best was the first officer she told. Shrock said he waited two days before telling Best about the conversation, because he wasn’t sure if Johnson was telling the truth or just looking for attention. 

What neither Best nor Shrock could adequately explain at the hearing was why there was a month-long gap between Shrock telling Best about Johnson’s statement, and the police first interviewing Johnson, which led to Sharpe’s immediate arrest.

During the hearing, Sharpe’s legal team still didn’t know of Johnson’s hospitalization, putting them at a disadvantage in trying to evaluate the timeline and also Johnson’s state of mind at the time she identified Sharpe as the shooter. The state had some of those records, as they had at trial, but didn’t disclose them. 

Separately, Best was questioned about a polygraph test administered to Johnson two weeks after Sharpe’s arrest. He said he made her take the test because he wanted to be sure of her statement. She was brought to the local offices of the North Carolina State Bureau of Investigation. He was asked during the hearing: “As far as you know, at the SBI Office she stuck by the same story?” 

“Yes, sir,” Best answered. “The agent that gave her the polygraph test said that …” 

Sharpe’s attorney objected, in an effort to keep Best from clarifying his remarks. Duke sustained the objection, and Best never answered the question directly. 

Duke denied Sharpe’s motion on May 6, 1998. He didn’t believe Johnson’s recantation was credible, and he was satisfied with the police efforts to verify her testimony. That decision was upheld by the North Carolina Supreme Court on August 19, 1999.

Stokes recanted her testimony in May 2000, stating that she had seen the murder but only placed Sharpe there because she was upset at him from some earlier slight. She had tried to back out of testifying, she told a private investigator, but Best pressured her, in part by reminding her of the $200 in reward money she would receive. In December 2000, Stokes took back her recantation, telling a Greenville Police officer that Sharpe’s mother and the private detective had offered her $1,000 to change her testimony. 

After the 1999 ruling by the state’s supreme court, Sharpe’s attorneys moved their efforts to the federal courts, filing a petition for a writ of habeas corpus in U.S. District Court on December 20, 1999. Although originally meant to address Sharpe’s claims of wrongful conviction based on ineffective assistance of counsel and on Johnson’s recantation, a new witness to the shooting had come forward just before hearings were to begin in early 2000. Dearl Powell said he was living with his mother on West Sixth Street and was outside on the night of the shooting. He said he saw the truck stop just before the intersection. Mercer was in the passenger seat and a white man was driving. After the truck stopped, Powell said, he saw Dameon Smith approach the truck on the driver’s side. Powell said that Mercer and Smith were like father and son. A man named Omar Moore was nearby, as was Beatrice Stokes. The driver never left the truck, and after five or 10 minutes of arguing and cursing, a single shot rang out and everyone scattered. Powell said he ran home and didn’t tell anybody what he saw. 

Powell testified at the hearing, but before he could be cross-examined by the state, Judge Terrence Boyle of U.S. District Court remanded the case back to the North Carolina courts, ruling on March 15, 2001 that they were the better venue for evaluating Powell’s statements. Judge Duke again presided over the hearing on a new motion for appropriate relief and ruled against Sharpe, stating that Powell’s statements lacked credibility. 

Sharpe turned back to the federal courts. Eventually, in 2009, his petition for a writ of habeas corpus was granted, after Boyle agreed that Sharpe’s trial attorney had been ineffective by raising the wrong hearsay exception in trying to admit Highsmith’s testimony. But the state appealed, and the U.S. Court of Appeals for the Fourth Circuit reversed Boyle on January 29, 2010, writing that he had overstepped his bounds in trying to reinterpret North Carolina’s hearsay exceptions and by giving too much credence to Powell’s statements. 

After that decision, Sharpe’s appeals were handled by the Wrongful Convictions Clinic at Duke Law School, which in 2014 filed a broad-ranged new motion for appropriate relief. It asserted first that Shrock and Best had either committed perjury or been extremely disingenuous in their testimony at the 2007 evidentiary hearings, and second that the state had committed substantial violations under the rules established by the 1963 U.S. Supreme Court decision in Brady v. Maryland, which requires disclosure of exculpatory evidence to the defense. 

Much of the motion revolved around newly obtained medical records for Johnson during the two-month period between Radcliffe’s murder and Sharpe’s arrest. She had been hospitalized in an adolescent psychiatric unit from February 17 to March 10. Shrock had testified at the hearing that he had first met Johnson either March 3 or March 4, and he said that when he took her to the hospital, she was evaluated and then released. Both of those statements were false, and Shrock would later acknowledge their falsity in an affidavit. 

The hospital records painted a profound picture of an emotionally unstable girl whose tumble had started with the death of her grandfather and then relocation to Greenville a year earlier. Nowhere in any of the treatment notes written by Johnson’s healthcare team did she mention ever witnessing a murder. In addition, Johnson was beaten up by a group of young women who were friends of Sharpe’s on April 7, 1994, the day she gave the incriminating statements. She was taken to the hospital, where she said the attack was because of “lies told in the past.” Critically, when the young women were arrested, four of the five said Johnson was beaten because she lied, not because she “snitched.” 

Separately, Sharpe’s attorneys had been finally able to obtain some records on the SBI polygraph test. The original examiner had marked them “inconclusive,” despite Best’s testimony that he was satisfied with the results. In their motion, Sharpe’s attorneys stopped short of saying that Best had lied, but said his statements were “unquestionably deliberately deceptive and intended to undermine Charlene’s recantation.”

Judge Duke held no hearings. On May 8, 2014, his last day in office, he denied Sharpe’s motion. 

Four years later, on June 6, 2018, Sharpe’s attorneys filed another motion for appropriate relief, citing new evidence relating to the trial testimony of Dr. Gilliland. She had testified about the single, lateral bullet wound that killed Radcliffe, and Sharpe’s attorneys had long understood that was in conflict with Johnson’s testimony of a face-to-face shooting. Gilliland had declined repeated requests to reexamine her testimony. After she appeared in a television documentary on the case, however, she agreed to review the trial material for Sharpe’s attorneys and answer the question of whether it was possible for Radcliffe to be shot in the manner described by Johnson. 

In doing so, the attorneys made a key discovery. The state had never told Gilliland about Johnson’s testimony. Nor had they consulted with her about whether the forensic evidence fit the theory of the crime. In an affidavit, Gilliland said that had these events happened, she would have testified that the state’s theory was medically and scientifically impossible. 

An evidentiary hearing was held on May 17, 2019. The state argued that Gilliland’s findings were essentially rehashes of what was said at trial. A week after the hearing, Sharpe’s attorneys amended their motion. They argued that if Gilliland was so clear in her trial testimony that it was impossible for the murder to have taken place the way Johnson described it, then the prosecutor was obligated to correct Johnson’s false testimony. 

On August 22, 2019, after a second evidentiary hearing, Judge G. Bryan Collins Jr. of Pitt County Superior Court granted Sharpe’s motion for appropriate relief and vacated his conviction. He wrote that Gilliland’s testimony “destroys the State’s entire theory of the case. This new evidence is of such a nature that a different result will probably be reached at a new trial and that the right will prevail.”

After the ruling, Pitt County District Attorney Faris Dixon said he would not seek a retrial, writing later that “it would be impossible for the state to prove the case against Dontae Sharpe at this time with no eyewitness or forensic evidence to prove he committed the murder beyond a reasonable doubt.”

Sharpe was 44 years old when he was released. During the 24 years he was in prison, he had rejected several plea offers that would have given him a lesser sentence. He told the Associated Press, “My momma always told me if you didn't do something, don't own up to it. Don't say you did it." He said his faith provided the “positivity to help me when I was around all that negativity.” 

On November 12, 2021, Gov. Roy Cooper granted Sharpe a pardon of innocence, making him eligible to receive state compensation for his wrongful conviction.

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5607

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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;


FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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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;

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FINAL, FINAL, FINAL WORD: "It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Friday, December 3, 2021

Claude Garrett: Tennessee: Antiquated arson 'science' and much more - another superb piece of journalism by Liliana Segura published by 'The Intercept' - a case in which the Nashville DA's office seeks to vacate Claude Garrett's 29-year-old murder conviction - and, "reinvestigation of the case dismantles every single piece of evidence previously believed to inculpate Garrett, the director of the DA's Conviction Review Unity wrote."...Garrett’s case is one of countless arson convictions across the U.S. based on evidence that has since been debunked. Many visual indicators once believed to signal arson were rooted in a misunderstanding of fire behavior. The “pour pattern” found at the home in Old Hickory was in fact the result of a phenomenon called flashover, which was not widely understood in 1992. In the decades following Lance’s death, new developments in fire science transformed the techniques used to determine whether a fire is arson. But even as investigators have discarded the myths they once relied upon in favor of the scientific method, prosecutors have been slow to revisit old arson cases, frequently fighting to keep convictions intact. The Davidson County DA’s office is an important exception. “Interpreted in light of new scientific advances and guided by the professional analysis of ten experts who have reviewed the evidence in this case, there is no basis whatsoever to believe that an incendiary act by Garrett caused this fire any more than a hypothesis suggesting accidental cause,” Eaton wrote in the CRU report. If not for the office’s willingness to reexamine the work of its own former prosecutors, Garrett could easily have faced the prospect of dying in prison for a crime he did not commit. Although a judge still has to accept the findings of the CRU — and hold a hearing before agreeing to vacate the conviction — Garrett, now 65, could soon be released. For fire investigator Stuart Bayne, who became Garrett’s most dedicated advocate after testifying at his second trial in 2003, the DA’s decision is both vindicating and long overdue. For 20 years, he has told anyone who would listen that Garrett is an innocent man. “Finally, other people are beginning to see it,” he said."


PASSAGE OF THE DAY: "Garrett’s conviction was also a case study in the legal system’s lack of recourse for people incarcerated based on faulty forensics — particularly in the absence of tangible exonerating evidence such as DNA. As with most old arson convictions, there was no evidence left to test, only photographs and reports by investigators whose examination of the scene had been perfunctory at best. Nevertheless, by the time I first met Garrett at the Riverbend Maximum Security Institution, his case had already been reviewed by two leading fire scientists, who made clear that the evidence used to convict him was junk science. One, the late Gerald Hurst, was best known for his attempts to clear Willingham before his 2004 execution. In a 2014 interview, Hurst told me that the fire investigation in Garrett’s case had been “a typical piece of crap” — based on a rush to judgment by an expert who believed that he could tell whether a fire was arson based on his observations alone. Renowned fire scientist John Lentini also reviewed the case as part of Garrett’s appellate proceedings and reached the same conclusion. Garrett tried to argue that his trial lawyers had been deficient for failing to effectively challenge the state’s arson evidence. But his appeal was denied."

STORY: "The Nashville DA's office seeks to vacate Claude Garrett's 29-year-old murder conviction  Reporter Liliana Segura, published by The Intercept on November 24, 2021.

SUB-HEADING: "A reinvestigation of the case dismantles every single piece of evidence previously believed to inculpate Garrett, the director of the DA's Conviction Review Unity wrote."

SUB-HEADING:  "Playing with fire: Part Five: Claude Garrett’s girlfriend died in a fire in 1992. Tennessee says it was murder by arson. Scientists say the state is wrong.)"


GIST: Almost 30 years after Claude Garrett was accused of setting a fire that killed his girlfriend, Lorie Lance, the district attorney’s office in Nashville, Tennessee, has concluded that there is no evidence the fire was arson — and that Garrett was wrongfully convicted of Lance’s murder. In a notice of intent filed in Davidson County Criminal Court on Monday, District Attorney Glenn Funk told a judge that “clear and convincing evidence” indicates that Garrett is likely innocent, signaling the DA’s intention to request that Garrett’s conviction be vacated and the charges against him dismissed.


The DA’s notice was filed alongside a report by Sunny Eaton, director of the office’s Conviction Review Unit, who spent the past year closely reexamining Garrett’s case. “While the CRU’s review of this case did not uncover affirmative evidence conclusively establishing Garrett’s innocence,” Eaton wrote in the report, “the CRU finds it wholly impossible to maintain confidence in Garrett’s conviction. Holistic review of the record, the District Attorney’s file, and new scientific evidence dismantles every single piece of evidence previously believed to inculpate Garrett.”


Garrett was twice convicted of setting the fire that killed 24-year-old Lance in the small home they shared in Old Hickory, Tennessee, just outside Nashville. The couple had returned from a local bar in the early morning hours of February 24, 1992, when Garrett said he awoke to find a fire in the living room. According to Garrett, he woke up Lance and ran with her toward the front door, only for Lance to turn and run toward the rear of the house. Firefighters later found her in a utility room, dead from smoke inhalation.


Although neighbors initially described Garrett as frantic, yelling for Lance from outside, investigators became suspicious upon arriving at the scene, where they smelled kerosene and found a large irregular-shaped burn pattern on the living room floor. The lead investigator, James Cooper — a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives — seized on this so-called pour pattern as proof that an ignitable liquid had been used to start the fire. He also concluded that the utility room had been locked from the outside, trapping Lance. Garrett was convicted of murder and sentenced to life in prison.


Garrett’s case is one of countless arson convictions across the U.S. based on evidence that has since been debunked. Many visual indicators once believed to signal arson were rooted in a misunderstanding of fire behavior. The “pour pattern” found at the home in Old Hickory was in fact the result of a phenomenon called flashover, which was not widely understood in 1992. In the decades following Lance’s death, new developments in fire science transformed the techniques used to determine whether a fire is arson. But even as investigators have discarded the myths they once relied upon in favor of the scientific method, prosecutors have been slow to revisit old arson cases, frequently fighting to keep convictions intact.


The Davidson County DA’s office is an important exception. “Interpreted in light of new scientific advances and guided by the professional analysis of ten experts who have reviewed the evidence in this case, there is no basis whatsoever to believe that an incendiary act by Garrett caused this fire any more than a hypothesis suggesting accidental cause,” Eaton wrote in the CRU report. If not for the office’s willingness to reexamine the work of its own former prosecutors, Garrett could easily have faced the prospect of dying in prison for a crime he did not commit.


Although a judge still has to accept the findings of the CRU — and hold a hearing before agreeing to vacate the conviction — Garrett, now 65, could soon be released. For fire investigator Stuart Bayne, who became Garrett’s most dedicated advocate after testifying at his second trial in 2003, the DA’s decision is both vindicating and long overdue. For 20 years, he has told anyone who would listen that Garrett is an innocent man. “Finally, other people are beginning to see it,” he said.


A Sense of Urgency

I first learned about Garrett’s case in the spring of 2013, from an advocate who visited him in prison. At a glance, the case contained striking parallels to the infamous story of Cameron Todd Willingham, who was wrongfully executed in Texas after being convicted of killing his own children in a fire. The two fatal fires took place within months of one another, just before the publication of “NFPA 921,” a manual that would eventually revolutionize the field of fire investigation.


Garrett’s conviction was also a case study in the legal system’s lack of recourse for people incarcerated based on faulty forensics — particularly in the absence of tangible exonerating evidence such as DNA. As with most old arson convictions, there was no evidence left to test, only photographs and reports by investigators whose examination of the scene had been perfunctory at best. Nevertheless, by the time I first met Garrett at the Riverbend Maximum Security Institution, his case had already been reviewed by two leading fire scientists, who made clear that the evidence used to convict him was junk science.


One, the late Gerald Hurst, was best known for his attempts to clear Willingham before his 2004 execution. In a 2014 interview, Hurst told me that the fire investigation in Garrett’s case had been “a typical piece of crap” — based on a rush to judgment by an expert who believed that he could tell whether a fire was arson based on his observations alone. Renowned fire scientist John Lentini also reviewed the case as part of Garrett’s appellate proceedings and reached the same conclusion. Garrett tried to argue that his trial lawyers had been deficient for failing to effectively challenge the state’s arson evidence. But his appeal was denied.


After I published my initial investigation in early 2015, additional experts came forward to review the case, including fire engineer Craig Beyler, who produced a report on behalf of an international group of fire scientists that called itself the Tetrahedron Committee. Along with an updated report authored by Lentini, Garrett presented the Tetrahedron findings to his trial court in 2017, arguing that the experts’ conclusions were based on newly discovered evidence and established his innocence. But the Tennessee attorney general’s office objected, saying that the motion reflected no new evidence but merely “newly written opinions.”  The court dismissed Garrett’s motion without a hearing.


With the legal avenues for challenging his conviction increasingly narrowed, Garrett went before the Tennessee Board of Parole in 2018, where he insisted on his innocence — a somewhat risky strategy given the imperative that applicants show remorse for their crimes. Despite a virtually spotless record behind bars and a vote in his favor by the board chair, Garrett’s bid was denied.


But that same year, a series of follow-up stories by The Intercept caught the attention of the Davidson County DA’s Office, which had recently launched the Conviction Review Unit. Although the CRU’s guidelines dictated that it would not consider applications “while any appeal, petition, or writ is pending in court” — which would have disqualified Garrett, who was pursuing a federal appeal — the unit also maintained the discretion “to review the case if it is in the interest of justice.” If there is compelling evidence of innocence, Assistant Attorney General Robert Jones told me in February 2019, “we’re not  gonna sit here for years and wait for the case to go through the courts.”


That same month, the Tennessee Innocence Project launched in Nashville. Garrett would become one of its first clients. In August 2019, the organization’s executive director, Jessica Van Dyke, and federal public defender Michael Holley filed an application to the CRU on Garrett’s behalf. But it was not until Sunny Eaton took over in September 2020 that things started moving. A former defense attorney who had seen clients she believed to be innocent go to prison, Eaton told the Nashville Scene that she intended to bring a “sense of urgency” to the work. “When I get a case to investigate, we either quickly need to restore confidence in that conviction,” she said, “or we need to remedy it.”


Faulty, Outdated, and Unsubstantiated

In the 14 months since Eaton took over, the CRU has accomplished more than it did during its first several years. Garrett’s case is the second conviction the office has sought to overturn in November alone. Less than two weeks ago, the DA’s office asked a judge to vacate the tragic wrongful conviction of a Nashville couple, Joyce Watkins and Charlie Dunn, who were accused of raping and murdering a 4-year-old child in 1987. Watkins was granted parole in 2015, after 27 years in prison. Dunn died in prison that same year.


The convictions of Watkins and Dunn turned on the faulty forensic testimony of an expert who also played a key role in Garrett’s case: Dr. Gretel Harlan, the medical examiner who conducted the autopsy on Lance in 1992. Although Harlan did not find any evidence of injuries to support the theory that Garrett had forcibly locked Lance in the utility room before setting the fire, she did visit the fire scene alongside investigators, where she took photos of the latch on the door. The visit clearly shaped her analysis; at Garrett’s first trial, Harlan testified that burns found on various parts of Lance’s body could have been sustained inside the utility room at the back of the house, even though flames never reached the area. “Everyone is familiar with the process of sunburning,” Harlan said. “All the skin requires to sustain the burn is too long exposure in too high a heat.”


“Detectives relied so heavily on the fire investigation that they failed to perform basic investigative functions.”

Experts have repeatedly argued that this is ludicrous. But when I reached Harlan in 2014, she insisted that Lance “must have” gotten her burns inside the room since the door had been locked. The CRU report disagrees. It points to physical evidence that supports Garrett’s account that he and Lance ran past the living room toward the front door before Lance turned around. Garrett sustained burns on his face and left arm, which “were similar in location, depth, and intensity to those of Ms. Lance,” Eaton wrote. The CRU report echoes what Bayne has long argued: that the parallel burn patterns on Garrett and Lance show “that both bodies were in the same location, at the same point in time, facing the same intensity of heat exposure, from approximately the same distance to the heat source, for approximately the same duration.”


This exposure to intense heat would also help explain why Lance ran to the utility room. When I asked Hurst in 2014 why Lance would have run to the back of the house instead of following Claude out the front door, he explained that while she was almost certainly disoriented, people in a fire scenario will also do whatever they can to get away from smoke and flames. An enclosed room can provide protection from fire, he said, and for a time, it did. “If they had found her earlier, they might have saved her life,” he said.


Perhaps most important, the CRU report emphasizes that there was never any real evidence that the utility room was locked and Lance was trapped inside. Indeed, Garrett’s original 1993 conviction was overturned after he filed an open records request and received a police report that had been illegally withheld from his defense attorney. In the report, a Nashville police detective said he’d been told by the fire captain that the door had been found unlocked.

Eaton writes that “despite the enormous significance that was attached to the latch at trial,” investigators did not bother preserving or studying it. “Detectives relied so heavily on the fire investigation that they failed to perform basic investigative functions as they would have done in any other suspected homicide,” she wrote. Neither the door nor the latch was collected or analyzed even though, “according to the state’s theory, these were the murder weapons in this case.”


Experts have long pointed to the latch as critical. So has Garrett, who repeatedly constructed models of the latch while in prison. Because the locking mechanism relied on a latch that slid back and forth, its condition after the fire could have provided important clues. One photo from the scene, which Lentini included in his updated 2016 report, showed heavy smoke deposits on the edge of the door to the utility room — the part that would presumably have been shielded by the door frame had it been closed during the fire. These smoke deposits showed that the door “was not even closed” during the fire, let alone locked, Lentini wrote.



Smoke deposits showed that the door “was not even closed” during the fire, let alone locked.

The CRU report reinforces this conclusion. Among other experts, it cites the work of a fire scientist named Candace Ashby, who in 2019 conducted an experiment that recreated the conditions of the fire. “Based on the carbonization differences,” the report states, Ashby concluded that “the latch was in the unlocked position during the fire.”


Many of the CRU report’s 50 pages focus on the work of Cooper, the ATF special agent. Experts consulted by the CRU found his “investigation to be faulty, his methods outdated, and his conclusions unsubstantiated,” Eaton wrote. In addition to lacking any scientific basis, the CRU notes, “his testimony in the second trial was emotionally charged, filled with inflammatory overstatements, mischaracterizations of the evidence, and assumptions regarding Garrett’s intent.”


Cooper is retired and living in Alabama. Although he has repeatedly refused to consider the many expert reports debunking his work, he has repudiated at least some of what he said at Garrett’s original trial. When I visited him in 2018, I asked him about his statement that burns on Garrett’s face had likely been sustained when he leaned down to light kerosene in the living room. Transcripts from the trial show that Cooper had compared it to lighting a gas grill: “Sometimes it won’t ignite and you stick your head down there to see and you’ve got this open flame that comes back with a POOF!” he said. Experts later deemed this to be impossible — and to my surprise, Cooper agreed. “I would be crazy to say that,” he said.


Until the Door Opens

The CRU report was filed less than a week after Garrett turned 65. In a phone call on his birthday, Garrett said his neighbors were giving him Pepsis and candy bars — “Things I don’t need,” he chuckled. In the years I have known Garrett, he has strived to take care of his health, which is not easy behind bars. Last year, as the coronavirus swept through Riverbend prison, he got sick with Covid, but his symptoms remained mild.


For a long time, Garrett was understandably skeptical of the CRU. Why would the same office that twice sent him to prison exonerate him? But he has also been heartened by the increased public scrutiny of the original prosecutor in his case, former Davidson County Assistant Attorney General John Zimmerman, who concealed the exculpatory police report and has since faced multiple accusations of prosecutorial misconduct. In 2019, a Nashville judge vacated the death sentence of Abu-Ali Abdur’Rahman on the grounds that Zimmerman had discriminated against Black jurors. Despite repeated attempts by the Tennessee attorney general to block a plea deal in the case, Abdur’Rahman was finally removed from death row earlier this month.


In a phone call shortly after the CRU report was filed in court, Garrett expressed gratitude to those who have been willing to examine his case. “I’m thankful, I’m excited,” he said. But he’ll remain guarded “until the door opens.”


Garrett still faces a series of legal hurdles before he can be released.

Garrett’s caution is warranted: He still faces a series of legal hurdles before he can be released. The judge presiding over his case must be persuaded that the findings within the CRU report qualify as newly discovered evidence of innocence under Tennessee law, a claim the same court has previously rejected. Both the CRU report and a concurrent filing by Holley, Garrett’s federal public defender, and Van Dyke, of the Tennessee Innocence Project, argue extensively that the evidence provided by experts in Garrett’s case should count. Garrett’s attorneys cite five scientific developments since Garrett’s 2003 trial — including two studies from 2019, after Garrett’s last unsuccessful motion for relief — that were clearly unavailable to him at the time. “No court has reviewed these studies and developments. … Nor has any hearing been held where Mr. Garrett could present this new evidence.”


Although he has yet to read the CRU report for himself, Garrett has been aware of its general conclusions for some time. News of the DA’s decision in his case first leaked on November 2, after the CRU discussed its findings with Lance’s surviving relatives. In a statement to Nashville’s Channel 5 News, Lance’s family wrote that they were saddened by the decision and “wholeheartedly believe” in Garrett’s guilt. The family has long insisted that Garrett was an abuser who killed Lance after finding out that she planned to leave him.


Although it deeply bothers Garrett that Lance’s family remains convinced he is a murderer, he speaks about them with compassion. “They’ve been victims just as much as I have,” he said.

On Monday afternoon, Channel 5 ran a second news segment, this time outlining the CRU’s findings. Garrett watched it on TV, as did other men in his unit. “It kind of makes it more real,” he said in a phone call Tuesday morning. Later, Garrett planned to call his daughter, who is waiting to introduce him to his 4-year-old grandson. “She’s excited. And frustrated that it is taking so long. But you know, she’s thankful as well,” Garrett said. “Probably a bit like me. Cautious.”


Garrett’s daughter, Deana, now in her 30s, has shared links to stories on Facebook about her dad’s case. Although she always believed in his innocence, she has only recently become outspoken about his wrongful conviction. After news of the CRU report first leaked, she was dismayed to see some negative reactions — a reminder that some people would never believe her father was innocent. But she resolved not to pay attention. “I’ve ignored it for this long,” she said. “I guess a little while longer couldn’t hurt.""


The entire story can be read at:

https://theintercept.com/2021/11/24/claude-garrett-murder-wrongful-conviction/

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;

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FINAL, FINAL, FINAL WORD: "It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Thursday, December 2, 2021

Shuttered Austin Police Forensic lab: Aftermath: The 2016 Texas Forensic Science Commission found a litany of "significant issues" with the handling and analysis of DNA at the lab. Major concern: Investigating cases potentially affected by improper testing and other problematic behaviour. The solution? 'Forensic Magazine' reports that the Department of Justice has awarded over $500,000 to retest cases in order to determine if any wrongful convictions were caused by the tainted lab..."After much discussion and budget reallocations, in February of this year, the Austin City Council voted to officially transfer the forensic laboratory out from under police control, finally turning it into the independent entity Texas officially began hoping for back in 2016. However, the county is still dealing with all fallout from the audit. In the five years since then, hundreds of closed criminal cases have been looked at, with hundreds to thousands more still pending. Some of the cases go as far back as 2000. Travis County officials said they anticipate 20 to 30 cases will require testing, while 175 will require reanalysis. “This grant will help our conviction integrity unit determine whether anyone is wrongfully imprisoned due to faulty DNA evidence. Our community must work to undo past wrongs, and we are honored to be a recipient of this grant,” said Travis County District Attorney Jose Garza."


GIST: "The Department of Justice has awarded over $573,637 in grant funding to Travis County (Texas) to help the district investigate cases potentially affected by improper testing and other problematic behavior by the Austin Police Department’s forensic laboratory in 2016. The grant covers DNA testing and re-testing, as well as salaries for two additional attorneys.

In 2016, an audit by the Texas Forensic Science Commission found significant issues with the handling and analysis of DNA evidence at the Austin Police Department Forensic Laboratory. Findings included the use of scientifically inappropriate stochastic threshold, use of validation studies that lacked data to support the use of that stochastic threshold, suspect-driven bias, and deviation from protocols and procedures by analysts. The audit revealed the issues were particularly extensive in the DNA section. In 2017, the Texas Department of Public Safety (DPS) took control of the lab, completing all DNA work and outsourcing the extensive backlog of rape kits.

After much discussion and budget reallocations, in February of this year, the Austin City Council voted to officially transfer the forensic laboratory out from under police control, finally turning it into the independent entity Texas officially began hoping for back in 2016.

However, the county is still dealing with all fallout from the audit. In the five years since then, hundreds of closed criminal cases have been looked at, with hundreds to thousands more still pending. Some of the cases go as far back as 2000.

Travis County officials said they anticipate 20 to 30 cases will require testing, while 175 will require reanalysis.

“This grant will help our conviction integrity unit determine whether anyone is wrongfully imprisoned due to faulty DNA evidence. Our community must work to undo past wrongs, and we are honored to be a recipient of this grant,” said Travis County District Attorney Jose Garza.

The grant provides $61,689 for the outsourcing of DNA testing, and $438,311 for the hiring of two full-time attorneys.

“With hundreds of requests in pending status, the attorneys will conduct a parallel review of cases to identify possible wrongful convictions, assist with fact investigations, and navigate DNA issues related to criminal investigations,” explains collateral from the Austin/Travis County APD DNA Review Project.

Travis County originally asked for only $500,000 is assistance, but the Bureau of Justice Assistance determined the county was eligible for an additional $73,637. The grant is valid for three years, after which time costs associated with the APD DNA Review Project fall to the county and the city of Austin. Officials could, however, seek additional funding from the Bureau of Justice Assistance and/or other grant opportunities."

 The entire story can be read at:

https://www.forensicmag.com/581505-DOJ-Awards-500-000-to-Retest-Evidence-from-Shuttered-Austin-Police-Forensic-Lab/

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;

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FINAL, FINAL, FINAL WORD: "It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.

Ruben Gutierrez: Texas: Former District Attorney Sam Millsap articulates a very good reason for supporting DNA testing on crime scene evidence, saying: As the former elected district attorney of Bexar County, I find the prosecution’s refusal to ensure the accuracy of this case puzzling. The prosecutor has a moral, ethical and legal duty to ensure that justice is done. The prosecutor should be the one requesting DNA tests, not denying them every time."...Support for DNA testing does not make me or anyone else a bleeding heart liberal. I was a Bexar County District Attorney in the 1980s and a former board member of the National District Attorneys Association. My prosecutors have pulled thousands of criminals off the streets. We have pursued capital murder cases and put together a perfect case file. In all of the cases we have prosecuted, the accused has been convicted. The State of Texas executed each of these accused. In 2005, the Houston Chronicle convincingly argued that one of my lawsuits, against a young man named Ruben Cantu, may have resulted in the execution of an innocent person. Even though I thought Cantu’s trial was perfect, in 2004 my star witness, the lone eyewitness, retracted his testimony. This abjuration shook me deep within myself when I realized that a person I had pursued and who was subsequently executed could be innocent. Texas executed others, including Cameron Willingham, Carlos DeLuna and Claude Jones, who were almost certainly innocent. I believe, more than ever, that prosecutors and the courts should do everything in their power to ensure that Texas never executes another innocent person. In Gutierrez’s case, the decision to test DNA should be an easy one. Whenever DNA evidence exists, it should be tested."


WORDS TO HEED: FROM OUR POST ON KEVIN COOPER'S  APPLICATION FOR POST-CONVICTION DNA TESTING; CALIFORNIA: (Applicable wherever a state resists DNA testing): "Blogger/extraordinaire Jeff Gamso's blunt, unequivocal, unforgettable message to the powers that be in California: "JUST TEST THE FUCKING DNA." (Oh yes, Gamso raises, as he does in many of his posts, an important philosophical question: This post is headed: "What is truth, said jesting Pilate."...Says Gamso: "So what's the harm? What, exactly, are they scared of? Don't we want the truth?" 

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PASSAGE OF THE DAY: "The case against Gutierrez has never been waterproof. Gutierrez maintained his innocence and did not finally confess, in his third statement, until after police threatened to arrest his wife and take his children away. One of the main causes of wrongful convictions is police-induced false confessions. In nearly a third of DNA exemptions, the person had confessed falsely, according to Project Innocence. No physical or forensic evidence linked Gutierrez to the crime scene. The single eyewitness was unable to identify Gutierrez in court, although he was seated at the defense table next to his lawyer. Instead, the eyewitness chose someone from the gallery and a juror when asked to identify who he saw on the day of the crime. More than 70 percent of DNA exemptions involve mistaken eyewitness identifications. I don’t know if Gutierrez is telling the truth. But there is an easy way to find out. Test the DNA."

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

COMMENTARY:  "Prisoner sentenced to death on the right; Test DNA," by Sam Millsap, published by Folderol, on November 28, 2021. (Sam Millsap was a Bexar County District Attorney from 1982 to 1987 and practices law in San Antonio.)

"GIST: "Ruben GutiĆ©rrez, who risks execution, has been requesting DNA testing on crime scene evidence for more than 10 years.

The reasonable position is to test DNA. The prosecutor’s position – blocking the tests – is unreasonable. There shouldn’t be anything controversial about wanting to learn the truth.

As the former elected district attorney of Bexar County, I find the prosecution’s refusal to ensure the accuracy of this case puzzling. The prosecutor has a moral, ethical and legal duty to ensure that justice is done. The prosecutor should be the one requesting DNA tests, not denying them every time.

At trial, the prosecution argued that Gutierrez, alone or with others, stabbed Escolastica Harrison. Gutierrez maintains that he didn’t kill Harrison and that he didn’t know others were going to assault or kill her.

Brownsville Police have collected several pieces of evidence with biological material that may contain DNA from the person (s) who killed Harrison. These articles have never been tested for DNA. If the crime happened today, DNA evidence would naturally be tested.

Gutierrez was convicted under Parties’ Law, which allows the jury to find someone guilty of capital murder based on the conduct of the co-defendants. Gutierrez argues that if DNA evidence had been presented to the jury and it showed he was not the real killer, jurors would not have sentenced him to death.

Support for DNA testing does not make me or anyone else a bleeding heart liberal. I was a Bexar County District Attorney in the 1980s and a former board member of the National District Attorneys Association. My prosecutors have pulled thousands of criminals off the streets.

We have pursued capital murder cases and put together a perfect case file. In all of the cases we have prosecuted, the accused has been convicted. The State of Texas executed each of these accused. In 2005, the Houston Chronicle convincingly argued that one of my lawsuits, against a young man named Ruben Cantu, may have resulted in the execution of an innocent person.

Even though I thought Cantu’s trial was perfect, in 2004 my star witness, the lone eyewitness, retracted his testimony. This abjuration shook me deep within myself when I realized that a person I had pursued and who was subsequently executed could be innocent.

Texas executed others, including Cameron Willingham, Carlos DeLuna and Claude Jones, who were almost certainly innocent. I believe, more than ever, that prosecutors and the courts should do everything in their power to ensure that Texas never executes another innocent person. In Gutierrez’s case, the decision to test DNA should be an easy one. Whenever DNA evidence exists, it should be tested.

The case against Gutierrez has never been waterproof. Gutierrez maintained his innocence and did not finally confess, in his third statement, until after police threatened to arrest his wife and take his children away. One of the main causes of wrongful convictions is police-induced false confessions. In nearly a third of DNA exemptions, the person had confessed falsely, according to Project Innocence.

No physical or forensic evidence linked Gutierrez to the crime scene. The single eyewitness was unable to identify Gutierrez in court, although he was seated at the defense table next to his lawyer. Instead, the eyewitness chose someone from the gallery and a juror when asked to identify who he saw on the day of the crime. More than 70 percent of DNA exemptions involve mistaken eyewitness identifications.

I don’t know if Gutierrez is telling the truth. But there is an easy way to find out. Test the DNA."

The entire story can be read at:

prisoner-sentenced-to-death-on-the-right-test-dna

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;

-----------------------------------------------------------------------------
FINAL, FINAL, FINAL WORD: "It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.