Saturday, January 31, 2009


One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;


The following analysis of the "Fifth Circuit" decision was posted by the Amnsesty International chapter at the University of Oklahoma;

"Larry Swearingen was granted a stay of execution on 26 January 2009 by a three-judge panel of the US Court of Appeals for the Fifth Circuit, the federal court one level below the US Supreme Court with jurisdiction over Texas cases. He was scheduled to be put to death in Texas on the evening of 27 January 2009.

Larry Swearingen was sentenced to death in 2000 for the murder of Melissa Trotter in 1998. Melissa Trotter went missing on 8 December 1998. Larry Swearingen was arrested three days later, and has been incarcerated ever since. The body of Melissa Trotter was found in a forest on 2 January 1999. Larry Swearingen was tried for her murder, and sentenced to death.

He maintains his innocence of the murder. Several forensic experts have provided statements and testimony that support his claim. One of these experts, Dr Joyce Carter, is the former Chief Medical Examiner of Harris County in Texas who performed the autopsy of Melissa Trotter and testified at Larry Swearingen’s trial that in her opinion, Melissa Trotter had died 25 days before her body was found. In an affidavit signed in 2007, Dr Carter stated that she had looked again at the case and changed her opinion. She concluded that Melissa Trotter’s body had been left in the forest within two weeks of it being found. If accurate, this would mean that the body was dumped at a time when Larry Swearingen was already in custody. Other experts have stated that the body may have been left in the woods only a few days before it was found (see original UA).

The Fifth Circuit panel did not address the merits of Larry Swearingen’s innocence claims, but only considered whether they were sufficient to overcome the obstacles under federal law preventing the court from authorizing the filing of a successive habeas corpus petition in the lower District Court. Under this federal statute, the prisoner must show that "(i)the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense."

The Fifth Circuit said that there were "two independent gates" through which a motion to file a successive petition must pass before the merits of the prisoner’s claim will be addressed. First, the Fifth Circuit would have to determine whether the motion made a prima facie (on first sight) case that the above requirements of the federal statute were met, including that there is "a sufficient showing of possible merit to warrant a fuller exploration by the District Court." Secondly, once the case was remanded to the District Court, the latter would also have to determine whether the requirements of the federal statute had been met before it could address the merits of the successive petition. The Fifth Circuit court held that "given the importance of Dr Carter’s expert testimony to the State’s case, we find that Swearingen has made a prima facie showing that but for the constitutional error of the State sponsoring the false testimony of Dr Carter, no reasonable juror could find guilt beyond a reasonable doubt." The constitutional precedent on this issue is the 1972 Supreme Court ruling in Giglio v. United States. The Fifth Circuit also found that Larry Swearingen had made a prime facie case that his legal
representation at trial had been constitutionally deficient, including in cross-examining Dr Carter. Here the precedent is Strickland v. Washington (1984). The Fifth Circuit panel therefore authorized Larry Swearingen to file a successive habeas corpus petition in the District Court limited to these issues. The court stressed that "this grant is tentative" in that the District Court "must dismiss" the petition, "without reaching the merits," if that court were to find that Swearingen had not satisfied the federal statutory requirements relating to successive petitions.

One of the three Fifth Circuit judges wrote a separate, concurring opinion. He said that he wished to address "the elephant that I perceive in the corner of this room: actual innocence." Judge Jacques Wiener continued: "Consistently repeating the mantra that, to date, the Supreme Court of the United States has never expressly recognized actual innocence as a basis for habeas corpus relief in a death penalty case, this court has uniformly rejected stand-alone claims of actual innocence as a constitutional ground for prohibiting imposition of the death penalty." Judge Wiener noted, however, that the Supreme Court had made certain statements that "at least strongly signal that, under the right circumstances, it might add those capital defendants who are actually innocent to the list of persons who – like the insane, the mentally retarded, and the very young – are constitutionally ineligible for the death penalty."

Judge Wiener said that could foresee the "real possibility" that the District Court might interpret the expert forensic opinion as clear and convincing evidence that Larry Swearingen could not possibly have killed Melissa Trotter and yet still "find it impossible to force the actual-innocence camel through the eye of either the Giglio or Strickland needle, and thus have no choice but to deny habeas relief to an actually innocent person." As such, Judge Wiener suggested, Swearingen’s predicament might be "the very case" for the full Fifth Circuit Court or the US Supreme Court to "recognize actual innocence as a ground for federal habeas relief." He concluded that "to me, this question is a brooding omnipresence in capital habeas jurisprudence that has been left unanswered for too long."

There have been five executions in the USA this year, three of them in Texas. Since
executions resumed in 1977, there have been 1,141 executions in the USA, 426 of them in Texas. Among those who have been put to death by the state are people whose guilt was in doubt to the end. Since 1977, more than 100 people have been released from death rows in the USA on grounds of innocence. The average time between being sentenced to death and exoneration in these cases was nearly 10 years."



One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;


Court TV reporter Emanuella Grinberg describer larry swearingen's background in a story headed: "His life: Sports, steroids and violence against women" which accompanied an extensive interview which ran before his scheduled execution date; (January 24, 2009);

"Larry Ray Swearingen was born in Montgomery County, Texas, on May 21, 1971, the third child of Ray and Pamela Swearingen," her story began;

"After Ray Swearingen died in a car accident in 1981, Pamela and the three children moved in with her parents," the story contineud;

"During the penalty phase of Larry Swearingen's capital murder trial, she testified that her father frequently beat her and her mother in front of the children, and that Larry would often attempt to intervene.

When Swearingen was in his early teens, his mother remarried Joseph Martinez III. In an interview with, Swearingen described Martinez as his "best friend and biggest supporter."

In high school, Swearingen says, he took on the role of a jock by participating in track, football and softball. At his coaches' urging, Swearingen claims he began taking steroids to enhance his performance.

But Swearingen says the drugs had an adverse effect on his relationship with his family and his commitment to school. By his junior year, his girlfriend was pregnant with his son. He dropped out of school to work various odd jobs.

The relationship did not last, and shortly after his son's birth in 1990, Swearingen married a woman who later gave birth to their daughter.

But the relationship quickly soured as Swearingen's violent streak emerged, according to the woman.

"[Swearingen] would wait for her at the door of their home and when she arrived he would begin hitting her, and sometimes strangled her with hands," court documents state.

After the two separated in 1992, according to the woman, Swearingen showed up at her job and harassed her. During Swearingen's penalty phase, the woman testified that she never reported the incidents for fear of losing custody of her daughter.

In one instance, Swearingen allegedly abducted her at knifepoint and drove her to a wooded area, where he raped her.

Another ex-girlfriend testified at his sentencing that she met him in 1994 at a Florida strip club and moved back with him to Texas. When she told him she planned to leave for California, he tied her up and threw her in a closet, she said.

He then allegedly beat and threatened her with a knife as both her child and Swearingen's son played in the yard.

The woman testified that he freed her when his mother arrived. She fled the state and did not return to press charges or tell her story until her appearance at Swearingen's sentencing.

Less than three months before 18-year-old Melissa Trotter disappeared, another ex-fiancée complained to police that Swearingen had assaulted and raped her.

According to court documents, Swearingen allegedly broke into her home, wrestled her to the ground, stuffed her mouth with newspaper and handcuffed her before beating and raping her.

One week later, the woman testified, Swearingen fired a bullet through her window and forced her into his car at gunpoint.

"[Swearingen] made [her] drive to a location within the Sam Houston National Forest that was approximately one mile from where Melissa's body would someday be discovered," court documents state. "She was able to appease Swearingen, and he eventually let her go."

Swearingen was arrested on the allegations and released on bond.

On Dec. 11, 1998, a detective with the Montgomery County sheriff's department paid a visit to a local convenience store as part of the investigation into the disappearance of Montgomery University student Melissa Trotter. Swearingen was there and sped off after noticing the officer.

The officer followed him to his mother's home, where he was arrested on outstanding traffic warrants. Swearingen was still in jail when authorities found Trotter's body nearly one month later and charged him with capital murder."


Friday, January 30, 2009


One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;






"In brief, Melissa Trotter disappeared on December 8, 1998. Her body was found in the Sam Houston National Forest on January 2, 1999. Swearingen had been in jail since December 11, 1998. The claims he seeks to raise in his successive petition primarily relate to forensic evidence that allegedly proves that Trotter’s body was left in the forest after his arrest.

Swearingen raises two claims of actual innocence. The Fifth Circuit does not recognize freestanding claims of actual innocence on federal habeas review.

Swearingen asserts that the State sponsored the false or misleading testimony of Dr. Carter, the Harris County Medical Examiner who testified at trial for the State as to the date of death, in violation of his due process rights as set forth in Giglio v. United States, 405 U.S. 150 (1972).

The factual predicate for this claim is an October 31, 2007 affidavit that casts some doubt on her testimony as to the date of death. At trial, Dr. Carter testified that Trotter’s body had been left in the forest for approximately twenty-five days, which was consistent with the State’s theory that Swearingen murdered Trotter on
December 8, 1998, and left her body in the forest. In her affidavit, Dr. Carter does not address the correctness of her original testimony based on decomposition and fungal growth, but states that if she had been provided certain additional data, she would have testified that the findings of her autopsy “are consistent with a date of exposure in the Sam Houston National Forest within fourteen days of discovery, and incompatible with exposure for a longer period of time.” Swearingen has made a prima facie showing that this affidavit could not have been discovered previously with the exercise of due diligence. Unlike his other claims, this claim rests not on the correctness of her testimony (which could have been disputed at any time) but on the State’s interactions with its witness, which could not be known before her affidavit. We assume the merits of Swearingen’s asserted constitutional error at this stage, and given the importance of Dr. Carter’s expert testimony to the State’s case, we find that Swearingen has made a prima facie showing that but for the alleged constitutional error of the State sponsoring the false testimony of Dr. Carter, no reasonable juror could find guilt beyond a reasonable doubt.

Swearingen also raises several Strickland claims, two of which satisfy the prima facie showing required by § 2244(b)(2)(B). First, Swearingen alleges that his trial counsel performed a constitutionally deficient cross-examination of Dr. Carter. Like his Giglio claim, this Strickland claim is based in part on Dr. Carter’s affidavit. As discussed above, this claim should be permitted to proceed.

Second, Swearingen alleges that his trial counsel failed to develop histological
evidence involving a paraffin block that contained Trotter’s body tissue. Because
Swearingen’s expert, Dr. White, was unable to analyze this evidence until January 15, 2009, the factual predicate for this claim could not have been previously discovered with the exercise of due diligence. Swearingen has made a prima facie showing that but for the alleged constitutional error of his trial counsel’s failure to develop this histological evidence, no reasonable juror could find guilt beyond a reasonable doubt.....;

Accordingly, we authorize Swearing to file a successive habeas corpus petition with the district court limited to: (1) Giglio violations in the State’s presentation of Dr. Carter’s testimony; and (2) Strickland violations in trial counsel’s cross-examination of Dr. Carter, and his failure to develop histological evidence."



One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;


An Associated Press story indicates that Larry Swearings prosecutor's have fired back with a forensic salvo of their own;

"It's a battle of dueling scientists in the case of Texas death row inmate Larry Swearingen," the AP story out of Houston begins, under the heading: "Forensics back Swearingen as killer of college student, DA says;"

"The Montgomery County district attorney today released forensic findings that show a 19-year-old college student was slain a decade ago -- when Swearingen was not in jail," the story, published on Tuesday January 27, continues;

"The data is from Neal Haskell, who's a professor of forensic science and biology at St. Joseph's College in Indiana.

Prosecutor Brett Ligon says the findings should end the debate over decomposition of the body of Melissa Trotter.

Swearingen won a reprieve this week after his lawyers cited forensic science in their questions about the timing of Trotter's death.

Swearingen says he was jailed on traffic warrants when Trotter disappeared. Her body was found Jan. 2, 1999, in the Sam Houston National Forest.

The discovery came 25 days after Trotter was seen leaving the library at Montgomery College."


Thursday, January 29, 2009


One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;




------------------------------------------------------------------------------- reporter Emanuella Grinberg interviewed Texas death row inmate Larry Swearingen on Jan. 10 at the Polunsky Prison Unit in Livingston, Texas. Late Tuesday, Swearingen won a reprieve from his scheduled Wednesday execution. The transcript below has been edited for length and clarity. The video was produced by Mark Grieco.

COURTTVNEWS.COM: Can you describe a typical day on death row for you?

LARRY SWEARINGEN: Typical day? I sleep a lot. I work on my case, write the attorneys. Try to get people to help me, and I work, that's it.

CTV: What do you do to pass the time?

SWEARINGEN: Read or draw.

CTV: Do you get mail from strangers or admirers?

SWEARINGEN: Admirers? Well, I'm not going to say no, but I don't respond to them as far as that. This is not something I'm proud of. This is not something that should be glorified. People have groupies or whatever, but I just don't want them. It's not me. I write about four people that I write.

CTV: Who are they?

SWEARINGEN: My family and my wife and I have one good friend who's in Australia. That's about it. I just don't have groupies.

CTV: What are some things you miss about life on the outside?

SWEARINGEN: My kids. That's it. My kids. Everything else is irrelevant; I miss my kids, my son, my daughter, that's what I miss the most.

CTV: How is your relationship with your children?

SWEARINGEN: As good as it can be expected, I guess. It's not the perfect relationship, but they come up here, we write and we do the best we can. I stay in touch with their teachers. I still get their report cards. I try to stay as active as anyone can in this situation to be in their kids' lives.

CTV: Where did you grow up?

SWEARINGEN: I was an Army brat till the age of 10, moved around a lot, so my real dad passed away. In '81, my mom married my stepdad, so we still moved around. So it wasn't one specific place.

CTV: What was it like growing up without a father?

SWEARINGEN: I had a father. This isn't a stepchild horror story. My stepdad is my dad. He was my best friend and biggest supporter. I've had many arguments about that. God blessed me with two dads. It wasn't just one. You always hear the stepdad or stepmom horror stories, and it wasn't like that. He was my best friend and biggest supporter. I didn't grow up without a dad. I had a dad.

CTV: Can you recall when you were the happiest?

SWEARINGEN: There's not just one specific thing that I could say would outrank one or the other. My son, watching him being born, and my daughter, watch[ing] her being born, those are probably the two happiest memories you can get. I don't know if you have kids, but it's, that's mine, that's something you can never change.


CTV: Is there any particular moment in your life that you consider a turning point?

SWEARINGEN: There's really not a changing point. I made mistakes in my life, and for any man or woman to sit and say they are without fault or never made mistakes, they're liars. I've made mistakes and I'm the first to tell you, I've made a mistake, I've made several mistakes.

I guess the changing point in my life was when I started using steroids. You hear these sports players talking about it doesn't do nothing. They're liars. One, it makes you lose your hair. It gives you a temper, things like that. Looking back at it now and that I don't have any of it in my system, I'm surprised my family still talks to me. I had a horrible attitude.

Sometimes I'd walk into a club with my friends or with my wife or whatever, and find the biggest guy and punch him in the mouth. Ask him, "Do you want to go outside?" And it's not because I'm a Billy Bad-Ass, or anything like that. It's just using them like that. It makes you feel you're invincible, that you can do what you want to do. That's probably the worst mistake I ever made in
my life.
CTV: You knew the victim in the case? What attracted you to her?

SWEARINGEN: It wasn't an attraction. We were friends. It wasn't a sexual thing and people don't understand that. It wasn't, we weren't screwing each other. I'm trying to be polite. It wasn't like that. We just run around together. It was fun. My ex-wife was older than me, where we didn't do a lot of things together. Doesn't say that I didn't love her because I did, but we just didn't do a lot of things, whereas Melissa was younger than me. We went to the beach. We went and played putt-putt golf or whatever. It was just something we run around and did. It wasn't, it wasn't getting in each other's pants. It wasn't that kind of friendship.

CTV: What was she like?

SWEARINGEN: She was full of piss and vinegar. She was just outgoing. She liked animals. She liked to read. We went to the beach. I didn't know her well enough to say she was this or that. She'd call, say, "Hey, what are you doing?" We'd go do this ... It wasn't an everyday thing. It just wasn't an everyday thing. She was a nice girl. I don't know how to explain it. She was just a nice friend.

CTV: So you didn't kill her?

SWEARINGEN: No. The DNA under the fingernails is not mine. They found pubic hairs, they said that I raped her, but the pubic hairs aren't mine. They alleged all this stuff, but it's not mine. It's as simple as that. The blood is male, but it's not mine. Whatever happens happens. There's nothing I can do about. All I can do hope that the attorneys are diligent enough to get things done. If not, then I'm in a world of shit. You can smile, it's not that bad.

CTV: Why have you continued to press your appeals?

SWEARINGEN: Why? Well, I could have took a plea bargain and had a chance of going home, but I'm not going to plead guilty to something I didn't do. There comes a time where everybody has to stand their ground and accept what comes if you stand your ground.

I'm not going to plead guilty to murder for something I didn't do. I may steal your car, I may cheat on you, I may do all these other things, but killing somebody is not it. That's not, this is not me. I'm not going to say I don't have a temper, because I did. I'm the first one to tell you I'd fight with a fencepost if I thought I could win. But it's one of them things where my past leads to the wrong conclusions.

---------------------------------------------------------------------------------------CTV: Was there one thing that you or someone could have done in your young life to prevent you from being here?

SWEARINGEN: Yeah, probably whooped my ass when they found out I was having sex. If my son wouldn't have come about, I'd probably been in college and things may have been different. But like I said, you got to take responsibility for your own past. Nobody forced me to do things. I made my own decisions. Right around 13 or 14, I was doing what I wanted to do and didn't care what anybody else said.

You just have to, have to accept what happened, you know. There were things in my past that I could have used for mitigating evidence. I'm not, I'm not using it as a crutch. It happened. There's nothing I can do about it. But I'm not going to use it as a crutch.

CTV: Can you give an example?

SWEARINGEN: I was abused by a relative, let's leave it at that. It's things that a guy just does not want to talk about. You know, it happened, there's nothing I can do about it. I found out later that it happened to that person as well by a family member. For lack of a better word, the chain has been broken. My son will never have to deal with that. The only thing he's got to worry about is my mom not tearing the hide in his ass. He's a good kid, he's adjusted well and made the honor roll. He looks like me, but he's not like me and I'm glad for that.

CTV: How are you different?

SWEARINGEN: I like country, he likes rock. Where I like sports, he doesn't. He's a pain in the butt. No, he's my boy. He's 6-foot-1, with a size 13 foot. He's 16.

CTV: What is your biggest regret?

SWEARINGEN: Not being a better parent. That's my biggest regret, not being a better parent. I brought two beautiful children in this world, and I'm sitting here and somebody else is raising them. And that's not the way I was raised. My dad and mom — I say my dad, both my dads — raised me better than that. So not being a better parent, not being a better brother, uncle, things like that.

CTV: Did you write some of your appeals?

SWEARINGEN: I wrote some of it, yes. I asked for DNA testing on an officer who claims he cut himself shaving that morning, and the blood floated through the air and landed on her fingernails. I filed some for DNA testing on the officer and the district attorney and all these people that claimed that blood floated through the air and landed on the body and under the fingernails and things like that.

CTV: Why did you decide to do it rather than finding an attorney?

SWEARINGEN: An attorney wouldn't help me. You're put in a position where Texas attorneys for the most part are worried about their money and not about anything else. So if you want things done, you do it yourself. Simple as that. I tried, I failed, I went all the way to the Supreme Court with it. They put it on docket to review it and ultimately decided I didn't have, I guess, a good enough argument. I'm not an attorney. I made the best I could do with what
I have.

CTV: Do you think life in prison without parole would be harder than a death sentence?

SWEARINGEN: I wasn't going to accept a plea bargain. It wasn't for me. It's not an option. I'm not going to sit in prison and watch my family and friends die off, and me sitting back here for something I didn't do. If giving my life means to stand my ground, then so be it. I'll give it. Simple as that. I'm not going to plead guilty or accept a plea bargain to save my life only to ... it's a torture.

Prison life is not easy. This is a different society in here. People that sit on juries think, well, this is easy or whatever, and it's not. You do the best you can, but there are times that you have to do things you wouldn't normally do out there.

CTV: Can you give me an example?


CTV: Sure?

SWEARINGEN: Very sure.

CTV: Do you expect any family or friends to be at your execution, if it goes through?

SWEARINGEN: I'm not going to let them be there. This isn't a party I'm going to. It's not where I'm going to go and order snacks and invite guests. I'm going there to be murdered. Simple as that. I'm going there, if that's what it comes to, get it over with.

CTV: Are you religious?

SWEARINGEN: Am I religious, eh? It depends on what you call religious. Do I believe in God? Yes. Do I have a religion? No. Religion is why we're at war. If you think about it, if you just knock all the crap off of it, we all believe in the same god. It doesn't matter, it doesn't say in the Bible that if you're Catholic, you reach St. Peter's gate before a Protestant. It doesn't say if you're Muslim, you're better than anybody else. We all have a god, whether it's Jesus or, what is it for Muslims, Muhammad, or whatever. We all have the same god.

CTV: What do you think will happen to you after you die?

SWEARINGEN: I'm going to be planted in the ground. That's what going to happen. No, I'm going to be cremated.

CTV: Do you believe in an afterlife?

SWEARINGEN: You know what, I've never given any thought about that. You know, if I do, I want to come back as a dog.

CTV: Why? What kind?

SWEARINGEN: A big dog. I want to be like a Saint Bernard, where I can drool on people and that way I can hump your leg if you don't like it or something. I've never given any thought about it, really. I've decided I'm going to be cremated, going to have my ashes spread on both my dads' graves and be done with it. It's cheaper and I ain't going to put my family through the financial burden and all that other crap.
CTV: Are you afraid to die?

SWEARINGEN: Am I afraid to die? No, it goes back to the beginning. I could've took a plea bargain, but once you make that decision, you have to stick by that decision. You have to stick by the decision that you make. There's no going back. There's no saying, "Hey, look, I changed my mind." It just doesn't work like that. One of them things.

CTV: Is there anything you want people to know about you that they may not know?

SWEARINGEN: Yeah, I'm a hemorrhoid; I'll just grow on you after a while. It's one of them things, if you sit and look at my case with common sense, you'll know it's full of crap. You can either like me or hate me and it doesn't make any difference. Give me a chance, you'll learn to like me. You'll see I'm not the person Texas would portray me as. But I'm not the only one here either. There are several people. If you look at their cases and especially with the Houston crime lab, one guy was released over the ballistics and another guy is fixing to be killed by same person. So they sort of pick and choose their cases.

If you look back, look back at the case of O.J. Simpson. He had the money to hire a team. It's not whether he's guilty or innocent. Robert Blake had the money to hire his team. Michael Jackson had the money to hire his team. Kobe Bryant had the money to hire his team. Scott Peterson didn't hire a team — see where he's sitting. There's more evidence against O.J. Simpson than there was against that man.

It all comes down to who's going to take and put the best argument together. So long as the state has to pay for your experts, you're not going to get a competent person that's going to argue for you.

CTV: Have you thought about what your last words might be?

SWEARINGEN: There's not going to be any last words. I'm going to go in there and push the button. Let's get it over with. There's not going to be any last words and there's not going to be any witnesses. Like I said, it's not a party and for somebody to come up here thinking, "Oh, I'm going to get closure in this," you're wrong. Death is death. There's no coming back from it. If you've ever seen the face of death, you'll never forget it. I've worked with the fire department. I did things and I've seen death. There's still things I remember.

CTV: Are you afraid of death?

SWEARINGEN: No, I was exposed to it early on in my life with my dad dying, then my horse died, and then my dog died after that. They say things come in threes.


Wednesday, January 28, 2009


One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;





"Four forensic pathologists agree that Larry Swearingen, set to be executed Tuesday, could not have committed the 1998 murder that sent him to death row," the story by reporter Chuck Lindell began under the heading, "Four pathologists back Larry Swearingen's innocence claim."

A sub-heading read: "Swearingen, slated to die Tuesday in college student's 1998 murder, was in jail at time, 4 now say."

"The four include the medical examiner whose testimony helped secure Swearingen's guilty verdict," the story, published on Saturday January 24, continued;

"That medical examiner now says college student Melissa Trotter's curiously preserved body could not have lain in the East Texas woods for more than 14 days — and probably was there for a much shorter time."

"The results mean Swearingen was in jail when the 19-year-old's body was left behind, the pathologists say.

"It's just scientifically impossible for him to have killed the girl and thrown her into the woods," said James Rytting, Swearingen's appellate lawyer. "It's guilt by imagination."

Prosecutors disagree, saying compelling evidence ties Swearingen to the crime, including a match between the panty hose leg found around Trotter's neck and the stocking remnant found in a trash dump next to Swearingen's mobile home. Also, hair and fibers show Trotter had been in Swearingen's truck and mobile home in Willis, about 40 miles north of Houston.

But in court briefs seeking to keep Swearingen's execution on track, prosecutors do not attack the conclusions by the four pathologists beyond labeling them "opinion evidence based on experts' second-hand review of others' work and photographs."

One of those pathologists, however, did Trotter's autopsy.

In her original report, Dr. Joye Carter determined that Trotter's strangled body had lain in the Sam Houston National Forest outside Conroe for 25 days — coinciding exactly with the date of Trotter's disappearance from Montgomery County Community College, Dec. 8, 1998. Witnesses said Trotter left the campus library that day with Swearingen, whom she met two days earlier.

The timing was important because Swearingen had been in jail since Dec. 11 on outstanding traffic warrants.

But faced with conclusions from other pathologists that her 25-day time of death defied scientific analysis and common sense, Carter recanted her findings in a 2007 affidavit. "Ms. Trotter's body was left in the woods within two weeks of the date of discovery" on Jan. 2, 1999, she wrote.

Reassessment of Trotter's autopsy began late in Swearingen's appeals process when a defense pathologist noticed that Carter found an intact spleen and pancreas.

Both organs liquefy quickly after death, prompting a more thorough review:

• Five recently discovered slides of heart, lung and nerve tissue from Trotter's autopsy revealed intact nuclei and red blood cells, said Dr. Lloyd White, Tarrant County deputy medical examiner.

Red blood cells break down within hours, and nuclei in heart cells break down within days, White said.

Also, levels of bacteria indicated the body had not been frozen or preserved, he said.

White's conclusion: Trotter had been dead for two or three days before her discovery.

• Trotter's mucosa — fragile tissue in the stomach and intestines that quickly disintegrates after death — was intact, noted Dr. Glenn Larkin, a North Carolina pathologist.

The condition of the mucosa indicates with "medical certainty" that Trotter had been in the forest for less than 10 days and more likely three or four days, Larkin concluded.

• Trotter weighed 109 pounds at a doctor's visit shortly before she disappeared, but her body weighed 105 pounds, a 4 percent decline. Larkin concluded that a body will lose up to 90 percent of its weight in less than 25 days under temperatures endured by Trotter's body: average highs of 62 and lows of around 40.

• Unlike a body left outside for 25 days, Trotter's showed no sign of bloating or perforated intestines. Her clothes were unsoiled and slipped easily from her body during the autopsy. There was limited scavenging by animals in a forest inhabited by feral pigs, vultures and raccoons.

"The following forensic conclusion is therefore not reasonably debatable amongst competent forensic pathologists: Without question, Mr. Swearingen was not the person who left Ms. Trotter's body in the Sam Houston National Forest," Larkin said in an affidavit.

Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.

The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.

The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.

Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.

Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.

Swearingen has presented no new DNA or indisputable evidence undermining his conviction, only expert opinion that could be challenged under cross-examination if presented at trial, Abbott said in briefs.

In addition, Abbott said, the prosecution's case against Swearingen was convincing: He was the last person seen with Trotter, whose autopsied stomach contained potatoes, which she ate for lunch the day she disappeared. The panty hose link Swearingen to the crime, and Swearingen wrote a letter from jail — in Spanish to divert police attention to another man — that presented a plausible narrative for the killing.

Swearingen's lawyer, joined by the Innocence Project in New York, says he believes he has met the legal definition for an innocence claim: that it is unlikely a reasonable juror would convict him in light of the new evidence.

"Someone else had that girl's body, dead or alive, and threw her in the forest. And that someone wasn't Larry," Rytting said.

Swearingen would be the fourth Texan executed this year."


Tuesday, January 27, 2009


One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;





A story in today's Dallas Morning news tells us that a convict named Larry Swearingen has been spared execution - for now;

"AUSTIN - A federal appeals court has granted a last-minute reprieve to a Texas man facing execution in the murder of a Houston-area college student, his attorney said," the story by reporter Emily Ramshaw begins;

"Larry Swearingen was set to be executed Tuesday for a murder that several pathologists -- including the case's original medical examiner - now say he could not have committed," the story continues;

"He was convicted of the 1998 rape, abduction and murder of Melissa Trotter, a 19-year-old who was strangled and left in the woods.

Several criminal pathologists say the prosecutors' original theory -- that Trotter had been dead for 25 days before she was found - is impossible because of how preserved her body was.

If they're right, that means Swearingen couldn't have killed her. He was in jail for traffic violations for the three weeks before the discovery of her body.

"I'm extremely relieved," said Swearingen's attorney James Rytting. "It would be a travesty to execute someone under these circumstances - where someone was sitting in jail when someone else killed a woman and threw her body in the woods.

Prosecutors say regardless of how long Trotter's body was in the woods, the circumstantial and physical evidence against Swearingen is sufficient. They were able to match the panty hose tied around Trotter's neck to a piece found in a dumpster next to Swearingen's Montgomery County trailer. They found fibers traced to Trotter in Swearingen's truck and home.

Swearingen, who met Trotter two days before the 19-year-old disappeared, was the last person seen with her outside the Montgomery College library.

"It's disappointing to hear that they've stayed this case again. Every time [the defense] claims they've got evidence he's innocent, every time we're able to show they're wrong," said Marc Brumberger, who oversees appellate cases for the Montgomery County District Attorney's Office.

"We'll just have to hash it out in court once again."


Sunday, January 25, 2009


Toronto Sun columnist Alan Shanoff writes that the recent McNeil decision may require prosecutors to provide information on expert witnesses they are calling such as whether they have been the subject of professional discipline proceedings - or castigated by judges;

Shanoff's views ran on January 25, 2009 under the heading, "'Hired guns' take a hit from Supreme Court."

"Earlier this month the Supreme Court of Canada released a decision that will likely have a large impact on how key witnesses, including expert witnesses, can be cross-examined in court. It's a move that should help reduce legal injustices," Shanoff's column begins;

"This saga began in May 2004 when a Barrie judge convicted Lawrence McNeil on various drug charges," the column continues.

"After the conviction, McNeil's lawyers learned the arresting officer had been charged with four criminal offences. One of the charges involved an allegation the officer provided false information to police in connection with another unrelated investigation, while two of the charges involved alleged thefts.

The officer was also charged under the Police Services Act. There were 71 allegations of discreditable conduct, deceit and neglect of duty, including delivering and using cocaine.

The officer eventually pled guilty to one of the criminal offences and McNeil's convictions were ultimately set aside.

More important is the resulting Supreme Court of Canada decision that should benefit all who wish to attack the credibility of their accusers, both in criminal and civil cases.

Let's take two fairly common situations: You've been charged with an offence or you've been injured as a result of the negligence of another and are suing for out of pocket expenses, as well as pain and suffering damages. In each case a key witness will be testifying against you.

In the personal injury lawsuit you'll likely have a physician called by the defence -- or rather the insurance company defending the lawsuit -- testifying your injuries aren't as serious as you or your doctor say they are.

In the criminal case you'll have police officers testifying about what they observed and why you were arrested.

Suppose you want to attack the credibility of the witnesses testifying against you. What information are you entitled to obtain and use to attack the credibility of these witnesses?

Well, courtesy of the McNeil decision your rights have been broadened.

The McNeil decision makes it clear any records of serious misconduct that could "reasonably impact" a case should be disclosed and therefore may be used to cross-examine witnesses and attack their credibility. This includes all disciplinary records of witnesses that could reasonably have a bearing on the case.

In our world of wrongful convictions this is a welcome development.

There's no reason why we shouldn't be able to extend this reasoning to cover adverse findings of credibility made against key witnesses.

Suppose the officer isn't facing any charges or disciplinary action but judges in other cases have found the officer's evidence to be not worthy of belief. Couldn't that information "reasonably impact" a case? Shouldn't this information be available to defence counsel for purposes of cross-examination?

With broadened rights of cross-examination we reduce the impact of expert witnesses such as now-disgraced child pathologist Dr. Charles Smith and his ilk.

Smith, whose evidence sent innocent people to jail, was allowed to testify as an expert witness in 45 cases without being confronted with an early court finding that his evidence was not worthy of acceptance.

Key witnesses, including medical experts, who testify in criminal trials or personal injury actions may now be fiercely cross-examined based on critical findings in disciplinary proceedings and in previous lawsuits.

There are numerous physicians who testify for the defence in personal injury lawsuits after providing what are called independent medical exams. Some are well known as being consistently sympathetic to the defence, to the point where their evidence can be suspected of being biased.

These are the hired-gun expert witnesses that courts abhor.

Lawyers for injured parties should now have access to and the ability to use information from the College of Physicians and Surgeons files to cross-examine these defence experts.

The same goes for information from the Health Professions and Appeal and Review Board and in the courts. Material on disciplinary action, disciplinary charges or indeed even just adverse findings of credibility should be routinely made available for use on cross-examination of these witnesses.

The McNeil decision will help lawyers expose hired gun experts. That should get rid of some of the bad apples that have infected the legal system."


Saturday, January 24, 2009


I had to look twice to believe this story: A private individual donating such a huge amount to an organization that goes to bat for people believed to have been failed by their criminal justice system.

The donor is Ian Cartwright - a retired judge who couold easily have used the funds to have a new wing of a law school named support the often unrewarding cost of righting injustices;

The organization is AIDWYC which has a major role in exposing Dr. Charles Smith and obtaining redress for his many victims.

Cartwright's wonderful donation is reported in today's Globe and Mail by justice reporter Kirk Makin under the heading: "The wrongfully convicted get a rightful donation: Million-dollar gift from retired judge will help non-profit advocacy group work to overturn unjust convictions."

"The office manager of the Association in Defence of the Wrongly Convicted, Win Wahrer, froze in astonishment recently as she shook out the contents of a letter from Calgary," Makin's story begins;

"Out tumbled a personal cheque for a million dollars," it continues;

"In an instant, AIDWYC ended 15 years as a grassroots outfit struggling for every dime in order to ferret out and help exonerate the wrongly convicted.

The identity of the donor was surprising - Ian Cartwright, a retired Ontario Superior Court judge whose family has operated the Canada Law Book publishing house for several decades.

As word of the donation - which will provide no tax deduction to Mr. Cartwright because the group does not have charity status - travelled through the upper echelons of AIDWYC, the directors were flabbergasted. Lawyer Paul Copeland sent a one-word e-mail to Mr. Cartwright: "WOW."

Another director, lawyer James Lockyer, felt woozy. "I felt a sense of wonder and joy - and a bit frightened," Mr. Lockyer recalled yesterday. "I had to hear it two or three times before I could believe it.

"This demonstrates such a tremendous commitment to justice. It was so much money that my immediate thought was: 'We can't take this; it's too much responsibility.' "

Ralph Steinberg, co-president of AIDWYC, said he was heartened to learn it was a former judge who made the donation.

"We can assume that he is aware of the need for some mechanism outside of the appeal process to bring wrongful convictions to light," Mr. Steinberg said. "The last 15 years have seen a steady, increasing progression in the work AIDWYC does. There just doesn't seem to be an end to these cases."

Mr. Cartwright and his wife, Pat, asked AIDWYC to put the money into a fund in the name of former Canada Law Book president Stan Corbett, who is fighting cancer.

"I've been a very keen supporter of this association," Mr. Cartwright said in an interview yesterday. "The huge thing with these volunteer organizations is that they live hand-to-mouth, wondering, 'How are we going to continue?' "

Mr. Cartwright said he normally makes donations anonymously, but he hopes that his million-dollar gesture will prompt others to help fund AIDWYC. "They just don't have the capital funding they need," he said.

Mr. Corbett expressed delight that at a time when most organizations are downsizing and contemplating layoffs, AIDWYC can now envision a golden future.

"You know, the state has unlimited resources," he said. "We have a wonderful justice system in Canada, but I have often thought that there is a one-sided balance. Mistakes can and do happen. Prosecutors take a more adversarial position nowadays, and there needs to be a counterbalance.

"This organization has really picked up the gauntlet and taken a lead role in finding these cases where there may have been wrongful convictions," Mr. Corbett said. "I think they have done a fantastic job in this area. Having my name attached to this - I couldn't be more pleased or honoured."

AIDWYC directors said yesterday that the donation will likely go in many directions. With funding available for forensic testing, court transcripts and expert witnesses, they said clients will no longer have to languish in prison for months or years as a case for their exoneration is prepared.

AIDWYC also can contemplate lobbying politicians and justice officials for criminal justice reforms. And Mr. Lockyer said the association will move to expand its primary base - in Ontario, Newfoundland and Manitoba - into provinces where it has had difficulty gaining a foothold, particularly Alberta and British Columbia.

"Lawyers have always worked for free, and that won't change," Mr. Lockyer said. "But the administration behind the cases, as well as the work that is required to investigate cases, does cost money. We have to think how we can free more people, and free them quicker."

Mr. Cartwright said he only wished there was an organization like AIDWYC he could have donated money to 40 or 50 year ago, when Canada still had capital punishment.

"I just hate to think of the number of people who have been hanged," he said. "Some innocent people have definitely been hung, because the evidence against them just wasn't there.""

The story contains a postscript under the heading: "Beyond Guy Paul Morin."

"The Association in Defence of the Wrongly Convicted has few peers when it comes to achieving goals and reaping publicity for a cause," the postscript begins;

"Operating on a shoestring since its creation in 1993, the group has been instrumental in freeing more than a dozen wrongly convicted individuals serving murder sentences. Along the way, it has developed a media profile that would be the envy of any grassroots, volunteer organization," it continues;

"Scores of prisoners from the U.S. to Mexico and Australia have sought help from the association, a global leader in the wrongful-conviction movement.

The association grew out of the Justice for Guy Paul Morin Committee, formed in 1992 to support Mr. Morin, who had been convicted of murdering his next-door neighbour, Christine Jessop.

Operating pro bono and with financial help from the Law Foundation of Ontario, a shifting group of 25 to 50 AIDWYC lawyers sift through pleas for help in search of those where prosecution evidence was scanty or appears to have been compromised.

Activists invariably list lack of funding as the overriding factor causing innocent people to remain in prison. A single case can consume hundreds of hours of work as lawyers reinterview witnesses, scrutinize transcripts and scour archives for unnoticed clues that could unravel a conviction.

The cases that AIDWYC has helped win exonerations include: William Mullins-Johnson and Steven Truscott (Ontario); David Milgaard (Saskatchewan); Greg Parsons, Ronald Dalton and Randy Druken (Newfoundland); Jim Driskell (Manitoba), and Clayton Johnson (Nova Scotia)."


Tuesday, January 20, 2009


The BBC report ran earlier today under the heading, "Juror faces action over comments."

"Keran Henderson was convicted of manslaughter on a 10-2 majority
Permission has been granted to launch contempt of court proceedings against a newspaper publisher and a jury foreman who told "secrets of the jury room","
the story began.

"Childminder Keran Henderson, 43, of Iver Heath, Bucks, was convicted in 2007 of the manslaughter of 11-month-old Maeve Sheppard, on a 10-2 majority," it continued;

"Mike Seckerson was one of two jurors who condemned the conviction.

The jurors' comments, but not their names, were published by The Times newspaper in December 2007.

Voting intentions

Henderson, a mother-of-two, had pleaded not guilty to manslaughter.

In the article, the jurors were reported to have said that Henderson was wrongly convicted of killing the child by shaking her sufficiently violently to cause blindness and brain damage.

Philip Havers QC, for the Attorney General, applied to the High Court in London for permission to bring contempt proceedings against Times Newspapers Ltd and Mr Seckerson.

Mr Havers told Lord Justice Maurice Kay and Mr Justice Simon that the article "breaches the absolute rule against disclosing the essential secrets of the jury room".

He said it revealed voting intentions of jury members and disclosed their reasoning in coming to a judgement.

The judges gave the Attorney General permission to take legal action for breaches of the 1981 Contempt of Court Act, adding "we don't think this is the very gravest case of jury indiscretion - nevertheless we grant permission"."



A U.K. Press Asociation announced earlier today that a contempt of court proceeding is being brought against the outspoken foreman of the Henderson jury - who publicly expressed disagreement with the jury's verdict - and the London-based Times;

The Association's release ran under the heading "Juror faces legal action."

"Permission has been given at the High Court for a contempt of court case against publishers of the east London-based Times and a jury foreman," the release began.

"Mike Seckerson was one of two jurors who spoke out to condemn the conviction of Keran Henderson for the manslaughter of 11-month-old Maeve Sheppard," it continued; "Their comments were revealed in an article published in December 2007."

This Blog has focussed on the juror's comments in earlier postings - and cannot re-run the controversial article because it is the subjectof the legalproceedings.

However, the fascinating issues relating to juror's who go public is discussed in anarticle which appeared in the Times under the heading, "Why juries just can’t keep quiet."

"Defence lawyers are concerned about the long-term effects of the publicity unhappy jurors are now being given," the article by Fiona Bawdon begins;

"There used to be two certainties about jury service: if you turned up at court in a suit and tie clutching a rolled-up copy of The Daily Telegraph, you wouldn’t be selected; and, if you were selected, you would be obliged to maintain an omertà-like silence about any cases you heard," it continues.

"No longer. The former belief was probably apocryphal anyway. As for the latter, far from not being able to talk about cases, some jurors now don’t seem able to keep quiet.

Jurors are forbidden under the Contempt of Court Act 1981 from revealing anything about their deliberations, but they can talk about other aspects of the trial. Last October two jurors in the Jill Dando murder trial said on BBC television they thought they had reached the wrong conclusion at the original trial. In the light of new evidence, Barry George should not have been convicted of the TV presenter’s murder, they said (a view subsequently shared by the Court of Appeal when it ordered a retrial).

More recently, two jurors in the trial of the childminder Keran Henderson have spoken about their concerns that she should not have been convicted for shaking to death a baby in her care. One was quoted on BBC radio saying that the trial had been “an absolute shambles” and jurors had “struggled” to stay awake at times.

Mike Seckerson, the foreman in the Henderson trial, is writing a book about the case, passages of which wouldn’t be out of place in a racy crime novel (“I suss the scene: the usual boxes, benches, wigs and the ominous, anachronistic garb of Santa and his helpers, the four lawyers of the apocalypse clad in vulturous black . . .”).

Lawrence Archer, the foreman in another prominent case, the ricin terror plot, is planning a book of his own, which promises to be a rather more sober read. The ricin trial lasted six months and after a month’s deliberating, the jury acquitted four of the five men accused of plotting a terror attack. Almost immediately their verdict came under attack by the police and others in the media. “There was a suggestion in some quarters we’d been duped, that the accused had got away with it, rather than been acquitted on the basis of the evidence,” Archer says.

A month later, it was reported that the four acquitted men were to be deported to Algeria, despite concerns that they would be imprisoned or tortured on their return. Archer and some of his fellow jurors were outraged. “We felt our decision was being ignored,” he says. “We wanted justice for the guys we’d cleared. We believed they were innocent and were very, very worried about what would happen to them if they were deported.”

Since then, he and two other jurors have become increasingly vocal in their criticisms of government’s treatment of the men (threatened with deportation; held in prison; subjected to stringent control orders). He has even formed what he admits is a somewhat unlikely friendship with one of the four former defendants (“We see each other about once a week”), and visits another who is being held in Long Lartin prison.

Archer, 53, a telephone engineer who describes himself as “Mr Normal”, is more surprised than anyone at his late flowering as a political activist. “Normally, I’m quite a passive person. I don’t usually get involved in this kind of stuff,” he says mildly.

Michael Mansfield, QC, who successfully defended in the ricin case, says Archer and his fellow jurors’ spirited defence of the integrity of their verdict is “entirely responsible and courageous”.

He is less convinced, however, about the wisdom of jurors going to the media when they think that the jury came to a wrong decision. “The classic case was the O. J. Simpson trial, when the jury came out saying: ‘We had to acquit him, but we think he was guilty’.” The jury reaches a collective decision and, however well motivated, if individual jurors criticise the decision afterwards, it undermines the integrity of the jury system as a whole, he says.

Mansfield’s concerns are shared by other defence lawyers. Much of the strength of the jury system stems from its mystique, they point out. No one really knows how juries work, they just do. Jane Hickman, of Hickman Rose, cautions that if jurors start arguing among themselves in public after a verdict, opportunistic politicians will seize on this to limit their use in complex or controversial cases. “Juries’ deliberations are kept secret for very good reason and it’s in all our interests that that’s preserved,” she says.

Although some defence lawyers believe the increasing trend of jurors to go public is part of the “celebrity culture” (“they want their 15 minutes . . .”), Mansfield is more charitable. He suspects they end up talking to journalists because no one else wants to listen. He would like the appeal system reformed to include a formal channel that jurors could use to bring their disquiet about a verdict to the attention of the court."


Sunday, January 18, 2009





"A BABYSITTER wrongly jailed for the murder of a two-year-old boy is calling on police watchdogs to investigate the Cleveland force's handling of the case," the Hartlepool Mail reports in a story by reporter Paul Watson published on January 16, 2009 under the heading "Wrongly-convicted mum calls for probe."

"Suzanne Holdsworth has urged the Independent Police Complaints Commission (IPCC) to probe the way the force carried out the investigation into the death of two-year-old Kyle Fisher," the story begins;

"She was jailed for life in 2005 after being convicted of murdering the youngster by banging his head against a wooden banister while minding him at her home in Millpool Close, Hartlepool, the previous summer," it continues;

"After new medical evidence was unearthed the Court of Appeal quashed her conviction in May last year and ordered a re-trial during which she was unanimously cleared by a jury at Teesside Crown Court just before Christmas.

The 38-year-old babysitter and long-term partner Lee Spencer, also 38, have highlighted a number of areas which they claim Cleveland Police failed to investigate properly.

Mum and grandmother Miss Holdsworth, who wrongly spent three years in jail, and Mr Spencer, who now live in Seacroft, Leeds, have lodged a formal complaint with the IPCC and are demanding an investigation is opened into the police handling of the murder inquiry.

The IPCC confirmed that the complaint had been received from Mr Spencer and as part of the initial process it had been forwarded to police for consideration.

A IPCC spokesman said: "A complaint has been received which has been forwarded to Cleveland Police and Cleveland Police Authority. There are various avenues for this complaint to go down."

Mr Spencer said: "We have always believed it was a flawed investigation. We are hoping that an inquiry will stop any other family having to go through what we have had to endure through a flawed police investigation.

"Suzanne spent three years in prison for a crime that never happened thanks to the original investigations by Cleveland Police."

Cleveland Police Chief Constable Sean Price recently issued a lengthy statement in which he said his officers had acted "diligently"and "professionally".

A spokesman for Cleveland Police Authority said: "The Independent Police Complaints Commission has informed us of a complaint relating to the investigation into the murder of Kyle Fisher and a recent statement to the media by the chief constable.

"The authority will now begin the process of considering the complaint in accordance with the Police Reform Act 2002.""


Friday, January 16, 2009





Cassandra Jardine has written powerful stories on the Sally Clark and related cases for The Telegraph;

Ms. Jardine asks whether lessons have been learnt from the Sally Clark case in a story which appeared on March 16, 2008 that refers to both the Keran Henderson and Suzanne Holdsworth prosecutions; (At the time of publication Ms. Holdsworth had not yet been acquitted on her retrial after spending three years in prison);

The story ran under the following preface: "In 2003 Sally Clark was released from jail after being falsely accused of murdering her two sons. She never recovered from the trauma and died a year ago, effectively of a broken heart. Cassandra Jardine looks at how such a gross miscarriage of justice could occur and asks whether lessons have been learnt;"

'Baby shake' evidence could clear minder"

"Exactly a year ago Sally Clark died, aged 42, while her solicitor husband, Steve, was on a business trip," the story began;

"At an inquest her death was ascribed to acute alcohol poisoning resulting from her grief and 'enduring personality change after a catastrophic experience," it continued;

"In other words she never recovered from the nightmare that began on December 13, 1996, when her first son, 11-week-old Christopher, stopped breathing."

Mothers never get over the death of a baby, though they may move on. For Sally - once a bright and capable solicitor - even that was not possible. Two years later her second child, Harry, who was eight weeks old, also died suddenly. From that moment Sally received not sympathy but condemnation. Paediatricians decided - in line with what was then current thinking on child abuse - that two deaths in a family was suspicious and a Crown Court jury found her guilty of murdering both of her sons. 'Die, woman, die,' other prisoners shouted out as she climbed into the prison van.

What happened next made legal history. In January 2003, after serving three and a half years of a life sentence, Sally was freed. The defence at her second appeal revealed that Harry's body had been riddled with the bacterium staphylococcus aureus, which would have caused a form of meningitis - information that the prosecution pathologist Dr Alan Williams had not shared with Sally's defence at her trial. As she left the High Court, Sally declared, 'There are no winners here.'

Others charged with similar crimes, however, hoped that lessons would be learnt from what was called in the Court of Appeal 'one of the worst miscarriages of justice in recent years'. The way the medical evidence was presented to court was 'shoddy', said Dr Sam Gullino, a forensic pathologist from Florida, who prepared a report for Sally's second appeal. 'Sound medical principles were abandoned in favour of over-simplifications, over-interpretations, exclusion of relevant data and the imagining of non-existent findings.'

For a short while it looked as if the tide had turned. Inherited disorders were found to explain other babies' deaths: three other mothers, Trupti Patel, Angela Cannings and Donna Anthony, accused of shaking or smothering their own children, were found not guilty or had their convictions quashed. Meadow's Law - named after Prof Sir Roy Meadow - was discredited: no longer were two cot deaths in a family to be deemed suspicious and three murder unless proved otherwise. Summing up at Cannings' appeal in December 2004, Lord Justice Judge said that courts should not convict on disputed medical evidence alone: 'It is better for some of the guilty to go unpunished than for innocent women to be jailed.'

But, the cheers were short-lived. Fast-forward three years to last November. Once again the scene is a courtroom. This time the woman on trial is mother-of-two Keran Henderson, a childminder who was looking after 11-month-old Maeve Sheppard at her home in Iver Heath, Buckinghamshire, in March 2005 when - according to Keran - the child suddenly went floppy. Maeve died in hospital two days later, and Keran was accused of having caused Maeve's death by shaking her violently, having lost her temper over a dirty nappy.

As the verdict of guilty was delivered, Keran let out a piteous wail. 'If you could hear, as we did, the sound of that woman's grief you too might think her honest,' Mike Seckerson, the foreman of the jury, said. But it wasn't this alone that caused him to reveal his 'disgust' at the way the trial was conducted. He and the other medically unqualified jurors were bombarded by information from a dozen medical experts. The majority of the jury 'listened to expert opinion and thought it evidence', leaving Seckerson with the unhappy task of delivering a majority verdict with which he disagreed.

Seckerson is not alone in fearing that yet another terrible miscarriage of justice has occurred. Jack Straw, the minister for justice, has been inquiring solicitously about Keran's comfort in prison, says her husband Iain, who is campaigning to bring his wife home to their nine- and 14-year-old sons. Neighbours have rallied around in support of a woman who had been a respected childminder for seven years, ran the local Beaver Scout group, helped elderly neighbours and was always up for any charity event. Neither of her own children has ever suffered at her hand. Significantly, Maeve had been in and out of hospital during her short life, yet none of this counted. Someone had shaken the child, medical experts concluded, on the basis of certain signs.

'As an ex-policeman, I can't get my head around the fact that people are found guilty without any real evidence,' Iain says. 'There's no CCTV footage, no witness statement or weapon with fingerprints or blood. I think doctors are scared of saying, I don't know what happened.'

He is shocked that no one from the police or the CPS that he encountered was medically trained. 'I know the pressure is on the police to get results, to find someone guilty, but I wasn't even asked for my statement. Nor did they question the other children who were in the house that afternoon, who went home calm and happy. Would they have behaved like that if Keran had flown into a rage?'

Keran is not the only person in prison for a crime that might never have occurred. Suzanne Holdsworth, another childminder, is three years into a life sentence for causing the death of two-year-old Kyle Fisher who also, she says, went floppy. Doctors have compared the bleeding in his brain with injuries that would occur as the result of being thrown from a car at 60mph, yet he was not bruised and the banisters against which she supposedly battered him bear no traces of DNA. Chaha'Oh-Niyol Kai-Whitewind is in prison for suffocating her son, though her appeal may reveal natural causes as an alternative explanation for his nosebleed and blood found in the lungs.

Criminal convictions for harming children are just the visible tip of the iceberg. A far greater number of cases, where the evidence is insufficient for a criminal trial, are heard in the family courts, where on the 'balance of probabilities' parents are deemed to have harmed or (yet more vaguely because of 'personality disorders') be capable of harming children who are then removed from them, often at birth.

Information about family court cases is hard to obtain. Proceedings are secret so no one knows which experts are saying what, though observers note clusters of similar cases involving certain consultants. Parents claim that they are being accused of emotional and physical abuse on the basis of theories or syndromes that are not as foolproof as is claimed.

In the year since Sally Clark died, those facing family court proceedings have at last acquired a champion in the form of the Liberal Democrat MP John Hemming who set up Justice for Families after his girlfriend's baby was nearly taken from her because she had once failed to report a stillbirth. His office at the House of Commons contains files on more than 200 individual cases, which he uses to identify patterns and lobby for changes in the law. 'I hear of a new case almost every day,' he says.

'Smothering' has gone out of fashion as an accusation. So has 'salt poisoning', which Ian and Angela Gay were accused of. The couple were released from prison in 2006 when it was shown, at appeal, that their foster son Christian Blewitt suffered from a faulty osmostat, which allowed his body to accumulate fatally high levels of sodium. They had not, as was claimed, force-fed him teaspoons of salt.

There remain, however, two controversial medical diagnoses: shaken baby syndrome (SBS), a cluster of symptoms deemed to indicate shaking; and metaphyseal fractures, which are fractures at the ends of the long arm and leg bones, believed to denote that a child's limbs have been wrenched.

Events usually start with a paediatrician or radiologist who flags up the possibility of non-accidental injury (NAI). Social workers and police officers then look for evidence, sometimes ignoring information about good character or happy family life. And often solicitors acting for the defence are 'supine', says Bill Bache, who having successfully represented Angela Cannings and the Gays is now working on Keran Henderson's appeal.

Bache, like Hemming, has many suggestions for improving the system: a thorough multi-disciplinary discussion of possible causes of injuries or illness before cases proceed being one of them. At the heart of the problem, he says, lies 'angled dogmatism' on the signs and symptoms of abuse and a willingness by some doctors to give opinions outside of their areas of expertise. 'I am handling 35 cases of parents accused of child abuse at the moment,' he says. 'All medical conundrums.'

The drive to hold parents accountable for abusing children began in 1962 when a Colorado paediatrician, Dr Henry Kempe, published his research into 'battered child syndrome'. Drawing on 302 cases of abuse of children under three, he concluded that 'beating of children is not confined to people with a psychopathic personality or of borderline socioeconomic status'; parents often denied causing the injuries but 'to the informed physician, the bones tell a story the child is too young or frightened to tell'.

This information was shocking. It had always been accepted that psychopaths, addicts, sociopaths or even women suffering from post-natal depression could harm children. Kempe was saying that apparently normal, loving people could be abusers. His research changed the role of paediatricians; it became their task to spot hidden abuse.

Identifying the signs provided a useful career opportunity for ambitious doctors in the 1970s and 80s. Dr John Caffey in the US wrote the first influential paper establishing SBS in 1973. In Britain, Prof Sir Roy Meadow, author of the ABC of Child Abuse, rose to fame on the strength of his 1977 academic paper on Munchausen's Syndrome by Proxy (MSbP) - children made ill by attention-seeking adults - based on the behaviour of two mothers, one of whom had (Sir Roy claimed) poisoned her toddler with salt, while the other had contaminated her child's urine sample with her own blood. Knighted in 1996, Sir Roy was soon lecturing on the hidden epidemic of abuse and appearing as an expert witness. By the time he gave evidence at Sally Clark's trial, Sir Roy claimed to have found 81 cot deaths which were in fact murder though, unfortunately, he destroyed the data.

He told the court that he could think of no natural explanation for either of the Clarks' children's deaths and quoted the case-clinching statistic that the chances of two cot deaths in one family was one in 73 million - a figure arrived at by multiplying the incidence of one death (1:8543) by itself. It later emerged that the chance of a second death was more like one in 120 because there could be an underlying defect. Though struck off by the General Medical Council in 2005 for 'gross professional misconduct', he was reinstated the following year.

The other leading light in the drive to unearth hidden abuse in Britain was Prof David Southall. Working on aspects of MSbP in the late 1980s and early 90s, he videoed parents whom he suspected of suffocating children. Thirty-three parents or step-parents were prosecuted, though the evidence may have been unreliable: clasping a child to the chest could, for example, indicate feeding rather than smothering. The Clark case was also his undoing when, having merely seen Steve on tele­vision, he stated to police that it was 'beyond reasonable doubt' that Steve had murdered his sons. A three-year ban from child protection work followed in 2004; in December 2007 he was struck off for, among other charges, concealing the medical records of some 4,500 children.

Sir Roy and Southall are unrepentant but, in Canada, there has been an inquiry into the actions of Dr Charles Smith who was for two decades one of Canada's top forensic pathologists. He testified in 45 cases dating back to 1991, to children being suffocated, sodomised and shaken. Many of those parents have since been exonerated. 'I believe I heard what I wanted to hear,' he admitted at the inquiry in January.

But the fall from grace of some of the theorists of abuse has not made as much difference as expected. The term 'noble cause corruption' has entered the language. The tainted term MSbP has fallen into disuse, only to be replaced by another set of initials, FII - Factitious or Induced Illness. Real abuse is still being missed, as in the case of Victoria Climbié, partly because social services are busy investigating false allegations. Change is slow, says Penny Mellor, who campaigns against non-scientific medical syndromes such as MSbP, because a small coterie of expert medical witnesses are sticking to theories that have been undermined by subsequent research. 'We have pathologists who don't have adequate training and experts who are so busy being experts that they have little time to keep up to date.'

Sir Roy's portrait still hangs in the London offices of the Royal College of Paediatrics and Child Health. 'Why not? He is a past president,' says Prof Terence Stephenson, the dean of the medical school at Nottingham University and the college's vice-president for science and research. He is one of the doctors who has adopted attack as the best form of defence in response to the fall of Sir Roy and Southall. Speaking as Professionals Against Child Abuse, they argue that doctors are being victimised by parents and the media who deny the reality of child abuse. 'Protect doctors to protect children,' he wrote to the Prime Minister in February, following a report on the case of Jessica Randall, whose abuse at the hands of her father was missed by 30 professionals.

False allegations campaigners consider Prof Stephenson a 'hawk' who has appeared in 50 cases: he prefers, he says, civil cases where a single expert witness is jointly appointed. 'In criminal cases you have to be willing to be countermanded and cross-examined' - although later he says that 'an expert is only tested by being challenged by another expert'. Stephenson comes across as a pleasant man, driven by a passionate belief in his cause. 'I have two children. If someone were to accuse me of harming them I would be heartbroken. But our role at the Royal College is to do what's best for children. Child abuse is still under-diagnosed.'

I want to question him about evidence that casts doubt on current orthodox thinking. Diagnosis of SBS is based on a triad of symptoms: subdural haemorrhages, retinal haemorrhages and cerebral edema (swelling of the brain). The triad is important because regardless of other evidence, such as the absence or presence of bruises, these symptoms - particularly retinal haemorrhages - are used to diagnose abuse. Sally Clark would never have been put on trial had Harry not been found (erroneously it transpired) to have bleeding behind the eyes. Equally, Jessica Randall was never put on the 'at risk' register because MRI and eye scans showed no retinal haemorrhages.

Dr Jennian Geddes, a neuropathologist, has suggested in the Court of Appeal that the triad need not arise from shaking. Choking could be an alternative. 'She admitted in court that it was only a hypothesis,' Prof Stephenson says dismissively. (The same could be said of the theory that the triad always denotes shaking.) There is research, too, which shows that the triad can result from a fall from only 3ft, as from a bed. 'Fewer than three per cent would get retinal and subdural haemorrhages,' he replies. But are children who fall from beds always tested?

We move on to the other contentious area - meta­physeal fractures. Stephenson appears equally dismissive about possible alternatives to a diagnosis of abuse. 'I've seen hundreds. They are extra­ordinarily rare in real, witnessed accidents.' Yes, but they are also hard to see and radiologists won't look for them unless the possibility of abuse has been flagged.

When I suggest that paediatricians, especially those appearing regularly as expert witnesses, appear to have fixed minds, he counters by making a derisive comment about Dr Colin Paterson, a pathologist struck off by the GMC for suggesting for the defence in 30 cases that children could suffer from temporary brittle bones, resulting in multiple fractures. Some pathologists believe he had a viable theory, but the wrong causation. Stephenson says, 'There's no evidence to back up temporary brittle bones.'

Isn't there? Infants are being diagnosed with rickets resulting from vitamin D deficiency due to insufficient exposure to sunlight. 'Only in ethnic minorities.' Not according to research from Birmingham University, which states that one in eight Caucasian children has rickets.

'No doubt there are grey areas,' he concludes. 'If we only reported cases where we were absolutely right we would miss lots of cases. Society wants us to err on the side of caution. If society wants us to, we could go back to the situation pre-1962 and turn a blind eye.'

The problem with grey areas is their tendency to become black and white. The doctors who see a child in hospital believe absolutely in what their colleagues have published - that what they are seeing is child abuse - and alert social workers and police. They in turn hire expert witnesses who believe in the abuse diagnosis. The result is costly.

'Money is certainly wasted pursuing these cases, but I'm more concerned about the human cost,' says Bill Bache, who speaks of distraught parents not allowed to be left alone with their dying child in hospital because they have fallen under suspicion; couples often forced to live separately and encouraged to blame one another; and children denied the comfort of family life.

Yet some children do die of natural but unidentified causes. Cot deaths, for example, dropped from 30 to seven per week after 1990, when parents were advised not to put babies to sleep on their fronts. Though they may not acknowledge it, doctors can also cause harm by giving inappropriate treatment. The routine practice of resuscitating children by putting them on a drip is one that worries Penny Mellor, who campaigns on behalf of parents who claim to be wrongly accused of child abuse. 'If they aren't dehydrated, putting more fluids into them can cause swelling of the brain and bleeding,' she claims.

More information is needed to protect the innocent - children, parents and, indeed, doctors. Slowly it is emerging. When the history of false allegations is written there will be a roll-call of honour for those who have taken a fresh look at the medical conundrums and questioned orthodox thinking. Some Americans will feature: the forensic pathologist Dr John Plunkett, an expert in childhood head injuries; Dr Patrick Lantz, who has been looking at retinal haemorrhages; the biomechanics expert Dr Kirk Thibault, who has looked at the resulting impact when a child has a fall or is shaken; and Dr Chuck Hyman, who has investigated a link between short umbilical cords and weak bones.

British experts will be on that list, too: the chemical pathologist Dr Glyn Walters, who gave evidence about alternative causes of death in the Clark and Gay cases; the neuropathologists Dr Waney Squier, Dr Jennian Geddes and Dr Helen Whitwell, who have found that oxygen deprivation, possibly from choking, can cause brain swelling and bleeding; the geneticist Prof Michael Patton, who has looked at defects that can cause cot death; the ophthalmologist Gillian Adams, who was has raised doubts about retinal haemorrhages being solely indicative of shaking; Prof Nick Bishop, who is investigating why some children fracture easily; and Dr Paul Johnson, who has asked courts to take obstetric history into account.

It is not easy standing against the tide, says Dr Squier, a prosecution witness at the trial of Keran Henderson. She identified brain damage but said there was no evidence that the child had been shaken, which led to tense discussions among the medical experts. 'As a pathologist I describe what I see,' she said. 'It's not my business to say what caused an injury if I don't know.'

Despite her caution, a dozen experts who were prepared to theorise about shaking won the day and Keran Henderson is now serving a three-year prison sentence. I asked her husband Iain whether he thinks that, even if exonerated, she will emerge, like Sally Clark, a broken woman. 'I don't know if she'll survive,' he replied. 'She went to prison eight years after Sally Clark. Prisoners aren't stupid, so she hasn't been given such a hard time. I'm hoping that hers is the case that brings about real change;""