TIMOTHY COLE CASE: POSTHUMOUS PARDON IS JUST A START; ADVISORY PANEL WANTS TO MAKE SURE OTHER INNOCENT PERSONS IN TEXAS ARE NOT WRONGFULLY EXECUTED;

"COLE WAS EXONERATED BY A TRAVIS COUNTY JUDGE EARLY LAST YEAR AFTER DNA TESTING CLEARED HIM OF THE 1985 SEXUAL ASSAULT OF A TEXAS TECH UNIVERSITY STUDENT. GOV. RICK PERRY RECENTLY SAID HE WILL PARDON COLE.

JIM BETHKE, WHO HEADS THE TEXAS TASK FORCE ON INDIGENT DEFENSE AND SITS ON THE COLE PANEL, SAID THE VISIT REINFORCED THE PANEL’S SENSE OF PURPOSE.

"THIS IS THE MAN IT IS NAMED AFTER," HE SAID. "WE’RE WORKING SO THIS DOESN’T HAPPEN AGAIN."

THE PANEL’S GOAL IS TO DEVELOP LEGISLATIVE REMEDIES TO FALSE IDENTIFICATION BY EYEWITNESSES, FRAUDULENT TESTIMONY FROM SNITCHES AND OTHER CRIMINAL JUSTICE FLAWS THAT COULD LAND THE WRONG PERSON BEHIND BARS."

ALEX BRANCH: THE STAR-TELEGRAM;
PHOTO; TIMOTHY COLE;

WIKIPEDIA NOTES THAT THE FORT WORTH STAR-TELEGRAM IS A MAJOR U.S. DAILY NEWSPAPER SERVING FORT WORTH AND THE WESTERN HALF OF THE NORTH TEXAS AREA KNOWN AS METROPLEX.

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PUBLISHER'S NOTE: As the Texas Tribune reported earlier this month, Texas Governor Rock Perry has done an about turn and now says he has the legal authority to grant posthumous pardons. As the Texas Moratorium Network recently noted, "Rick Perry plans to issue a posthumous pardon to Timothy Cole, who died in prison before he could prove his innocence. Now, that Perry has acknowledged and plans to use the power to grant posthumous pardons, the door is open for him or future governors to issue pardons to innocent people already executed, such as Todd Willingham, Carlos De Luna or others, if they are convinced of their innocence." In short, Perry has opened an important door which cannot return lives wrongly taken by the State - but at least can allow them to be remembered as the innocent people they were and ensure that the State will take accountability for its actions. However, as the Star-Telegram story a posthumous pardon is just a start; Concrete steps have to be taken to avoid other innocent persons suffering the same fate. Abolition of the death penalty would be a good place to start.

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"FORT WORTH — Members of a panel reviewing flaws in the Texas legal system visited Tarrant County on Thursday to study the district attorney’s much-praised policy of making its case files open to defense attorneys," the January 28, 2010 Star-Telegram story begins, under the heading "Members of Tim Cole panel stop by his grave site."

"Before they left, several members of the Timothy Cole Advisory Panel on Wrongful Convictions paid their respects to the man in whose name they pursue change," the story continues.

"Under a heavy, cold rain, they joined Cole’s mother, Ruby Session, and his brother, Cory Session, at Cole’s headstone at Mount Olivet Cemetery in north Fort Worth.

Cole, of Fort Worth, died in prison in 1999 while serving a 25-year sentence for a crime in Lubbock that he did not commit.

"People often say that the system always worked," Cory Session told the group as he stood over his brother’s grave. "This is one case where it never worked."

Cole was exonerated by a Travis County judge early last year after DNA testing cleared him of the 1985 sexual assault of a Texas Tech University student. Gov. Rick Perry recently said he will pardon Cole.

Jim Bethke, who heads the Texas Task Force on Indigent Defense and sits on the Cole panel, said the visit reinforced the panel’s sense of purpose.

"This is the man it is named after," he said. "We’re working so this doesn’t happen again."

The panel’s goal is to develop legislative remedies to false identification by eyewitnesses, fraudulent testimony from snitches and other criminal justice flaws that could land the wrong person behind bars.

Panel members converged on Tarrant County mainly to learn more about the open-file policy, which allows defense attorneys full access to case files before trial.

The policy was enacted under late District Attorney Tim Curry.

"Tarrant County has a reputation of being among the best in the state, if not in the country," Bethke said. "We wanted to get a closer look at how it works."

Panel members gathered in the Family Law Court assembly room to quiz a prosecutor and the president of the Tarrant County Criminal Defense Lawyers Association about the philosophy.

Assistant District Attorney Tiffany Burks explained how the philosophy evolved from prosecutors sharing folders of case documents with defense lawyers to the current electronic system.

Today, defense attorneys log on to the system and view police reports, witness statements, crime scene photographs and more, she said. The system improves efficiency and helps ensure fair trials.

"We strive to make sure the defense attorney has access to everything," Burks said.

Warren St. John, president of the defense lawyers association, told the panel that he practices law across North Texas and that most counties are not nearly as forthcoming.

"A lot of counties, they’ll let you read stuff, but you can’t make a copy," St. John said. "You go to another county, and it’s not electronic. Then you go to another county, and you can’t look at anything.

"I consider it a privilege to practice law here.

He noted that Terri Moore, a former Tarrant County prosecutor who is now second in command of the Dallas County district attorney’s office, is trying to introduce an open-file policy there, where a large number of exonerations have drawn national headlines."

The story can be found at:

http://www.star-telegram.com/metro_news/story/1931480.html

Harold Levy...hlevy15@gmail.com;

BACK IN ACTION: LOOSE END; HOUSTON CRIME LAB; RADLEY BALKO POINTS OUT MORE PROBLEMS AT HOUSTON CRIME LAB;

"HOUSTON CRIME LAB ANALYSTS SKEWED REPORTS TO FIT POLICE THEORIES IN SEVERAL CASES, IGNORING RESULTS THAT CONFLICTED WITH POLICE EXPECTATIONS BECAUSE OF A LACK OF CONFIDENCE IN THEIR OWN SKILLS OR A CONSCIOUS EFFORT TO SECURE CONVICTIONS, AN INDEPENDENT INVESTIGATOR SAYS IN HIS LATEST REPORT ON THE SCANDAL. IN MORE THAN 20 CASES REVIEWED IN THIS STAGE OF THE ONGOING PROBE, THE INVESTIGATIVE TEAM CONCLUDED THAT ANALYSTS AT THE HOUSTON POLICE DEPARTMENT CRIME LAB FAILED TO REPORT THE RESULTS OF BLOOD-TYPING AND DNA TESTS THAT DID NOT IMPLICATE THE SUSPECTS POLICE HAD IDENTIFIED."

RADLEY BALKO; THE AGITATOR;

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BACKGROUND: The Houston Chronicle recently reported that although fingerprinting has been viewed by the public as a practically infallible crime-fighting tool with accuracy rates approaching 100 percent for years, its problems are not unique - and incorrect results at labs across the nation produce doubts about a discipline once thought of as an exact science. The paper continues to do an excellent job in reporting the effect that the crisis is crime labs throughout America is having on its criminal justice system - and the need for an overhaul. Nor is America unique. This Blog has reported major problems with crime labs elsewhere in the world - most recently Australia.

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"An independent audit of 548 fingerprint analyses done by the Houston crime lab found “irregularities” in more than half of them," Radley Balko's January 13th Agitator column begins, under the heading "More Problems at the Houston Crime Lab."

"Two analysts have been put on leave, one has resigned," Balko continues.

"The three had worked cases in the lab for a combined 84 years.

This is the third forensics scandal to hit Houston in the last several years. In 2006, another independent audit found that…

Houston crime lab analysts skewed reports to fit police theories in several cases, ignoring results that conflicted with police expectations because of a lack of confidence in their own skills or a conscious effort to secure convictions, an independent investigator says in his latest report on the scandal.

In more than 20 cases reviewed in this stage of the ongoing probe, the investigative team concluded that analysts at the Houston Police Department crime lab failed to report the results of blood-typing and DNA tests that did not implicate the suspects police had identified.

That came a few years after local media exposed other problems with the credibility of the lab’s experts and its shoddy handling of forensic evidence. In 2004, the Houston Chronicle reported a number a number of questionable autopsies done by Harris County Medical Examiner Patricia Moore, who colleagues accused of tailoring her findings to please prosecutors.

Seems like a good time to note another forensics-related story this week: On Monday the Supreme Court heard oral arguments in Briscoe v. Virginia, a case many court watchers say could undo or limit last term’s decision in Melendez-Diaz v. Massachusetts, which established the right of criminal defendants to cross-examine crime lab experts (as opposed to having experts submit signed lab reports).

The court’s membership has changed since the 5-to-4 decision in June in Melendez-Diaz v. Massachusetts, which said that the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him,” does not allow the mere presentation of a lab report to prove, say, that white powder found with a defendant was cocaine.

Justice Antonin Scalia, who wrote the majority opinion in Melendez-Diaz, said there was only one reason to revisit the issue so quickly.

“Why is this case here except as an opportunity to upset Melendez-Diaz?” he asked. After a lawyer tried to answer what was a rhetorical question, Justice Scalia made his meaning plain: “I’m criticizing us for taking the case.”

I wrote about Melendez-Diaz last August. Ideas on how to reform the forensics system here.

CORRECTION: A spokesman from Houston PD called to say that the while fingerprint unit is part of the Houston Police Department, it is separate from the Houston Crime Lab. Apologies for the error."

The column can be found at:

http://www.theagitator.com/2010/01/13/more-problems-at-the-houston-crime-lab/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+radleybalko+%28The+Agitator%29

Harold Levy...hlevy15@gmail.com

MORE ON LUDOVIC KENNEDY AND THE CAMPAIGN TO OBTAIN A POSTHUMOUS PARDON FOR TIMOTHY JOHN EVANS; THE TIMELESS QUEST FOR EXONERATION; WIKIPEDIA;

"ROY JENKINS, SOSKICE'S SUCCESSOR AS HOME SECRETARY, RECOMMENDED A ROYAL PARDON FOR EVANS, WHICH WAS GRANTED. IN 1965 EVANS' REMAINS WERE EXHUMED FROM PENTONVILLE PRISON AND REBURIED IN ST PATRICK'S ROMAN CATHOLIC CEMETERY IN LEYTONSTONE, GREATER LONDON.[14] THE OUTCRY OVER THE EVANS CASE CONTRIBUTED TO THE SUSPENSION AND THEN ABOLITION OF THE DEATH PENALTY IN THE UNITED KINGDOM." WIKIPEDIA;
PHOTO: LUDOVIC KENNEDY;

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PUBLISHER'S NOTE: While enduring a seasonal retreat recently under the hot Florida sun, I stumbled upon a past issue of the "Economist" and learned that Ludovic Kennedy had died of pneumonia in a nursing home in Salisbury, Wiltshire, on 18, October, 2009. I became an admirer of Ludovic Kennedy after reading "10 Rillington Place," which led to the posthumous pardon of Timothy Evans who had been wrongly convicted and hung for the murder of his baby daughter. (The Evans case has often been cited as one of the factors which led to the abolishment of capital punishment in the UK.) I hope that some day soon all of the investigative work which has been done to show that Cameron Todd Willingham was similarly wrongfully convicted and executed, will lead to his posthumous pardon and to the abolishment of capitol punishment in the U.S.A.

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"Timothy John Evans (20 November 1924 – 9 March 1950) was a Welshman hanged in England in 1950 for the murder of his infant daughter at 10 Rillington Place, London," the Wikipedia entry on the Timothy Evans case begins.

"An official inquiry conducted 16 years after Evans's hanging determined that his daughter had been killed by his co-tenant, serial killer John Christie, and Evans was subsequently granted a posthumous pardon," it continues.

"The case played a large part in the abolition of capital punishment in Britain, and is considered a major miscarriage of justice.

Early life

Evans was a native of Merthyr Tydfil in South Wales. His biological father abandoned the family in 1924 shortly before Evans's birth. Evans had an older sister Eileen and a younger half-sister Maureen, born when Evans's mother re-married in 1929. As a child, Evans had difficulty learning to speak and struggled at school. Following an accident when he was 8, Evans developed a tubercular verucca on his right foot which never completely healed and which caused him to miss considerable amounts of time from school for treatments; this further set back his education. Consequently, he was unable to read or write anything beyond his name as an adult. As a child, Evans was considered to have a bad temper and was prone to tantrums. He also told elaborate lies about himself, a trait which persisted as an adult.

In 1935 his mother and her second husband moved to London and Evans worked as a painter and decorator while attending school. He returned to Merthyr Tydfil in 1937 and briefly worked in the mines but had to resign because of continuing problems with his foot. In 1939 he returned to London to live again with his mother. In 1946 they moved to St Mark's Road, Notting Hill, just over two minutes' walk from 10 Rillington Place, his future residence after he married.

Married life

On 20 September 1947, Evans married Beryl Susanna Thorley, whom he had met through a friend. They initially lived with Evans's family at St Mark's Road but in early 1948 Beryl discovered she was pregnant and they decided they would find their own place to live with their child. In Easter 1948, the couple moved into the top-floor flat at 10 Rillington Place, Ladbroke Grove, Notting Hill, London. Their neighbours in the ground-floor flat were John Christie and his wife. Unknown to Evans, Christie was a serial killer who had already killed two women at the property prior to the Evanses' arrival; he would go on to murder at least another three women as well as his wife while living at the premises. Timothy and Beryl's daughter Geraldine was born on 10 October 1948.

Their marriage was characterised by angry quarrels, exacerbated by Beryl's poor housekeeping and inability to manage the family's finances. However, Timothy also misspent his wages on alcohol and his heavy drinking at the time exacerbated his already short temper. The arguments between Timothy and Beryl were loud enough to be heard by the neighbours and on several occasions Timothy physically assaulted Beryl. In late 1949, Beryl revealed to Timothy that she was pregnant with their second child. Since the family was already struggling financially, Beryl decided the only course to take would be to have an abortion; after some reluctance, Evans agreed to this course of action.

Events leading to Evans's arrest

rear view of three storey brick terrace house and small backyard garden
Rear view of 10 Rillington Place, showing the backyard where Christie buried the bodies of Ruth Fuerst and Muriel Eady. The wash-house where the bodies of Beryl and Geraldine Evans were found is the building with the light-coloured tin roof situated farthest from the main house.

Several weeks later, on 30 November 1949, Evans informed police at Merthyr Tydfil, Wales that he had killed his wife. His initial confession was that he had accidentally killed her by giving her something in a bottle that a man had given him to abort the foetus; he had then disposed of her body in a sewer drain outside 10 Rillington Place. He told the police that, after arranging for Geraldine to be looked after, he had gone to Wales. When police examined the drain outside the front of the building, however, they found nothing and, furthermore, discovered that the manhole cover required the combined strength of all three officers to remove it.

When re-questioned, Evans changed his story and said that Christie had offered to perform an abortion on Beryl. After some deliberation between Evans and his wife, they had both agreed to take up Christie's offer. On 8 November, Evans had returned home from work to be informed by Christie that the abortion had not worked and that Beryl was dead. Christie had said that he would dispose of the body (abortion being illegal in the U.K. at the time) and would make arrangements for a couple from East Acton to look after Geraldine. He said that Evans should leave London for the meantime. On 14 November, Evans left for Wales to stay with relatives. Evans said he later returned to 10 Rillington Place to ask about Geraldine, but Christie had refused to let him see her.

In response to Evans's second statement, the police performed a preliminary search of 10 Rillington Place but did not uncover anything incriminating, despite the presence of a thigh bone propping up a fence post in the tiny garden. On a more thorough search on 2 December, the police found the body of Beryl Evans, wrapped in a tablecloth in the wash-house in the back garden. Significantly, however, the body of Geraldine was also found, alongside Beryl's body—Evans had not mentioned he had killed his daughter in either of his statements. Beryl and Geraldine had both been strangled. When Evans was shown the clothing taken from the bodies of his wife and child, he was also asked whether he was responsible for their deaths. This was, according to Evans's statement, the first occasion in which he was informed that his baby daughter had been killed. To this, Evans apparently responded, "yes, yes". He then confessed to having strangled Beryl during an argument over debts and strangling Geraldine two days later, after which he left for Wales.

This confession, along with other, contradictory, statements Evans made during the police interrogation, is often cited as proof of his guilt. Ludovic Kennedy, however, argued that his interrogation was worded by the investigating officers and carried out over the course of late evening and early morning hours to the physical and emotional detriment of the accused, a man in a highly emotional state at the time. The police investigation was marked by a lack of forensic expertise, with key evidence missed or ignored, such as the bones of Christie's earlier victims in the back garden of 10 Rillington Place.

Trial and conviction

Evans was put on trial for the murder of his daughter on 11 January 1950 (in accordance with legal practice of the time, the prosecution proceeded only with the charge of murdering Geraldine; Beryl's murder, with which Evans was still formally charged, was "left on file", though evidence from this murder was allowed to be used to prove the murder of Geraldine). He was represented by Malcolm Morris. Evans recanted his confession during consultations with his solicitor and alleged that Christie had been responsible for the murders all along. This was to be the basis of the defence at his trial, which Evans maintained as the truth until his execution.

Christie and his wife, Ethel, were key witnesses for the prosecution, with Christie denying that he had offered to perform an abortion of Beryl’s unborn child. The case ultimately came down to Christie’s word against Evans'. The defence brought Christie’s criminal record into the trial, but his apparent reformation, and his service with the police, impressed the jury. The prosecution then used Evans' confessions, and his reputation as a compulsive liar, against him. The course of the trial rapidly turned against Evans, who was found guilty two days later—the jury taking just 40 minutes to come to its decision. After a failed appeal on 20 February, Evans was hanged on 9 March 1950 by Albert Pierrepoint.

This outcome was severely criticised when Christie's murders were discovered three years later. During interviews with police and psychiatrists prior to his execution, Christie admitted several times that he had been responsible for the murder of Beryl Evans. It is speculated that if these confessions were true, Evans' second statement detailing Christie's offer to abort Beryl's baby is the true version of events that took place at Rillington Place on 8 November 1949. Kennedy provided one possible reconstruction of how the murder took place, where an unsuspecting Beryl lets Christie into her apartment, expecting the abortion to be carried out, and is instead attacked and then strangled. Christie claimed to have possibly engaged in sexual intercourse with Beryl's body after her death (he could not remember the precise details) but her autopsy had failed to uncover evidence of sexual intercourse. In his confessions to Beryl's death, Christie did not corroborate the version of events given by Evans in his second police statement; that is, he did not say he had agreed to carry out an abortion on Beryl. He instead claimed to have strangled her while being intimate with her or that she had wanted to commit suicide and he helped her do so.

One important fact was not brought up in Evans's trial: two workmen were willing to testify that there were no bodies in the wash-house when they worked there several days after Evans supposedly hid them. This would have raised doubts about the truthfulness of Evans' confession and the workmen were not called to give evidence. The murderer would have had to have hidden the bodies of Beryl and Geraldine in the temporarily vacant second-floor apartment, and then moved them to the wash-house four days later when the workmen had finished.

Christie

Three years later, a new tenant in Christie's flat, Beresford Brown, found the bodies of three women (Kathleen Maloney, Rita Nelson and Hectorina Maclennan) hidden in the papered-over kitchen pantry, a recess immediately next to the wash house where Beryl and Geraldine Evans had been found. A further search of the building and grounds turned up three more bodies: Christie’s wife, Ethel, under the floorboards of the front room; Ruth Fuerst, an Austrian nurse and munitions worker; and Muriel Eady on the right hand side of the back garden area to the building. Indeed, Christie had used one of their thigh bones to prop up a trellis in the garden, which the police had missed in their earlier examination of the garden. Christie was arrested on 31 March 1953, on the Embankment near Putney Bridge and during the course of interrogation confessed four separate times to killing Beryl Evans. He never admitted to killing Geraldine Evans, however. Christie was found guilty of murdering his wife and was hanged on 15 July 1953.

Because Christie's crimes raised doubts about Evans's guilt in the murders of his wife and daughter, the serving Home Secretary, David Maxwell-Fyfe, commissioned an inquiry to investigate the possibility of a miscarriage of justice. It was chaired by the Recorder of Portsmouth, John Scott Henderson, QC, who upheld Evans's guilt in both murders, arguing that Christie's confessions of murdering Beryl were unreliable and made in the context of furthering his own defence that he was insane.

The murder of Beryl Evans was never a primary charge in either of the trials of Evans or Christie. The former had been charged with the murder of his daughter and the latter with the murder of Mrs Christie. Hence questions that went to the murder of Mrs Evans were not those with which the trials were especially concerned. When Christie was later the subject of the Scott Henderson Inquiry, questions drafted by a solicitor representing Evans's mother were deemed not relevant and Scott Henderson retained the right of deciding if they could be asked.

Campaign to overturn Evans' conviction

In 1955, David Astor, editor of The Observer, Ian Gilmour, editor of The Spectator, John Grigg, editor of The National and English Review and Sir Lynton Andrews, editor of The Yorkshire Post formed a delegation to petition the Home Secretary for a new inquiry because of their dissatisfaction with the conclusions of the Scott Henderson Inquiry. In the same year, attorney Michael Eddowes examined the case and wrote the book The Man on Your Conscience, which argued that Evans could not have been the killer. The television journalist Ludovic Kennedy's book Ten Rillington Place went on to criticise the police investigation and evidence submitted at the 1950 trial in which Evans was found guilty. This produced another Parliamentary debate in 1961 but still no second inquiry.

In 1965, Liberal Party politician Herbert Wolfe of Darlington, County Durham contacted Harold Evans (no relation), the editor of The Northern Echo. He and Kennedy formed the Timothy Evans Committee. The result of a prolonged campaign was that the Home Secretary, Sir Frank Soskice, ordered a new inquiry chaired by High Court judge Sir Daniel Brabin in 1965–66. Brabin found it was "more probable than not" that Evans murdered his wife and that he did not murder his daughter. This was contrary to the position taken by both the police and solicitors in Evans's trial, who believed that whoever had killed Geraldine had also killed Beryl. The bodies were found together in the wash-house and had both been strangled.

Roy Jenkins, Soskice's successor as Home Secretary, recommended a royal pardon for Evans, which was granted. In 1965 Evans' remains were exhumed from Pentonville Prison and reburied in St Patrick's Roman Catholic Cemetery in Leytonstone, Greater London. The outcry over the Evans case contributed to the suspension and then abolition of the death penalty in the United Kingdom.

Innocence

The grave of Timothy Evans

On 16 November 2004, Evans' half-sister, Mary Westlake, began a case to overturn a decision by the Criminal Cases Review Commission not to refer Evans' case to the Court of Appeal to have his conviction quashed. She argued that although the previous inquiries concluded that Evans probably did not kill his daughter, they did not declare him innocent, since a pardon is a forgiveness of crimes committed. The request to refer the case was dismissed on 19 November 2004, with the judges saying that the cost and resources of quashing the conviction could not be justified, although they did accept that Evans did not murder his wife or child.

Timothy Evans in popular culture

* Ewan MacColl wrote the song "The Ballad of Tim Evans" (also known as "Go Down You Murderer") about the case. This song appears in the Roger Corman movie A Bucket of Blood. It was also covered by Christy Moore in his album Whatever Tickles Your Fancy.
* The film 10 Rillington Place was released in the UK on 10 February 1971. It was directed by Richard Fleischer and starred Richard Attenborough as Christie, Judy Geeson as Beryl Evans, and John Hurt as Timothy Evans."

This Wikipedia entry can be found at:

http://en.wikipedia.org/wiki/Timothy_Evans

Harold Levy...hlevy15@gmail.com;

UPDATE: DARIUS TSATSI; BARRED FROM PRACTICING MEDICINE IN SASKATCHEWAN; MESSAGE SENT TO ANY OTHER JURISDICTION; SASKATCHEWAN NEWS NETWORK;

"AT A COUNCIL MEETING OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF SASKATCHEWAN FRIDAY AFTERNOON, TSATSI WAS RULED NOT COMPETENT TO BE LICENSED. ALTHOUGH TSATSI DECIDED BEFORE FRIDAY TO LET HIS LICENSE EXPIRE VOLUNTARILY, THE COLLEGE'S ASSOCIATE REGISTRAR, BRYAN SALTE, SAID IT WAS IMPORTANT FOR THE COUNCIL TO SEND A MESSAGE.

"IT'S NOT JUST A MESSAGE TO THE COLLEGE (IN SASKATCHEWAN), BUT TO ANY OTHER PLACE DR. TSATSI MAY WISH TO PRACTICE," SALTE SAID."

REPORTER JASON WARICK; SASKATCHEWAN NEWS NETWORK;

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BACKGROUND: Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

The Canadian Broadcasting Corporation reported on May 31, 2009, that: "Questions of competency were raised 2½ years ago about the radiologist (Dr. Darius Tsatsi) whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says."

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"REGINA — Dr. Darius Tsatsi, the Yorkton radiologist whose questionable work was subjected to a massive review, has been barred from practising medicine in Saskatchewan," the story by reporter Jason Warick published earlier today under the heading "Yorkton radiologist Dr. Darius Tsatsi barred from practising in Saskatchewan" begins.

"At a council meeting of the College of Physicians and Surgeons of Saskatchewan Friday afternoon, Tsatsi was ruled not competent to be licensed," the story continues.

"Although Tsatsi decided before Friday to let his license expire voluntarily, the college's associate registrar, Bryan Salte, said it was important for the council to send a message.

"It's not just a message to the college (in Saskatchewan), but to any other place Dr. Tsatsi may wish to practice," Salte said.

Tsatsi was not present at the council hearing. His lawyer, Michelle Ouellette, said the process has been stressful for him, but she took no issue with the process or findings.

Ouellette said she's not sure what Tsatsi plans to do in the future.

Last year, the Yorkton radiologist signed an agreement with the college that he would not practice until today's council meeting.

Tsatsi voluntarily suspended his practice when the Ministry of Health and the Sunrise Health Region ordered a review of more than 69,000 radiology tests that he had read. The competency review was ordered after the College of Physicians and Surgeons notified the region of serious concerns about possible interpretations.

The college raised the concerns following a 2008 quality-assurance audit of 103 randomly selected diagnostic tests interpreted by Tsatsi between May 28 and Nov. 14, 2008.

On Nov. 18, 2009, the region released a mid-point update on its independent patient safety intervention review of the radiology tests examined by Tsatsi during the five years he worked for the region.

Of the 39,711 exams re-read to that date, just under 950 diagnostic images — or 2.38 per cent of the diagnostic exams perused by Tsatsi — were deemed to have enough of a variance in interpretation to potentially affect patient care."

The story can be found at:

http://www.leaderpost.com/entertainment/Yorkton+radiologist+Darius+Tsatsi+barred+from+practising+Saskatchewan/2500025/story.html

Harold Levy...hlevy15@gmail.com;

UPDATE; CAMERON TODD WILLINGHAM CASE: NO REVIEW OF FORENSIC ANALYSIS AS ANTICIPATED; COMMISSION WILL NOT MEET UNTIL APRIL 23; ASSOCIATED PRESS;

"THE TEXAS FORENSIC SCIENCE COMMISSION DID NOT RESUME ITS INVESTIGATION OF THE ARSON EVIDENCE THAT LED TO A 2004 EXECUTION," THE STORY CONTINUES. "LAST SUMMER, THE PANEL RECEIVED AN ARSON EXPERT'S REPORT THAT THE ARSON INVESTIGATION THAT LED TO THE CONVICTION OF CAMERON TODD WILLINGHAM WAS SO FLAWED THAT ITS ARSON FINDING COULD NOT BE SUPPORTED. WILLINGHAM WAS EXECUTED BECAUSE OF THAT CONVICTION IN THE DEATHS OF HIS THREE DAUGHTERS IN A HOUSE FIRE NEAR CORSICANA."

THE ASSOCIATED PRESS;

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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Two days before the Forensic Science Commission was to question Beyler in a public forum, the governor replaced its chairman and two other members whose terms were up. That forced the commission to delay the hearing so new members could read up on the case, and no new date has been set. Perry has since replaced a third member of the commission.

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"HARLINGEN, Texas — In its first meeting since July, a state panel investigating allegations of misconduct and negligence in forensic analyses has hammered out its procedures," today's Associated Press story begins, under the heading "Texas panel meets, skips talk of Willingham case."

"But the Texas Forensic Science Commission did not resume its investigation of the arson evidence that led to a 2004 execution," the story continues.

"Last summer, the panel received an arson expert's report that the arson investigation that led to the conviction of Cameron Todd Willingham was so flawed that its arson finding could not be supported. Willingham was executed because of that conviction in the deaths of his three daughters in a house fire near Corsicana.

The commission scheduled its next meeting for April 23 in Fort Worth."

The story can be found at:

http://www.chron.com/disp/story.mpl/ap/tx/6842355.html

Harold Levy...hlevy15@gmail.com;

UPDATE; DR. DARIUS TSATSI; ACCUSED OF MISREADING MEDCAL IMAGES; HAS NOT RENEWED LICENSE TO PRACTICE IN SASKATCHEWAN; HEARING TODAY; CANADIAN PRESS;

BACKGROUND: Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

The Canadian Broadcasting Corporation reported on May 31, 2009, that: "Questions of competency were raised 2½ years ago about the radiologist (Dr. Darius Tsatsi) whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says."

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"REGINA - A Saskatchewan radiologist whose work sparked a review of 70,000 exams has not renewed his medical licence in the province," the Canadian Press reported on January 28, 2010, under the heading "Saskatchewan radiologist at centre of 70,000 exam review doesn't renew licence"

"Bryan Salte, with the College of Physicians and Surgeons of Saskatchewan, says Dr. Darius Tsatsi was supposed to renew his licence at the start of the year but did not," the story continues.

"The radiologist is scheduled to appear before the college council Friday to discuss his fate after he was found incompetent.

Salte says he'll ask the council to order that Tsatsi not be allowed to practice radiology in Saskatchewan, but adds that could be reviewed in the future if, for example, Tsatsi gets more training.

Tsatsi voluntarily stopped practising in May when the review was ordered after concerns were raised about his interpretation of images.

The Sunrise Health Region said in November that the review was more than half complete and flaws were found in just over two per cent of the cases."

The story can be found at:

http://www.winnipegfreepress.com/canada/breakingnews/82990672.html

Harold Levy...hlevy15@gmail.com;

TIMOTHY COLE CASE: POSTHUMOUS PARDON IS JUST A START; ADVISORY PANEL WANTS TO MAKE SURE OTHER INNOCENT PERSONS IN TEXAS ARE NOT WRONGFULLY EXECUTED;

"COLE WAS EXONERATED BY A TRAVIS COUNTY JUDGE EARLY LAST YEAR AFTER DNA TESTING CLEARED HIM OF THE 1985 SEXUAL ASSAULT OF A TEXAS TECH UNIVERSITY STUDENT. GOV. RICK PERRY RECENTLY SAID HE WILL PARDON COLE.

JIM BETHKE, WHO HEADS THE TEXAS TASK FORCE ON INDIGENT DEFENSE AND SITS ON THE COLE PANEL, SAID THE VISIT REINFORCED THE PANEL’S SENSE OF PURPOSE.

"THIS IS THE MAN IT IS NAMED AFTER," HE SAID. "WE’RE WORKING SO THIS DOESN’T HAPPEN AGAIN."

THE PANEL’S GOAL IS TO DEVELOP LEGISLATIVE REMEDIES TO FALSE IDENTIFICATION BY EYEWITNESSES, FRAUDULENT TESTIMONY FROM SNITCHES AND OTHER CRIMINAL JUSTICE FLAWS THAT COULD LAND THE WRONG PERSON BEHIND BARS."

ALEX BRANCH: THE STAR-TELEGRAM;
PHOTO; TIMOTHY COLE;

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PUBLISHER'S NOTE: As the Texas Tribune reported earlier this month, Texas Governor Rock Perry has done an about turn and now says he has the legal authority to grant posthumous pardons. As the Texas Moratorium Network recently noted, "Rick Perry plans to issue a posthumous pardon to Timothy Cole, who died in prison before he could prove his innocence. Now, that Perry has acknowledged and plans to use the power to grant posthumous pardons, the door is open for him or future governors to issue pardons to innocent people already executed, such as Todd Willingham, Carlos De Luna or others, if they are convinced of their innocence." In short, Perry has opened an important door which cannot return lives wrongly taken by the State - but at least can allow them to be remembered as the innocent people they were and ensure that the State will take accountability for its actions. However, as the Star-Telegram story a posthumous pardon is just a start; Concrete steps have to be taken to avoid other innocent persons suffering the same fate.

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"FORT WORTH — Members of a panel reviewing flaws in the Texas legal system visited Tarrant County on Thursday to study the district attorney’s much-praised policy of making its case files open to defense attorneys," the January 28, 2010 Star-Telegram story begins, under the heading "Members of Tim Cole panel stop by his grave site."

"Before they left, several members of the Timothy Cole Advisory Panel on Wrongful Convictions paid their respects to the man in whose name they pursue change," the story continues.

"Under a heavy, cold rain, they joined Cole’s mother, Ruby Session, and his brother, Cory Session, at Cole’s headstone at Mount Olivet Cemetery in north Fort Worth.

Cole, of Fort Worth, died in prison in 1999 while serving a 25-year sentence for a crime in Lubbock that he did not commit.

"People often say that the system always worked," Cory Session told the group as he stood over his brother’s grave. "This is one case where it never worked."

Cole was exonerated by a Travis County judge early last year after DNA testing cleared him of the 1985 sexual assault of a Texas Tech University student. Gov. Rick Perry recently said he will pardon Cole.

Jim Bethke, who heads the Texas Task Force on Indigent Defense and sits on the Cole panel, said the visit reinforced the panel’s sense of purpose.

"This is the man it is named after," he said. "We’re working so this doesn’t happen again."

The panel’s goal is to develop legislative remedies to false identification by eyewitnesses, fraudulent testimony from snitches and other criminal justice flaws that could land the wrong person behind bars.

Panel members converged on Tarrant County mainly to learn more about the open-file policy, which allows defense attorneys full access to case files before trial.

The policy was enacted under late District Attorney Tim Curry.

"Tarrant County has a reputation of being among the best in the state, if not in the country," Bethke said. "We wanted to get a closer look at how it works."

Panel members gathered in the Family Law Court assembly room to quiz a prosecutor and the president of the Tarrant County Criminal Defense Lawyers Association about the philosophy.

Assistant District Attorney Tiffany Burks explained how the philosophy evolved from prosecutors sharing folders of case documents with defense lawyers to the current electronic system.

Today, defense attorneys log on to the system and view police reports, witness statements, crime scene photographs and more, she said. The system improves efficiency and helps ensure fair trials.

"We strive to make sure the defense attorney has access to everything," Burks said.

Warren St. John, president of the defense lawyers association, told the panel that he practices law across North Texas and that most counties are not nearly as forthcoming.

"A lot of counties, they’ll let you read stuff, but you can’t make a copy," St. John said. "You go to another county, and it’s not electronic. Then you go to another county, and you can’t look at anything.

"I consider it a privilege to practice law here.

He noted that Terri Moore, a former Tarrant County prosecutor who is now second in command of the Dallas County district attorney’s office, is trying to introduce an open-file policy there, where a large number of exonerations have drawn national headlines."

The story can be found at:

http://www.star-telegram.com/metro_news/story/1931480.html

Harold Levy...hlevy15@gmail.com;

BACK IN ACTION; CAMERON TODD WILLINGHAM CASE IS NOT ON AGENDA FOR TODAY'S MEETING OF TEXAS FORENSIC SCIENCE COMMISSION; SURPRISE, SURPRISE!

"WHEN IT CONVENES JAN. 29 IN HARLINGEN, THE TEXAS FORENSIC SCIENCE COMMISSION WON'T RESUME ITS PROBE INTO THE ARSON FINDING THAT LED TO CAMERON TODD WILLINGHAM'S 2004 EXECUTION. INSTEAD, THE MEETING WILL FOCUS ON FORMALIZING PROCEDURES EXPLAINING HOW THE GROUP WILL CONDUCT BUSINESS, JOHN BRADLEY, THE COMMISSION'S NEWLY APPOINTED CHAIRMAN, SAID THURSDAY. THE MEETING IS THE FIRST SINCE JULY. IN SEPTEMBER, PERRY DISMISSED THREE MEMBERS OF THE COMMISSION, TWO DAYS BEFORE IT WAS TO CONSIDER A REPORT CRITICAL OF THE ARSON FINDING THAT LED TO THE EXECUTION. BRADLEY CANCELED THE SUBSEQUENT MEETING. THE WILLINGHAM CASE IS NOT ON THE AGENDA FOR THE UPCOMING MEETING. NOR IS CRAIG BEYLER, THE RENOWNED FIRE EXPERT WHO AUTHORED THE REPORT IN QUESTION."

JEFF CARLTON: THE ASSOCIATED PRESS;

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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Two days before the Forensic Science Commission was to question Beyler in a public forum, the governor replaced its chairman and two other members whose terms were up. That forced the commission to delay the hearing so new members could read up on the case, and no new date has been set. Perry has since replaced a third member of the commission.

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"DALLAS -- A state science panel looking into a possible wrongful conviction in a Texas death penalty case is meeting for the first time since Gov. Rick Perry removed several members, but the execution case is not on the agenda," Jeff Carlton's Associated Press story, which ran on January 21, 1010, under the heading "Texas panel to meet, but Willingham not on agenda," began.

"When it convenes Jan. 29 in Harlingen, the Texas Forensic Science Commission won't resume its probe into the arson finding that led to Cameron Todd Willingham's 2004 execution," the story continues.

"Instead, the meeting will focus on formalizing procedures explaining how the group will conduct business, John Bradley, the commission's newly appointed chairman, said Thursday.

The meeting is the first since July. In September, Perry dismissed three members of the commission, two days before it was to consider a report critical of the arson finding that led to the execution. Bradley canceled the subsequent meeting.

The Willingham case is not on the agenda for the upcoming meeting. Nor is Craig Beyler, the renowned fire expert who authored the report in question.
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Bradley said he isn't ignoring Willingham, and that the board's investigation of the case could conclude this summer. He said he will assign pending cases, including Willingham, to the nine-member body, which includes a defense attorney and several medical examiners.

He said his top priority is bringing structure to the commission, which he said doesn't have policies in place that answer "simple questions, like 'What is the standard for accepting or rejecting a complaint?'"

But the shift in emphasis from Willingham to procedural matters confirms the fears of those supporting the Willingham inquiry. Barry Scheck, co-director of the Innocence Project, a New York group that focuses on overturning wrongful convictions, called it "an agenda that deflects attention from what everybody wants answered."

And Sam Bassett, the panel's deposed chairman, said it appears the group's new direction "is in my view unnecessarily delaying the investigations we had going."

Willingham was executed for the 1991 deaths of his three daughters in a house fire outside Corsicana.

Perry's appointment of Bradley, a suburban Austin district attorney and conservative ally of the governor, raised concerns that politics would trump science on the forensic panel. Perry is facing a stiff March 2 primary challenge from Sen. Kay Bailey Hutchison and GOP activist Debra Medina.

"From the agenda alone, Chairman Bradley has not done what he kept on telling people he would do, which is that he was going to proceed with the Willingham case," Scheck said.

Bassett had hoped to complete a final report on Willingham by this summer "and I think we have the potential for meeting the same deadline," Bradley said.

Also at issue is the location Bradley chose for the upcoming meeting - out-of-the-way Harlingen, a city of more than 60,000 on the Mexican border in the southern tip of Texas. The commission's previous dozen meetings were in Austin, Houston, Dallas and San Antonio - the state's four largest cities.

Bradley said he chose Harlingen because a new commissioner lives there, because of interest from state Sen. Juan "Chuy" Hinojosa and to show diversity in the location of the meetings.

Scheck said the Innocence Project hopes to broadcast the meeting on the Internet.

"There is intense public interest," Scheck said. "We certainly are interested in seeing that the commission ... is not hijacked and its good work undone by a chairman trying to jettison and repudiate all their past work."

The story can be found at:

http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/AR2010012103075.html

Harold Levy...hlevy15@gmail.com;

TIMOTHY COLE CASE: PERRY OPENS THE DOOR TO POSTHUMOUS PARDONS; DECISION COULD ULTIMATELY BENEFIT CAMERON TODD WILLINGHAM AND OTHERS;

"GOVERNOR RICK PERRY DID NOT PARDON COLE LAST SESSION, CITING A LACK OF AUTHORITY FROM LAWMAKERS TO PARDON A MAN AFTER HIS DEATH. "THE CONSTITUTIONAL AMENDMENT THAT WOULD GIVE A GOVERNOR THE ABILITY TO GIVE A POSTHUMOUS PARDON WAS ONE OF THOSE [BILLS THAT DIED AT THE END OF SESSION]," SAID PERRY, IN AUGUST OF LAST YEAR. THE COLE FAMILY BELIEVED THAT THE GOVERNOR HAD LEGAL OPTIONS TO GRANT A PARDON."

REPORTER ELISE HU; THE TEXAS TRIBUNE; FAMILY PHOTO OF TIMOTHY COLE;

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PUBLISHER'S NOTE: As the Texas Tribune reported earlier this month, Texas Governor Rock Perry has done an about turn and now says he has the legal authority to grant posthumous pardons. As the Texas Moratorium Network recently noted, "Rick Perry plans to issue a posthumous pardon to Timothy Cole, who died in prison before he could prove his innocence. Now, that Perry has acknowledged and plans to use the power to grant posthumous pardons, the door is open for him or future governors to issue pardons to innocent people already executed, such as Todd Willingham, Carlos De Luna or others, if they are convinced of their innocence." In short, Perry has opened an important door which cannot return lives wrongly taken by the State - but at least can allow them to be remembered as the innocent people they were and ensure that the State will take accountability for its actions. This Blog recently focused on the efforts by the late Ludovic Kennedy and others to help obtain a posthumous pardon for Timothy Evans in the United Kingdom. Further posts on posthumous pardons will follow.

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"A posthumous pardon is possible after all, according to an opinion from Attorney General Greg Abbott's office," the Texas Tribune story by reporter Elise Hu begins, under the heading "AG says posthumous pardons possible.

"This clears the way for the possible post-death pardon of Tim Cole, who was exonerated of a sexual assault conviction in a Travis County court last year, but had died in prison many years prior," the story continues.

"The summary of the AG opinion is below, but the even quicker summary is this: A previous AG opinion said posthumous pardons could not be granted because the person wasn't alive to accept it. But more recent SCOTUS decisions have shifted, so the AG opinion concludes the governor can grant a posthumous pardon.

The Texas Constitution does not expressly address or limit the Governor's authority to grant a posthumous pardon. While a prior attorney general opinion concluded he could not grant a posthumous pardon due to the recipient's inability to accept it, modern United States Supreme Court decisions reject the common-law acceptance requirement that formed the basis of that opinion and the underlying Texas authorities. Given this shift in Supreme Court precedent and the Legislature's apparent recognition of this shift, we believe a Texas court would likely conclude that the Governor may grant a posthumous pardon under current Texas law, so long as all other constitutional requirements are met.

While they are persuasive authority, attorney general opinions are not binding; however, to the extent that the Governor was previously advised in an attorney general opinion that Texas law prohibited him from issuing a posthumous pardon, it was reasonable for him to rely on such advice.

Only those able to prove a concrete injury that can be redressed by the courts will have standing to challenge the Governor's decision to grant a pardon. Texas courts generally refuse to review the Governor's exercise of the pardon power so long as he operates within the constitutional restraints of that power.

We believe a court would likely conclude that the Board of Pardons and Paroles is authorized to recommend that the Governor grant a posthumous pardon.

Governor Rick Perry did not pardon Cole last session, citing a lack of authority from lawmakers to pardon a man after his death.

"The constitutional amendment that would give a governor the ability to give a posthumous pardon was one of those [bills that died at the end of session]," said Perry, in August of last year.

The Cole family believed that the governor had legal options to grant a pardon.

"We don't want to have to wait through another session to start all over again," said Cole's brother, Reginald Kennard.

DNA proved in 2008 it was actually someone else who sexually assaulted a Texas Tech student in Lubbock more than two decades ago, the crime for which Cole was serving time. The victim, whose eyewitness testimony led to Cole's wrongful conviction, said "I really thought I had the right guy."

In February 2009, Cole's name was posthumously cleared by a judge after a trial in Travis County.

The story can be found at:

http://www.texastribune.org/blogs/post/2010/jan/07/tribblog-ag-says-posthumous-pardons-possible/

Harold Levy...hlevy15@gmail.com;

UPDATE: CRIME LABS IN AMERICA; HOUSTON POLICE CRIME LAB PLAGUED BY BACKLOG: HOUSTON CHRONICLE REPORTS;

"THE BACKLOGS CAUSE TWO MAJOR PROBLEMS IN THE JUSTICE SYSTEM, SAID JOANNE MUSICK, PRESIDENT OF THE HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION. FIRST, SHE SAID, BECAUSE PEOPLE OFTEN ARE ARRESTED BEFORE EVIDENCE IS PROCESSED, INNOCENT PEOPLE ARE JAILED AND FORCED INTO PRELIMINARY LEGAL PROCEEDINGS UNNECESSARILY. SECOND, CRIMINALS WHO MAY BE IDENTIFIED THROUGH FORENSIC TESTING ARE ABLE TO REMAIN ON THE STREETS AND, POTENTIALLY, COMMIT NEW CRIMES."

REPORTER BRADLEY OLSON: THE HOUSTON CHRONICLE;

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BACKGROUND: The Houston Chronicle recently reported that although fingerprinting has been viewed by the public as a practically infallible crime-fighting tool with accuracy rates approaching 100 percent for years, its problems are not unique - and incorrect results at labs across the nation produce doubts about a discipline once thought of as an exact science. The paper continues to do an excellent job in reporting the effect that the crisis is crime labs throughout America is having on its criminal justice system - and the need for an overhaul. Nor is America unique. This Blog has reported major problems with crime labs elsewhere in the world - most recently Australia.

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"The Houston Police Department has developed a backlog of more than 300 cases in which firearm forensics have not been performed, the third major area of evidence awaiting analysis to build up as the crime lab works to achieve full legitimacy after being engulfed in scandal for years," the January 26, 2010 Houston Chronicle story by reporter Bradley Olson begins, under the heading "Backlog woes continue at HPD lab."

"Despite years of effort aimed at cleaning up the problems that led to the wrongful convictions of at least four men, backlogs for thousands of cases also have developed in rape kits and fingerprint analysis," the story continues.

"Although the recent issues highlighted in an audit of HPD's fingerprint unit do not involve the crime lab — the two are separate entities — police in both instances have cited ongoing staff shortages, retirements and training requirements to explain the backlog of evidence.

“We're not sitting back here and twiddling our thumbs,” said Crime Lab Director Irma Rios.

Labs across the country have backlogs, and the department has added staff, upgraded facilities and procedures, and is poised to begin using robotics in about 15 months to decrease the number of cases, she said.

“We're accountable, we realize we have a tremendous responsibility ... These backlogs didn't occur overnight, they took many, many years,” Rios said.

2 big problems

Police officials said evidence in cases with suspects or involving violence has been prioritized, but the ballooning backlogs have forced the city to spend millions outsourcing forensics in the middle of a budget crunch.

The backlogs cause two major problems in the justice system, said JoAnne Musick, president of the Harris County Criminal Lawyers Association.

First, she said, because people often are arrested before evidence is processed, innocent people are jailed and forced into preliminary legal proceedings unnecessarily. Second, criminals who may be identified through forensic testing are able to remain on the streets and, potentially, commit new crimes.

“Every time you turn around, there's another backlog that's either bigger or exists in another part of the lab,” Musick said. “The fact that we've made improvements in DNA (analysis) meant that we allowed firearms and prints to sit on the back burner.”
Robotic analysis

City Council is poised to hire the International Forensic Science Laboratory and Training Centre for an $80,000 contract to clear the 325 cases in the most recent firearms backlog.

Rios said she hopes the contract, which is being funded with a grant, will help the lab take a sizeable chunk out of the backlog within 15 months, at which point robotic analysis will help clear what remains.

The lab will receive 500 hours of on-site assistance in examining firearms and firearms-related evidence, such as assisting in matching signature markings left on fired bullets with those used in other crimes through existing databases.

The contract is only the latest City Council has approved to reduce evidence backlogs. Last week, it approved $4.2 million in contracts with four companies tasked with reducing a backlog of 4,000 rape kits, some of which date to the 1980s, that require DNA analysis and remain untested by the crime lab. And in December, council approved a nearly $3 million contract to reform HPD's embattled fingerprint comparison unit.

6,000 fingerprint cases

An audit commissioned by the department found problems with fingerprint analysis in more than 250 cases, prompting a review of all the violent crime cases in the last six years. The consultants also will attempt to close a fingerprint analysis backlog of more than 6,000 cases.

“The crime lab is still broken, notwithstanding what the previous administration said about it,” said Councilwoman Jolanda Jones, a criminal defense lawyer. “Unless and until we get out of the business of operating the crime lab, we're going to continue to have the same problem. We're going to have to continue to outsource and pay extra money for consultants to come in and try to fix our mess.”

Harris County District Attorney Pat Lykos said the backlogs “delay justice” and further highlight the need for an independent lab, something the mayor and many council members support.

“The conundrum is, when you look at the budget of a police department, they have to make Hobson's choice of whether they have officers on the street or whether they hire and staff laboratories,” she said.

Using the Harris County Medical Examiner's Office, which is independent of any law enforcement agency and now is the county's forensic analysis clearinghouse, would be the best solution to HPD's crime lab problems, she said."

The story is accompanied by a side-bar headed "Untouched evidence", as follows:

""The Houston Police Department has three major backlogs in its evidence analysis, including:

• Firearms forensics: More than 325 cases; $80,000 contract with private firm sought to reduce backlog

• Rape kits: More than 4,000; $4.2 million in contracts with four companies approved last week to reduce backlog

• Fingerprints: More than 5,000 cases are being reviewed by consultants after a damning audit, and more than 6,000 cases have not been analyzed by HPD's fingerprint unit, which is separate from the Crime Lab; nearly $3 million contract with private consultants approved last month."

The story can be found at:

http://www.chron.com/disp/story.mpl/metropolitan/6836933.html

Harold Levy...hlevy15@gmail.com'

BACK IN ACTION: LOOSE END; TRIBUTE TO LUDOVIC KENNEDY. HE FOUGHT TO EXPOSE MISCARRIAGES OF JUSTICE; HELPED SECURE POSTHUMOUS PARDON FOR TIMOTHY EVANS

"CHRISTIE WAS HANGED SEVERAL YEARS AFTER THE HANGING OF EVANS, FOLLOWING THE DISCOVERY OF SEVERAL MORE BODIES AT 10 RILLINGTON PLACE, NONE OF WHICH BE ASCRIBED TO EVANS, AND AS A RESULT OF A LONG CAMPAIGN, EVANS WAS POSTHUMOUSLY PARDONED. THE SCANDAL HELPED IN THE ABOLITION OF THE DEATH PENALTY IN THE UK." WIKIPEDIA;

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PUBLISHER'S NOTE: While enduring a seasonal retreat recently under the hot Florida sun, I stumbled upon a past issue of the "Economist" and learned that Ludovic Kennedy had died of pneumonia in a nursing home in Salisbury, Wiltshire, on 18, October, 2009. I became an admirer of Ludovic Kennedy after reading "10 Rillington Place," which led to the posthumous pardon of Timothy Evans who had been wrongly convicted and hung for the murder of his baby daughter. (The Evans case has often been cited as one of the factors which led to the abolishment of capital punishment in the UK.) I hope that some day soon all of the investigative work which has been done to show that Cameron Todd Willingham was similarly wrongfully convicted and executed, will lead to his posthumous pardon and to the abolishment of capitol punishment in the U.S.A.

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Wikipedia tells us that: "Sir Ludovic Henry Coverley Kennedy (3 November 1919 – 18 October 2009) was a British journalist, broadcaster, humanist and author best known for re-examining cases such as the Lindbergh kidnapping and the murder convictions of Timothy Evans and Derek Bentley, and for his role in the abolition of the death penalty in the United Kingdom...Later he became a television journalist and a newsreader on ITV's Independent Television News. He presented the BBC's flagship current affairs programme Panorama for several years. Kennedy was interested in miscarriages of justice, and he wrote and broadcast on numerous cases...He wrote several books that question convictions in a number of notable cases in British criminal history. One of the first miscarriages of justice he investigated was the conviction and hanging of Timothy Evans in his book Ten Rillington Place. He was found to have murdered his baby daughter but Kennedy contended that Evans was innocent, and that the crimes had been committed by the serial killer John Christie. Christie was hanged several years after the hanging of Evans, following the discovery of several more bodies at 10 Rillington Place, none of which be ascribed to Evans, and as a result of a long campaign, Evans was posthumously pardoned. The scandal helped in the abolition of the death penalty in the UK. Kennedy's book was filmed in 1970: Richard Fleischer's film 10 Rillington Place starred John Hurt as Evans and Richard Attenborough as Christie..In 1985, Kennedy published The Airman And The Carpenter, in which he argued that Bruno Hauptmann did not kidnap and murder Charles Lindbergh's baby, a crime for which he was executed in 1936. The book was made into a 1996 HBO film Crime Of The Century, starring Stephen Rea and Isabella Rossellini. In 2003, he wrote 36 Murders and 2 Immoral Earnings, in which he analysed a number of noted cases, including the Evans case and those of Derek Bentley and the Birmingham Six, a number of which were affected by claims of police failure or downright perjury. In it he concluded that the adversarial system of justice in the UK and the United States "is an invitation to the police to commit perjury, which they frequently do", and said that he preferred the inquisitorial system."

The entire Wikipedia post - featuring many other aspects of Kennedy's important life - can be found at:

http://en.wikipedia.org/wiki/Ludovic_Kennedy

Harold Levy...hlevy15@gmail.com;

BACK IN ACTION AFTER SEASONAL BREAK: LOOSE END; MELENDEZ-DIAZ STILL GOOD LAW: ONE SENTENCE OPINION WAS VERY GOOD NEWS;

"WE VACATE THE JUDGMENT OF THE SUPREME COURT OF VIRGINIA AND REMAND THE CASE FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE OPINION IN MELENDEZ-DIAZ V. MASSACHUSETTS...": U.S. SUPREME COURT; BRISCOE V. VIRGINIA;
(PHOTO: JUSTICE ANTONIN SCALIA);

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BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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PUBLISHER'S NOTE: I am pleased to get back into action with the U.S. Supreme Court's one-line opinion in the Briscoe/Virginia case which was released while I was re-charging my batteries under the Florida Sun. (Okay, the truth is that I spent hours in front of our TV set watching endless reruns of Law and Order.)

The entire opinion: "We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts...."

The states will hopefully put their energies into putting into practice the spirit and the letter of the Melendez-Diaz decision - instead of waiting for likely futile opportunities to have it overturned.

Harold Levy...hlevy15@gmail.com;

SEASONAL BREAK: CHARLES SMITH BLOG; TIME TO CHARGE THE PROVERBIAL BATTERIES; KEEP IN TOUCH!

PUBLISHER'S NOTE: Dear readers. It's time for a "seasonal" break over the next few weeks. Battery charging time! Please send me a note at the address at the bottom of this page if there are noteworthy developments which occur in my absence. I will do my best to get them posted on my return. Best wishes. Harold Levy. Publisher: The Charles Smith Blog. PS: My work on the Charles Smith book is proceeding well. Information and suggestions are always appreciated. As are your suggestions for the title. HL;

Harold Levy...hlevy15@gmail.com;

HOUSTON CRIME LAB: FORENSIC LAB BOTCHES EXTEND BEYOND TEXAS, THE CHRONICLE REPORTS; SEEN AS PART OF A NATIONAL PROBLEM;

"For years fingerprinting has been viewed by the public as a practically infallible crime-fighting tool with accuracy rates approaching 100 percent," the December 13, 2009, Houston Chronicle story by reporter Moise Mendoza, begins, under the heading "HPD fingerprinting trouble not unique" and the sub-heading "Incorrect results at labs across the nation produce doubts about a discipline once thought of as an exact science."

"But revelations like those in the Houston Police Department, where a recent audit showed analysts failing to analyze or missing fingerprints completely, are exposing hard truths about a discipline that's not as exact as it appears," the story continues.

"Problems at fingerprint labs have often been traced back to common themes such as inadequate supervision or training and a lack of standards for analyzing fingerprints. Houston, in fact, didn't even have a manual outlining standard procedures for analyzing prints, according to an audit that was released last week.

But some experts say the situation in Houston is just an example of fingerprinting's deep-rooted woes, which extend across the country.

“Everything needs to change,” said Jennifer Mnookin, a law professor at UCLA who has studied fingerprint issues.

In fact, large fingerprint units have been repeatedly accused of botching their work over the last few years.

Examples include:

Last year the Los Angeles Police Department acknowledged that its fingerprint analysis unit was a sloppy operation where files were left lying around, prints sometimes lost and at least two people had been wrongly identified as criminal suspects because of botched fingerprint analysis.

In 2007, the Seminole County Sheriff's Office in Florida disciplined multiple employees after it discovered analysts cutting corners and pegging fingerprints to the wrong suspects.

Experts say fingerprinting is far from an exact science. Unlike many other forensic disciplines, there are few standards for confirming fingerprints.

That means an analyst in Houston could conceivably come to different conclusions from an analyst in Dallas about whether prints are usable, or even whether they belong to the same person.
Lack of regulation

For instance, one lab may decide that a set of prints with six similar fingerprint ridge characteristics is a match. A different lab may require 12 similar points. Plus, there's been little research into the likelihood of different people having similar fingerprints.

“There hasn't been adequate research or validation,” Mnookin said. “So there's no quantitative standard for deciding how much information is necessary in order to do a comparison.”

And despite the key role they play in criminal cases, fingerprint labs in Texas are specifically excluded from accrediting requirements that apply to labs analyzing other evidence, such as DNA, in order for the evidence to be admissible in court proceedings.

State Sen. John Whitmire, who is chairman of the Senate Criminal Justice Committee, said many people think accreditation is unnecessary because fingerprinting isn't viewed as complex or scientific.

Only 10 fingerprint labs statewide, including ones in Corpus Christi and Austin, have been certified as meeting the strict standards of ASCLD-LAB, considered the gold standard in accrediting fingerprint analysis units.
Oversight problems

Fingerprint advocates and critics alike acknowledge that prints can be useful tools if analyzed with care.

But lax oversight means it's almost impossible to truly know how well fingerprint labs are doing. Most fingerprinting work is done by law enforcement in unaccredited facilities where assessments aren't required unless the facility wants them.

It's often only if an agency seeks to become accredited — such as in the case of the Houston Police Department — that the full extent of problems becomes known.

In Houston, consultants hired by officials in an effort to gain national accreditation said examiners had missed or failed to analyzed more than half of all fingerprint cases among a random sampling of 548 reviewed this fall.

One part-time examiner resigned under pressure. Two full-time examiners and a supervisor are on administrative leave and under investigation as a result of an incident having to do with “handling evidence” at the end of the audit.

A team of consultants has taken over day-to-day operations at the fingerprint comparison unit, and officials plan to review 6,000 violent crime cases from the last two years looking for missing fingerprints or misidentifications.

Police officials have said they're researching ways to fix their problems, hopefully within the next two years.

Though local authorities haven't determined whether suspects were wrongly identified by fingerprints in Houston, the problems here have broad similarities with other scandals.
Boston's example

So could the solutions. Some point to the Boston Police Department as a possible model.

In 2004 the department's lab had to be shut down after officials discovered that poor analysis had contributed to the wrongful conviction of Stephan Cowans on a shooting charge. The lab, which reopened two years later, began hiring civilians for its analysis positions, revamped its protocols and training programs and this year achieved national accreditation.

Tim Oettmeier, an executive assistant chief with the Houston Police Department, told the City Council last week that he wants to do the same.

“We would like to become one of the few that has attained this level of certification,” Oettmeier said, saying he wanted to recruit only the “best” employees to staff a new fingerprint unit.

Others have said Houston should farm out its fingerprint analysis to a unit independent of the Police Department, possibly a regional crime lab that has been discussed for years.

But that too has drawbacks, said Timothy Fallon, the director of Bexar County's crime laboratory, which doesn't process fingerprints but deals with evidence like DNA and is independent of law enforcement.

“You can't overestimate the value of synergy between the lab and the investigating agency,” Fallon said.

But the broader solution may involve reforming the entire fingerprinting industry, said Simon Cole, a criminology professor at the University of California-Irvine.

He pointed to a February report by the National Academy of Sciences which described the forensic sciences as “badly fragmented” and called for a national organization that would help standardize disciplines, including fingerprinting.

“Until something like this happens everyone assumes that things are fine,” he said. “The question is to what extent is this going on in other places?”"

The story can be found at:

http://apps.chron.com/disp/story.mpl/headline/metro/6768400.html

Harold Levy...hlevy15@gmail.com;

HOUSTON CRIME LAB UNDER CRIMINAL INVESTIGATION: CRITIC SAYS SITUATION SHOWS "MAJOR GAPS" IN OVERFSIGHT OF SCIENTIFIC EVIDENCE;

ACCORDING TO THE CHRONICLE, THE LATENT PRINTS COMPARISON UNIT SUFFERS FROM “SIGNIFICANT DEFICIENCIES WITH STAFFING, A LACK OF PROPER SUPERVISORY REVIEW, INADEQUATE QUALITY CONTROL, TECHNICAL COMPETENCE INCONSISTENT WITH INDUSTRY STANDARDS, INSUFFICIENT TRAINING AND INADEQUATE STANDARD OPERATING PROCEDURES.” THE HOUSTON POLICE HAVE CONFIRMED THAT A CRIMINAL INVESTIGATION INTO MISCONDUCT BY AT LEAST ONE EMPLOYEE OF THE FINGERPRINT UNIT HAS BEEN OPENED. IN ADDITION TO THE SHODDY WORK THAT WAS DONE, THE UNIT FACES A BACKLOG OF SOME 6000 CASES.

EDWIN COLFAX: THE SEMINAL;

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"Texas has seen more than its share of controversy surrounding forensic science in recent months," Edwin Colfax of the Justice Project writes on The Seminal - the Projects Blog, in a commentary which appeared on January 8, 2010, under the heading "Latest Texas Forensic Flap Shows Major Gaps in Oversight of Scientific Evidence."

"Most recently, the Houston Chronicle reported that an audit of the Houston Crime Lab’s fingerprint division identified problems in more than half of the 548 cases selected for review," Colfax continues.

"The problems discovered were serious enough to lead the authorities to require that more than 4000 violent crime cases from the past six years be reanalyzed—a process that no doubt will be very costly for the city of Houston. According to the Chronicle, the Latent Prints Comparison Unit suffers from “significant deficiencies with staffing, a lack of proper supervisory review, inadequate quality control, technical competence inconsistent with industry standards, insufficient training and inadequate standard operating procedures.” The Houston Police have confirmed that a criminal investigation into misconduct by at least one employee of the fingerprint unit has been opened. In addition to the shoddy work that was done, the unit faces a backlog of some 6000 cases.

These revelations come at a time when a much-needed review of forensic oversight in Texas has been postponed indefinitely.

The Texas Forensic Science Commission had been planning a series of “roundtable” events around the state at which criminal justice stakeholder groups would discuss a recent critical report by the National Academies of Science (NAS), Improving Forensic Science in the United States: A Path Forward, and the implications of the report for forensic science in Texas. That report identified a number of significant shortcomings in the nation’s forensic science system that threaten to undermine the accuracy and integrity of forensic evidence in our courts, including issues of training, bias, resources and a lack of independence and oversight. These same issues are at the heart of the evidence debacle in Houston.

This critical review of the Texas forensic system is on hold because of the Forensic Science Commission has found itself at the center of yet another forensic controversy surrounding its investigation into false arson evidence used against Cameron Willingham, who was executed in 1994. Governor Rick Perry, who turned down a clemency request that included a leading expert’s report that the trial evidence was scientifically invalid, abruptly replaced four commissioners just two days ahead of a meeting at which they were to hear from the state’s arson expert, whose findings confirm that the forensic evidence could not support a finding of arson. That meeting was cancelled by Perry’s new chairman, who is delaying any further action pending the adoption of new rules and policies for the commission he says are needed.

If there could be any doubt that there is an urgent need to act on the NAS report, it was erased by the latest revelations from the Houston Crime Lab. One of the questions that the Commission’s roundtables could be addressing is why Texas law explicitly exempts fingerprint analysis from forensic oversight. Most forensic evidence is only admissible in Texas courts if it is analyzed by an accredited lab, but that is not the case with fingerprints. The latent prints unit in Houston was not accredited, though other divisions in the lab were. While only the beginning of quality assurance, accreditation at least requires some baseline for good quality control policies and management practices (though it does not provide much in the way of ongoing oversight and monitoring of the actual work being done in the labs).

In fact, much fingerprint processing is not associated with a crime labs at all, which is part of the reason Texas law explicitly exempts it from the accreditation requirement. Latent prints forensic work also does not fall under the purview of the Texas Forensic Science Commission, the mission of which is very narrowly applied to investigating allegations of forensic negligence or misconduct in accredited forensic labs. This means that a huge portion of forensic evidence is largely unregulated in Texas.

Texas must recognize that there are serious gaps in its system of forensic oversight. These problems have resulted in innocent people being imprisoned for many years, and they have impeded our ability to convict criminals. The Willingham case raises troubling questions about how forensic methodologies should be validated, and how new scientific developments should be communicated within the criminal justice system. The fingerprint problems encompass many flaws, and show the need for independent laboratories, more robust ongoing oversight, and higher standards for analyst training and certification, among other reforms.

Texas must also recognize that relying on private accreditation programs is an incomplete solution, and that the mission of the Forensic Science Commission is defined in an overly narrow and reactive way. The changes needed are complex and structural—independent laboratories, a commission empowered to set and enforce meaningful quality standards for starters—but we will not be able to meet the challenges until we start the sort of comprehensive review that the Forensic Science Commission had planned. In the meantime, it remains to be seen how many criminal investigations were damaged by the failures in Houston, how many crimes went unsolved, and how many victims might have been denied justice because of a lack of forensic oversight and accountability.

Edwin Colfax is the State Policy Director of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

The commnentary can be found at:

http://seminal.firedoglake.com/diary/22926

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The Houston Chronicle story Colfax refers to - by reporters Moises Mendoza and Bradley Olson, ran on December 2, 2009, under the heading "HPD fingerprint unit is focus of criminal probe" as follows;

"A Houston Police Department official confirmed Wednesday that a criminal investigation is under way into alleged wrongdoing at HPD's fingerprinting comparison unit, which is under scrutiny following an audit accusing it of shoddy work.

One employee, put on administrative leave with pay after the audit into the unit ended in October, is being investigated for alleged misconduct involving “handling a piece of evidence,” said Tim Oettmeier, an executive assistant chief.

Oettmeier declined to specify what the employee is accused of or name the individual involved.

But he said the allegations emerged after auditors asked employees to do additional work to understand why the unit had such a high error rate. More than half of 548 randomly selected cases involving fingerprints analyzed at the unit have turned up irregularities. Officials released details of the audit on Tuesday.

Meanwhile, Houston's mayor on Wednesday said that criminals likely went free because the fingerprint unit missed prints on evidence. At a news conference, Bill White said he hoped the review would determine how many criminals have been missed.

“I think it's unacceptable the quality of work the chief and the command staff found in the fingerprint unit,” White said.

2 on leave; 1 resigned

Two other employees in the fingerprint unit are not accused of criminal wrongdoing but were put on leave as part of the investigation. A third part-time employee resigned under pressure from the department, Oettmeier said.

Consultants are temporarily doing their jobs while officials decide how to train new fingerprint analysts or hire outsiders.

An attorney with the Houston Police Officers' Union, Bob Armbruster, said the union would represent the three officers on leave, but he said he didn't have enough information to comment.

Because the audit found workers often overlooked fingerprints or wrongly determined fingerprints weren't able to be analyzed, authorities are re-reviewing more than 4,000 violent crime cases involving fingerprints from the last six years. They're also trying to work through a 6,000-case backlog that dates back two years and includes violent and property crimes.

After disclosing the results of the audit Tuesday, authorities emphasized that no cases have been found in which suspects have been wrongly identified because of faulty fingerprint analysis.

They have declined to release the audit publicly, citing the ongoing investigation.
Oettmeier said nobody knows what the six-year review will find, but officials could go back further if evidence of vast irregularities emerge, such as numerous cases of criminals going free or any misidentifications.

“We're not saying that we don't believe there will be false identifications. We are saying we don't know. We have an obligation to look,” Oettmeier said.

Authorities hope re-reviewing cases and clearing the backlog will be done within two years, although there's no way to give a solid timeline, Oettmeier said.

Also unknown is how long the problems at the fingerprint lab have been going on, although it appears likely they've been happening for years, if not decades.
One of the employees on administrative leave worked for the fingerprint unit for 14 years, another for 38 years and a third for 32 years.

The employee who resigned worked full time in the unit from 1972 to 2006 when he retired and was hired part time, police said.

Two other members of the unit — one a trainee and another who works mostly in the field — are still working.

Revelations of severe problems with the unit have rekindled memories of a scandal at the police department's crime lab, which was closed for several years in 2002 after shoddy DNA analysis was revealed.

Forensic independence

The audit has also prompted a range of reactions from local officials, ranging from anguish to satisfaction that the Police Department voluntarily disclosed its problems.

It has also spawned renewed discussion about the need for an independent center to analyze forensic work, possibly including fingerprints.

Much forensic evidence across the country, such as fingerprints or DNA, is analyzed by labs closely tied to law enforcement despite the inherent conflicts of interest, said UCLA law professor Jennifer Mnookin.

Another problem: There are varying standards for how fingerprint analysts are trained and prints are analyzed, meaning some labs are more accurate than others.

“This provides yet another example for why developing validated, research-based models for the field would be a very good idea,” Mnookin said.

Oettmeier said the department was open to independent analysis of evidence. And officials are closely scrutinizing all forensic units at the department, he said. The biggest challenge is rooting out a culture that has allowed such significant problems to fester for years, he said.

“What makes it difficult is some of these issues have probably been around for a long time,” he said."

Harold Levy...hlevy15@gmail.com;