CAMERON TODD WILLINGHAM: LAW AND ORDER SPECIAL VICTIMS EPISODE RESEMBLES WILLINGHAM CASE - EXCEPT FOR THE ENDING; DAVE MAN; THE TEXAS OBSERVER;

"MORE THAN 700 PEOPLE ARE SERVING TIME FOR ARSON IN TEXAS PRISONS ALONE. THERE'S COMPELLING EVIDENCE THAT AT LEAST 250 OF THEM WERE WRONGLY CONVICTED. IN THE TELEVISION SHOW, THE PROSECUTORS END UP DROPPING THE CHARGES, AND THE INNOCENT MAN GOES FREE. IN REALITY, MORE OFTEN THAN NOT, THE INNOCENT PERSON WOULD HAVE BEEN CONVICTED AND SENT TO PRISON—AND IN WILLINGHAM'S CASE, EXECUTED—BASED ON SHODDY FORENSICS."

DAVE MANN: TEXAS OBSERVER; Wikipedia informs us that: "The Texas Observer (also known as the Observer) is an American political newsmagazine published bi-weekly and based in Austin, Texas. Though nonpartisan, the publication has historically been an advocate for liberal political policies. [The Observer was founded by Frankie Randolph and founding editor Ronnie Dugger in Austin in 1954 to address topics ignored by daily newspapers in the state — such as issues affecting working people and concerning class and race. Upon its founding, Dugger declared the paper's manifesto as "We will serve no group or party but will hew hard to the truth as we find it and the right as we see it." The publication continues this mission through today by focusing on covering what the mainstream press does not.)

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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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"You know the controversy over false arson convictions has truly penetrated the wider culture when it appears on Law & Order," Dave Mann's April 29, 2010 Texas Observer column begins, under the heading, "Law & Order' Takes on Arson."

"Last night’s episode of Law & Order: Special Victims Unit featured the case of a man wrongly accused of setting a fire that killed his family," the column continues.

"I’ve been writing a lot about arson the past year—specifically how flawed arson evidence has sent innocent people to prison (or the death chamber). See our coverage here.

So this was one Law & Order I’m sorry I missed. But judging from a clip available on the NBC site, they did a pretty good job.

In the show, Sharon Stone plays an assistant DA who comes to suspect that the father she’s prosecuting for murdering his kids is actually innocent. (This seems based on the Cameron Todd Willingham case, though it could be any number of cases.) She seeks out a quirky independent expert—based on some combination of Austin fire expert Gerald Hurst (whom I profiled in this story) and Florida-based expert John Lentini.

An aging fire marshal has ruled the fire an arson based on burn patterns supposedly caused by an accelerant and so-called crazed glass—two of the most infamous pieces of forensic “evidence” that were used for years to convict thousands of defendants and have since been discredited.

(One quibble: Crazed glass has been so thoroughly debunked by now that I doubt any fire investigator, even one using outdated methods, still believes it. But burn patterns and “pour patterns” on the other hand— also debunked in post-flashover fires—are still used to this day in courtrooms.)

Stone’s character and the outside expert stage a test fire to show that an accidental-fire scenario—started without an accelerant—could leave the same burn patterns that were supposedly evidence of arson. This is reminiscent of the Lime Street Fire experiment of 1991—a breakthrough that showed scientists that a phenomenon known as flashover could make accidental fires look very much like intentionally set ones.

More than 700 people are serving time for arson in Texas prisons alone. There's compelling evidence that at least 250 of them were wrongly convicted.

In the television show, the prosecutors end up dropping the charges, and the innocent man goes free. In reality, more often than not, the innocent person would have been convicted and sent to prison—and in Willingham's case, executed—based on shoddy forensics."

The story - and a link to an excerpt from the episode - can be found at:

http://www.texasobserver.org/contrarian/law--order-takes-on-arson

Harold Levy...hlevy15@gmail.com;

GRAHAM STAFFORD: AUSTRALIA; HIGHLY EXPERIENCED FORMER QUEENSLAND PROSECUTOR SAYS HE DECLINED TO PROSECUTE BECAUSE HE BELIEVED STAFFORD WAS INNOCENT;

"VISHAL LAKSHMAN, 74, WHO RETIRED IN 1992 AFTER 30 YEARS, DURING WHICH HE PROSECUTED DOZENS OF RAPE, MURDER AND MANSLAUGHTER TRIALS IN QUEENSLAND, IS WRITING AN AUTOBIOGRAPHY DETAILING HIS LIFE AS AN IMMIGRANT TO AUSTRALIA AND THE CRIMINAL TRIALS WITH WHICH HE WAS INVOLVED. THE ONLY PROSECUTION FROM WHICH HE EVER WITHDREW WAS THE 1992 SUPREME COURT TRIAL OF MR STAFFORD, WHO WAS CHARGED WITH THE SADISTIC MUTILATION MURDER OF SCHOOLGIRL LEANNE HOLLAND.

"I WROTE THE CHAPTER ABOUT MR STAFFORD A YEAR AGO AND MY FAMILY ENCOURAGED ME TO SPEAK OUT NOW BECAUSE IT WAS MY BELIEF AND THEIRS THAT HE WAS NOT GUILTY OF THE CRIME OF MURDER," MR LAKSHMAN SAID."

REPORTER TONY KOCH: THE AUSTRALIAN;

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BACKGROUND: Graham Stuart Stafford was a sheet metal worker from Goodna, near Ipswich, Queensland who was convicted in 1992 of the murder of twelve-year-old Leanne Sarah Holland. Leanne Holland, the younger sister of Stafford's former partner, Melissa Holland, was murdered in September 1991. Her viciously mutilated body was found three days after she was reported missing in nearby Redbank Plains. It is possible she was also sexually interfered with and tortured with a cigarette lighter. Stafford appealed to the Queensland Court of Appeal, but this appeal was rejected on 25 August 1992. In 1997, the Queensland Court of Appeal re-examined the case after Stafford lodged an application for pardon with the State Governor on the basis of evidence gathered by private detective, Graeme Crowley. The Court of Appeal dismissed the appeal again by a two-to-one majority on the grounds that there was still enough evidence to convict. Two applications for special leave to the High Court of Australia subsequently failed. Stafford was released in June 2006 after serving over 14 years in prison. Stafford, who was born in England and does not have Australian citizenship despite having migrated to Australia in 1969, faced deportation in November 2006. Some people, including Professor Paul Wilson of Bond University believe that Stafford is a victim of a miscarriage of justice. The Queensland Attorney-General, Kerry Shine, has agreed to closely consider any request on Stafford's behalf concerning a petition to clear him of the murder conviction. In April 2008, the Queensland Attorney-General referred the case to the Court of Appeal for a very rare second appeal for pardon. On December 24, 2009 the Court of Appeal overturned Graham Stafford's conviction and ordered a retrial by a 2-1 majority. The dissenting judge wanted an immediate acquittal...WIKIPEDIA informs us that: "A Brisbane Sunday Mail examination of the police investigation revealed that an Ipswich computer store worker provided information to the police about a man who had entered the store on the same day as Leanne's body was dumped in nearby bushland. The worker claimed that the man had been behaving in a peculiar manner and had blood stains on his hands and trousers when he entered the store. Furthermore, reports of Leanne having been seen alive on the day after the police allege she was murdered were ignored. A report of a vehicle other than Stafford's being sighted near the body was also ignored. Forensic scientist, Angela van Daal, gave evidence at trial that helped convict Stafford of the murder. She has since stated that the blood identified as Leanne's could have come from another family member. Although the frequency of the blood type matching anyone in the general population was only about one percent, the frequency among relatives is as high as 25 percent. Around the time of the murder, Leanne's brother Craig had slashed his hand in a pub fight and had bled freely in the family home. It has also been revealed that another twelve-year-old girl was murdered less than one kilometre away from where Leanne Holland lived within thirteen days of Leanne's murder. The man who was charged with the second murder had been known to Leanne. Furthermore, daughters of a police informant in the Leanne Holland case have come forward claiming their father sexually abused them at the murder site, burnt them with cigarette lighters and showed them crime scene photographs of Leanne's body."

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"ALMOST 20 years after Graham Stafford was convicted of the rape and murder of a 12-year-old girl in Ipswich, one of Queensland's most experienced crown prosecutors has revealed that he declined to prosecute at the trial because he did not believe the accused committed the crime," the April 27, 2010 "The Australian" story by reporter Tony Koch, begins, under the heading, "Doubt turned prosecutor Vishal Lakshman off Graham Stafford case."

"Vishal Lakshman, 74, who retired in 1992 after 30 years, during which he prosecuted dozens of rape, murder and manslaughter trials in Queensland, is writing an autobiography detailing his life as an immigrant to Australia and the criminal trials with which he was involved," the story continues.

"The only prosecution from which he ever withdrew was the 1992 Supreme Court trial of Mr Stafford, who was charged with the sadistic mutilation murder of schoolgirl Leanne Holland.

"I wrote the chapter about Mr Stafford a year ago and my family encouraged me to speak out now because it was my belief and theirs that he was not guilty of the crime of murder," Mr Lakshman said.

"Among the many records I kept and from which I drew to write my memoirs is a copy of a memo I wrote on December 4, 1991, to the then director of prosecutions, Royce Miller QC.

"At the time, I wrote: `I refer to our brief discussion regarding this matter. Stafford has been committed for trial and the evidence is entirely circumstantial. There are features in this case that give rise to some doubt that Stafford is the offender in this crime'."

Among the many high-profile murder cases Mr Lakshman prosecuted were the cases of Bevan Meninga, brother of rugby league great Mal Meninga; Barrie Watts, killer of Sian Kingi on the Sunshine Coast in 1987; child murderer Barry Hadlow, who was released after serving life for one child murder, then murdered another at Roma in western Queensland; and Ernest Knibb, who murdered ABC scriptwriter Miranda Downes on a beach north of Cairns in 1985.

Mr Lakshman's detailed memo to Mr Miller concluded: "I have done many circumstantial evidence cases over the years and this is one of the few in which I find myself having some reservations as to whether the accused is the perpetrator of this crime.

"I may not entertain any such view after some discussion with you but it would be desirable if you would be good enough to look at the material yourself and let me have your comments some time next year."

Mr Stafford said yesterday he was devastated to hear of the memo Mr Lakshman wrote and questioned why the Director of Public Prosecutions did not make the information available to the defence team at his trial or subsequent appeals. "It is gut-wrenching - this whole thing could have been sorted out before it started if we had known," Mr Stafford said from his Sunshine Coast home. "We knew there was something amiss when my counsel from the committal was changed, and so was the prosecutor."

At the time of the murder, Mr Stafford was living with the Holland family and was engaged to Leanne's older sister, Melissa. He was alone at home with Leanne on the day she went missing. At his trial, the prosecution alleged he beat her to death with a hammer, kept her body in the boot of his car for two days, then disposed of it in the bush several kilometres from the Hollands' home. Her body had burn and stab marks consistent with having been tortured.

Stafford, now 45, was convicted and served 15 years of a life sentence before his release in 2006.

He consistently maintained his innocence and a support team took up his case while he was in prison, organising several appeals.

Last December, the Queensland Court of Appeal set aside Stafford's conviction, on grounds of a miscarriage of justice, and ordered a retrial. But Director of Public Prosecutions Tony Moynihan SC said the crown would not conduct a retrial because in the 20 years since the offence, "evidence had been adversely affected".

So Mr Stafford is left in limbo. His conviction has been set aside and his innocence presumed, but he has served 15 years in prison and the state is not liable for compensation because he has not been found "not guilty". Mr Stafford said yesterday: "I am indebted to the honesty and decency of Mr Lakshman for coming out now as he has done, but the fact is it would have made a huge difference to my appeal team or at my original trial if we had been made aware of it.

"I am just devastated now to hear that this important opinion was available but was kept from me."
The story can be found at:

http://www.theaustralian.com.au/news/nation/doubt-turned-prosecutor-vishal-lakshman-off-graham-stafford-case/story-e6frg6nf-1225858548541

Harold Levy...hlevy15@gmail.com;

MASURU OKINISHI: JAPAN; COURT BEGINS REVIEW OF CASE; ALLEGED FAULTY FORENSIC EVIDENCE AND SUSPECT CONFESSION AT HEART OF DEATH ROW CASE;

"THE NAGOYA HIGH COURT SAID MONDAY IT HAS RECEIVED PAPERS ON AN 84-YEAR-OLD DEATH ROW INMATE, CONVICTED OF KILLING FIVE WOMEN AND INJURING 12 OTHERS WITH POISONED WINE, THAT IT NEEDS TO START A REVIEW OF ITS EARLIER DECISION CONCERNING THE HIGH-PROFILE MURDER CASE IN MIE PREFECTURE IN 1961. THE COURT SAID THE ARRIVAL OF RECORDS FROM THE SUPREME COURT ON MASARU OKUNISHI, WHO HAS BEEN ON DEATH ROW SINCE 1972, MARKS THE BEGINNING OF A RECONSIDERATION OF THE CASE, AFTER THE TOP COURT DECIDED TO SEND IT BACK TO THE HIGH COURT ON APRIL 5. BUT IT IS EXPECTED TO TAKE A FEW MORE MONTHS FOR A RETRIAL TO BEGIN IN EARNEST AS JUDGES NEED TIME TO READ THROUGH THE DOCUMENTS AND DECIDE ON A TRIAL PLAN IN DISCUSSION WITH THE PROSECUTION AND THE DEFENSE TEAM."

BREITBART.COM;

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BACKGROUND: "THE 1961 CASE INVOLVES THE POISONING OF 17 WOMEN IN MARCH 1961 AT A LOCAL COMMUNITY MEETING IN NABARI, MIE PREFECTURE. FIVE OF THE WOMEN, INCLUDING OKUNISHI'S WIFE, DIED AND 12 FELL SICK. OKUNISHI WAS ARRESTED IN APRIL THAT YEAR. HE ALLEGEDLY CONFESSED TO INVESTIGATORS THAT HE HAD LACED THE WINE WITH AN AGRICULTURAL CHEMICAL. HOWEVER, OKUNISHI RETRACTED HIS CONFESSION SHORTLY BEFORE BEING INDICTED. IN 1964, THE TSU DISTRICT COURT ACQUITTED OKUNISHI WHO HAD PLEADED INNOCENT, CITING A LACK OF EVIDENCE. BUT THE NAGOYA HIGH COURT REVOKED THE LOWER COURT DECISION AND SENTENCED HIM TO DEATH IN 1969 -- A DECISION UPHELD BY THE SUPREME COURT IN 1972. OKUNISHI HAS SINCE APPLIED A TOTAL OF SEVEN TIMES FOR A RETRIAL. THE FIRST SIX APPLICATIONS FOR A RETRIAL WERE ALL REJECTED. "ON OKUNISHI'S SEVENTH ATTEMPT, THE NAGOYA HIGH COURT DECIDED IN APRIL 2005 TO REOPEN THE TRIAL, CITING NEW EVIDENCE THAT COULD PROVE HIS INNOCENCE. IT ALSO ISSUED AN ORDER TO SUSPEND HIS EXECUTION. BUT PROSECUTORS FILED AN OBJECTION WITH THE HIGH COURT. IN DECEMBER 2006, A SEPARATE THREE-JUDGE PANEL AT THE HIGH COURT REPEALED THE PREVIOUS DECISION. THE DEFENSE TEAM HAD ARGUED THE TYPE OF PESTICIDE THAT OKUNISHI ALLEGEDLY CONFESSED TO USING IN THE WINE WAS NOT ACTUALLY USED IN THE MURDERS, BECAUSE ITS CHARACTERISTIC COMPONENT WAS NOT DETECTED IN THE WINE. BUT THE HIGH COURT REJECTED THAT ARGUMENT. THE DEFENSE FILED AN APPEAL WITH THE SUPREME COURT IN JANUARY 2007. JUDICIAL EXPERTS SAID REEXAMINATION OF THE WINE AND THE CREDIBILITY OF OKUNISHI'S CONFESSION WOULD BE THE FOCUS OF DELIBERATIONS AT THE UPCOMING HIGH COURT TRIAL." (THE ASSOCIATED PRESS);

BREITBART.COM;
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The Nagoya High Court said Monday it has received papers on an 84-year-old death row inmate, convicted of killing five women and injuring 12 others with poisoned wine, that it needs to start a review of its earlier decision concerning the high-profile murder case in Mie Prefecture in 1961.

The court said the arrival of records from the Supreme Court on Masaru Okunishi, who has been on death row since 1972, marks the beginning of a reconsideration of the case, after the top court decided to send it back to the high court on April 5.

But it is expected to take a few more months for a retrial to begin in earnest as judges need time to read through the documents and decide on a trial plan in discussion with the prosecution and the defense team.

"NAGOYA, April 20 (AP) - (Kyodo)—The Nagoya High Court said Monday it has received papers on an 84-year-old death row inmate, convicted of killing five women and injuring 12 others with poisoned wine, that it needs to start a review of its earlier decision concerning the high-profile murder case in Mie Prefecture in 1961," the April 19, 2010 story begins, under the heading, "Court begins review process for man on death row for 1961 murders."

"The court said the arrival of records from the Supreme Court on Masaru Okunishi, who has been on death row since 1972, marks the beginning of a reconsideration of the case, after the top court decided to send it back to the high court on April 5," the story continues.

"But it is expected to take a few more months for a retrial to begin in earnest as judges need time to read through the documents and decide on a trial plan in discussion with the prosecution and the defense team.

The focus of the trial will be on whether the type of agricultural chemical that Okunishi allegedly confessed to using was indeed in the wine.

Okunishi was arrested in April 1961 for allegedly poisoning 17 women in March that year at a local community meeting in Nabari, Mie Prefecture. Five of the women, including his wife, died and 12 fell ill. He allegedly confessed to investigators that he had laced the wine with an agricultural chemical.

Okunishi retracted his confession shortly before his indictment. In the Tsu District Court acquitted him, citing lack of evidence.

But the Nagoya High Court overturned the lower court decision and sentenced him to death in 1969 -- a decision upheld by the Supreme Court in 1972.

Okunishi has since applied a total of seven times for a retrial and been refused six times. On his seventh attempt, the Nagoya High Court decided to reopen the case in 2005, citing new evidence that could prove his innocence and ordered his execution to be suspended.

But prosecutors filed an objection, and a separate three-judge panel at the high court repealed the previous decision.

The court rejected the defense team's argument that the type of pesticide that Okunishi said he used was not actually used in the deaths because its characteristic component was not detected in the wine. In 2007, the defense filed an appeal with the Supreme Court."

The story can be found at:

http://www.breitbart.com/article.php?id=D9F67BLG0&show_article=1

Harold Levy...hlevy15@gmail.com;

BENJAMIN GEEN: U.K. FORMER NURSE CONVICTED OF MURDERING 2 PATIENTS AND INJURING 15 OTHERS; LINKED TO DUTCH LUCY DE BERK AND BRITISH SALLY CLARK CASES

"GEEN'S CASE WAS REVIEWED BY LAWYERS AND VOLUNTEERS FROM THE LONDON INNOCENCE PROJECT. THE REVIEW FOUND A NUMBER OF FLAWS IN THE ORIGINAL TRIAL, AND LAWYERS CAME TO THE CONCLUSION THAT GEEN WAS "THE VICTIM OF A MAJOR MISCARRIAGE OF JUSTICE." A LEADING MEDICAL STATISTICIAN, PROF JANE HUTTON, SUBMITTED THAT THE CROWN'S CENTRAL EVIDENCE - THAT THERE HAD BEEN AN 'UNUSUAL' PATTERN OF ILLNESSES - WAS OF 'NO VALUE' BECAUSE NO STATISTICAL MODELLING HAD BEEN DONE TO SHOW THAT THE PATTERN WAS UNUSUAL. SHE FOUND THE 'PATTERN' METHOD TO BE AT GRAVE RISK OF BIAS. DR MARK HEATH, A CONSULTANT ANAESTHESIOLOGIST WHO HAS TESTIFIED IN US SUPREME COURT CASES, FOUND THE PATTERN OF PATIENT COLLAPSES TO BE TOTALLY INCONSISTENT WITH THE DRUGS GEEN WAS SAID TO HAVE INJECTED IN SEVEN CASES. RATHER THAN PASSING OUT, PATIENTS INJECTED WITH MUSCLE RELAXANTS AS THE CROWN STATED WOULD BE PARALYSED, UNABLE TO BREATH BUT TOTALLY CONCIOUS AND TERRIFIED. OTHER DOCTORS CAME FORWARD WHO DECIDED THAT THE CAUSE OF DEATH IN MR ONLEY, A GRAVELY ILL PATIENT WHO GEEN WAS ALLEGED TO HAVE KILLED, WAS NOT A HEART ATTACK TRIGGERED BY RESPIRATORY ARREST BUT LIVER FAILURE.

WIKIPEDIA;

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Publisher's note: The Benjamin Geen case has been noted for its similarities to two notorious miscarriages of justice: The Sally Clark case, and more recently the Lucia De Berk case. (Lucia de Berk, often called Lucia de B. or Lucy de B (born September 22, 1961 in The Hague, Netherlands) is a Dutch licenced paediatric nurse, who was sentenced to life imprisonment in 2003 for four murders and three attempted murders of patients in her care. After an appeal, she was convicted in 2004 of seven murders and three attempts. Her conviction is controversial in the media and amongst scientists. (The statistical under-pinnings of the convictions) In October 2008, the case was reopened by the Dutch supreme court, as new facts had been uncovered that completely undermined the previous verdicts. De Berk was set free, and her case was re-tried; she was exonerated in April 2010.) We will be following developments in the Geen case on this Blog.

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"Benjamin Geen is a former nurse convicted of murdering two patients and causing grievous bodily harm to 15 others while working at Horton General Hospital in Banbury, Oxfordshire," the Wikipedia entry begins.

"Crime: Between December 2003 and February 2004, at least 17 patients suffered respiratory arrests for then-unknown reasons," the entry continues.

"While 15 patients recovered soon after, two patients died in January 2004: Anthony Bateman and David Onley. Geen, who was on duty during these incidents, was arrested on February 9, 2004, whereupon a syringe filled with a lethal dose of muscle relaxant was discovered in his pocket.

The hospital found 27 cases that Geen could have been involved in, though nine were discounted and Geen was acquitted of one other case.

Trial

During his trial, the Oxford Crown Court was told that Geen purposely used potentially lethal doses of drugs to cause patients to stop breathing because he enjoyed the thrill of resuscitating them. He was found guilty in April 2006, and given 17 life sentences. The trial judge recommended that he should spend at least 30 years in prison before being considered for parole. This recommendation is likely to keep him behind bars until at least 2035.
Appeal

Geen's case was reviewed by lawyers and volunteers from the London Innocence Project. The review found a number of flaws in the original trial, and lawyers came to the conclusion that Geen was "the victim of a major miscarriage of justice."

A leading medical statistician, Prof Jane Hutton, submitted that the Crown's central evidence - that there had been an 'unusual' pattern of illnesses - was of 'no value' because no statistical modelling had been done to show that the pattern was unusual. She found the 'pattern' method to be at grave risk of bias.

Dr Mark Heath, a consultant anaesthesiologist who has testified in US supreme court cases, found the pattern of patient collapses to be totally inconsistent with the drugs Geen was said to have injected in seven cases. Rather than passing out, patients injected with muscle relaxants as the crown stated would be paralysed, unable to breath but totally concious and terrified.

Other doctors came forward who decided that the cause of death in Mr Onley, a gravely ill patient who Geen was alleged to have killed, was not a heart attack triggered by respiratory arrest but liver failure.

Mark McDonald, Geen's barrister, has stated that he believes the case against Geen was the product of a "witch-hunt" in a health service terrified of a repeat of the case of Dr Harold Shipman.

A first Appeal failed in November 2009. In February 2010, lawyers submitted Geen's case to the Criminal Case Review Commission and a public campaign was launched."

The Wikipedia entry can be found at:

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

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM: WHY TEXAS TRIBUNE COLUMNIST MORGAN SMITH CALLS RECENT MEETING OF THE TEXAS FORENSIC SCIENCE COMMISSION "THE BIG STALL'.

"(FORMER CHAIR) BASSETT SAID HE BELIEVED THAT, WHILE THE COMMISSION MIGHT WELL COMMENT ON BACKLOGS IF THEY RELATED TO AN INVESTIGATION, HE DIDN’T VIEW THAT AS A GENERAL PRIORITY. “IF THEY'RE ABLE TO GET IN THREE WITNESSES TO TALK ABOUT LAB BACKLOGS, IT SEEMS LIKE THEY'D BE ABLE TO GET A FEW EXPERTS TO TALK ABOUT WILLIS/WILLINGHAM,” HE SAID, ADDING, “JUST THE IDEA THAT YOU WOULD SPEND AN HOUR SPEAKING ABOUT LAB BACKLOGS AND FIFTEEN MINUTES TALKING ABOUT WILLIS/WILLINGHAM, WHEN SEEMS TO ME IT WOULD BE THE OTHER WAY AROUND, IS BAFFLING.” AFTER THE MEETING, BRADLEY DECLINED TO GIVE A TIMELINE FOR WHEN THE COMMISSION MIGHT CONCLUDE ITS REVIEW: “HOWEVER LONG IT TAKES, THAT’S HOWEVER LONG IT TAKES.”"

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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."

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"Under a crystal chandelier, in a boardroom with all the gilded flourishes of the Irving Omni Mandalay Hotel’s faux-Mediterranean decor, Forensic Science Commission Chairman John Bradley presided over the state agency’s April quarterly meeting on Friday, which, as advertised, addressed the languishing investigation of Cameron Todd Willingham," Morgan Smith's April 26, 2010, Texas Tribune column begins, under the heading, "The Big Stall".

"His case occupied less than fifteen minutes of the six-and-a-half hour session," the column continues.

"That was enough time for Commissioner Sarah Kerrigan to emphasize the commission’s consideration of the long-delayed complaint was “still in its infancy.”

“Other than identifying that it was worthy of an investigation and hiring a consultant to help us, we haven’t made any other progress. We’ve only just begun to assemble the pieces we need,” said Kerrigan, a forensic scientist.

Texas convicted Willingham of the arson fire that killed his three daughters in 1991 and put him to death in 2004. Way back in October, the commission was set to address the serious concerns about the evidence in the case. But two days before, in the wake of a 16,000 word New Yorker piece that brought national scrutiny to the state, and in the midst of a bitter primary election, Gov. Rick Perry replaced three of the commission's members, including then-Chairman Sam Bassett. When Bradley, the Williamson County district attorney, took Bassett’s place, he promptly shelved the Willingham investigation, saying he need more time to acquaint himself with the commission’s operations.

Since his appointment, the alternately amiable and peevish, typically cowboy-boot-shod Bradley has comported himself as a virtuoso of the bureaucratic dawdle. Under Bradley’s watch, the commission has shifted from meeting on a two-month to a three-month basis, reported to two Senate committees and one interim House committee, and displayed general confusion about its public records policy and legislative oversight procedures. Earlier this month, Bradley riled legislators at an interim hearing of the House Public Safety Committee by failing to appear before them to answer questions about delays in the case. Bradley chalked up his non-appearance to being given “less than a week’s notice," too little for an official of his stature and tight schedule.

Bassett, the man who Bradley abruptly replaced, watched Friday’s meeting on a live stream broadcast. He summed up the situation this way: “It’s tortuously slow how long it’s taking.”

On Friday, in its most substantive move regarding the case, the commission voted to add Fort Worth criminal defense attorney Lance Evans to the previously three-person subcommittee charged with considering it. Citing a concern that the panel should contain another member with a legal background, Evans said, “obviously everyone is aware of the public perception of what is going on regarding this investigation.”

Deliberations of the subcommittee — which in addition to Evans consists of Bradley, Kerrigan, and Tarrant County Medical Examiner Nizam Peerwani — will likely not be public, Bradley said. Since it will not form a quorum of the total commission members, the Open Meetings Act does not cover its gatherings, and it is not obligated to make a record of its discussions available to the public.

Willingham’s execution was first officially called into question in August, when Craig Beyler, a fire expert and the consultant to which Kerrigan referred, issued a damaging report to the commission that discredited the methods the state used to convict Willingham. Beyler’s assessment that one state fire investigator “seems to be wholly without any realistic understanding of fires and how fire injuries are created” is characteristic of his conclusions throughout the report.

In 2007, while Bassett was chair, the Innocence Project submitted a complaint to the commission concerning the arson science the state used to hand death sentences to Willingham, who was executed in 2004, and a second man, Ernest Willis, who was later exonerated. Bassett said at the time he was “very confident” that the commission would be able to finish a report on the complaint “by the summer of 2010.”

On Friday, the commission spent the morning trudging through the topic of a backlog in forensic testing laboratories, something Innocence Project Policy Director Stephen Saloom, who attended the meeting, complained wasn’t even within its power to address. A visibly upset Saloom said in an interview that the commission was distorting its legislative mandate. He cited its enacting statute, which describes the duties of the commission as investigating — “in a timely manner” — allegations of professional misconduct and developing a “reporting system” to do so.

After ninety minutes of invited testimony from three different witnesses, during which the questioning came almost exclusively from Bradley, Kerrigan spoke to Saloom’s point without him ever raising it publicly: “It’s probably beyond the scope of the commission to think that we can address the backlog of the labs in Texas, we already have very competent people addressing those issues.”

Bassett said he believed that, while the commission might well comment on backlogs if they related to an investigation, he didn’t view that as a general priority. “If they're able to get in three witnesses to talk about lab backlogs, it seems like they'd be able to get a few experts to talk about Willis/Willingham,” he said, adding, “Just the idea that you would spend an hour speaking about lab backlogs and fifteen minutes talking about Willis/Willingham, when seems to me it would be the other way around, is baffling.”

After the meeting, Bradley declined to give a timeline for when the commission might conclude its review: “However long it takes, that’s however long it takes.”

The column can be found at:

http://www.texastribune.org/stories/2010/apr/26/big-stall/

CAMERON TODD WILLINGHAM; WHY COLUMNIST RICK CASEY SEES THE RECENT MEETING OF TEXAS FORENSIC SCIENCE COMMISSION AS "A SMALL VICTORY."

"IT WAS A SMALL VICTORY — THE NOTION THAT THE COMMITTEE INVESTIGATING THE FORENSIC SCIENCE THAT HELPED LEAD TO A MAN'S EXECUTION SHOULD INCLUDE AS MANY SCIENTISTS AS LAWYERS — BUT I'M AFRAID THESE DAYS WE HAVE TO CELEBRATE EVEN THE SMALL VICTORIES."

RICK CASEY: THE HOUSTON CHRONICLE;

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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."

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"IRVING ­— Williamson County District Attorney John Bradley, who was dispatched last September by Gov. Rick Perry to take control of the troublesome set of scientists known as the Texas Forensic Science Commission, continued to pursue his mission on Friday," Rick Casey's April 25, 2010 Houston Chronicle column begins, under the heading, "Let's have a cheer for small victories."

"It was just one round in what promises to be a protracted fight over whether the body will become a national model of how to improve the use of science in fighting crime, or just another secretive, bureaucratic body perceived as protecting licensed professionals rather than policing them," the column continues.

"Bradley struck the first blow immediately upon his appointment by shutting down the commission for nearly four months, saying he needed to develop proper procedures to be used by the scientists in their investigations of complaints of bad science being used in criminal investigations and prosecutions.

Much attention has focused on the side-effect of delaying work on a probe into the apparently pathetic excuse of an arson investigation used to convict Cameron Todd Willingham of burning down his house to murder his children. Despite questions raised about that investigation before Willingham was put to death in 2004, Perry refused to delay the execution so the questions could be examined.

Friday's meeting made it clear that Bradley will succeed in delaying any final report on the Willingham matter until after the November election.

More secretive

“We're only just beginning to put together the pieces we need,” said commission member Sarah Kerrigan, head of the graduate forensic science program at Sam Houston State University.

But more important than the Willingham investigation is the long-term impact on the commission that Bradley seems to be seeking.

For example, he has made it much more secretive than it had been. Before he took over, the nine-member commission did all its work, including its investigations, as a body and in public sessions.

But Bradley persuaded the commissioners to do the work by committee, and has declared that the committees will meet in secret.

Although it didn't officially become a committee until Friday, a group had already met on the Willingham case, although it seems to have discussed only where it will go from here.

Intriguing byplay

Grand juries are secret mainly out of concern for the reputations of people who end up not being charged with a crime, and partly for the safety of witnesses.

But Willingham is dead and all the witnesses appeared at his trial. I can imagine evidence or witnesses that the commission may legitimately want to hear privately, but not in the Willingham case.

Having decided to have the committee work done in secret, Bradley named himself to the two most sensitive committees: the one handling the Willingham case and, even more importantly, the committee that screens complaints and recommends which ones to accept.

He named Tarrant County Chief Medical Examiner Dr. Nizam Peerwani to both three-member panels, making some commission members wonder if Bradley sees Peerwani as an ally.

One intriguing byplay at Friday's meeting suggested that if Peerwani is a Bradley ally, he's not totally in his pocket.
Hint of tension

Bradley had named Kerrigan, one of those most vocally resistant to his proposed policies, as a member of the Willingham committee.

But Bradley announced that she had asked to be replaced “for personal reasons,” a common euphemism. He also indicated that she thought the committee ought to be bigger and include the commission's only defense attorney to balance DA Bradley, a hint at the tension between the two.

Bradley named Fort Worth defense attorney Lance Evans to replace Kerrigan, but Evans noted that this resulted in a committee made up entirely of new appointees. He suggested that a member who had been part of the investigation from the beginning should be added or they could “perhaps meet as a committee of the whole (commission).”

Persistence pays

Bradley resisted, saying the committee could invite another member to attend a meeting. But Peerwani said he thought Kerrigan should be added as a member. Bradley once again said she could be invited, but Peerwani persisted and won.

It was a small victory — the notion that the committee investigating the forensic science that helped lead to a man's execution should include as many scientists as lawyers — but I'm afraid these days we have to celebrate even the small victories."

The column can be found at:

http://www.chron.com/disp/story.mpl/metropolitan/casey/6975612.html

Harold Levy...hlevy15@gmail.com;

LUCIA DE BERK: HOLLAND; DUTCH NEWSPAPER CALLS FOR "SELF-EXAMINATION" IN JUDICIAL CIRCLES IN LIGHT OF "BLATANT MISCARRIAGE OF JUSTICE";

"THE CASE OF LUCIA DE BERK WILL GO DOWN IN HISTORY AS A BLATANT MISCARRIAGE OF JUSTICE IF THERE EVER WAS ONE. IT IS EVEN WORSE THAN SOME OTHER FAMOUS TRIALS WHERE PEOPLE WERE WRONGFULLY CONVICTED, BECAUSE THERE WAS NO EVIDENCE THAT CRIMES HAD EVEN BEEN COMMITTED. THE CASE CAN BE CLOSED NOW. JUSTICE MINISTER ERNST HIRSCH BALLIN HAS PROMISED DE BERK A "GENEROUS" COMPENSATION AND THE PROSECUTOR’S OFFICE AND JUDICIARY HAVE OPENLY EXPRESSED THEIR REGRETS. NOT JUST TO DE BERK, BUT ALSO FOR MISLEADING THE RELATIVES OF THE ALLEGED VICTIMS."

EDITORIAL: NRC HANDELSBLAD: (Wikipedia informs us that "NRC Handelsblad, often abbreviated to NRC, is a daily evening newspaper published in the Netherlands by NRC Media."

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BACKGROUND: Lucia de Berk, often called Lucia de B. or Lucy de B (born September 22, 1961 in The Hague, Netherlands) is a Dutch licenced paediatric nurse, who was sentenced to life imprisonment in 2003 for four murders and three attempted murders of patients in her care. After an appeal, she was convicted in 2004 of seven murders and three attempts. Her conviction is controversial in the media and amongst scientist. In October 2008, the case was reopened by the Dutch supreme court, as new facts had been uncovered that completely undermined the previous verdicts. De Berk was set free, and her case was re-tried; she was exonerated in April 2010.

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"The final ruling in the case of Lucia de Berk, who was wrongfully imprisoned as a serial killer for more than six years, is a harsh reckoning within judicial circles. The ruling will long resound with judges, prosecutors, detectives and, to a certain extent, lawyers. How could they have been this wrong collectively?," the April 15, 2010 NRC Handelsblad editorial begins, under the heading "Nurse's acquittal should lead to self-examination in judicial circles."

"The appeals court in Arnhem, which on Wednesday finally acquitted nurse De Berk of the seven murders and three attempted murders she was convicted for in 2001, drew some conclusions for the future by pointing out all that went wrong in the legal reasoning," the editorial continues.

"Unexplained deaths of very ill hospital patients in De Berk's care were treated as inexplicable deaths. All of those involved mistakenly assumed that every death could be explained by human action or inaction. Autopsy was only carried out on two of the dead patients’ bodies, several months after they had died, and failed to prove they were murder victims.

Basically, the court said doctors' words and police investigations should not be believed at face value, especially when there is no hard medical evidence from autopsies. It warned against circular reasoning, chains of evidence and domino theories, which use a possible explanation for a single case as evidence in a string of similar ones.

The Arnhem court came to the conclusion there was no perpetrator, because none of the ten alleged crimes could be proven at all. All 'victims' died from natural causes, the court said. It went on to acquit the nurse of all charges.

Earlier in the retrial, the prosecutor had already admitted there was no evidence proving De Berk was to blame for any of the deaths. But the court went a step further and said there were no crimes to begin with. The prosecution of the nurse had been a travesty.

The case of Lucia de Berk will go down in history as a blatant miscarriage of justice if there ever was one. It is even worse than some other famous trials where people were wrongfully convicted, because there was no evidence that crimes had even been committed.

The case can be closed now. Justice minister Ernst Hirsch Ballin has promised De Berk a "generous" compensation and the prosecutor’s office and judiciary have openly expressed their regrets. Not just to De Berk, but also for misleading the relatives of the alleged victims.

Their words of regret must have been sincere, but they also exonerated the judges and prosecutors involved. They were said to have done their jobs with integrity, professionalism and "in good conscience". This statement doesn't show much eagerness to learn from the mistakes that were made. Erik van den Emster, the chairman of the Netherlands Council for the Judiciary, said, "in a legal sense, the system worked in the end". The judiciary corrected its own mistake, he added benevolently in a TV interview.

This statement speaks of complacency. All credit for correcting this judicial blunder should go to skilled outsiders. There were scientists, doctors, statisticians, toxicologists and others whose continuous research and civil opposition forced the trial to be reopened. Nobody doubts the conscience of the magistrates involved. But their skills and professionalism now stand corrected by the court.

Regaining the confidence of citizens shocked by this case will take a bit more. At the very least, judicial circles should go through a round of self-examination."

The editorial can be found at:

http://www.nrc.nl/international/opinion/article2525470.ece/Nurses_acquittal_should_lead_to_self-examination_in_judicial_circles

Harold Levy...hlevy15@gmail.com;

BRENDA WAUDBY: TORONTO SUN COLUMNIST ALAN SHANOFF ON CRIME COMPENSATION BOARD'S REFUSAL TO COMPENSATE FOR PAIN AND SUFFERING CAUSED BY CHARLES SMITH;

"WORSE, ITS RECENT DECISION IN THE BRENDA WAUDBY CASE AGAIN DEMONSTRATES OFFICIOUS AND INFLEXIBLE CONDUCT. WAUDBY WAS WRONGLY CHARGED AND CONVICTED OF MURDERING HER 21-MONTH-OLD DAUGHTER. THIS THANKS TO THE BUNGLING OF PATHOLOGIST DR. CHARLES SMITH. YET WAUDBY’S APPLICATION TO THE CICB FOR COMPENSATION FOR HER PAIN AND SUFFERING WAS DISMISSED. APPARENTLY SHE DID NOT MEET ITS CRITERIA FOR COMPENSATION. IF THAT’S THE CASE THEN THE CRITERIA MUST BE RE-EXAMINED."

ALAN SHANOFF: THE TORONTO SUN;

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BACKGROUND: (From Goudge Inquiry report); Jenna was born in Peterborough, Ontario. She died on January 22, 1997, at the age of 21 months. On January 21, 1997, at approximately 5 p.m., Jenna’s mother, Brenda Waudby, left Jenna in the care of a babysitter, J.D., who was 14 years old at the time. That night, Jenna was taken to a local hospital, where she died. Dr. Smith performed the autopsy and concluded that Jenna had died of blunt abdominal trauma. On September 18, 1997, the police charged Ms. Waudby with second-degree murder. In October 1998, following a preliminary hearing, the court committed Ms. Waudby to stand trial on the charge. On June 15, 1999, after receiving the opinions of several experts suggesting that Jenna had suffered her fatal injuries at a time when Ms. Waudby did not have care of Jenna, the Crown withdrew the charge. Two years later, in July 2001, the police began a reinvestigation of Jenna’s death. Ultimately, in December 2006, J.D. pleaded guilty to manslaughter. He was sentenced as a youth to 22 months in custody, followed by 11 months of community supervision.

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"Ontario Ombudsman Andre Marin is living on borrowed time," Alan Shanoff's Toronto Sun April 24, 2010 column begins, under the heading, "Ontario's ombudsman deserves another term."

""His five-year year term expired March 31 and the Ontario government is searching for a new ombudsman while Marin serves out a six-month temporary extension," the column continues.

"While Marin has reapplied for a second five-year term, it seems Premier Dalton McGuinty would rather find a replacement. But why?

What more could one have asked of Marin? Think about all of the areas he has examined and improved.

Do you pay property taxes? Do you purchase lottery tickets? Are you a cancer patient? Have you been a victim of a crime? Are you the parent of a special needs child? Did you have a baby in the last five years?

If so, your life or your rights have likely been improved due to Marin’s efforts.

His team has investigated long-term care facilities, the Ministry of Health’s funding of various drugs, the Family Responsibility Office, the Criminal Injuries Compensation Board, the Ontario Lottery and Gaming Corporation, Legal Aid Ontario, the Ministry of Government and Consumer Services relationship with Tarion Warranty Corp., and the Municipal Property Assessment Corporation. That’s an impressive list of accomplishments.

The Ontario Ombudsman fulfils a vital role in society. The Ombudsman’s raison d’etre is the investigation of complaints against government.

Aside from investigating systemic problems within government agencies, the Ombudsman also handles in excess of 10,000 individual complaints and inquiries each year.

All this with a budget of about $10 million annually.

Aside from Marin’s five years of experience on the job, his background obviously can’t be considered any sort of a handicap.

He has served as an assistant Crown Attorney, Director of the province’s Special Investigations Unit and as the Canadian Forces Ombudsman.

So why the need to dump Marin?

I suspect it has much to do with the embarrassment Marin regularly causes the Ontario government when he issues reports using his typically blunt language.

Expanded mandate

It also likely has a lot to do with Marin’s insistence that the Ombudsman’s mandate should be expanded to cover what he calls the MUSH sector: Municipalities, Universities, School boards, Hospitals and long-term care facilities, as well as children’s aid societies and police.

In his last annual report Marin argued, “(t)hese are areas where thrift, sensible government and good judgment are acutely required, yet the government of Ontario declines our help, and it is costing all of us.” Now let’s get back to the Criminal Injuries Compensation Board.

In 2008 the Ombudsman issued a scathing report on the CICB calling it a colossal failure and criticizing its “officious and inflexible” conduct. As Marin stated, “(i)nstead of giving steadfast and urgent assistance, it trades in technicality and embraces delay.”

Things have improved at the CICB but not nearly enough. It still takes over two years for the average claim to travel from application to decision and the CICB’s maximum lump sum payment of $25,000 hasn’t been increased since it was instituted in 1971.

Worse, its recent decision in the Brenda Waudby case again demonstrates officious and inflexible conduct.

Waudby was wrongly charged and convicted of murdering her 21-month-old daughter. This thanks to the bungling of pathologist Dr. Charles Smith. Yet Waudby’s application to the CICB for compensation for her pain and suffering was dismissed. Apparently she did not meet its criteria for compensation.

If that’s the case then the criteria must be re-examined.

As Marin’s report complained “instead of providing relief, the Criminal Injuries Compensation Board too often adds insult to injury.”

I’m sure Waudby would agree with that conclusion."

Teh column can be found at:

http://www.torontosun.com/comment/columnists/alan_shanoff/2010/04/23/13700691.html

Harold Levy...hlevy15@gmail.com;

TIMOTHY COLE: GRITS FOR BREAKFAST WADES IN ON WHETHER TEXAS SHOULD HAVE AN INNOCENCE COMMISSION - OR USE EXISTING UNIVERSITY INNOCENCE PROJECTS;

"THE TRUTH IS, WHERE "INNOCENCE COMMISSIONS" HAVE BEEN ESTABLISHED THEY HAVEN'T BEEN A TERRIBLY EFFECTIVE VEHICLE FOR GETTING INNOCENT PEOPLE OUT OF PRISON. MOST OF THAT WORK HAS BEEN DONE BY THE NATIONAL INNOCENCE PROJECT AND VARIOUS SPIN-OFFS AT LAW SCHOOLS AROUND THE COUNTRY. SO IF TEXAS CHOOSES TO USE THAT VEHICLE FOR THE TASK, GREAT. IT'S WHAT SEEMS TO WORK BEST. BUT THE PALTRY SUMS PRESENTLY APPROPRIATED ARE INSUFFICIENT - $200K PER YEAR FOR EACH OF THE STATE'S FOUR INNOCENCE CLINICS, DISTRIBUTED THROUGH THE TASK FORCE ON INDIGENT DEFENSE. MUCH MORE THAN THAT WOULD BE NEEDED, FOR EXAMPLE, TO VET ALL OF DEPUTY PIKETT'S OLD DOG-SCENT LINEUPS OR COMPREHENSIVELY EVALUATE POSSIBLE INNOCENCE CLAIMS AMONG RECENTLY DISCOVERED DNA SAMPLES IN SAN ANTONIO, MUCH LESS TO GET STARTED ON QUESTIONABLE ARSON CASES. ON THAT SCORE, I'VE BEEN DISAPPOINTED THE GOVERNOR'S CRIMINAL JUSTICE DIVISION HASN'T STEPPED UP TO THE PLATE - THAT'S THE MOST OBVIOUS SOURCE OF ADDITIONAL FUNDS FOR LAW-SCHOOL BASED INNOCENCE CLINICS, BUT INSTEAD THEY'RE FUNDING PET PROJECTS ON THE BORDER THAT OFTEN DON'T APPEAR TO BE DELIVERING MUCH BANG FOR THE BUCK."

GRITS FOR BREAKFAST;

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BACKGROUND: Timothy Cole, whose cause has been championed by state lawmakers and others, was found guilty in the 1985 rape of a Texas Tech student and was sentenced to 25 years in prison. His conviction was based in part on the victim's identification of him as her attacker and what a judge later called faulty police work and a questionable suspect lineup. The victim later fought to help clear Cole's name. Cole died in prison in 1999, at age 39, after an asthma attack caused him to go into cardiac arrest. Following repeated confessions by another man, Cole was cleared by DNA evidence in 2008, and a state judge exonerated him in 2009. His family pursued a pardon, but Perry had said he did not have the authority to grant one posthumously. That changed after Perry announced that he had received legal advice to the contrary.

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"Dave Montgomery from the Fort Worth Star-Telegram reports that: An advisory panel bearing the name of a wrongfully convicted inmate from Fort Worth is apparently leaning against recommending the creation of a state innocence commission amid concerns that it would create a new bureaucracy and duplicate work already being performed in Texas law schools," the Grits For Breakfast 23 April, 2010 post begins, under the heading, "Advisory panel leaning against innocence commission."

"The concept of an innocence commission to investigate whether convictions are wrongful was among several recommendations discussed Thursday by the Timothy Cole Advisory Panel," the post continues.

"Cole, who died in prison after being convicted for a sexual assault that he didn't commit, was recently given a posthumous pardon by Gov. Rick Perry.

The panel deferred votes until its next meeting, but members generally expressed reservations about creating an innocence commission. Some members called for bolstering similar work now under way in four Texas law schools.

The University of Texas at Austin, Texas Tech, the University of Houston and Texas Southern University have projects or clinics that examine questionable convictions. Similar projects are in operation across the country.

The commission's stance generally tracks that of Perry, who believes a commission "would create an added layer of government," said Perry spokeswoman Allison Castle. Perry's deputy general counsel, Mary Anne Wiley, is a member of the panel.

"The governor's focus is working to ensure wrongful convictions don't happen in the first place," Castle said, "like supporting the law school innocence project, creating expert attorneys who specialize in post conviction death penalty cases and encouraging the creation of more public defender offices across the state to ensure competent counsel by attorneys who specialize in death penalty cases."

Tim Cole's half-brother Cory Session was there to support an innocence commission, but apparently that's not the direction the advisory panel will go. I wasn't there to hear the conversation, but speaking only for myself I don't actually find the Governor's stance particularly objectionable, with one stipulation: Texas innocence clinics are underfunded for the task before them, and if an Innocence Commission won't be created there need to be more funds applied to the law school clinics.

The truth is, where "innocence commissions" have been established they haven't been a terribly effective vehicle for getting innocent people out of prison. Most of that work has been done by the national Innocence Project and various spin-offs at law schools around the country. So if Texas chooses to use that vehicle for the task, great. It's what seems to work best. But the paltry sums presently appropriated are insufficient - $200K per year for each of the state's four innocence clinics, distributed through the Task Force on Indigent Defense.

Much more than that would be needed, for example, to vet all of Deputy Pikett's old dog-scent lineups or comprehensively evaluate possible innocence claims among recently discovered DNA samples in San Antonio, much less to get started on questionable arson cases. On that score, I've been disappointed the Governor's Criminal Justice Division hasn't stepped up to the plate - that's the most obvious source of additional funds for law-school based innocence clinics, but instead they're funding pet projects on the border that often don't appear to be delivering much bang for the buck.

One does notice that none of the post-conviction remedies Ms. Castle describes would "ensure wrongful convictions don't happen in the first place." For that the state needs to enact policy reforms on the front end, such as requiring valid lineup practices, recording interrogations, and ensuring that invalid forensics aren't used at trial. Governor Perry has never championed such reforms, but neither for the most part has he opposed them, with the notable exception of his intervention into the Forensic Science Commission's investigation into arson science.

One of the arguments for an innocence commission is that it creates an institutional player to focus on those questions, but that's not the only way that particular cat can be skinned: The Legislature could just enact such reforms if top state leadership support them. Last session, they had other priorities."

The post can be found at:

http://gritsforbreakfast.blogspot.com/2010/04/advisory-panel-leaning-against.html

Harold Levy;

CAMERON TODD WILLINGHAM; ANALYSIS; APRIL 23 MEETING TEXAS FORENSIC SCIENCE COMMISSION; DAVE MANN; TEXAS OBSERVER; CYNICS NOT DISPROVED;

"IN THE END, THE COMMISSION COMMITTED TO KEEP INVESTIGATING, WHICH ITSELF IS PROGRESS. BUT IT REMAINED UNCLEAR WHAT THE NEXT STEP WILL BE, HOW LONG IT WILL TAKE, AND WHETHER THE COMMISSION WILL EVER HEAR TESTIMONY FROM BEYLER, WHOSE SCHEDULED APPEARANCE WAS CANCELED IN SEPTEMBER WHEN GOV. PERRY SHOOK UP THE COMMISSION.

THE WILLINGHAM INQUIRY WILL CONTINUE. THE DETAILS, THOUGH, REMAIN A MYSTERY. AND NOTHING HAPPENED AT TODAY’S MEETING TO DISPROVE THE CYNICS OUT THERE WHO SUSPECT THAT THE INVESTIGATION WILL DRAG ON UNTIL AFTER THE NOVEMBER GOVERNOR’S ELECTION..."

REPORTER DAVE MANN: TEXAS OBSERVER; ( Wikipedia informs us that: The Texas Observer (also known as the Observer) is an American political newsmagazine published bi-weekly and based in Austin, Texas. Though nonpartisan, the publication has historically been an advocate for liberal political policies. The Observer was founded by Frankie Randolph and founding editor Ronnie Dugger in Austin in 1954 to address topics ignored by daily newspapers in the state — such as issues affecting working people and concerning class and race.[2] Upon its founding, Dugger declared the paper's manifesto as "We will serve no group or party but will hew hard to the truth as we find it and the right as we see it." The publication continues this mission through today by focusing on covering what the mainstream press does not. For instance, the Observer broke the story of an allegedly crooked narcotics investigation in Tulia, Texas, that led to front-page coverage in The New York Times and other national news outlets. Tom Coleman, the narcotics investigator in the tiny town, was eventually accused of trumping up drug bust information, mostly aimed at African Americans. Coleman claimed he had made more than 100 undercover drug purchases from 46 different drug dealers (40 of whom were black). About a dozen of the accused were sentenced, some for up to 90 years (based almost entirely on his personal accounts with virtually no corroborating evidence) before authorities stopped to investigate Coleman's practices, largely due to the Observer's reporting. Coleman was found guilty of one charge of perjury, for which he was sentenced to seven years probation. Fitting with its "muckraking" reputation[5], the publication's slogan is: "Sharp reporting and commentary from the strangest state in the Union." The Observer often garners more laurels from those who live outside Texas's borders than those within — The New York Review of Books described it as "That outpost of reason in the Southwest." John Kenneth Galbraith said the Observer is a "well-researched journal which more orthodox Texas statesmen feel should not have the protection of the First Amendment." The Observer operates on a shoestring budget — it accepts few advertisements, supporting itself through subscriptions and occasional benefit banquets. Dave Mann is described as being with the Observer since 2003. Before that, he worked as a reporter in Fort Worth and Washington, D.C. He was born and raised in Philadelphia.)

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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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"Updated at 2:13 p.m.: A room full of reporters and activists waited most of the day to hear the Texas Forensic Science Commission at long last discuss the infamous Cameron Todd Willingham case" the 23 April, 2010 update by Texas Observer reporter Dave Mann begins, under the heading, "Update from Forensic Science Meeting."

"When the case finally came up, the result was anti-climactic," the story continues.

"The commission members agreed that they would keep investigating the Willingham case and that they needed more information. The commission has assigned four of its members to examine the flawed forensic evidence used to convict Willingham of starting the 1991 house fire that killed his three children. Willingham was executed in 2004.

In December 2008, the commission hired an outside expert to examine the Willingham case. That expert, Dr. Craig Beyler, delivered his report in August 2009 in which he concluded the fire science in the case was outdated and discredited. That’s when Gov. Rick Perry intervened, replacing three commissioners and the putting the investigation on hold.

But the commission—even under its previous chair—had always intended to obtain testimony and input from other experts, including the prosecutors and local fire marshal’s office that worked on the Willingham case.

“We’ve only just begun this investigation,” said commission member Sarah Kerrigan. She said there was a misunderstanding by the public that Beyler’s report was the final report of the commission. That’s not the case, she said. The commission still must solicit input from other experts. Kerrigan wants the four-person Willingham panel to meet with a number of experts in the case, including Beyler. That meeting may well happen behind closed doors.

Chair John Bradley pointed out that the commission hadn’t even obtained a full transcript of Willingham’s trial yet. Nizam Peerwani, the Fort Worth medical examiner, said he wanted to see the video made of the fire scene at Willingham’s house.

In the end, the commission committed to keep investigating, which itself is progress. But it remained unclear what the next step will be, how long it will take, and whether the commission will ever hear testimony from Beyler, whose scheduled appearance was canceled in September when Gov. Perry shook up the commission.

The Willingham inquiry will continue. The details, though, remain a mystery. And nothing happened at today’s meeting to disprove the cynics out there who suspect that the investigation will drag on until after the November governor’s election."

The story can be found at:

http://www.texasobserver.org/contrarian/update-from-forensic-science-meeting

Harold Levy...hlevy15@gmail.com;

DAVID WILLIAMS; UPDATE; DOG SMELLED ACCELERANT; LAB TESTS NEGATIVE; DEFENCE LAWYER CITES "RUSH TO JUDGMENT". 37 DAYS BEHIND BARS AS ALLEGED ARSONIST;

"ON FRIDAY, WILLIAMS READ A PREPARED STATEMENT AND DID NOT ANSWER REPORTER’S QUESTIONS. HOSMER SAYS IT’S UNCLEAR IF WILLIAMS WILL FILE A LAWSUIT. "DAVID WAS NOT ALLOWED TO GO TO THE FUNERAL OF THESE THREE CHILDREN,” HOSMER SAID. “DAVID WAS A FATHER FIGURE. THERE IS A LOT HE MISSED OUT ON AS A RESULT OF THE CHARGES BEING FILED AGAINST HIM," HOSMER SAID.

IT’S ALSO UNCLEAR IF ANY CHARGES WILL BE RE-FILED. POLICE ARE STILL INVESTIGATING THE CAUSE OF THE FIRE ITSELF. "POLICE AND FIRE EXAMINERS ARE STILL INVESTIGATING WE MAY ACHIEVE JUSTICE FOR THOSE CHILDREN," PATTERSON SAID.

FIRE INVESTIGATORS SAID A FIRE DOG FOUND AN ACCELERANT ON WILLIAMS’ JEANS. A LAB TEST DID NOT FIND THE SAME RESULTS. POLICE AND PROSECUTORS ARE NOT DISCUSSING THE NEXT STEP IN THE INVESTIGATION. THEY WILL ONLY SAY IT IS ONGOING."

REPORTER EMILY RITTMAN: KSPR NEWS.

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BACKGROUND; David Williams is charged with arson for the fire that killed his fiancée’s three children and injured their maternal grandfather on March 15. Now lab results on samples from the crime scene contradict evidence cited by investigators. Where a trained dog smelled a fire accelerant, testing did not. In the probable cause statement used as the basis of the arson charge, a fire marshal said the dog alerted to an accelerant in three different spots at the fire scene: the front porch, the front door and the living room. The dog also alerted to a spot on a pant leg of jeans that Williams said he put on after he was awoken as the fire was burning. "I was told that laboratory tests on the jeans and samples from the floor of the home did not detect any accelerant. Still, we trust the observations of an accelerant identified by fire marshals and trained dogs,” Greene County Assistant Prosecuting Attorney Dan Patterson said on Tuesday. "Their testing is invalidated,” said Williams’ defense attorney, Andy Hosmer. Hosmer says dogs cannot be trusted alone.

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"A man once charged with intentionally setting a fire that killed his fiancé’s kids speaks out for the first time. David Williams no longer faces an arson charge for a triple fatal house fire last month," the April 23, 2010, KSPR News story by reporter Emily Rittman, published under the heading, "Update: David Williams Speaks about Prosecutors Dropping Arson Charge," begins.

"At the fire scene, the home the family lived in is boarded up," the story continues.

"Three flower arrangements line the front yard --- representing the three children who died inside. The triple fatal fire killed 4-year-old Devin, 5-year-old Kelsey and 7-year-old Alexis. Their mother's fiancé is no longer in jail for charges for setting the fire. "I'm just glad he is home and I miss my kids,” Violet Watson said at a news conference Friday. “I wish they could come back but they’re not so I have to live everyday for them."

Watson never wavered. When Williams was charged with setting the fire that killed her kids, she stood by his side then and now. "I want to thank my family and friends for standing beside me through this difficult time,” Williams read. “I miss my kids so much. I want to rebuild my life and move on from this horrible tragedy."

Williams' attorney, Andy Hosmer, says Williams spent 37 days in jail. "There is some disappointment there was such a rush to judgment,” Hosmer said. “That two days after the fire charges were filed instead of waiting for lab tests to confirm or not confirm the indicators.”

Prosecutors say it was not lab results that lead to dropping the charge. Instead they say new information from fire investigators caused the change. "This dealt with fire examiners observation and analysis of the fire scene itself," Greene County Chief Assistant Prosecuting Attorney Dan Patterson said.

On Friday, Williams read a prepared statement and did not answer reporter’s questions. Hosmer says it’s unclear if Williams will file a lawsuit. "David was not allowed to go to the funeral of these three children,” Hosmer said. “David was a father figure. There is a lot he missed out on as a result of the charges being filed against him," Hosmer said.

It’s also unclear if any charges will be re-filed. Police are still investigating the cause of the fire itself. "Police and fire examiners are still investigating we may achieve justice for those children," Patterson said.

Fire investigators said a fire dog found an accelerant on Williams’ jeans. A lab test did not find the same results. Police and prosecutors are not discussing the next step in the investigation. They will only say it is ongoing."

The story can be found at:

http://www.kspr.com/news/local/91953689.html

Harold Levy...hlevy15@gmail.com;

DAVID KOFOED AND THE ELEPHANT IN THE CRIME LAB.

"REFORMERS HAVE FOR YEARS RECOMMENDED THAT ALL FORENSIC LABS BE INDEPENDENT FROM LAW ENFORCEMENT AND PROSECUTORIAL AGENCIES' AND THIS IS A KEY REFORM PROMOTED BY THE JUSTICE PROJECT (2008). BUT FIXING THESE PROBLEMS IS ONLY HALF THE ANSWER' BECAUSE HALF OF THE WRONGFUL CONVICTIONS ATTRIBUTED TO MISLEADING FORENSIC EVIDENCE INVOLVED DELIBERATE FORENSIC FRAUD' EVIDENCE TAMPERING' AND/OR PERJURY. THIS IS THE ELEPHANT IN THE CRIME LAB."

SHEILA BERRY AND LARRY YTUARTE' PHD: "THE ELEPHANT IN THE CRIME LAB;

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PUBLISHER'S NOTE: Dr. Charles Smith made very clear in his testimony that he saw himself as a member of the prosecution team who's job was to help convict the accused - and that no one in authority ever told him that his role was otherwise. To that end, there seems to be little that he wouldn't do to help the Crown win the case. He lied under oath, he lied when he was not under oath, he mislead the courts time after time, and he conveniently "lost" evidence that would assist the accused and show that his opinion was wrong. That's for a start.




An article published in "The Forensic Examiner; Spring 2009" is very relevant to Dr. Smith's candid testimony - as it suggests that half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud, evidence tampering, and/or perjury;

I was reminded of this insightful article - aptly called "The Elephant in the Crime Lab" - co-authored by Sheila Berry and Larry Ytuarte, when I became aware of former CSI Chief David Kofoed's recent conviction for evidence tampering - the intentional planting of blood in a car to help obtain a murder conviction.

The author's refusal to allow the forensic official to slither away from responsibility by claiming "noble cause corruption," on the basis that abuse of their trust within the criminal justice system is anything but  particularly commendable.

Harold Levy;

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BACKGROUND: (David) Kofoed's work came into question after his 2006 investigation into the slaying of a rural Cass County couple, Wayne and Sharmon Stock. Detectives zeroed in on the couple's nephew and his cousin, but found no physical evidence tying the two to the killings. They managed to get a confession from the nephew, but he retracted it the next day. A day later, Kofoed said he found a drop of one of the victims' blood in a car linked to the suspects that had already been combed over by another forensic investigator. The suspects were charged with murder and jailed for several months before being released because prosecutors determined the confession was unreliable and didn't fit the facts of the case. A man and woman from Wisconsin eventually pleaded guilty to murdering the couple and are serving life prison terms. The FBI began investigating Kofoed after the slain couple's nephew filed a lawsuit alleging civil rights violations. The agency's findings led authorities to charge Kofoed with evidence tampering in April. During his trial, Kofoed blamed the speck of blood found in the car on accidental contamination. But Cass County District Judge Randall Rehmeier said he didn't buy it, and that the evidence showed Kofoed intentionally planted the blood in the car...Kofoed has not been charged in any other investigation. He remains free on bond, but is due back in court in May for sentencing. He faces up to five years in prison and a $10,000 fine. Kofoed has not responded to a request for comment made to his attorney, Steve Lefler, who said Kofoed may appeal...Before issuing his verdict, Rehmeier said there were similarities between that investigation and one in which a man, Ivan Henk, was convicted of murdering his young son, whose body was never found. In both cases, there were confessions by the suspects and a lack of physical evidence to corroborate them until Kofoed found a speck of blood that had previously been overlooked, the judge said. (Associated Press);

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"In less than a generation' breakthroughs and innovations in research and development have turned the stuff of science fiction into fact," the article begins;

"Computers' the internet' cell phones and their various combinations have changed our lives in ways unimaginable just twenty years ago," it continues;

"The use of science to answer legal questions— forensic science—has seen similar breakthroughs.

DNA analysis comes first to mind' because its impact has been so dramatic' but innovations in other forensic scientific and medical techniques have been equally important.

The public perception' certainly aided by television shows such as CSI: Crime Scene Investigation and a myriad of similar quasi-documentaries' is that forensic science is objective' reliable' independent and flawless.

When the man or woman in the lab coat testifies' even if qualifying terms like "consistent with" or "similar to" are used' jurors hear absolute certainty.

Richmond' Virginia criminal defense attorney Richard Baugh summed up this attitude when he told Style Weekly reporter Laura Lafay (July 6' 2005)' "If you put God on the witness stand . . . and God's testimony conflicted with the DNA evidence' everyone would automatically say' ‘Why is God lying like this?'"

The blade' however' cuts both ways.

The same scientific advances that make it possible to obtain convictions in decades-old "cold cases" have exonerated inmates imprisoned for half their lives or more' often on death row.

University of Virginia School of Law Associate Professor Brandon L. Garrett (2008) determined that in more than half of the first 200 DNA exonerations' false or misleading forensic evidence led to the wrongful conviction.

The fallibility of this perfect science has become painfully evident' as has the need for reform.

Members of the legal and scientific communities have offered several explanations for the fallibility of scientific evidence offered in our courtrooms' along with fixes to address them.

Backlogs of work' not enough analysts' inadequate physical plants' outdated equipment' and insufficient training and/or supervision are frequently cited problems; added funding is the number one cure.

Some scientific premises and techniques' such as ear print analysis (Associated Press' 2001)' have been rejected as junk' with no scientific basis' while others have come into and gone out of acceptance over the course of a few decades.

Shaken Baby Syndrome (SBS) was initially defined by medical researchers in the U.K. in 1972 (Minns' 2004)' and by the 1990s' retinal hemorrhages with specific characteristics were considered pathognomonic of shaking by many forensic pathologists and pediatric specialists.

However' in the March 27' 2004' issue of the British Medical Journal' Patrick Lantz et al. examined that premise and concluded that it "cannot be supported by objective scientific evidence."

Researchers at the University of North Carolina-Chapel Hill further confirmed the Lantz conclusion when MRI studies conducted on infants during the first year showed minor brain bleeds in 26% of the children' but no indication of abuse or trauma (Fisher' 2007).

It is now thought such brain bleeds are caused by the process of vaginal birth.

Subjective analytic techniques have come under fire because they are' well' too subjective.

DNA analysis has demonstrated the unreliability of microscopic hair comparison.

Mark Webster (n.d.)' a British forensic scientist' has remarked' "The trick with hair comparison is not to worry about using a comparison microscope. Use the flip of a coin instead' it's much cheaper' easy to use both in the field and lab' and actually rather more accurate."

Microscopic fiber comparison appears to have no better accuracy' but it has not yet been challenged by a demonstrably more reliable science like DNA.

After 25 years' bullet lead analysis was abandoned by the FBI' because it is based on the faulty assumption that levels of trace elements such as silver' antimony' and tin are uniform in bullets manufactured in the same lot.

The FBI concluded in 2005 that bullet manufacturing and distribution were too variable for the matching to be reliable (Piller' 2005).

FBI Laboratory Director Dwight E. Adams' of course' says "we stand by the results of the reports we have already issued."

Fingerprint identification has been the evidentiary gold standard in U.S. courts for a century' and fingerprint analysts testify to "100 percent confidence" in matches they make.

Challenges to fingerprint identification as a pseudoscience met with sporadic success' but these efforts were analogous to chipping away Gibraltar with a chisel.

Then' in March of 2004' came the spectacular misidentification of a fingerprint linked to the Madrid train bombing as that of Oregon attorney Brandon Mayfield—by not one' not even two' but three separate FBI examiners.

Terry Green' Michael Wieners' and John T. Massey were "100 percent positive" that the print belonged to Mayfield' and when Spanish authorities questioned the identification' the FBI stood by its men and arrested Mayfield.

Six weeks later' after Spanish police matched the fingerprint to an Algerian man' and the FBI at last conceded error (Kramer' 2004).

The Mayfield case illustrates not only the fallibility of subjective techniques such as fingerprint identification' but also the bias that colors scientific inquiry undertaken by analysts who are on the same "team" as law enforcement and/or prosecution.

Messrs. Green' Wieners' and Massey are FBI special agents.

The lab where they are employed is part of a police agency.

They are' in simplest terms' cops in lab coats.

Sometimes the bias is subtle.

In the Mayfield case' special agents Green' Wieners' and Massey were almost certainly aware that Mayfield was a convert to Islam' married to a Muslim woman' and that as an attorney' he represented many Muslim immigrants seeking to live in the United States.

An FBI affidavit filed in support of Mayfield's arrest concedes there was no record of foreign travel by Mayfield' but concludes' "Since no record of travel or travel documents have been found in the name of Brandon Bieri Mayfield' it is believed that Mayfield may have traveled under a false or fictitious name."

This is classic "backward reasoning." If the suspect is guilty' then the following must be true.

It is born of tunnel vision—a narrow viewpoint that focuses on evidence that fits one's theory while discarding anything that conflicts with it—and when properly cultivated' backward reasoning masquerades as probative evidence.

When it is an integral part of faulty expert testimony' it is a recipe for wrongful conviction.

Funding' training' supervision' physical plants' backlogs' inadvertent error' and bias are all legitimate issues that directly impact the quality of the science presented in our courts' and they need to be addressed.

It is logical to expect "subtle bias'" also called "inadvertent bias'" to occur in the work of analysts who are supervised by police or prosecutors.

Reformers have for years recommended that all forensic labs be independent from law enforcement and prosecutorial agencies' and this is a key reform promoted by The Justice Project (2008).

But fixing these problems is only half the answer' because half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud' evidence tampering' and/or perjury.

This is the elephant in the crime lab.

The notion of "inadvertent bias" is' in a strange way' a comforting term.

Yes' it points to wrongdoing' but "inadvertent" implies "due to oversight" and "unintentional."

The forensic scientist guilty of "inadvertent bias" has really only made a mistake.

Granted' the results of this kind of mistake can have devastating effects on the outcome of a trial.

The innocent can be found guilty of a crime' and the guilty can be found innocent.

But the notion of "inadvertent bias" softens the nature of the wrongdoing.

It removes the possibility of deliberate action or criminal intent on the part of the forensic scientist or expert witness testifying at trial. We all make mistakes' right?

If an expert witness were to knowingly give false testimony' then clearly' that would not be "inadvertent bias."

But does that really happen' as research suggests' half of the time when misleading scientific evidence is presented?

Let's take a look at a particular case.

On the morning of November 10' 1991' a house went up in flames in Fort Stockton' Texas.

The body of an elderly man named Bill Richardson was found in the debris after the fire was put out.

For whatever reasons' arson was suspected.

It was also believed that the person responsible for the crime was a woman named Sonia Cacy.

Cacy was Bill Richardson's niece.

The body was transported from Fort Stockton to the Bexar County Forensic Science Center (BCFSC) in San Antonio for autopsy.

This became the BCFSC's Medical Examiner case # ME 1578-91.

The Medical Investigator's report' prepared after the arrival of the body at the BCFSC' reads:


"… ITS [sic] UNKNOWN HOW THE FIRE GOT STARTED. THE JUDGE H A S REQUESTED AN ARSON INVESTIGATOR FROM LUBBOCK POLICE DEPARTMENT COME AND INVESTIGATE THE FIRE SCENE…TIME BODY ARRIVED @ MORGUE: 11-10-91 2310 HRS."

Because arson was suspected' the medical examiner performing the autopsy removed remnants of charred pants and underwear from the deceased.

This sample was put into a container and sent down to the BCFSC's Toxicology Lab for an arson analysis.

The arson analysis involved a "purge and trap" technique: The sample was heated gently under a slight vacuum.

Residual gasoline on the clothing remnants would have been released and pulled into a charcoal trap.

The trap was rinsed with a solvent' and this solvent was subjected to analysis by gas chromatography/mass spectrometry (GC/MS).

Any traces of gasoline removed from the clothing would have been detected by the GC/MS analysis.

The results of the analysis were an unambiguous "none detected." The analysis did not find gasoline on the remnants of clothing. But the typed report read:

"Positive Class II Accelerant (i.e.' gasoline' etc). Chemist: Joe Castorena"

In February of 1993' Sonia Cacy stood trial for murder' accused of burning her uncle to death.

The BCFSC's Assistant Chief Toxicologist' Joe Castorena' testified as an expert witness for the prosecution. Under oath Castorena testified:

"… it's my opinion that there—there is a presence of an accelerant' and it is a class II accelerant."

Keep in mind: Gasoline is a class II accelerant.

The prosecution's theory was simple: Sonia Cacy had doused her uncle with gasoline while he was asleep and set him on fire. She then ran out of the house to save herself.

The only forensic evidence introduced at trial that indicated the fire had been deliberately set was the written report of the analysis and Castorena's testimony on the witness stand.

Both false. The result? Cacy was found guilty of murder and sentenced to 99 years in prison.

Q. Did you rip off a piece and test it or did you test the entire content?
A. No' I—I tested the entire content.

In both a document submitted as evidence' and while giving testimony under oath' Castorena identified himself as the chemist who had performed the arson analysis.

It's not true. The analysis was performed by one of the lab toxicologists. The header information of the actual GC/MS chromatograms reads:
ASSAY: ARSON
FILE ID: DATA: 1578-91.D
CASE NUMBER: ME: 1578-91'
PANTS/UNDERWEAR
DATE: 18 Nov 91 2:22 pm
ANALYST: RODRIGUEZ' R.


Sonia Cacy was found guilty of burning her uncle to death' and she was sentenced to prison for 99 years as the result of a false report and false testimony.

Yes indeed' bad things can happen when expert witnesses don't tell the truth.

Was it intentional or merely a case of "inadvertent bias"?

Clearly' only the person who performs a particular act really knows what was in his or her heart at the time the act was performed.

Is it possible that Castorena' an "expert" in arson analysis' looked at an unambiguous negative test result and inadvertently called it positive?

Is it possible that Castorena got confused and thought that he had performed an analysis when' in fact' someone else had?

Such arguments could be made' but they would be flimsy arguments at best.

The Cacy fire occurred in Fort Stockton' in Pecos County' Texas' about 300 miles from San Antonio' in Bexar County.

The Bexar County Forensic Science Center is in no way under the auspices of' or controlled by' the Pecos County District Attorney's Office or any other police agency or prosecutor's office.

The notion of a scientist yielding to subtle pressure because his job performance is evaluated by a senior official in the prosecuting attorney's office or in the investigating police agency does not apply in this case.

Removing crime labs from the control of police or prosecutors' offices would not help in a case like this.

The problems in the Sonia Cacy case arise from something else.

What might this "something else" be? If the false report and false testimony are not inadvertent' they are intentional.

When a forensic scientist or expert witness knowingly files false reports' willingly lies on the witness stand' and if it is not a matter of pressure from local prosecutors or law enforcement' what can possibly be going on in his or her mind?

The first forensic scientist to be nationally exposed for this type of conduct was Fred Zain.

At the time of his exposure' Zain was the Chief Serologist at the BCFSC.

He had been hired away from the West Virginia State Police Crime Lab' where his work as a serology analyst had made him enormously popular with police and prosecutors across the Mountain State.

It all unraveled in 1992 when DNA testing cleared Glen Woodall of a Charleston' West Virginia' rape that had occurred in 1986.

At trial in 1987' Zain testified that Woodall and the rapist had "identical blood types."

Woodall was released from prison' and shortly thereafter' he sued the state for false imprisonment.

It was Woodall's civil lawsuit that set in motion a chain of events that culminated in Zain's indictment for perjury in both West Virginia and Texas' although statutes of limitations in both states may have saved Zain from conviction (Inman & Rudin' 2000).

Inman and Rudin tell us that Zain has become the "unfortunate poster child for unethical conduct in forensic science'" but many more have trod the same path and ended their careers in ignominy.

Arnold Melnikoff.

Melnikoff was the manager of Montana's state crime lab when he testified that Jimmy Ray Bromgard's hair was "almost indistinguishable" from hairs found at the scene where an 8-year-old girl was raped.

Melnikoff told Bromgard's jury there was only one chance in 10'000 that Bromgard was not the rapist.

Fifteen years later' DNA showed that' in fact' Bromgard was not the rapist.

Additional convictions based on his testimony were also overturned.

By then' like Zain' Melnikoff 's success on the witness stand had taken him to Washington' where he was working as a chemist for the State Patrol (Center for Investigative Reporting' 2007).

Charles Vaughn.

As a crime lab analyst in Oregon' he testified that trace evidence— blood specks and gunpowder flakes—connected Chris Boots and Eric Proctor to a 1983 execution-style murder.

The defendants were cleared by DNA in 1994' and Boots sued the state when further testing found that the blood specks did not match the victim and the gunpowder flakes weren't gunpowder (Teichrob' 2004).


Janice Roadcap.

Over the course of three trials from 1974 through 1978' Pennsylvania state police chemist Janice Roadcap provided what the presiding judge called the "linchpin" evidence linking 12-yearold Steven Crawford to the murder of John Mitchell' whose body was found in the Crawford family garage.

Roadcap testified that the killer left a fingerprint after Mitchell was killed' and the fingerprint was Crawford's.

In 2001' a defense investigator found a copy of Roadcap's lab notes in a suitcase owned by one of the investigators' who had died 7 years earlier.

The lab notes stated that the blood was splattered across fingerprints that were already there.

In 1987' Roadcap explained to the jury at the rape/murder trial of Barry Laughman' that the killer's blood type "morphed" from B to A—to match Laughman's blood type—due to antibiotics the victim was taking at the time of her death.

Her fantasy science stood for 16 years' until Laughman was cleared by DNA (Shellem' 2003a' 2003b).

Joseph Kopera.

Over a 21-year career as a firearms examiner in Baltimore' and then with the Maryland State Police'

Kopera testified for the state in hundreds of criminal cases' basing his conclusions on his extensive education and experience.

He was a favorite of prosecutors because he "had an authoritative and engaging command of the material he was called upon to describe for jurors" (McMenamin' 2007).

In February 2007' Kopera was deposed by lawyers for Sgt. James Kulbicki' whose conviction relied entirely on Kopera's testimony.

Kopera claimed under oath to have degrees and certificates he did not have' and he offered a forged document to back up his qualifications.

He retired suddenly on March 1' 2007' and committed suicide that same day.

Dr. Michael West.

Dr. West' a dentist from Hattiesburg' Mississippi' was a self-taught expert in forensic bite mark identification.

By 1992' when he testified in the trials of Kennedy Brewer and Levon Brooks' he had been suspended from the American Board of Forensic Odontology and had resigned from the American Academy of Forensic Science and the International Association of Identification' pending expulsion (Dewan' 2007).

In both cases' very young children had been abducted from their beds during the night' raped' and murdered in rural' sparsely populated Noxubee County.

Dr. West saw no connection between the crimes; he testified that each victim had been bitten by the defendant charged in that case.

The men were each convicted; Brewer was sentenced to death' and Brook was sentenced to life in prison.

In 2002' Brewer was cleared by DNA' but remained in jail pending retrial until 2007' when he was finally released on bond.

In early 2008' Brooks was also cleared by DNA and released.

Two other defendants whose convictions were obtained by Dr. West's bite mark testimony were also cleared by DNA.

On February 9' 2008' Mississippi Attorney General Jim Hood announced that Albert Johnson had been identified with DNA and charged in the murders of both children.

Why did they do it? Why did they tamper with evidence' lie under oath and send innocent people to prison and even death row?

Subtle pressure and inadvertent bias don't explain this' especially because these scientists worked in both public and private settings.

When it finally came out that Fred Zain had knowingly lied on the witness stand on a regular basis and had been responsible for sending many innocent people to prison' Dr. Vincent DiMaio' the Chief Medical Examiner and Zain's former boss at the BCFSC' offered his own theory about the motivations of Zain.

Dr. DiMaio told San Antonio Express reporter Kym Fox (1994): "[Zain] was thinking he was a great noble man on a white horse and he would help the DA send all those criminals to jail."

Could that be it? Is it possible that some forensic scientists and expert witnesses lie on the witness stand because they just want to help? Yes' they are lying' but it's for a good cause: putting the bad guys away.

Here we go again: another excuse that softens the horrendous nature of what is done by the forensic scientist or expert witness who lies under oath.

But if this noble desire to "help the DA send all those criminals to jail" is the reason' then it would follow that forensic scientists and expert witnesses never lie for the defense.

That wouldn't be "the right thing to do." Right? Let's answer that by looking at another case.

During the night of April 30' 1994' a man named Parry Schurr was shot to death on a street in Wichita' Kansas. The shooter' Rumon Ray' fled from the scene and was later arrested.

Three and a half months after the killing' blood samples taken from the victim at autopsy were sent by the Coroner-Medical Examiner in Sedgwick County' Kansas' to the Bexar County Forensic Science Center.

Along with the samples was a letter to Dr. James Garriott who' at that time' was the Chief Toxicologist of the BCFSC.

This letter discussed the toxicological analyses to be run' one of them being a cocaine analysis. This became BCFSC Case # CIL 94-03194.

On August 30' 1994' a cocaine analysis was performed by one of the BCFSC's toxicologists.

The results: an unambiguous "none detected."

The report was typed and signed by the analyst.

Eight days later' a new report was printed (no new analysis' just a new report).

The new report stated: Results: "COCAINE - 12 NG/ML."

This falsified report was signed by James Garriott' Chief Toxicologist' BCFSC.

What could possibly have made Garriott falsify results? Was he trying to "help the DA send all those criminals to jail"?

The answer to that last question is "no."

It was the defense attorney who had requested the cocaine analysis on the victim's blood.

The shooter's lawyer wanted to know if the victim had been high on cocaine at the time of the killing (Hobson' 1994).

Ah' the self-defense thing.

In a letter to Garriott dated February 10' 1995' defense attorney Milo M. Unruh Jr. made it clear why he had requested a cocaine analysis on the victim's blood:
"A considerable portion of that defense (self-defense) was based upon the fact that Mr. Ray (the shooter) maintained the decedent was the aggressor and was acting in a ‘crazed' manner at the time of the incident' prompting Mr. Ray to shoot the victim in self-defense."

And:
"In my opinion' it was critical to establish that [cocaine] had been ingested immedi ately prior to the incident … such evidence would substantiate my client's version that the victim was ‘high on drugs' at the time of the altercation."

Okay. The shooter's attorney is going for self-defense.

The crux of the argument is that the victim was high on drugs at the time' acting crazy' and scaring the defendant so much that the defendant had to pull out a gun and kill the guy.

A positive finding of cocaine would be a dream come true.

So what?

Why could any of this matter to Garriott as a forensic scientist?

How could the hopes and plans of a defense attorney all the way up in Kansas have anything to do with Garriott generating a false report?

Here's something that might shed some light: Garriott testified at Rumon Ray's trial as an expert witness for the defense.

He submitted his falsified report as evidence and testified under oath that the victim had ingested cocaine 60 to 90 minutes before the incident. A complete fabrication. But he was the "hired gun'" and the jury ate it up.

How did it end? Rumon Ray was convicted of involuntary manslaughter and served just a few months in jail. The defense attorney got what he wanted' even though it wasn't the truth.

Garriott' who knowingly substituted reports and gave fabricated testimony at trial' was paid by the defense for his expertise' and as the expert who brought home the bacon for the defense' made himself all the more desirable as an expert in future cases.

There's nothing noble going on here' no desire to do the right thing and lock up bad guys.

Expert witnesses get hired to support the premises of the side in litigation that hires them' and expert witnesses get paid for their testimony.

Some get paid very well.

Dr. Vincent DiMaio' expert witness for the defense in the 2007 Phil Spector murder case in Los Angeles' California' admitted on the witness stand to earning $400 per hour for his services' (People v. Spector' 2007).

The expert witness who can't or won't support the premises of the side that retains him is the consulting expert.

The consulting expert is paid for review work and an initial' informal report.

If the report goes against the client' the expert is put on a back burner.

The consulting expert's conclusions are a work product' so they are protected from disclosure to the other side in discovery.

The consulting expert can't be retained by the other side.

Disagreeable results remain confidential' and the consulting expert stays' for the most part' anonymous.

It is the testifying expert who builds the lucrative consulting practice.

Having previously testified as an expert witness in court proceedings is a factor in qualifying to testify as an expert witness in current and future proceedings.

Crime lab analysts who have testified in numerous cases have a leg up on their brother and sister scientists when they move into forensic consulting as a second or retirement career.

It is the name of the testifying expert that is passed from lawyer to lawyer.

This is true whether the litigation is criminal' civil' or administrative in nature.

Forensic consulting is a business' and in business' the customer is always right.

Keeping the customer happy is so important that many forensic experts limit their practices to plaintiff (prosecution in criminal cases) or defense side only.

What they believe they can deliver is right up front in such situations.

Civil tort litigation—lawsuits alleging harm caused by the negligence of another— has launched hundreds of well-paid consulting careers for experts in diverse fields of science and medicine.

Legal professionals familiar with forensic experts in their area can accurately recite the conclusions of a given retained expert's report before the expert has begun work on a case.

Parties to litigation are entitled to attempt to persuade the jury that the other party's witness is an "expert for hire'" who devotes a substantial part of his or her practice to testifying on behalf of certain types of litigants and/or for certain insurance companies.

The purpose is to challenge the credibility of an expert witness by showing bias' prejudice' or relationship.

Once the jury is made aware of this information' it is for the jury to decide what weight' if any' to give to the expert witness' testimony.

How that information is obtained and how it is presented to a jury has been the subject of appeals and developing case law in state courts across the country.

In most states' litigants can subpoena the expert's financial records to determine how much money the expert has received for forensic services from specific clients' including insurance companies.

An orthopedic surgeon from the Tidewater area of Virginia' for example' during his first 2 years of solo practice' was paid $255'754 the first year and $284'252 the second year just for records reviews and defense medical examinations.

He was retained by insurance companies defending personal injury and workers' compensation cases. Sums like those can form a powerful bias.

Dr. DiMaio told San Antonio Express reporter Kym Fox (1994): "[Zain] was thinking he was a great noble man on a white horse and he would help the DA send all those criminals to jail."

Could that be it? Is it possible that some forensic scientists and expert witnesses lie on the witness stand because they just want to help? Yes' they are lying' but it's for a good cause: putting the bad guys away.

Here we go again: another excuse that softens the horrendous nature of what is done by the forensic scientist or expert witness who lies under oath.

The elephant—evidence tampering' forensic fraud' and perjury—has stretched out and made itself comfortable not just in the crime lab' but in laboratories of all types and in medical and dental offices as well.

We all feel the effects' whether we are aware of it or not.

Innocent men and women are sentenced to years in prison or are put to death for crimes they didn't commit' or that never happened in the first place.

Spouses lose spouses' children lose parents' communities lose the talents of capable people' while criminals remain free to stalk new victims.

Impaired drivers keep their licenses and drive 6'000-pound weapons on wheels that can strike any one of us at any time.

Incompetent surgeons keep operating' leaving maimed bodies and mangled lives in their wake.

Products stay in the marketplace despite posing a danger to life and limb that sometimes echoes across generations.

The Justice Project's recommendations for improving forensic evidence testing procedures are excellent' and we endorse them.

But these reforms alone are not enough.

We propose the following additional recommendations' which we believe will substantially reduce the size and impact of the elephant.

1) If the results of a forensic analysis are used as evidence' the ANALYST who performed the test must be the one who testifies about the analysis. An analyst who does not understand what he or she does and/or can't explain it to a jury should not be running analyses. If a supervisor or someone else wants to testify about the results of an analysis performed by a subordinate' then that subordinate must still be available to be questioned under oath' if by no one else than the opposing side.


2) The statute of limitations on perjury' evidence tampering' fabrication of test results' and other types of forensic fraud should be eliminated or extended as a special category of crime. It can take years for evidence of deliberate falsification or perjury to come to light. Current statutes of limitation give the criminal forensic scientist/expert witness an easy out. This is how Fred Zain escaped possible conviction for what he did.

3) All materials associated with a forensic analysis must be made available to the other side' to include the hard data (GC/MS chromatograms' IR spectra' gels' etc.) and the lab's SOP regarding that particular analysis' including how the method is performed' how detection of the substance in question (e.g.' cocaine' gasoline) is determined (i.e.' what constitutes a positive or negative finding)' the limits of detection for that particular analysis' the limits of quantification for that particular analysis' and all hard data from the calibrators and controls (positive and negative) that were run along with the sample of interest.

Forensic science must be as transparent as possible. Without that transparency' there is little hope for virtue' and' as Plato told us 2'500 years ago' "Science without virtue is immoral science.""

Harold Levy...hlevy15@gmail.com;

http://smithforensic.blogspot.com/2009/03/dr-charles-smith-and-elephant.html